O'brien v. Bd. of License Commissioners For Wash. County.

• Decision Date: 05 July 2011
• Docket Number: 2009.,No. 2081,Sept. Term,2081
• Citation: 199 Md.App. 563,23 A.3d 323
• Parties: Adam M. O'BRIEN, et al.v.BOARD OF LICENSE COMMISSIONERS FOR WASHINGTON COUNTY.
• Court: Court of Special Appeals of Maryland

199 Md.App. 563

23 A.3d 323

Adam M. O'BRIEN, et al.

v.BOARD OF LICENSE COMMISSIONERS FOR WASHINGTON COUNTY.

No. 2081

Sept. Term

2009.

Court of Special Appeals of Maryland.

July 5, 2011.

Evangelos D. Sidou, Towson, MD, for appellant.Susan M. Lochbaum (John R. Salvatore, on the brief), Hagerstown, MD, for appellee.Panel: ZARNOCH, MATRICCIANI, and HOTTEN, JJ.ZARNOCH, J.

Appellants, Adam O'Brien and DeCourcy's Pub, LLC (“O'Brien”) brought a hybrid action pro se in the Circuit Court for Washington County to gain the right to renew and transfer a Class D alcoholic beverages license. With elements of mandamus, injunction and petition for judicial review, this hybrid, even if it were powered by gas, electricity or good, old-fashioned elbow grease, could not arrive at appellants' desired destination. In addition, we conclude that O'Brien's customized method of travel in this litigation—administrative mandamus—is simply a non-starter. For reasons set forth below, we affirm the decision of the circuit court rejecting O'Brien's challenge and upholding the actions of appellee Board of License Commissioners for Washington County (“the Board”).

FACTS AND PROCEEDINGS

In October of 2006, Sharon and Michael Turner, owners of Chasers Bar and Grill, 139 North Mulberry Street in Hagerstown, sold their business to Adam and Christine O'Brien. O'Brien planned to operate an establishment known as DeCourcy's Pub at that address and set up a limited liability company for that purpose. However, complications soon arose.

Apparently, before the liquor license could be transferred, O'Brien had to overcome residency issues. Under the Rules of the Board of License Commissioners for the County (“the Board”):

If an appellant does not meet the residence requirements above or is not a registered voter in Washington County because he/she is not a resident of the County, then the appellant shall appoint a person who meets these requirements as a resident agent for the license and give him/her at least a one percent (1%) interest in the entity (corporation) that owns the business.

BLC–005(c). To comply with this rule, O'Brien named Sharon Turner (“Turner”) as “resident agent” with a one percent interest in DeCourcy's Pub, LLC. ¹ Thus, Turner's name, as well as O'Brien's, was included on the license.

In addition, landlord-tenant problems surfaced. The Turners had leased the Mulberry Street property from William Marlow until August 2009, and Marlow was not willing to substitute O'Brien as a tenant. However, he appeared to be agreeable to allowing the Turners to sublease to O'Brien. As a result, in December 2006, an “addendum to Sales Contract” was entered into between the Turners and Adam O'Brien, which among other things: 1) acknowledged that Marlow would not release the Turners from the lease obligation; 2) subleased the property and set the monthly rent; 3) required O'Brien to pay real estate taxes; 4) set no term for the expiration of the lease ²; 5) provided that if a default occurred because of a failure to pay rent, the Turners “would have the right to exercise immediate possession and ownership of the business....” ³

Subsequently, the Board approved O'Brien's application for a transfer of the license, and, evidently, renewals of the license in 2007 and 2008. ⁴ However, all did not go well for DeCourcy's Pub: neighbors complained about the noise; an attempt to lay the ground for moving the business to a new location stalled; and O'Brien was under financial stress. At an April 30, 2008 meeting of the Board, these problems surfaced.⁵ O'Brien said:

Well, the plan is to try to move the liquor license, once the lease has been fulfilled, to a commercial area, get it out of the residential area to try to just get the neighborhood off our back, really. I don't see how it's gonna get a whole lot better. We're gonna do the best we can in the meantime to control the problems, noise being the main one. But first and foremost I have to take care of my lease and then after that, that's when I would want to come talk to you guys about any opportunity that I have to move within [the] voting district to a more commercial area.

Turner stated that when she asked O'Brien whether he was going to pay the rent, his response was “Your rent? I don't have any money.” She added that she had paid the personal property taxes for O'Brien's limited liability company. Turner said that she discussed the proposed move with the owner of the building who said he would not let O'Brien out of the lease, “ because he's not a very good tenant and he's not maintaining the property.” Also speaking at the meeting was Alan Greenwald, described in the minutes as “ developer and owner of property on Franklin Street,” where apparently O'Brien sought to move. He echoed Turner's testimony about the recalcitrance of the owner of the building.

Board Chairman Robert L. Everhart responded to the witnesses: “The problem that you're having with the landlord is not something that we have any control over or are going to be involved in, unless something changes.” Later, he added: “[U]ntil you all have a problem that affects your licensing, we're not gonna get involved....”

On July 9, 2008, O'Brien and Greenwald attended another meeting of the Board to discuss the proposed transfer to a new location. Turner was not present. After being sworn in, the witnesses described the reasons justifying a transfer and listened to advice from Chairman Everhart about how to proceed. O'Brien and Greenwald indicated that they planned to create a new LLC before an application would be filed. Chairman Everhart said: “Well, we don't have a problem with you putting your application in and I think, like I say, the main thing is you will have to have your LLC before you can do the advertising.”

Before this new enterprise could flourish, DeCourcy's Pub floundered. The pub closed and its liquor license was taken by representatives of the Board. ⁶ On January 7, 2009, Turner appeared before the Board. She advised Board members that O'Brien “has not been paying the rent for the property, taxes or insurance.” She said she would be meeting with her lawyer “about the possibility of getting the license back.”

Less than a month later, O'Brien, Greenwald and Turner (represented by counsel) were back before the Board to determine, according to Chairman Everhart, “who has the license and what's going on.” Turner stated that O'Brien had not paid the rent or the taxes ⁷ and that she had changed the locks on the premises. Turner's attorney told the Board that because O'Brien defaulted on the sublease, the business belonged to the Turners. See p. 566, 23 A.3d at 325, supra. O'Brien responded that he had no intention of transferring the license to Turner and still wanted to move the license out of the neighborhood.

Chairman Everhart told O'Brien:

[If] you want to make an application for a transfer, we can certainly do that. It is your license. So if that's what you want to do, you can make an application to transfer it and I want to say up front that we don't guarantee transfers ... The problem you have between the two of you, we don't ... I don't see any involvement we have in that.

Turner's attorney asked: “[C]an the license be transferred over the objection of the resident agent?” The Chairman responded: “If the license can be transferred, yes, because it is his license.” Another commissioner made a motion that “O'Brien may apply for a transfer,” but that before any approval, Turner may assert her “full legal rights.” The motion was approved unanimously.

What happened next is a little unclear. In his filings in this case, O'Brien said that he delivered the transfer application to the Board on Monday, March 2, 2009 and was told by Board Administrator Deborah L. Kirk that “there would not be any transfers in the month of March and subsequently in the month of April of 2009.” Kirk was alleged to have said that “there are no transfers in March as it is the renewal month, and that April will be violations hearings.” The transfer application was not included in the record in the circuit court or the record in this Court. At oral argument in this Court, the Board's counsel said that the Board had no record of receiving a transfer application.

Apparently acting as if it had not received the transfer application, the Board met two more times with the parties in this controversy. On both occasions the issue described in Board minutes was “LICENSE RENEWAL.” At the March 18, 2009 meeting, the following exchanges occurred:

Chairman Everhart: The question that you came here for ... would you explain what your requesting is ( sic ).

Adam Obrien: Requesting to be approved to renew the license and move forward with the transfer without Sharon Turner's signature.

Chairman Everhart: Well, you can't move forward with the transfer. You can move forward with renewing your license. You'll have to renew the license before you transfer it anyhow, so it's not gonna affect you if you don't transfer. But that wouldn't affect the, you know, you, as far as you getting the license. What do you have to say about ... where do you all stand on this license? Do you have anything else you'd like to say?

Adam Obrien: Not at this time.

Chairman Everhart: Do you have anything?

Sharon Turner: I'm not gonna sign off on the license. I had gotten a letter from them stating that they would pay me in February 6 of 2011. Absolutely, not. I don't want this tied up for that long. I'm not gonna do it and they sent me a thing of release. I'm not signing anything. If he wants the license, pay me what you owe me. If he wants to go back in that building, I will hand him back the key, but why am I gonna release him or want him to get his license. He doesn't pay his rent. That's back. The taxes are not paid. I've paid them. And I think that you guys need to step in here, either give me the opportunity to apply for this license myself, without him, because he is...