Gen. 21] 21

ALCOHOLIC BEVERAGES

LIQUOR BOARDS – RESOLUTION OF POTENTIAL DEADLOCK OF

MONTGOMERY COUNTY BOARD

January 30, 2001

Mr. Ellsworth Naylor, Chairman

Board of License Commissioners of

 Montgomery County

You have asked for an opinion on the effect of two provisions

of the State alcoholic beverages law when the Board of License

Commissioners of Montgomery County (the “Liquor Board” or the

“Board”) is unable to reach a decision, by a vote of three of its

members, on an application for a liquor license. One provision,

specific to Montgomery County, requires the affirmative

concurrence of at least three members of the Board to approve, as

well as to deny, a license. The other provision, which applies

statewide, calls for approval of a license application unless a liquor

board makes certain findings against the applicant. You ask whether

these two provisions conflict and, if so, which controls.

We conclude that the two provisions, properly construed, can

be harmonized in the following manner. If three members of the

Board are unable to concur on either issuance or denial of the

license and to make the requisite findings, the Board should defer

action on the application until a future meeting. It is possible that

absent members of the Board may be present at a reconvened

meeting, or that members who were initially present may have

reconsidered the matter, and that three members will then concur.

If the reason for inability to obtain agreement of three members

is that one or more members decline to act because of actual or

potential conflicts of interest, the Board may invoke the “rule of

necessity,” which would allow those members to participate so that

the Board can reach a decision. If the Board’s failure to act

continues for an unreasonable period of time, or is attributable to the

existence of one or more vacancies, an applicant may apply to the

circuit court for a writ of mandamus to compel a decision or the

necessary appointments to the Board.
22 [86 Op. Att’y

Resort to the rule of necessity or to a writ of mandamus might

be avoided if the General Assembly were to clarify the alcoholic

beverages law applicable to Montgomery County by making either

approval or denial alone contingent on the assent of a majority of

license commissioners. 

I 

Statutory Provisions

A. Statewide Provision – Section 10-202(a)(2)

The State alcoholic beverages law is codified in Annotated

Code of Maryland, Article 2B, §1-101 et seq. Section 10-202(a),

applicable for the most part statewide, sets out the general procedure

by which local boards of license commissioners act on applications

for liquor licenses. Paragraph (1) requires a local board to publish

notice and hold a hearing at which any person may testify for or

against the application. Paragraph (2), the portion pertinent to your

inquiry, then provides:

(2)(i) The application shall be

disapproved and the license for which

application is made shall be refused if the

Board of License Commissioners for

[Baltimore] City or any county determines

that:

1. The granting of the license is not

necessary for the accommodation of the

public;

2. The applicant is not a fit person

to receive the license for which application is

made;

3. The applicant has made a

material false statement in his application;

4. The applicant has practiced fraud

in connection with the application;

5. The operation of the business, if

the license is granted, will unduly disturb the
Gen. 21] 23

 Section 10-202(a)(3) begins: “The provisions of this paragraph 1

apply to the subdivisions listed and supersede conflicting provisions

elsewhere in this subsection [i.e., in §10-202(a)(1) and (2)].” See also

Article 2B, §1-103 (where statement of general rule is followed by local

exceptions, the local exceptions prevail to the extent of any inconsistency).

peace of the residents of the neighborhood in

which the place of business is to be located; or

6. There are other reasons, in the

discretion of the Board, why the license

should not be issued.

 (ii) If no such findings are made by

the Board, then the application shall be

approved and the license issuing authority

shall issue the license for which application is

made upon payment of the fee required to the

local collecting agent.

B. Montgomery County Provisions

1. Section 10-202(m)

Other paragraphs of §10-202(a) and later subsections of §10-

202 include local provisions for specific Maryland counties.1

Section 10-202(m) sets forth procedures for the issuance and transfer

of liquor licenses in Montgomery County, as follows:

(m)(1) In Montgomery County, before a

license is issued or transferred, the Board of

License Commissioners shall cause a suitable

sign or notice to be posted ... on the premises

described in the application ....

 (2) A decision on an application for

a license shall be made on the basis of

evidence of record.

 (3) When the Board of License

Commissioners acts upon an application for a

license, the Board shall adopt a resolution

which shall contain a detailed statement of the

grounds and findings forming the basis for the
24 [86 Op. Att’y

decision and the vote of each member of the

Board on the decision. ...[I]n the case of

denial, the Board shall inform the applicant in

writing of the procedures for appeal.

(4) The Board shall adopt rules of

procedure, subject to the approval of the

County Council.

2. Section 15-104

Later in Article 2B, §15-104 provides for the appointment of

members of the boards of license commissioners in certain counties

by the county commissioners or the county executive. Section 15-

104(c) details the structure of the Montgomery County Board and

includes additional provisions concerning its procedure:

(c)(1) In Montgomery County, the

Board of License Commissioners consists of

5 members, appointed by the county

executive, subject to confirmation by the

county council.

 (2) Each member of the Board serves

a term of 4 years ....

(3) Not more than three members of

the Board shall be members of the same

political party.

(4) The Board annually shall elect

one of its members as chairman.

(5) Three members of the Board

constitute a quorum for transacting business.

At least three members who are present at the

voting session must concur in the approval,

denial, revocation, suspension, or

reclassification of an alcoholic beverage

license.

C. Possible Conflict

You have discovered that the import of these provisions is

unclear when no three members of the Board agree on what action
Gen. 21] 25

 Similarly, if the Legislature were to revise §10-202(a)(2) to make 2

affirmative findings a prerequisite to approval of a license – as in a

provision that currently applies in Prince George’s County, see footnote

3 below – there would be a potential conflict with the requirement of §15-

104(c)(5) that three members concur in the denial of a license.

 This situation also pertains in two other counties, for which 3

virtually identical provisions require that at least three members of their

five-member liquor boards concur in the approval, denial, revocation,

suspension, or reclassification of a liquor license. See Annotated Code of

(continued...)

to take. On its face, §15-104(c)(5) appears explicit: “Three

members of the Board constitute a quorum for transacting business.

At least three members who are present at the voting session must

concur in the approval, denial, revocation, suspension, or

reclassification of an alcoholic beverage license.” However, as you

observe, that section provides no guidance to cover the foreseeable

contingency that a quorum of three might be present at a Board

session called to vote on a license application, but three members

might not agree on one or another course of action – that is,

approval, denial, revocation, suspension, or reclassification. The

problem might arise because one or more Board members are absent,

because one or more members perceive conflicts of interest that

prevent them from voting on the application, or because the

members are split on whether the issuance of a license is necessary

to accommodate the public, whether the applicant is fit to receive the

license, or whether any of the other findings in §10-202(a)(2)(i)

should be made. In your letter, you postulate a situation in which

only four members of the Board participate and they are deadlocked

2-2 on whether to approve or deny the application. 

If the Board cannot reach a decision under §15-104(c)(5), one

might look to §10-202(a)(2)(ii) as reflecting an intention on the part

of the General Assembly that a license be issued because three

members fail to agree on negative findings under §10-202(a)(2)(i).

However, if §10-202(a)(2)(ii) were read in this manner, it would

present a direct conflict with the §15-104(c)(5) requirement that “[a]t

least three members ... must concur in the approval ... of an alcoholic

beverage license.”2

Section 15-104(c)(5) plainly requires that either approval or

denial of a license is contingent on the vote of at least three members

of the Board. Section 10-202(a)(2)(ii) provides that a license is to 3
26 [86 Op. Att’y

 (...continued) 3

Maryland, Article 2B, §15-104(b) (Charles County); §15-104(d) (Queen

Anne’s County).

By contrast, in Prince George’s County the statute requires that at

least three members of the five-member liquor board concur only for

approval of a liquor license. Article 2B, §10-202(a)(3)(v). In addition, the

findings required to justify approval of a license have been recast for

Prince George’s County so as to supersede §10-202(a)(2) and therefore

eliminate any possible conflict. 

be issued unless the Board makes one of the negative findings listed

in §10-202(a)(2)(i); and in Montgomery County, the concurrence of

three members is necessary to make such a finding. Thus, both

statutes require three votes to deny a license, while the provision

specific to Montgomery County also requires three votes to grant a

license. The possible conflict arises when, for some reason, there

are not three votes for either action. 

II

Analysis

To respond to your question, we first examine the extent to

which the statutory provisions should be harmonized in light of their

legislative history. Second, we consider how the Board may give

effect to both provisions when there appear to be less than three

votes for either approval or denial.

A. Whether the Statutes Conflict

1. The Rule of In Pari Materia

Under the rule of in pari materia, a fundamental rule of

construction frequently announced and applied by Maryland

appellate courts, both statutes should be given effect to the extent

possible. For example, in State v. Ghajari, 346 Md. 101, 115, 695

A.2d 143 (1997), the Court of Appeals declared: “We presume that

the legislature intends its enactments ‘to operate together as a

consistent and harmonious body of law.’ ... Thus, when two statutes

appear to apply to the same situation, this Court will attempt to give

effect to both statutes to the extent that they are reconcilable.” See

also State v. Bricker, 321 Md. 86, 93, 581 A.2d 9 (1990);

Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 511, 525 A.2d
Gen. 21] 27

628 (1987); Bridges v. Nicely, 304 Md. 1, 10, 497 A.2d 142 (1985);

Kirkwood v. Provident Savings Bank, 205 Md. 48, 56, 106 A.2d 103

(1954) (“If [a] subsequent Act can be made, by any reasonable

construction or intendment, to stand with the previous legislation,

that construction will always be adopted”); Montgomery County v.

Eli, 20 Md. App. 269, 277, 315 A.2d 136, cert. denied, 271 Md. 735

(1974). The rule of in pari materia applies even if the statutes

involved were enacted at different times and without reference to

one another. Management Personnel Services, Inc. v. Sandefur, 300

Md. 332, 478 A.2d 310 (1984).

2. Legislative History

The legislative history of §§10-202 and 15-104 provides a

compelling case for harmonizing the two provisions, since the

General Assembly amended the very statutory provision embodying

§10-202 when it later enacted §15-104.

Section 10-202(a) of Article 2B can be traced back at least as

far as Chapter 501 of the Laws of Maryland 1947, the legislation

establishing in its present form the State’s system for regulating

liquor sales. See 75 Opinions of the Attorney General 62, 64 (1990).

The 1947 legislation added to Article 2B a new §52(a), under which

boards of license commissioners were required to cause the

publication of notice of any license application and to hold a

hearing. Section 52(a) then continued:

If the Board of License Commissioners ...

determines that the granting of the license is

not necessary for the accommodation of the

public or that the applicant is not a fit person

..., or has made a material false statement in

his application, or has practiced fraud in

connection with said application, or that the

operation of the business, if the license is

granted, will unduly disturb the peace of the

residents of the neighborhood ..., or that there

are other reasons, in the discretion of the

Board, why the license should not be issued,

then the application shall be disapproved and

the license applied for shall be refused. If no

such findings are made by the Board, then the

application shall be approved and the said

Board shall issue its certificate of approval ....
28 [86 Op. Att’y

 At the time Chapter 181 was being considered in the General 4

Assembly, a similar provision governed the proceedings of the

Montgomery County Board of Appeals (“Zoning Board”). All actions or

decisions of the Zoning Board, except decisions with respect to special

exceptions, required the affirmative vote of at least three of the five

members of the board, and special exception decisions required the

affirmative vote of at least four members. Montgomery County Code,

§59-A-4.123. In contrast to Article 2B, §15-104(c)(5), the County Code

contained a “tie-breaker” provision for zoning matters, to the effect that

“[i]f the concurrence of the necessary total of affirmative votes shall fail

to be achieved for any reason, then the petition or application shall be held

to be denied, or the action appealed from shall be held to be affirmed.”

Chapter 181, on the other hand, did not specifythe consequences of failure

of the members of the Liquor Board to concur.

 If there were an irreconcilable conflict between §10-202(a) and 5

§15-104(c), a number of factors might compel the conclusion that §15-

104(c) should prevail. First, Article 1, §13 of the Annotated Code of

Maryland provides that a public local law, at least one enacted by the

General Assembly, prevails over a public general law on the same subject.

See Montgomery County v. Eli, supra, 20 Md. App. at 277-78. In

addition, the alcoholic beverages law itself provides that a local exception

(continued...)

It was not until some 32 years later that the General Assembly

enacted, in the same piece of legislation, the substance of what are

now §§10-202(m) and 15-104(c) of Article 2B. Chapter 181, Laws

of Maryland 1979. Chapter 181 was sponsored by the Montgomery 4

County delegation, and it added to a then-existing provision

substantially identical to current §10-202(m)(1) all of the language

now embodied in §10-202(m)(2)-(4). It also replaced a then-existing

requirement that the Montgomery County Executive appoint a threemember board of license commissioners with language calling for

the County Executive to appoint a five-member board, adding the

precise words now embodied in §15-104(c)(3)-(5).

Because the 1979 enactment itself amended Article 2B, §60,

the successor to §52 and the predecessor of current §10-202 – a

section that in 1979 included both the general provisions now

codified in §10-202(a) and the local Montgomery County provisions

now codified in §10-202(m) – it seems safe to conclude that the

General Assembly was fully aware of the general decision-making

requirements in that section, and that it did not find them

inconsistent with the new requirement that three members of the

Board concur in any decision to issue or deny a liquor license. 

5
Gen. 21] 29

 (...continued) 5

or qualification prevails over a conflicting general provision. Article 2B,

§1-103. Finally, under general precepts of statutory construction, laterenacted and more specific or local legislation prevails over earlier-enacted

and more general legislation. See, e.g., Farmers & Merchants Nat’l Bank

v. Schlossberg, 306 Md. 48, 63, 507 A.2d 172 (1986). However, our

conclusion that the two sections can be harmonized avoids the need to

reach this question.

 In theory, it is conceivable that there could be three votes to deny 6

an application, thus satisfying §15-104(c)(5), but that the three members

would not agree on one of the reasons for denying a license set forth in

§10-202(a)(2)(i). However, §10-202(a)(2)(i)6 authorizes a board to deny

an application if there are “other reasons, in the discretion of the Board,

why the license should not be issued.” We think it unlikely that three

members who vote to deny a license could not come to agreement on a

finding under this provision.

B. Harmonizing the Statutory Provisions

The two statutes are both satisfied if three members of the

Board vote to deny a license and make one of the findings specified

by §10-202(a)(2)(i). Likewise, both statutes are satisfied if three 6

members vote to grant a license. Thus, there is no inevitable conflict

between the statutes in many cases, particularly when all members

of the Board are present and vote on a decision. 

However, when all five members of the Board do not

participate, the Board may find itself unable to comply with one or

both statutes. For example, if, because of absences, recusals,

abstentions, or vacancies, there are not three members in agreement

on either issuance or denial, the Board will be unable to make a

finding necessary to the denial of a license under §10-202(a)(2), and

it will likewise be unable to comply with the requirements of §15-

104(c)(5) to either grant or deny the application. Depending on the

reason for failure to obtain the required three votes, there are several

options that would permit compliance with both statutes. 

1. Postponement of Decision

First, the Board might postpone its decision on the pending

license until a future meeting. Absent members of the Board might

be present at the reconvened meeting, or members who were initially

present might have altered their views, so that there would be
30 [86 Op. Att’y

concurrence of three votes for a particular decision at the subsequent

meeting. In some cases, however, the Board might have to resort to

the rule of necessity to obtain the necessary votes.

2. The Rule of Necessity

If failure to obtain the concurrence of three members were a

result of the refusal or reluctance of one or more members to

participate, based on actual or potential conflicts of interest, the

Board might invoke the “rule of necessity,” a common law doctrine

that prevails over disqualification standards. See United States v.

Will, 449 U.S. 200, 211-16 (1980) (tracing lineage of the common

law rule of necessity, as it applied to judges, to its origins under

English common law). Under that doctrine, if a public body is

unable to reach a decision because one or more members have

disqualified themselves based on conflicts of interest, and if there is

no alternative tribunal to decide the matter, any member subject to

conflicting interests is allowed to vote despite those conflicts. See

Barker v. Secretary of State, 752 S.W. 2d 437, 440-41 (Mo. Ct. App.

1988); Allen v. Toms River Regional Board of Education, 559 A.2d

883 (N.J. Super. 1989). 

Maryland courts have employed the rule of necessity in a

number of instances. For example, in Gordy v. Dennis, 176 Md.

106, 5 A.2d 69 (1939), a case cited by the Supreme Court in Will, the

Court of Appeals considered whether judges on that Court should

recuse themselves from a case concerning the imposition of a state

income tax on the salary of judges. The Court noted that “the

disqualification of all the judges would destroy the only tribunal in

which relief by appeal may be sought. ... So, of necessity, the rule

as to the disqualification of judges must yield ....” 176 Md. at 109.

See also Chairman, Board of Trustees v. Waldron, 285 Md. 175,

179-80, 401 A.2d 172 (1979); Attorney General v. Waldron, 289

Md. 683, 685 n.2, 426 A.2d 929 (1981). 

The rule of necessity applies to administrative bodies that

exercise quasi-judicial functions, such as granting or revoking

licenses. Board of Medical Examiners v. Seward, 203 Md. 574, 581-

83, 102 A.2d 248 (1954). See also Opinion No. 86-029 (April 30,

1986) (unpublished) (rule of necessity would require mayor to

conduct hearing on charges against members of board of housing

commissioners, even if there were a basis for disqualification of

mayor). The General Assembly has also incorporated the doctrine

in the State Public Ethics Law. Annotated Code of Maryland, State
Gen. 21] 31

 SG §15-501(c) states that an official who otherwise would be 7

disqualified from participating in a matter may nonetheless participate in

the decision if:

(1) the disqualification would leave a body

with less than a quorum capable of acting;

(2) the disqualified official or employee is

required by law to act; or

(3) the disqualified official or employee is

the only individual authorized to act.

Government Article (“SG”), §15-501(c). A person who invokes the 7

rule of necessity to take part in a decision in spite of disqualifying

circumstances should disclose the nature of the conflict. See id.

Thus, if the Board’s failure to muster three votes for either

approval or denial of a license is the result of a recusal, under the

rule of necessity the recused members could participate in the matter,

after stating the nature of the conflict.

3. Mandamus

Finally, if intransigence on the part of one or more Board

members were to continue for such an unreasonable period of time

as to threaten a deprivation of due process to a license applicant, the

applicant would have the right to bring an action for mandamus to

compel the Board to reach a decision. See A.H. Smith Sand &

Gravel Co. v. Department of Water Resources, 270 Md. 652, 661-

62, 313 A.2d 820 (1974). Similarly, if the Board were unable to act

because of vacancies that the appointing authority for some reason

failed to fill, the applicant could apply to a court to compel the

necessary appointments.

III

Conclusion

In summary, §10-202(a)(2)(ii) and §15-104 can be read

harmoniously to require that three members of the Board

affirmatively concur in the issuance or denial of a liquor license. If

three members cannot immediately concur, the matter may be

postponed until a later Board meeting, the rule of necessity may be

invoked when appropriate, or, in an extreme case, the license
32 [86 Op. Att’y

applicant may obtain the intervention of a court. The need to resort

to extraordinary measures could be avoided if the General Assembly

were to clarify the alcoholic beverages law applicable to

Montgomery County to make approval or denial alone contingent on

the assent of a majority of license commissioners.

J. Joseph Curran, Jr.

Attorney General

Judith A. Armold

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice