Gino's of Maryland, Inc. v. Mayor of Baltimore

Barnes, J., delivered the opinion of the Court. This appeal involves a test case filed on November 24, 1967, by Gino’s of Maryland, Inc. (Gino’s) and A-G Foods, Inc. (A-G), both Maryland corporations, in the Circuit Court of Baltimore City against the Mayor and City Council of Baltimore (City), the Building Inspection Engineer and the Zoning Enforcement Officer of the City, for declaratory (and injunctive) relief to determine the constitutionality and construction of Ordinance No. 938 of the City, approved July 28, 1961 (Ordinance 938), now codified as Article 30, §§ 41(6) and 42 of the Baltimore City Code (1966 Ed.). These sections require a special ordinance of the City Council of Baltimore City for any eating establishment in a First Commercial Use District which provides its own off-street parking and “where food and/or drinks are consumed in automobiles while they are standing on the lot.” The property directly involved is 2912-18 Harford Road (the property) leased by Gino’s. A-G owns all of the outstanding capital stock of Gino’s and has guaranteed the obligation of the lease with respect to the property.

J. Edward Muhlbach, Neil Cashen, Violet Yount, Margaret E. Gyr, Carl W. Mueller, Clay G. Thompson, K. Lee Peace and Margaret Mortimer, owners of homes in the neighborhood of the property, were permitted on January 5, 1968, by the Chancellor (Cullen, J.) to intervene as parties defendants. The appeal was timely taken from a decree, dated April 22, 1968, in which the Chancellor declared that Ordinance 938 was constitutional, that the permit issued on September 30, 1965, relating to the property was properly issued, that the use of the property is restricted as provided in Ordinance 938, that the injunctive relief to the plaintiffs was denied and that the plaintiffs pay the costs. When the suit was instituted, A-G operated a chain of 85 restaurants and fried chicken carry-out stores in four states— ⁶²⁵ Maryland, Delaware, Pennsylvania and New Jersey. Twelve of them were located in Baltimore City.

At the time of trial, which began on January 15, 1968, A-G had acquired another chain of 16 outlets and expanded the territory into the District of Columbia and Virginia. Most of the outlets in Maryland are operated by Gino’s, a wholly owned subsidiary of A-G. A-G, the parent company, was incorporated in 1959, consolidating four original Ameche stores previously formed by Alan Ameche and four Gino stores formed by Gino Marchetti while each was active in professional football as players for the Baltimore Colts. Prior to the consolidation in 1959 and for some time thereafter, all of the A-G outlets consisted of operations which contemplated a substantial amount of eating in cars. In the operation of the Ameche stores, curb service was provided directly to customers seated in motor vehicles.

The customers were served by “car hops,” who received orders inside the building from each parking stall by means of an electronic communications system called telotrays and delivered the food and soft drinks ordered to patrons in their cars. There was a limited amount of interior seating provided for patrons. The Gino stores were outdoor quick-service food shops, with no interior seating. Over-the-counter outside service to customers was provided and the customers either had to eat in their cars, eat while standing in the open on the lot or carry the food off the premises.

The testimony indicates that the original cost of the Gino establishment, exclusive of the value of the land, was between $55,000 and $60,000. During the latter part of 1963 and the early part of 1964, A-G decided to change its method of operation of its stores. A review of its business indicated that it suffered in its earnings from the seasonal characteristics of the outdoor type of operation in the winter or when the weather was inclement. After studying the operations of a similar chain in the Midwest, A-G began to convert all Ameche and Gino units into all-weather air conditioned and heated establishments with interior seating for approximately 72 people.

All new units built after March, 1965, in the four-state area have been built in accordance with this plan. The cost oí a new Gino’s store, fully ⁶²⁶ equipped, but exclusive of the value of the land, is approximately between $140,000 to $150,000. After the change in the policy of operation, A-G no longer had curb-service drive-ins except for the establishments in the Washington, D. C. metropolitan area, recently acquired. There were no longer any of the old Gino units with outdoor self-service, except one located in Baltimore City at North Avenue and St. Paul Street and two in Pennsylvania.

These three units have not been renovated because their respective lots are not large enough to accommodate the new type of building. The testimony indicated that the total cost of the renovation program in the four-state area was approximately $1,500,000. The new policy of A-G proved to be successful. The month of January, 1966, was the first January in the Company’s history in which it “broke-even;” prior to that time the Company had always experienced a loss during that month.

Considering the property involved in the present case, the testimony indicated that it was the first of the new outlets constructed in accordance with the new policy. It was not an “old” outlet which was renovated. The building permit was issued by the City on September 30, 1965, and the completed structure opened for business on April 16, 1966. The building is of masonry construction.

It is equipped with air-conditioning and heating and contains three washrooms, one for male customers, one for female customers and the third for the employees. Inside the building there is a counter, eighteen feet long, with three cash register positions so that six people can wait on customers. There are six tables across the front which have individual seats for eight persons and there are three tables on each side of the service area which have individual seats for four customers, a total of 72 seats. This number of seats is in accord with the general policy of the company in its various outlets, which vary in number of seats from 72 to 75.

The tables, although portable, are made of heavy iron covered with formica. The seats are round, with no back, and are attached to the table by iron arms. The tables for eight are of a picnic type. In the newer units, the seats are red shell back seats.

The floor of the building is of quarry tile. In the newer installations, wall-to-wall carpeting is used. No table cloths, forks, knives or spoons ⁶²⁷ are provided for the customers. There are no waiters or waitresses to serve customers at the tables.

In the surrounding lot there are spaces for the parking of 56 cars. There is a higher proportion of parking spaces to number of inside seats than in the usual operation at which the number of parking units is from 40 to 45 spaces. The property is larger than the usual one, and this fact accounts for the additional parking spaces. In the building, food and beverages are sold consisting of hamburgers (20(1), cheeseburgers (25(5), french fries (15^), fried chicken, milk shakes, coca-cola, coffee and hot chocolate.

This menu is substantially similar to the menu of Gino’s original drive-in operation and is identical with its present drive-in operation at the outlets where this operation is performed. The method of distribution is the same in all A-G outlets and is substantially the same as the method used prior to the establishment of the new policy. The hamburgers and cheeseburgers are wrapped in wax paper and placed in a small paper bag—white for hamburgers and yellow for cheeseburgers. If a tray is desired by the customers, a cardboard tray is provided with round indentations in it so that the paper cups containing the beverages can be inserted in the round slots (so that they will be held in place and not turn over), the hamburgers or cheeseburgers being placed in the center of the cardboard tray.

If there is a take-out order, plastic round tops can be placed on the paper beverage cups to prevent spilling. Fried chicken is served in cardboard boxes, or if a take-out order is requested, in covered cardboard buckets. All food and beverages are delivered to the customers inside the building and there is no service provided for cars on the parking lot or otherwise outside the building. The operation on the property opens at 11:00 a.m. and doses at midnight, except on weekends when the operation sometimes continues until 1:00 a.m.

There are large metal containers on the parking area in which trash may be deposited. The parking area is brightly lighted. The vice-president of Gino’s, Robert Scrivener, in response to questions by the Chancellor, stated that the only real difference between the operation at the property and the operation ⁶²⁸ at Gino’s drive-in type operation is that the customers are offered a heated and air-conditioned building in which to sit. When the permit to erect the building on the property was issued on September 30, 1965, the Building Inspection Engineer, acting as the Zoning Commissioner, inserted in it the legend “No food to be served to be consumed in vehicles while parked on premises.” Similar legends appear on all building permits for all old Gino establishments renovated or new ones constructed since 1961 in Baltimore City.

Franklin W. Aschemeier, Jr., the Zoning Enforcement Officer, stated that “we use our discretion in the office as to what type of operation we think it is going to be”, but was somewhat vague, in regard to what criteria, if any, were used in arriving at the decision to include the legend on the building permit. Mr. Aschemeier, however, testified that he would enforce Ordinance 938 regardless of whether the legend was present on the building permit. He testified further that his office acts on complaints of any violation of the Zoning Code and, after an inspection and report indicating that the complaint is justified, a violation notice then issues. He had received no complaint in regard to any alleged violations of Ordinance 938 except for Harford Road Gino’s.

Elwood William Swam, Gino’s Real Estate Representative in the Baltimore area, was instructed by Gino’s to observe violations of Ordinance 938 at locations other than those operated by Gino’s. He did this and testified that he had observed violations at other locations, but the facts observed were not communicated to the City. After complaints were made to the City in regard to alleged violations of Ordinance 938 in the operation of Harford Road Gino’s, Inspector Cellucci of the Bureau of Building Inspection made an investigation on November 3, 1967, at noon time and observed three cars on the parking area in which people were seated while eating their food. A violation notice dated December 11, 1967, was then sent to Emanuel Hettleman, owner of the property and lessor to Gino’s, advising him of the violation and stating: “An inspection of the premises revealed eating in ⁶²⁹ vehicles on the premises.

Discontinue and control all eating and/or drinking in vehicles on Premises.” There were two other inspections made in which violations were observed. Mr. Scrivener did not dispute the accuracy of the reports of these violations observed by Inspector Cellucci. Vice President Scrivener admitted in his testimony that if one would go to the property around noon time (one of the busiest times), at dinner time or during the early evening, someone could be found eating in his car on the parking area. Gino’s had posted signs on the property advising its customers not to eat in their cars, and after the violation notice, installed new and larger metal signs on its parking areas adjacent to its various premises, four of which were posted at the property.

The text of the new signs was : “To our Patrons—Eating and Drinking in Cars Parked on this Lot is Prohibited by Law. DO NOT EAT IN YOUR CAR. We invite you to enjoy your food in our planned, climate controlled dining area.” Although Gino’s does employ private policemen to aid in maintaining order and minimizing traffic problems at the property, they -were not instructed to and did not attempt to enforce the restrictions on the signs because as stated by Vice President Scrivener: “* * * [AVjlien you ask members of the public to come on your premises and invite them there, that eating in their automobiles is not, in itself, dangerous or injurious to health. It seems unreasonable to us to use strong-armed methods to enforce this regulation, which is not in itself a problem.” There was testimony by the intervening neighboring property owners which established that between October 14, 1967, and January 16, 1968 (during part of the time the weather was cold and inclement), there w-ere 17 occasions on which a number of violations were observed from one person in a car to 21 persons eating food or consuming beverages.

Some of the violations took place during the freezing weather. They testified that no attempt was made to stop the consumption of food in the cars in the parking area even though it was in plain view. One ⁶³⁰ property owner testified that he observed one arrest by the public police at the property and on one occasion the occupants of a car drinking from a glass bottle containing an amber fluid. The property owners testified to noisy and high speed operation of hot rod automobiles at all hours, including late at night.

The premises are littered with food wrappers and the 15 large trash cans on the parking area sometimes overflow with trash and the debris lies on the parking area. Sometimes Gino’s customers at the property do not use the trash cans, but litter the ground and on occasions, upon leaving the parking area, throw refuse from their automobiles onto the public streets and nearby private property in substantial amounts. The Chancellor filed a well-considered written opinion in which he indicated that Ordinance 938 was constitutional, that the building permit for the property was properly issued and that the property was restricted as provided in Ordinance 938. In accordance with his opinion, the Chancellor passed the decree of April 22, 1968, the terms of which we have already indicated.

The appellants, A-G and Gino’s, contend on this appeal that Ordinance 938 is unconstitutional and invalid for a number of reasons, that they have been injured by the capricious application of Ordinance 938 by the City, that, as properly construed, Ordinance 938 is not applicable to the business operated by them and, finally, that the Chancellor erred in various rulings on the evidence. We will consider these contentions in the order mentioned. Before considering the contentions in regard to the constitutionality and validity of Ordinance 938, it will be well to review the statutes involved. The General Assembly of Maryland by Chapter 705 of the Laws of 1927, codified as Code (1957), Article 66B, granted the City, and the legislative bodies of other cities and incorporated towns in the State with more than 10,000 inhabitants, the zoning power “for the purpose of promoting the health, security, general welfare and morals of the community.” This Court has held that the City derives its zoning powers from Article 66B and not from its charter.

Baylis v. Mayor and City Council of Baltimore, 219 Md. 164 , 148 A. 2d 429 (1959); ⁶³¹ Scrivner v. Mayor and City Council of Baltimore, 191 Md. 165 , 60 A. 2d 190 (1948). Article 66B vests in the City the full power which the State can exercise within the proper limits and scope of the police power. Carney v. City of Baltimore, 201 Md. 130 , 93 A. 2d 74 (1952). Pursuant to this grant of power from the State, the City passed its comprehensive Zoning Ordinance which, as amended, is now codified as Article 30 of the Baltimore City Code (1966 Ed.), and references will be made to the sections of Article 30 of that Code.

The declared purpose set out in Section 1 was as follows: “For the purpose of promoting the health, security, morals and general welfare of the community, the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards and other open spaces, the density of population and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes are regulated and restricted as hereinafter provided.” The City is divided into six use districts: Industrial, Second Commercial, First Commercial, Restricted First Commercial, Residential and Office and Residential. These use districts were established for the purpose set out in Section 1 and the criteria for their establishment are stated to be those purposes and also “the design, size and/or location of— (a) sanitary and storm water sewers ; (b) water mains and pipes for fire extinguishment, domestic consumption and manufacturing; (c) other mains, pipes, conduits, sub-ways and underground structures; (d) high pressure water service for fire extinguishment ; (e) fire houses and their equipment; (f) police stations with the number of patrolmen and the extent of their posts; (g) streets, alleys, bridges and paving; ⁶³² (h) schools, parks, playgrounds and other public facilities and requirements; and considering among other things; (i) traffic problems; (j) transportation requirements and facilities; (k) hazards from fire and disease; (l) the height and area districts and regulations established by this ordinance; (m) access of light and air to buildings; (n) access for fire and police protection; (o) protection of occupants of buildings from noise, dust and gases caused by traffic as affected by the use districts hereinafter mentioned, the use of land and buildings is hereby regulated and restricted, and the City of Baltimore is divided into six classes of use district, * * *.” In the First Commercial Use District, in which the property involved in the present case is located, the use of land for stores and shops generally is not prohibited nor is the use of land for a “restaurant and lunch room, neither with live entertainment.” It should be pointed out that Section 4 provides that 38 specifically named different lawful, but offensive or dangerous uses, are prohibited in an Industrial Use District “unless by authority of an ordinance.” By Section 10, in regard to prohibited uses, from the Residential and Office Use District, it is provided in Item (27) : “Stadium or playfield with a permanent structure or with seats for more than five hundred persons, including any parking facilities for the general public, whether to be part of a school operation or otherwise, unless the City Council by Ordinance approves such use.” Section 20 in regard to parking areas provides that notwithstanding any provision of Article 30 the City: “may provide by ordinance, upon such conditions as the Mayor and City Council shall determine, for the ⁶³³ establishment maintenance and regulation of open areas in a Residential and Office Use District, or in a Residential Use District for the parking thereon of automobiles when to permit the parking of such automobiles would benefit the health, safety or general welfare of the community.” Section 20 then provides that upon the introduction of an ordinance to establish the parking areas, the ordinance shall be referred to the Board of Fire Commissioners, the Traffic Commission and the Planning Commission for investigation, recommendation and report as to the traffic hazards involved. There are also provisions for certain copies of a plat for reference to the agencies mentioned and for the posting of the premises. Generally speaking, an application for a zoning permit is filed with the Building Inspection Engineer, as the Zoning Commissioner, and if disapproved, an appeal is taken to the Board of Municipal and Zoning Appeals (the Board), with a right of appeal to the Baltimore City Court and then to this Court.

Beginning with Section 41 there are provisions for original jurisdiction in which, in addition to the regulations and restrictions already set forth in the preceding sections, certain uses are further limited. Prior to the adoption of Ordinance 938 there were five such uses: (1) a public utility building excluded from a use district by prior provisions of Article 30; (2) a filling station, tanks or pumps for the sale of inflammable liquids in a use district where permitted; (3) a billboard for the display of outdoor advertising or poster boards in a use district w'here permitted; (4) the storing, killing and dressing of poultry in a use district where permitted; and, (5) an automobile washing establishment “where automobile-washing is the prime use of the lot” in a district where permitted. These uses were permitted only after a public hearing before the Board and in compliance with the terms and conditions thereafter set forth. There were certain specific limitations as to location in regard to filling stations and billboards and other restrictions in regard to automobile washing establishments.

Section 43 provides for the procedure in cases of original ju ⁶³⁴ risdiction. It provides for a reference of the application by the Board to the Board of Fire Commissioners, the Commissioner of Health, and the Traffic Commission for investigation, recommendation and report as to the respective fire, health and traffic hazards involved. Guides and standards for the guidance of the Board in the exercise of its original jurisdiction are set forth in Section 44.