Coalition for Open Doors v. Annapolis Lodge No. 622

ELDRIDGE, Judge. The principal issue in this case is whether the City of Annapolis has authority to enact an ordinance which conditions the grant or renewal of a license for a private club to sell alcoholic beverages upon proof that the club not discriminate in its membership policies on the basis of race, gender, ³⁶² religion, physical handicap, or national origin. The Circuit Court for Anne Arundel County held that, in enacting such an ordinance, the City of Annapolis exceeded the powers delegated to the City by the General Assembly in Maryland Code (1957, 1990 Repl. Vol., 1993 Cum.Supp.), Art. 2B. 1 The circuit court further held that the local ordinance conflicted with the Maryland public accommodations law. 2 Finding ourselves in disagreement with both of these holdings, we shall reverse the judgment of the circuit court.

I. Annapolis Lodge No. 622, Benevolent and Protective Order of Elks (“Annapolis Lodge”) is a non-stock/non-profit Maryland corporation. It is also a subordinate entity within a national fraternal organization, the Benevolent and Protective Order of Elks of the United States of America (“National Elks”). The National Elks limit membership to male citizens of the United States; women are not permitted to be members. The Elks’ male-only policy is binding on each subordinate lodge, and the by-laws of the Annapolis Lodge require that a member be male.

The Annapolis Lodge holds a Class C (club class) alcoholic beverage license to operate a cocktail lounge on the premises of its Annapolis clubhouse. The lounge serves members of the Annapolis Lodge, their guests, wives, and dependents, as well ³⁶³ as members of the Lodge’s Women’s Auxiliary. 3 According to an affidavit filed in this case by an officer of the Annapolis Lodge, the lounge does not serve members of the general public. On April 9, 1990, the Annapolis City Council enacted Ordinance 0-11-90 Revised, which provides, in relevant part, as follows: “Sec. 7.12.430. DISCRIMINATORY PRACTICE PROHIBITED.

A. An establishment licensed under the [various club class] provisions ... shall not exclude from membership solely on the basis of race, sex, religion, physical handicap or national origin in its membership.” 4 Under the ordinance, any new or renewal alcoholic beverage license application for a private club must “be accompanied by an affidavit declaring that the establishment for which the license is sought is not required by any organizational by-laws to engage in any [discriminatory] practice.” Code of the City of Annapolis (1986, Cum.Supp. No. 11, 1993), § 7.12.430(A)(1). The Annapolis Alcoholic Beverage Control Board is prohibited from issuing a license to a club that has not submitted the required documentation. § 7.12.430(A)(2). 5 ³⁶⁴ Citing the desire to provide certain clubs a reasonable period of time in which to comply with the new law, the Annapolis City Council passed Ordinance 0-57-90 on January 14, 1991, delaying the effective date of Ordinance 0-11-90 from January 1991, until September 1, 1991, for any club “which must apply to an international or national organization for a change in its by-laws, and which has demonstrated to the Alcoholic Beverage Control Board that it has made formal and complete application for an amendment to its bylaws to that international or national organization.” Thereafter, the Annapolis Lodge petitioned the National Elks for permission to amend its local by-laws so that women could be admitted to the Annapolis Lodge as members. The National Elks denied this request. Unable to submit the affidavit required by § 7.12.430(A)(1), and thus potentially precluded from renewing its alcoholic beverage license, the Annapolis Lodge filed this action in the Circuit Court for Anne Arundel County on September 3, 1991, against the City of Annapolis.

The Annapolis Lodge sought a declaratory judgment invalidating the ordinance and an injunction requiring the City to consider the Lodge’s license renewal application without regard to the ordinance. Subsequently, the Annapolis Lodge filed a motion for summary judgment, arguing that the ordinance was invalid on two alternative grounds. First, the Lodge contended that the City of Annapolis was without authority under Art. 2B of the Maryland Code to enact Ordinance 0-11-90. Second, the Lodge argued that the ordinance conflicted with state law, in that it prohibited activities which were expressly authorized ³⁶⁵ by the state public accommodations law.

The City of Annapolis agreed that there was no dispute as to any material fact, and the City requested summary judgment declaring that Ordinance 0-11-90 was valid. Following a hearing in the matter, the trial judge issued an opinion on April 16, 1992, in which he held the ordinance invalid on both grounds urged by the Annapolis Lodge. On April 29, 1992, the court issued a judgment declaring invalid Ordinance 0-11-90 and granting the Lodge’s requested injunction. The circuit court took the position that, while the “delegation under Art. 2B is quite broad,” City of Annapolis ordinances enacted pursuant to the authority granted by Art. 2B must have some relationship to the consumption of alcohol.

The court stated that Ordinance 0-11-90 failed this test because “the ordinance regulates nothing that happens in the lounge.” In addition, the circuit court’s opinion held that a provision of the state public accommodations law, Art. 49B, § 5(e), embodied the General Assembly’s intent to preclude a “lesser government” from regulating discrimination by private clubs. On May 11, 1992, a majority of the Annapolis City Council voted against taking an appeal from the circuit court’s judgment invalidating Ordinance 0-11-90 and enjoining its enforcement. 6 The City Council has not, however, repealed the ordinance. Four days after the City decided not to appeal, the Coalition for Open Doors, the Maryland Commission on Human Relations, and two female Annapolis residents filed a motion to intervene as defendants in the case. 7 The four ³⁶⁶ aldermen who had voted in favor of taking an appeal filed a separate motion to intervene as defendants. The movants’ purpose in seeking intervention was to prosecute an appeal.

In their memoranda and arguments before the circuit court, the movants appeared to rely on both Rule 2-214(a), relating to intervention as of right, and on Rule 2-214(b), relating to permissive intervention. The circuit court, without specifying whether it was acting under subsection (a) or subsection (b) of Rule 2-214, granted the motion to intervene filed by the Coalition for Open Doors, the Maryland Commission on Human Relations, Pamela Andersen and Carol Gerson. 8 The motion of the aldermen to intervene was denied. Both the intervenors and the Annapolis Lodge took appeals to the Court of Special Appeals. The intervenors appealed from the injunction and the declaratory judgment invalidating Ordinance 0-11-90.

The Lodge appealed from the circuit court’s order granting one of the motions to intervene. 9 This Court issued a writ of certiorari before any consideration of the appeals by the Court of Special Appeals, 328 Md. 462 , 615 A.2d 262 .

II

Initially, we shall address the Lodge’s challenge to the circuit court’s order allowing intervention for the purpose of ³⁶⁷ taking an appeal. The Annapolis Lodge argues that the trial judge erred because the motion to intervene was not timely filed. Citing some federal court decisions, the Lodge states that “[a]n analysis of the federal cases where post-judgment intervention has been allowed reveals that the federal courts have permitted such intervention only in exceptional circumstances.” (Annapolis Lodge’s brief in this Court at 24). Contending that no “exceptional circumstances” were present here, the Lodge argues that “the trial judge abused his discretion when he granted the motion to intervene.” (Ibid.).

Maryland Rule 2-214 governs intervention in the circuit courts. The Rule provides in pertinent part as follows: “(a) Of Right. — Upon timely motion, a person shall be permitted to intervene in an action: ... (2) when the person claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest unless it is adequately represented by existing parties. “(b) Permissive.— (1) Generally. — Upon timely motion a person may be permitted to intervene in an action when the person’s claim or defense has a question of law or fact in common with the action. (2) Governmental Interest. — Upon timely motion the federal government, the State, a political subdivision of the State, or any officer or agency of any of them may be permitted to intervene in an action when the validity of a ... statute ... affecting the moving party is drawn in question in the action, or when a party to an action relies for ground of claim or defense on such ... statute.” As the language of Rule 2-214 requires, timely application is a prerequisite for intervention.

See Maryland Radiological Society v. Health Serv., 285 Md. 383, 388 , 402 A.2d 907, 910 (1979). Timeliness depends upon the individual circumstances of each case, “and rests in the sound discretion of the trial court, which, unless abused, will not be disturbed ³⁶⁸ on appellate review.” Maryland Radiological Society v. Health Serv., supra, 285 Md. at 388, 402 A.2d at 910 , citing NAACP v. New York, 413 U.S. 345, 365-366 , 93 S.Ct. 2591, 2603 , 37 L.Ed.2d 648, 662-663 (1973). Neither the federal cases (including the cases cited by the Annapolis Lodge) nor the decisions of this Court set forth any special standard or requirement, such as that urged by the Annapolis Lodge, for intervention after the trial court’s decision. Rather, under circumstances like those in the present case, where the losing party declines to appeal, courts generally permit an applicant to intervene for the purpose of appeal where the applicant has standing and where the applicant acts promptly after the trial court’s decision.

See, e.g., United Airlines, Inc. v. McDonald, 432 U.S. 385, 395-396 , 97 S.Ct. 2464, 2470-2471 , 53 L.Ed.2d 423, 432-433 (1977) (“The critical inquiry in every such case is whether in view of all the circumstances the intervenor acted promptly after the entry of final judgment---- Here, the respondent filed her motion within the time period in which the named plaintiffs could have taken an appeal”); Yniguez v. State of Ariz., 939 F.2d 727, 731 (9th Cir.1991) (“ ‘post-judgment intervention for purposes of appeal may be appropriate if the intervenors ... meet traditional standing criteria,’ ” quoting Legal Aid Soc’y of Alameda County v. Brennan, 608 F.2d 1319, 1328 (9th Cir.1979), cert. denied, 447 U.S. 921 , 100 S.Ct. 3010 , 65 L.Ed.2d 1112 (1980)); F.W. Woolworth Co. v. Miscellaneous Warehousemen’s, 629 F.2d 1204 , 1213 (7th Cir.1980, cert. denied, 451 U.S. 937 , 101 S.Ct. 2016 , 68 L.Ed.2d 324 (1981) (“an application for intervention is timely if it is brought shortly after the [existing party representing similar interests] indicates that she will not appeal”). 10 ³⁶⁹ If, as the Annapolis Lodge argues, the cases dealing with post-judgment intervention are analyzed as requiring an “exceptional circumstance” before such intervention is allowed, the requisite “exceptional circumstance” would be the losing party’s failure to appeal or the real possibility that the losing party will fail to pursue appellate remedies. A recent pertinent decision by this Court is Board of Trustees v. City of Baltimore, 317 Md. 72 , 562 A.2d 720 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1167 , 107 L.Ed.2d 1069 (1990). The Board of Trustees case involved challenges, by the Board of Trustees of Baltimore City’s employee pension systems, to city ordinances requiring that the pension systems divest their holdings in companies doing business in South Africa. Before trial, four pension fund beneficiaries moved to intervene on the side of the Board.

The trial court denied the applicants’ motion to intervene, and this Court held that the trial court erred. Board of Trustees v. City of Baltimore, supra, 317 Md. at 91-92 , 562 A.2d at 729 . This Court pointed out that the Board of Trustees of the municipal pension system constituted a governmental agency, that the Board had obligations to the City as well as to the beneficiaries, and that the Board’s prosecution of the litigation and the appeal to this Court had been a political issue in Baltimore City. 317 Md. at 91 , 562 A.2d at 729 . We thus stated (ibid.): “The prospect that the Trustees might not ask the United States Supreme Court to review an unfavorable ruling in this Court is not entirely unlikely in light of past events.

A decision not to seek Supreme Court review would adversely affect the [applicants for intervention]____” Since the applicants for intervention in Board of Trustees sought only to argue the appeal as parties in this Court, and to seek further review in the Supreme Court of any unfavorable ruling, this Court under Rule 8-604(e) modified the circuit court’s judgment so as to grant the motion to intervene. ³⁷⁰ The possibility feared by the intervenors in Board of Trustees did occur. After our decision adverse to the position of the Trustees and the beneficiaries, the Trustees decided not to seek further appellate review. Because this Court had granted intervention for the purpose of appellate review, the intervenors were able to seek review by the Supreme Court of the United States. See Lubman v. Mayor and City Council of Baltimore City, 493 U.S. 1093 , 110 S.Ct. 1167 , 107 L.Ed.2d 1069 (1990).

The Board of Trustees decision clearly supports the position of the intervenors in the present case. Both cases concerned the validity of local government ordinances affecting numerous persons. In both cases, the desirability of the ordinances were hotly contested political issues. In each case, a governmental entity was taking the same position concerning the validity of the ordinances which the applicants for intervention were táking.

There was, however, a danger in both cases that the governmental entities would not continue because of political considerations. In Board of Trustees , the real possibility that the losing party would not continue to seek appellate review was deemed sufficient to justify intervention for purposes of appeal. Under the circumstances of the case at bar, the decision of the losing party not to appeal certainly justified intervention for purposes of appeal. As previously discussed, where the losing party decides not to appeal, the cases have upheld post-judgment intervention for purposes of appeal when the applicant has the requisite standing and files the motion to intervene promptly after the losing party decides against an appeal.

The two women intervenors in the present case are interested in upholding the ordinance, and they clearly have the requisite standing. See Burning Tree Club v. Bainum, 305 Md. 53, 59-60 , 501 A.2d 817, 820 (1985), and State v. Burning Tree Club, 301 Md. 9, 16 , 481 A.2d 785, 788 (1984). 11 The motion to intervene was filed ³⁷¹ only four days after the City Council voted against an appeal. The intervenors obviously acted promptly. Under the circumstances the circuit court was fully warranted in permitting intervention.

III

Turning to the validity of the ordinance, the Annapolis Lodge contends, and the circuit court held, that the authority delegated to the City of Annapolis by the General Assembly in Art. 2B of the Maryland Code did not encompass the enactment of the ordinance. Article 2B establishes a comprehensive scheme for the regulation, control and distribution of alcoholic beverages within this State. See Art. 2B, § 1, containing the declaration of legislative policy. The Article is comprised of provisions articulating general, state-wide policy concerns, as well as provisions applicable only to designated subdivisions.

The provisions of Art. 2B cover a myriad of subjects. They include the typical controls on the sale and consumption of alcoholic beverages, such as the types of places which may be licensed, the types of beverages which may be sold, the hours of sale, the license fees, etc. The subjects covered in Art. 2B also include regulations concerning the premises, the conduct of licensees, ownership of establishments, membership requirements for association or club licensees, etc. For examples, Art. 2B contains provisions dealing with the nature of kitchen equipment and kitchen facilities for the preparation of food on the premises of licensees, 12 the size of dining rooms, 13 sanitary and health conditions relating to the preparation of ³⁷² meals, 14 the minimum number of rooms to qualify for a hotel license, 15 landscaping and gardens for certain types of licensees, 16 the clothing to be worn by employees of a licensee, 17 the number of stories and elevators in a buflding to qualify for a hotel license, 18 the size of parking facilities, 19 restrictions on music, 20 requirements concerning curtains on windows, 21 the noise level of music, 22 citizenship requirements for licensees, 23 the number of boat slips for a yacht club to qualify for a license, 24 the number of tennis courts and the size of the swimming pool to qualify for a country club license, 25 and specific membership requirements for armed forces veterans clubs, fraternal clubs, etc., to be eligible for licenses. 26 In each county and Baltimore City, the General Assembly has provided for a “Board of License Commissioners” to administer the provisions of Art. 2B. 27 With one exception ³⁷³ discussed below, each county board of license commissioners generally exercises its authority and carries out the provisions of Art. 2B throughout the entire county. The boards generally are granted certain enumerated powers by Art. 2B, § 158; in addition, other provisions of Art. 2B relate to specific powers and duties of particular boards. The General Assembly has also conferred rule-making authority on the county boards in § 184(a), which provides as follows: “(a) Generally. — In addition to the powers otherwise provided by this article, the Comptroller and the board of license commissioners from any county or Baltimore City, respectively, have full power and authority to adopt such reasonable rules and regulations as they may deem necessary to enable them effectively to discharge the duties imposed upon them by this article.” For a discussion of the scope of a county board’s rule-making authority under this provision, see Sullivan v. Bd. of License Comm’rs, 293 Md. 113, 124 , 442 A.2d 558, 564 (1982) (stating that the power delegated to a county board of license commissioners “to make rules is not the power to make laws”).

As previously indicated, Art. 2B provides one exception to the above-described regulatory scheme. That exception relates to the authority of the City of Annapolis concerning alcoholic beverages. Article 2B, § 152, states that “[t]he Board of License Commissioners of Anne Arundel County shall have no jurisdiction in the City of Annapolis.” Section 152 also provides that the Mayor and Aldermen of Annapolis may themselves act as a board of license commissioners “or may delegate all or any portion of the authority to regulate alcoholic beverage licensees to a subsidiary Board established by the Mayor and Aldermen.” More significantly, the authority over alcoholic beverage licenses granted by the General Assembly to the City of Annapolis is considerably broader than the authority granted ³⁷⁴ to the county boards of license commissioners. Article 2B, § 158(d), states in pertinent part as follows (emphasis added): “In Anne Arundel County (1) the Mayor, Counsellor and Aldermen of Annapolis shall have the power to make and enforce such rules, regulations and restrictions, in addition to, or in substitution of, those contained in this article, but not inconsistent therewith, as in the judgment of the Mayor, Counsellor and Aldermen of the City of Annapolis would give the municipality more effective control of each of the places of business.” Pursuant to this authority, the Mayor and Aldermen of Annapolis have enacted a detailed scheme for the regulation of alcoholic beverages in Annapolis, set forth in Ch. 7.12 of the Code of the City of Annapolis (1986, Cum.Supp. No. 11, 1993).

With respect to matters not covered by Ch. 7.12, the Mayor and Aldermen of Annapolis have incorporated by reference the provisions of Art. 2B of the Maryland Code. 28 In addition, there are a few provisions in Art. 2B which are expressly directed to the City of Annapolis, and, in light of Art. 2B, § 158(d)(1), the City may not enact ordinances inconsistent with those provisions. 29 There are also numerous provisions in Art. 2B applicable in Anne Arundel County that either contain express exclusions for the City.of Annapolis or are tied to the Anne Arundel County Board of License Commissioners’ ³⁷⁵ jurisdiction which does not encompass the City of Annapolis. 30 The authority over alcoholic beverage licensees granted by the General Assembly to the City of Annapolis in Art. 2B, § 158(d)(1), is very broad. Ordinance 0-11-90, conditioning an alcoholic beverage license upon a non-diseriminatory membership policy by a club licensee, falls within § 158(d)(l)’s authorization to enact provisions and restrictions “in addition to, or in substitution of, those contained in this article ... as in the judgment ... of the City of Annapolis would give the municipality more effective control of each of the places of business.” The Annapolis Lodge has not argued that Ordinance 0-11-90 is inconsistent with any provision in Art. 2B, and we have discovered no such inconsistency. Although recognizing that the General Assembly’s delegation of authority to the City of Annapolis “is quite broad,” the circuit court held that an Annapolis ordinance enacted pursuant to the delegation in Art. 2B, § 158(d)(1), must have some relation to “the consumption of alcohol” or to “what happens in the lounge,” and that Ordinance 0-11-90 “has nothing to do with the consumption of alcohol except that it would deprive the Elks of their license.” In this Court, the Annapolis Lodge similarly argues that “[a] club’s membership restrictions do not have any necessary connection to who may be permitted to use a particular one of its facilities. In the case of [the Annapolis Lodge], even though club membership is limited solely to men, the use of the lounge is not similarly limited.

The lounge is open not only to the male members, but also to their female guests, wives and dependents, and members of the Elk’s Womens Auxiliary.” (Annapolis Lodge’s brief at 16). Nevertheless, Ordinance 0-11-90 has no less connection with the consumption of alcohol at a club or “what happens in the lounge” than many of the provisions of Art. 2B containing requirements for various private club licenses. For example, Art. 2B, § 20(o)(2) (1998 Cum.Supp.), provides that, for a ³⁷⁶ country club to be eligible for a liquor license in Howard County, it must have an 18 hole golf course. On the other hand, in several counties, a nine hole golf course will suffice. 31 In other counties to be eligible for a country club license, the club must maintain either a golf course or a swimming pool of a specified size. 32 In still other counties, there is no requirement of either a golf course or a swimming pool for a country club license. 33 Other categories of private club licenses, i.e., yacht clubs, racket clubs, fraternal clubs, etc., have similar types of eligibility requirements. 34 Turning specifically to membership criteria for private club eligibility for alcoholic beverage licenses, Art. 2B is replete with requirements relating to membership even though relatives or guests of members