Bd. of Liquor Commissioners for Balt. City v. Austin

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
Nos. 599
September Term, 2015
______________________________________
BOARD OF LIQUOR LICENSE
COMMISSIIONER FOR BALTIMORE CITY,
ET AL.
v.
BRETT AUSTIN ET AL.
______________________________________
Krauser, C.J.,
Arthur,
Kenney, James. A., III
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Kenney, J.
______________________________________
Filed: April 26, 2017
The transfer of a liquor license in Baltimore City often involves issues of life and
death, and in some instances, zombies and phantoms. 1 In this case, the Circuit Court for
Baltimore City reversed the September 25, 2014, two-to-one decision of the Board of
Liquor Commissioners for Baltimore City (the “Board”) that the license to sell liquor at
an establishment previously known as Turner’s in Federal Hill, (the “License”), had
“expired.” Appellants are the Federal Hill Neighborhood Association in addition to a
number of individuals 2 (collectively referred to in this opinion as the “Association”) and
the Board. The appellees, Brett Austin and Joshua Foti, are the contract purchasers of the
License (the “Contract Purchasers”).
The question presented, slightly rephrased, is:
Did the circuit court err in its determination that the License had not
expired by operation of law when the transfer of the License to the Contract
1
A zombie is defined as “the supernatural power according to voodoo belief may enter
into and reanimate a dead body.” Merriam Webster, Merriam Webster’s Collegiate
Dictionary 1372 (10th ed. 2000). A phantom is defined as “something (as a specter)
apparent to sense but with no substantial existence. Merriam Webster, Merriam
Webster’s Collegiate Dictionary 868 (10th ed. 2000). Both are used as slang terms to
refer to a liquor license that has been permitted by the Board to survive, for transfer
purposes, beyond the statutory expiration period.
2
The docket entries indicate that, in addition to “the Association,” the following
individuals were interested parties to the suit: Arthur Adasse, Douglas Berkowitz,
Michael Brassert, George Della, Sally Dworak-Fisher, Keenan Dworak-Fisher, Michael
Eckhardt, John Ginovsky, Nancy Gordon, Tom Gregory, Joseph Halperin, Lynn
Halperin, Alma Hays, David Hicks, Elizabeth Homer, Ivo Jamrosz, David Nicholas Kaw,
Edward Kelly, Sarah Lambdin, Jeff Lewis, Rosalie McCabe, Helen Brooke Mcdonald,
Vincent Mettle, Debra Nelson, Nick Patron, Joseph Reed, Paul Robinson, Lana
Robinson, Linwood Simpler, Diana Sugg, Shirley Summers, Mark Tonti, David Wallace,
Judi Wallace, and Kyle Warner.
Purchasers was not completed within 180 days after the Board approved the
transfer?
We hold that it did and reverse the decision of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Notwithstanding the extended procedural history of this case, the dispositive facts
are not in dispute. Turner’s closed for business on or about July 11, 2009, 3 during the
license year ending April 30, 2010. The first application to the Board to transfer the
License to the Contract Purchasers was filed on June 19, 2009. That application was
approved by the Board on July 23, 2009. On January 19, 2010, Samuel Daniels (the
then-Executive Secretary of the Board) signed a memorandum recommending that the
deadline to complete the transfer be extended 180 days (to July 5, 2010) “[b]ased on
discussion w/ Mr. Austin and receipt of projected completion schedule.” 4 The Board
granted three additional sixty-day extensions to complete the transfer, all of which were
granted after the prior extension period had ended. The last extension was granted on
November 15, 2012. In the meantime, the License was renewed in the name of the
Contract Purchasers for the license years ending on April 30 in 2011, 2012, and 2013.
3
The fire permit for the premises expired on July 11, 2009.
4
The statutory basis for the recommended extension, or whether the Board was even
involved, is unclear. It appears that the Contract Purchasers filed their first and only
request for a hardship extension in a letter dated August 13, 2014, which was more than
180 days after the transfer of the License had been approved.
-2-
On February 25, 2013, a second Application for Transfer and Expansion was
filed. 5 The validity of the License itself was raised when, “despite having prevailed in
their case in chief,” the Association sought judicial review on that issue. On December
13, 2013, a hearing was held, and on December 23, the circuit court remanded the case to
the Board to create a record on the validity issue. On February 20, 2014, the Board held
the remand hearing “to determine the status of the license under the provisions of
[Maryland Code (1957, 2011 Repl. Vol.) Article 2B, § 10–504(d) (“Article 2B § 10-
504(d)”)]” related to liquor license transfers and the expiration of a license 180 days after
a license holder has closed the business or ceased actual alcoholic beverages business
operations in Baltimore City. At that hearing, the Association argued that the License had
“sat dormant since July 2009,” and even though the “Board approved the application for
a transfer of ownership to a new location and repeatedly extended [the] approval, no
transfer was ever completed.”
The Contract Purchasers argued that the annual renewal of the License without
protest “can certainly be construed as a tolling of the period under Article 2B.” Moreover,
the “validity” of their License for May 1, 2013–April 30, 2014, “was ruled upon,” and
because they had relied on the renewals and the direction they received from the Board,
“principles of collateral estoppel” and res judicata precluded revisiting the validity issue.
5
The original intent was to transfer the license to 1100-06 South Charles Street. Later, it
was determined to expand and utilize the original East Cross Street premises.
-3-
The Board, in the “decision phase” of the February 20, 2014 hearing, concluded
that “even with an extension, legal or otherwise, the [L]icense would have been
considered dormant” as of October 17, 2011, notwithstanding extensions or “a transfer of
ownership hearing after that time.” Characterizing the Contract Purchasers’ arguments as
“generally center[ing] around estoppel,” the Board concluded “that the only way to avoid
the injustice . . . is to declare the [L]icense viable as of today.” 6
The Association again sought judicial review of the Board’s decision. On August
13, 2014, a Stipulation of Dismissal and Agreement for Remand to the Board was entered
at the request of the Board and the Association and, on September 17, 2014, the circuit
court issued an order remanding to the Board and dismissing the case. The stated purpose
of the remand was “so the [Board] can conduct further proceedings on this matter within
sixty (60) days after the date of the dismissal of this appeal.”
The second remand hearing was held on September 25, 2014. 7 The Contract
Purchasers moved to dismiss the proceeding on the grounds that the Board had failed to
inform them of the judicial review proceedings challenging the Board’s February 20,
2014 decision that the License was “viable.” In response, the Chair noted that the
Contract Purchasers had actual notice of the judicial review proceedings because their
6
At that time, the members of the Board were Stephen Fogleman, Chairman, Elizabeth
C. Smith, and Harvey E. Jones.
7
The composition of the Board had now changed. The new Chairman was Thomas
Ward, and Dana Petersen Moore had replaced Elizabeth C. Smith. Harvey E. Jones
remained on the Board.
-4-
counsel, by “letter dated April 9, 2014,” wrote the then-Chairman of the Board
acknowledging that the Association “had filed an appeal in the Circuit Court.” Observing
that the Contract Purchasers had not appealed the circuit court decision, the Board denied
the motion to dismiss and the hearing proceeded.
As to the Board’s right to reconsider the viability of the License, the Association
argued that the issue was not one of fact, but one of law that the Board was entitled to
review. It pointed out that the Board’s prior decision had been based on a theory of
estoppel resulting from the Board’s acceptance of renewal fees after the License had
expired. But, it argued, “the government cannot be estopped under the same terms as
other litigants,” and the Contract Purchasers could not rely on the “unauthorized acts” of
the Board’s agents.
The Association called as a witness former Senator George Della, who had
sponsored the 2000 legislation creating Article 2B § 10-504(d), which is commonly
referred to as the “180 day rule.” According to Senator Della:
It basically says [a] license can remain dormant for 180 days. And
then if there’s a hardship, then that licensee can come back to the [B]oard
and make their case, if they’re in a hardship situation. And then the Board
could then grant them another extension of 180 days.
****
Beyond that, if they don’t activate that license, that license is dead. That’s
what the legislative intent is behind the 180 day rule. And the Board knew
it. The Board knew it.
Counsel for the Contract Purchasers stated that they were not arguing estoppel or a
mistake by the Board or its agents. Nor were they relying on the hardship extension
provisions of the statute. Rather, they were contending, citing Yim, LLC v. Tuzeer, 211
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Md. App. 1 (2013), that, notwithstanding cessation of the business itself, the successive
renewals of the License “tolls the 180 period.” In addition, the Contract Purchasers
advanced a policy argument that the Board’s adoption of the Association’s position
would thwart redevelopment efforts in the city because these projects can “take years” to
complete. The better policy, in their view, was to permit a developer to “preserve” an
existing license by renewals rather than issuing a new license. That, they argued, would
satisfy the legislative “goal [of] reduc[ing] the number of licenses.”
In response, counsel for the Association asserted that the Contract Purchasers’
policy argument “is essentially something to be taken up with the legislature,” but it did
not reflect the intent of the current legislation, and thus, its adoption by the Board would
be a “rewrite [of] the law.”
The Board expressly ruled on the validity of the License and, by implication, on
the Contract Purchasers’ recently filed hardship extension request, which would fail in
the absence of a viable License to transfer. The Chairman concluded that “the license has
expired.” He based his decision on the “clear command of the law,” and which had been
“ignored” by the Board in granting the earlier purported extensions and license renewals
“outside the scope of its authority.” Commissioner Petersen Moore “agree[d]” with the
Chairman “for all the reasons stated.” Although Commissioner Jones also agreed that
“the license is dead,” he voted “no” because, under the circumstances, he thought that a
“second chance is needed.”
On October 7, 2014, the Contract Purchasers filed a Petition for Judicial Review.
A hearing was held on May 1, 2015, and on May 5, 2015, the circuit court reversed the
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Board, stating that its decision “was not supported by substantial evidence and was
clearly erroneous as a matter of law.” The court explained that:
failure to complete a transfer of a license within 180 days pursuant to Art.
2B § 10-503(d)(4) does not carry a sanction of expiration of the license. To
hold that such a sanction applies is illogical in the face of Art. 2B § 10-
504(d)(2)(i), which provides an exception to the 10-504(d)(2) 180 day
expiration provision when a transfer “has been approved or is pending.”
Furthermore, in the instant case the Board approved the transfer on July 23,
2009, and the record contains several references to the approval and the fact
that the transfer “remains pending.” Thus, the 2B § 10-504(d)(2)(i)
exception for approved or pending transfers would apply.
The Board filed its timely appeal on May 29, 2015.
STANDARD OF REVIEW
“On appellate review of the decision of an administrative agency, this Court
reviews the agency’s decision, not the circuit court’s decision.” Long Green Valley Ass’n
v. Prigel Family Creamery, 206 Md. App. 264, 273 (2012) (quoting Halici v. City of
Gaithersburg, 180 Md. App. 238, 248 (2008)). We “determine whether the agency’s
decision is in accordance with the law or whether it is arbitrary, illegal, and capricious.”
Prigel Family Creamery, 206 Md. App. at 274 (quoting Md. Dep’t of the Env’t v. Ives,
136 Md. App. 581, 585 (2001)). In doing so, we will uphold factual decisions and
discretionary judgments that are “supported reasonably by substantial evidence.” HNS
Dev., LLC v. People’s Counsel, 425 Md. 436, 449 (2012) (citations omitted). Our review
of the agency’s legal conclusions is less deferential, but, we respect the agency’s
expertise in its field and give considerable weight to its interpretation and application of
any statutes or regulations it is charged with administering. Thanner Enters., LLC v. Balt.
Cty., 414 Md. 265, 275 (2010).
-7-
When, as here, the issue centers on statutory construction, and thus, legislative
intent, we look first at “the statute’s plain language as ordinarily understood” because that
is “[t]he most reliable indicator of the [legislative] intent.” Id. at 277. And, when the
language is “clear and unambiguous, we ordinarily ‘need not look beyond [its] provisions
and our analysis ends.’” Opert v. Criminal Injuries Comp. Bd., 403 Md. 587, 593 (2008)
(alteration added) (quoting Barbre v. Pope, 402 Md. 157, 173 (2007)). “[W]here a statute
is plainly susceptible of more than one meaning and thus contains an ambiguity, courts
consider not only the literal or usual meaning of the words, but their meaning and effect
in light of the setting, the objectives and purpose of the enactment.” Tucker v. Fireman’s
Fund Ins. Co., 308 Md. 69, 75 (1986). In other words, a provision within an integrated
statutory scheme must be understood in its broader context and, to the extent possible,
harmonized with the other provisions. Balt. Gas & Elec. Co. v. Pub. Serv. Comm’n of
Md., 305 Md. 145, 157 (1986).
Contentions of the Parties
The Association contends that under Article 2B, § 10-504(d), a liquor license in
Baltimore City expires 180 days after the licensee “has closed the business or ceased
active alcoholic beverage business operations.” If an application to transfer the license is
filed and approved by the Board, the Association asserts that the approved transfer “must
be completed—by operating an alcoholic beverage business—within 180 days,” unless,
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under Article 2B § 10-504(d)(4), the Board finds that undue hardship exists. 8 (Emphasis
in original). Therefore, it argues, the grant of any extensions in this case was contrary to
the “plain language” of the statute, and any Board practice or course of conduct
“inconsistent with the statutory scheme” is entitled to “no weight.”
As to the applicability of the doctrine of equitable estoppel, the Association
contends that the Board, “as a government agency,” cannot be “estopped from applying
the express direction it has been given by the Legislature merely because an employee of
the agency accepted [a renewal] payment for an expired license.” In support, it cites
Marzullo v. Kahl, 366 Md. 158, 195 (2001) (Baltimore County Board of Appeals not
estopped from enforcing zoning regulation that prevented appellant, who had
substantially constructed a reptile barn and obtained a permit approval to do so from the
Baltimore County Department of Permits and Licenses, from using his property to breed
reptiles); ARA Health Servs., Inc. v. Dep’t of Pub. Safety and Corr. Servs., 344 Md. 85,
95 (1996) (Department of Corrections not estopped from seeking reimbursement for
overpayment of a contract provider to which the Department had remitted the excessive
payments without objection); and Heckler v. Cmty. Health Servs. of Crawford Cty. Inc.,
467 U.S. 51, 60 (1984) (Department of Health and Human Services not estopped from
recouping overpayments made to a non-profit organization).
8
Article 2B 10-504(d)(3) states that a licensee “may make a written request to the Board
for an extension of the life of the license due to undue hardship for a time period of no
more than a cumulative period of 360 days after the date of closing or cessation of
alcoholic beverages business operations of the business [for which the license is held].”
-9-
The Board contends that “under the appropriate interpretation of the applicable
statutory provisions, the License had expired as a matter of law.” The transfer application
was approved by the Board on July 23, 2009, and under Article 2B § 10-503(d), the
transfer had to be completed by January 19, 2010. Once the 180 day expiration period
provided for in the statute was “no longer suspended,” the License “which had already
been inactive for well over 180 days–expired as a matter of law.” Therefore, according to
the Board, any “purported” extensions were invalid because they are not authorized by
the statute. And, “[t]he same analysis applies” to the Board’s acceptance of renewal fees
“for the inactive License,” because the renewal of the License does not “reset” or
“extend” the “180 day rule.” The Board recognizes, however, that there may be a
situation where the transfer deadline “overlap[s] two licensing periods.” When that
happens, the license would have to be renewed “before the transfer has been completed.”
The Contract Purchasers mount a two pronged attack on the denial of their motion
to dismiss the remand proceedings. The first is the failure of the Board to notify them of
the judicial review proceeding initiated by the Association and the subsequent remand to
the Board by stipulation. The second is the contention that the Board was
barred from holding a second hearing on the same issue when a substantial
record has already been created before it, it rendered a decision based on
that record . . . and no hearing of any kind, nor ruling made on any
substantive issue, has been heard nor rendered by the Circuit Court for
Baltimore City.
-10-
As to the Board’s interpretation of the statute at the September 17, 2014, remand
hearing, the Contract Purchasers appear to object to the fact that Senator Della had been
called as a witness and had testified to the intent of the “180 day rule” legislation. 9 They
further contend that the Board “accepted legal conclusions drawn by [Senator] Della as
the basis for its decision.” More particularly, however, they point to “the lack of
recognition by both [Senator Della] and [the Board] of the pertinent section of Article 2B,
namely § 10-504(d)(2)(i).” 10 They argue that the subsection’s “then pending” language
“expand[s] upon the 180 day rule,” and, citing Yim, 211 Md. App. at 36, that a purchaser
of such a license can keep a license from expiring by annual renewals of the license as
long as the intended transfer remains “pending.”
The Board, in its reply brief, contends that the Contract Purchasers’ reliance on
Yim is “misplaced” because the Yim Court “merely held that a liquor license did not
9
At the remand hearing the Contract Purchasers’ counsel only objected to Senator
Della’s testimony “for the record as to the legal conclusion from the witness.” He stated
that Senator Della was “certainly entitled to testify as to the legislative intent,” but it was
the Board’s responsibility “to interpret the laws . . . in terms of what happens to the
license after it’s dormant.” The Chairman commented that counsel was “absolutely
correct” as to any legal conclusion on the part of Senator Della and nothing in the record
suggests that the Board relied on his testimony in reaching its conclusion in this case.
Senator Della’s testimony included background on why he introduced the legislation and
was referred to by one of the Board members as a “living legislative history.”
10
Article 2B Section 10-504(d)(2)(i) provides that an alcoholic beverage license shall
expire 180 days after the holder’s business has closed or ceased alcohol sales, unless:
“An application for approval of a transfer to another location or an application for
assignment to another person pursuant to § 10-503(d) of this subtitle has been approved
or is then pending.” (Emphasis added). Section 10-503(d) provides the procedures for
transferring a license.
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expire when the licensee had filed a timely request for a hardship extension under § 10-
504(d)(2)(iii) of Article 2B, even though the licensee did not file his annual renewal
application on time while the hardship request was pending.” As to “impermissibly”
relying on the testimony of Senator Della “as the basis” for its interpretation of the
statutory language, the Board “made clear that it was not seeking a legal conclusion” but
“only background information on the legislative history” from Senator Della and it made
only a mention of legislative history in its “methodically summarized” opinion.
In regard to the Contract Purchasers’ argument that the Board was not authorized
to hold the September 25, 2014 hearing and reconsider its February 20, 2014 decision,
the Board states that it denied the Contract Purchasers’ motion to dismiss and the circuit
court had agreed. Therefore, in the absence of an appeal of the circuit court decision by
the Contract Purchasers, the denial of the motion to dismiss was not “properly” before the
Board in the September 25, 2014 hearing but had it been, it would fail.
Regarding the Board’s failure to provide notice to the Contract Purchasers of the
Association’s petition for judicial review, the Board argues that the record demonstrates
actual notice to the Contract Purchasers within three weeks of the petition being filed.
Nevertheless, they took no action to participate in the proceeding in the months leading
up to the circuit court’s remand to the Board. Moreover, any “technical deficits”
resulting from the Board’s failure to provide notice “were cured” because there was no
judicial review as a result of the remand and the Contract Purchasers had a full
opportunity to participate in the subsequent proceedings.
-12-
As to Contract Purchasers’ res judicata argument, the Board, citing Board of
County Comm’rs of Cecil Cty. v. Racine, 24 Md. App. 435, 450 (1975), acknowledges
that principles of res judicata may apply to a final administrative agency decision “passed
in the exercise of its discretion upon issues of fact or upon mixed issues of law and fact.”
But, “when there has been substantial change of conditions or it is shown that the
decision was the product of . . . mistake,” the Board’s decision may be reconsidered and,
in the proper case, reversed. Id. Here, on remand, the Board “was singularly focused” on
“reconsidering its prior interpretation and application of the law,” and not the facts of the
case. Not only did the Board have the right to reconsider, it had a duty to do so.
The Association, in its reply brief, also responds to the Contract Purchasers’
argument that the remand proceedings should have been dismissed based on “lack of
notice” by the Board and “principles of res judicata.” In regard to the former, it too
references the Contract Purchasers’ actual notice and their failure to intervene. Regarding
the latter, the Association contends that the remand meant that there was no final
judgment. The February 20, 2014, decision of the Board went to the circuit court on the
Association’s petition for judicial review and was then remanded to the Board for further
proceedings without a ruling on the merits. But, even if there had been a final judgment,
the Association agrees that “an agency is not bound by inflexible principles of res
judicata with regard to decisions that are legally, as opposed to factually, erroneous.”
Quoting Radio Communications, Inc. v. Public Service Commission of Maryland., 50
Md. App. 422, 430–31 (1982), the Association asserts “an affirmative duty upon an
administrative agency to correct a prior decision when, because of an error of law, a
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continued adherence to its erroneous decision would place a litigant at an unfair
disadvantage.’”
The Association rejects the circuit court’s reading of Article 2B, § 10-503(d)(4)
that a “pending” transfer would extend the life of the License. It contends that argument
is “based on a misreading” of the relevant provisions of the statute.
As to the Contract Purchasers’ reliance on Yim, the Association asserts that the
“primary issue” in that case was “whether alleged defects in applications to transfer the
license rendered the transfers ineffective.” But, because “any defects in the applications
to transfer had been corrected . . . the statutory period was tolled,” and the License did
not expire. In its view, the Contract Purchasers “have attempted to seize on language in
dictum in a footnote in Yim” that is unrelated to the Court’s decision in that case.
ANALYSIS
We begin by addressing the Contract Purchasers’ arguments regarding the denial
of their motion to dismiss the remand proceeding. The first argument relates to the failure
of the Board to notify them that the Association had sought judicial review of the Board’s
February 20, 2014, decision regarding the License. 11 They raised this argument in passing
11
Maryland Rule 7-202(d)(3) provides:
(3) Notice From Agency to Parties.
(A) Duty. Unless otherwise ordered by the court, the agency, upon
receiving the copy of the petition from the clerk, shall give written notice
promptly to all parties to the agency proceeding that:
(i) a petition for judicial review has been filed, the date of the filing, the
name of the court, and the civil action number; and
(Continued…)
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at the September 25, 2014 remand hearing and in the circuit court hearing on their
Petition for Judicial Review of the Board’s Decision. They also argued that the Board
violated its Administrative Rule Number One, which was adopted to avoid the Board
“reviewing the decisions of past liquor boards” and required motions for reconsideration
to be filed within sixty days.
The circuit court expressly rejected the argument related to Administrative Rule
Number One because there was no motion for reconsideration in this case. The circuit
court otherwise found the “denial of the motion to dismiss was appropriate” and moved
directly to the issue of whether the License had “expired.”
(…continued)
(ii) a party who wishes to oppose the petition must file a response within 30
days after the date the agency's notice was sent unless the court shortens or
extends the time.
(B) Method. The agency may give the notice by first class mail or, if the
party has consented to receive notices from the agency electronically, by
electronic means.
And, in regard to a “response,” Maryland Rule 7-204 provides, in relevant part:
(a) Who May File; Contents. Any person, including the agency, who is
entitled by law to be a party and who wishes to participate as a party shall
file a response to the petition. The response shall state the intent to
participate in the action for judicial review. No other allegations are
necessary.
****
(c) Time for Filing Response; Service. A response shall be filed within 30
days after the date the agency mails notice of the filing of the petition
unless the court shortens or extends the time. The response need be served
only on the petitioner, and shall be served in the manner prescribed by Rule
1-321.
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The Contract Purchasers did not press the notification argument or question the
court’s failure to expressly address it, and they did not appeal the court’s decision.
Therefore, the issue is not before us on appeal, but, if it were, they would fare no better.
Not only did the Contract Purchasers have actual notice of the petition for judicial
review “as early as April 9, 2014,” they took no action in that proceeding in the 161 days
between that date and September 17, 2014, when the court signed the order for remand.
And, because of the remand, there was no judicial review on the merits. In short, the
purpose of the rule was effectively satisfied, and the Contract Purchasers were not
deprived of an opportunity to assert their legal rights before the court.
As to any concern regarding Senator Della’s testimony, the circuit court did not
“find any error,” and it is clear from the record that the Board’s decision that the License
had expired was based on the plain language of the applicable statutory provisions and
not on Senator Della’s testimony. 12
12
In Kelly v. Marylanders for Sports Sanity, Inc., 310 Md. 437, 471 n.18 (1987), the
Court of Appeals commented that statements of legislative intent by individual legislators
“run[s] afoul of well-recognized principles,” citing Norman J. Singer, Sutherland
Statutory Construction, § 48.16–17 (4th ed. 1986). The current version of section 48.16
indicates “[a] corollary to the general rule against the use of statements by individual
legislators made during debate on a bill directs courts not to consider testimony about
legislative intent by members of the legislature which enacted a statute.” 2A Norman J.
Singer, Sutherland Statutory Construction, § 48:16 (7th ed.). And that “[p]ostenactment
statements made by a legislator about legislative intent, including affidavits, are not part
of the original enactment’s legislative history.” Id. The current version of section 48.17
provides, in part, that “[c]ourts are cautious . . . and usually disregard any reference to an
individual’s legislative motivation except as expressed in a statute itself.” Id. § 48:17.
Here the legislation itself clearly expresses the motivation and intent of the legislature (of
which Senator Della was a small but important part). Although his testimony was
(Continued…)
-16-
The Contract Purchasers argue that the Board was “barred from holding a second
hearing [because] a substantial record ha[d] already been created before it, it [had]
rendered a decision based on that record, and no hearing of any kind, nor ruling made on
any substantive issue, ha[d] been heard nor rendered by the Circuit Court of Baltimore
City.” In support, they cite Gaywood Comty. Ass’n v. Metro. Transit Auth., 246 Md. 93(1967); Woodlawn Area Citizens Ass’n v. Board of Cty. Comm’rs for Prince George’s
Cty., 241 Md. 187 (1966); Whittle v. Bd. of Zoning Appeals of Balt. Cty., 211 Md. 36(1956); Bensel v. Mayor and City Council of Balt., 203 Md. 506 (1954); and Mayor and
City Council of Balt. v. Linthicum, 170 Md. 245 (1936).
They assert that such cases, especially Whittle, 211 Md. 36, stand for the
proposition that the Board, as an administrative body exercising quasi-judicial authority,
could not reach a different conclusion on the viability of the License because “the facts
and the law . . . have remained unchanged since February 20, 2014.” Quoting Gaywood
Community Ass’n 246 Md. at 99-100, they state that their argument “rest[s] not strictly on
the doctrine of res judicata, but upon the proposition that it would be arbitrary for the
Board to arrive at opposite conclusions on substantially the same state of facts and the
same law.” They draw further support from Criminal Injuries Comp. Bd. v. Gould, 273
Md. 486 (1975), in which the agency first determined that the claimant was an
independent contractor, and later, “upon its own initiative,” and on the same facts,
(…continued)
inadmissible for purposes of discerning legislative intent, its admission was, in our view,
harmless in this case.
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determined he was an employee. Id. at 519. There, the Court of Appeals held that the
agency’s “attempt to redetermine [Gould’s] status was clearly erroneous as a matter of
law.” Id.The redetermination in this case came about when the Association filed for
judicial review of the Board’s initial decision. Rather than a reapplication of the same
facts to the same law, the issue before the Board in the “second hearing” was essentially
the interpretation of the law itself, and whether it had made a mistake in its prior
interpretation of the controlling law. Because it determined that it had, the Board could
reverse its prior decision. As the Racine Court concluded: “Perpetuation of illegality by
an administrative body by inflexible application of the principle of res judicata is
impermissible.” Racine, 24 Md. App. at 452. Notably, the Racine Court found support for
that conclusion in Gould, in which the Court of Appeals stated “[m]istaken
interpretations of law, however honestly arrived at, are held not to be within the exercise
of sound administrative discretion and the legislative prerogative, but to be arbitrary and
illegal.” 273 Md. at 521.
Turning now to the expiration of the License in this case, our analysis begins and
ends with the provisions of Article 2B, §10-504(d), read in the context of the statutory
scheme:
(d) Baltimore City. --
(1)(i) This subsection applies only in Baltimore City.
(ii) In this subsection, “Board” means the Board of License
Commissioners or the Office of the Comptroller, whichever is the issuing
party.
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(2) 180 days after the holder of any license issued under the provisions of
this article has closed the business or ceased active alcoholic beverages
business operation of the business for which the license is held, the license
shall expire unless:
(i) An application for approval of a transfer to another location or an
application for assignment to another person pursuant to § 10-503(d)[13] of
this subtitle has been approved or is then pending;
(ii) An application pursuant to § 10–506[14] of this subtitle has been
approved or is then pending; or
(iii) A written request for a hardship extension, as provided in this
subsection, is filed within the 180–day period.
(3) The licensee or other appropriate interested parties may make a written
request to the Board for an extension of the life of the license due to undue
hardship, for a time period of no more than a cumulative period of 360 days
after the date of closing or cessation of alcoholic beverages business
operations of the business for which the license is held.
(4) After a hearing conducted on the extension request, on a finding that
undue hardship currently exists causing the closing or cessation of business
operations, the board may grant an extension of the life of the license for a
time period not to exceed 360 days as defined in paragraphs (3) and (5) of
this subsection.
13
Article 2B § 10-503(d), in relevant part, states:
(1) This subsection applies only in Baltimore City.
(2) A transfer of any license may only be made as authorized in subsection
(a) of this section if the Board has presented to it a receipt or certificate
from the Director of Finance showing there are no unpaid taxes on the
merchandise, fixtures, and stock of the transferor due to the City of
Baltimore or the State of Maryland.
****
(4) A transfer of any license shall be completed not more than 180 days
after the Board approves the transfer.
14
Article 2B § 10-506 concerns rules and regulations related to the expiration or
continuation of a license of a deceased license holder.
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(5) It is the intent of this subsection that the total time period for which a
license may be deemed unexpired under paragraph (2) of this subsection is
180 days if no undue hardship extension is granted, and no more than 360
days if an undue hardship extension has been granted. The time period
begins at the earlier of the closing of the business or cessation of alcoholic
beverages business, and shall be tolled only upon the filing of an
application or request described in paragraph (2) of this subsection, the
expiration period to begin running again, cumulatively to the time period
before the filing of the application or request, upon the occurrence of the
later to occur of the following events:
(i) Final action of the Board granting or denying a request authorized by
paragraph (3) of this subsection;
(ii) Final action of the Board denying an application described under
paragraph (2)(i) or (ii) of this subsection; or
(iii) Final judgment of the appellate court when judicial review of the
Board’s action on an application or request authorized by paragraph (2) or
(3) of this subsection has been sought, or on dismissal of a petition for
judicial review.
(6) If an application or request to the Board described in paragraph (2) or
(3) of this subsection is withdrawn, there shall be no tolling of the period
for automatic expiration of the license and it shall be deemed as if no such
application or request was filed.
(Emphasis added).
The plain language of the statute supports the Board’s conclusion at the remand
hearing that the License had “expired.” The closing of Turner’s in July of 2009 triggered
the 180 day rule (“180 days after the holder of any license . . . has closed the business or
ceased active alcoholic beverages business operations . . . the license shall expire[.]”
Article 2B, §10-504(d)(2)). The 180 days can be tolled by “[a]n application for approval
of a transfer to another location or an application for assignment to another person”
which “has been approved or is then pending.” In context, “pending” clearly refers to a
transfer application that is awaiting Board action and not the intended completed transfer.
In the absence of a “hardship extension” by the Board, the transfer of the License had to
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be completed not more than 180 days after the Board approved the transfer on July 23,
2009.
Not only is the plain language of the statute clear, paragraph (5) of the subsection
states the legislative intent, that is, “the total time period for which a license may be
deemed unexpired . . . is 180 days if no undue hardship extension is granted, and no more
than 360 days if an undue hardship extension has been granted.” Id. § 10-503(d)(5). And,
this same intent is reflected in other related statutory provisions. For example, the initial
transfer request was filed under § 10-503(d), which also provides that the transfer “shall
be completed not more than 180 days after the Board approves the transfer.” And, under
section 10-504(d), a hardship extension “filed within the 180 day period,” may extend the
life of the license to “no more than 360 days” from “the date of closing or cessation of
alcoholic beverages business operations[.]”
When the application was approved on July 23, 2009, the applicant had 180 days
to complete the transfer, i.e., until January 19, 2010, subject to filing a request for a
hardship extension during the 180 day period. 15 As noted, no hardship extension request
was filed until August 13, 2013. But, even if the first 180 day extension could be
15
Article 2B Subsection 10-504(4) indicates that the Board may, after a hearing, “on a
finding that undue hardship currently exists, grant an extension.”
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considered a hardship extension, the transfer had to be completed within 360 days of the
closing of the business or the cessation of liquor sales in July of 2009. 16
At the September 25, 2014 hearing, counsel for the Contract Purchasers indicated
that they had “never filed for 180 day hardship, but what [they] did do was renew the
license every year,” and that “the renewal tolls the 180 day period” to complete the
transfer. On appeal, and “[a]ssuming arguendo, the five (5) years of license renewals
cannot be construed as evidence of a ‘pending transfer,’” the Contract Purchasers argue,
citing Yim, “the renewals are still permitted by law to preserve the validity of the
license[.]” We do not agree.
In Yim, the Court considered whether a liquor license issued to Two Sisters, LLC
for its restaurant operation had expired for its failure to renew the license in a timely
manner. 211 Md. 21-24. In its analysis, the Court noted the difference between the
Board’s authority to accept a late filed renewal application and its authority under Article
2B § 10-504(d), where “[s]eparate statutory provisions apply.” Id. at 26. The Court
concluded that a late filed renewal application, which could be accepted by the Board, did
not preclude the filing of a hardship extension within 180 days of the “last day of active
alcoholic beverages business.” Id. at 34.
The Contract Purchasers seek support in a footnote in Yim that states: “As we
discuss below, this time period [the 360 days from cessation of alcoholic beverages
16
Whether the Board’s failure to act on a pending application could extend the life of a
license beyond the 360 days from the close of business or cessation of liquor sales is not
before us.
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business] is held in abeyance upon the receipt of a transfer or renewal application,
making the effective length of the hardship extension longer.” Id. at 36 n.30. The
footnote is unrelated to the issue being considered by the Yim Court and has no
application to the facts of this case. In its later discussion, the Court states that if the
Board “grants the transfer application, the transfer must occur within 180 days of the
Board’s approval.” Id. at 38 (emphasis added). But, “once the Board granted the
hardship extension request, Two Sisters’ license was considered unexpired for 360 days
after Two Sisters stopped serving alcohol.” Id. The Court stated that the 360 days is
tolled when “a transfer application is pending” and commented that “there is no statutory
requirement that Board render a decision on a transfer application within a certain period
of time.” Id.
The language of the footnote in no way suggests that the renewal of a license
overcomes the requirements of Article 2B § 10-504(d) to complete an approved transfer
within 180 days of the approval in the absence of a granted hardship extension request.
At most, it recognizes a possible delay between the filing of a transfer request and it
being acted upon by the Board. See footnote 17, supra at 21. That the Two Sisters license
“survived beyond Two Sisters’ business itself and lived on to be renewed or transferred,”
Id. at 36, simply means that the Two Sisters license was kept alive on the statutory life
support of a timely hardship extension request that was filed within 180 days of the
cessation of the alcohol sales business.
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In sum, the Board correctly determined that the License had expired. And, neither
the approved but uncompleted transfer nor the Board’s subsequent renewals of the
License could imbue it with new life.
JUDGMENT OF THE CIRCUIT COURT FOR
BALTIMORE CITY REVERSED. COSTS TO BE
PAID BY APPELLEES.
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