204 Pa. Super. 25 | Pa. Super. Ct. | 1964
Opinion by
This is an appeal from the order of the court below sustaining the Pennsylvania Liquor Control Board’s refusal to approve the transfer of the appellant’s restaurant liquor license to 5500 Rising Sun Avenue in the City of Philadelphia. The board found that the premises were not within three hundred feet of a church nor within two hundred feet of any other licensed premises, but refused the transfer because it found that the establishment would be detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood within a radius of five hundred feet. The appellant contends that in refusing the transfer the board exercised its discretion arbitrarily since there was no evidence upon which to base the adverse finding other than the opinion of certain protestants.
The question then is whether or not there was sufficient evidence to justify a finding by the board that the license would be detrimental. The hearing judge, on the appeal from the board, felt that there was no evidence to support the board’s finding except, the opinions of protestants and that these did not constitute a sufficient basis for the board’s conclusion, particularly in view of contrary testimony by the appellant’s witnesses, including testimony that the establishment would be conducted as a respectable restaurant and not primarily as a taproom at which the service of food was incidental. The court en banc, however, reversed, noting the substantial number of witnesses who testified “that they thought an establishment that dispensed alcoholic beverages in their residential neighborhood would be detrimental to the welfare and morals of the inhabitants therein, that the
The facts presented to the hearing judge were substantially the same as those presented to the board and in view of the limited right of the court to disturb the determination of the board in such cases (Cialella Liquor License Case, 191 Pa. Superior Ct. 526, 159 A. 2d 61 (1960)), we cannot say that the court erred in concluding that the evidence provided a sufficient basis for the board’s finding that the license would be detrimental to the community. It may be that mere protests or the fact that there are a large number of protestants may not, without more, be an adequate basis for the requisite finding.
Order affirmed.
But see the discussion of the Act of May 13, 1887, P. L. 108, in Tate Liquor License Case, 196 Pa. Superior Ct. 193, 199, 173 A. 2d 657, 660 (1961).