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COMMONWEALTH PENNSYLVANIA v. HERRMANN BROTHERS (10/09/85)

decided: October 9, 1985.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT
v.
HERRMANN BROTHERS, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Commonwealth of Pennsylvania v. Herrmann Brothers, Inc., No. 2661 March Term, 1983.

COUNSEL

Bruce H. Bikin, Assistant Counsel, with him, Gary F. DiVito, Chief Counsel, for appellant.

James J. Binns, James J. Binns, P.A., for appellee.

Judges Rogers, Barry and Palladino, sitting as a panel of three. Opinion by Judge Barry. Judge Palladino dissents.

Author: Barry

[ 92 Pa. Commw. Page 197]

This appeal results from an order of the Court of Common Pleas of Philadelphia, sustaining an appeal by applicant, Herrmann Brothers, Inc., and reversing an order of the appellant, the Pennsylvania Liquor Control Board (Board), which had denied applicant's request for the transfer of a restaurant liquor license to the premises at 3500 Kensington Avenue in Philadelphia.

In April of 1982, one Bill S. Memis purchased the premises referred to above, including the equipment and fixtures. Mr. Memis, however, did not purchase the existing liquor license which had been held by the previous owner, A.R.F. Bar, Inc., as that license R-2193, was scheduled to be revoked because of a 1981 violation. After purchasing the premises, Mr. Memis gave License R-2193 to the Board which revoked the license.

Mr. Memis then purchased a license, R-7398, which had been held by Herrmann Brothers, Inc. Mr. Memis intended to transfer the license to the 3500 Kensington Avenue premises. That license had been in safekeeping since 1978 due to the then principal's intent to sell. Since the sale of the license, the corporate structure of Herrmann Brothers, Inc. has been completely changed and Mr. Memis is the sole officer and stockholder. By order dated October 18, 1982, the Board denied the requested transfer.

Mr. Memis then renewed the license for a period ending October 31, 1983 and placed it in safekeeping with the Board. Mr. Memis then asked the Board to reconsider its original denial. Following a hearing, the Board again denied the requested transfer. This denial was based on three grounds: (1) the premises at 3500 Kensington Avenue was within 300 feet of Harrogate Park, a city playground; (2) the premises were not reputable as evidenced by the revocation of

[ 92 Pa. Commw. Page 198]

    the license held by A.R.F. Bar, Inc.; and (3) approval of the application would adversely affect the health, welfare, morals and peace of the neighborhood within a radius of 500 feet.

Applicant then took an appeal to the trial court which took additional evidence. The court first found that Mr. Memis had no connection with A.R.F. Bar, Inc. and, therefore, none of the violations of the prior owner could in any way be attributed to Mr. Memis and used to deny the transfer. Secondly, the court found as a fact that approval of the transfer would not affect the health, welfare, peace and morals of the community as Mr. Memis was an upstanding citizen whose family resided one block away from 3500 Kensington Avenue. Finally, the court found that the premises at 3500 Kensington Avenue had been operating as a restaurant-tavern since shortly after the repeal of Prohibition and prior to the existence of the playground. As the premises predated the playground, the court held that the Board was without authority to deny the transfer based on the existence of the playground within 300 feet of the proposed licensed premises. The Board filed this appeal to our Court.

Section 404 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. ยง 4-404 ...


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