Sullivan v. Board of License Com'rs for Prince George's County

• Decision Date: 22 March 1982
• Docket Number: No. 94,94
• Citation: 293 Md. 113,442 A.2d 558
• Parties: Grace SULLIVAN, Paul Sullivan and George Sullivan t/a Ardwick Carry-Out v. BOARD OF LICENSE COMMISSIONERS FOR PRINCE GEORGE'S COUNTY.
• Court: Maryland Court of Appeals

Page 113

293 Md. 113

442 A.2d 558

Grace SULLIVAN, Paul Sullivan and George Sullivan t/a Ardwick Carry-Out v. BOARD OF LICENSE COMMISSIONERS FOR PRINCE GEORGE'S COUNTY.

No. 94.

Court of Appeals of Maryland.

March 22, 1982.

William V. Meyers, Riverdale, (Meyers & Billingsley, P.A., Riverdale, on the brief), for appellants.

Salvatore A. Daniello, Greenbelt (Daniello, Folstein, Niland & King, Greenbelt, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, and DIGGES, ^* ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

MURPHY, Chief Justice.

The central issue in this case is whether under the provisions of Maryland Code (1957, 1981 Repl.Vol.), Article 2B, governing the sale and distribution of alcoholic beverages (the Act), the Board of License Commissioners for Prince George's County acted within its lawful authority in denying a licensee's application to construct and operate a drive-in window for the sale of packaged alcoholic beverages on the licensed premises.

I

Section 1 of Art. 2B entitled "Declaration of Policy" states that the purpose of the Act is "to obtain respect and obedience to law and to foster and promote temperance." The section further declares that it is the legislative intention:

"that such policy will be carried out in the best public interest by empowering (inter alia) ... the various local boards of license commissioners ... with sufficient authority to administer and enforce the provisions of this article. The restrictions, regulations, provisions and penalties contained in this article are for the protection, health, welfare and safety of the people of this State."

Section 184(a) of the Act vests "full power and authority (in local boards of license commissioners) to adopt such reasonable rules and regulations as they may deem necessary to enable them effectively to discharge the duties imposed upon them by this article."

Section 38(a)(5) of the Act provides that the Board of License Commissioners for Prince George's County (the Board) is authorized "in addition to the other powers and duties conferred upon them, ... (to) prescribe rules and regulations concerning alterations and additions to any licensed premises and the use thereof."

Pursuant to its rule-making authority, the Board adopted Rule 44 entitled "Conditions and/or Restrictions on a License." In pertinent part the rule provides that the Board, in its discretion, may:

"set conditions and/or restrictions on the granting of a new license, the granting of a transfer of an existing license, or the renewal of a license when it feels that these conditions are in the best interest of public accommodation and the need to protect the peace and safety of the community."

The Board also adopted Rule 46, entitled "Alterations and Additions," which provides:

"No license holder shall make any alteration or addition on a licensed premise or change the manner in which alcoholic beverages are dispensed without first obtaining permission from the Board.

"No license holder shall make any installations or alterations on the licensed premises until a permit has been obtained from the appropriate public authority of Prince George's County and until the approval of the Fire Authorities, Health Department, and Department of Licenses and Permits has been obtained where such approval is required by law." ¹

II

The appellant holds a Class A, beer, wine and liquor license in Prince George's County, which under § 18(a) of the Act authorizes it "to keep for sale and to sell all alcoholic beverages at retail, in any quantity (on the licensed premises) and to deliver the same in a sealed package or container which ... may not be opened nor its contents consumed on the premises where sold." On September 25, 1980, the appellant presented plans to the Board for the expansion of the licensed premises, including the construction of a drive-in window through which to make sales of alcoholic beverages. Accompanying appellant's application to expand the licensed premises was the approval of zoning authorities for a special exception and of licensing authorities granting a building permit for the proposed construction. The Board, following an evidentiary hearing, granted permission to expand the appellant's building but denied permission to construct and operate a drive-in window. It said that the drive-in window would cause traffic problems exacerbating an "already hazardous" traffic situation. In addition, the Board made special mention of three other factors underlying its decision: the fact that "in the past three months, the Board of License Commissioners has found in violation and fined several licensees with Drive-In Windows for sales to minors and has others under surveillance; and that "this Board, in its discretion, considers Drive-In Windows to be a major contributor to sales to minors; and that "service to the public through normal procedures is not in any way interrupted and that the accommodation of the public is easily obtained without the Drive-In Window adjunct to this property." The Board concluded:

"The approval of a Drive-In Window at this location would be injurious to the peace, health, welfare, and safety of the community because the proposed location of the Drive-In Window and the configuration of the building on the site will be blocking the primary source of ingress and egress of this highly traveled entrance; also taking into consideration the clientele that do and will frequent this establishment-the vehicles they drive are trucks, vans, and large vehicles; and finally, the high volume of traffic that the business does and is set up to do makes this hazard highly probable. Conditions that occur as a result of the approval of a Drive-In Window would be injurious and have an adverse impact on the peace, health, welfare, and safety of the community."

On appeal to the Circuit Court for Prince George's County, the appellant argued that, assuming the Board was authorized to preclude the installation of drive-in windows, it never implemented its authority by adopting rules setting forth the standards and guidelines by which it would pass upon the merits of any such requests; that consequently its attempt to regulate drive-in windows on an ad hoc basis was arbitrary and capricious, and a denial of due process of law; that absent enabling legislation, the Board lacked authority to differentiate between counter sales and drive-in window sales of alcoholic beverages; and that the Board has denied it the right to sell alcoholic beverages from a drive-in window, from its already licensed premises, while approving or acquiescing in such sale by other licensees with the same class of license. The appellant maintained that the Board's actions were in excess of its statutory authority, as well as being in violation of rights guaranteed by the State and Federal Constitutions.

The circuit court (Chasanow, J.) held that in the absence of statute or rule the Board could not withhold permission to dispense alcoholic beverages through drive-in windows or to make alterations to licensed premises. The court concluded, however, that under Board rule 46, the Board could withhold approval of the appellant's application to alter the licensed premises to include a drive-in window, even though the licensing and building permits required by that rule had been obtained. These approvals, the court indicated, were "the minimum requirements for alterations and, that in addition to those requirements, the Board may withhold approval for alterations or additions provided there are standards and reasons for doing so." The court said that such standards were supplied directly or by implication in Board Rule 44, requiring that the Board approve alterations "unless there is a determination that the alterations are not in the best interest of public accommodation, and the need to protect the peace and safety of the community." The court affirmed the Board's decision, finding "sufficient (evidentiary) bases upon which the Board could and obviously did determine that the drive-in window was a danger to the peace and safety of the community." In addition to this general affirmation of the Board's decision, the court more specifically held that there was substantial evidence concerning traffic in the area from which the Board could determine that the construction of a drive-in window on the licensed premises would be "a danger to the peace and safety of the community." The appellant appealed to the Court of Special Appeals. We granted certiorari before decision by the intermediate court.

III

As we recently observed in Brown v. Baer, 291 Md. 377, 435 A.2d 96 (1981), under § 175(f) of the Act, the decision of the circuit court on appeal from the Board is final, with no appeal permitted to the appellate courts of this State unless the trial judge decides "a point of law at variance with any decision previously rendered by any other judge of the State on the same question." In the event of such conflict, the appellate court may only decide "the question of law involved" and "shall not pass upon any question of fact." § 175(f).

The Board maintains that the appeal must be dismissed on jurisdictional grounds under § 175(f) because no point of law involved in the court's decision in this case is at variance with any prior decision of another judge in the State. Appellant argues to the contrary, citing R.N. & W. Corporation v. Hartlove, et al., Equity # D-7908 (1973), in the Circuit Court for Prince George's County. In that case, plaintiffs were attempting to enjoin the Board from enforcing a rule requiring holders of Class A and B off-sale licenses to close their drive-in windows at 10:00 P.M., instead of 2:00 A.M., as specified by the provisions of Art. 2B governing hours of sale. The circuit court (Powers, J.) held that there could be no differentiation between hours of sale for over-the-counter operations and for drive-in window operations, citing as...