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Haugh v. Pennsylvania Liquor Control Board

Commonwealth Court of Pennsylvania

April 30, 2018

T. Michael Haugh and Linda S. Haugh, Petitioners
v.
Pennsylvania Liquor Control Board, Respondent

          Argued: April 10, 2018

          BEFORE: HONORABLE ANNE E. COVEY, Judge MICHAEL H. WOJCIK JAMES GARDNER COLINS, Senior Judge

          OPINION

          ANNE E. COVEY, Judge

         T. Michael Haugh (Haugh) and Linda S. Haugh (collectively, Objectors) petition this Court for review of the Pennsylvania Liquor Control Board's (Board) July 19, 2017 order approving Oxford Township's (Township)[1] municipal petition (Petition) for an exemption from the Liquor Code's[2] amplified sound restrictions[3] (Amplified Sound Restrictions) pursuant to Section 493.1(b) of the Liquor Code.[4]Objectors present three issues for this Court's review: (1) whether the Board erred and/or abused its discretion by approving the Petition where the Township's noise ordinance contains a less stringent standard than the Liquor Code; (2) whether record evidence reflected an adverse effect on the welfare, health, peace and morals of residents in the licensed establishment's vicinity, thereby requiring the Board to deny the Petition; and, (3) whether the Board erred by granting the Petition given the impact on Objectors, who are residents of a different municipality than that of the licensed premises. After review, we affirm.

         On April 18, 2017, the Township's Board of Supervisors approved Resolution 2017-9 (the Resolution), authorizing the Township to petition the Board for an exemption from the Amplified Sound Restrictions for the liquor-licensed premises located at 4797 York Road, New Oxford, Pennsylvania (Premises), operated as Scozzaro's Old Mill Inn (Licensee), from July 20, 2017 to July 20, 2022.[5] The Resolution referenced the Township's intention to enforce existing Township Ordinance No. 2005-42 (Ordinance), which prohibits noise nuisances within the Township and authorizes designated Township representatives, including Township police officers, to order noise nuisances abated. See Original Record (O.R.) Item 1, Exhibit P3; Reproduced Record (R.R.) at 177a-179a. Thereafter, the Township filed the Petition with the Board for the aforementioned exception.

         A Board hearing examiner (Hearing Examiner) held a hearing on the Petition on June 13, 2017, at which Licensee's president, Carl Scozzaro (Scozzaro), testified in support of the Petition. Francis Staab, chief of police (Chief Staab) for the Eastern Adams Regional Police Department (Police Department) and Edward Strevig, acting Township code enforcement and zoning officer (Code Officer Strevig), [6] also appeared as witnesses. In addition, the Township presented the testimony of Township Board of Supervisors chairman Mario Iocco (Chairman Iocco). Haugh and Daniel Sharrer (Sharrer), another neighboring property owner, testified in opposition to the Petition.

         On July 19, 2017, the Board granted the Petition for a five-year period, beginning July 20, 2017 and ending on July 20, 2022. Based on the evidence presented at the hearing, the Board concluded that "[t]he record fails to show that approval of [the Township's] [P]etition for a period of five years would have an adverse effect on the welfare, health, peace, and morals of the residents in the vicinity of the proposed exempted area." R.R. at 204a, Conclusions of Law ¶ 4. On August 7, 2017, Objectors appealed to this Court.[7]

         Objectors first argue that the Board erred and abused its discretion when it approved the Petition because the Township's Ordinance contains a subjective nuisance standard and is less restrictive than the Liquor Code's Amplified Sound Restrictions. [8] Specifically, Objectors contend:

The Township's Ordinance employs a subjective 'nuisance' standard, where a 'nuisance' is defined as 'any use of property, or conduct, or activity, or condition upon property' which causes noise 'creating annoyance or discomfort beyond the boundaries of such property which disturbs a reasonable person of normal sensitivities.' (R.[R. at] 177a) (emphasis added). By its very terms, the Ordinance expressly permits sound 'beyond the boundaries of such property[.]' [Id.] In other words, the [e]xemption serves to replace a statute that provides that no amplified sound may leave a licensed premises with an Ordinance that expressly allows sound to leave the premises.

         Objectors' Br. at 12.

         Notwithstanding Objectors' concerns, "replace[ment]" of the Liquor Code's Amplified Sound Restrictions is explicitly contemplated and permitted by Section 493.1(b) of the Liquor Code which allows a municipality to request an area be exempted from the Amplified Sound Restrictions so long as the municipality has adopted a noise ordinance and intends to enforce it. Objectors' Br. at 12; see 47 P.S. § 4-493.1(b).

         Further, Objectors contend that the Ordinance impermissibly eliminates the Liquor Code's bright-line rule and "injects a highly subjective standard requiring such sound to 'disturb[] a reasonable person of normal sensitivities' before it is actionable under the Ordinance." Objectors' Br. at 12 (emphasis added). This Court has held that "the phrase 'annoy or disturb a reasonable person of normal sensitivities' in [a] [t]ownship's ordinance is an objective standard that looks to the impact of noise upon a reasonable person under the particular circumstances of the incident." Commonwealth v. Ebaugh, 783 A.2d 846, 850 (Pa. Cmwlth. 2001) (emphasis added). In Ebaugh, this Court recognized that similarly-worded noise ordinances in various municipalities had been found by Pennsylvania Courts not to be unconstitutionally vague. Id. (citing to City of Phila. v. Cohen, 479 A.2d 32 (Pa. Cmwlth. 1984); Commonwealth v. Solon, 13 Pa. D. & C.3d 85 (1979); and Commonwealth v. Cromartie, 65 Pa. D. & C.2d 541 (1973)). While the Ordinance may impose a noise restriction that is less favorable to Objectors than the Liquor Code's Amplified Sound Restrictions, the Ordinance does not impermissibly "inject[] a highly subjective standard . . . ." Objectors' Br. at 12.

         Objectors also assert that the phrase, "in place of [S]ection 493(34) of [the Liquor Code, ]" as used in Section 493.1(b) of the Liquor Code, should be interpreted to require "an identical or substantially similar protection as afforded in [Section 493(34) of] the [Liquor] Code." Objectors' Br. at 15. Objectors urge this Court that such an interpretation of Section 493.1(b) of the Liquor Code is consistent with the Liquor Code's stated purpose of protecting "the public welfare, health, peace and morals" of the Commonwealth's residents.[9] 47 P.S. § 1-104(a). This Court declines to do so.

         The Pennsylvania Supreme Court has expressly held that "where the language of a statute is clear and unambiguous, a court may not add matters the legislature saw fit not to include under the guise of construction." Mohamed v. Dep't of Transp., Bureau of Motor Vehicles, 40 A.3d 1186, 1194-95 (Pa. 2012). Nothing in the Liquor Code (including Section 493.1(b) of the Liquor Code) requires that a municipality's noise ordinance be as restrictive as the Amplified Sound Restrictions in Section 493(34) of the Liquor Code. Rather, Section 493.1(b) of the Liquor Code requires that the Board refuse a municipality's petition only if it finds "that granting the petition shall have an adverse effect on the welfare, health, peace and morals of the residents living in the vicinity of the identified area[.]"[10] 47 P.S. § 4-493.1(b).

         Although Objectors may disagree with the specific standard chosen by the Township, [11] the Ordinance is not vague, subjective or unenforceable, and the fact that it is less restrictive than the Liquor Code's Amplified Sound Restrictions does not render it inadequate to satisfy Section 493.1(b) of the Liquor Code. Nor does the Board's Petition approval constitute an error of law. Thus, Objectors' argument fails.

         Objectors next argue that the Board abused its discretion when it approved the Petition because "[t]here is ample record evidence . . . demonstrating that granting the Petition has, and will continue to have, 'an adverse effect on the welfare, health, peace and morals of the residents living in the vicinity of the identified area[.]'" Objectors' Br. at 18 (quoting Section 493.1(b) of the Liquor Code).[12] This Court has explained that "[a]n abuse of discretion is not merely an error in judgment. Rather, discretion is abused where the law is overridden or misapplied, or the judgment exercised is clearly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record." Bensalem Racing Ass'n v. Pa. State Harness Racing Comm'n, 19 A.3d 549, 554 (Pa. Cmwlth. 2011) (citation omitted). Here, the Board concluded that granting the Petition would not adversely affect the health, welfare, peace and morals of the residents living in the vicinity of the Premises. Accordingly, this Court will review the Board's decision to determine whether the Board's judgment was "clearly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record." Id.

         In reaching its decision on the Petition, the Board considered testimony regarding the operations at the Premises:

According to [] Scozzaro, Licensee's deck is open a few weeks before Memorial Day until a few weeks after Labor Day, depending on weather. The entertainment consists primarily of jukebox music, which is not played outdoors after 11:00 p.m. Every other Thursday evening, Licensee hires musical entertainment in the form [of] a disc jockey for music trivia which ends at 10:00 p.m. On Fridays, Licensee has hired amplified acoustic musicians to play from 7:00 p.m. until 10:00 p.m. Additionally, Licensee has a one-day charity wine festival in July every year. The event ends at 7:00 p.m. Otherwise, Licensee's policy is to cease outdoor entertainment and close the deck at 11:00 p.m. [] Scozzaro testified he was aware of the concerns of [] Haugh and [] Sharrer, but only based on their testimony during last year's hearing for Licensee's 2016-2017 noise exemption petition. [] Sharrer was not aware of any complaints from any other neighbors in the area.

R.R. at 200a-201a.

         The Board also credited Chief Staab's testimony, concluding that the Police Department had the authority and the intention to enforce the Ordinance. See R.R. at 202a-203a, 38a, 41a. It further accepted Chief Staab's statements that the Police Department had not received any noise complaints pertaining to Licensee since approximately one year prior to the hearing.[13]See R.R. at 202a, 36a. The Board also considered Code Officer Strevig's testimony that he is charged with enforcing the Ordinance and investigating noise complaints and intended to continue to do so. See R.R. at 202a, 45a, 50a, 57a-58a. The Board further relied on Chairman Iocco's testimony that the Board of Supervisors was sensitive to the Ordinance, and that both the Police Department and Code Officer Strevig were ...


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