                REPORTED

  IN THE COURT OF SPECIAL APPEALS

             OF MARYLAND

                  Nos. 599

           September Term, 2015

______________________________________

   BOARD OF LIQUOR LICENSE
COMMISSIONER FOR BALTIMORE CITY,
             ET AL.

                     v.

         BRETT AUSTIN ET AL.
______________________________________

      Krauser, C.J.,
      Arthur,
      Kenney, James. A., III
         (Senior Judge, Specially Assigned),
                     JJ.
______________________________________

          Opinion by Kenney, J.
______________________________________

      Filed: April 26, 2017
      The transfer of a liquor license in Baltimore City often involves issues of life and

death, and in some instances, zombies and phantoms.1 In this case, the Circuit Court for

Baltimore City reversed the September 25, 2014, two-to-one decision of the Board of

Liquor Commissioners for Baltimore City (the “Board”) that the license to sell liquor at

an establishment previously known as Turner’s in Federal Hill, (the “License”), had

“expired.” Appellants are the Federal Hill Neighborhood Association in addition to a

number of individuals2 (collectively referred to in this opinion as the “Association”) and

the Board. The appellees, Brett Austin and Joshua Foti, are the contract purchasers of the

License (the “Contract Purchasers”).

      The question presented, slightly rephrased, is:

      Did the circuit court err in its determination that the License had not
      expired by operation of law when the transfer of the License to the Contract


1
  A zombie is defined as “the supernatural power according to voodoo belief may enter
into and reanimate a dead body.” Merriam Webster, Merriam Webster’s Collegiate
Dictionary 1372 (10th ed. 2000). A phantom is defined as “something (as a specter)
apparent to sense but with no substantial existence. Merriam Webster, Merriam
Webster’s Collegiate Dictionary 868 (10th ed. 2000). Both are used as slang terms to
refer to a liquor license that has been permitted by the Board to survive, for transfer
purposes, beyond the statutory expiration period.
2
  The docket entries indicate that, in addition to “the Association,” the following
individuals were interested parties to the suit: Arthur Adasse, Douglas Berkowitz,
Michael Brassert, George Della, Sally Dworak-Fisher, Keenan Dworak-Fisher, Michael
Eckhardt, John Ginovsky, Nancy Gordon, Tom Gregory, Joseph Halperin, Lynn
Halperin, Alma Hays, David Hicks, Elizabeth Homer, Ivo Jamrosz, David Nicholas Kaw,
Edward Kelly, Sarah Lambdin, Jeff Lewis, Rosalie McCabe, Helen Brooke Mcdonald,
Vincent Mettle, Debra Nelson, Nick Patron, Joseph Reed, Paul Robinson, Lana
Robinson, Linwood Simpler, Diana Sugg, Shirley Summers, Mark Tonti, David Wallace,
Judi Wallace, and Kyle Warner.
         Purchasers was not completed within 180 days after the Board approved the
         transfer?

We hold that it did and reverse the decision of the circuit court.

                   FACTUAL AND PROCEDURAL BACKGROUND

         Notwithstanding the extended procedural history of this case, the dispositive facts

are not in dispute. Turner’s closed for business on or about July 11, 2009,3 during the

license year ending April 30, 2010. The first application to the Board to transfer the

License to the Contract Purchasers was filed on June 19, 2009. That application was

approved by the Board on July 23, 2009. On January 19, 2010, Samuel Daniels (the

then-Executive Secretary of the Board) signed a memorandum recommending that the

deadline to complete the transfer be extended 180 days (to July 5, 2010) “[b]ased on

discussion w/ Mr. Austin and receipt of projected completion schedule.”4 The Board

granted three additional sixty-day extensions to complete the transfer, all of which were

granted after the prior extension period had ended. The last extension was granted on

November 15, 2012. In the meantime, the License was renewed in the name of the

Contract Purchasers for the license years ending on April 30 in 2011, 2012, and 2013.




3
    The fire permit for the premises expired on July 11, 2009.
4
  The statutory basis for the recommended extension, or whether the Board was even
involved, is unclear. It appears that the Contract Purchasers filed their first and only
request for a hardship extension in a letter dated August 13, 2014, which was more than
180 days after the transfer of the License had been approved.




                                              -2-
       On February 25, 2013, a second Application for Transfer and Expansion was

filed.5 The validity of the License itself was raised when, “despite having prevailed in

their case in chief,” the Association sought judicial review on that issue. On December

13, 2013, a hearing was held, and on December 23, the circuit court remanded the case to

the Board to create a record on the validity issue. On February 20, 2014, the Board held

the remand hearing “to determine the status of the license under the provisions of

[Maryland Code (1957, 2011 Repl. Vol.) Article 2B, § 10–504(d) (“Article 2B § 10-

504(d)”)]” related to liquor license transfers and the expiration of a license 180 days after

a license holder has closed the business or ceased actual alcoholic beverages business

operations in Baltimore City. At that hearing, the Association argued that the License had

“sat dormant since July 2009,” and even though the “Board approved the application for

a transfer of ownership to a new location and repeatedly extended [the] approval, no

transfer was ever completed.”

       The Contract Purchasers argued that the annual renewal of the License without

protest “can certainly be construed as a tolling of the period under Article 2B.” Moreover,

the “validity” of their License for May 1, 2013–April 30, 2014, “was ruled upon,” and

because they had relied on the renewals and the direction they received from the Board,

“principles of collateral estoppel” and res judicata precluded revisiting the validity issue.



5
 The original intent was to transfer the license to 1100-06 South Charles Street. Later, it
was determined to expand and utilize the original East Cross Street premises.




                                             -3-
       The Board, in the “decision phase” of the February 20, 2014 hearing, concluded

that “even with an extension, legal or otherwise, the [L]icense would have been

considered dormant” as of October 17, 2011, notwithstanding extensions or “a transfer of

ownership hearing after that time.” Characterizing the Contract Purchasers’ arguments as

“generally center[ing] around estoppel,” the Board concluded “that the only way to avoid

the injustice . . . is to declare the [L]icense viable as of today.”6

       The Association again sought judicial review of the Board’s decision. On August

13, 2014, a Stipulation of Dismissal and Agreement for Remand to the Board was entered

at the request of the Board and the Association and, on September 17, 2014, the circuit

court issued an order remanding to the Board and dismissing the case. The stated purpose

of the remand was “so the [Board] can conduct further proceedings on this matter within

sixty (60) days after the date of the dismissal of this appeal.”

       The second remand hearing was held on September 25, 2014.7 The Contract

Purchasers moved to dismiss the proceeding on the grounds that the Board had failed to

inform them of the judicial review proceedings challenging the Board’s February 20,

2014 decision that the License was “viable.” In response, the Chair noted that the

Contract Purchasers had actual notice of the judicial review proceedings because their


6
 At that time, the members of the Board were Stephen Fogleman, Chairman, Elizabeth
C. Smith, and Harvey E. Jones.
7
  The composition of the Board had now changed. The new Chairman was Thomas
Ward, and Dana Petersen Moore had replaced Elizabeth C. Smith. Harvey E. Jones
remained on the Board.




                                               -4-
counsel, by “letter dated April 9, 2014,” wrote the then-Chairman of the Board

acknowledging that the Association “had filed an appeal in the Circuit Court.” Observing

that the Contract Purchasers had not appealed the circuit court decision, the Board denied

the motion to dismiss and the hearing proceeded.

      As to the Board’s right to reconsider the viability of the License, the Association

argued that the issue was not one of fact, but one of law that the Board was entitled to

review. It pointed out that the Board’s prior decision had been based on a theory of

estoppel resulting from the Board’s acceptance of renewal fees after the License had

expired. But, it argued, “the government cannot be estopped under the same terms as

other litigants,” and the Contract Purchasers could not rely on the “unauthorized acts” of

the Board’s agents.

      The Association called as a witness former Senator George Della, who had

sponsored the 2000 legislation creating Article 2B § 10-504(d), which is commonly

referred to as the “180 day rule.” According to Senator Della:

              It basically says [a] license can remain dormant for 180 days. And
      then if there’s a hardship, then that licensee can come back to the [B]oard
      and make their case, if they’re in a hardship situation. And then the Board
      could then grant them another extension of 180 days.
                                           ****
      Beyond that, if they don’t activate that license, that license is dead. That’s
      what the legislative intent is behind the 180 day rule. And the Board knew
      it. The Board knew it.

      Counsel for the Contract Purchasers stated that they were not arguing estoppel or a

mistake by the Board or its agents. Nor were they relying on the hardship extension

provisions of the statute. Rather, they were contending, citing Yim, LLC v. Tuzeer, 211



                                           -5-
Md. App. 1 (2013), that, notwithstanding cessation of the business itself, the successive

renewals of the License “tolls the 180 period.” In addition, the Contract Purchasers

advanced a policy argument that the Board’s adoption of the Association’s position

would thwart redevelopment efforts in the city because these projects can “take years” to

complete. The better policy, in their view, was to permit a developer to “preserve” an

existing license by renewals rather than issuing a new license. That, they argued, would

satisfy the legislative “goal [of] reduc[ing] the number of licenses.”

       In response, counsel for the Association asserted that the Contract Purchasers’

policy argument “is essentially something to be taken up with the legislature,” but it did

not reflect the intent of the current legislation, and thus, its adoption by the Board would

be a “rewrite [of] the law.”

       The Board expressly ruled on the validity of the License and, by implication, on

the Contract Purchasers’ recently filed hardship extension request, which would fail in

the absence of a viable License to transfer. The Chairman concluded that “the license has

expired.” He based his decision on the “clear command of the law,” and which had been

“ignored” by the Board in granting the earlier purported extensions and license renewals

“outside the scope of its authority.” Commissioner Petersen Moore “agree[d]” with the

Chairman “for all the reasons stated.” Although Commissioner Jones also agreed that

“the license is dead,” he voted “no” because, under the circumstances, he thought that a

“second chance is needed.”

       On October 7, 2014, the Contract Purchasers filed a Petition for Judicial Review.

A hearing was held on May 1, 2015, and on May 5, 2015, the circuit court reversed the


                                             -6-
Board, stating that its decision “was not supported by substantial evidence and was

clearly erroneous as a matter of law.” The court explained that:

       failure to complete a transfer of a license within 180 days pursuant to Art.
       2B § 10-503(d)(4) does not carry a sanction of expiration of the license. To
       hold that such a sanction applies is illogical in the face of Art. 2B § 10-
       504(d)(2)(i), which provides an exception to the 10-504(d)(2) 180 day
       expiration provision when a transfer “has been approved or is pending.”
       Furthermore, in the instant case the Board approved the transfer on July 23,
       2009, and the record contains several references to the approval and the fact
       that the transfer “remains pending.” Thus, the 2B § 10-504(d)(2)(i)
       exception for approved or pending transfers would apply.

       The Board filed its timely appeal on May 29, 2015.

                               STANDARD OF REVIEW

       “On appellate review of the decision of an administrative agency, this Court

reviews the agency’s decision, not the circuit court’s decision.” Long Green Valley Ass’n

v. Prigel Family Creamery, 206 Md. App. 264, 273 (2012) (quoting Halici v. City of

Gaithersburg, 180 Md. App. 238, 248 (2008)). We “determine whether the agency’s

decision is in accordance with the law or whether it is arbitrary, illegal, and capricious.”

Prigel Family Creamery, 206 Md. App. at 274 (quoting Md. Dep’t of the Env’t v. Ives,

136 Md. App. 581, 585 (2001)). In doing so, we will uphold factual decisions and

discretionary judgments that are “supported reasonably by substantial evidence.” HNS

Dev., LLC v. People’s Counsel, 425 Md. 436, 449 (2012) (citations omitted). Our review

of the agency’s legal conclusions is less deferential, but, we respect the agency’s

expertise in its field and give considerable weight to its interpretation and application of

any statutes or regulations it is charged with administering. Thanner Enters., LLC v. Balt.

Cty., 414 Md. 265, 275 (2010).


                                            -7-
       When, as here, the issue centers on statutory construction, and thus, legislative

intent, we look first at “the statute’s plain language as ordinarily understood” because that

is “[t]he most reliable indicator of the [legislative] intent.” Id. at 277. And, when the

language is “clear and unambiguous, we ordinarily ‘need not look beyond [its] provisions

and our analysis ends.’” Opert v. Criminal Injuries Comp. Bd., 403 Md. 587, 593 (2008)

(alteration added) (quoting Barbre v. Pope, 402 Md. 157, 173 (2007)). “[W]here a statute

is plainly susceptible of more than one meaning and thus contains an ambiguity, courts

consider not only the literal or usual meaning of the words, but their meaning and effect

in light of the setting, the objectives and purpose of the enactment.” Tucker v. Fireman’s

Fund Ins. Co., 308 Md. 69, 75 (1986). In other words, a provision within an integrated

statutory scheme must be understood in its broader context and, to the extent possible,

harmonized with the other provisions. Balt. Gas & Elec. Co. v. Pub. Serv. Comm’n of

Md., 305 Md. 145, 157 (1986).

                                Contentions of the Parties

       The Association contends that under Article 2B, § 10-504(d), a liquor license in

Baltimore City expires 180 days after the licensee “has closed the business or ceased

active alcoholic beverage business operations.” If an application to transfer the license is

filed and approved by the Board, the Association asserts that the approved transfer “must

be completed—by operating an alcoholic beverage business—within 180 days,” unless,




                                             -8-
under Article 2B § 10-504(d)(4), the Board finds that undue hardship exists.8 (Emphasis

in original). Therefore, it argues, the grant of any extensions in this case was contrary to

the “plain language” of the statute, and any Board practice or course of conduct

“inconsistent with the statutory scheme” is entitled to “no weight.”

       As to the applicability of the doctrine of equitable estoppel, the Association

contends that the Board, “as a government agency,” cannot be “estopped from applying

the express direction it has been given by the Legislature merely because an employee of

the agency accepted [a renewal] payment for an expired license.” In support, it cites

Marzullo v. Kahl, 366 Md. 158, 195 (2001) (Baltimore County Board of Appeals not

estopped from enforcing zoning regulation that prevented appellant, who had

substantially constructed a reptile barn and obtained a permit approval to do so from the

Baltimore County Department of Permits and Licenses, from using his property to breed

reptiles); ARA Health Servs., Inc. v. Dep’t of Pub. Safety and Corr. Servs., 344 Md. 85,

95 (1996) (Department of Corrections not estopped from seeking reimbursement for

overpayment of a contract provider to which the Department had remitted the excessive

payments without objection); and Heckler v. Cmty. Health Servs. of Crawford Cty. Inc.,

467 U.S. 51, 60 (1984) (Department of Health and Human Services not estopped from

recouping overpayments made to a non-profit organization).


8
  Article 2B 10-504(d)(3) states that a licensee “may make a written request to the Board
for an extension of the life of the license due to undue hardship for a time period of no
more than a cumulative period of 360 days after the date of closing or cessation of
alcoholic beverages business operations of the business [for which the license is held].”




                                            -9-
       The Board contends that “under the appropriate interpretation of the applicable

statutory provisions, the License had expired as a matter of law.” The transfer application

was approved by the Board on July 23, 2009, and under Article 2B § 10-503(d), the

transfer had to be completed by January 19, 2010. Once the 180 day expiration period

provided for in the statute was “no longer suspended,” the License “which had already

been inactive for well over 180 days–expired as a matter of law.” Therefore, according to

the Board, any “purported” extensions were invalid because they are not authorized by

the statute. And, “[t]he same analysis applies” to the Board’s acceptance of renewal fees

“for the inactive License,” because the renewal of the License does not “reset” or

“extend” the “180 day rule.” The Board recognizes, however, that there may be a

situation where the transfer deadline “overlap[s] two licensing periods.” When that

happens, the license would have to be renewed “before the transfer has been completed.”

       The Contract Purchasers mount a two pronged attack on the denial of their motion

to dismiss the remand proceedings. The first is the failure of the Board to notify them of

the judicial review proceeding initiated by the Association and the subsequent remand to

the Board by stipulation. The second is the contention that the Board was

       barred from holding a second hearing on the same issue when a substantial
       record has already been created before it, it rendered a decision based on
       that record . . . and no hearing of any kind, nor ruling made on any
       substantive issue, has been heard nor rendered by the Circuit Court for
       Baltimore City.




                                           -10-
       As to the Board’s interpretation of the statute at the September 17, 2014, remand

hearing, the Contract Purchasers appear to object to the fact that Senator Della had been

called as a witness and had testified to the intent of the “180 day rule” legislation.9 They

further contend that the Board “accepted legal conclusions drawn by [Senator] Della as

the basis for its decision.”    More particularly, however, they point to “the lack of

recognition by both [Senator Della] and [the Board] of the pertinent section of Article 2B,

namely § 10-504(d)(2)(i).”10 They argue that the subsection’s “then pending” language

“expand[s] upon the 180 day rule,” and, citing Yim, 211 Md. App. at 36, that a purchaser

of such a license can keep a license from expiring by annual renewals of the license as

long as the intended transfer remains “pending.”

       The Board, in its reply brief, contends that the Contract Purchasers’ reliance on

Yim is “misplaced” because the Yim Court “merely held that a liquor license did not


9
   At the remand hearing the Contract Purchasers’ counsel only objected to Senator
Della’s testimony “for the record as to the legal conclusion from the witness.” He stated
that Senator Della was “certainly entitled to testify as to the legislative intent,” but it was
the Board’s responsibility “to interpret the laws . . . in terms of what happens to the
license after it’s dormant.” The Chairman commented that counsel was “absolutely
correct” as to any legal conclusion on the part of Senator Della and nothing in the record
suggests that the Board relied on his testimony in reaching its conclusion in this case.
Senator Della’s testimony included background on why he introduced the legislation and
was referred to by one of the Board members as a “living legislative history.”
10
   Article 2B Section 10-504(d)(2)(i) provides that an alcoholic beverage license shall
expire 180 days after the holder’s business has closed or ceased alcohol sales, unless:
“An application for approval of a transfer to another location or an application for
assignment to another person pursuant to § 10-503(d) of this subtitle has been approved
or is then pending.” (Emphasis added). Section 10-503(d) provides the procedures for
transferring a license.




                                             -11-
expire when the licensee had filed a timely request for a hardship extension under § 10-

504(d)(2)(iii) of Article 2B, even though the licensee did not file his annual renewal

application on time while the hardship request was pending.” As to “impermissibly”

relying on the testimony of Senator Della “as the basis” for its interpretation of the

statutory language, the Board “made clear that it was not seeking a legal conclusion” but

“only background information on the legislative history” from Senator Della and it made

only a mention of legislative history in its “methodically summarized” opinion.

      In regard to the Contract Purchasers’ argument that the Board was not authorized

to hold the September 25, 2014 hearing and reconsider its February 20, 2014 decision,

the Board states that it denied the Contract Purchasers’ motion to dismiss and the circuit

court had agreed. Therefore, in the absence of an appeal of the circuit court decision by

the Contract Purchasers, the denial of the motion to dismiss was not “properly” before the

Board in the September 25, 2014 hearing but had it been, it would fail.

      Regarding the Board’s failure to provide notice to the Contract Purchasers of the

Association’s petition for judicial review, the Board argues that the record demonstrates

actual notice to the Contract Purchasers within three weeks of the petition being filed.

Nevertheless, they took no action to participate in the proceeding in the months leading

up to the circuit court’s remand to the Board.       Moreover, any “technical deficits”

resulting from the Board’s failure to provide notice “were cured” because there was no

judicial review as a result of the remand and the Contract Purchasers had a full

opportunity to participate in the subsequent proceedings.




                                           -12-
       As to Contract Purchasers’ res judicata argument, the Board, citing Board of

County Comm’rs of Cecil Cty. v. Racine, 24 Md. App. 435, 450 (1975), acknowledges

that principles of res judicata may apply to a final administrative agency decision “passed

in the exercise of its discretion upon issues of fact or upon mixed issues of law and fact.”

But, “when there has been substantial change of conditions or it is shown that the

decision was the product of . . . mistake,” the Board’s decision may be reconsidered and,

in the proper case, reversed. Id. Here, on remand, the Board “was singularly focused” on

“reconsidering its prior interpretation and application of the law,” and not the facts of the

case. Not only did the Board have the right to reconsider, it had a duty to do so.

       The Association, in its reply brief, also responds to the Contract Purchasers’

argument that the remand proceedings should have been dismissed based on “lack of

notice” by the Board and “principles of res judicata.” In regard to the former, it too

references the Contract Purchasers’ actual notice and their failure to intervene. Regarding

the latter, the Association contends that the remand meant that there was no final

judgment. The February 20, 2014, decision of the Board went to the circuit court on the

Association’s petition for judicial review and was then remanded to the Board for further

proceedings without a ruling on the merits. But, even if there had been a final judgment,

the Association agrees that “an agency is not bound by inflexible principles of res

judicata with regard to decisions that are legally, as opposed to factually, erroneous.”

Quoting Radio Communications, Inc. v. Public Service Commission of Maryland., 50

Md. App. 422, 430–31 (1982), the Association asserts “an affirmative duty upon an

administrative agency to correct a prior decision when, because of an error of law, a


                                            -13-
continued adherence to its erroneous decision would place a litigant at an unfair

disadvantage.’”

         The Association rejects the circuit court’s reading of Article 2B, § 10-503(d)(4)

that a “pending” transfer would extend the life of the License. It contends that argument

is “based on a misreading” of the relevant provisions of the statute.

         As to the Contract Purchasers’ reliance on Yim, the Association asserts that the

“primary issue” in that case was “whether alleged defects in applications to transfer the

license rendered the transfers ineffective.” But, because “any defects in the applications

to transfer had been corrected . . . the statutory period was tolled,” and the License did

not expire. In its view, the Contract Purchasers “have attempted to seize on language in

dictum in a footnote in Yim” that is unrelated to the Court’s decision in that case.

                                         ANALYSIS

         We begin by addressing the Contract Purchasers’ arguments regarding the denial

of their motion to dismiss the remand proceeding. The first argument relates to the failure

of the Board to notify them that the Association had sought judicial review of the Board’s

February 20, 2014, decision regarding the License.11 They raised this argument in passing


11
     Maryland Rule 7-202(d)(3) provides:

         (3) Notice From Agency to Parties.
         (A) Duty. Unless otherwise ordered by the court, the agency, upon
         receiving the copy of the petition from the clerk, shall give written notice
         promptly to all parties to the agency proceeding that:
         (i) a petition for judicial review has been filed, the date of the filing, the
         name of the court, and the civil action number; and

                                                                               (Continued…)

                                             -14-
at the September 25, 2014 remand hearing and in the circuit court hearing on their

Petition for Judicial Review of the Board’s Decision. They also argued that the Board

violated its Administrative Rule Number One, which was adopted to avoid the Board

“reviewing the decisions of past liquor boards” and required motions for reconsideration

to be filed within sixty days.

       The circuit court expressly rejected the argument related to Administrative Rule

Number One because there was no motion for reconsideration in this case. The circuit

court otherwise found the “denial of the motion to dismiss was appropriate” and moved

directly to the issue of whether the License had “expired.”




(…continued)
     (ii) a party who wishes to oppose the petition must file a response within 30
     days after the date the agency's notice was sent unless the court shortens or
     extends the time.
     (B) Method. The agency may give the notice by first class mail or, if the
     party has consented to receive notices from the agency electronically, by
     electronic means.

And, in regard to a “response,” Maryland Rule 7-204 provides, in relevant part:

       (a) Who May File; Contents. Any person, including the agency, who is
       entitled by law to be a party and who wishes to participate as a party shall
       file a response to the petition. The response shall state the intent to
       participate in the action for judicial review. No other allegations are
       necessary.
                                           ****
       (c) Time for Filing Response; Service. A response shall be filed within 30
       days after the date the agency mails notice of the filing of the petition
       unless the court shortens or extends the time. The response need be served
       only on the petitioner, and shall be served in the manner prescribed by Rule
       1-321.




                                           -15-
       The Contract Purchasers did not press the notification argument or question the

court’s failure to expressly address it, and they did not appeal the court’s decision.

Therefore, the issue is not before us on appeal, but, if it were, they would fare no better.

       Not only did the Contract Purchasers have actual notice of the petition for judicial

review “as early as April 9, 2014,” they took no action in that proceeding in the 161 days

between that date and September 17, 2014, when the court signed the order for remand.

And, because of the remand, there was no judicial review on the merits. In short, the

purpose of the rule was effectively satisfied, and the Contract Purchasers were not

deprived of an opportunity to assert their legal rights before the court.

       As to any concern regarding Senator Della’s testimony, the circuit court did not

“find any error,” and it is clear from the record that the Board’s decision that the License

had expired was based on the plain language of the applicable statutory provisions and

not on Senator Della’s testimony.12


12
   In Kelly v. Marylanders for Sports Sanity, Inc., 310 Md. 437, 471 n.18 (1987), the
Court of Appeals commented that statements of legislative intent by individual legislators
“run[s] afoul of well-recognized principles,” citing Norman J. Singer, Sutherland
Statutory Construction, § 48.16–17 (4th ed. 1986). The current version of section 48.16
indicates “[a] corollary to the general rule against the use of statements by individual
legislators made during debate on a bill directs courts not to consider testimony about
legislative intent by members of the legislature which enacted a statute.” 2A Norman J.
Singer, Sutherland Statutory Construction, § 48:16 (7th ed.). And that “[p]ostenactment
statements made by a legislator about legislative intent, including affidavits, are not part
of the original enactment’s legislative history.” Id. The current version of section 48.17
provides, in part, that “[c]ourts are cautious . . . and usually disregard any reference to an
individual’s legislative motivation except as expressed in a statute itself.” Id. § 48:17.
Here the legislation itself clearly expresses the motivation and intent of the legislature (of
which Senator Della was a small but important part). Although his testimony was

                                                                               (Continued…)

                                             -16-
       The Contract Purchasers argue that the Board was “barred from holding a second

hearing [because] a substantial record ha[d] already been created before it, it [had]

rendered a decision based on that record, and no hearing of any kind, nor ruling made on

any substantive issue, ha[d] been heard nor rendered by the Circuit Court of Baltimore

City.” In support, they cite Gaywood Comty. Ass’n v. Metro. Transit Auth., 246 Md. 93

(1967); Woodlawn Area Citizens Ass’n v. Board of Cty. Comm’rs for Prince George’s

Cty., 241 Md. 187 (1966); Whittle v. Bd. of Zoning Appeals of Balt. Cty., 211 Md. 36

(1956); Bensel v. Mayor and City Council of Balt., 203 Md. 506 (1954); and Mayor and

City Council of Balt. v. Linthicum, 170 Md. 245 (1936).

       They assert that such cases, especially Whittle, 211 Md. 36, stand for the

proposition that the Board, as an administrative body exercising quasi-judicial authority,

could not reach a different conclusion on the viability of the License because “the facts

and the law . . . have remained unchanged since February 20, 2014.” Quoting Gaywood

Community Ass’n 246 Md. at 99-100, they state that their argument “rest[s] not strictly on

the doctrine of res judicata, but upon the proposition that it would be arbitrary for the

Board to arrive at opposite conclusions on substantially the same state of facts and the

same law.” They draw further support from Criminal Injuries Comp. Bd. v. Gould, 273

Md. 486 (1975), in which the agency first determined that the claimant was an

independent contractor, and later, “upon its own initiative,” and on the same facts,

(…continued)
inadmissible for purposes of discerning legislative intent, its admission was, in our view,
harmless in this case.




                                           -17-
determined he was an employee. Id. at 519. There, the Court of Appeals held that the

agency’s “attempt to redetermine [Gould’s] status was clearly erroneous as a matter of

law.” Id.

       The redetermination in this case came about when the Association filed for

judicial review of the Board’s initial decision. Rather than a reapplication of the same

facts to the same law, the issue before the Board in the “second hearing” was essentially

the interpretation of the law itself, and whether it had made a mistake in its prior

interpretation of the controlling law. Because it determined that it had, the Board could

reverse its prior decision. As the Racine Court concluded: “Perpetuation of illegality by

an administrative body by inflexible application of the principle of res judicata is

impermissible.” Racine, 24 Md. App. at 452. Notably, the Racine Court found support for

that conclusion in Gould, in which the Court of Appeals stated “[m]istaken

interpretations of law, however honestly arrived at, are held not to be within the exercise

of sound administrative discretion and the legislative prerogative, but to be arbitrary and

illegal.” 273 Md. at 521.

       Turning now to the expiration of the License in this case, our analysis begins and

ends with the provisions of Article 2B, §10-504(d), read in the context of the statutory

scheme:

       (d) Baltimore City. --

       (1)(i) This subsection applies only in Baltimore City.
          (ii) In this subsection, “Board” means the Board of License
       Commissioners or the Office of the Comptroller, whichever is the issuing
       party.



                                           -18-
         (2) 180 days after the holder of any license issued under the provisions of
         this article has closed the business or ceased active alcoholic beverages
         business operation of the business for which the license is held, the license
         shall expire unless:
             (i) An application for approval of a transfer to another location or an
         application for assignment to another person pursuant to § 10-503(d)[13] of
         this subtitle has been approved or is then pending;
             (ii) An application pursuant to § 10–506[14] of this subtitle has been
         approved or is then pending; or
             (iii) A written request for a hardship extension, as provided in this
         subsection, is filed within the 180–day period.

         (3) The licensee or other appropriate interested parties may make a written
         request to the Board for an extension of the life of the license due to undue
         hardship, for a time period of no more than a cumulative period of 360 days
         after the date of closing or cessation of alcoholic beverages business
         operations of the business for which the license is held.

         (4) After a hearing conducted on the extension request, on a finding that
         undue hardship currently exists causing the closing or cessation of business
         operations, the board may grant an extension of the life of the license for a
         time period not to exceed 360 days as defined in paragraphs (3) and (5) of
         this subsection.



13
     Article 2B § 10-503(d), in relevant part, states:

         (1) This subsection applies only in Baltimore City.

         (2) A transfer of any license may only be made as authorized in subsection
         (a) of this section if the Board has presented to it a receipt or certificate
         from the Director of Finance showing there are no unpaid taxes on the
         merchandise, fixtures, and stock of the transferor due to the City of
         Baltimore or the State of Maryland.
                                            ****
         (4) A transfer of any license shall be completed not more than 180 days
         after the Board approves the transfer.
14
   Article 2B § 10-506 concerns rules and regulations related to the expiration or
continuation of a license of a deceased license holder.




                                               -19-
       (5) It is the intent of this subsection that the total time period for which a
       license may be deemed unexpired under paragraph (2) of this subsection is
       180 days if no undue hardship extension is granted, and no more than 360
       days if an undue hardship extension has been granted. The time period
       begins at the earlier of the closing of the business or cessation of alcoholic
       beverages business, and shall be tolled only upon the filing of an
       application or request described in paragraph (2) of this subsection, the
       expiration period to begin running again, cumulatively to the time period
       before the filing of the application or request, upon the occurrence of the
       later to occur of the following events:
           (i) Final action of the Board granting or denying a request authorized by
       paragraph (3) of this subsection;
           (ii) Final action of the Board denying an application described under
       paragraph (2)(i) or (ii) of this subsection; or
           (iii) Final judgment of the appellate court when judicial review of the
       Board’s action on an application or request authorized by paragraph (2) or
       (3) of this subsection has been sought, or on dismissal of a petition for
       judicial review.

       (6) If an application or request to the Board described in paragraph (2) or
       (3) of this subsection is withdrawn, there shall be no tolling of the period
       for automatic expiration of the license and it shall be deemed as if no such
       application or request was filed.

(Emphasis added).

       The plain language of the statute supports the Board’s conclusion at the remand

hearing that the License had “expired.” The closing of Turner’s in July of 2009 triggered

the 180 day rule (“180 days after the holder of any license . . . has closed the business or

ceased active alcoholic beverages business operations . . . the license shall expire[.]”

Article 2B, §10-504(d)(2)). The 180 days can be tolled by “[a]n application for approval

of a transfer to another location or an application for assignment to another person”

which “has been approved or is then pending.” In context, “pending” clearly refers to a

transfer application that is awaiting Board action and not the intended completed transfer.

In the absence of a “hardship extension” by the Board, the transfer of the License had to


                                           -20-
be completed not more than 180 days after the Board approved the transfer on July 23,

2009.

        Not only is the plain language of the statute clear, paragraph (5) of the subsection

states the legislative intent, that is, “the total time period for which a license may be

deemed unexpired . . . is 180 days if no undue hardship extension is granted, and no more

than 360 days if an undue hardship extension has been granted.” Id. § 10-503(d)(5). And,

this same intent is reflected in other related statutory provisions. For example, the initial

transfer request was filed under § 10-503(d), which also provides that the transfer “shall

be completed not more than 180 days after the Board approves the transfer.” And, under

section 10-504(d), a hardship extension “filed within the 180 day period,” may extend the

life of the license to “no more than 360 days” from “the date of closing or cessation of

alcoholic beverages business operations[.]”

        When the application was approved on July 23, 2009, the applicant had 180 days

to complete the transfer, i.e., until January 19, 2010, subject to filing a request for a

hardship extension during the 180 day period.15 As noted, no hardship extension request

was filed until August 13, 2013. But, even if the first 180 day extension could be




15
   Article 2B Subsection 10-504(4) indicates that the Board may, after a hearing, “on a
finding that undue hardship currently exists, grant an extension.”




                                            -21-
considered a hardship extension, the transfer had to be completed within 360 days of the

closing of the business or the cessation of liquor sales in July of 2009.16

       At the September 25, 2014 hearing, counsel for the Contract Purchasers indicated

that they had “never filed for 180 day hardship, but what [they] did do was renew the

license every year,” and that “the renewal tolls the 180 day period” to complete the

transfer. On appeal, and “[a]ssuming arguendo, the five (5) years of license renewals

cannot be construed as evidence of a ‘pending transfer,’” the Contract Purchasers argue,

citing Yim, “the renewals are still permitted by law to preserve the validity of the

license[.]” We do not agree.

       In Yim, the Court considered whether a liquor license issued to Two Sisters, LLC

for its restaurant operation had expired for its failure to renew the license in a timely

manner. 211 Md. 21-24. In its analysis, the Court noted the difference between the

Board’s authority to accept a late filed renewal application and its authority under Article

2B § 10-504(d), where “[s]eparate statutory provisions apply.” Id. at 26. The Court

concluded that a late filed renewal application, which could be accepted by the Board, did

not preclude the filing of a hardship extension within 180 days of the “last day of active

alcoholic beverages business.” Id. at 34.

       The Contract Purchasers seek support in a footnote in Yim that states: “As we

discuss below, this time period [the 360 days from cessation of alcoholic beverages

16
   Whether the Board’s failure to act on a pending application could extend the life of a
license beyond the 360 days from the close of business or cessation of liquor sales is not
before us.




                                            -22-
business] is held in abeyance upon the receipt of a transfer or renewal application,

making the effective length of the hardship extension longer.” Id. at 36 n.30. The

footnote is unrelated to the issue being considered by the Yim Court and has no

application to the facts of this case. In its later discussion, the Court states that if the

Board “grants the transfer application, the transfer must occur within 180 days of the

Board’s approval.” Id. at 38 (emphasis added).        But, “once the Board granted the

hardship extension request, Two Sisters’ license was considered unexpired for 360 days

after Two Sisters stopped serving alcohol.” Id. The Court stated that the 360 days is

tolled when “a transfer application is pending” and commented that “there is no statutory

requirement that Board render a decision on a transfer application within a certain period

of time.” Id.

       The language of the footnote in no way suggests that the renewal of a license

overcomes the requirements of Article 2B § 10-504(d) to complete an approved transfer

within 180 days of the approval in the absence of a granted hardship extension request.

At most, it recognizes a possible delay between the filing of a transfer request and it

being acted upon by the Board. See footnote 17, supra at 21. That the Two Sisters license

“survived beyond Two Sisters’ business itself and lived on to be renewed or transferred,”

Id. at 36, simply means that the Two Sisters license was kept alive on the statutory life

support of a timely hardship extension request that was filed within 180 days of the

cessation of the alcohol sales business.




                                           -23-
      In sum, the Board correctly determined that the License had expired. And, neither

the approved but uncompleted transfer nor the Board’s subsequent renewals of the

License could imbue it with new life.

                                  JUDGMENT OF THE CIRCUIT COURT FOR
                                  BALTIMORE CITY REVERSED. COSTS TO BE
                                  PAID BY APPELLEES.




                                         -24-
