New Haven has the authority to tell businesses what hours they can operate.
So ruled three judges of the state Appellate Court.
Parillo Food Group, which owns the popular State Street pizzeria Da Legna, sued the city, specifically the Board of Zoning Appeals, back in 2013 after the BZA voted unanimously to approve a special exception with conditions for the restaurant to open a 47-seat restaurant with a full liquor permit.
Seven of those 47 seats were added to accommodate a then new bar area at Da Legna that was separate from the restaurant. Parillo needed the special exception because the restaurant was going from just serving beer and wine to full alcohol service at the new bar, which was a change in the nature of the restaurant.
Parillo won the initial lawsuit, but the city filed an appeal and a three-judge panel recently sided with the city. (Read the full opinion here.)
One of the conditions of that special exceptions imposed by the BZA called for limiting operating hours to no later than 11:30 p.m. Parillo Food Group alleged in its lawsuit, which was filed in Superior Court, that the BZA didn’t have the authority to limit its hours because the hours of operations were governed by the Liquor Control Act.
Parillo cited a provision of the state Liquor Control Act that says that “only a town, by vote of a town meeting or by ordinance … could limit those hours of operation.”
And on Dec. 12, 2014, the court sided with Parillo, against the city finding that it could not limit the hours of sale “under the guise of zoning.” That was illegal in the Superior Court’s estimation.
“Local authorities unquestionably have a general power to regulate health, safety, and welfare factors affecting establishments where liquor is sold,” that court ruled. “Such regulations must, however, be done in a comprehensive, but not inconsistent, manner. When local authorities seek to regulate the hours of operation of establishments selling alcoholic beverages…§30 – 91 (b) tells them exactly how to do this. They must do so by vote of a town meeting or by ordinance.”
The city appealed, and won. (City Corporation Counsel John Rose could not be reached for comment.)
Appellate Court judges Bethany Alvord, Michael Sheldon and Raheem Mullins disagreed with the lower court’s assertion that the BZA had overstepped its authority, or that such an override of state authority could only be achieved by vote of a town meeting or ordinance, essentially stating that the lower court misconstrued the intent of the law.
“Even though the regulations expressly authorize the defendant to impose such a condition in granting a special exception, the court, in adopting the reasoning of the plaintiff, determined that zoning boards are preempted by the provisions of the Liquor Control Act from restricting the hours of service because only a municipality is expressly authorized to do so by §30 – 91 (b),” the judges wrote. “Where the language and purpose of two statues overlap they are to be read in concert.”
The judges said that when determining if state statue preempts a local ordinance, it must be determined if the state was intending to takeover all regulation, or if “the local ordinance irreconcilably conflicts with the statute.”
They said that with the Liquor Control Act it was clear that the legislature intended for cities and local zoning boards to have some input when it came to the regulation of alcohol, and ultimately remanded the case back to the trial court directing it to dismiss Parillo’s case.
“It is a legislative decision, expressing a policy that service of alcohol should be restricted,” the judges wrote. “The purposes for limiting the hours of operation in connection with a special exception and the purposes for restricting the hours of sale of liquor on a townwide basis are separate and distinct, and both the local zoning regulation and the state statute can coexist without conflict.
“We conclude that the condition imposed by the defendant on the plaintiff’s special exception, which limited the hours of operation with respect to the sale of alcoholic liquor, was not in conflict with the provisions of §30 – 91 (b). The defendant’s restriction of hours merely went further in the prohibition on sales as set forth in § 30 – 91 (a). For the reasons stated in this opinion, the trial court improperly determined that the defendant was precluded from imposing the condition restricting the plaintiff’s hours of operation and improperly determined that the condition at issue was illegal.”
It would have been ridiculous tp have this State agency controlling public safety for 169 municipalities!
The lower court wrote its decision with blinders on. There had been another similar decision years earlier, which no one appealed. Thanks, New Haven, for getting this straightened out!