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HomeMy WebLinkAbout2007-3721 Civil RODNEY L. YENTZER, CAROL M. : IN THE COURT OF COMMON PLEAS OF YENTZER, JEFFREY A. YENTZER : CUMBERLAND COUNTY, PENNSYLVANIA AND RODNEY L. YENTZER, II, t/d/b/a : DOUBLIN GAP MOTOCROSS, INC., : PLAINTIFFS : : V. : : : HOPEWELL TOWNSHIP, : DEFENDANT : 07-3721 CIVIL TERM IN RE: MOTION OF PLAINTIFFS FOR JUDGMENT ON THE PLEADINGS BEFORE BAYLEY, J. AND GUIDO, J. OPINION AND ORDER OF COURT Bayley, J., May 13, 2008:-- In 1979, Hopewell Township, a second class Township, adopted the following ordinance No. 79-2: AN ORDINANCE REGULATING PUBLIC GATHERINGS, PROVIDING FOR PUBLIC GATHERING PERMITS AND REQUIRING ADEQUATE FACILITIES THEREFORE, PROHIBITING CONSUMPTION OF ALCOHOLIC BEVERAGES AND POSSESSION OF OPEN CONTAINERS OF ALCOHOLIC BEVERAGES ON PUBLIC PROPERTY AND PUBLIC HIGHWAYS, PROHIBITING PUBLIC DRUNKENNESS, AND PROHIBITING FIGHTING, INDECENT CONDUCT, AND GATHERINGS FOR UNLAWFUL PURPOSES WITHIN THE TOWNSHIP, AND PRESCRIBING PENALTIES FOR VIOLATION. It is hereby ordained and enacted by the Board of Supervisors of Hopewell Township, Cumberland County, Pennsylvania, as follows: Section 1. It shall be unlawful to hold, manage or conduct any public gathering, entertainment, or party of any kind in the Township, except in compliance with the provisions of this ordinance. Section 2. It shall be unlawful to collect, gather, or be a member of any disorderly crowd, or any crowd gathered for any unlawful purpose. Section 3. It shall be unlawful for any person to commit any indecent act; or to appear in any public place not properly or decently garbed. Section 4. It shall be unlawful for any person to be in an intoxicated condition in or on any street, highway, or public place within the Township. 07-3721 CIVIL TERM Section 5. It shall be unlawful for any person to knowingly start a fight, or to fight, or to commit any assault or battery in any public place within the Township. Section 6. Any public gathering or event not held in a building shall be terminated not later than midnight, and it shall be unlawful for any person to remain on the premises between the hours of 1:00 and 6:00 a.m.; provided that employees of the holders, managers or conductors of such gathering or event whose duties necessitate it, may remain on the premises for the performance of such duties. Section 7. No such gathering, entertainment, or party shall be held or presented in any premises, unless such premises have been examined by the building inspector of the Township not more than three days in advance of the date of such gathering and found free of any fire hazard and found to be suitable for the purpose. Section 8. It shall be unlawful, within Hopewell Township, for any person to drink “liquor” or “malt or brewed beverages” upon any public street, public municipal parking lot, private parking lot open to public use or public park, or in any vehicle being operated or parked thereon. Section 9. It shall be unlawful, within Hopewell Township, for any person to have in such person’s possession or in a vehicle under such person’s control any open container containing “liquor” or “malt or brewed beverages” upon any public street, public municipal parking lot, private parking lot open to public use or public park. Section 10. The following words or phrases, unless the context clearly indicates otherwise, shall have the meaning ascribed to them in this section: “Liquor” and “Malt or Brewed Beverages” and “Container” and “Official Seal” shall mean the same as those words and phrases are defined in the “Liquor Code” of the Commonwealth of Pennsylvania. “Open” when used in connection with a container shall mean any container which has been perforated in the case of a can or similar container or a container on which the cap has been loosened or the cork displaced and the official seal torn or mutilated. Section 11. It shall be unlawful to hold, manage or conduct any public gatherings, entertainment or party within Hopewell Township without providing for adequate sanitary facilities. There must be separate facilities or units for males and females. All facilities, except where public water and public sewer service is available, shall be of the chemical type. All facilities during the operation of the public gathering, entertainment or party, must be serviced once a day, at least. Section 12. Any person, corporation or firm desiring to hold, manage or conduct a public gathering of a type covered by this Ordinance must make application to the Township Secretary for a permit at least ten days in advance of the gathering or event and pay to the Township at that time any fee for issuance of said permit which the Township, by resolution, -2- 07-3721 CIVIL TERM may impose. Application forms shall be provided by the Township and require such information as the Township, by resolution, deems necessary and pertinent for the effective enforcement of the provisions of this Ordinance. Upon compliance with this section and with the provisions of this Ordinance, the Township Secretary shall issue the appropriate permit. Section 13. The Township may require the posting of cash bond, or surety bond with two or more sureties satisfactory to the Township, or with a corporate surety, in an amount which will reimburse the Township for its costs of clean-up, maintenance, and repair following the conduct of any public gathering within the Township contrary to the provisions of this Ordinance, prior to the issuance of the appropriate permit. This Ordinance is not intended to apply to any Section 14. public gathering of less than 750 individuals , and is not intended to apply to any public gathering where all the persons in attendance are related by blood or marriage. Section 15. Any person, firm or corporation violating any provision of this Ordinance shall, upon summary conviction thereof, be sentenced to pay a fine of not more than three hundred ($300.00) Dollars, and costs of prosecution, and, in default of payment of such fine and costs, to imprisonment for not more than ninety (90) days. Section 16. If any sentence, clause, paragraph, section or portion of this Ordinance is declared by any Court of competent jurisdiction to be illegal, invalid or unconstitutional, such declaration shall not affect the remaining provisions of this Ordinance. (Emphasis added.) In 2007, the Ordinance was amended as follows: AN ORDINANCE OF THE TOWNSHIP OF HOPEWELL, CUMBERLAND COUNTY, PENNSYLVANIA, PROVIDING FOR AMENDING HOPEWELL TOWNSHIP ORDINANCE NO. 79-2 WHEREAS, there exists an Ordinance regulating certain public gatherings in Hopewell Township, Cumberland County, Pennsylvania which is Ordinance 79-2; and WHEREAS, said Ordinance 79-2 was duly enacted August 6, 1979 and WHEREAS, the Board of Supervisors of the Township of Hopewell deems it in the best interests of the citizens of the Township of Hopewell for their general health, welfare and safety to amend Ordinance 79-2, and WHEREAS, the Board of Supervisors of the Township of Hopewell acknowledges that the impact on the community of large gatherings affects the surrounding community including the general welfare of those using roads and highways located within the Township, increases the need for emergency services, impinges the quiet enjoyment of residents of their property; and WHEREAS, large gatherings of persons tends to create additional trash, noise and air pollution, and adversely effect the natural environment, waterways, and open spaces of the Township unless properly regulated. -3- 07-3721 CIVIL TERM NOW THEREFORE, BE IT ENACTED AND ORDAINED by the Board of Supervisors of the Township of Hopewell, Cumberland County, Pennsylvania, and it is hereby enacted and ordained as follows: SECTION I. Section 14 of Ordinance 79-2 is amended to read as follows: This ordinance is intended to apply to any public gathering of 450 individuals or more , and it shall not apply to gatherings of fewer than 450 people. This Ordinance is not intended to apply to any public gathering within the Township where all persons in attendance are related by blood or marriage. SECTION II. This Ordinance shall become effective five days after enactment. SECTION III. SEVERANCE CLAUSE- Should any section, paragraph, clause or phrase of this Ordinance be declared unconstitutional or invalid by a Court of competent jurisdiction, the remainder of said Ordinance shall not be affected thereby, and shall remain in full force and effect. SECTION IV. REPEALER CLAUSE All Ordinances or parts of Ordinances or Resolutions conflicting with the provisions of this Ordinance are hereby repealed to the extent of such conflict. (Emphasis added.) For approximately thirty years, plaintiffs have conducted a business, Doublin Gap Motocross, Inc., at 100 Reasner Lane, Hopewell Township, Cumberland County. Since 1979, the business has been subjected to compliance with the Hopewell Township Public Gathering Ordinance. On June 21, 2007, plaintiffs filed a complaint against the 1 Township seeking a declaratory judgment that the Ordinance is “null and void.” 2 Defendant filed an answer. Plaintiffs filed a motion for judgment on the pleadings 1 Allegheny Ludlum Steel Corp. v. Pennsylvania Public Utility Commission, See 67 Roeder v. Borough Council of Borough of Hatfield, Pa. Commw. 400 (1982); 439 Pa. 241 (1970). 2 Under the heading “Affirmative Defense,” defendant, citing the Judicial Code at 42 Pa.C.S. Section 5571(c)(5), avers that this action is barred by the statute of limitations. Section 5571(c)(5) provides that “questions relating to an alleged defect in the process of enactment or adoption of any ordinance . . . shall be raised by appeal or challenge commenced within 30 days after the intended effective date of the ordinance . . . .” The substantive challenge to the ordinance in the present case is not to the “process of enactment or adoption of Hopewell Township’s public gathering ordinance as amended.” Holsten v. West Goshen Therefore, Section 5571(c)(5) does not apply. See Township , 56 Pa. Commw. 283 (1981). -4- 07-3721 CIVIL TERM which was briefed and argued on January 23, 2008. A motion for judgment on the pleadings disposes of a case before trial where there exists no genuine issue of fact Carpenter & and where the moving party is entitled to a judgment as a matter of law. Carpenter v. City of Johnstown, 146 Pa. Commw. 274 (1992). I. Plaintiffs maintain that the Hopewell Township public gathering ordinance is void for vagueness. “[A]n enactment is void for vagueness if its prohibitions are not clearly Grayned v. City of Rockford defined.” , 408 U.S. 104, 92 S.Ct. 2294 (1972). An enactment’s prohibitions are clearly defined, and thus not vague, if they “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he Id may act accordingly.” . “Laws must provide explicit standards for those who apply IdSee also them” in order to prevent “arbitrary and discriminatory enforcement.” . Commonwealth v. Balog , 672 A.2d 319 (Pa. Super. 1996). Plaintiffs argue that Section 14 of the Public Gathering Ordinance is vague because it does not prescribe the method of counting the people attending a public gathering and for not specifying whether the 450 person limit applies to the number of individuals present at a given time or to “the sum of all those persons who have come and gone throughout the day.” A gathering is “a crowd; an assemblage.” Webster’s New Twentieth Century Dictionary 758 (2d ed. 1965). “Public gathering” in Section 14 must be read as meaning those individuals present at a given time and not those individuals who have come and gone throughout the day. Once an individual has gone, that individual cannot be said to be part of the crowd or assemblage, which now consists of those who have remained, and the departed individual can no longer be counted among their number. The Ordinance provides that a permit is needed for “any -5- 07-3721 CIVIL TERM public gathering of 450 individuals or more.” That clearly means if at any time there are going to be 450 or more people gathered a permit is needed. Otherwise, a permit is not needed. The standard is explicit. The statute is not vague. II. Plaintiffs maintain that the adoption of the public gathering ordinance exceeds the authority granted a second class township. The Second Class Township Code provides at 53 P.S. Section 66506: General Powers. The board of supervisors may make and adopt any ordinances, bylaws, rules and regulations not inconsistent with or restrained by the Constitution and laws of this Commonwealth necessary for the proper management, care and control of the township and its the maintenance ofpeace,health and finances and good government, welfare of the township and its citizens, trade, commerce and manufactures. (emphasis supplied). The Code sets forth at Section 66527: Public Safety. The board of supervisors may adopt ordinances to secure the safety of persons or property within the township and to define disturbing the peace within the limits of the township. Enforcement provisions in the Code are set forth at Section 66601(c.1)(2): For an ordinance regulating Enforcement as summary offenses. healthpublic safety building, housing, property maintenance, , fire, , curfewair or noise pollution parking, solicitation, , water, , the board of supervisors shall provide that its enforcement shall be by action brought before a district justice in the same manner provided for the enforcement of summary offenses under the Pennsylvania Rules of Criminal Procedure. (emphasis supplied). The Public Gathering Ordinance covers hours of operation, fire hazards, sanitary conditions, and illegal acts. We agree with defendant that the ordinance is directed at securing the safety of persons and property within the Township, the health and welfare of the Township and its citizens, and the maintenance of peace. Accordingly, the ordinance does not exceed the authority granted a Second Class Township. -6- 07-3721 CIVIL TERM III. Plaintiffs maintain that Hopewell Township is preempted by the Commonwealth Hydropress from regulating the activities set forth in the public gathering ordinance. In Environmental Services, Inc. v. Township of Upper Mount Bethel, County of Northampton, 836 A.2d 912 (Pa. 2003), the Supreme Court of Pennsylvania stated: The test for preemption in this Commonwealth is well established. Either the statute must state on its face that local legislation is forbidden, or “indicate[ ] an intention on the part of the legislature that it should not be supplemented by municipal bodies.” Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 77 A.2d 616, 620 (1951). Plaintiffs have not persuaded us that any part of the Hopewell Township Public Gathering Ordinance is preempted by any laws of the Commonwealth. IV. Plaintiffs maintain that the effect of the public gathering ordinance constitutes de facto zoning in violation of the Pennsylvania Municipalities Planning Code. The Hopewell Township Public Gathering Ordinance is not a zoning ordinance. Plaintiffs right to use their land to conduct motocross events is not at issue. V. Plaintiffs maintain that the exemption in the public gathering ordinance for public gatherings where all the persons in attendance are related by blood or marriage creates and unconstitutional protected class of persons. This is not an issue we need decide. Even if plaintiffs are correct, Section 16 of the public gathering ordinance provides: If any sentence, clause, paragraph, section or portion of this Ordinance is declared by any Court of competent jurisdiction to be illegal, invalid or unconstitutional, such declaration shall not affect the remaining provisions of this Ordinance. Plaintiffs’ position with regard to the exemption in the ordinance does not form a basis for granting the relief requested which is to declare the entire ordinance null and void. For the foregoing reasons, the following order is entered. -7- 07-3721 CIVIL TERM ORDER OF COURT AND NOW, this day of May, 2008, the motion of plaintiffs for a IS DENIED. judgment on the pleadings, By the Court, Edgar B. Bayley, J. William A. Duncan, Esquire For Plaintiffs Sally Winder, Esquire For Defendant :sal -8- RODNEY L. YENTZER, CAROL M. : IN THE COURT OF COMMON PLEAS OF YENTZER, JEFFREY A. YENTZER : CUMBERLAND COUNTY, PENNSYLVANIA AND RODNEY L. YENTZER, II, t/d/b/a : DOUBLIN GAP MOTOCROSS, INC., : PLAINTIFFS : : V. : : : HOPEWELL TOWNSHIP, : DEFENDANT : 07-3721 CIVIL TERM IN RE: MOTION OF PLAINTIFFS FOR JUDGMENT ON THE PLEADINGS BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this day of May, 2008, the motion of plaintiffs for a IS DENIED. judgment on the pleadings, By the Court, Edgar B. Bayley, J. William A. Duncan, Esquire For Plaintiffs Sally Winder, Esquire For Defendant :sal