Business Regulation

Business Regulation

Is there preemption?

Yes.

Where/what is the preemption statute?

§ 2962(f) of the Home Rule Charter: “(f)  Regulation of business and employment.–A municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers, including the duty to withhold, remit or report taxes or penalties levied or imposed upon them or upon persons in their employment, except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities. This subsection shall not be construed as a limitation in fixing rates of taxation on permissible subjects of taxation.”^[1]

The limitation on regulating business and employment for Home Rule municipalities applies with equal force to municipalities that do not have Home Rule charters.

Are there exceptions?

Yes. Municipalities may regulate business where there is a state statute that explicitly permits a certain type of regulation and that applies to either all municipalities or a specific class of municipalities.^[2] There is no bright light rule as to how express the grant of authority must be, and the higher the burden on businesses the more clear the authorization must be.^[3]

What are some examples?

        Pa. Rest. & Lodging Ass’n v. City of Pittsburgh, 653 Pa. 596 (2019)

• Under the Disease Prevention and Control Law of 1955, municipalities that are covered by a board or department of health “may enact ordinances or issue rules and regulations relating to disease prevention and control, which are not less strict than the provisions of this act or the rules and regulations issued thereunder by the board.” 35 P.S. § 521.16(c). Pittsburgh’s Paid Sick Days Act was upheld as a valid use of municipal power despite the burden it puts on businesses because sick time policies are directly related to disease prevention and control, and are therefore the PSDA is authorized by an express grant of authority from the state.

• Where a municipality lacks its own board or department of health, but lies within the jurisdiction of a county department of health, the municipality may enact such ordinances, while the county board or department of health may issue rules and regulations. Absent a municipal or county board or department of health, a municipality falls within the jurisdiction of the state board.

What are some other options?

        Nuisance: If a specific business is creating a condition that you believe to be detrimental to the public health, safety, or general welfare you may be able to sue that business under the law of nuisance.

        Zoning: While municipalities are not able to prohibit certain types of businesses from existing within their borders, municipalities do have fairly broad authority to determine where in the municipality certain types of businesses are allowed to operate.