In a Maryland county with its own liquor board, who actually issues an alcoholic beverages license, the board or the clerk of the circuit court?

Plain-English summary

Charles County's attorney asked the Attorney General in 1990 to sort out a puzzle in Maryland's liquor licensing statute, Article 2B: some provisions said alcoholic beverages licenses "shall be issued by the clerk of the circuit court," while a separate provision said the county's board of license commissioners was "authorized and empowered to issue" those same licenses. The question mattered practically, because the board was considering taking over the fee collection and physical delivery of licenses that the clerk's office had been handling, and needed to know whether that shift was allowed, or whether it was already required.

The Attorney General concluded that the statute used the word "issue" in two different senses that, together, described a two-step process rather than a genuine conflict. The board "issued" a license in the sense of deciding whether to approve or deny the application, holding any required hearing, and certifying an approval to the clerk. The clerk then "issued" the license in the sense of collecting the required fee and physically handing over the license itself, but only after the board had approved the application; the clerk had no independent authority to grant or deny a license. The opinion traced this division to the 1947 law that created Maryland's modern liquor licensing system and to later amendments that gave a few specific counties, such as Prince George's and Carroll, express authority to shift the fee-collection and delivery role from the clerk to the board, which the opinion read as confirming that no county could make that shift on its own without similar express legislative authorization.

Currency note

This opinion was issued in 1990 and interpreted Article 2B's license-issuance provisions, including §60(a) and §158(a), as they stood at that time. The opinion itself notes that Chapter 594 (House Bill 1247) of the Laws of Maryland 1993 significantly modified the procedure for issuing alcoholic beverages licenses. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the division of duties between local liquor boards and clerks of the circuit court described here. Treat this page as historical context, not current legal advice. Verify the current version of Article 2B's license-issuance procedure before relying on any specific rule described here.

Common questions

In 1990, could a Maryland county liquor board just start collecting license fees and handing out licenses itself, without the clerk of court's involvement?
Not without specific legislative authorization, according to this opinion. The Attorney General found that only the General Assembly could shift those ministerial duties from the clerk to the board, as it had already done by name for a small number of counties like Prince George's and Carroll.

What was the difference between the board's role and the clerk's role in issuing a Charles County liquor license under this opinion?
The opinion described the board as responsible for the discretionary decision of approving or denying an application and certifying any approval, while the clerk was responsible only for the ministerial tasks of collecting the fee and delivering the physical license once the board had approved it.

Background and statutory framework

Article 2B set out the general procedure for issuing alcoholic beverages licenses in counties with a board of license commissioners: an application was filed with the board under §54(a), the board published notice and held a hearing and made findings on possible reasons to deny the application under §60(a), and if the board found no reason to disapprove, it issued a certificate of approval for the clerk of the circuit court, who then issued the license upon payment of the required fee. Article 2B, §§148 through 158 set out administrative provisions for the boards, and §158(a) stated broadly that the boards were "authorized and empowered to issue" the licenses provided for in the article.

The opinion explained that these various provisions, along with §69(a)'s general licensing procedure, were all enacted together by Chapter 501 of the Laws of Maryland 1947, the law that established Maryland's modern alcoholic beverages licensing system, and so had to be read as consistent with one another rather than in conflict, applying the statutory-construction principle from Kaczorowski v. City of Baltimore that provisions on the same subject matter should be read together. The opinion pointed to later, county-specific amendments, Chapter 301 of the Laws of Maryland 1966 for Prince George's County and Chapter 98 of the Laws of Maryland 1987 for Carroll County, as evidence that the General Assembly itself believed express legislation was necessary to shift the ministerial fee-collection and delivery role from the clerk to a board, reinforcing that §60(a)'s default division of labor was mandatory absent such express authorization.

Citations and references

Statutes:

• Article 2B, §60(a), establishing the board's notice, hearing, and approval-certification procedure and the clerk's fee-collection and delivery role
• Article 2B, §54(a), requiring a license application to be filed with the board, or the clerk if there is no board
• Article 2B, §61, the parallel application procedure in counties without a board of license commissioners
• Article 2B, §63, requiring the clerk to remit collected license fees, less a commission, to the appropriate jurisdiction
• Article 2B, §§148 through 158, the administrative provisions governing county boards of license commissioners
• Article 2B, §158(a), authorizing the boards to "issue" alcoholic beverages licenses in their jurisdictions
• Article 2B, §§8(a), 13(a), and 18(a), provisions stating that licenses "shall be issued by the clerk of the circuit court"
• Article 2B, §69(a), the general licensing procedure enacted alongside the other 1947 provisions
• Article 2B, §3(a), requiring payment of fees and taxes before an alcoholic beverages business may operate
• Article 2B, §§5 and 23, the manufacturer's and railroad licenses issued solely at the state level by the Comptroller
• Chapter 501 of the Laws of Maryland 1947, establishing Maryland's modern alcoholic beverages licensing system
• Chapter 301 of the Laws of Maryland 1966, giving Prince George's County its own fee-and-record procedure
• Chapter 98 of the Laws of Maryland 1987, authorizing the Carroll County board to issue certain licenses directly
• Chapter 594 (House Bill 1247) of the Laws of Maryland 1993, later modifying the license-issuance procedure

Cases:

• Kaczorowski v. City of Baltimore, 309 Md. 505, 516, 525 A.2d 628 (1987), on reading statutes covering the same subject matter together, and at 518, on construing a statute to avoid unreasonable results

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 62-66 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 — Licenses — Board of License Commissioners — Clerk of the Circuit Court — Allocation of Responsibilities Related to Issuance of License

May 29, 1990

Thomas C. Hayden, Esquire
County Attorney for Charles County

 You have requested our opinion on whether alcoholic beverages licenses in Charles County are to be issued by the Board of License Commissioners of Charles County or by the Clerk of the Circuit Court for Charles County.

 For the reasons given below, we conclude that in Charles County the board must perform the discretionary act of approving or disapproving a license application and, if it approves an application, must certify that approval to the clerk. However, the clerk must perform the ministerial acts of collecting the license fee and delivering the license itself in accordance with the board's approval.

I

Background

 The provisions of Article 2B of the Maryland Code that create various locally issued classes of alcoholic beverages licenses provide that those licenses "shall be issued by the clerk of the circuit court of the county in which the place of business is located ...." See, e.g., Article 2B, §§8(a) (class A beer license), 13(a) (class A beer and light wine license), and 18(a) (class A beer, wine, and liquor license).1

 However, Article 2B, §54(a) requires that an application for an alcoholic beverages license "shall be filed with the board of license commissioners, if any, or the clerk of the circuit court of the county in which the place of business is to be located, if there be no such board." Article 2B, §60(a) establishes the general procedure for approval of a license application by a board of license commissioners, requiring the board to publish notice of the application, hold a public hearing, and make findings as to the existence of reasons to deny the application.2 If the board does not find reasons to disapprove the application:

      [T]he board shall issue its certificate of approval for presentation to the clerk of the court of the county in which the place of business is to be located. The clerk shall issue the license applied for upon presentation of the certificate, and the payment of the fee required. In Carroll County, if the board approves the application, the board shall issue the license upon payment to the board of the fee required. For purposes of this article, in Carroll County the term "clerk" shall be deemed to mean "board of license commissioners". In Prince George's County, the certificate of approval may not be presented to nor payment made to the clerk of the court. If no such findings are made by the board, then the application shall be approved and the board shall issue the license applied for, after payment of the required fee to the treasurer of Prince George's County, and the board shall maintain a record of licenses issued.3

 The administrative provisions concerning the boards of license commissioners in the various counties are set out in Article 2B, §§148 through 158. The enumeration of the boards' powers in §158 specifically provides that "[t]he several boards of license commissioners herewith are authorized and empowered to issue the alcoholic beverages licenses provided for by this article in their respective jurisdictions." Article 2B, §158(a).

 In Charles County, the procedure for issuing alcoholic beverages licenses currently followed is that established by §60(a). The person desiring a license files an application with the board of license commissioners. If the board determines that the license should be issued, the board provides the applicant with a certificate evidencing its approval, which the applicant presents to the clerk of the circuit court. Upon payment of the prescribed fee, the clerk delivers the license to the applicant.

 Some consideration has been given to the board's taking over collection of the fees and delivery of the licenses, giving rise to a question of the board's authority to perform those functions. The converse question has also been raised, whether the board in actuality is required to handle those matters as part of its responsibility for issuing alcoholic beverages licenses.

II

Analysis

 These questions regarding the respective powers and duties of the clerks of the circuit court and the boards of license commissioners arise from the apparent conflict between the various provisions creating different types of licenses, under which the licenses "shall be issued by the clerk of the circuit court," and §158(a), under which the boards "are authorized and empowered to issue the alcoholic beverages licenses provided for by this article ...." On the one hand, the first set of provisions appears to put the responsibility solely on the clerks, without exception for counties in which there is a board of license commissioners; on the other hand, §158(a) appears to put the responsibility solely on the board, without reference to any role of the clerk, in any county in which a board of license commissioners has been established.

 These various provisions, as well as §69(a)'s general procedure for issuing licenses, all were enacted by Chapter 501 of the Laws of Maryland 1947, which established the State's system for regulating sales of alcoholic beverages in essentially its present form. Hence, these provisions unquestionably were intended to be consistent with each other. See Kaczorowski v. City of Baltimore, 309 Md. 505, 516, 525 A.2d 628 (1987) (statutes concerning same subject matter should be read together).

 We think that the apparent conflict stems from the fact that the term "issue," with regard to licenses, is capable of being used (and in Article 2B evidently was used) in two ways: to refer to the formal decision to approve an application for a license and to refer to the physical delivery of the license itself to a successful applicant. In counties without boards of license commissioners, both the decisionmaking and delivery aspects of license issuance are performed by the clerk of the circuit court. However, we believe that §60(a) evidences the legislative intent that, in counties that have boards of license commissioners, those two aspects of license issuance are separated. The board "issues" the license in the sense that it decides whether the license should be granted, and the clerk may not deliver a license without the board's approval; at the same time, the clerk in those counties "issues" the license in the sense that he or she delivers the actual license, the physical evidence of the board's approval in return for the licensee's payment of the required fees and taxes, without which an alcoholic beverages business may not be conducted. Article 2B, §3(a).

 Moreover, we think that the provisions of §60(a) evidence a further legislative intent that neither the board nor the clerk may perform the function of the other without express statutory authorization. As originally enacted, §60(a) did not include any special provisions for particular counties. See Chapter 501, Laws of Maryland 1947 at 940-41 (enacting former Article 2B, §52(a)). The provision eliminating any role for the clerk in Prince George's County and requiring that the license fee be paid to the county treasurer was enacted by Chapter 301 of the Laws of Maryland 1966. The title of that act states that it was enacted for the purpose of "changing the procedure by which alcoholic beverages licenses are issued, the fees for the same are paid for, and the record for the same is maintained." The provisions regarding Carroll County were enacted by Chapter 98 of the Laws of Maryland 1987, an act "authorizing the Board of License Commissioners of Carroll County to issue certain licenses ...." That the General Assembly believed it necessary to enact these express provisions to transfer the ministerial aspect of license issuance from the clerk to the board in these counties reflects the General Assembly's understanding that the procedure established by §60(a) is mandatory and may be diverged from only pursuant to express authorization.

 To be sure, the procedure established by §60(a) is less streamlined than approval of a license application, collection of the license fee, and delivery of the license by a single entity. Nonetheless, §60(a)'s procedure is by no means so cumbersome that it could not reasonably have been intended. Cf. Kaczorowski, 309 Md. at 518 (statute should be construed to avoid unreasonable results). Indeed, the General Assembly may well have concluded that boards of license commissioners are generally better equipped than clerks of the circuit courts to hold hearings, while clerks, already required to collect various fees and keep a variety of records, are generally better equipped to handle the ministerial aspects of license issuance.

III

Conclusion

 In sum, it is our opinion that the Board of License Commissioners of Charles County must approve or disapprove alcoholic beverages license applications and, if it approves an application, certify its approval to the Clerk of the Circuit Court for Charles County. The Clerk must collect the prescribed license fee and deliver the license itself to the successful applicant.

                                         J. Joseph Curran, Jr.
                                         Attorney General

                                         C. J. Messerschmidt
                                         Assistant Attorney General

                                         Jack Schwartz
                                         Chief Counsel
                                           Opinions & Advice

Editor's Note:

 The procedure for the issuance of alcoholic beverages licenses was significantly modified by Chapter 594 (House Bill 1247) of the Laws of Maryland 1993.

1
Some kinds of licenses are issued solely on the State level, by the Comptroller of the Treasury. See, e.g., Article 2B, §§5 (manufacturer's license) and 23 (beer, wine, and liquor license for railroads).

2
In counties where there is no board of license commissioners, the procedure to be followed is that set out in §61, under which the application is received by the clerk of the circuit court, who must publish notice of the application and issue the license if no timely and proper written protest of its issuance is received.

3
Article 2B, §63 requires the clerk of the circuit court to remit the license fee, less a commission for collecting the fee, to the jurisdiction for which the fee was collected.