In re Appeal of Improved Benevolent Protective Order of Elks of the World, Summit Lodge No. 115 , 30 Pa. Commw. 526 ( 1977 )

Opinion by

Judge Blatt,

This is an appeal by the Pennsylvania Liquor Control Board (Board) from an order of the Court of Common Pleas of Payette County which reversed a Board decision denying an application for a club liquor license.

Summit Lodge No. 115 of the Improved Benevolent Protective Order of Elks (Lodge) filed an application with the Board for a club liquor license for their premises located at 94 Feather Avenue, South Union Township, Uniontown. After a hearing at which the Lodge presented evidence, the Board refused to grant the license, finding inter alia that the premises proposed to be licensed were located within 300 feet of the Payette County Housing Authority (Authority) public playground. An appeal by the Lodge to the Court of Common Pleas was sustained, that court finding that the Authority had indicated that it had no objection to the granting of the license, even though the Lodge was located within 300 feet of the Authority’s public playground. This appeal followed.

Section 404 of the Liquor Code¹, 47 P.S. §4-404, allows the Board in its discretion to refuse to grant a license “if such place proposed to be licensed is within three hundred feet of any church, hospital, charitable institution, school, or public playground(Emphasis added.) We have previously recognized that, by this section, the Legislature has given the Board discretion to approve or refuse license applications or applications to transfer licenses and that the function of the lower court on appeal is not to substitute its discretion for that of the Board, but merely to determine whether the Board abused its administrative discretion. Bilinsky v. Liquor Control Board, 7 Pa. Commonwealth Ct. 312, 315, 298 A.2d 698, 699 (1972). In this case we believe that the lower court did substitute its discretion for that of the Board and that its order must therefore be reversed.

The lower court noted here, of course, that the Authority had no objection to the licensing, but this was a factor properly to be considered by the Board in exercising its discretion and we have previously held that the absence of objection does not control the Board’s decision in these matters. See Home Aid Association of John C. Tressler Post v. Pennsylvania Liquor Control Board, 25 Pa. Commonwealth Ct. 271, 273, 360 A.2d 834, 835 (1976). It is uncontested here that the Authority’s playground is within 300 feet of the premises which the Lodge proposes to license, and the lower court described the playground here concerned as a public one in its findings. The Lodge argues that the court was mistaken in so doing, but our review of the record establishes that the playground is owned by the Authority which is a public body and also that, although the playground is intended to be used by the tenants of the Authority’s nearby housing, the use of the playground by other persons is in no way restricted. Under these circumstances, we believe the lower court correctly described the playground as a public one. And, inasmuch as one of the recognized purposes of the Liquor Code is to discourage the existence of places where alcoholic beverages are dispensed in the vicinity of playgrounds², the Board’s decision to deny the license application was not an abuse of its administrative discretion.

The decision of the court below is reversed and the order of the Board is reinstated.

Order

And, Now, this 15th day of June, 1977, the order of the Court of Common Pleas of Fayette County dated February 26, 1976, is hereby reversed and the order of the Pennsylvania Liquor Control Board is hereby reinstated.

1 Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §1-101 et seq.

2 See Board of Commissioners of Upper Darby Township v. Penn Continental Motor Inn, Inc., 10 Pa. Commonwealth Ct. 652, 314 A.2d 587 (1973) and the cases cited therein.