DocketNumber: Appeal, No. 2185 C.D. 1985
Citation Numbers: 101 Pa. Commw. 98, 515 A.2d 997
Judges: Blatt, Craig, Doyle
Filed Date: 9/30/1986
Status: Precedential
Modified Date: 6/24/2022
Opinion by
This is an appeal by Cross Country Entertainment, Inc. (Cross Country) from an order of the Court of
Cross Country sought a double transfer, i.e., from person to person and from place to place. A hearing was held on its application on December 3, 1984. At that hearing there was uncontradicted testimony that the proposed licensed premises were within 200 feet of another licensed premise and within 300 feet of the Soldiers and Sailors Memorial Hall, The Historical Society of Western Pennsylvania, and a parking lot belonging to the University of Pittsburgh. Furthermore, protestants, who resided within 500 feet of the proposed licensed premises, appeared and testified objecting to the transfer on grounds that it would be detrimental to the welfare, health, peace and morals of persons residing within 500 feet of the proposed licensed premises. Although the hearing examiner recommended that the transfer application be granted, the Board issued an order on March 22, 1985 denying the application pursuant to Section 404 of the Liquor Code,
*101 1) The proposed licensed premises are located within 200 feet of other establishments licensed by this Board.
2) The proposed licensed premises are located within 300 feet of Soldiers and Sailors Memorial Hall, Historical Society of Western Pennsylvania and the University of Pittsburgh.
3) The approval of this application would adversely affect the health, welfare, peace and morals of the neighborhood within a radius of 500 feet.
Subsequent to this order Cross Country filed an appeal with the court of common pleas alleging (1) that the Boards decision was contrary to the evidence and (2) that the Board in its meeting considered matters dehors the record. Allegedly, prior to the vote being taken by the Board on the application, a letter from a State Representative was distributed to Board members. Said letter allegedly opposed the transfer. At the de novo hearing before the common pleas court the Boards chief counsel testified that such a letter had been distributed to the Board against his advice. The common pleas court denied a petition filed by protestants as intervenors to present additional testimony of, inter alia, the Boards Director of Licensing who, had he been permitted to testify, would have stated that no such letter was ever presented to or considered by the Board. Similar testimony would also have been offered by a member of the State Representatives staff.
The common pleas court held that even assuming that the Board had considered evidence outside the record, there was sufficient evidence in the record as a
On appeal here the same issues are raised as were asserted below.
Based upon the foregoing we conclude that the trial court committed no error nor abuse of discretion when it upheld the denial of the transfer.
Order
Now, September 30, 1986, the order of the Court of Common Pleas of Allegheny County entered July 5, 1985 in the above-captioned matter is hereby affirmed.
Act of April 12, 1951, P.L. 90, as amended. Section 404 states in pertinent part:
[I]n the case of any new license or the transfer of any license to a new location the board may, in its discretion, grant or refuse such new license or transfer if such place proposed to be licensed is within three hundred feet of-any church, hospital, charitable institution, school, or public playground, or if such new license or transfer is applied for a place which is within two hundred feet of any other premises which is licensed by the board . . . And provided further, that the board shall refuse any application for a new license or the transfer of any license to a new location if, in the boards opinion, such new license or*101 transfer would be detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood within a radius of five hundred feet of the place proposed to be licensed. . . .
Judge Williams held in Centrum:
Considering the very narrow factual matrix of this case, wherein (1) two applications for the same type of license in the same neighborhood were simultaneously pending before the Board; (2) members of the board of directors of the local community group which ‘advised’ the Board concerning its decision owned interests in one of the applicants; (3) personal political considerations motivated a local elected official to oppose only one of two applicants for the reason that another license would increase undesirable neighborhood traffic; (4) the Board failed to make any findings of fact which would enable a reviewing Court to ascertain why, in its opinion, one applicant would have an adverse effect on the neighborhood but the other apparently would not, and (5) the Board egregiously violated both due process and its own regulations by considering evidence not of record, we therefore conclude that the common pleas court committed an error of law when it determined that the Board did not abuse its discretion.
Id. at 565-66, 455 A.2d at 745. (Footnotes omitted.)
Our scope of review is limited to determining whether the trial court abused its discretion or committed an error of law. Pennsylvania Liquor Control Board v. Horner, 88 Pa. Commonwealth Ct. 102, 488 A.2d 661 (1985).
There is no assertion that the Soldiers and Sailors Memorial Hall, the Historical Society of Western Pennsylvania, or the parking lot of the University of Pittsburgh, are not “institutions” covered under the 300 foot rule. Hence we assume, without deciding, that they are.