Dakrish, LLC v. Raich
| Decision Date | 30 January 2013 |
| Docket Number | No. 1327,Sept. Term, 2011.,1327 |
| Citation | 209 Md.App. 119,58 A.3d 482 |
| Parties | DAKRISH, LLC t/a Vineyards Elite v. Ran RAICH et al. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Linda C. Carter, Riverdale Park, MD (Douglas C. Meister, Meyers, Rodbell & Rosenbaum PA, Riverdale Park, MD, Edward J. Gilliss, James L. Shea, Jr., Royston, Mueller McLean & Reid, LLP, Towson, MD), all of the brief, for Appellant.
Andrew H. Baida (Caroline L. Hecker, Rosenberg, Martin, Greenberg, LLP, on the brief), Baltimore, MD, for Appellee.
Panel: MATRICCIANI, GRAEFF and JAMES R. EYLER, (Retired, Specially Assigned), JJ.
On August 2, 2010, Ran Raich, on behalf of Maza, LLC t/a The Wine Loft, appellee, submitted an application to the Board of Liquor License Commissioners for Baltimore County (the “Board”), for the issuance of a “Class A” beer, wine, and liquor license. On October 18, 2010, the Board held a hearing on the application. Dakrish, LLC t/a Vineyards Elite (“Vineyards Elite”), appellant, appeared at the hearing through one of its licensees in opposition to Mr. Raich's petition. At the conclusion of the hearing, the Board denied the application.
On November 16, 2010, Mr. Raich petitioned for judicial review in the Circuit Court for Baltimore County. Following a hearing, the circuit court reversed the Board's decision, finding that “the Board's decision was flawed because it failed to balance appropriate factors to be considered by the Board pursuant to Maryland Code (2011 Repl.Vol.) Art. 2B, § 10–202(a)(2)(i), and gave undue weight to the potential for impact on existing licensees.” The court remanded the case to the Board with instructions to issue a liquor license to Mr. Raich.
On appeal to this Court, Vineyards Elite presents the following questions:
1. Was the Board's decision to deny the Application supported by substantial evidence?
[209 Md.App. 122]2. Did the Board commit an error of law by considering evidence of the potential impact of the Application on other licensees' businesses in the area?
For the reasons set forth below, we shall reverse the judgment of the circuit court and remand to that court with instructions to affirm the Board's decision denying Mr. Raich's application.
For purposes of context, before setting forth the testimony and evidence adduced at the hearing before the Board, we quote the relevant statutory provision relating to the issuance of a license.
(a) General procedure.—
* * *
1. The public need and desire for the license;
2. The number and location of existing licensees and the potential effect on existing licensees of the license applied for;
3. The potential commonality or uniqueness of the services and products to be offered by the applicant's business;
4. The impact on the general health, safety, and welfare of the community, including issues relating to crime, traffic conditions, parking, or convenience; and
5. Any other necessary factors as determined by the board.
1. The granting of the license is not necessary for the accommodation of the public;
[209 Md.App. 123]2. The applicant is not a fit person to receive the license for which application is made;
3. The applicant has made a material false statement in his application;
4. The applicant has practiced fraud in connection with the application;
5. The operation of the business, if the license is granted, will unduly disturb the peace of the residents of the neighborhood in which the place of business is to be located; or
6. There are other reasons, in the discretion of the board, why the license should not be issued.
(iii) Except as otherwise provided in this section, if no such findings are made by the board, then the application shall be approved and the license issuing authority shall issue the license for which application is made upon payment of the fee required to the local collecting agent.
Mr. Raich's liquor license application indicated that the location sought to be licensed was 1809 Reisterstown Road # 111, Baltimore, Maryland 21208 (“Reisterstown Road”). Mr. Raich testified that, in February 2010, he had been approved, with respect to a different license application, “as to his fitness and character,” but the license ultimately was denied. The Board acknowledged that Mr. Raich had been qualified before, that there was not “any question” that Mr. Raich was a “fit and proper person,” and that the “only real issue here is whether the public need and accommodation aspects of the requirements for a new license will be met.” The Board noted that, “by population count, a license is available, so the only question is the public need.”
Mr. Raich had worked as the manager at DiWine & Spirits (“DiWine”) for three and a half years. He had reviewed stores in the area and decided to draft a business plan to open an organic and local wine store. He stated that none of the organic and local regional wine products that he would sell would be in competition with any other wine or liquor store in the area. According to Mr. Raich, Vineyards Elite's store carries approximately 750 wines, with approximately fifteen local wines. Mr. Raich opined that none of the product that he wanted to carry would affect Vineyards Elite's business.
During the time that Mr. Raich worked at DiWine, sales had been “pretty steady.” Business was good and sales had gone up in the last year, which was one of the reasons he decided to open another shop. Mr. Raich testified that DiWine focuses on high-end wine and “generates a lot of business outside the Pikesville area.”
Mr. Raich's concept for his store, to carry organic and local wines, fit with the concept of Trader Joe's, a nearby store that carries “a lot of organic product, inexpensive, and that's the target for the people that come in.” Trader Joe's “organic model” was the same model that he would use for his store.
The size of his proposed store would be approximately 2,400 feet, and the hours of operation would be 10:00 a.m. to 9:00 p.m. The store would have approximately six employees. There had been a previous liquor license at the same location, inside a grocery store.
Mr. Raich testified that his concept had garnered a lot of support. He stated: He had collected more than 1,300 signatures from people who shop in the location of the proposed store, and most of the people were happy that another store was going to come to the area, and “they liked the idea of local wine and organic.” At the hearing, approximately 60–70 people were in attendance to support Mr. Raich's proposal. The Board observed that “there are more people here as proponents than opponents.”
On cross-examination, Mr. Raich testified that the license for which he had applied, and was denied, in February of 2010, was for a location approximately three miles from the Reisterstown Road location. He agreed that, after that license was denied, he applied for a transfer of the DiWine license to the Reisterstown Road location. He then applied again for a new license in June of 2010 for the Reisterstown Road location, prior to the application at issue here. Thus, the application for the Reisterstown Road location before the Board was the fourth license for which Mr. Raich had applied.
Upon questioning by the Board, Mr. Raich agreed that, if his application for the Reisterstown Road location was granted, there would be two “Class A” license-holders “within a baseball throw” of each other. He stated, however, that his proposal was for a “[c]ompletely different concept” than that of DiWine.
The Board asked Mr. Raich whether he had a business plan “showing the opportunity of being at this location in this economic environment.” Mr. Raich responded that he had talked to two experts who thought there was “a huge gap for demand in this area for wine, and definitely for organic wine.” After Mr. Raich stated that he anticipated doing approximately two million dollars in business at the Reisterstown Road location, the Board asked whether he had suggested to the owner of DiWine that they establish a line of organic wines. Mr. Raich responded that DiWine was “doing very well on what they are doing,” and DiWine was not “going to change the concept of the store.”
Dr. Gerald Patnode testified on Mr. Raich's behalf as an expert in estimating the need and public accommodation offered by a new Class A license at the Reisterstown Road location. He testified that the proposed Reisterstown Road location“is a very, very strong market,” stating that, “looking at the expenditures for beer, wine and liquor in this market area, within a one-mile radius ... there's excess demand over supply.” Dr. Patnode opined that there was a “market gap of 1.685 million dollars,” and that the residents in the area were being served by only two immediate licenses. There had been another license in the area, Sutton Place Gourmet, “for years ... and the people in that area were used to having that license available, and now it's been gone for awhile,” with Trader Joe's occupying that space. In Dr. Patnode's opinion, the “market [is] underserved due to lack of licenses in the area.” He believed that there is “a need and accommodation in this district.”
Dr. Patnode acknowledged that, in February 2010, with regard to Mr. Raich's previous application, he had testified before the Board that there was no need for another license “three miles north” of the proposed Reisterstown Road location. He stated, however, that, at that time, his concern was that “the market had not had an opportunity to...
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