Dean v. City of Harrisburg
| Decision Date | 28 September 1989 |
| Citation | 128 Pa.Cmwlth. 431,563 A.2d 965 |
| Parties | Darryl DEAN, t/d/b/a Club Dynasty and Blaine McCollum, t/d/b/a The Club, Appellants, v. CITY OF HARRISBURG, Stephen R. Reed, Mayor, City of Harrisburg, Richard Vajda, Chief of Police, City of Harrisburg and Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board, Appellees. 2145 C.D. 1988 |
| Court | Pennsylvania Commonwealth Court |
Peter B. Foster, Pinskey & Foster, Harrisburg, for appellants.
Jerome T. Foerster, Deputy Atty. Gen., Gregory R. Neuhauser, Sr. Deputy Atty. Gen., LeRoy S. Zimmerman, Atty. Gen., Harrisburg, for appellee Pennsylvania Liquor Control Board.
Bradley C. Bechtel, Staff Atty., Judith Brown Schimmel, City Sol., Harrisburg, for City of Harrisburg.
Before CRUMLISH, Jr., President Judge, and CRAIG, DOYLE, COLINS, PALLADINO, McGINLEY and SMITH, JJ.
Appellants Darryl Dean, trading and doing business as Club Dynasty (Dean) and Blaine McCollum, trading and doing business as The Club (McCollum) appeal from an order of the Court of Common Pleas of Dauphin County (trial court) which: (1) sustained the preliminary objections of the Pennsylvania Liquor Control Board (LCB) to Dean and McCollum's third amended application for declaratory judgment and permanent injunction (equity complaint) resulting in the LCB being dismissed from the action; and (2) denied Dean and McCollum the injunctive relief requested against the City of Harrisburg (City) in Dean and McCollum's eight count equity complaint.
On June 14, 1988, the City Council of the City of Harrisburg (City Council) passed Bill Number 17 of 1988, which set up a process of permitting and licensing "bring your own bottle" (B.Y.O.B. or bottle) clubs. The next day the Mayor signed the bill into law and it was designated Ordinance 13 of 1988 (Ordinance 13).
On June 20, 1988, Dean and McCollum, owners of two bottle clubs, filed a equity complaint styled an "application for temporary injunction pending declaratory judgment and permanent injunction." On June 21, 1988, the trial court scheduled the matter for a July 15, 1988, hearing on the merits and stayed the implementation of Ordinance 13. On July 14, 1988, Dean and McCollum, after having twice previously amended their complaint, filed an application for declaratory judgment and permanent injunction. Section 3(a) of Ordinance 13 states:
SECTION 3. It shall be unlawful for any person or persons who own, operate, lease, manage or control a B.Y.O.B. Club to:
(a) Remain open and/or to transact business between the hours of 2:00 a.m. and 8:00 a.m., prevailing time, of each day and at any time on Sundays, if said B.Y.O.B. Club is located in the residence zone or within 500 feet of a residence or church.
Dean and McCollum assert that such regulation is preempted by the Liquor Code 1 which vests exclusive authority to control the possession of alcoholic beverages in the LCB.
Appellants also allege that Section 3(a) of Ordinance 13 which regulates the hours of bottle clubs located within 500 feet of a residence or church, is a zoning ordinance and thus the owners use of the property, which predates the enactment of Ordinance 13, is a valid nonconforming use. Appellants further allege that Ordinance 13 is a zoning ordinance and that the procedural requirements regarding enactment of zoning ordinances set forth in Sections 607, 608, 609, and 610 of the Pennsylvania Municipalities Planning Code (Planning Code) 2 were not followed and thus Ordinance 13 is invalid.
On August 5, 1988, the LCB filed preliminary objections alleging that Dean and McCollum: (1) failed to state a claim upon which relief could be granted; and (2) filed their action in the wrong venue.
On August 5, 1988, the trial court sustained the preliminary objections of the LCB and dismissed the LCB from the action. In the same order the trial court denied Dean and McCollum all relief requested against the City. Dean and McCollum appeal.
Our scope of review of a trial court's decision is limited to a determination of whether constitutional rights have been violated or whether the trial court abused its discretion or committed an error of law. Jenkins v. McDonald, 92 Pa.Commonwealth Ct. 140, 498 A.2d 487 (1985).
Dean and McCollum present four issues for our review. First, appellants contend the Liquor Code gives exclusive jurisdiction to regulate alcoholic beverages to the LCB; second, appellants contend that Section 3(a) of Ordinance 13 is an invalid exercise of the City's police power; third, appellants contend that Ordinance 13 is a zoning ordinance and that appellants have established a valid nonconforming use; and fourth, that the City failed to follow the proper procedural requirements for enacting a zoning ordinance.
Appellants argue preemption pursuant to Section 207 of the Liquor Code, 47 P.S. § 2-207(b), which provides:
Under this act the board shall have the power and its duty shall be:
(b) To control the manufacture, possession, sale, consumption, importation, use, storage, transportation and delivery of liquor, alcohol and malt or brewed beverages in accordance with the provisions of this act,....
Because of the preemption appellants maintain the city cannot regulate bottle clubs because patrons of bottle clubs bring their alcoholic beverages on to the premises for consumption. Appellants refer to our decisions in Fantastic Plastic, Inc. v. City of Pittsburgh, 32 Pa.Cmwlth.Ct. 41, 377 A.2d 1051 (1977) and Cloonan v. Thornburgh, 103 Pa.Cmwlth.Ct. 1, 519 A.2d 1040 (1986) for the proposition that the Liquor Code is the exclusive regulatory scheme governing alcoholic beverages in Pennsylvania. Appellants also rely on our state Supreme Court's decision in Commonwealth v. Wilsbach Distributors, Inc., 513 Pa. 215, 519 A.2d 397 (1986) in support of their contention.
However, the LCB contends that appellants are not involved in the alcoholic beverage industry, that the legal operation of a bottle club is not regulated by the LCB, and that the Liquor Code does not authorize the LCB to supervise bottle clubs. The LCB cites Wilsbach and contends that the Liquor Code only preempts regulation of the manufacture, sale and disposition of alcoholic beverages. Id. at 220, 519 A.2d at 400. In short, the LCB contends it does not regulate the use and possession of alcoholic beverages lawfully obtained from LCB licensees. Appellants are not licensees and do not engage in any prohibited activities under the Code. Consequently, the LCB asserts that bottle clubs are not part of the alcoholic beverage industry regulated by the Liquor Code.
The cases cited by appellants do not support their contention that the Liquor Code preempts all regulation of the use and possession of alcoholic beverages. Fantastic Plastic dealt with the propriety of the City of Pittsburgh's use of its police power, not preemption. Cloonan dealt with the Governor's power to phase out the LCB under the Sunset Act, Act of December 22, 1981, P.L. 508, as amended, 71 P.S. §§ 1795.1-1795.14. Further the two cases cited by appellants for the proposition that zoning ordinances may not regulate liquor sales, 3 concerned the applicability of municipal ordinances to LCB licensees. A township cannot prohibit a licensed establishment from selling or dispensing liquor from licensed premises. Bottle clubs are not LCB licensed premises, nor do they sell or dispense liquor.
Accordingly, in light of Wilsbach, we conclude that the Liquor Code preemption is confined to regulating the alcoholic beverage industry, and limited to the manufacture, sale and distribution of alcoholic beverages. The Liquor Code does not regulate the use or possession of alcoholic beverages lawfully obtained by patrons of bottle clubs. Consequently, bottle clubs are not a part of the alcoholic beverage industry and local regulation by ordinance is appropriate.
Next we will address Dean and McCollum's contention that Ordinance 13 is a zoning ordinance and that they each have established their bottle clubs as valid nonconforming uses. In the same vein, Dean and McCollum contend that the City has failed to follow the proper procedural requirements set forth in the Planning Code in enacting Ordinance 13 as a zoning ordinance which thus renders Ordinance 13 invalid. Therefore, the primary issue before us is whether Ordinance 13 is a zoning ordinance.
Appellants contend that the language of Section 3(a) which prohibits a bottle club from operating from 2:00 a.m. to 8:00 a.m. if it is located in a residence zone or within 500 feet of a residence or a church clearly establishes that Ordinance 13 is a zoning ordinance. Conversely, the City contends that Ordinance 13 is a regulatory...
To continue reading
Request your trial
-
Pennsylvania State Police Bureau of Liquor Control Enforcement v. D'Angio, Inc.
...of his permit and his license. Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-493(10).3 See: Dean v. City of Harrisburg, 128 Pa.Cmwlth. 431, 563 A.2d 965 (1989), petition for allowance of appeal denied, 526 Pa. 640, 584 A.2d 322 (1990).4 An agency's interpretation of a statute thro......
-
City of Philadelphia v. Tax Review Bd. of City of Philadelphia
...opinion in Wilsbach was joined by one justice, three justices concurred, and two justices dissented.3 Dean v. City of Harrisburg, 128 Pa.Cmwlth. 431, 563 A.2d 965 (1989), petition for allowance of appeal denied, 526 Pa. 640, 584 A.2d 322 (1990).4 Moreover, Provident Mutual actually reaffirm......
-
Wissinoming Bottling Co. v. School Dist. of Philadelphia
...in Wilsbach to be highly persuasive, and we note that this Court has previously followed Wilsbach in Dean v. City of Harrisburg, 128 Pa.Commonwealth Ct. 431, 563 A.2d 965 (1989), petition for allowance of appeal denied, 526 Pa. 640, 584 A.2d 322 (1990). Therefore, regardless of the fact tha......
-
Kohr v. LOWER WINDSOR TP. BD. OF SUP'RS
...failure to follow the procedures set forth in the MPC regarding notice and consultation with the commission. Dean v. City of Harrisburg, 128 Pa.Cmwlth. 431, 563 A.2d 965 (1989). Accordingly, the order of the trial court is ORDER AND NOW, this 9th day of February, 2005, the order of the Cour......