73 Pa. Commw. 336 | Pa. Commw. Ct. | 1983
Opinion by
The Pennsylvania Liquor Control Board (Board) has appealed from an order of the Court of Common Pleas of Cambria County which reversed an order of the Board and directed that Joseph Byer, Jr.’s (Appellee)
On June 18,1981, Appellee applied for a person-to-person and place-to-plaee transfer of a restaurant liquor license to premises located at 624 Broad Street, Johnstown, Pennsylvania. Following a hearing, the Board denied the transfer application based on four findings: 1) that the premises proposed to be licensed are located within 200 feet of other licensed establishments; 2) that the site is also located within 300 feet
Appellee appealed the Board’s decision to the court of common pleas, where a de novo hearing was held. In its opinion, the court noted that uncontradicted testimony presented at the de novo hearing supported the Board’s findings that the proposed site is located within 200 feet of another licensed establishment and that two churches-and a playground are within 300 feet of the site. The court nevertheless concluded that the denial of the transfer application was arbitrary and capricious because the Board did not explain how the proposed site would differ from other licensed establishments in the area which are also located within the 200 and 300 foot restrictive zones. The court’s ruling on this issue constituted clear error.
Section 404 of the Liquor Code (Code)
Section 464 of the Code, 47 P.S. §4-464 provides that on appeal to the court of common pleas, “[t]he court shall hear the application de novo on questions of fact, administrative discretion and such other matters as are involved. ...” It is well settled, however, that Section 464 does not permit the court to substitute its discretion for that of the° Board. The Board may be reversed only where there has been a clear abuse of discretion or where new facts varying from those accepted by the Board are found by the court. Darlene Bar, Inc. v. Pennsylvania Liquor Control Board, 51 Pa. Commonwealth Ct. 274, 414 A.2d 721 (1980).
In the instant case, the court of common pleas reversed the Board despite the fact that the evidence presented at the de novo hearing fully supported the Board’s first two findings. Since the Board’s findings were clearly adequate to support its denial of the transfer application, iwe must conclude that the court •of common pleas ’ reversal was in error.
Order reversed.
Order
The order of the Court of Common Pleas of Cambria County, dated June 2, 1982, is hereby reversed.
Appellee has not participated in this appeal.
Our scope of review is limited to a determination of whether the court of common pleas abused its discretion or committed legal error. Pennsylvania Liquor Control Board v. Two Guy’s Delicatessen, Inc., 13 Pa. Commonwealth Ct. 602, 319 A.2d 695 (1974).
Act of April 12, 1951, PX. 90, os amended, 47 P.S. §4-404.
As we have noted, the Board’s denial of the transfer application was fully supported by its first two findings. We, accordingly, need not decide whether the court of common pleas correctly concluded that the Board’s other findings were not supported by the record.