Pridgeon v. License Commissioners

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HEAD NOTE : Pridgeon v. Board of License Com missioners, No. 97, September Term, 2007 ADMINISTRATIVE LAW; DUTY OF PRINCE GEORGE S COUNTY BOARD OF LICENSE COMMISSIONERS TO HOLD A HEARING ON THE ISSUE OF WHETH ER A LIQUOR LICENSE SHOUL D BE RENEW ED IF A PROTEST AGAINST RENEWAL HAS BEEN FILED; EFFECT OF THE WITHDRAWAL OF A P ROTE ST AG AINST RENE WAL : The Prince George s County Board of License Commissioners was correct in interpreting Art. 2B § 10-302(g)(2) to require a hearing if a protest is filed, regardless of whether the protest is withdrawn prior to the hearing . IN THE COURT OF APPEALS OF MARYLAND No. 97 September Term, 2007 FRAN K G. PR IDGE ON, SR ., et al. v. BOARD OF LICENSE COMMISSIONERS FOR PRINCE GEORGE S COUNTY Bell, C.J. *Raker Harrell Battaglia Greene Murphy Cathell, Dale, R. (Retired, specially assigned), JJ. Opinion by Murphy, J. Filed: October 9, 2008 * Raker, J., now retired, participated in the hearing and conference of these cases while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, she also participated in the decision and adoption of this opinion. This appeal from the Circuit Court for Prince G eorge s C ounty presen ts the question of whether that county s Board of License Commissioners (the Board) erroneously refused to renew a liq uor license on the ground that the Board (in the words of appellants brief) ignored the withdrawal of the protest by the sole Protest Group and[,] con trary t o its practices and policies, conducted the protest hearing while taking testimony from politicians and persons who otherwise have no standing to protest the Appellants application for renewal of the alcoholic beverage license. For the reasons that follow, we hold that the Board s decision was not erroneo us. We sh all therefore a ffirm the ju dgment o f the Circu it Court. Background In a letter dated February 26, 2006 and signe d by its president, the Hillside Civ ic Association of Capitol Heights, Maryland, advised the Board that the association wishes to protest to the renewal of liquo r license for Senate Liqu or Store located at 5000 Marlboro Pike, Capitol Heights, Maryland. Attached to that letter was an opposition to the renewal of the liquor license for Sen ate Liquo rs signed b y twelve perso ns, including the Civic Assoc iations p residen t, who s igned th is docu ment in her ind ividual c apacity. In a six page ruling dated May 24, 2006, the Board (1) refused to renew the Class B+, Beer, Wine & Liquor license that had been issued to appellant Frank Pridgeon, Sr., for the use of a corporation ope rating the Senate Inn, and (2 ) ordered that the proprietors of the Senate Inn cease the sale and service of alcoholic beverages as of 12:00 midnight, May 31, 2006. The Board s ruling included the following findings and conclusions: The Board finds that a valid protest of the renewal of this license was timely and legally filed by ten or more citizens. Prior to the hearing the licensees cam e to an agreement with a local citizens association that, in return for certain operating concessions, that particular association would not oppose the renewal of the license. During the hearing the licensee argued that this agreement made the protest moot. The Board finds that the matter of renewal is controlled by Article 2B, Section 10302(g)(2) of that statute s tates unequ ivocally that . . . If a protest is filed the license shall not be renewed without a hearing before the Board of License Commissioners. The Board finds that this proceeding is not one between two priva te parties who ca n settle the matter before a disinterested magistrate. The Board is not a disinterested party. It is charged with the respon sibility of regulatin g the sale of a lcoholic beverages. This license is not one, which is controlled in any way by the protesting parties. The y cannot issue, suspend or revoke a license. That function is reserved to the Board . The Board finds that once a legitimate protest is filed it must conduct a hearing on the question of renewal. While conducting the hearing in this matter the Board received evidence from a number of person s who o pposed th e renewa l. The Board finds and concludes that the agreement between the licensees and the citizens association does not preclude the Board from holding a hearing and making an independent finding on the question of renewal. Appellants PETITION FOR JU DICIAL REVIEW of the Board s decision included the following assertions: 1. On or about February 27, 2006, Hillside Civic Association submitted a letter to [the Board] protesting Senate Inn Restaurant and Liquors ( Senate Inn ) Application for Renewal of its Class B+, BWL License. 2. Up to the protest hearing scheduled for Ma y 10, 2006, the [appellants ] counsel and [] counsel to Hillside Civic Association negotiated, prepared and obtained signatures to a Voluntary Agreement. . . . The Voluntary Agreement was 2 signed by [appellants] and the President of Hillside Civic Association. 3. Prior to the protest hearing scheduled on May 10, 2006, the parties submitted and filed the Voluntary Agreement with [the Board]. 4. In spite of the Voluntary Agreement, [the Board] held a hearing w ithout Hillside Civic As sociation s p rotest. *** 8. With the submission of the Voluntary Agreement and the lack of [a] protestant, [the Board] should have accepted Senate Inn s Ap plication for Renew al. 9. With the submission of the Voluntary Agreement and withdrawal of Hillside C ivic Association s protest, there cannot be a protest hearing and [the Board] should not have proceeded with the protest hearing. 10. Furthermore, [the Board] failed to follow its own rules and procedures in conducting the protest hearing. The circuit court affirmed the ruling of the Board in an eleven page OPINION that included the following analysis: On appeal the App ellants do not contest the Bo ard s findings of fact, its reasoning, or its ultimate conclusions of law. They do, how ever, challen ge the Bo ard s pow er to condu ct a full protest hearin g once all d uly lodged pro tests have been withdrawn. *** Md. Ann. Code of 1 957, Art 2B §10-302(g) provides: (1) A protest against the renewal of a license may be filed with the Prince G eorge s County Bo ard of License Commissioners. 3 (2) If a protest is filed, the license shall not be renewed without a hearing before the Prince G e o r g e s C o u n t y B o a r d o f Li c e n se Commissioners. (3) All protests shall be filed with the Board no later than March 1 of the year in which the license expires. (4) The p rotest shall: (i) Be signed by not less than 10 residents, commercial tenants who are n ot holders of or applicants for any license issued under this article, or real estate owners in the immedia te vicinity in which the licensed place of business is located; (ii) Be instituted by the Board of License Commissioners on its own initiative; or (iii) Be instituted by the munic ipality in which the licensed place of b usiness is located subsequent to a public hearing being held by that municipality concerning the license re newal pr otest. (5) The Board of License Commission ers shall hold a hearing on the protest as in the case of an original application. *** Discussion This case appe ars to be on e of first impression. It involves the general question regarding the effect of the Protest Group s withdrawal of its protest -- whether the protest hearing was rendered moot by the withdrawal, or whether there remained viable issues for the Boa rd s consideration even after 4 Senate Inn and the Protest Group resolved their dispute. This, in turn, involves a question of standing -- whether on the evening of the protest hearing, the Protest Group was the only entity with standing to challenge the renewal of the license. It also involves a question of due process -- whether the Board s entertaining challenges from others outside the Protest Group put Senate Inn in a position where it ha d to argue a case without proper notice. *** Under the plain language of the statute, it would have been error for the Board not to conduct a full protest hearing once a protest had been filed. If a protest is filed, the license shall not be renewed without a hearing before the Board of License Com missioners. §10-302 (g)(2). Howeve r, as Appellants point out, the law does not address the effect of the withdrawal of the protest b y the sole protesta nt. *** In determining the effect of the withdrawal of a protest, it is important to keep in mind that the question of renewal is not a matter between the licensee and the protestant. It is a matter between the licensee and the Board, which, in order to issue or renew a license, m ust, inter alia, determine that the licensee and the licensed pre mises me et certain requiremen ts. See §10202(a)(2). Once a protest hearing is instituted, the Board must evaluate the licensee and licensed premises in light of these requirements, and if the requirements are not met, no action by the protestant can serve to waive them. A protest filed under §10-302(g)(1) serves as a signal to the Board tha t the licensed establishment may not be meeting the standards set under §1 0-202(a)(2). At that point, the Board is required to look into any possible problems that would require the denial of a renewal. This is done through a hearing, a s in the case of an original application. §10-302(g)(5). The filing 5 of a protest does not confer any special standing upon the protestant; its effect is solely on the Board, which is then required to make an inquiry by way of hearing. *** In sum, once the protest was filed, the Board was compelled to make f urther inqu iry into the renewa l of Senate Inn s license and the withdrawal of the specific protest was a circumstance that did not c ompel a cessation of Board examination of the application for renew al. Like any protestant under § 10-302(g)(4), the Protest Gro up was n ever a party to the case, so the withdrawal of its protest was without effect on the jurisdiction of the Board to conduct the protest hearing. In other words, while timely filing of the protest vested the B oard with jurisdiction to hold a protes t hearing , the withdrawal of that protest did not divest the Board of its jurisdiction. Desp ite withdrawal of the prote st, the Board was still responsible for making the same § 10-202(a)(2) determinations that it was required to make at the time the protest was filed. Withdrawal of the prote st did not ren der any of the se issues m oot. Standing and Due Process At a protest hearing, any person shall be heard on either side of the question. § 10-2 02(a)(1)(iv) (emphasis add ed). In order words, at a protest hearing the Board may consider evidence subm itted by anyone in attendance -- not just the licensee and the protestants. Though not every person or group has the standing to file a protest, once a p rotest is filed, any person may be heard at the protest hearing. The Protest Group s act of withdrawing its protest meant only that the Protest Group itself voluntarily declin ed to present a case against Senate Inn. Withdrawal of the protest was without effect on the Board s jurisdiction to conduct the hearing, and it was without effect on the right of the others[] attending the hearing to be heard on the matter. A protest hearin g is conducted in the same way as is a hearing for orig inal app lication. § 10-30 2(g)(5) . In a hearing for 6 original application, there is, of course, no protest group, yet the Board hears from interested persons opposing the issuance of the license, even though they do not have standing as protestants. Neither the n, is the act of f iling a protest a prerequisite for putting on evidence at a protest hearing, and a person or group may be heard at a protest hearing even if that person or g roup wo uld not hav e had stand ing to file a pr otest. Once a protest hearing is scheduled, the applicant for renewal is put on no tice that it may hav e to present a case before the Board. Even if, as in this case, the applicant reaches an agreement with all protestants, the applicant should be aware that this may not prevent the protest hearing from going forward, especially if the hearing happens to be attended by others who are opposed to the license s renewal. Those who come to be heard at a protest hearing are not required to notify in advance either the B oard or the a pplicant of their intention to appear. Therefore, the Board s decision to proceed with the protest hearing based on the evidence and arguments of individuals outside the Protest Group was not a violation of due process. Appellan ts noted a timely appeal to the Co urt of Special A ppeals, and filed a brief in which the y presented thre e argume nts: 1. The Board er red in the interpretation and application of Article 2B, Section 10-302(g) of the Annotated Code of Maryland. 2. The Board s c hanges to the practices and policies in handling protest hearings should have been revised by adoption of appropriate Rule or Regulation. 3. Other Administrative Agencies permit protests to be withdrawn by agreement of the parties to the case. 7 Before th ese argum ents were presented to a panel of the Court of Special Appeals,1 this Court i ssued a writ of certiora ri on its o wn init iative. 402 Md. 352, 936 A.2d 850 (2007 ). Discussion I. Appellan ts argue that the Board has no au thority to hold a re newal he aring if a protest is withdrawn. The Board, not surprisingly, has a different interpretation of the applicable statute. The record shows that the following transpired during the May 10, 2006 hearing: [BOARD CHAIR]: Two things. One is this protest was made by signatures of ten community membe rs. Is that how this protest was initiated? [APPELLANTS COUNSEL ]: Well, it was submitted under Hillside Civic Association. [BOARD CHAIR ]: But when the ten commu nity members who submitted this -- that these people no longer wish to protest and they submit it to us as a Board and it s really authorized by those people who subm itted the request for a protest, then I don t know how you would withdraw a protest otherwise. And the second thing is even if there s been a negotiation, if there s a scheduled hear ing f or a p rotest and anybody in the cou nty can come and testify with regard to this scheduled hearing for the protest, then anybody who w ould wa nt to protest can come and offer whatever they want to offer with regard to whether or not this license should be protested or not protested. And so that means that even if you have an a greemen t with the Hillside Civic Associatio n, there still would be a protest hearing where we would listen to testimony from any resident of Prince 1 Because no prior appellate decision has been rendered in the case at bar, the designation of the parties is controlled by Md. Rule 8-111(a)(1). 8 George s County with regard to the issues -- with regard to the renewal of this particular license. *** [BOARD CHAIR ]: Now, once that protest he aring is requested and the conditions are met for the protest hearing, then any citizen of Prince George s Cou nty can com e in and pa rticipate in the protest hearing. Now, that group that requested the protest hearing can subsequently say that we no longer want to protest, but this document doesn t even r eally say that. I mean, in all honesty, it just establishes conditions that it would expect the licensee to maintain if, in fact, the licensee has a license. But it doesn t even say that it supports the licensee request for a new license. It ju st says that th is is wh at it -- now , I understand the second part of that and the second part of it, they seem to be holding true. They re not protesting. It is well settled that an administrative agen cy s interpretation and application of the statute which th e agency administers should ordinarily be given considerable weight by reviewing courts. Marzu llo v. Kahl, 366 Md. 158, 172, 783 A.2d 169, 177 (2001). In the case at bar, the Board s interpretation of §10-302(g)(2) -- if a protest is filed, w e must ho ld a hearin g -- is en tirely cons istent w ith the w ords of the statu te. It is also well settled that [w]e neither add nor delete words to a clear and unambiguous statute[.] Taylor v. Nationsbank, 365 Md. 166, 181, 776 A.2d 645, 654 (2001). To accept appellants argument, we would be adding the words unless the protest is withdrawn to §10-302(g)(2). Moreover, as pointed out by the Board Chair and by the Circuit Court, the p rotest against re newal w as filed by twe lve citizens rath er th an b y the 9 Hillside Civic Association.2 Under these circumstances, appellants were not entitled to a renewal of their license on the ground that they had settled their differences with the memb ers of th e Hillsid e Civic Assoc iation. II. Appellan ts next argue that they should have been gran ted a renew al of their application on the ground that the Board s denial of the application resulted from (in the words of appellants brief) changes to the practices and policies in handling protest hearings [that required] adoption of appropriate Rule[s] or Regulation[s]. From our review of the record, however, we agree with the Board s assertion that (in the words of its brief) [t]he Board has never adopted a policy, either formal or informal, obviating the need for a statutorily mandated hearing on a protested renewal for any reason. III. According to appellants, if the Adm inistrative Procedure Act w ere applicable to the case at bar, (in the words of appellants brief) administrative agencies would declare the protest hearing before the Agency to be moot upon withdrawal of the protest by Hillside 2 Before the Board, appellants had the opportunity to -- but did not -- challenge the validity of the protest on the ground that the persons who signed the protest were not authorized to do so by §10-302(g)(4)(i), which requires that the protest [b]e signed by not less than 10 residents, commercial tenants who are not holders of or applicants for any license issued under this article, or real estate owners in the immediate vicinity in which the licensed place of business is located[.] Because appellants did not raise this issue before the Bo ard, this is sue cou ld not b e raised for the f irst time d uring ju dicial rev iew. MVA v. Weller, 390 Md. 115, 128-29, 887 A.2d 1042, 1050 ( 2005) . 10 Civic Association. The Administrative Pro cedure A ct,3 howev er, is not applic able to proceedings before the liquo r board s. Valentine v. Board of License Commissioners, 291 Md. 523, 530, 435 A.2d 459, 463 (1981 ). JUDGMENT AFFIRMED; APPELLANTS TO PAY THE COSTS. 3 See Adm inistrative Procedure Act, M d. Code (2004 , 2006 Supp.) State G ov t Article § § 10-2 01 0 10 -206. 11

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