T.M. Haugh and L.S. Haugh v. PLCB , 185 A.3d 469 ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
T. Michael Haugh and Linda S. Haugh, :
Petitioners :
:
v. :
:
Pennsylvania Liquor Control Board, : No. 1086 C.D. 2017
Respondent : Argued: April 10, 2018
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
JUDGE COVEY FILED: April 30, 2018
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’s2 amplified sound restrictions3
1
Oxford Township is located in Adams County, Pennsylvania.
2
Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 – 10-1001.
3
Section 493(34) of the Liquor Code, 47 P.S. § 4-493(34), imposes restrictions on amplified
music at liquor-licensed premises. It provides:
Notwithstanding any law or regulation to the contrary, a licensee may
not use or permit to be used inside or outside of the licensed premises
a loudspeaker or similar device whereby the sound of music or other
entertainment, or the advertisement thereof, can be heard beyond the
licensee’s property line; however, any licensee that is located in an
area which is subject to an exemption from the [B]oard’s regulation
regarding amplified music being heard off the licensed premises shall
be exempt from compliance with this paragraph until the expiration of
the [B]oard’s order granting the exemption. . . .
47 P.S. § 4-493(34).
(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.
4
Added by Section 8 of the Act of October 5, 1994, P.L. 522, 47 P.S. § 4–493.1(b). Section
493.1(b) of the Liquor Code states:
A municipality may file a petition with the [B]oard for an exemption
from [S]ection 493(34) of [the Liquor Code] for all the licensees
within an identifiable area in the municipality. Prior to submitting a
petition, the municipality shall adopt a local noise ordinance and a
resolution adopted by its governing body confirming support of the
petition, citing the noise ordinance and its intention to enforce the
ordinance in place of [S]ection 493(34) of [the Liquor Code]. Upon
receipt of a petition, including a copy of the noise ordinance, a map of
the area to be exempted and resolution, the [B]oard shall hold at least
one (1) public hearing on the petition. The hearing may be held
before a hearing examiner. . . . Within sixty (60) days after receipt of
the petition, the [B]oard shall disapprove the petition for an
exemption in its entirety or may approve an area more limited for
which the exemption will be granted if the [B]oard 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; otherwise, the [B]oard shall approve the petition.
The [B]oard may place additional conditions on its approval such as
limiting the duration of the approval and any other condition the
[B]oard deems appropriate. There shall be a right to appeal to the
court of common pleas in the same manner as provided by this act for
appeals from refusals to grant licenses.
47 P.S. § 4-493.1(b) (bold, italic and underline emphasis added).
2
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
5
The Board had previously approved the Township’s Amplified Sound Restrictions
exemption petitions at the Premises for the periods December 16, 2009 to January 1, 2012, June 19,
2013 to June 19, 2016, and July 20, 2016 to July 20, 2017.
6
Code Officer Strevig was sworn in two to three months before the Board hearing, after the
previous code enforcement officer’s death.
3
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:
7
The Pennsylvania Supreme Court has explained:
An appellate court’s standard of review over an appeal from an
agency requires it to affirm the administrative adjudication unless it
finds that an error of law was committed, that constitutional rights
were violated, that a practice or procedure of a Commonwealth
agency was not followed, or that any necessary finding of fact is not
supported by substantial evidence of record. The ‘error of law’
component of the applicable standard of review may include an issue
of statutory construction, over which our review is plenary[.]
Moreover, we can consider whether the agency’s determination
represents an abuse of discretion.
Malt Beverages Distribs. Ass’n v. Pa. Liquor Control Bd., 8 A.3d 885, 892 (Pa. 2010) (citations
omitted).
8
Section 10-801 of the Ordinance defines “nuisance,” in relevant part, as:
[A]ny use of property, or conduct, or activity, or condition upon
property within [the] Township which shall cause a result in noise
creating annoyance or discomfort beyond the boundaries of such
property which disturbs a reasonable person of normal sensitivities,
taking into consideration the location of the use or condition and the
nature and condition of the surround neighborhood. Specifically, the
word nuisance shall include but shall not be limited to the following:
A. Operating or permitting the operation of or playing of radios,
television sets, amplifiers, musical instruments and other sound
devices which produces or amplifies sound which annoys a
reasonable person of normal sensitivities.
Ordinance, § 10-801, R.R. at 177a.
Section 10-802 of the Ordinance states: “It shall be unlawful for any person to create,
continue, cause, maintain or permit to exist any noise nuisance within [the] Township.” Ordinance,
4
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
§ 10-802, R.R. at 178a. Further, Section 10-804 of the Ordinance, which addresses the “Removal
or Abatement of Noise and Enforcements[,]” provides:
Any person who shall create, continue, cause, maintain or permit to
exist any noise nuisance at any place within [the] Township shall after
order from the Board of Supervisors or a designated representative,
including Township police officers, remove or abate such nuisance.
If such person shall fail, neglect, or refuse to abate such nuisance
ordered, the Board of Supervisors shall have the authority in person or
by its agents and or employees to sight such person for a violation of
this Part and or to remove or abate such nuisance.
Ordinance, § 10-804, R.R. at 178a.
5
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
9
See, e.g., St. Rd. Bar & Grille, Inc. v. Pa. Liquor Control Bd., 876 A.2d 346 (Pa. 2005);
First Ward Republican Club of Phila. v. Pa. Liquor Control Bd., 11 A.3d 38 (Pa. Cmwlth. 2010);
Hyland Enter. Inc. v. Pa. Liquor Control Bd., 631 A.2d 789 (Pa. Cmwlth. 1993).
6
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.”
10
Importantly, Section 493.1(b) of the Liquor Code requires the Board to approve the
Petition absent an adverse effect.
11
The Township’s Ordinance contemplates that some amplified sound coming from a
licensed premises is acceptable, so long as it would not disturb a reasonable person of normal
sensitivities.
12
The Ordinance prohibits noise which “disturbs a reasonable person of normal
sensitivities.” Ordinance, § 10-801, R.R. at 177a. Notably, Objectors appear to argue that any
effect from the Petition approval is equivalent to an adverse effect. In essence, the Objectors
contend that the Ordinance’s failure to protect “a[n] [un]reasonable person of [ab]normal
sensitivities” adversely effects them. Id.
7
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
8
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 authorized to enforce
it.14 See R.R. at 202a, 63a-64a, 65a, 66a-67a. Chairman Iocco explained that a 110-
unit townhome community was being constructed on property approximately 1,000
feet from the Premises.
Objectors contend, given Haugh’s and Sharrer’s testimony, that the
Board acted unreasonably when it concluded that the Petition approval would not
adversely affect nearby residents. Haugh testified that his home is located on
property adjacent to and across the Conewago Creek from the Premises, in Mount
Pleasant Township. Haugh represented that he contacted the Police Department three
or four times during the summer of 2015 and, on one occasion, his complaint was
never forwarded to the Police Department. See R.R. at 77a. On two other occasions,
the Police Department responded to the Premises and thereafter informed Haugh that
they did not believe that a reasonable person would be disturbed by the sound.
13
Chief Staab acknowledged that the Police Department received “one or two complaints”
from extra-Township residents living up the hill from the Premises. R.R. at 37a. However, those
complaints were received more than one year before the hearing. Chief Staab testified that the
Police Department investigated the complaints, but found that the noise was not loud enough to
require abatement. See id.
14
Chairman Iocco explained that he is also a Police Department commission member. See
R.R. at 61a. He stated that Code Officer Strevig is a duly-appointed Township representative who
has the power to abate all nuisances in accordance with the Township’s ordinances. See R.R. at
63a. According to Chairman Iocco, Code Officer Strevig carries a citation book, is authorized and
has complete discretion to issue citations without the Board of Supervisors’ approval. See R.R. at
63a-64a. Chairman Iocco explained that the Police Department also has full authority to enforce all
Township ordinances, including issuing on-the-spot citations for Ordinance violations. See R.R. at
66a-67a.
9
Haugh asked the police to come to his home, but they refused because it was not
within their Township jurisdiction. Haugh testified that he took no further action
thereafter to report amplified sound incidents at the Premises. See R.R. at 77a-78a.
After Haugh attended a Board of Supervisors meeting in the summer of 2015 and
expressed his concerns but received no response, he did not attend any additional
meetings. See R.R. at 79a-80a. Haugh further explained:
[M]y wife, my neighbors that are here, we are affected. Our
peace is affected. Period.
I mean, we get amplified sound. . . . But they said we have
a jukebox seven days a week, I guess all year round . . .
until eleven o’clock. I mean, I’m 68 years old. I don’t want
music at eleven o’clock at night. [Licensee has Thursday
night trivia] that’s by a DJ that not only has amplified
sound, but [Licensee] has music in between it. And then I
heard Friday there’s acoustic entertainment. . . . [T]hen the
public events that [Licensee has], which I’ll get to here in a
minute. . . .
I mean, we spent thousands of dollars on our property. We
have 12 acres of lawn and gardens and patios and it’s just
unacceptable for me to hear anything let alone the
sensitivity of a normal person. It’s just unacceptable to
hear anything.
The [Board] has a great law that is very clear that says --- . .
. there is no amplified sound leaves a licensed property.
Why would this Township even want this rule? And why
would the [Board] allow them --- allow anybody to have
sound leave their property? It just unacceptable.
....
I mean, who knows what’s going to happen with 150
residents [living in the new townhome community]. I don’t
even know what --- who’s going to live there. A hundred
and some units. It just doesn’t make any sense to me.
. . . . I live sort of on a hill across the way here. And . . .
sound just travels up that hill. . . . I mean, I have a certain
10
typography here that just is different than the person living
on the other side of this house . . . .
I enjoy music. But I want to control it. We, my wife, and
myself haven’t had an event on our property on a Friday or
Saturday night in years because we have no idea whether
we’re going to be interrupted or not. We used to entertain a
fair amount. We should entertain. We have guests that ---
just friends or even family come to our house. We don’t
know what’s going to happen in a given day.
. . . . [W]e’ve been through this and we’re supposed to be
the ones to continue to monitor this thing. I mean it --- it
keeps putting back on us. Did you call the police? Did you
do this? Do --- I don’t want to call the freaking police. I
mean, it’s just --- it’s not my job. It’s the [Board’s] job
to have their rule --- which was a great rule and very
succinct rule --- that says that no amplified sound leaves
a property.
And they gave this to this Township[,] . . . they just don’t
follow through with anything, you know, that I have
complained to. I went to their Board meeting. Their police
sat down here in this parking lot and listened to the music.
And it was probably ten o’clock at night because we
wouldn’t have called at 8:00 or so. . . . But it just doesn’t
make any sense to me.
R.R. at 81a-84a (emphasis added).
Haugh also played a video he purportedly recorded on his cell phone
from Objectors’ back patio approximately 500 feet from the Premises on July 16,
2016 at approximately 4:00 p.m., when Licensee was hosting an annual wine event.
On the video Haugh’s wife, Linda S. Haugh, states that she was “[t]rying to enjoy a
quiet afternoon at home.” R.R. at 100a. According to the record, rock music could
be heard playing in the background at a volume the Hearing Examiner described as
lower than that of Linda S. Haugh’s voice. See R.R. at 101a-102a. Notably, Haugh
admitted that he did not report the noise to the Police Department or to anyone else.15
15
The Township’s prior Amplified Sound Restrictions exemption expired on June 19, 2016
and, therefore, Section 493(34) of the Liquor Code applied to the Premises until the new exemption
11
Sharrer testified that he opposed the Petition because he “just want[s] a
little peace and quiet . . . .” R.R. at 111a. When asked by the Hearing Examiner
whether he had been disturbed by amplified entertainment coming from the Premises,
Sharrer answered, “[y]es, I can hear it.” R.R. at 112a. He stated that he had only
once complained about the noise to the Pennsylvania State Police during the summer
of 2015, at which time a state trooper came to his driveway and stopped, but did not
come into his home. See R.R. at 114a. Sharrer admitted that he made no further
complaints about amplified sound from the Premises. Sharrer also acknowledged that
he had last heard amplified sound from the Premises only once during the months
prior to the hearing. See R.R. at 116a. When asked by the Hearing Examiner
whether he was “disturbed[, by the amplified sound] or . . . just heard it[,]” Sharrer
responded, “[j]ust heard it.” R.R. at 116a. Sharrer explained that the amplified sound
from the Premises is louder at Objectors’ house, and when the music was loud
enough, he could feel the vibration from the bass at Objectors’ home. See R.R. at
117a. However, Sharrer admitted that the last time he felt the vibration from the
music while at Objectors’ property was approximately two years before the hearing.
See R.R. at 117a-118a.
The Township’s witnesses testified that the Police Department and Code
Officer Strevig were authorized to enforce the Ordinance, that the Police Department
had previously done so, and both intended to continue enforcement in the future.
took effect on July 20, 2016. Thus, when the recording was purportedly made on July 16, 2016, the
Pennsylvania State Police, Bureau of Liquor Control Enforcement could have investigated a
reported violation of the Liquor Code’s Amplified Sound Restrictions at the Premises. Importantly,
neither the Liquor Code nor the Ordinance absolutely guaranty that amplified sound from a licensed
premises will not disturb a neighboring resident. Rather, both the Liquor Code and the Ordinance
contain restrictions and authorize consequences if the restrictions are violated. Therefore, even the
Liquor Code’s Amplified Sound Restrictions do not, themselves, prevent Licensee from playing
amplified music or protect Objectors from hearing it, as evidenced by the alleged July 16, 2016
recording. Notwithstanding, Objectors failed to notify law enforcement so that the appropriate
consequences could be imposed.
12
Chief Staab described the few prior complaints and the Police Department’s response.
Objectors admitted that they have not contacted the Police Department, Licensee,
Code Officer Strevig, or anyone else during the last exemption period to report
amplified sound from the Premises.16 Despite presenting a video recording of
amplified sound emanating therefrom during a July 16, 2016 wine event, Haugh
admitted that he did not contact Township officials to report his concerns.17 Sharrer’s
testimony revealed that although Sharrer had heard music from the Premises on
occasion, he complained only once, and, when asked, he declined to testify that music
from the Premises disturbed him. The Board determined that, given the Township’s
willingness to enforce the Ordinance, its prior history in doing so, and the lack of
complaints regarding Licensee’s conduct, granting the Petition would have no
adverse effect on nearby residents. Based on a review of the record evidence, this
Court concludes the Board’s decision was not “clearly unreasonable, or the result of
partiality, prejudice, bias, or ill-will, as shown by the evidence or the record.” 18
Bensalem Racing Ass’n, 19 A.3d at 554.
Finally, Objectors assert that the Board erred by approving the Petition
given the record testimony describing the impact on Objectors, who are residents of a
different municipality than that of the Premises. Specifically, Objectors contend that
because the Pennsylvania State Police, Bureau of Liquor Control Enforcement would
16
Certainly, those responsible for enforcing the applicable restrictions can best do so when
they are made aware of alleged violations.
17
Further, the amplified sound in the video occurred during the day, and was not louder than
Linda S. Haugh’s speaking voice.
18
Nor is this Court persuaded by Objectors’ argument that the Board should have denied the
Petition based on the possible impact the Premises’ amplified music will have on the new
townhome community. This Court has held that witness testimony speculating about future harm
that may result is insufficient to support a conclusion of adverse effect therefrom. See SSEN, Inc. v.
Borough Council of Eddystone, 810 A.2d 200 (Pa. Cmwlth. 2002). Moreover, if townhome
residents hear amplified sound from the Premises that would disturb a reasonable person of normal
sensitivities, the Police Department and Code Officer Strevig are authorized to abate it, and they
have assured the Board they would do so.
13
ordinarily enforce the Liquor Code’s Amplified Sound Restrictions but will not
enforce the Ordinance, Objectors will be forced to rely on local police to address
noise disturbances, and local enforcement will be impaired by the fact that Licensee
and Objectors are served by different police departments.
Importantly, at the Board hearing, Chief Staab explained that each
officer in the Police Department is authorized to enforce the Ordinance in the
officer’s discretion, and that where an alleged nuisance is within the Police
Department’s jurisdiction, the Police Department will respond, regardless of where
the complainant is located. See R.R. at 40a. In fact, the Police Department
investigated noise complaints on two occasions as referenced in Chief Staab’s
testimony. Chairman Iocco similarly confirmed that a complaint reported by a non-
Township resident pertaining to property within the Township would be treated the
same way as a complaint received from a Township resident. See R.R. at 69a. Based
on the record evidence, the Board could reasonably conclude that the Township
intends to enforce its Ordinance regardless of whether complaints are made from
within or outside the Township. Accordingly, Objectors’ argument is without merit.
For all of the above reasons, the Board’s order is affirmed.
__________________________
ANNE E. COVEY, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
T. Michael Haugh and Linda S. Haugh, :
Petitioners :
:
v. :
:
Pennsylvania Liquor Control Board, : No. 1086 C.D. 2017
Respondent :
ORDER
AND NOW, this 30th day of April, 2018, the Pennsylvania Liquor
Control Board’s July 19, 2017 order is affirmed.
___________________________
ANNE E. COVEY, Judge