Dobres v. Schwartzman

• Decision Date: 16 June 1948
• Docket Number: 178.
• Citation: 59 A.2d 684,191 Md. 19
• Parties: DOBRES v. SCHWARTZMAN et al.
• Court: Maryland Court of Appeals

59 A.2d 684

191 Md. 19

DOBRES v. SCHWARTZMAN et al.

No. 178.

Court of Appeals of Maryland

June 16, 1948

Appeal from Baltimore City Court; E. Paul Mason, Judge.

Proceeding by Abraham Schwartzman and others and the Mayor and City Council of Baltimore City, a municipal corporation, against Ada M. Dobres to review the action of the Board of Zoning Appeals of Baltimore in granting a restricted permit for operation of a beauty shop in a residential district. From an order of the Baltimore City court reversing the act of the board and declaring the permit invalid. Ada M. Dobres appeals.

Order affirmed.

Hyman Ginsberg and Paul N. Weiner, both of Baltimore (Ginsberg & Ginsberg, of Baltimore, on the brief), for appellant.

Charles D. Harris, of Baltimore (Chase Thomas and James B. Maginnis both of Baltimore, on the brief), for all other appellees.

Thomas N. Biddison, City Sol. and Hamilton O'Dunne, Asst. City. Sol., both of Baltimore, for appellees Mayor and City Council.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON HENDERSON, and MARKELL, JJ.

GRASON Judge.

Mrs Ada M. Dobres (appellant) and her husband, Samuel Dobres, own a brick dwelling which fronts nineteen feet on Garrison Boulevard, Baltimore, Maryland, with a depth of thirty feet; it is thirty feet high and has two stories. It is known as 4108 Garrison Boulevard, and is in a residential use district. They have owned and resided in this property for nine and a half years.

The appellant desires to change a rear room on the second floor of this dwelling, for the purpose of conducting a beauty shop as a home occupation. She applied to the Buildings Engineer for a permit, which was refused, and thereafter appealed to the Board of Zoning Appeals. The application was protested, a hearing on the matter held, and the Board passed a resolution which, among other things, stated:

'Owner resides on the premises, will do the work in her home without alterations to give it the appearance of a place of business, no employees, not (no) outside advertising structures, work by appointment only, to be carried on not as a business but as a home occupation. As such the Board approves the application on condition that when this applicant ceases to do the work the permission herein granted shall terminate and the building thereafter to be used for residence.'

An appeal was taken to the Baltimore City Court, and taht court reversed the ruling of the Board, and from its action the case comes here.

[191 Md. 22] Paragraph 8 of the Baltimore City Zoning Ordinance 1247 provides:

'(d) no building shall be altered where such alteration is arranged, intended or designed to change any use into a use, for--* * *

'44. * * * beauty parlor * * *'

Paragraph 9 permits accessory uses. It defines accessory uses as uses which are customarily incident to resident use, and includes within the definition activities of those engaged in professions in their homes, and customary home occupations. The appellant contends that the use to which she proposes to put this property is a customary home occupation; and further, that beauty culture is a profession; and that she is entitled to use her property as a beauty parlor because beauty culture is a profession.

The provisions of Paragraphs 8 and 9 of the Ordinance, as quoted above, are perfectly plain. By Paragraph 8 the operation of a beauty parlor in a residential use district is prohibited, and that prohibition excludes, in such a district, the operation of such a business, whether it be a large or small business, and whether the operator applies full time to it, or whether it is operated on spare time only. The intention of the Ordinance is clear, that such business shall not be conducted in a residential use district. There is an exception in Paragraph 8, which has no application here.

Paragraph 9 provides for certain uses which are accessory to the use of a home. Among said uses are: 'the activities of those engaged in professions in their homes' and 'customary home occupations.' These provisions do not alter, change or modify the prohibition contained in Paragraph 8 against the operation of a beauty parlor in a home in a residential use district. We need not determine the abstract question whether a 'beautician' is a member of a profession, or whether the operation of a beauty parlor in any circumstances may be a customary home occupation. It is sufficient to say that State law, and a regulation which appellant proposes to obey, prevent the operation of a beauty parlor as a home occupation or an accessory use. It is 'unlawful for any person to practice beauty...