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COMMONWEALTH PENNSYLVANIA v. WILLIAM T. PICCIOTTI AND JANE L. PICCIOTTI (03/17/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 17, 1981.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
WILLIAM T. PICCIOTTI AND JANE L. PICCIOTTI, T/A PICCIOTTI'S PIZZA RESTAURANT, APPELLEES

Appeal from the Order of the Court of Common Pleas of Bucks County in the case of William T. Picciotti and Jane L. Picciotti, t/a Picciotti's Pizza Restaurant v. Pennsylvania Liquor Control Board, No. 77-1976-06.

COUNSEL

J. Leonard Langan, Assistant Attorney General, with him James J. Fitzgerald, III, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for appellant.

Robert W. Valimont, Power, Bowen & Valimont, for appellees.

Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 57 Pa. Commw. Page 530]

This is an appeal by the Pennsylvania Liquor Control Board (Board) from an order of the Court of Common Pleas of Bucks County reversing a Board decision refusing an application for a new restaurant liquor license. We reverse.

After two days of hearings, the Board refused the application finding, inter alia, that the proposed licensed premises were located within 300 feet of the Buckingham Monthly Meeting of Friends and Buckingham Friends School (Objectors) both of which are restrictive institutions under Section 404 of the Liquor

[ 57 Pa. Commw. Page 531]

Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. ยง 4-404.*fn1

Following a de novo hearing at which additional evidence was received, the court of common pleas made a finding of fact as follows:

3. The premises proposed to be licensed are located within three hundred feet of the premises on which both the Buckingham Friends School and Buckingham Monthly Meeting of Friends are located.

In its memorandum filed on April 15, 1980, in support of its earlier order of May 11, 1979, there is considerable confusion as to the measurements the common pleas court used in determining whether any restrictive institution is within 300 feet of the proposed place to be licensed. We are spared the necessity of resolving the conflict between finding of fact 3 and the discussion in the court's memorandum by able counsel for the applicants conceding at oral argument that the distance from the proposed location to be licensed to the Friends School was, in fact, less than 300 feet.*fn2

This critical fact having been established, we are presented with the very narrow issue of whether, under these circumstances, the Board abused its discretion in denying the license. We conclude that it did not.

[ 57 Pa. Commw. Page 532]

Despite the Applicants' strenuous arguments to the contrary, it is of no moment that the proposed licensed premises may be inaccessible to the school children due to an intervening highway or for other similar reasons. The fact that a restrictive institution "is located within 300 feet of the place proposed to be licensed is sufficient in and of itself to support an exercise of discretion in granting or refusing [an] application." In Re Chiavaroli, 54 Pa. Commonwealth Ct. 588, 591 n. 2, 422 A.2d 1195, 1196 n. 2 (1980) (emphasis added); 425-429, Inc. Liquor License Case, 179 Pa. Superior Ct. 235, 116 A.2d 79 (1955), allocatur refused, 179 Pa. Superior Ct. XXVI;*fn3 Her-Bell, Inc. Liquor Page 533} License Case, 176 Pa. Superior Ct. 206, 107 A.2d 572 (1954). And, since one of the recognized purposes of the Liquor Code is to discourage the existence of places where alcoholic beverages are dispensed in the vicinity of schools, the Board's decision to deny the license application was not an abuse of its administrative discretion. Improved Benevolent Protective Order of Elks, Uniontown, Pennsylvania Liquor License Case, 30 Pa. Commonwealth Ct. 526, 374 A.2d 747 (1977).

Accordingly, we will enter the following.

Order

And Now, March 17, 1981, the order of the Court of Common Pleas of Bucks County, dated May 11, 1979 and docketed at No. 77 M.M. 1976, is hereby reversed and the order of the Pennsylvania Liquor Control Board, dated May 11, 1976 is reinstated.

Disposition

Reversed.


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