Thana v. Bd. of License Comm'rs for Charles Cnty.

226 Md.App. 555

130 A.3d 1103

Sutasinee THANA, et al.

v.BOARD OF LICENSE COMMISSIONERS FOR CHARLES COUNTY.

No. 1981, Sept. Term, 2014.

Court of Special Appeals of Maryland.

Jan. 29, 2016.

Charles G. Byrd, Jr. (Alston & Boyd, on the brief) Baltimore, MD, for Appellant.

Matthew P. Clagett (Office of the County Attorney for Charles County, on the brief) LaPlata, MD, for Appellee.

Panel: BERGER, NAZARIAN and ROBERT A. ZARNOCH (Retired, Specially Assigned), JJ.

ROBERT A. ZARNOCH, J. (Retired, Specially Assigned).

In this appeal of a decision of the Circuit Court for Charles County, a liquor licensee seeks to raise a First Amendment challenge to a " consent order" of a county liquor board that prevented the establishment from offering "go-go entertainment." In musical terms, this case, at first glance, may look like The Miracles' 1965 hit, "Going to a Go Go" meets 1984's " Footloose."¹ Ultimately, we conclude that, because of waiver and preservation problems, the appropriate tune is the Grass Roots' 1967 hit, " Things I Should Have Said."

This case revolves around go-go, but not the go-go that Smokey Robinson and the Miracles sang about in 1965. Go-go music—an offshoot of funk—originated in Washington, D.C., in the 1970s, and is characterized by a syncopated drum beat and call and response.²

In 2012, appellants Thai Seafood & Grill, Inc., trading as Thai Palace, a restaurant and bar in Waldorf, Sutasinee Thana, and Michael J. Lohman ("Thai Palace" or "licensee"), proposed and consented to restrictions on the use of promoters and on providing go-go entertainment in exchange for the ability to present live entertainment at the restaurant as reflected in a consent agreement with appellee, the Board of License Commissioners for Charles County (the "Board"). Soon after, the Charles County Sheriff's Office received information that Thai Palace was using promoters and playing go-go music. The Board brought an enforcement proceeding against Thai Palace, and after a hearing, found that it had violated the consent order. Thai Palace raised no constitutional objection at this time. The Board revoked Thai Palace's liquor license and its ability to host live entertainment.

Thai Palace petitioned the Circuit Court for Charles County to review the Board's decision, arguing, inter alia, for the first time that the restrictions in the second consent order violated the due process and equal protection clauses of the Fourteen Amendment to the U.S. Constitution. After a hearing held on June 23, 2014, the circuit court denied Thai Palace's petition in part in an order and memorandum opinion entered on October 15, 2014.³ Thai Palace then appealed to this Court. Now for the first time on appeal, the licensee raises a First Amendment challenge to the 2012 consent order. Thai Palace now presents the following questions for our review, which we have consolidated and rephrased:

I. Whether this Court should dismiss the appeal as moot because the consent order at issue expired on January 12, 2015, prior to oral argument?

II. Whether substantial evidence supported the Board's finding that Thai Palace used promoters who maintained control over the entertainment provided on site?

III. Whether Thai Palace preserved its First Amendment argument and whether it waived its right to raise constitutional issues when it entered into the consent agreement with the Board? And, if the issue is preserved and not waived, whether a liquor board violates a licensee's free speech rights under the First Amendment of the United States Constitution and the doctrine of unconstitutional conditions when it conditions certain benefits of a liquor license upon the business not providing a certain type of music?

We hold that the case is not moot, but that the licensee's constitutional claim is not properly before us. Thus, we affirm the circuit court and the decision of the Board.

BACKGROUND

It is helpful to provide some background from the record on the incidents that occurred prior to the proceedings at issue here and the interactions between Thai Palace, the Waldorf community, and the Board. From 2006 through 2008, police responded to numerous reports of fights, disorderly behavior, controlled-dangerous substance violations, and concealed weapon violations at the location of the licensee's restaurant. In 2007, these incidents resulted in 35 adult arrests and 35 juvenile arrests. That year, Thai Palace's alcoholic beverage license was revoked after it hosted entertainment that featured nudity—a violation of the Alcoholic Beverages Article, Article 2B of the Maryland Code (1957, 2011 Repl.Vol.).⁴ From 2007 to 2009, after the liquor license was revoked, Thai Palace held regular go-go events hosted by promoters. During this time period, the Charles County Sheriff's Office received numerous calls reporting criminal activity, including fights, disorderly behavior, and controlled-dangerous substance violations.

On August 13, 2009, the Board held a hearing in which it considered Thai Palace's application for a Class B, beer, wine, and whiskey, liquor license.⁵ Following the hearing, on November 12, 2009, the Board issued a consent order (the "first consent order") in which it imposed several conditions on the restaurant, including the condition that "there shall be no entertainment other than dinner music from either a radio and/or t.v. and that there will be no other source of entertainment without prior written approval of the Board ..." The order provided that it "shall remain in effect until changed by the Board of License Commissioners[.]"

The first consent order remained in effect for two years without incident. In 2011, Thai Palace requested that the Board rescind the earlier consent order to allow the restaurant to once again provide live entertainment. The licensee assured the Board that it would "maintain control over arranging ... entertainment and [would] not use an outside promoter to do so", and that it would not "offer any ‘go-go’ type entertainment." Following a hearing on December 11, 2011, the Board issued a second consent order on January 12, 2012, modifying the conditions imposed on the restaurant. Under the second consent order, Thai Palace was "authorized to offer additional entertainment in the licensed premises to include instrumental and acoustical music; Karaoke; DJ music and dancing[.]" However, the order restricted Thai Palace from allowing "an outside promoter to maintain control of any entertainment" and from offering any " ‘go-go’ entertainment[.]" These provisions were obviously a response to the police involvement at the establishment from 2007 to 2009 and were designed to limit the size and unruliness of the crowds in and around Thai Palace.

The order was also to "remain in effect for a period of three years from the effective date of this order and shall act as an endorsement on the alcoholic beverage license issued to the licensees for the same three year period[.]" It further provided that, "upon the expiration of three years from the effective date of this order, ... this Order shall expire and be null and void and of no further effect." The order was signed for the Board by a Charles County assistant county attorney and by the chairman of the Board of License Commissions for Charles County, and "[a]pproved and [c]onsented to" by Sutasinee C. Thana, Michael J. Lohman, and their attorney, David J. Martinez, for Thai Palace.

A year after the issuance of the second consent order, the Charles County Sheriff's Office sent a memorandum to the Board, detailing several violations of the second consent order. On June 20, 2013, the Board issued a show cause order to Thai Palace that alleged that the restaurant hosted numerous events that were advertised by promoters and that featured go-go music.

The Board held a hearing on December 12, 2013, to review the alleged violations of the second consent order. The Board's attorney called Master Corporal Judith Thompson of the Alcohol Enforcement Unit at the Charles County Sheriff's Office. Officer Thompson provided the details of her investigation, which commenced in February 2012. She described flyers and Facebook posts that advertised purported go-go bands at the restaurant. Several of these advertisements contained names of promoters and used the words "promoted by," described in further detail below. The Board's attorney then called Officers Curtis and Chandler, also with the Charles County Sheriff's Office, both of whom worked security for Thai Palace as second jobs. They each testified that they observed go-go music playing at Thai Palace on several occasions while they were working.

Officer Curtis stated that she observed go-go music on two occasions while the second consent order was in effect. When asked how she knew that it was go-go music, she stated "Just from my generation, growing up. Going to school, I know what go-go music is.... [from] personal experience." She described go-go music as "go-go music is a—to me is people—a lot of bass, drums, talking—you know, kind of screaming somewhat into the music, very fast beat.... It's hard to explain." She also commented on the difference between go-go and rhythm and blues as: "Go-go has—it's pretty much the same beat. Whatever song is played, it's the same beat, same fast-paced beat. R & B is different beats, different sounds, different words, everything is different."

Officer Chandler stated that she observed go-go bands playing at Thai Palace about five or six times, but could not recall the dates. She knew that it was go-go music from personal experience, and when asked to define go-go music, Chandler stated "It's just a different sound, a different beat. I really can't explain what it is."

The Board's attorney then rested its case and counsel for Thai Palace called Mrs. Thana to testify. When questioned about promoters and how Thai Palace chose and booked entertainment, Mrs. Thana testified that she made appointments to meet with the bands and told them of the...