PA court rules that the Point Breeze Pop-Up was actually legal

“The beer garden was beneficial to its community,” a Commonwealth Court found, and the city “did not meet the prerequisites to issue a cease operations order.”

Formerly a dirty lot, this beer garden caused controversy

Formerly a dirty lot, this beer garden caused controversy

Courtesy of the Point Breeze Pop-Up

Updated 6 p.m. 

The Point Breeze Pop-Up has won the latest round in its legal battle with the Philadelphia Department of Licenses and Inspections.

Oh yeah, remember that kerfluffle? It started all the way back in June 2015, when L&I slapped a cease and desist order on the temporary outdoor beer garden at the corner of Tasker and Point Breeze Ave, claiming it lacked proper zoning — it was operating in an area zoned high-density residential.

The pop-up didn’t shut down for long. A few days later, a Philly Municipal Court judge found the cease order violated owner John Longacre’s right to due process. The city appealed that ruling, kicking off a few more ups and downs, but eventually the beer garden reopened, and even came back for a second summer.

The whole time, though, the matter was pending in Pennsylvania Commonwealth Court. And today, more than 16 months later, that court has found in Longacre’s favor.

In the ruling, Judge Michael H. Wojcik basically agreed with the Municipal Court’s decision, which was that “the ‘continued’ operation of the beer garden without proper zoning is not ‘creating a public nuisance,’” — no cops had ever been called to the beer garden, for example — and so L&I had no right to shut it down.

Additionally, the Point Breeze Pop-Up had all its proper health permits and catering licenses in order, Wojcik wrote, and had obtained the proper permits from the LCB needed to sell alcohol at a temporary site.

Which gets to the heart of the matter. In the bigger picture, the tug-of-war over this particular beer garden was a showdown over which had more clout: City zoning or state LCB licenses.

“This ruling means means that all Philadelphians can use their catering permits as they were intended,” said Longacre, who is also the owner of South Philadelphia Tap Room and American Sardine Bar.

Like many of the other pop-up beer gardens that have proliferated throughout Philly over the past couple of years, the Point Breeze Pop-Up was operating using a series of temporary liquor permits obtained from the LCB. Each one is only good for 5 hours of use at a time — they were ostensibly intended so alcohol could be served at catered wedding parties, for example, or one-off block parties — but savvy bar owners realized they could piggyback multiple permits into consecutive time slots, and therein operate an ongoing pop-up.

“The law that created these permits to go into places that may not be zoned appropriately, to someone’s back yard or a park or a street,” said Longacre.

Did you hit up one of the three PHS Pop-Up gardens or the Uptown Beer Garden that rocked through the summer? These use the same kind of LCB licenses to operate, and also didn’t have to go through the regular zoning approval process — because they are temporary in nature.

Unlike the Point Breeze situation, all those other beer gardens happened to fall within commercially zoned areas. However, Longacre points out, Point Breeze Avenue once was a commercial corridor — and the community hopes it will become one again.

Far from being a nuisance, the Commonwealth Court noted, the Point Breeze Pop-Up may well have been a boon to its neighborhood.

“Prior to its use as a beer garden,” Wojcik wrote in the ruling, “the property was a vacant, trash-strewn lot.” He agreed with the original Municipal Court’s ruling, noting that “the operation of the pop-up beer garden was beneficial to the well-being of the community,” and that the City of Philadelphia (proxy here for L&I) had provided no evidence to the contrary.

“L&I did not meet the prerequisites to issue a cease operations order under the Philadelphia Code,” Wojcik wrote.

A spokesperson for L&I said the city doesn’t yet have a formal response. “The City is reviewing the decision and will consider its options,” she said.

Does that mean the Point Breeze Pop-Up will be returning for a third summer season in 2017? Not necessarily.

“I’m not sure,” Longacre said. “We have some other [possible] uses for the site. I don’t know yet.”

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