Grace v. Bd. of Liquor License Comm'rs for Balt. City

BRIAN GRACE, et al. v. BOARD OF LIQUOR LICENSE COMMISSIONERS FOR BALTIMORE CITY

No. 611

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

April 24, 2017

UNREPORTED

Woodward, Kehoe, Leahy, JJ.

Opinion by Leahy, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

On September 21, 2014, Baltimore City Police responded to an early morning incident at The Big Easy Cabaret (the "Big Easy"), an adult entertainment establishment in Baltimore, Maryland. As a result of that incident, the Board of Liquor License Commissioners for Baltimore City (the "Liquor Board") issued a notice alleging that the Big Easy violated Board Rule 3.02, titled "Cooperation," and Board Rule 3.12, titled "Public Welfare." The Liquor Board found that the Big Easy committed the alleged violations following a hearing on November 20, 2014, and then suspended the Big Easy's liquor license for two months and imposed a fine of $2,000.00. The Big Easy appealed the Liquor Board's decision to the Circuit Court for Baltimore City, which held a hearing on April 23, 2015. The court upheld the Liquor Board's finding that the Big Easy violated Rule 3.02 and its concomitant imposition of a $500.00 fine, but overturned the finding of a Rule 3.12 violation. The Big Easy timely appealed to this Court, presenting two questions for our review:

I. "Did the Liquor Board err in finding the licensee guilty of violating liquor board rule 3.02?"

II. "Did the liquor board deny the licensee a fair hearing?"

We hold that, because the Liquor Board properly interpreted Rule 3.02's definition of "Licensee," it did not err in finding that the Licensee violated Rule 3.02. Although we are troubled by some of the proceedings below, we further conclude that the Liquor Board did not violate the Big Easy's procedural due process. We affirm.

BACKGROUND

A. The Incident

The Big Easy was an adult entertainment establishment holding a class D liquor license located at 2000 Eastern Avenue, Baltimore, Maryland. Brian Grace, Paul Gunshol, and Fireball Entertainment, Inc. (collectively, the "Licensee") owned the Big Easy. According to the testimony offered before the Liquor Board by Baltimore City Police Officer Juan Minaya, at around 12:45 a.m. on September 21, 2014, he was stopped at a red light about a block away from the licensed premises when an unidentified man approached him and informed him of an incident with a baseball bat "in front of [t]he Big Easy." Officer Minaya then headed towards the Big Easy and observed a group of 10 to 15 persons scattering from the establishment, according to his testimony before the Liquor Board. Officer Minaya then spoke to a bouncer who told him "[t]hat a fight broke from inside and spilled outside onto the street." The bouncer also indicated that "people were inside at a private party . . . and once the people came outside[,] a guy with a baseball bat came assaulting the patrons that were inside." The manager on duty, Richard Marino, came out and informed the officer that there had not been a fight inside and that all of the events occurred outside.

Following the conversation with Mr. Marino, Officer Minaya briefly left the scene for two minutes, but was called back when other officers believed that they needed supportwith Spanish translation. Officer Minaya and other officers then stopped a group of five or six persons—who appeared to have been involved in the fight—about half a block from the Big Easy and identified them to see whether any had any outstanding warrants. The individuals "refused to cooperate [or] to go to the Southeast District to be interviewed[.]" However, according to Officer Minaya, the group indicated that "they were inside the [Big Easy] for a private party, and that a fight broke out from inside and continued outside." While the officers waited on the information regarding the possible outstanding warrants, they requested that a fire department doctor assist the person most severely injured of the group, who "had a knot to his head." Officer Minaya later explained that, when one man who was being held was about to get into his car, another officer saw a handgun in the car and detained the man.

B. Proceedings Before the Baltimore City Liquor Board

On October 5, 2014, the Liquor Board issued a notice for Licensee to appear before it "to show cause why your Alcoholic Beverage License and other permits issued by this Board . . . should not be suspended or revoked[.]" The notice alleged violations of Liquor Board Rule 3.02, Cooperation, and Rule 3.12, Public Welfare.

Board Rule 3.02 provided:¹

"Cooperation Licensees shall cooperate with representatives of the Board, members of the Police Department, Health Department, Building Engineer's office, Grand Jury and representatives of other governmental agencies whenever any such persons are on official business."

Board Rule 3.12 provided:²

"Public Welfare Licensees shall operate their establishment in such a manner as to avoid disturbing the peace, safety, health, quiet, and general welfare of the community."

The notice alleged that, in violation of Rule 3.12, on September 21, 2014 a "[f]ight occurred in the club moved outside and participants was [sic] found with weapons[.]" Regarding Rule 3.02, the notice alleged that on September 21, 2014 the "[m]anager contradicted statement from bouncer and tried to conceal the fight started in the establishment[.]"

The hearing occurred on November 20, 2014 before Liquor Board Chairman Thomas Ward and Commissioners Dana Peterson Moore and Harvey E. Jones. Thomas Akras, attorney and Deputy Executive Secretary for the Liquor Board, presented testimony about the incident from Officer Minaya and several neighborhood residents.

As related above, Officer Minaya testified that he was at a traffic light on the 2000 block of Fleet Street, when a man on a bicycle approached him, informing him that "some people were being assaulted with a baseball bat in front of the Big Easy." He went to the location and saw 10 to 15 people gathered "[a]bout half a block up from the bar." He spoke to the bouncer, who informed him that a fight had broken out inside the bar and had spilled out into the street. He testified that the bouncer told him that people were inside at a private party, and, when the fight moved outside the bar, "a guy with a baseball bat came assaulting the patrons came assaulting the patrons were inside." He further testified that Richard Marino, the Big Easy's manager who was on duty that night, told him that the fight had occurred outside, not inside.

As recounted supra, Officer Minaya briefly left the scene, but he returned when an officer who could speak Spanish was required. Officer Minaya and the other police on the scene then ran warrant checks on a group of five or six people who were suspected of being "involved in a fight from the bar." Additionally, one of these men "was detained because he had a handgun in his vehicle." The people who were being held related toOfficer Minaya that they were inside the Big Easy at a private party, when a fight erupted and "continued outside."

The first community member to testify was Chrissy Anderson, President-Elect of the Fells Prospect Community Association. Ms. Anderson indicated that the Association had handled "many, many noise complaints," and complaints about the violation of the community's memorandum of understanding (the "MoU") with the Big Easy. When asked for specifics, she indicated that the complaints were "generally in regard to music, simply the bass being too loud. The blinking sign out front . . . kind of goes around and flashes constantly." Ms. Anderson then submitted an affidavit by Victor Corbin, who was then President of the Fells Prospect Community Association. When Ms. Anderson began reading a portion at the hearing, Chairman Ward and Commissioner Moore indicated that they had both previously read the affidavit. The affidavit averred, inter alia, that the Fells Prospect Community Association had reached an MoU with the Big Easy and that the Big Easy had violated the MoU through its use of: "sandwich signs, valet parking in an MTA bus stop and the addition of new blinking lighting and a[n] open 6 days a week sign[.]"³ The affidavit also noted "numerous complaints that we have received about the noise level(i.e., music) in the adjoining property." The Licensee's counsel objected to Ms. Anderson's testimony, as well as to the introduction of Mr. Corbin's affidavit stating: "I object to the Board having received information not specifically related to this incident prior to any finding of guilt." Chairman Ward admitted Ms. Anderson's testimony and the affidavit "[n]ot as to the guilt or innocence of the charge, but with respect to punishment in the event your client [is] found responsible." When the Licensee's counsel suggested that it would be more appropriate for the Board to first find the Licensee "guilty of something" before considering the testimony, Chairman Ward responded: "Well, [counsel], I got the job, not you."

Mr. Akras then called Mr. Robert Burch, who owned the property adjacent to the Big Easy at 2002 Eastern Avenue. The Licensee's counsel again objected to Mr. Burch's testimony noting that "[h]e's not testifying as a fact witness. He's testifying with regard to his other complaint with regard to this establishment." Nonetheless, the Liquor Board allowed Mr. Burch's testimony. Mr. Burch indicated that he rents the 2002 Eastern Avenue property and that he first learned of the September 21 incident from social media. Upon further investigation, Mr. Burch learned that "there was a big fight that had broken out in The Big Easy. It spilled out onto Eastern Avenue, and then there was an associated handgun violation[.]" Mr. Burch indicated that his tenants did not complain to him about...