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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2666 September Term, 1999

BALTIMORE COUNTY LICENSED BEVERAGE ASSOCIATION, INC., ET AL.

v. LEE S. KWON, ET AL.

Sonner, Byrnes, Bishop, John J. (Ret'd., Specially Assigned), JJ.

Opinion by Byrnes, J.

Filed: November 9, 2000

The

Board

of

Liquor

License

Commissioners

for

Baltimore

County ("the Board") denied an application by Lee S. and Hea S. Kwon and Yorktowne Liquors, Inc., appellees, to transfer a Class A (Beer, Wine, Liquor) off-sale alcoholic beverages license to a new location. that decision. The Circuit Court for Baltimore County reversed The Baltimore County Licensed Beverage

Association, Inc. ("BCLBA") appealed, presenting the following questions for review, which we have rephrased and renumbered: I. Did the Board properly consider the issue of public accommodation in the Kwons' application to transfer their liquor license to a new location, and, therefore, did the circuit court err in ruling that public accommodation inquiry was impermissible? Did the circuit court err in ruling that evidence that the numerical and population requirements of the Board's Rule 19 were satisfied establish, in and of itself, that the transfer was necessary for public accommodation at the proposed new license site? Was the Board's denial of the Kwons' application proper, within the Board's expertise and sound discretion on a factual issue, and in the public's best interest, and, therefore, did the circuit court err in substituting its judgment and reversing the Board's decision?

II.

III.

All of the questions presented by the BCLBA ask, at least in part, whether the circuit court erred in its decision. "our function in reviewing an administrative decision, Yet, `is

precisely the same as that of the circuit court.'"

Carriage

Hill Cabin John, Inc., v. Maryland Health Resources Planning Comm'n, 125 Md. App. 183, 211, 724 A.2d 745, 759 (1999) (quoting Department of Mental Health & Hygiene v. Shrieves, 100 Md. App. 283, 303-04, 641 A.2d 899 (1994)); Department of Human Resources v. Thompson, 103 Md. App. 175, 188 (1995). We review the

agency's decision itself.

Therefore, to the extent that the

questions presented ask whether the circuit court erred, we will not address the point, but will focus instead on the propriety of the agency's action. Because questions I and II are

interrelated, we will discuss them together.

FACTS AND PROCEEDINGS
Mr. and Mrs. Kwon are the individual licensees on the liquor license in question, for the benefit of Yorktowne Liquors, Inc., a corporation that they own.1 For seven years, the Kwons owned

and operated a liquor store in the Yorktowne Shopping Center, at 114 Cranbrook Road, in Cockeysville, in the 8th election district in Baltimore County. During the last several years, Giant

Foods, the major tenant of the shopping center, moved and many other stores closed. decrease in customer in As a consequence, there was a substantial traffic the to the shopping center, and a in

consequent

decline

Kwons'

business.

In

addition,

We will refer to the Kwons, individually, and Yorktowne Liquors, Inc., collectively, as "the Kwons." -2-

1

early 1998, the shopping center's landlord told the Kwons that, to accommodate planned renovations to the shopping center, they would have to relocate their business to a storefront situated in an area of the center with even lower customer traffic. At that point, the Kwons decided that it would be best for them to move their business to another shopping center within the 8th election district. Accordingly, they filed an

application with the Board to transfer their liquor license from the Yorktowne Shopping Center address to the Fairgrounds Plaza Shopping Center, at 41 West Aylesbury Road, in Timonium. The

Fairgrounds Plaza Shopping Center is a new shopping center that includes a Super Fresh grocery store and other specialty shops. It is located 1.8 miles from the Yorktowne Shopping Center. On June 21, 1999, the Board held a hearing on the Kwons' application to transfer their liquor license from the

Cockeysville location to the Timonium location.

At the hearing,

the Kwons presented both lay and expert testimony on the "need" for the liquor license at the new site. Richard Darrell, the

leasing agent for Fairgrounds Plaza Shopping Center, testified as an expert on real estate and commercial development in the area. Gerard Patnode also testified for the Kwons as an expert Messrs. Darrell and

in demographics, marketing, and economics.

Patnode indicated that Fairgrounds Plaza Shopping Center would

-3-

draw patrons from a three-mile radius and that the surrounding area was heavily populated and easily accessible. explained that, in while the the population in the area Mr. Patnode had of grown liquor new

substantially licenses had

preceding

decade, He

the

number that

remained the had

unchanged.

opined would

the

location for better center than of

Kwons' liquor the old and

store

serve

the

public in the also

location in

because flow.

of

changes The

population

traffic

Kwons

produced a petition signed by area residents who supported the liquor store at the new location.2 The BCLBA presented the testimony of liquor license holders in the vicinity of the Fairgrounds Plaza Shopping Center along the York Road corridor. The general tenor of this testimony was

that a liquor store at the new location was not needed because the current license holders were able to adequately serve the public, i.e., customers were not left waiting in long lines. The license holders admitted, however, that they were concerned about increased competition that might result if the transfer application were granted. Moreover, there was evidence that two

Although some of the signatures on the petition were not from residents of the community, the vast majority, 72 out of 94, were from residents of the area surrounding the proposed location. -4-

2

of the license holders had themselves inquired about leasing space at the Fairgrounds Plaza Shopping Center. The BCLBA also presented the testimony of two members of the community. The first, Edward Kaufman, stated that he did not

believe there was a need for a liquor store at the new location because there were several stores in the area and there was not a long wait in these stores. The second community member,

Thomas Ragsdale, provided advertising services for one of the local licensees who was protesting the transfer. He stated that

a liquor store was not needed at the new location because lines were short and he always was waited on in a quick manner. The only other testimony presented by the BCLBA came from James Boyer, who testified in his capacity as President of the Lutherville-Timonium Recreation Council ("Recreation Council").3 He testified that the Recreation Council had formally and

unanimously voted to oppose the license transfer based on a lack of need for such a license. After hearing all of this testimony, the Board ruled that, while the Kwons had satisfied the other requirements for the transfer of their license, they had not shown that the transfer was necessary for the accommodation of the public. reason, the Board denied the Kwons' application. For this

3

Mr. Boyer did not testify in his individual capacity. -5-

The

Kwons

filed

a

petition

for

judicial

review

in

the

Circuit Court for Baltimore County.

While the case was pending

in the circuit court, the Kwons learned that the LuthervilleTimonium Recreation Council had not formally voted to oppose the application. issue from The the circuit parties court and reviewed affidavits minutes on of this the

reviewed

the

Recreation Council.

It concluded that Mr. Boyer's testimony

before the Board was "patently false." As we have indicated, the circuit court reversed the

decision of the Board.

It concluded that the Board had applied

an incorrect standard for determining whether the transfer was necessary for the accommodation of the public. Although we do not agree with the circuit court's analysis in its entirety, we shall affirm its judgment for the following reasons.

DISCUSSION
STANDARD OF REVIEW The standard of review for an appeal from a local liquor licensing board is governed by Md. Code (1957, 1998 Repl. Vol., 2000 Supp.) Art. 2B,

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