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COMMONWEALTH PENNSYLVANIA v. SIDNEY KUTNER (08/07/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 7, 1979.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
SIDNEY KUTNER, APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In the Matter of Transfer of Retail Dispenser Eating Place License E-1710 Applied for by Sidney Kutner, t/a Sunny Hunny, 8201 Stenton Avenue, Philadelphia, Pennsylvania, No. Misc. 2231 June Term, 1977.

COUNSEL

Kenneth W. Makowski, Acting Chief Counsel, and J. Leonard Langan, Assistant Attorney General, for appellant.

George Gershenfeld, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 44 Pa. Commw. Page 621]

The Pennsylvania Liquor Control Board refused Sidney Kutner's application to transfer a retail dispenser eating place license. The Court of Common Pleas sustained Kutner's appeal and the Board here appeals that decision. We reverse.

A hearing was held by the Board which found that:

1. The premises proposed to be licensed are located within 200 feet of other establishments licensed by the Board;

2. The premises proposed to be licensed are located within 300 feet of the Germantown Christian Assembly; and

3. The granting of the license will adversely affect the welfare, health, peace and morals of the neighborhood within a radius of 500 feet.

The court below heard additional testimony and found that, among other things, there are no other "E" licenses within 200 feet of the proposed premises. However, there is undisputed evidence that the proposed site is within 200 feet of three other licensed premises. The proximity of other licensed premises, regardless of license category, is sufficient in the proper exercise of Board discretion to warrant denial of transfer. Bilensky v. Pennsylvania Liquor Control Board, 7 Pa. Commonwealth Ct. 312, 298 A.2d 698 (1972).*fn1 No evidence was adduced to show abuse of Board discretion. There may or may not be other reasons in this record properly before us to support the decision denying the transfer application, but we need not address the merits of the other issues.

Accordingly, we

[ 44 Pa. Commw. Page 622]

Order

And Now, this 7th day of August, 1979, the order of the Court of Common Pleas, First Judicial District of Pennsylvania, Trial Division, dated October 28, 1977 is reversed, and the order of the Pennsylvania Liquor Control Board dated June 1, 1977, which denies Sidney Kutner's application for transfer of a retail dispenser eating place license is reinstated.

Disposition

Reversed. Board order reinstated.


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