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COMMONWEALTH PENNSYLVANIA v. 901-03 11TH STREET BAR (06/14/89)

decided: June 14, 1989.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT,
v.
901-03 11TH STREET BAR, INC., APPELLEE



Appeal from Philadelphia County Common Pleas Court, Honorable Joseph D. O'Keefe, Judge.

COUNSEL

Kenneth W. Makowski, Chief Counsel, Cheryl G. Young, Chief Counsel, Harrisburg, for appellant.

Gary F. DiVito, Goldstein, Friedberg, Kelly & DiVito, Philadelphia, for appellee.

Colins and McGinley, JJ., and Barbieri, Senior Judge. Colins, J., dissents.

Author: Barbieri

[ 126 Pa. Commw. Page 493]

The Pennsylvania Liquor Control Board (Board) appeals an order of the Philadelphia County Court of Common Pleas reversing the Board's refusal of 901-03 11th Street Bar, Inc.'s (Applicant) application for a person-to-person transfer of a restaurant liquor license from 500 Bar, Inc. to Applicant for premises located at 901-03 South 11th Street in Philadelphia. Issues presented for review pertain to the trial court's scope of review of a Board refusal of a liquor license transfer application where the applicant presents evidence to the trial court which was not submitted to the Board and the propriety of the trial court's decision. The trial court's order is reversed.

Applicant's counsel attended a three-day hearing before a Board hearing examiner, but presented no evidence. The Board subsequently refused Applicant's transfer application on four grounds. The only ground relevant here is the Board's finding that Applicant submitted false information on its application in answering "none" to the following inquiries:*fn1

Question 15

Neither the applicant nor any officer, director, stockholder, agent or employe has any financial interest, either directly or indirectly, in any other type of business licensed by this Board, or in the ownership, leasehold, or equipment, of any property used by such licensee, or mortgage lien against the same, nor have they loaned any money, or given credit, or anything of value, for equipping, maintaining or conducting an establishment used in such other business, except as follows: ___. (Emphasis added.)

Question 16

No person having any financial interest as an individual, or as an officer, director, stockholder, agent or employe in

[ 126 Pa. Commw. Page 494]

    questions of fact, administrative discretion and such other matters as are involved" and "sustain or over-rule the action of the board and either order or deny the . . . transfer of the license to the applicant." This section, however, does not give the trial court carte blanche discretion. The trial court may not reverse the Board's decision unless the Board abused its discretion or the trial court made findings of fact varying significantly from those made by the Board. Nor may the trial court substitute its own findings of fact for those of the Board if substantially similar evidence is presented in both forums. Beach Lake United Methodist Church v. Pennsylvania Liquor Control Board, 126 Pa. Commonwealth Ct. 71, 558 A.2d 611 (1989).*fn4 Here, the trial court could substitute its findings of ...


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