Appeal from the Order of the Court of Common Pleas of Cambria County in the case of In the Matter of the Application for Transfer of Restaurant Liquor License No. R-11939, issued to Thomas J. Horner, t/a Mainline Restaurant & Lounge, No. Misc. 1983-2.
Patrick M. McHugh, Deputy Chief Counsel, with him, Gary F. DiVito, Chief Counsel, for appellant.
Dennis M. McGlynn, Bionaz, Raptosh & McGlynn, for appellee.
Judges Williams, Jr. and Doyle and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle. This decision was reached prior to the resignation of Judge Williams, Jr.
[ 88 Pa. Commw. Page 103]
This is an appeal by the Pennsylvania Liquor Control Board (Board) from a decision and order of the Court of Common Pleas of Cambria County reversing the Board's denial of a transfer of a restaurant liquor license to a new location at 711 Mountain Avenue, Portage, Cambria County, Pennsylvania. The license in question was issued to Thomas J. Horner, t/a Mainline Restaurant & Lounge (Mainline). Horner sought the transfer because his premises at 709 Main Street in Portage had been destroyed by fire. The Board denied the transfer on the basis of Section 404 of the Liquor Code*fn1 which provides in pertinent part:
[I]n the case of . . . the transfer of any license to a new location the board may, in its discretion, grant or refuse such . . . transfer if such place proposed to be licensed is within three
[ 88 Pa. Commw. Page 104]
hundred feet of any church . . . [T]he board shall refuse any application for . . . the transfer of any license to a new location if, in the board's opinion, such . . . transfer would be detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood within a radius of five hundred feet of the place proposed to be licensed. . . .
We note initially that it is undisputed that the original location of the licensed premises was closer than three hundred feet to the property of the Bethany United Methodist Church (Church). The Board determined, and it is apparently also undisputed, that the proposed new site for Mainline is three hundred sixteen feet from the Church parsonage, but is only two hundred twenty-eight feet from the Church parking lot and two hundred seventy-two feet from the garage of the Church parsonage.*fn2 The Board also determined, based on the testimony of the Church's minister, the Reverend Eugene R. Barrett, that the presence of Mainline would detrimentally affect the health, welfare, peace and morals of the neighborhood within a five hundred foot radius. Therefore, the Board denied the transfer application on the basis of both the three hundred foot rule and the five hundred foot rule.
An appeal was taken to the common pleas court. What can perhaps best be described as a limited de novo hearing ensued. The parties agreed to rest on the record developed before the Board's hearing examiner, but did submit two additional exhibits not
[ 88 Pa. Commw. Page 105]
relevant to our determination.*fn3 The trial judge, based upon the testimony taken before the Board's hearing examiner,*fn4 noted in his opinion that the proposed site for Mainline was within three hundred feet of the Church property. He also noted that Reverend Barrett had expressed a general concern that Mainline's presence at the proposed site would be harmful to the public and especially to young people in the neighborhood; that the Reverend's preference was that all liquor establishments be eliminated in the Borough and that the new site would place Mainline's premises farther from the Church than they had originally been. The trial judge then determined that ...