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COMMONWEALTH PENNSYLVANIA v. GEORGE ROSCOE (07/07/81)

decided: July 7, 1981.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
GEORGE ROSCOE, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: George Roscoe, Inc. v. Pennsylvania Liquor Control Board, No. SA 1339 of 1979.

COUNSEL

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

Louis E. Caputo, with him, Bruce A. Carsia, for appellee.

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

Author: Williams

[ 60 Pa. Commw. Page 363]

Pursuant to Section 404 of the Liquor Code, Act of April 12, 1951, P.L. 90 as amended, 47 P.S. § 4-404, appellee George Roscoe, Inc. filed an application for the transfer of a liquor license before the Pennsylvania Liquor Control Board (LCB). The LCB denied the request because (1) the pertinent premises are within 300 feet of both a municipal park and a ballfield, (2) individuals other than the applicant would have a pecuniary interest in the restaurant, and (3) granting the application would have an adverse effect on the welfare, health, peace, and morals of the neighborhood within a 500 foot radius.

Under the provisions of 47 P.S. § 4-464, Roscoe appealed that determination to the Allegheny County Court of Common Pleas, which reversed the decision of the LCB and ordered the approval of the transfer application, stating that

(1) neither the municipal park nor the ballfield constitute "playgrounds" as that word is used in Section 404, and therefore the 300 foot proximity is irrelevant,

(2) the record clearly establishes that Roscoe is the only person with any pecuniary interest in the restaurant, and the LCB abused its discretion in finding otherwise, and

(3) the determination of the adverse effect on the neighborhood was also an abuse of discretion, since the evidence upon which it was based was "at most, general and speculative," and "not substantial."*fn1

[ 60 Pa. Commw. Page 364]

The LCB appealed to this Court, raising as its only question the issue of whether either the municipal park, or the ballfield, or both, constitute "public playgrounds" within the ambit of Section 404. In holding that they do not, we do not preclude the possibility that a municipal park or a ballfield may have, as part of its premises, a playground. However, the record in this case indicates that that is not the situation here.

As this Court noted in Improved Benevolent Protective Order of Elks, Uniontown, Pennsylvania, Liquor License Case, 30 Pa. Commonwealth Ct. ...


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