Board of License Commissioners for Prince George's County v. Global Express Money Orders, Inc.

• Citation: 168 Md. App. 339,896 A.2d 432
• Decision Date: 12 April 2006
• Docket Number: No. 938, September Term, 2005.,938, September Term, 2005.
• Parties: BOARD OF LICENSE COMMISSIONERS FOR PRINCE GEORGE'S COUNTY, Maryland v. GLOBAL EXPRESS MONEY ORDERS, INC., et al.
• Court: Court of Special Appeals of Maryland

896 A.2d 432

168 Md. App. 339

BOARD OF LICENSE COMMISSIONERS FOR PRINCE GEORGE'S COUNTY, Maryland v. GLOBAL EXPRESS MONEY ORDERS, INC., et al.

No. 938, September Term, 2005.

Court of Special Appeals of Maryland.

April 12, 2006.

Edmond B. O'Connell, Upper Marlboro, for Appellant.

Brief not submitted for appellee.

Panel: MURPHY, C.J., HOLLANDER, and JAMES R. EYLER, JJ.

JAMES R. EYLER, J.

Ronald Gould, Joseph Rowley, and Richard Butler on behalf of Borak & Gould, Inc. t/a Bass' Restaurant and Liquors, appellees (sometimes hereinafter "licensees"), sought to renew a beer, wine, and liquor license held by them. A protest was filed with the Prince George's County Board of License Commissioners, appellant. Appellant held a hearing and denied renewal of the license.

The licensees filed a petition for judicial review in the Circuit Court for Prince George's County. Global Express Money Orders, Inc., another appellee (sometimes hereinafter "Global Express"), intervened and filed a memorandum in support of the petition for judicial review. The City of Mount Rainier, a party in the administrative proceeding and in circuit court, filed a memorandum in opposition to the petition for judicial review. The circuit court affirmed in part, reversed in part, and remanded the matter to appellant for further proceedings.

One of the arguments made by appellees in circuit court was that three witnesses they intended to call, who did not appear and/or testify, should have been compelled to testify. The circuit court ruled that the Board should have reported to the circuit court the failure of the witnesses to testify, at the time that it occurred. On appeal to this Court, appellant challenges that ruling.¹ Appellees have not filed a brief in this Court. We shall reverse the judgment of the circuit court, in part, and thereby affirm appellant's decision.

Factual Background

The licensees held a beer, wine, and liquor license for several years. The license for the year 2003-04 expired by its terms on May 31, 2004. Several persons protested the renewal of the license.

As a result of the protest, appellant scheduled a hearing as required by Md. Code (1957, 2005 Repl.Vol.), Art. 2B, sections 10-302(g) and 10-202(a).² Appellant conducted the hearing on May 5 and 6, 2004.

On May 4, 2004, counsel for the licensees hand delivered a letter to appellant requesting the issuance of subpoenas for three persons who they intended to call to testify and requested that the subpoenas be provided to counsel for service. The three witnesses were members of the Prince George's County Police Department, who worked part time as security personnel at the licensees' business. During the hearing, the licensees called one of the witnesses to testify, who stated that he appeared pursuant to subpoena, but refused to testify on the ground that it would be in violation of the Police Department's policy. One of the other two witnesses appeared briefly and left, and the remaining witness did not appear.

After the witness who appeared refused to testify, counsel for the licensees requested appellant to continue the proceedings and to seek the aid of the circuit court in compelling the witnesses to testify. Appellant declined to do so.

By decision dated May 28, 2004, appellant denied renewal of the license. Section 10-202(a)(2)(iii)³ requires that certain findings be made in order to renew a license. Pursuant to that section, appellant concluded that it could not find that renewal was necessary to accommodate the public or that renewal would not unduly disturb the peace and residents in the neighborhood.

On May 28, 2004, the licensees petitioned for judicial review in circuit court. Global Express, a creditor of the licensees, was permitted to intervene and file a memorandum in support of the licensees' position.

On March 4, 2005, the court held a hearing, and on May 25, 2005, it issued an opinion and order. The court addressed five issues. First, the court held that appellant erred in not complying with section 16-410. That section provides that, if a subpoenaed⁴ witness refuses to testify at a hearing before a board of license commissioners, the board shall report the facts to circuit court, and the circuit court shall proceed by attachment against the witness. Second, the court ruled that appellees' challenge to appellant's jurisdiction had not been raised before appellant and thus had not been preserved. Third, the court ruled that appellees' challenge to the admissibility of evidence demonstrating non-compliance with conditions attached to the license had not been raised before appellant and thus had not been preserved. Fourth, the court, seemingly inconsistent with its first ruling and with its judgment, ruled that appellant's findings were supported by substantial evidence. Fifth, the court ruled that appellees' challenge to the admissibility of testimony by residents and by a Mount Rainier police officer had not been raised before appellant and thus had not been preserved. The court affirmed in part, reversed in part, and remanded for further proceedings.

Appellant noted an appeal to this Court.

Standard of Review

In reviewing the decision of an administrative agency, this Court performs the same function as the circuit court. Dep't of Labor, Licensing & Regulation v. Muddiman, 120 Md.App. 725, 733, 708 A.2d 47 (1998) (citing Dep't of Human Res. v. Thompson, 103 Md.App. 175, 188, 652 A.2d 1183 (1995)). We review the decision of the agency, not that of the circuit court. Wisniewski v. Dep't of Labor, Licensing & Regulation, 117 Md.App. 506, 515-16, 700 A.2d 860 (1997) (citing Westinghouse Elec. Corp. v. Callahan, 105 Md.App. 25, 32, 658 A.2d 1112 (1995)). When an agency, including a local alcoholic beverage licensing board, acts in a fact-finding or quasi-judicial capacity, we review its decision to determine whether it was rendered in an illegal, arbitrary, capricious, oppressive, or fraudulent manner. Christopher v. Montgomery County Dep't of Health and Human Servs., 381 Md. 188, 213-14, 849 A.2d 46 (2004); Giant Food, Inc. v. Dep't of Labor, Licensing & Regulation, 356 Md. 180, 185, 738 A.2d 856 (1999) (citing Dep't of Natural Res. v. Linchester Sand & Gravel Corp., 274 Md. 211, 224, 334 A.2d 514 (1975)); Bd. of License Comm'rs v. Toye, 354 Md. 116, 121, 729 A.2d 407 (1999). Our role is limited to determining if there is "substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law." Muddiman, 120 Md.App. at 733, 708 A.2d 47 (quoting United Parcel Serv., Inc. v. People's Counsel, 336 Md. 569, 577, 650 A.2d 226 (1994)); see also Baltimore County Licensed Beverage Ass'n, Inc. v. Kwon, 135 Md.App. 178, 186-87, 194, 761 A.2d 1027 (2000). The Court of Appeals has defined "substantial evidence" as "such evidence as a reasonable mind might accept as adequate to support a conclusion" and "whether a reasoning mind reasonably could have reached the factual conclusion the agency reached." Mastandrea v. North, 361 Md. 107, 133, 760 A.2d 677 (2000) (quoting Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 398, 396 A.2d 1080 (1979)); see also Blackburn v. Bd. of Liquor License Comm'rs, 130 Md.App. 614, 634, 747 A.2d 725 (2000) (citations omitted). Under the substantial evidence test, we may not substitute our own judgment for that of the board. Blackburn, 130 Md.App. at 623-24, 747 A.2d 725 (citing Baines v. Bd. of Liquor License Comm'rs, 100 Md.App. 136, 142, 640 A.2d 232 (1994)). When reviewing factual issues, we must review the agency's decision in the light most favorable to the agency since its decision is prima facie correct and carries with it the presumption of validity. Giant Food, 356 Md. at 185, 738 A.2d 856 (citing Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569, 709 A.2d 749 (1998)). Moreover, the action of the local licensing board is presumed to be proper and to serve in the best interest of the public. Md.Code § 16-101(e)(1)(i); Toye, 354 Md. at 121, 729 A.2d 407. The burden of proof is on the licensee to show that the board's decision was arbitrary, fraudulent, unsupported by substantial evidence, or illegal. Md.Code § 16-101(e)(1)(i); Toye, 354 Md. at 121, 729 A.2d 407.

Discussion

Appellant contends that the court erred in holding that it was required to continue the proceedings before it and to report to circuit court the failure of witnesses to appear or testify.

Art. 2B, section 16-410 provides, in pertinent part:

(a) Definitions. — (1) In this section the following words have the meanings indicated.

(2) "Board" means the Comptroller, the boards of license commissioners, or the members of the boards, as appropriate.

(b) Witnesses; oaths; service. — (1) For the purpose of all hearings and inquiries which the board is authorized to hold and make, the board may issue summonses for witnesses, and administer to them oaths or affirmations.

(2)(i) All summonses shall be served by the sheriff, except that:

1. In the City of Annapolis . . .

2. In Anne Arundel County . . .

3. In Baltimore City . . .

4. In Harford County . . .

(ii) If any witness summoned refuses or neglects to attend, or if attending, refuses to testify, the official issuing the summons shall report the facts to the circuit court for the county. The court shall proceed by attachment against the witness in all respects as if the witness summoned to appear in the court in a case pending before it had neglected or refused to do so.

(c) Records or papers; enforcement. — (1) This subsection applies in the following counties:

* * *

(viii) Prince George's County (2) A board may subpoena any records or papers pertaining to a licensed business or establishment.

(3) If a witness refuses to produce any records or papers so subpoenaed the board shall report the fact to the circuit court for the county, and the court...