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BETTY M. ENGLAND (12/20/82)

decided: December 20, 1982.

IN RE: BETTY M. ENGLAND, T/A PARK CONFECTIONARY RESTAURANT ETC. UNIONTOWN AREA SCHOOL DISTRICT, APPELLANT


Appeal from the Order of the Court of Common Pleas of Fayette County in the case of In Re: Betty M. England t/a Park Confectionery Restaurant, Liquor License R-10076, No. 39 Civil 1981.

COUNSEL

Herbert Margolis, Buck, Margolis, Mahoney & George, for appellant.

Gary F. DiVitto, with him Ernest P. DeHaas and Bernard B. Klein, Coldren & Coldren, for appellee.

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

Author: Rogers

[ 70 Pa. Commw. Page 427]

Betty M. England, owner of the Park Confectionery filed an application with the Pennsylvania Liquor Control Board (LCB) for the transfer to her and to her premises of a restaurant liquor license. The Uniontown Area School District filed an objection to the transfer. After a hearing, the LCB refused the transfer, finding without elaboration that the applicant's premises was within 300 feet of a school and

[ 70 Pa. Commw. Page 428]

    that the license at the new location would adversely affect the welfare, health, peace and morals of the neighborhood within 500 feet. The applicant did not appeal, but she requested the LCB to reconsider her application. The Board thereupon rescinded its earlier order and approved the transfer, explaining only that "[a]fter carefully reconsidering all of the facts in this case, the Board decided that the Order refusing the application for transfer of restaurant liquor license should be rescinded."

The School District appealed the second order to the Court of Common Pleas of Fayette County, which heard evidence additional to that heard by the LCB and by opinion containing findings of fact and a discussion of the evidence held that the evidence of record supported the LCB's decision to approve the transfer, that the LCB had not committed an abuse of discretion in granting the license and that its action should therefore be sustained.

The School District contends that the LCB, having first refused the transfer, committed an abuse of discretion when it issued a second order granting it without findings of fact or a statement of reasons.

Section 4-464 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. 4-464 provides in pertinent part that the lower court:

[s]hall hear the application de novo on questions of fact, administrative discretion and such other matters as are involved, at such time as it shall fix, of which notice shall be given to the board. The court shall either sustain or overrule the action of the board. . . .

Where the LCB fails to make findings of fact after a hearing resulting in the transfer of a license, the trial court, on appeal, may make its own findings, as the court in this case did. See Weiss Liquor License ...


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