Board of License Commissioners v. Corridor Wine, Inc.

KRAUSER, J. After pleading guilty to selling an alcoholic beverage to “a person under [twenty-one] years of age” in violation of Md. Code (1957, 2001 RepLVol., 2002 Supp.), Art. 2B, § 12-108, an employee of appellee, Corridor Wine, Inc., t/a Corridor Wine & Spirits, was granted probation before judgment in the District Court of Maryland for Anne Arundel County. That led the Board of License Commissioners for Anne Arundel County to begin administrative proceedings against Corridor Wine for violating both § 12-108 and its rules. At the administrative hearing that followed, Corridor Wine argued that the probation before judgment, granted by the district court, barred the Board from proceeding administratively against it, as a licensee, under § 12-108(a)(3)(iv). That subsection prohibits the Board from taking any administrative action against a licensee for violating the provisions of § 12-108, if the licensee’s employee received “probation without a verdict,” the statutory precursor to probation before judg ²⁷⁸ ment.

Rejecting that argument, the Board found Corridor Wine in violation of § 12-108 and the Board’s rules and suspended its liquor license. When that decision was reversed by the Circuit Court for Anne Arundel County, the Board noted this appeal. The Board now renews its claim that § 12-108(a)(3)(iv) does not bar it from proceeding administratively against a licensee-in this instance, Corridor Wine-who sells liquor to someone under the age of twenty-one when that licensee or its employee has been granted “probation before judgment” instead of “probation without a verdict,” as prescribed by § 12-108(a)(3)(iv). The Board also reasserts its claim that, regardless of how that subsection is interpreted, it may proceed against Corridor Wine for violating the Board’s own rules.

As we find no more merit in either contention than the circuit court did, we shall hold that that court correctly concluded that, for purposes of Article 2B, § 12 — 108(a)(3)(iv), “probation without a verdict” is the same as “probation before judgment” and that the Board was thus barred by § 12-108(a)(3)(iv) from proceeding against Corridor Wine for conduct violating § 12-108 as well as its own rules. Facts On October 2,1998, Elizabeth Bernadette Ivey, an employee of Corridor Wine, was issued a criminal citation for selling an alcoholic beverage to a person under the age of twenty-one in violation of Article 2B, § 12-108. On November 24,1998, Ivey pleaded guilty to that offense and, after receiving a suspended fine of five hundred dollars, was placed on probation before judgment. That same day, a hearing was held before the Board to determine the proper administrative sanction for Corridor Wine’s violation of Article 2B, § 12-108 and the Board’s rules.

At that hearing, Corridor Wine argued that the probation before judgment deprived the Board of the authority to proceed against it for violating § 12-108 and the applicable rules of the Board. Corridor Wine’s argument rested on § 12-108(a)(3)(iv), which bars the Board from proceeding adminis ²⁷⁹ tratively against a licensee, if either the licensee or its employee receives “probation without a verdict” for violating § 12-108. Upon Corridor Wine’s request, the Board continued the hearing so that all parties could research the issues. When the hearing resumed on December 8, 1998, Corridor Wine made the same argument, asserting that probation before judgment is, for the purpose of § 12-108(a)(3)(iv), tantamount to probation without verdict and that the Board therefore lacked the authority, under that subsection, to sanction it.

Unpersuaded, the Board stated that “a probation before judgment is not the functional equivalent of a probation without verdict,” pointing out that the former involves a finding of guilt, while the latter does not. The Board further explained that § 12-108 “refers to a not guilty verdict, or a probation before verdict,” and that, in this case, Corridor Wine’s employee had pleaded guilty. Before the hearing could proceed further, Corridor Wine requested a continuance when it became apparent that a key witness, who had been involved in the alleged sale, was not present. That request was granted.

Before the Board could reconvene, Corridor Wine filed a Verified Petition for Writ of Certiorari in the Circuit Court for Anne Arundel County, requesting a determination by that court as to whether the Board could proceed against Corridor Wine. That petition was granted and further administrative proceedings were stayed. After hearing argument on that issue, the Honorable Ronald A. Silkworth concluded, in a well-reasoned written opinion, that the Board “lacks jurisdiction to proceed in the pending administrative matter against” Corridor Wine and remanded the case to the Board with instructions to dismiss it. Following that decision, the Board noted an appeal to this Court.

But before argument could be heard, the Court of Appeals, on its own motion, granted certiorari. Bd. of License Comm’r v. Corridor Wine, Inc., 361 Md. 403 , 761 A.2d 916 (2000). Reversing the circuit court, the Court of Appeals held that “a common law certiorari action does not lie under the ²⁸⁰ circumstances of this case” and that, consequently, “Corridor was required to await a final administrative decision before seeking judicial review in the Circuit Court.” Id. at 410 , 761 A.2d 916 . Without reaching “the correct interpretation of Art. 2B, § 12-108(a)(3)(iv),” it remanded this case to the circuit court “with directions to quash the writ of certiorari and dismiss the action.” Id. at 410, 419, 761 A.2d 916 .

On remand the Board reaffirmed its decision that the grant of probation before judgment by the district court did not bar it from proceeding against Corridor Wine administratively. It then found Corridor Wine in violation of § 12-108 and the Board’s rules and suspended Corridor Wine’s liquor license for three days. On July 26, 2001, Corridor Wine filed a petition for judicial review of the Board’s decision in the Circuit Court for Anne Arundel County. On January 28, 2002, Corridor Wine and the Board appeared before the Honorable Joseph P. Manck.

Following a hearing on this issue, Judge Manck adopted, in a written opinion, the decision of Judge Silkworth and reversed the Board’s decision. Discussion I. The Board contends that § 12-108(a)(3)(iv) does not preclude it from proceeding against Corridor Wine, pointing out that Corridor Wine’s employee was placed on probation before judgment and not probation without a verdict, the only disposition mentioned by that subsection. At issue here is the validity of that interpretation. Initially, we note that “[questions of statutory interpretation are questions of law, and an agencys interpretation of a statute normally is given little weight in determining the judicial construction of that statute.” Balt.

County Licensed Beverage Ass’n v. Kwon, 135 Md.App. 178, 189 , 761 A.2d 1027 (2000)(citing Balt. Bldg. & Constr. Trades Council v. Barnes, 290 Md. 9, 14-15 , 427 A.2d 979 (1981)). In other words, the Board’s interpretation of § 12-108 is not entitled to deference ²⁸¹ by this Court.

Bozeman v. Disability Review Bd. of the Prince George’s County Police Pension Plan, 126 Md.App. 1, 5 , 727 A.2d 384 (1999). Unencumbered by the Board’s interpretation of that subsection, we begin our analysis with a brief review of § 12-108 and its pertinent subsections. Subsection 12-108(a) prohibits a licensee or its employee from selling alcoholic beverages to a person under the age of twenty-one. But § 12-108(a)(3)(iv) bars the Board of License Commissioners from proceeding administratively against that licensee, if either the licensee or its employee has been “found not guilty, or placed on probation without a verdict” for violating § 12-108(a).

Article 2B, § 12-108(a)(3)(iv) provides: Except as otherwise provided in this section, if any licensee or employee of the licensee is 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 against the licensee on account of the alleged violation. The term “probation without a verdict” in § 12-108(a)(3)(iv) refers to a disposition under Article 27, § 641, designated as “probation without finding a verdict,” before that section was amended in 1975; at that time, the phrase “probation without finding a verdict” was replaced with “probation prior to judgment.” It was later revised again, to the phrase now in effect: “probation before judgment.” Subsections 12-108(e) and (f) provide that the boards of Queen Anne’s, Dorchester, Garrett, Howard, Kent, Montgomery, and St. Mary’s counties, are not barred from proceeding against a licensee for violating 12-108(a), even if it or any of its employees receive probation before judgment. Subsection (e) states: Notwithstanding any other provision of this section to the contraiy, in Queen Anne’s County, if any licensee or employee of the licensee is placed on probation before judgment for any alleged violation of subsection (a) of this ²⁸² section, this finding may not operate as a bar to any proceeding brought by the Board of License Commissioners against the licensee on account of the alleged violation. And subsection (f) states: (1) This subsection applies in the following jurisdictions: (1) Dorchester County; (ii) Garrett County; (iii) Howard County; (iv) Kent County; (v) Montgomery County; and (vi) St. Mary’s County.

(2) The granting of probation before judgment to a licensee or employee of the licensee for violating subsection (a) of this section does not bar the Board of License Commissioners from proceeding administratively against the licensee for the violation. We hardly need point out that the Anne Arundel County board is not listed among those county boards; it therefore remains, at least as far as Corridor Wine is concerned, subject to the prohibition in § 12-108(a)(3)(iv) which bars a county board from proceeding administratively against a licensee if the licensee or its employee received probation without verdict for violating subsection (a). But this of course is only true if probation before judgment is tantamount to probation without verdict for purposes of § 12-108(a)(3)(iv). As noted above, § 12-108(a)(3)(iv) refers to probation without verdict, a disposition found in Article 27, § 641, prior to its amendment in 1975, and not to probation before judgment.

The pre-1975 amendment version of Article 27, § 641 stated in part: Before the conviction of a person accused of crime, including but not limited to a person who has pleaded guilty or nolo contendere, a court exercising criminal jurisdiction may place the person on probation without finding a verdict, if the person consents in writing. The court may impose the conditions of probation it deems proper. ²⁸³ Md.Code (1957, 1971 Repl.Vol., 1974 Cum.Supp.)(emphasis added). This statute “authorized a court, with the accused’s consent before conviction or without such consent after a finding of guilt, to place the person on probation without finding a verdict or to suspend the imposition of sentence and, in either instance, to impose conditions.” State v. Hannah, 307 Md. 390, 397 , 514 A.2d 16 (1986). And “[s]hould the probation thus granted be revoked at a subsequent hearing for that purpose, the case reverts to its status at the time the probation was granted, and determination of guilt, by plea or trial,” would have to follow before any sentence could be imposed.

Bartlett v. State, 15 Md.App. 234, 241 , 289 A.2d 843 (1972), aff'd, 267 Md. 530 , 298 A.2d 16 (1973). In 1975, the legislature revised Article 27, § 641, by, among other things, replacing “probation without finding a verdict” with “probation before entering judgment.” 1975 Md. Laws, Chap. 527. This change was to “eliminate the need for a full trial on the merits,” upon a violation of the probation without verdict. Fiscal Note to H.B. 1060 (1975).

It was intended “to preclude an errant probationer from simultaneously violating his probation and re-donning the cloak of presumed innocence.” Stevens v. State, 27 Md.App. 460, 463 , 340 A.2d 717 (1975). This change in § 641 “virtually eliminate[d] probation without verdict in the orthodox sense.” Id. Article 27, § 641(a) now provided: Whenever a person accused of crime pleads guilty or nolo contendere or is found guilty of an offense, a