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DARRYL DEAN v. CITY HARRISBURG (09/06/89)

decided: September 6, 1989.

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



Appeal from Common Pleas Court, Dauphin County; Honorable Herbert A. Schaffner, Judge.

COUNSEL

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.

Crumlish, Jr., President Judge, and Craig, Doyle, Colins, Palladino, McGinley and Smith, JJ. Doyle, J., dissents.

Author: Mcginley

[ 128 Pa. Commw. Page 433]

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

[ 128 Pa. Commw. Page 434]

    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*fn1 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 ...


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