Dodds v. Shamer

RAKER, Judge. I. In this case, we are asked to decide whether a liquor license may be levied upon to satisfy a judgment through a writ of execution. We hold that, in the absence of a statute to the contrary, a liquor license is property subject to levy through a writ of execution.

II

On September 11, 1990, Patricia S. Shamer initiated divorce proceedings against George C. Dodds. The Circuit Court for Baltimore County granted the parties an absolute divorce on November 23, 1992, and entered a monetary award in Ms. Shamer’s favor for $49,848.22, which was reduced to judgment. After several failed attempts to collect upon the judgment, Ms. Shamer obtained a writ of execution on April 13, 1994, direct ⁵⁴³ ing the Sheriff of Baltimore County to seize a Class A Beer, Wine, and Liquor License. 1 The license was issued in the name of George C. Dodds, Inc. t/a Harford Road Liquors. 2 On April 20, 1994, the Sheriff seized this liquor license and removed it from Harford Road Liquors. The Sheriffs office filed its return with the Court on April 22, 1994. 3 On April 21, 1994, Mr. Dodds petitioned the court to quash the execution.

In this motion, he asserted that the liquor license had been improperly seized because the license belonged not to him but to the corporate entity, George C. Dodds, Inc., the license itself had no value because it was only a piece of paper that could not be considered personal property, and the seizure was tantamount to putting him out of ⁵⁴⁴ business. The court denied the motion to quash on April 21, 1994. On April 25,1994, Mr. Dodds filed a second motion to quash the execution. He reasserted the same grounds for granting the motion, this time appending corporate documents showing that George C. Dodds, Inc., owned the liquor license.

In response, Ms. Shamer disputed the ownership of the license. She contended that, by statute, liquor licenses could be issued only to individuals, not to corporations, thereby making the license Mr. Dodds’ personal asset. She further argued that because Maryland Code (1957, 1994 Repl.Vol.) Art. 2B, § 10-501 4 did not exempt Baltimore County liquor licenses from writs of execution, Mr. Dodds’ license was properly seized. On June 30, 1994, the court denied the second motion to quash.

Mr. Dodds appealed to the Court of Special Appeals, and we granted a writ of certiorari on our own motion prior to consideration by the intermediate appellate court.

III

The question of whether a liquor license is subject to levy under a writ of execution is one of first impression. 5 In Maryland, a writ of execution may be exercised upon any legal or equitable interest possessed by the judgment debtor in either real or personal property: A sheriff or constable to whom any writ of execution is directed may seize and sell the legal or equitable interest of the defendant named in the writ in real or personal property. The sheriff or constable shall execute the writ, conduct ⁵⁴⁵ the sale, and distribute the proceeds pursuant to rules adopted by the Court of Appeals. Maryland Code (1974, 1995 Repl.Vol.) § 11-501 of the Courts and Judicial Proceedings Article (CJ); see also Maryland Rules 2-641 to 2-644. It follows that unless the object to be levied upon can be defined as “property” under this statute, it will not be subject to a writ of execution.

In order to find that a liquor license properly falls under the rubric “property,” we must reconcile CJ § 11-501 with § 10-501(a). Section 10-501(a) provides that the grant of a liquor license by a State authorized licensing authority does not confer to the licensee any property rights in the license, (a) License not property—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. Art. 2B, § 10-501(a).

A. Article 2B provides no definition for the term “property.” Mr. Dodds urges that under § 10-501(a), a liquor license is not property and, therefore, is not properly subject to seizure under a writ of execution. We disagree. The first sentence of § 10-501(a) provides that licenses issued under Article 2B do not confer any property rights upon the licensee. The second sentence provides the context from which the first sentence derives meaning.

Here, the statute provides that all liquor licenses “are subject to” suspension, restriction, revocation or regulation by the State and the State authorized licensing authorities. We conclude that the legislature intended in this provision only to establish that the State’s plenary power to control the sale of liquor predominates over any “right” in the liquor license that a licensee might seek to assert against the State or the State authorized liquor licensing authority. Cf. Dundalk Liquor Co. v. Tawes, ⁵⁴⁶ 201 Md. 58, 66 , 92 A.2d 560, 563 (1952) (recognizing that the State has plenary power over the sale of alcoholic beverages).

As Mr. Dodds correctly points out, we have stated on several occasions that selling liquor pursuant to a license in Maryland is a privilege, not a constitutional right, and that this privilege is terminable at will. Dundalk Liquor, 201 Md. at 65 , 92 A.2d at 563 (“The privilege of engaging in the traffic is not a right, but merely a franchise which the state may grant or withhold at will.”); Herman v. Mayor and City Council of Baltimore, 189 Md. 191, 199 , 55 A.2d 491, 496 (1947); Federico v. Bratten, 181 Md. 507, 510 , 30 A.2d 776, 778 (1943) (“The Act of 1933 expressly provides that a liquor license is not a property right, but a privilege, so that he would not be deprived of a constitutional right by the refusal of the Board or the Bureau [to renew his license].”); Abramson v. State, 167 Md. 531, 533-34 , 175 A. 593, 594 (1934) (“A liquor license by the terms of this act, is a privilege to be granted, withheld, or withdrawn, on such terms and conditions as the Legislature may prescribe.”); see also Brashears v. Lindenbaum, 189 Md. 619, 629 , 56 A.2d 844, 848 (1948); Cromwell v. Jackson, 188 Md. 8, 24-25 , 52 A.2d 79, 87 (1947); State v. Maryland Club, 105 Md. 585, 595 , 66 A. 667, 670 (1907). That possession of a liquor license is a privilege conferring no property rights against the State’s power to regulate the sale of alcoholic beverages, however, does not necessarily mean that a liquor license is not property when it becomes the object of adverse claims brought by private individuals against the licensee. ■ All of our cases interpreting § 10-501(a) and its precursors have involved controversies between licensees and the State. In Dundalk Liquor, a liquor licensee sued the Comptroller and Chief of the Alcoholic Beverages Division seeking to enjoin the enforcement of new regulations fixing maximum discounts and requiring the filing of a schedule of prices for the sale of liquor in Baltimore City. 201 Md. at 61 , 92 A.2d at 561 .

Finding that the State had plenary power over the sale of alcoholic beverages under the Twenty-First Amendment and the Commerce Clause, we held that the trial court had ⁵⁴⁷ properly dismissed the licensee’s lawsuit. 201 Md. at 65-66, 73 , 92 A.2d at 563, 567 . In Herman , over a licensee’s protest that his property rights had been violated, we upheld the City of Baltimore’s imposition of an emergency liquor excise tax authorized by the General Assembly. 189 Md. at 193-94, 200, 55 A.2d at 494-95, 496 . In Federico , we held that the Baltimore City Board of Liquor License Commissioners had exceeded its authority by prohibiting the sale of alcohol within 300 feet of a church. 181 Md. at 512 , 30 A.2d at 778 . Although we found for the licensee, we did not declare that the licensee had any due process property right in the license.

Rather, we held that the State, not the City, had the power to prohibit sales of alcoholic beverages in certain areas. Id. at 511 , 30 A.2d at 778 . Finally, in Abramson , we affirmed the criminal conviction of a licensee who had stored untaxed liquor on his premises after we found that the State’s ultimate power to suspend or withdraw a liquor license obliged the licensee to follow the State’s regulations. 167 Md. at 533-34 , 175 A. at 594 . These cases stand for the proposition that a liquor licensee possesses no constitutionally protected property right that would restrain the State or the State authorized licensing authority from exercising its plenary power over the licensee.

In this case, the conflict is between two private individuals; the liquor licensing authority is not involved. Therefore, these cases do not control our decision. Nothing within the language of or under the case law interpreting § 10-501(a) precludes us from finding that a liquor license is “property” that could be subject to execution. 6 ⁵⁴⁸ This conclusion, however, raises the question whether there is an inherent contradiction in finding that a liquor license is “property” under CJ § 11-501 but not “property” under § 10-501. We find there is not. 7 B. We have recognized that property is a term that has broad and comprehensive significance; it embraces “everything which has exchangeable value or goes to make up a man’s wealth—every interest or estate which the law regards of sufficient value for judicial recognition.” Diffendall v. Diffendall, 239 Md. 32, 36 , 209 A.2d 914, 915 (1964); accord Deering v. Deering, 292 Md. 115, 125 , 437 A.2d 883, 889 (1981); see also Samet v. Farmers’ & Merchants’ Nat’l Bank of ⁵⁴⁹ Baltimore, 247 F. 669 (4th Cir.1917).

Our notions of what constitutes property “may reasonably be construed to include obligations, rights and other intangibles as well as physical things.” Bouse v. Hutzler, 180 Md. 682, 686 , 26 A.2d 767, 769 (1942) (citing Fidelity & Deposit Co. v. Arenz, 290 U.S. 66 , 54 S.Ct. 16 , 78 L.Ed. 176 (1933)). What we construe to be “property” is not at all times and under all circumstances uniform. For example, we have held that “goodwill,” in the form of a product trade-mark, brand, or copyright, is a “valuable property right,” but we have also held that “goodwill,” in the form of a solo practicing attorney’s reputation, is not “marital property.” Compare Schill v. Remington Putnam Co., 179 Md. 83, 88 , 17 A.2d 175, 178 (1941) with Prahinski v. Prahinski, 321 Md. 227, 239 , 582 A.2d 784, 790 (1990). Similarly, we have held that an unliquidated personal injury claim, while having attributes of personal property, is nonetheless not encompassed within the statutory definition of marital property.

Unkle v. Unkle, 305 Md. 587, 596 , 505 A.2d 849, 854 (1986) (finding that an unliquidated personal injury claim does not fit within the legislatively intended definition of marital property); see also Hoffman Chevrolet, Inc. v. Washington County Nat’l Savings Bank, 297 Md. 691 , 701 n. 4, 467 A.2d 758 , 764 n. 4 (1983) (noting that choses in action are property). When we seek to determine whether something is property, we must look toward the “basic characteristics of property” to assess whether the thing we are scrutinizing falls within them. See Archer v. Archer, 303 Md. 347, 357 , 493 A.2d 1074, 1079-80 (1985) (finding that because a medical degree/license was an intellectual attainment, personal to the holder, that could not be sold, transferred, pledged, or inherited, that it had no value on the open market and, therefore, was not marital property). A liquor license will be “property” if we find that it exhibits the attributes of property.

Mr. Dodds attempts to draw a distinction between the paper license issued by the Liquor Control Board and the commerce in liquor carried out pursuant to the license. By drawing this ⁵⁵⁰ distinction, Mr. Dodds attempts to convince us that it is not the license that has value, but, rather, only the business of selling liquor that has value. Absent value, he argues, a liquor license cannot be property. We find, however, that Mr. Dodds draws a distinction without a difference.

A liquor license is more than just a piece of paper. It symbolizes the otherwise intangible franchise that is the valuable privilege to sell liquor. See Quinnipiac Brewing Co. v. Hackbarth, 74 Conn. 392 , 50 A. 1023, 1024 (1902) (disabusing the distinction between the license certificate and the valuable commerce in liquor by finding that the license certificate was the recognized token and representation of the valuable right to sell liquor); see also Rowe v. Colpoys, 78 U.S.App.D.C. 75 , 137 F.2d 249, 251 (D.C.Cir.), cert. denied, 320 U.S. 783 , 64 S.Ct. 190 , 88 L.Ed. 470 (1943); Jubinville v. Jubinville, 313 Mass. 103 , 46 N.E.2d 533, 536 (1943) (recognizing that the business of a package store cannot be conducted without a license and that for purchasers of the license the value of the license to them is greater than the fee). In Maryland, a liquor license is generally transferable, saleable, or assignable by the holder or the holder’s receiver or trustee. 8 Art. 2B, § 10-503(a).

Further, the executor of a ⁵⁵¹ licensee’s estate has an executor’s right to obtain and use the license for up to eighteen months for the cost of one dollar. ⁵⁵² Art. 2B, § 10-506. 9 These rights also imbue a liquor license with value. Moreover, commerce in liquor is illegal in Maryland without a license, and those who sell liquor without a license are subject to criminal prosecution. Art. 2B, § 1-201; 10 see Dail v. Price, 184 Md. 140, 141 , 40 A.2d 334, 335 (1944) (acknowledging that the sale of alcoholic beverages was punished by a fine of $250 in this case); Hayes v. State, 171 Md. 94, 97 , 188 A. 24, 24-25 (1936) (finding that the licensing laws are prohibitory as well as regulatory). This limited protection from criminal prosecution is another valuable incident of the ownership of a liquor license.

Together, the characteristics of the executor’s right, salability, assignability, the protection from arbitrary prosecution, and the tangible representation of the privilege to engage in the commerce of alcoholic beverages imbue liquor licenses with sufficient attributes of property for us to hold that a liquor license is property under CJ § 11-501. C. We now analyze the remainder of § 10-501 to determine whether any other provision of the statute prevents us ⁵⁵³ from finding liquor licenses subject to writs of execution. 11 Sub-sections (b)(2), (c), (d)(2), and (e)(1) explicitly state that ⁵⁵⁴ liquor licenses are not subject to writs of execution in Prince George’s County, Worcester County, Howard County, and Harford County. In these four counties, the law is clear. In this case, however, the liquor license was issued in Baltimore County, a county not expressly covered by a similar statutory provision.

Nonetheless, Mr. Dodds argues that the statutory provisions applying to Prince George’s, Worcester, Howard, and Harford Counties also apply throughout the State, despite the lack of similar provisions covering the other counties. We find that Mr. Dodds’ argument lacks merit. We will not infer from the absence of explicit provisions that the statute extends the rule in the four named counties to the entire State. See Slate v. Zitomer, 275 Md. 534, 540 , 341 A.2d 789, 793 (1975) (“[C]ourts may not ‘attempt under the guise of construction, to supply omissions or remedy possible defects in the statute, or to insert exceptions not made by the Legislature.’”) (citing Amalgamated Casualty Ins.

Co. v. Helms, 239 Md. 529, 535-36 , 212 A.2d 311, 316 (1965)), cert. denied, Gasperich v. Church, 423 U.S. 1076 , 96 S.Ct. 862 , 47 L.Ed.2d 87 (1976). Had the General Assembly intended to exempt liquor licenses from writs of execution throughout the State, it could have done so just as it did for the four named counties. Following the doctrine of inclusio unius est exclusio alterius, 12 we find that by specifically exempting liquor licenses from execution in Prince George’s, Worcester, Howard, and Harford Counties the General Assembly did not intend also to exempt liquor licenses from execution in the rest of the State. American Security & Trust Co. v. New Amsterdam Casualty Co., 246 Md. 36, 41 , 227 A.2d 214, 216-17 (1967) (concluding that because the Legislature had not included mortgagees within the terms of a statute that they were purposely excluded from the statute’s reach).

Because the question whether a liquor license is subject to a writ of execution is one of first impression in Maryland, we find it useful to review the law from other states that have ⁵⁵⁵ addressed the issue. The legislatures of several states have followed a path similar to that taken by the Maryland General Assembly with respect to Prince George’s, Worcester, Howard, and Harford Counties, and they have declared by statute that liquor licenses are not subject to writs of execution. See Alaska Statutes § 09.38.015(a)(7); Connecticut General Statutes § 30-14(a), Idaho § 23-915; Illinois Revised Statutes ch. 235, ¶ 5/6-1, Iowa Code § 123.38 ; Kansas Statutes § 41-2629; Nebraska Revised Statutes § 53-149; New Jersey Statutes § 33:1-26; Oklahoma Statutes tit. 37, § 532; Oregon Revised Statutes § 471.301(1)(i); Texas Alco.Bev.Code §§ 11.03, 61.02; Wyoming Statutes § 12-4-604. In one state, New Mexico, the legislature has specifically provided that liquor licenses are subject to writs of execution.

New Mexico Statutes § 60-6A-19. Among the states with no