Gianforte v. Board of License Com'rs for Baltimore City

• Decision Date: 20 May 1948
• Docket Number: 157.
• Citation: 58 A.2d 902,190 Md. 492
• Parties: GIANFORTE et al. v. BOARD OF LICENSE COMMISSIONERS FOR BALTIMORE CITY.
• Court: Maryland Court of Appeals

58 A.2d 902

190 Md. 492

GIANFORTE et al. v. BOARD OF LICENSE COMMISSIONERS FOR BALTIMORE CITY.

No. 157.

Court of Appeals of Maryland

May 20, 1948

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

Proceeding by Sam Gianforte and Joseph E. Gianforte to review a decision of the Board of License Commissioners for Baltimore City denying application of petitioners for a beer and light wine license. From the judgment of the Baltimore City Court affirming the Board's decision, petitioners appeal.

Appeal dismissed.

Alfred J. O'Ferrall, Jr., of Baltimore (Jos. H. A. Rogan and J Francis Ford, both of Baltimore, on the brief), for appellants.

Richard W. Emory, Deputy Atty. Gen., and Clay Jewell of Baltimore (Hall Hammond, Atty. Gen., on the brief), for appellee.

Before MARBURY, C.J., DELAPLAINE, COLLINS, and HENDERSON, JJ., and BAILEY, Circuit Judge specially assigned.

Bailey Circuit Judge specially assigned.

This appeal is from a judgment of the Baltimore City Court affirming a decision of the Board of License Commissioners for Baltimore City, wherein the application of Sam Gianforte and Joseph E. Gianforte for a Beer and Light Wine License, Class A (Off Sale), at 5901 Reisterstown Road, was denied by the Board.

The Board held its hearing on August 5, 1947. At this hearing it was shown that the applicants conducted a general store at the above location, which is in a rather isolated section, with very few dwellings and zoned commercially; that on February 13, 1947 an application for a similar license at 5501 1/2 Reisterstown Road was denied; that on April 4, 1946 an application for a Beer, Wine and Liquor License, Class A, at 5512 Reisterstown Road was denied; and that on September 10, 1945 an application for a Beer, Wine and Liquor License, Class B, at 6121 Reisterstown Road was denied. There were filed as exhibits a plat, confirming the isolation of the location, two photographs of the interior of the premises and a petition requesting the granting of the license signed by ninety-three persons. The inspector for the Board testified that the property had been properly posted and that there were no protests.

On August 13, 1947, the Board made its findings and passed an order disapproving the application and denying the license. This order states that 'the records of this office show that applications in this section have been repeatedly disapproved by this Board' and cites five previous instances of denials, including the three mentioned above. The two additional applications which were disapproved were for licenses at 5900 Reisterstown Road and 6200 Reisterstown Road respectively. The Board's order then continues as follows: 'The Board is of the opinion that the public will not be inconvenienced if this application is disapproved and, as a matter of fact, that no necessity has been shown to exist for the granting of the license.

'Accordingly, the Board in the exercise of its judgment and discretion feels that it is obliged to disapprove the application and deny the license and it is so ordered.'

From this order an appeal was taken to the Baltimore City Court on the grounds that the decision of the Board was arbitrary and discriminatory and that it was not supported by the evidence and was against the weight of the evidence. The case was heard by the Court on October 23, 1947, and on October 27 the order of the Board was affirmed and judgment was entered in favor of the Board for costs.

No opinion was filed by the Court in affirming the order. However, on the same day that the judgment was entered, Judge Mason, then presiding in the Baltimore City Court, wrote to the respective attorneys the following letter: 'After carefully reading each memorandum I have decided to affirm the action of the Board of Liquor License Commissioners in the above-entitled matter.'

The appeal to this Court, filed on November 25, 1947, is based upon the contention that the decision in the instant case is at variance with two former decisions involving the same question of law, namely, the decision of Judge Moser in the case of Food Fair Stores, Inc., 2525 Greenmount Avenue, entered on September 18, 1946, and the decision of Chief Judge Smith in the case of Riviera Restaurant entered on October 5, 1945, both in the Baltimore City Court on appeals from the Board of License Commissioners for Baltimore City.

On February 12, 1948, the appellee filed in this Court a motion to dismiss the appeal on the ground that, under Section 149(e) of Article 2B of the Annotated Code of Maryland, 1947, Cumulative Supplement, the decision of the Baltimore City Court is final and that 'no further appeal shall lie to the Court of Appeals of the State', with the one exception that 'if any Judge of the Circuit Court of any county, or the Baltimore City Court, shall in any case finally decide a point of law at variance with any decision previously rendered by any other Judge of the State on the same question, an appeal may be taken from the decision rendered to the Court of Appeals of Maryland', and that this appeal does not come within the exception.

In the opinion in the case of Brashears v. Lindenbaum, Md., 56 A.2d 844, 850, the applicable statutory provisions are set out as found in Section 63, Article 2B of the Annotated Code, 1943 Supplement, and codified without substantial change as Section 152, Article 2B, by Chapter 501, Acts of 1947. This section, as amended in a minor matter, which does not affect the instant case, by Chapter 774, Acts of 1947, is now codified as Section 149, Article 2B, Annotated Code, 1947 Cumulative Supplement. It would serve no useful purpose to insert these statutory provisions again at length in this opinion. We will point out, however, that by Section 149(d) it is provided that 'the burden of proof shall be upon the petitioner to show that the decision complained of was against the public interest and that the local board's discretion in rendering its decision was not honestly and fairly exercised, or that such decision was arbitrary, or procured by fraud, or unsupported by any substantial evidence, or was unreasonable, or that such decision was beyond the powers of the board, and was illegal.' We have already quoted the pertinent provision with respect to appeals to this Court.

It is interesting to note that Article 2B as originally enacted by Chapter 2, Acts of Special Session, 1933, provided that appeals from the local licensing boards should be taken to the State License Bureau. Appeals to the Courts were first authorized by Chapter 438, Acts of 1941, with respect to Montgomery County, and by Chapter 686, Acts of 1941, with respect to Baltimore County. By both Acts it was provided...