What happened at the Liquor Board on February 9, 2017.

Mr. Russell testified that he plans to run a fine dining restaurant and luxury theater showing first run films on seven screens. The patrons will be 21 and older.

Commissioner Moore noted that the Rotunda area has changed significantly in recent years. She asked about parking and whether there would be any movies for children. The applicants responded that they will be encouraging their patrons and staff to park in a parking garage and that they will not be showing movies for children, because all patrons must be over 21.

Chairman Matricciani noted that the agency had received a letter of support from the Hampden Community Council.

Commissioner Greenfield asked about policies for buying from wholesalers. He also asked about carding processes; Russell responded that people who look under 30 will be carded using a scanner at the door and when they purchase alcohol, either at the bar or in the theater.

Councilwoman Mary Pat Clarke testified in support of the application. She had some concerns related to parking, for customers and staff, because residents had expressed worries about not being able to find street parking. She also would have preferred a theater that allowed children. Commissioner Moore agreed that the applicants may want to consider having special events or other ways to include families with children, since Hampden is a neighborhood with a lot of young families.

Caroline Hecker, of Rosenberg Martin Greenberg, proffered that the restaurant at this location has been operating under a BD-7 license for several years, which they had recently transferred to another owner. The applicants would like to own other restaurant licenses in the city, which they would not be able to do with a BD-7 license. (Licensees may own up to six Class B restaurant licenses.)

The $200,000 capital investment required to obtain the Class B license was spent several years ago, when they first took ownership of the property and business. More recently, they spent about $8,000 to do some minor renovations.

The live entertainment, which they received at the property is family-friendly.

They have a good relationship with the community association in the area, but, according to Hecker, the association chose not to take a position on the application, due to some internal politics.

The commissioners expressed concern that the applicant lives far from Baltimore City and hasn’t taken the alcohol awareness class yet. Commissioner Moore also expressed concerns about the conflict of interest of having a community association board member as a licensee. Commissioner Greenfield, on the other hand, said that Ms. Gardner was a “saving grace.” Ms. Gardner testfied briefly that her community is a “high crime area” and that she wants to make sure that the store doesn’t become another drug hangout that sells alcohol to minors.

Commissioner Moore asked about the floor plan of the store provided with the application. Kodenski and Mangisteab clarified that what was labeled “store” in the floor plan actually referred to “storage.”

Commissioner Moore asked whether Jose Ribadeneira or Manuel Arguetas will have any interest in the business. The applicants responded that he did not know them. Commissioner Moore expressed concern about the required character witnesses, whom Castellon testified that he did not know. Castellon clarified that he does know Jose, but he knows him by the name Enrique.

Commissioner Greenfield noted that Ms. Ana Gladys Morejun had been held responsible for violations in the past, including Rule 4.05. When Mr. Maslan asked which violation that rule number corresponds to, Commissioner Greenfield asked Deputy Executive Secretary Tom Akras to answer the question, because “he’s like an encyclopedia on this.” Rule 4.05 prohibits licensees from being open after their prescribed hours of operation.

Boulden testified that he’s always wanted to try running a bar, though he’s never tried it before. Commissioner Moore noted that he is 80 years old, and it’s a lot of responsibility, rules and regulations. Boulden said that he feels good about it and he’s in great health. He’s been around the neighborhood, handing out cards for free drinks.

The current licensee testified that his current employee, Ron, has been with him for twenty years, and “the young lady” has worked with him for three or four years, was off for a while and has been back for two years. Moore asked her name and after a long pause, he replied, “Tina.”

Kodenski ended the hearing by saying, “this is proof positive of the legal rule of the fertile octogenarian” (a property law concept that is not relevant to the discussion before the Board). The commissioners did not respond.

The application is to replace Mr. Negash’s current operating Class A license with a BD-7 license. The commissioners did not ask any questions about how Mr. Negash will transform his retail package goods business into a tavern, though the applicant did submit a floor plan with his application that shows a bar and stools in a second-floor space.

As understandable as these delays and the request for more time are, the licensees truly do not seem to qualify for a hardship extension under the provisions of the code. There is no hardship that caused the closing or stopping or business operations, like a fire or an illness: rather, the closing was voluntary and delays arose afterwards. This is a small point, but cases like these illustrate the failure of the Board to read, interpret and come to conclusions based on the actual plain language of the statute that they are charged with enforcing.

Mr. Valeri expressed concerns that the MOU refers to a previous incarnation of the project, which included an open-air beer garden. The building currently has a glass roof, which was a requirement imposed by the BMZA. The licensees apparently refused to remove the section of the agreement that talks about the open-air area, even though a glass roof has been installed, just in case the roof is removed at some point in the future. Chairman Matricciani noted that, since the MOU will be a restriction on the license, if they want to remove the roof in the future, they will have to come back for permission.

Fogleman noted that the licensees will keep the kitchen open until 10:30pm and give quarterly reports to both community associations about the proportion of food to alcohol. Fogleman told the commissioners about some of the details of the project, including beer garden tables imported from Munich.

Mr. Hank Valeri, in opposition to the application, testified that he is concerned about licensees submitting applications to transfer but not acting on them in order to “toll” the 180-day rule restriction. In 2014, the law was changed to require that an application be complete before being scheduled for a hearing. He also raised concerns that there may be two licenses at the same premises. Chairman Fogleman responded that the timeline is clear that the license is alive for these purposes and that the applicants had already had zoning approval but that they had paid for a zoning verification letter from Zoning Administrator Geoffrey Veale only recently. Regarding the two licenses in one building issue, Fogleman said that the other license is on appeal and will not be returning to this location even if the Court of Special Appeals says that it is an unexpired license; he added that the last time the question was before the Board, “you killed it.”

Fogleman noted, “when I was on the board, the staff would pretty much just throw us out there and say, ‘hey, decide if these things are alive or not.’ I kind of prefer what’s going on here. The staff works for you and the staff gives you some research for you to make that decision.” Mr. Fogleman did not mention that, when he was Chairman, state law said that the “chairman of the Board [s]hall personally supervise the activities and investigations of the several inspectors and other employees of the Board;” he had the legal authority to create any policies and procedures that worked best for the agency.

Mr. Thomas Akras was then called by the commissioners to discuss the validity of the license to be transferred: see the notes, below, for further discussion.

§12–1407. (a) (1) The Board or the Board’s designee shall examine each application for the issuance or transfer of a license within 45 days of receipt of the application to determine whether the application is complete. (2) An application for the issuance, transfer, or renewal is not complete unless the applicant has: (i) obtained zoning approval or verification of zoning if the application is for renewal; (ii) submitted all documents required in the application; and (iii) paid all fines and fees that are due. (b) (1) A license hearing may not be scheduled unless the Board determines that the application is complete.

§12–2202. (a) A license expires 180 days after the license holder has closed the business or stopped active alcoholic beverages business operations at the premises for which the license is held unless: (1) an application for approval of a transfer to another location or another person under Subtitle 17 of this title has been approved or is pending.

As mentioned above, the commissioners do not seem to look at state law or their regulations, read them or cite to them during hearings. Occasionally they will ask Mr. Akras to dig out a particular rule and read it aloud. In this case, none of the commissioners or Board staff actually talked about the relevant criterion in the law, quoted above, which is: was the transfer of the license from Joey B’s to Crossbar pending as soon as the (admittedly incomplete) application was submitted? Maybe the answer is yes; maybe it’s no. This is a matter of legal interpretation that could rationally be viewed in more than one way. But neither the commissioners nor Mr. Akras mentioned the word “pending” at all, which is the only legally relevant term. The Rules and Regulations of the agency do not help us, since they do not contain the word “pending,” much less define it. Rather, Mr. Akras spent a lot of time talking about how the license was unexpired when the application was filed. The word “filed” is not defined or even mentioned in the relevant chapter of state law.

Notwithstanding any misstatements of the law, Mr. Akras is often called upon by the commissioners to make conclusions of law (i.e., whether a license is expired or not) that fall to the commissioners to determine.

Regardless of whether or not the Board adequately explained the facts and its legal reasoning for its conclusion, there is a huge loophole in the system where inactive licenses could be (and have been) allowed to languish as long as the transfer application was filed and the agency doesn’t schedule the transfer for a hearing. These aren’t technically zombie licenses, as Commissioner Moore pointed out, because they are not expired licenses. But the effect for communities could be the same.