G & M Ross Enterprises, Inc. v. BD. OF LICENSE COMMISSIONER HOWARD CTY.

WENNER, Judge. G & M Ross Enterprises, Inc. (Ross) appeals from a judgment of the Circuit Court for Howard County affirming the ⁵⁴² decision of the Board of License Commissioners of Howard County (Board). On appeal, Ross presents us with but one question: whether the circuit court erred in interpreting Rule 6.12 of the Board’s rules and regulations. Finding no error, we shall affirm the judgment of the circuit court.

FACTS This appeal springs from the Board’s suspension of Ross’ license 1 for selling alcoholic beverages to a minor. We believe a brief review of the relevant procedural history of this case will be helpful. On 15 April 1994, Ross was charged with selling alcoholic beverages to one Tom Leper, a cadet with the Howard County Police Department, who was under 21 years of age. Following a hearing on 16 September 1994, the Board issued its Decision and Order on 5 December, suspending Ross’ license for three days in January of 1995.

Ross then sought judicial review of the Board’s decision, and stay of enforcing the Board’s decision. Stay was granted pending judicial review of the Board’s decision. According to Ross, the Board violated its own rules and regulations in failing to issue a decision within thirty days of the hearing. In any event, the circuit court issued a Memorandum and Order affirming the Board’s decision, and this appeal followed.

DISCUSSION Ross contends that the Board’s decision should be reversed because it was not issued within thirty days after the hearing as prescribed by its rules and regulations. Rule 6.12 provides in pertinent part: Each case shall be decided and the final decision and order shall be issued no later than 30 days after the end of the hearing. The Board may, however, upon its own motion, ⁵⁴³ extend the time of decision or time and order for a period not exceeding 90 days from the end of the hearing date. Since the terminology used in establishing the time for issuing the Board’s decision includes the term “shall”, Ross contends that the provision is mandatory.

Consequently, Ross asserts that, as the Board failed to comply with its rules and regulations, its decision should be reversed. We disagree. We begin by observing that we are aware of the Accardi doctrine set forth in U.S. ex. rel. Accardi v. Shaughnessy, 347 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 (1954).

As we opined in Bd. of Education of Anne Arundel County v. Barbano, 45 Md.App. 27, 41 , 411 A.2d 124 (1980): An agency of the government must scrupulously observe rules, regulations, or procedures which it has established. When it fails to do so, its action cannot stand and courts will strike it down. Id., quoting U.S. v. Heffner, 420 F.2d 809, 811 (4th Cir.1969). We are equally aware that in Maryland use of the word “shall” is ordinarily presumed to be mandatory, Pope v. Secretary of Personnel, 46 Md.App. 716 , 420 A.2d 1017 (1980), cert. denied, 289 Md. 739 (1981), although use of the word “shall” is, on occasion, “interpreted as directory and not mandatory.” Id. at 718, 420 A.2d 1017 .

In endeavoring to ascertain the intent of the legislature in using the word “shall”, we begin by considering the absence of a sanction in the statute. Maryland State Bar Ass’n. v. Frank, 272 Md. 528, 533 , 325 A.2d 718 (1974). As we said in Pope , “... one of the contextual factors relied upon, ‘though not controlling,’ to hold the use of “shall” directory is when a statute provides no penalty for failure to act within a prescribed time.” Pope, 46 Md.App. at 717 , 420 A.2d 1017 .