Could a Maryland county liquor board get around a state law banning beer-and-wine-only licenses by issuing a full liquor license with a no-liquor restriction attached?

Plain-English summary

A grocery store and delicatessen in Calvert County wanted to sell beer and light wine for off-premises consumption only, but Maryland's liquor licensing statute, Article 2B, did not authorize that specific kind of license in Calvert County. The applicant proposed a workaround: have the county liquor board issue a Class A license, which normally covers beer, wine, and liquor, but attach a restriction removing the right to sell liquor, leaving a license that functioned exactly like the beer-and-light-wine license the statute did not allow there. Counsel for the Calvert County Board of License Commissioners asked the Attorney General whether the board's general authority to restrict licenses let it do this.

The Attorney General concluded that it did not. Article 2B gave local boards broad authority to restrict licenses, but that authority came from the state legislature and could not be used to create, in effect, a category of license the legislature had expressly withheld from a particular county. Since the statute specifically barred beer-and-light-wine-only licenses in Calvert County, a restricted Class A license that produced the identical result was not a permissible use of the restriction power, even though the applicant and the board might have preferred that outcome.

Currency note

This opinion was issued in 1990 and interpreted Article 2B of the Maryland Code as it stood at that time, including the statutory bar on beer-and-light-wine licenses in Calvert County under former §13(n). The opinion itself notes that Chapter 178 (House Bill 779) of the Laws of Maryland 1993 later created a Class A beer and light wine license specifically for Calvert County, which appears to have addressed the exact gap this opinion discussed. Subsequent statutory amendments, court decisions, or later AG opinions may have changed Article 2B's licensing scheme further since then. Treat this page as historical context, not current legal advice. Verify the current version of Article 2B's Calvert County licensing provisions before relying on any specific rule described here.

Common questions

Could a Maryland county liquor board in 1990 create a new type of license just by restricting a different license it was authorized to issue?
No, according to this opinion. The Attorney General concluded that a local board's restriction authority could not be used to produce a license that functioned as a type the General Assembly had expressly prohibited in that county, since only the legislature decided which license types were available in a given jurisdiction.

Did this 1990 opinion say Calvert County businesses could never sell beer and light wine off-premises?
The opinion addressed only the legal mechanism for that specific 1990 application, not the broader policy question. It noted that a 1993 law later created a beer-and-light-wine license specifically for Calvert County, which appears to have resolved the gap the opinion discussed.

Background and statutory framework

Article 2B of the Maryland Code set out a detailed, county-by-county scheme for licensing the sale of alcoholic beverages. Unlike the general presumption that conduct is legal unless forbidden, Article 2B expressly forbade most liquor-related activity unless done by a consumer or by a licensee as the statute provided, a structure the opinion described, quoting Green v. State, as both "prohibitory" and "regulatory." Different license types (such as the Class A beer license under §8, or the beer-and-light-wine license under §13) each had their own fee structure and their own list of counties where they could or could not be issued; §13(n) specifically excluded Calvert County from the beer-and-light-wine license.

The applicant argued that a separate provision, §72(a), which stated broadly that "licenses shall be subject to suspension, restriction or revocation," gave the board authority to restrict a Class A beer, wine, and liquor license down to a beer-and-light-wine-only license, even in a county where the legislature had barred that license type outright. The opinion rejected that reading. Citing Sullivan v. Board of License Comm'rs for the general breadth of local boards' restriction power, and Montgomery County v. Board of Supervisors for the principle that county authority over alcohol licensing exists only insofar as the state legislature has delegated it, the opinion applied the statutory-construction approach from Kaczorowski v. City of Baltimore, reading the restriction power in the context of the whole licensing scheme rather than in isolation. Read that way, §72(a)'s general restriction power could not be used to defeat §13(n)'s specific, express prohibition on beer-and-light-wine licenses in Calvert County.

The opinion also relied on an earlier 1959 Attorney General opinion involving a similar attempted workaround in Anne Arundel County, where a tavern license was proposed to be restricted to mimic a package-goods license the county could not otherwise issue on Sundays. That opinion had described such an arrangement as allowing a board "to accomplish by indirection that which it is not authorized to accomplish directly and to create an entirely new kind of license by its own fiat," language the 1990 opinion applied directly to the Calvert County situation. The opinion was careful to note it was not opining on a board's general power to restrict the manner or mode of operation of licensed establishments, only on the narrower question of using a restriction to manufacture a license category the legislature had withheld from a county.

Citations and references

Statutes:

• Article 2B, §§1 and 3, expressing the general prohibitory purpose of Maryland's alcoholic beverages law
• Article 2B, §3(a), forbidding liquor-related activity except by a consumer or a licensee as provided by statute
• Article 2B, §8 and §8(n), authorizing Class A beer licenses and barring them in certain counties
• Article 2B, §12A and §12B, the parallel licensing provisions for light-wine-only licenses
• Article 2B, §13 and §13(n), authorizing beer-and-light-wine licenses and expressly excluding Calvert County among others
• Article 2B, §72(a), the general provision on suspension, restriction, and revocation of licenses
• Article 2B, §§1(a)(3) and 68(b), cross-referenced alongside §72(a) on license restrictions

Cases:

• Green v. State, 170 Md. 134, 139, 183 A. 526 (1936), describing Article 2B's licensing scheme as both "prohibitory" and "regulatory"
• Sullivan v. Board of License Comm'rs, 293 Md. 113, 442 A.2d 558 (1982), on the broad authority of local liquor boards to impose restrictions on licenses
• Montgomery County v. Board of Supervisors, 53 Md. App. 123, 451 A.2d 1279 (1982), holding county voters could not eliminate state-granted county authority over alcohol sales
• Kaczorowski v. City of Baltimore, 309 Md. 505, 515, 525 A.2d 628 (1987), on construing statutory language in light of the whole statutory scheme
• State v. One 1983 Chevrolet Van, 309 Md. 329, 524 A.2d 51 (1987), and Scott v. State, 297 Md. 235, 465 A.2d 1126 (1983), cited alongside Kaczorowski on statutory construction principles

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/1990/Volume75_1990.pdf (this opinion appears at printed pages 57-61 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

ALCOHOLIC BEVERAGES

Liquor Licensing — Calvert County Board of License Commissioners May Not Issue Restricted License That Effectively Creates a Type of License Not Permitted in a County

January 8, 1990

John C. Prouty, Esquire

 As counsel for the Calvert County Board of License Commissioners, you have requested our opinion on the legality of a particular type of restricted liquor license for which application has been made. The applicant, a grocery store/delicatessen, desires to sell beer and light wine only for consumption off the premises.

 You point out that the Calvert County Board has no specific authority to issue a license of this type. Instead, the applicant proposes that the board issue a Class A license (beer, wine and liquor), subject to the restriction that no liquor be sold. You indicate that the board's authority to do so is not clear and you have asked us to resolve seemingly conflicting authority on the matter through issuance of an opinion.

 For the reasons stated below, we conclude that, notwithstanding the board's general authority to issue restricted licenses, it is not allowed to issue the type of license sought in this case, a de facto Class A beer and light wine license that is achieved through issuance of a Class A beer, wine and liquor license, with a simultaneous restriction eliminating the right to sell liquor.

I

Background

 The sale and consumption of alcoholic beverages in Maryland is controlled by Article 2B of the Maryland Code. Article 2B contains a detailed (not to say exhaustive) scheme for regulating alcoholic beverages. The general purpose of Article 2B is expressed in §§1 and 3; taken together, these sections reverse, for the liquor trade, the common approach in law toward the conduct of ordinary business affairs.

 That normal approach is to view a particular course of conduct as legal and permitted unless it is forbidden. Article 2B, in contrast, expressly forbids most types of activity relating to liquor unless done "(i) by a consumer or (ii) by a licensee as provided in this article...." §3(a).1 The statutory scheme is, in the words of Green v. State, 170 Md. 134, 139, 183 A. 526 (1936), "prohibitory" as well as "regulatory"; and we need not describe the history of the American temperance movement or the 18th and 21st amendments to the United States Constitution to convey the import of this philosophy. See generally 45 Am. Jur. 2d Intoxicating Liquors §§22 and 24, at 500-503 (1969).

 Article 2B provides for a great variety of licenses to be issued and the methods by which they are issued. The statutory scheme, in general, is that licenses for the retail trade (on- or off-premises) are issued upon approval by the county liquor boards or authorities; that the counties (or Baltimore City) differ greatly in the various types of licenses they are allowed to issue, or the fees they are allowed to collect; and that these types of licenses, differing by county, are all set forth in Article 2B.

 For example, §8 allows the issuance of a Class A Beer license for consumption off the premises. It provides for different fees depending upon the county of issuance and imposes additional restrictions upon place of issuance in some of the counties. It also provides that this type of license may not be issued at all in some local jurisdictions. §8(n). A similar pattern occurs throughout the license law. Compare, e.g., §12A with §12B (light wine only licenses).

 Section 13 provides for issuance of licenses allowing the sale of beer and light wine for consumption off the premises; it is structured in an identical fashion. It provides for the conditions of license issuance on a county by county basis. Section 13(n) specifically provides that such beer and light wine licenses may not be issued in several named counties, including Calvert County.

 The question is therefore whether other statutory language generally providing that "licenses shall be subject to ... restriction," §72(a), overcomes this prohibition.2 We conclude that it does not.

II

Analysis

 The authority of local liquor boards to impose restrictions on licenses has been described as "broad." Sullivan v. Board of License Comm'rs, 293 Md. 113, 442 A.2d 558 (1982). The cases also recognize the obvious pattern of Article 2B: Although much authority is delegated to particular localities, such delegation is only pursuant to a particular State statute. See, e.g., Montgomery County v. Board of Supervisors, 53 Md. App. 123, 451 A.2d 1279 (1982) (county voters not authorized to eliminate State-granted authority to county to sell alcoholic beverages.)

 The purpose of statutory construction is to give effect to the "legislative purpose or goal." Kaczorowski v. City of Baltimore, 309 Md. 505, 515, 525 A.2d 628 (1987). It is generally the rule that in doing so one must consider not only the plain meaning of the statutory words (here, the authority to impose "restrictions") but also the context of the statutory scheme taken as a whole, so as to make all pertinent provisions work together in harmony. See Kaczorowski, 309 Md. at 511-515; State v. One 1983 Chevrolet Van, 309 Md. 329, 524 A.2d 51 (1987); Scott v. State, 297 Md. 235, 465 A.2d 1126 (1983).

 In this light, the construction of §72(a) sought by the applicant would defeat the clear prohibition of §13(n); it would allow a local board to expand the types of licenses that the board is allowed to issue, notwithstanding an express legislative prohibition against a particular type of license and an overall legislative intent that only the General Assembly is to decide the types of licenses available in any particular jurisdiction. We do not believe that the power to "restrict" a license was intended to have this result.

 A similar conclusion was reached in 44 Opinions of the Attorney General 225 (1959). There, an applicant sought a seven-day tavern license that ordinarily allowed both on- and off-premises sale, but the applicant was willing to agree that the license would be restricted to off-premises sale only.

 The Attorney General pointed out that "the law does not permit the operation of a package goods store on Sunday in Anne Arundel County. This being the case, we do not believe that the Board has the authority to achieve the same result by issuing a tavern license which, on its face, permits the sale of beer and light wine seven days a week for both on-premises and off-premises consumption, upon the understanding that the licensee will in fact not operate a tavern but only a package goods store." 44 Opinions of the Attorney General at 226-27. That arrangement, the Attorney General wrote, would permit the local board "to accomplish by indirection that which it is not authorized to accomplish directly and to create an entirely new kind of license by its own fiat." 44 Opinions of the Attorney General at 227.

 The opinion correctly noted that other restrictions must be judged according to their own circumstances. We reaffirm this view and point out that we are not opining on the general power of local boards to impose restrictions on the manner and mode of operation of licensed establishments. See generally Opinion No. 79-014 (March 6, 1979) (unpublished). Such power, undoubtedly possessed, nevertheless does not include authority to issue a type of license that the General Assembly has expressly stated cannot be issued in a specific county.

III

Conclusion

 In summary, it is our opinion that the Calvert County Board of License Commissioners may not create the equivalent of a license for the sale of beer and wine only off the premises through a restriction on the grant of a Class A (beer, wine and liquor) license.

                                    J. Joseph Curran, Jr.
                                    Attorney General

                                    John K. Barry
                                    Assistant Attorney General

                                    Jack Schwartz
                                    Chief Counsel
                                      Opinions & Advice

Editor's Note:

 Chapter 178 (House Bill 779) of the Laws of Maryland 1993 created a Class A beer and light wine license in Calvert County.

1
All statutory references in this opinion are to Article 2B.

2
Section 72(a) provides in full as follows: "Licenses issued under provisions of this article shall not be regarded as property or as conferring any property rights. All such licenses shall be subject to suspension, restriction or revocation, and to all rules and regulations that may be adopted as herein provided". See also Article 2B, §§l(a)(3) and 68(b).