Kilroy v. Board of License Commissioners

Singley, J., delivered the opinion of the Court. Mr. and Mrs. John James Kilroy, Sr. (the Kilroys) and Mr. and Mrs. Joseph Edward Clopper, Sr. (the Cloppers), holders of 7-Eleven Stores franchises at different locations in Prince George’s County applied for Class A, beer and light wine off-sale licenses. When their applications were denied by the Board of License Commissioners for Prince George’s County (the Board), the Kilroys and the Cloppers appealed to the county’s circuit court. The cases, which were consolidated for purposes of the appeal, ended with the entry of an order affirming the Board’s denial of the licenses.

From the order, both the Kilroys and the Cloppers have appealed to this Court. Because the facts are substantially the same and the applicable law is identical in both cases, we shall treat the appeal as if it were the Kilroys’. We denied the Board’s motion to dismiss, which relied on Maryland Rule 835 b (1), and accepted the appeal because there appeared to be a possible variance between the result reached by the lower court in the Kilroys’ case and that reached by the same court in Charles E. Dancy v. Bd. of License Comm’rs decided in April, 1969, about a year previously. See Code (1957, 1968 Repl.

Yol.) Art. 2B, § 175 (f) and compare Board of Liquor License Comm’rs of Baltimore City v. Leone, 249 Md. 263 , 239 A. 2d 82 (1968) and cases there cited. Our consideration of the record before the Board and the relevant statutes leads us to the conclusion that the ⁹⁴ decision in Dancy is not at variance with that in Kilroy and that the appeals should be dismissed. The Dancys, like the Kilroys, held a 7-Eleven franchise. The Board denied the Dancys’ application for a Class A license, relying on Code, Art. 2B, § 41 (a-1), which provides : “No Class A, B, or D beer, wine, and liquor license, except by way of renewal, shall be granted, transferred, or issued to, or for use in conjunction with, or upon the premises of any business establishment of the type commonly known as chain stores, supermarkets, or discount houses. * * *” On appeal, the Circuit Court for Prince George’s County reversed and ordered the license issued.

The rationale of the court’s decision was that the Dancys, as 7-Eleven franchisees, were independent contractors, and not managers of a chain store, relying on the tests applied by the Fourth Circuit in NLRB v. A. S. Abell Co., 327 F. 2d 1 (4th Cir. 1964), which was followed in Taylor v. Local No. 7, Int'l Union of Journeymen Horseshoers 353 F. 2d 593 (4th Cir. 1965), and those in Edith A. Anderson Nursing Homes, Inc. v. Walker, 232 Md. 442 , 194 A. 2d 85 (1963). Later, when the Kilroys’ license application came before the Board, it was denied because of the prohibition contained in Code, Art. 2B, § 53 (5): “In Prince George’s County, no person, partnership, firm or corporation, shall have any interest in more than one license, whether held or controlled by direct or indirect ownership, by stock ownership, interlocking directors or interlocking stock ownership, or in any other manner, directly or indirectly, it being the intention of this section to prohibit any such person, firm, partnership or corporation from having any in ⁹⁵ terest, directly or indirectly, in more than one license. * * *” 1 The narrow point is whether after the issuance of a liquor license to the Dancys on the premise that a 7-Eleven franchise is not a chain store operation, the issuance of a license to a second 7-Eleven franchisee is precluded by a statutory provision prohibiting any “such person, firm, partnership or corporation from having any interest, directly or indirectly, in more than one license.” We think the Board and the court below reached the right result. We believe that it can be clearly demonstrated that The Southland Corporation (Southland), which granted the franchises to the Dancys and to the Kilroys would have had in the Kilroys’ license, had