Williams v. Associated Professors of Loyola College

Barnes, J., delivered the opinion of the Court. The appellants, Dr. M. Lee Williams, and others, own their homes adjacent to the property 4603 Millbrook Road in Baltimore City, which is improved by the “Millbrook House” owned by The Associated Professors of Loyola College in the City of Baltimore, one of the appellees (Loyola). The Loyola College Alumni Association ³¹⁹ (Alumni Association) obtained a Class “C”, seven-day beer, wine and liquor license from the Board of Liquor License Commissioners of Baltimore City, another appellee (the Board), granted on September 23, 1965, and issued on February 10, 1966, in order to establish a “rathskeller” in the basement of Millbrook House for use of the Alumni Association, its members, the faculty of Loyola and their guests. The appellants, as plaintiffs below, filed a bill of complaint in the Circuit Court of Baltimore City against the appellees already mentioned and others, to declare, inter oMa, that the liquor license was illegally and improperly granted by the Board and is null and void and, further, to enjoin both the Board from issuing a license until all legal requirements have been met and the Alumni Association and its officers and employees, from operating the rathskeller until a legal and proper liquor license has been granted.

The Circuit Court of Baltimore City (Dorf, J.) dismissed the bill of complaint and this appeal presents the issues arising in regard to the propriety of that dismissal. The Millbrook House property consists of a large lot, with approximate dimensions of 360 feet by 234 feet. It is located on Millbrook Road, a public street of Baltimore City some 40 feet in width. Prior to its purchase in 1958 by Loyola, it was directly across Millbrook Road from the college campus.

It is located in a Residential Use, F area and 40 foot height zone and is improved by a large three story and basement stone building, used at the time of the purchase as a multiple dwelling house with several families as tenants. Immediately following the purchase of the property, Loyola converted the first and second floors of the building to offices for the college faculty,, seminar rooms, offices for the Alumni Association and several small classrooms. The basement of the building continued to be used, in part, for residential apartments until the early part of 1965. At the time this case was tried in the lower court, the stone building was completely used by Loyola for various college purposes.

Its various rooms were used for semi ³²⁰ nars, administration offices, faculty offices, Alumni Association offices and an Alumni clubroom, which includes the rathskeller in the basement. The renovations necessary to change the building’s character as a residential apartment house to a college administration building occurred over a period of years after its acquisition by Loyola. From time to time as the renovations occurred, Loyola applied to the Bureau of Building Inspection of Baltimore City for the necessary building permits, through the various contractors who were making the renovations for the college. The applications for these permits and some of the subsequent permits indicate that Millbrook House was used for alumni or college purposes.

Also during this period, Loyola had Millbrook House inspected by the Bureau of Building Inspection each year, such annual inspections being required for buildings in Baltimore City used for public gatherings. The idea to renovate the basement at Millbrook House as a meeting place for alumni activities and for interrelated- activities of the faculty and alumni was conceived in 1965. The officers of Loyola and the officers of the Alumni Association agreed that this renovation should be made, in order to permit a more active participation by the alumni at the college. To further and implement this plan, an application for a Class C, seven-day beer, wine and liquor license was submitted to the Board on August 25, 1965.

The named applicants were James L. Fisher, John C. Byrnes and Martin F. Knott, officers of the Alumni Association, all residents of Baltimore City. Before the application could be filed with the Board, it was required to be submitted to the Zoning Division of the Bureau of Building Inspection for its approval in regard to the zoning of the property. This was done and the application was returned to the Board endorsed “residential-approved for private club.” Thereafter, Joseph Van Collom, Jr., who has been executive secretary of the Board since 1950 and who is a member of the Maryland Bar, advertised the application for the Class C beer, wine and liquor license applied for, pursuant to Article 2B of ³²¹ the Code (1957, 1968 Repl. VoL), as amended, in the daily newspapers in Baltimore City, i.e., The Sun, The News American and The Daily Record.

These advertisements stated that the premises for which the license was being sought was 4603 Millbrook Road. Mr. Van Collom also gave specific directions to Inspectors Downey and Johnson, who were assigned the duty of inspecting the property and interviewing the applicants, to post two signs advertising the application for this property (rather than the customary one sign) because, as Mr. Van Collom stated in his testimony, he knew that the property sat back from a side street of a main thoroughfare and he wanted to insure conspicuous notice of the application to residents in the area. In accordance with these instructions, the two inspectors posted one of the red, notice signs at the front entrance door of Millbrook House and the second red sign of the same size (approximately 18 inches by 14 inches) at the intersection of Cold Spring Lane and Millbrook Road. The second sign was on a stand located within an open mesh wire fence which stands four feet off the right of way at this intersection.

Both signs described the type of license, the name of the applicant, the time and place of the hearing and the location where the license would be used (4603 Mill-brook Road). They both remained posted for a period of 10 days. In the course of reviewing the application, Mr. Van Collom observed that John C. Byrnes, one of the applicants, was a law student. He suggested to counsel then representing the Alumni Association that he thought it would be better not to have a law student as one of the licensees because of the constant danger to a licensee of vicarious criminal liability for violation of the liquor laws, which might prejudice the law student before the Character Committee of the Court of Appeals when that Committee passed upon his character and petitions for admission to the Bar.

Accordingly, Maurice S. Bozel, another officer of the Alumni Association, was substituted! as a proposed licensee for John C. Byrnes. Mr. Van CoS ³²² lom testified in the lower court that it was the administrative practice of the Board where only one of the three applicants for a club or corporate license was changed after the application had been filed with the Board not to require a re-advertisement of the application, and, further, that this administrative practice had been in effect since 1947. The Board received no protests against the issuance of the license and no protestants appeared at the hearing of the Board on September 23, 1965, when the Board considered the application. At that hearing, the Board received evidence that the Alumni Association was a bona fide club, not founded for the sole purpose of obtaining a liquor license, and that the premises were suitable for the type of license for which the application had been made.

The Board granted approval of the license on September 23, 1965, but delayed the actual issuance of the license until extensive renovations of the basement of Millbrook House, already underway, were completed so that there could be an inspection by the Bureau of Building Inspection, the Fire Department and the Health Department of Baltimore City to insure that the premises were suitable for the operation of a club liquor license. The renovations were completed in February 1966 at an approximate cost of between $20,000 and $25,000 and the license issued on February 10, 1966. It was put to immediate use although the clubroom was not then opened on any regular schedule but was used only for meetings of the Executive Committee of the Alumni Association and other prescheduled events. The license was renewed on May 1, 1966, without protest.

In January 1967 the Alumni Association decided to open the recreation room on a regular schedule of three days a week, i.e., on Friday afternoon and evening, Saturday evening and Sunday evening. The club is not open at all from the last part of Máy until the following early part of October of each year. The usual attendance on the scheduled days when the recreation room is open is approximately 25 to 30 people. ³²³ It was not until the renewal of the liquor license was sought for the license year beginning May 1, 1967, that a protest to the Board was filed by residents and property owners in the neighborhood of Millbrook House, including the applicants in this case. The Board conducted a hearing on this protest on April 13,1967, at which time evidence was produced in regard to the alleged improper issuance of the license, the alleged disturbing effect of the license upon the neighborhood and the positions of the neighbors in regard to the renewal of the license.

After a lengthy hearing, the Board denied the protest and renewed the license. The protestante at that hearing decided not to appeal to the Baltimore City Court from this renewal of the license. The license has been renewed on May 1, 1968, and May 1,1969, both without protest. The original bill of complaint in the present case was filed in the Circuit Court of Baltimore City on March 31, 1967.

The Board filed a demurrer (and answer) to the original bill of complaint on June 3, 1967, and Loyola filed a demurrer on July 21, 1967. On June 5, 1968 the' demurrer of Loyola was overruled but the demurrer of the Board was sustained, except as to paragraph 27 of the original bill of complaint. On June 27, 1968, there was a substitution as parties defendant of two new members of the Board for the members of the Board displaced by the new members and oh June 28, 1968, an Amended Bill of Complaint was filed by the plaintiffs below. Ultimately, answers were filed to the Amended Bill and the trial below proceeded thereafter in regular course until the final order of July 1, 1969, dismissing the Amended Bill of Complaint.

We will discuss additional evidence produced at the hearing in the lower court as we discuss the issues raised before us. The appellants made two contentions before us which we will consider in the order set forth in the appellant’s brief. ³²⁴ (1) First, the appellants contend that the lower court clearly erred in finding that the Board had complied with the requirements of Article 2B of the Maryland Code concerning zoning, posting of notice, and advertising when it approved the liquor license on September 23, 1965. We do not agree with this contention. The thrust of the appellant’s argument on this point is that the uncontroverted evidence showed that there was no certificate of occupancy issued by the Bureau of Building Inspection for the use of Millbrook House as a club as required by the Baltimore City Zoning Ordinance and hence the liquor license was issued contrary to the provisions of Article 2B, § 43, which prohibits the issuance óf a liquor license in violation of any zoning rule or regulation.

Article 2B, § 43 of the Maryland Code specifically provides as follows: “No license or permit under the provisions of this Article shall be issued in violation of any zoning rule or regulation as the same may from time to time exist under and by virtue of any ordinance or ordinances passed pursuant to the authority contained in Article 66B of the Code of Public General Laws of Maryland, title ‘Zoning’, or Chapter 599 of the Acts of the General Assembly of 1933.” The relevant portions of the Baltimore City Zoning Ordinance are Sections 46 (a) and (b) of Article 40 of the Baltimore City Code (1966), providing as follows: “ (a) It shall be unlawful to use or permit the use of any building or land or part thereof hereafter created, erected, altered, changed or converted, wholly or partly, in its use or structure until a certificate of occupancy, to the effect that the. building or land or the part thereof so created, erected, altered, changed or converted and ³²⁵ the proposed use thereof conform to the provisions of this ordinance, shall have been issued by the Zoning Commissioner. “(b) A certificate of occupancy shall be required for the use of every building, or part thereof where a building is used for more than one use, or the use of land in Baltimore City, provided, however, that a permit issued by the Bureau of Building Inspection clearly stating the use and the extent of such use in a building or part thereof or the extent of the use of land, shall be sufficient as a certificate of occupancy.” (Emphasis supplied.) At the hearing in the lower court, the plaintiffs offered the testimony of Franklin W. Ashmeyer, Jr., Zoning Enforcement Officer for Baltimore City. Mr. Ashmeyer testified that in the Zoning Department file there was no certificate of occupancy, but he pointed out that there were permits in “our file showing the property as being used for alumni purposes.” He considered that the use of the basement with the proposed liquor license was a permitted use under the then existing zoning law “since it was considered the same as a club operated on a nonprofit basis.” As we have already indicated, when the Board submitted the application to the Zoning Division for its approval in regard to zoning, it was marked “residential — approved for private club” and returned to the Board. Further, we have already observed that various applications and permits issued by the Bureau of Building Inspection in connection with the renovations of Mill-brook House indicated that it was used for alumni or college purposes and that the Bureau of Building Inspection made an annual inspection of the property as a building used for public gatherings. It is clear to us that the purpose of Article 40, Section 46 of the Baltimore City Code has been carried out.

That purpose was to give the proper city authorities notice of any change in use of a property so that those officials could ascertain whether ³²⁶ or not there was any violation of the applicable laws. Subsection (b) indicates that a formal and separate “certificate of occupancy” is not necessarily required when a building is used for more than one use — as was Mill-brook House during the first part of the period of renovations — and that a permit stating the use and the extent of the use “shall be sufficient as a certificate of occupancy.” In our opinion, the mentioned applications and permits sufficiently indicate the alumni and college use, and there was substantial compliance with Article 40, Section 46 of the Baltimore City Code so that the Zoning Division correctly indicated compliance with the zoning law on the application for the liquor license. Second, the appellants argue that the evidence at the hearing in the lower court established that the Board failed to comply with the provisions of Art. 2B, § 60 (b) of the Maryland Code requiring that: “If the application [for a license] be in Baltimore City. . .the board shall cause a suitable sign or notice to be posted and to remain posted for a period of ten days in a conspicuous place upon the premises described in the application, said posting to be done at least ten days before action upon such application, and said notice shall also specify the class of license applied for and the time and place fixed by the board for hearing upon the application.” (Emphasis supplied.) There is no question that two signs were posted and remained posted for the 10 day required period. The applicants contend that there was no sign posted in “a conspicuous place” on the premises because, they say, although one of the signs was nailed to a post 14 feet in front of the front door of Millbrook House, there was no walkway leading up to the entrance to the dwelling and the sign on the post was 121 feet from the nearest point on the public sidewalk.

They further state that there were at the time a four foot high stone wall, some 40 ³²⁷ trees and numerous shrubs between the building and the sidewalk. Plaintiffs’ Exhibit No. 3, however, is a photograph of Millbrook House which shows the sign posted by Inspector Downey. There are some five steps up from the paved driveway to a flat area of concrete walk leading to the front door of the house and the sign — plainly visible in the photograph — is on the left of the concrete walk, 14 feet from the front door. As we have stated, because the property itself was on a side street, Mr. Van Collom testified that he instructed the Inspectors for the Board “that in addition to posting the property. . .to post the sign near the corner of Mill-brook and Cold Spring Lane.” Inspector Downey testified that he posted this second sign on the “athletic field,” on a stand “supplied by Dr. Fisher” from Loyola.

Plaintiffs’ Exhibit No. 4 was a photograph showing the location of the second sign behind an open mesh wire fence near the large permanent sign marked “Loyola College,” just off the sidewalk at the intersection of Millbrook Road and Cold Spring Lane. Inspector Downey testified “you couldn’t miss the sign.” The signs used by the Board are red, 18.25 inches long and 14.5 inches wide. The lettering on the sign is black, the largest letters (1.25 inches in size) being in the word “Notice.” The type of license, the name of the applicant and the time and place of the hearing appear on the sign. On the second sign it was noted that the property at which the license would be used was “4603 Millbrook Road.” Inspector Downey testified on cross-examination that he had been employed by the Board since February 1950 and had used the same form of notice during the entire time, his regular duties requiring him to post signs in connection with applications every three weeks.

He stated that in his opinion “these signs were posted so they could be seen.” Mr. Van Collom also testified that in the posting and advertising of the property in the present case he had not “in any way deviated from the administrative prac ³²⁸ tice” which had been his “experience over the last nineteen years.” Dr. George Weinstein, as assistant professor of ophthalmology at the Wilmer Institute of the Johns Hopkins Hospital and University, testified for the plaintiffs below that “an individual with visual acuity of 20/20 could be no more than seventy feet from these characters [the letters of the word ‘Notice’] and still correctly read the characters.” In his opinion the highest contrast is a white sign with black letters and that a sign of black letters on a red background or black on any other color “would be correspondingly lower contrast,” and only visible at a shorter distance than seventy feet. In answer to a hypothetical question, he expressed the opinion that the red sign in question “would not have been legible at a distance of 120 feet.” He admitted on cross-examination,