Ewing v. Price

GARRITY, Judge. By a memorandum opinion dated December 5, 1983, the Circuit Court for Baltimore County affirmed a decision of the Baltimore County Board of Appeals granting the relocation of a towing business operated by the appellee, Thomas Melton Price, Jr. The appellant, Carlisle L. Ewing, a tower whose towing district was reduced by the relocation, had opposed the Board’s decision to revise the license. On appeal, the appellant renews his contention that the Board misinterpreted the applicable provisions of the Baltimore County Code concerning towing licenses. Factual Background In April of 1982, the appellee, Thomas Melton Price, Jr., trading as Tom’s Gas Stop, requested permission of the Chief of Police of Baltimore County to change the location of his towing service.

Mr. Price stated in his letter to the police that his leased facility, which had been broken into on numerous occasions and subjected to vandalism, was in the process of being sold. Mr. Price further indicated that after he turned down an offer to purchase the property, he felt forced to move. On June 9, 1982, pursuant to the authority of the Chief of Police of Baltimore County, the Department of Permits and Licenses of Baltimore County issued a corrected towing license to Thomas M. Price, Jr., now trading as Baltimore Shoreline Towing. The license permitted Mr. Price to change the location of his towing business from 1415 East ³¹⁶ ern Boulevard to 2841 Eastern Boulevard, a distance of approximately two miles.

At this point it is helpful to understand that in 1976, in the aftermath of territorial battles over towing rights, the Baltimore County Police Department and the Association of Licensed Towers of Baltimore County, devised a color-coded street map that designated the districts of all licensed towing companies in that county. Under present policy, a towing company is authorized to tow only those vehicles located within its district, unless called beyond its borders by a private party. Whenever the police department requires a vehicle to be removed from a highway, it notifies the nearest licensed tower in that particular area. To obtain a “new” license to operate a towing business in a district, the need for additional service must be found to exist.

Once the license has been granted, however, that business may be transferred anywhere within Baltimore County regardless of the need for additional service within the new district. Upon confirmation that the relocated business meets certain physical and equipment requirements such as proper fencing, storage space, and vehicle lettering to indicate the new address, license transfers are approved by the Chief of Police of Baltimore County. The granting of a transfer of the appellee’s towing business to its new location caused a domino effect on the boundary lines designating the areas of all towing companies in the vicinity. As a result of the relocation, appellee’s new towing business, Baltimore Shoreline Towing, was granted a significant portion of the area which had been previously designated as the exclusive area of the ousted appellant.

Aggrieved by the decision of the chief of police to permit the transfer of the appellee’s towing license, Carlisle L. Ewing and the Association of Licensed Towers of Baltimore County, filed an Order of Appeal with the Board of Appeals of Baltimore County. At the hearing before the Board of Appeals, Officer Harry W. Owings explained the manner in ³¹⁷ which towing districts in Baltimore County are determined. He also testified that upon receipt of the appellee’s relocation request, which he determined to have been caused by a casualty loss, he personally investigated the appropriateness of granting the request. In that regard, he inspected the new location and found that all Baltimore County requirements, with the exception of a showing of need, which he did not consider, had been met.

Officer Owings explained that in 1976, he was verbally advised by the Baltimore County Solicitor’s Office that the element of need was to be considered only when evaluating the issuance of a “new” license. 1 In its opinion, the Board of Appeals stated: Appellants claim that Article 5, Sections 17-58(c) and 17-63(a) designate that “need” must be a consideration, not only in the issuance of new licenses but also the transfer of existing ones. This is the basic issue the Board must address in this Opinion. Article 5, Section 17-58(c) addresses the change of location of a business and the final sentence of this section states: “The new location must meet all the requirements of this article, or the license will be can-celled.” Section 17-G8(a) states: “New license towers shall be approved by the chief of police based upon the need for additional service. If the need does not exist, the application will not be approved.” There is no argument that “need”, as evidenced by police department reports, must be the primary consideration for the issuance of a new towers license.

Section 17-58(c) deals, however, with relocation of a business, not through choice, but with no other recourse. It also notes that the new location must meet all the requirements of this ³¹⁸ article, all of which have been met in this case with the exception of the evidence of “need.” The chief of police’s primary consideration in these matters must be his officers at the scene of an accident and to see that they are served. To cancel the license of a towing operator who is forced to relocate, who meets all the requirements, has apparently served the police department well, and who at some time has evidenced “need” to get his license, merely because it reduces the area of another would seem to this Board to be arbitrary at the least. Section 17-66 states: “The chief of police shall have the power to make and enforce any and all reasonable regulations to effectuate the purposes of this article.” (Emphasis added).

The Board is of the opinion that when the requirements of Section 17-58(c) have been met, and only when these requirements are met, that under Section 17-66 the chief of police does not have to consider “need” in the transfer of a license, but can order the towing area division lines redrawn to provide proper service to the officers in need of the towing service, which is the ultimate aim of the entire article. Contending that the Board of Appeals misinterpreted Section 17-58(c) of the Baltimore County Code as permitting a towing operator who has suffered a “substantial casualty loss” to relocate his business without first being required to show the existence of need, the appellant noted an appeal. On appeal to the Circuit Court for Baltimore County, the court held: ... The Board’s finding that Mr. Price’s loss of his lease due to circumstances beyond his control was a substantial casualty loss was a reasonable one. ...

Proper statutory construction requires that “need” be interpreted as the overall need of the people of Baltimore County for towing service. This need is based on a countywide determination as to the total number of tow ³¹⁹ ers to perform that service adequately____ Where there is an application for relocation, the issue of need does not arise under the statute because there has not been a change in the number of licensees. Once the physical requirements of the statute are met at the new location, it then becomes an administrative determination by the Chief of Police as to how to reassign the areas of operation of the affected licensees so as to maintain proper countywide service for the citizens. This may result in an economic enhancement to one tower and a detriment to another.

However, unless it can be shown that the Chief of Police acted arbitrarily or improperly in the assignment of these areas, there can be no abuse of the authority given under the statute. The Court is not unmindful that, as the statute is presently written, the Chief of Police of Baltimore County may ignore the economic considerations of individual towers. It may be necessary that there be administrative or legislative review of the potential hardship that may result to a tower, as in this case. However, it is not for the Court to change the existing law.

On appeal, we are asked to decide the following questions: 1. Does the loss of one’s lease constitute a “substantial casualty loss?” 2. Did the Board of Appeals err in granting a transfer of the appellee’s towing license in the absence of any evidence that there was a need for another tower in the area to which the appellee relocated? I. Definition of Casualty Loss As previously noted, in affirming the Board of Appeals decision, the Circuit Court held that the Board’s finding that the appellee’s loss was a “substantial casualty loss” was a reasonable one.

The appellant contends that the Circuit Court and the Board of Appeals erred in ruling that appellee’s loss of his lease constituted a “substantial casualty loss” within the ³²⁰ meaning of the Code provision. In its opinion, the court did not discuss this term; the court, however, applied the definition found in Black’s Law Dictionary (5th Ed.) that the term “casualty” means “misfortune or mishap; that which comes by chance or without design.” The appellant challenges the application of this definition to the facts of the present case, wherein the purported casualty was the loss of a commercial lease. 2 The appellant asserts that the loss of a commercial lease is “entirely forseeable, in fact, inevitable, and a common occurrence,” and not unforseeable, sudden, or accidental. The case law interpreting the terms, “casualty,” “casualty loss” and “substantial,” supports the appellant’s contention. Although no reported Maryland appellate decision has interpreted the terms, “substantial casualty loss” or “casualty loss,” a considerable body of federal and sister state case law is available.

Most of the cases interpreting the term, “casualty,” involve determinations as to whether a taxpayer can take a deduction arising from a casualty. In United States v. Rogers, 120 F.2d 244 (9th Cir.1941), the Court said that “casualty” may properly be used in the sense of “accident,” and that an accident is “an event that takes place without one’s foresight or expectation; an undesigned, sudden, and unexpected event.” Id. at 246 . Similarly, the Court in Fay v. Helvering, 120 F.2d 253 (2d Cir.1941), stated that the word “casualty” denotes “an accident, a mishap, some