Board of License Com'rs for Montgomery County v. Haberlin

• Decision Date: 01 September 1989
• Docket Number: No. 27,27
• Citation: 578 A.2d 215,320 Md. 399
• Parties: BOARD OF LICENSE COMMISSIONERS FOR MONTGOMERY COUNTY et al. v. William HABERLIN et al. ,
• Court: Maryland Court of Appeals

Page 399

320 Md. 399

578 A.2d 215

BOARD OF LICENSE COMMISSIONERS FOR MONTGOMERY COUNTY et al. v. William HABERLIN et al.

No. 27, Sept. Term, 1989.

Court of Appeals of Maryland.

Aug. 30, 1990.

Robert L. Burchett, Miller, Miller & Canby, Rockville, James H. Hulme, Aileen H. Miller, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., Clyde H. Sorrell, County Atty., Charles R. Spigelman, Associate County Atty., Rockville, all on brief, for appellants.

Roger W. Titus, Jane E. Allan, Venable, Baetjer & Howard, Rockville, all on brief, for appellees.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, McAULIFFE and ADKINS, JJ. BLACKWELL, ^* J. (retired)

ELDRIDGE, Judge.

The principal issue in this case concerns the scope of the right to take an in banc appeal pursuant to Art. IV, § 22, of the Maryland constitution and Maryland Rule 2-551.

One of the appellants in this Court, Victor K. Der, applied to the Board of License Commissioners for Montgomery County for the transfer of an "Off Sale Class A Beer and Light Wine License" from Aspen Manor Beer and Wine, located at 13659 Georgia Avenue, Silver Spring, Maryland, to the Aspen Hill 6-Twelve Convenient Mart, located about 200 feet away at 13623 D Georgia Avenue in Silver Spring. Mr. Der is the sole owner and operator of the Aspen Hill 6-Twelve Convenient Mart. He has a franchise agreement with 6-Twelve Convenient Mart, Inc., the franchisor of a chain of convenience stores.

At the administrative hearing before the Board, the appellees William Haberlin and Norman Plotnick, competitors of Mr. Der, participated in the proceedings and opposed the application. Messrs. Haberlin and Plotnick are the proprietors of two nearby beer, wine, and cheese shops licensed by the Board. They argued that granting Mr. Der's application and issuing a license for a 6-Twelve Convenience Mart would violate the proscription against granting alcoholic beverage licenses to "chain stores." See Maryland Code (1957, 1987 Repl.Vol.), Art. 2B, § 41(a-1). The Board rejected their argument and granted the application.

Messrs. Haberlin and Plotnick then filed the present action in the Circuit Court for Montgomery County, seeking judicial review of the Board's decision in accordance with Art. 2B, § 175, of the Maryland Code. By an amendment to their petition for judicial review, they added "Count II--Declaratory Judgment," requesting a judgment "declaring that the decision of the Board of License Commissioners for Montgomery County was unlawful, arbitrary, capricious, [and] null and void...." The defendant Victor K. Der filed a motion to dismiss the action, asserting that Messrs. Haberlin and Plotnick, as two competing licensees, lacked standing under Art. 2B, § 175(b)(1), to bring an action for judicial review of the Board's decision. ¹

The circuit court (Raker, J.), agreeing that Messrs. Haberlin and Plotnick lacked standing to bring the action, entered an order dismissing the amended petition for judicial review. A timely motion pursuant to Rule 2-534 to alter or amend the judgment was filed, and it was denied on May 2, 1988. Messrs. Haberlin and Plotnick then filed a notice for in banc review. See Maryland Constitution, Art. IV, § 22; Rule 2-551. Haberlin and Plotnick contended that Judge Raker's decision with regard to standing was contrary to the decision of another circuit judge on the identical issue. See Art. 2B, § 175(f).

The circuit administrative judge convened a court in banc, consisting of Circuit Judges Mitchell, Sanders, and Cave. After receiving memoranda and hearing oral argument, the in banc court affirmed the dismissal of the declaratory judgment count but reversed the circuit court's judgment with regard to the original count, in which the competing licensees had sought judicial review under Art. 2B, § 175(b)(1). The in banc court "remanded" the case "for further proceedings on the merits ... which is the subject of Count I...." The majority of the in banc court, with Judge Cave dissenting, held that the competing licensees had standing under § 175(b)(1) to maintain the action for judicial review.

Within thirty days after the decision of the in banc court, the Board of License Commissioners for Montgomery County and Victor K. Der filed a notice of appeal to the Court of Special Appeals. Before the case was heard by the Court of Special Appeals, this Court issued a writ of certiorari.

Preliminarily, the appellees in this Court have moved to dismiss the present appeal on the ground that the judgment of the in banc court was not final and appealable within the meaning of Code (1974, 1989 Repl.Vol.), § 12-301 of the Courts and Judicial Proceedings Article. The appellees assert that the in banc court judgment is not final because it did not terminate the circuit court proceedings in this case. Reliance is placed on the Court of Special Appeals' decision in Dabrowski v. Dondalski, 77 Md.App. 747, 551 A.2d 933, cert. granted, 316 Md. 107, 557 A.2d 255 (1989), which does support the appellees' position. ² We have today filed our opinion in Dabrowski v. Dondalski, 320 Md. 392, 578 A.2d 211, which holds that the Court of Special Appeals erred in dismissing the appeal in that case and which vacates the judgment of the Court of Special Appeals. For the reasons set forth in our Dabrowski opinion, and in Estep v. Estep, 285 Md. 416, 420-421, 404 A.2d 1040 (1979), it is clear that the judgment of the in banc court was final and appealable.

In their motion to dismiss, the appellees also assert that the Board of License Commissioners for Montgomery County lacked standing, under the doctrine of Zoning Appeals Board v. McKinney, 174 Md. 551, 199 A. 540 (1938), to take an appeal from the adverse judgment of the in banc court. They rely upon Liquor License Board v. Leone, 249 Md. 263, 239 A.2d 82 (1968), and Bd. of Lic. Comm'rs v. R.N. & W. Corp., 20 Md.App. 278, 315 A.2d 107 (1974). Whether the Leone and R.N. & W. decisions correctly applied the McKinney doctrine or remain viable in light of our recent cases, ³ or whether the Leone and R.N. & W. holdings would be applicable to the present situation, are questions which we need not reach in the present case. The applicant for the license, Victor K. Der, also took an appeal from the in banc court's judgment, and Mr. Der clearly has standing. Where there exists a party having standing to bring an action or take an appeal, we shall not ordinarily inquire as to whether another party on the same side also has standing. See, e.g., State v. Burning Tree Club, 315 Md. 254, 291, 554 A.2d 366, cert. denied, --- U.S. ----, 110 S.Ct. 66, 107 L.Ed.2d 33 (1989); Montgomery County v. Board of Elections, 311 Md. 512, 516 n. 3, 536 A.2d 641 (1988); State's Atty v. City of Balto., 274 Md. 597, 602, 337 A.2d 92 (1975), and cases there cited.

The motion to dismiss will be denied.

Apart from the motion to dismiss, the parties argue a single issue before us, namely whether Messrs. Haberlin and Plotnick were entitled to maintain this action in the circuit court. Both sides in this Court have proceeded upon the assumption that the in banc court was empowered to entertain the appeal from Judge Raker's decision and to decide the issue of a competing licensee's standing. At oral argument, however, this Court sua sponte raised the question of whether an appeal authorized by Code (1957, 1987 Repl.Vol.), Art. 2B, § 175(f), can be taken to a court in banc. ⁴ Whether an appeal to a court in banc is permissible under what is now Art. 2B, § 175(f), had been expressly raised by this Court, but not decided, more than thirty years ago in Liquor Board v. Handelman, 212 Md. 152, 161, 129 A.2d 78 (1957).

Since we shall decide that the court in banc should not have exercised jurisdiction over this case, and that the only avenue of appeal from Judge Raker's order of May 2, 1988, was an appeal to the Court of Special Appeals, we shall vacate the judgment of the court in banc. Moreover, as Messrs. Haberlin and Plotnick did not take an appeal to the Court of Special Appeals within thirty days after the circuit court's May 2, 1988, order, that order became the final unreviewable judgment disposing of this case. See Dabrowski v. Dondalski, supra; Walbert v. Walbert, 310 Md. 657, 531 A.2d 291 (1987). Consequently, this Court cannot in this case decide the issue of whether competing licensees are entitled to maintain an action under Art. 2B, § 175(b)(1), for judicial review of a liquor board decision.

Art. IV, § 22, of the Constitution of Maryland provides as follows:

"Section 22. Reservation of points or questions for consideration by court in banc.

"Where any Term is held, or trial conducted by less than the whole number of said Circuit Judges, upon the decision or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved for the consideration of the three Judges of the Circuit, who shall constitute a court in banc for such purpose; and the motion for such reservation shall be entered of record, during the sitting, at which such decision may be made; and the several Circuit Courts shall regulate, by rules, the mode and manner of presenting such points, or questions to the Court in banc, and the decision of the said Court in banc shall be the effective decision in the premises, and conclusive, as against the party, at whose motion said points, or questions were reserved; but such decision in banc shall not preclude the right of Appeal, or writ of error to the adverse party, in those cases, civil or criminal, in which appeal, or writ of error to the Court of Appeals may be allowed by Law. The right of having questions reserved shall not, however, apply to trials of Appeals from judgments of the District Court, nor to criminal cases below the grade of felony, except when the punishment is confinement in the Penitentiary; and this Section...