Patel v. Bd. of License Comm'rs for Somerset Cnty.

230 Md.App. 195

146 A.3d 1178

Hiteshbhai Patel

v.Board of License Commissioners for Somerset County

No. 1522

Sept. Term, 2015

Court of Special Appeals of Maryland.

September 29, 2016

Argued by: John K. Phoebus (Anthenelli, Phoebus & Hickman, LLC on the brief) all of Crisfield, MD, for Appellant.

Argued by: No argument on behalf of appellee.

Woodward, Graeff, Raymond G. Thieme, Jr. Senior Judge, Specially Assigned, JJ.

Graeff, J.

This case addresses the circumstances under which a person who holds a license to sell alcoholic beverages is deemed to be “aggrieved” by, and thereby have standing to challenge, a decision of a board of license commissioners to issue an alcoholic beverages license to a nearby business. Hiteshbhai Patel, appellant, holds a Class A beer and wine license for the use of Omkara, Inc., t/a Big Willey's (“Big Willey's”), a convenience store in Crisfield, Maryland.¹ He sought judicial review of the December 29, 2011, decision of the Board of License Commissioners for Somerset County (the “Board”), appellee, to issue the same type of license to Azaz Azam and another person for the use of Somers Cove Market, Inc. (“Somers Cove”), a nearby convenience store in Crisfield.

The circuit court dismissed Mr. Patel's petition for judicial review, finding that Mr. Patel did not have standing to challenge the Board's issuance of the license to Somers Cove because he presented no evidence of a specific economic injury, and therefore, he was not aggrieved. The court then denied Mr. Patel's motion for reconsideration.

On appeal, Mr. Patel presents the following two questions for our review, which we have rephrased slightly:

1. Did the circuit court commit an error of law by dismissing Mr. Patel's petition on the ground that he did not have standing to challenge the Board's decision?

2. Did the circuit court abuse its discretion in declining to reconsider its dismissal of Mr. Patel's petition after Mr. Patel presented evidence that his sales had declined significantly following the Board's issuance of the liquor license to Somers Cove?

For the reasons set forth below, we answer the first question in the affirmative, and therefore, we shall vacate the judgment of the circuit court and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On January 20, 2012, Mr. Patel filed a Petition for Judicial Review in the Circuit Court for Somerset County, arguing that the Board's decision granting the license to Somers Cove should be reversed. He asserted that, through his attorney, he had opposed the issuance of the license at the hearing before the Board, and therefore, he had standing to appeal. He argued that he was aggrieved by the order granting the license, noting the “absence of sufficient evidence that such a license was authorized under Article 2B, Section 9-220 or that the application and the procedure followed by the [B]oard and the applicant complied with Titles 9 and 10 of Article 2B, Annotated Code of Maryland.”²

The court held a hearing on April 5, 2013. Given the Board's concession that the record supplied was “not much,” the court decided to “remand this matter for a rehearing.”³

On April 10, 2013, the court issued an order remanding the matter to the Board “for the purposes of conducting a new hearing and preparing an adequate record upon which this [c]ourt may decide this matter.” The court noted that the record that had been transmitted failed “to contain sufficient information upon which to determine whether the alcoholic beverage license was properly issued.” The Board proceedings were to be conducted de novo , but upon completion of the second hearing, the matter was to resume before the circuit court “as if the new record to be filed were the original record.” The Board was directed to file a new transcript and record “within 60 days of the date of the hearing.”

The Board considered the issuance of a liquor license to Mr. Azam on August 21, 2013, and September 18, 2013. In subsequently issuing its decision, the Board noted that the “issue before the Board concerns the 300 foot setback from the church property.” Finding that the distance between the church and the market was 305 feet, the Board determined “that there was no reason to deny a license for the use of Somers Cove” and the alcoholic beverage license issued to Somers Cove was valid.

On December 31, 2014, Mr. Patel filed a memorandum of law in support of his petition for judicial review. He asserted that the Board erred in approving the license because, among other reasons: (1) Somers Cove was within 300 feet of a church; (2) legislation enacted in 2013 did not authorize the issuance of a license to Somers Cove despite its proximity to a church; (3) the Board failed to consider the effect of the issuance of the license on existing licenses; and (4) issuing the license was against the public interest. Mr. Patel also asserted that the Board's issuance of a license to Somers Cove should be summarily reversed due to its failure to include Mr. Patel's evidence in the record.⁴

On April 24, 2015, after a hearing, the circuit court issued an order stating that it was “impracticable to determine the questions presented to it, without additional evidence.” The court directed the parties to present evidence at a subsequent hearing on several questions, including whether Mr. Patel had standing to challenge the decision of the Board or whether that “procedural hurdle” had been waived.

Mr. Patel and Mr. Azam filed supplemental memoranda in response to the court's order. With respect to standing, Mr. Patel cited Maryland Code (2011 Repl. Vol.), Art. 2B § 16–101(b)(1)(i), which provides that “[a]ny alcoholic beverages licensee that holds a license issued by the local licensing board” may appeal a decision of the Board to the circuit court. Mr. Azam did not address the standing issue, addressing instead issues relating to the merits of the Board's decision, including: (1) whether the 300-foot requirement applied; and (2) whether the record was sufficient to demonstrate that the Board considered the public interest. The Board did not file a memorandum.

On July 30, 2015, the court held a hearing. At the start of the hearing, Mr. Patel's counsel stated that he would be calling two witnesses on the issue of standing. Counsel for the Board responded:

Your Honor, before we [get] to that on the standing issue I think we might not even have to go there quite frankly. My research and what [counsel for Mr. Patel] has said on the standing issue and after discussions with Co-counsel, not to give anything away, but I tend to agree. You know, [the cases cited by Mr. Patel] I think are pretty good, but if he wants to go ahead put the testimony on we'll let him do that, but, you know, I couldn't find anything contrary to the case that [counsel for Mr. Patel] found.

Mr. Patel then presented the testimony of Dale McGinnis, Clerk for the Board. Ms. McGinnis testified that Mr. Patel held an alcoholic beverage license in Somerset County. His initial license was issued on May 1, 2007, and a new license had been issued each subsequent year through 2015.

Mr. Patel testified that he held an alcoholic beverage license since 2007, and he had appeared, “either personally or through [a]ttorneys,” at all of the hearings held by the Board regarding whether Mr. Azam should be issued a license. Mr. Patel opposed the issuance of a license to Mr. Azam, stating that his business was “within a mile or two miles” of Somerset Cove.

Counsel then presented argument. With respect to the standing issue, counsel for Mr. Patel noted that the Board had conceded that Mr. Patel had standing. The court, however, noted the statutory requirement that a person appealing the Board's decision must be aggrieved by the decision. In that regard, the court asked whether there had been “any evidence or testimony that [Mr. Patel] was aggrieved.” Counsel responded that Mr. Patel was “another alcoholic beverage licensee that does not wish to have competition.” Counsel stated that “one of the duties that the Board has in determining to issue a license is” determining the “impact it's going to have on other licensees in the community.” He argued that Mr. Patel was aggrieved in having a second licensee in the same geographical area, which “absolutely affected his business.” Counsel pointed out that there “is a large population in the Crisfield Housing Authority that seeks to purchase alcoholic beverages,” and prior to the issuance of a license to Somers Cove, Mr. Patel's business was the closest license holder to that population.

In response, counsel for the Board stated that Mr. Patel's position on standing was correct, but in response to the court's question, “there has been [no] evidence presented by Mr. Patel that he was in any way harmed by the opening of Somers Cove market or the granting of the liquor license. ... [N]o testimony at all that anybody had been aggrieved.” He noted that Mr. Patel's “main reason” for opposing the license to Somers Cove was that he did not “want any other competition,” but “it's up to the Board in their discretion to give these licenses. ... And obviously the Board did not hear anything at that hearing to make them deny the license.” Counsel for the Board stated that “all these years later it still boils down to the original issues as to the distance involved. And clearly I think that issue has been settled.”

Counsel for Mr. Patel replied that the petition for judicial review addressed not just the 300 foot distance requirement, but also that the procedure followed by the Board did not comply with the law. With respect to the court's question regarding whether Mr. Patel was aggrieved, counsel stated: “First of all aggrieved does not mean damaged. Aggrieved mean[s] dissatisfied with, unhappy with the decision of something.”

On August 12, 2015, the circuit court issued a memorandum opinion addressing whether Mr. Patel had standing to challenge the Board's issuance of the liquor license to ...