Can a Maryland county liquor board fine a bar for breaking liquor laws even if no one was criminally convicted?

Plain-English summary

In 1988, a Maryland delegate asked the Attorney General whether the Montgomery County Board of License Commissioners could impose administrative sanctions, including fines, on alcoholic beverages licensees who had violated the liquor laws but had never been criminally convicted of anything. The opinion concluded the Board generally could. It read Article 2B's enforcement scheme as giving the Board both a mandatory duty to suspend or revoke a license for certain listed offenses (including a criminal conviction) and a broader discretionary power to act whenever necessary for the "peace or safety of the community," a power that did not depend on a criminal conviction ever having occurred. The one exception the opinion identified involved sales of alcohol to underage persons: if a licensee was found not guilty, or given probation before judgment, on a criminal charge for such a sale, and the person who induced the sale was convicted, the statute barred the Board from imposing any administrative sanction on the licensee for that same incident. Short of that specific combination, the opinion found the Board free to sanction a licensee administratively even where no prosecution had been brought at all.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did a Maryland liquor licensee have to be criminally convicted before a county board could fine them?
No, according to this 1988 opinion. It concluded that beyond the specific offenses for which Article 2B made suspension or revocation mandatory (including a criminal conviction), the Board had independent discretionary authority under §69(a) to sanction a licensee whenever necessary for the "peace or safety of the community," without requiring any criminal conviction first.

Was there any situation where a Maryland liquor board could not sanction a licensee for an underage sale?
Yes, one narrow situation. The opinion found that if a licensee was found not guilty or given probation before judgment on a criminal charge of selling to an underage person, and the person who induced that sale was convicted, §118(a)(3) barred the Board from imposing any administrative sanction on the licensee based on that same alleged sale.

Could the Montgomery County Board still act if prosecutors decided not to bring criminal charges at all?
Yes. The opinion concluded that a decision not to prosecute did not disable the Board from independently finding, through its own administrative proceeding, that a licensee had in fact violated the liquor laws and imposing a sanction, since reading the statute otherwise would leave the Board powerless whenever a prosecutor chose not to pursue a case.

Background and statutory framework

The Board's sanctioning authority came from Article 2B, §§69 and 203. Section 69(a) made revocation or suspension mandatory for certain listed causes, including a licensee's conviction of an Article 2B violation, while also authorizing discretionary revocation or suspension "for any cause which in the judgment of the ... board ... shall be necessary to promote the peace or safety of the community." Section 69(b) further authorized sanctions "for such other offenses as specified in other parts of this article." Section 203(p) let the Board impose a fine in lieu of suspension or revocation in cases where suspension or revocation was discretionary rather than mandatory.

Section 118 separately provided for criminal prosecution of licensees who sold alcohol to underage persons, and §118(a)(3) stated that if a licensee was found not guilty, or placed on probation without a verdict, on such a charge, that finding barred any administrative sanction based on the same alleged violation, provided the person who induced the sale was convicted under one of the specified sections of Article 27.

The opinion read §69(a), §69(b), and §203(p) together as establishing a flexible enforcement scheme: some misconduct (like a criminal conviction) triggers mandatory sanctions, while other misconduct gives the Board discretion to weigh whether revocation, suspension, a fine, or no sanction at all best fits the circumstances, consistent with the statute's declared purpose in §1(a) of empowering local boards "with sufficient authority to administer and enforce the provisions of this article." The opinion concluded this flexible scheme was not displaced in underage-sale cases except in the one specific circumstance §118(a)(3) addressed, reasoning under Kaczorowski v. City of Baltimore that the legislature would not have intended to leave the Board powerless to discipline a licensee whenever a prosecutor simply chose not to bring charges. A footnote in the opinion flagged pending House Bill 1023 (1988), which would have amended §69 to codify the Board's authority to sanction licensees for negligent or willful violations directly, and the opinion's own editor's note recorded that Chapter 434 (House Bill 575) of the Laws of Maryland 1988 later removed the requirement that the inducer of an underage sale be convicted before an acquitted licensee could invoke the bar on administrative sanctions.

Citations and references

Statutes:

• Article 2B, §69
• Article 2B, §69(a)
• Article 2B, §69(b)
• Article 2B, §203(p)
• Article 2B, §203(p)(1)(iv)
• Article 2B, §118
• Article 2B, §118(a)(3)
• Article 2B, §1(a)
• Article 2B, §1(a)(2)
• Article 27, §§400 to 403
• House Bill 1023 (1988)
• Chapter 434 (House Bill 575) of the Laws of Maryland 1988

Cases:

• Kaczorowski v. City of Baltimore, 309 Md. 505, 517, 525 A.2d 628 (1987)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1988/Volume73_1988.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Alcoholic Beverages—Montgomery County Board of License Commissioners—Administrative Sanctions—With One Exception, Board Has Authority To Impose Administrative Sanctions on Licensees Who Have Violated Liquor Laws But Have Not Been Criminally Convicted.

July 14, 1988

The Honorable Brian Frosh
Maryland House of Delegates

You have requested our opinion on whether the Board of License Commissioners of Montgomery County (the "Board") may impose administrative sanctions, including fines, on alcoholic beverages licensees who have violated Article 2B of the Maryland Code but have not been convicted of any criminal offense.

For the reasons given below, we conclude that the Board may impose sanctions in those cases, except that it may not impose any sanction for allegedly selling an alcoholic beverage to a person under age 21 if the licensee has been found not guilty or granted probation before judgment on the same charge and the person who induced the unlawful sale has been convicted.

I
Relevant Statutory Provisions

The Board's authority to impose sanctions on licensees is set forth in Article 2B, §§69 and 203. In relevant part, §69(a) provides as follows:

Any license or permit issued under the provisions of this article may be revoked or suspended by ... the board of license commissioners for Baltimore City, or any county ... for any cause which in the judgment of the ... board ... shall be necessary to promote the peace or safety of the community in which the place of business is situated, and such license or permit must be revoked or suspended ... for the following causes: (1) conviction of the licensee or permitted for violation of any of the provisions of this article

Additionally, §69(b) provides that: "[r]evocation and suspension of licenses is also authorized for such other offenses as specified in other parts of this Article."

Revocation or suspension of a license or permit are not the only sanctions that the Board may impose, however. Under §203(p), the Board "may, in lieu of suspending or revoking an alcoholic beverages license for any cause for which the board is permitted but not required to suspend or revoke a license pursuant to §69 of this article, impose a fine for any such violation," subject to certain conditions. One of those conditions is a determination by the Board "that the public welfare and morals would not be impaired by allowing the licensee to operate during the suspension period and that payment of the fine will achieve the desired disciplinary purposes."

Section 118 provides for criminal prosecution of licensees who make sales of alcoholic beverages to underage persons. In addition, §118(a)(3) places a significant restriction on the Board's power to impose sanctions on a licensee criminally charged with that offense:

If any licensee shall be found not guilty, or placed on probation without a verdict, of any alleged violation of this subsection, this finding operates as a complete bar to any proceeding by any alcoholic beverage law-enforcement or licensing authorities on account of the alleged violation, provided that the person inducing the sale in question has been found guilty by a court under one of the sections of Article 27 of the Annotated Code of Maryland numbered 400 to 403, both inclusive.1

II
Analysis

On its face, §69 provides for revocation or suspension of an alcoholic beverages license under three sets of circumstances: (i) Under §69(a), revocation or suspension is discretionary "for any cause which in the judgment of the ... board ... shall be necessary to promote the peace or safety of the community"; (ii) also under §69(a), revocation or suspension is mandatory for certain designated causes, including conviction of a criminal offense under Article 2B; and, (iii) under §69(b), revocation or suspension "is also authorized for such other offenses as specified in other parts of this article."2 Thus, by its terms, although §69 requires suspension or revocation for certain enumerated causes including conviction of a violation of Article 2B, it does not make a conviction or other enumerated cause a prerequisite to revocation or suspension of a license in all cases. The Board has authority to impose sanctions in cases other than those specifically enumerated in §69(a) — that is, in cases involving offenses specified in other parts of Article 2B, and in situations that threaten the public "peace or safety."

The distinction between cases giving rise to mandatory sanctions and those giving rise to discretionary authority to impose sanctions is explicitly recognized in §203(p). That provision authorizes the imposition of fines only in cases in which the Board has discretion to determine whether or not to impose the sanction of revocation or suspension. The provisions of §69(a) and (b) and §203(p), read together, thus establish a general scheme of administrative enforcement designed to be adaptable to the varying circumstances in which charges of misconduct may be brought against licensees.

Some cases involve clear misconduct that the General Assembly determined to be so inherently serious that it should always be followed by at least temporary loss of the licensee's privilege to do business. One such kind of misconduct is a conviction for a criminal violation of the alcoholic beverages laws. In other cases, determining whether revocation, suspension, a fine, or no sanction is most appropriate requires consideration of the particular circumstances of the licensee's misconduct. This category of cases clearly includes those in which the licensee has not been convicted of a criminal violation of the alcoholic beverages laws, but has been found, after an appropriate administrative proceeding, to have violated those laws.3

In some of these cases, the imposition of administrative sanctions may be a more appropriate method of achieving the disciplinary and deterrent goals of sanctions than a criminal prosecution would be. The circumstances of a particular violation may be such that the case simply does not warrant the imposition of a criminal penalty, yet the "peace or safety of the community" may necessitate some sanction. In addition, the administrative proceeding may be more appropriate because it is less burdensome for law-enforcement agencies, as well as the licensee. Accordingly, the availability of administrative sanctions in cases in which criminal proceedings are not desirable comports well with the flexibility of the general scheme for enforcement of the alcoholic beverages laws. Indeed, the provision for discretionary sanctions in §69(a) indicates that the ability to discipline licensees for causes for which criminal penalties either are not warranted or could not be obtained is an integral part of the enforcement scheme.

We think that this flexible scheme of administrative enforcement was not abandoned by the General Assembly in those cases in which the misconduct charged is the selling of an alcoholic beverage to an underage person. To be sure, a finding of not guilty or a grant of probation without a verdict to the licensee, coupled with a conviction of the person who induced the sale, precludes the imposition of any administrative sanction. Put another way, where court proceedings have determined, in effect, that a person other than the licensee was at fault in the making of a prohibited sale, the General Assembly has mandated that the licensee likewise may not be subjected to administrative penalties. Thus, where a court acts on a criminal charge under §118, its action is determinative of whether any administrative sanction may be imposed on the basis of the same charge.4

However, this does not necessarily mean that only a court may determine whether administrative sanctions are to be imposed in cases of sales to underage persons. On occasion, no prosecution is instituted against an alcoholic beverages licensee despite the existence of evidence that the licensee in fact made a prohibited sale. A decision not to prosecute may be reached for any of a myriad reasons. Construing §118 to prohibit the Board from taking any action in those cases would render the Board powerless to discipline a licensee who in fact engaged in a prohibited sale, solely because another agency found it inadvisable to subject the licensee to the possibility of criminal sanctions. In light of the State's concern with drinking by persons under age 21, we do not believe that the General Assembly intended that result. See Kaczorowski v. City of Baltimore, 309 Md. 505, 517, 525 A.2d 628 (1987) (statutes should be construed in light of purpose and objective, avoiding illogical or absurd results).

The statutorily declared general policy underlying the alcoholic beverages laws is to regulate and control all aspects of trade in alcoholic beverages "to obtain respect and obedience to law and to foster and promote temperance." §1(a). Moreover, the General Assembly has determined that:

[S]uch policy will be carried out in the best public interest by empowering the Comptroller of the Treasury, the various local boards of license commissioners and liquor control boards, all enforcement officers and the judges and clerks of the various courts of this State with sufficient authority to administer and enforce the provisions of this article

§1(a)(2). We think that the General Assembly, having determined that boards of license commissioners should have all needed enforcement authority, did not intend to entirely withdraw discretionary authority from them in an area regarded as of special importance — sales of alcoholic beverages to persons under 21. Accordingly, we do not construe §118(a) to make conviction of the licensee, a condition precedent to administrative sanctions. Rather, that provision establishes a complete bar to administrative sanction under one narrow set of circumstances: a finding of not guilty or grant of probation before judgment to the licensee coupled with the conviction of the person who induced the unlawful sale. In all other circumstances, the boards have either a mandatory duty or a discretionary power to impose sanctions.

III
Conclusion

In sum, it is our opinion that the Board of License Commissioners of Montgomery County may impose administrative sanctions, including fines, on alcoholic beverages licensees who have violated Article 2B but have not been convicted of any criminal offense, except that it may not impose any sanction for allegedly selling an alcoholic beverage to an underage person if the licensee has been found not guilty or granted probation before judgment in criminal proceedings on the same charge and the person who induced the sale has been convicted.

J. Joseph Curran, Jr., Attorney General
C. J. Messerschmidt, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

Editor's Note: As a result of Chapter 434 (House Bill 575) of the Laws of Maryland 1988, Article 2B, §118(a)(3) no longer requires that the person who induced the sale to an underaged person be convicted in order for the licensee's acquittal or probation before judgment to serve as a ban to sanctions.

1 The provisions of Article 27 referred to impose criminal penalties on a person under age 21 or other person who, by knowingly misrepresenting the underage person's age or otherwise, induces a licensee to sell alcoholic beverages for consumption by the underage person.

2 The causes for which revocation or suspension is mandatory under §69(a), in addition to conviction of an offense under Article 2B, are the following:
(1) Willful failure or refusal to comply with the provisions of Article 2B or regulations adopted under it;
(2) Making a material false statement in an application;
(3) Two or more convictions of the licensee's employees for offenses under Article 2B committed on the licensed premises within two years;
(4) Possession on the licensed premises of alcoholic beverages on which taxes are due but have not been paid;
(5) Violation of §110, which prohibits manufacturers, wholesalers, distillers, and the like from holding financial interests in retail establishments or in businesses conducted by retail licensees;
(6) Willful failure to keep or to allow inspection of records as required by Article 2B;
(7) Possession of any alcoholic beverage that the licensee is not authorized to sell;
(8) Suspension or revocation of a permit issued to the licensee by the Federal Alcohol Administration or conviction of the licensee for violating any federal law relating to alcoholic beverages; and
(9) Failure to furnish the bond required by Article 2B.

3 House Bill 1023 (1988) would have amended §69 to authorize the Board to revoke or suspend a license or impose a fine if the Board found that the licensee or an employee had negligently or willfully violated a provision of Article 2B or a rule or regulation of the Board. It appears that the Board presently has that authority in any case in which it finds that the "peace or safety of the community" is threatened by the violation. House Bill 1023 would also have required the Board to promulgate rules establishing the criteria it would use in determining whether to revoke or suspend a license or to impose a fine. Assistant Attorney General Robert A. Zamoch, Counsel to the General Assembly, pointed out that §203(p)(1)(iv), which requires the Board to promulgate rules and regulations "necessary to carry out the purposes of this subsection" authorizing the imposition of fines, appears to require the Board to establish those criteria. Letter to Del. Michael R. Gordon (June 1, 1988).

4 That is, under the circumstances described, the board may not impose an administrative sanction. If the licensee is convicted under §118, an administrative sanction is required by §69(a). If the licensee is found not guilty or granted probation before judgment and the purchaser is not prosecuted or is found not guilty or granted probation before judgment, the board may impose an administrative sanction.