Thana v. Board of License Commissioners
130 A.3d 1103
Md. Ct. Spec. App.2016Background
- Thai Palace (Thai Seafood & Grill, Inc.) obtained a Charles County liquor license subject to a 2009 consent order limiting live entertainment after prior incidents (fights, arrests) and a 2007 license revocation for nudity.
- In 2012 Thai Palace sought permission to offer live entertainment and consented to a second consent order (three-year term) forbidding outside promoters from "maintaining control" of entertainment and banning "go-go" entertainment.
- Sheriff’s Office investigations and advertisements/flyers led the Board to charge Thai Palace with violating the second consent order by using promoters and hosting go-go events; Board hearings produced witness testimony, flyers, and observations of go-go music.
- The Board found violations, revoked the consent orders, and revoked the Class B liquor license; Thai Palace sought judicial review in the Circuit Court, which affirmed the Board on substantial-evidence grounds but held the Board lacked authority to revoke the liquor license without proper procedure and remanded on penalty.
- On appeal to the Court of Special Appeals, Thai Palace for the first time raised a First Amendment challenge to the ban on go-go music; the Court addressed mootness, substantial-evidence review of the promoters finding, and whether the First Amendment issue was preserved or waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of appeal after consent order expired | Appeal not moot because collateral consequences possible and Thai Palace intends to seek entertainment permission again | Consent order expired so controversy ended | Not moot — collateral consequences and intent to reapply keep case live |
| Substantial evidence that promoters "maintained control" | Mrs. Thana controlled bookings and approved flyers; Board should credit her testimony | Flyers, Facebook ads, and witness observations showed third-party promoters organized events and VIP bookings | Affirmed: substantial evidence supported Board's finding of promoter control |
| First Amendment challenge to go-go ban (preservation) | First Amendment and unconstitutional-conditions claim raised on appeal | Licensee failed to raise constitutional claim before the Board; also proposed and consented to the restriction, so waived challenge | Not preserved and waived: appellate court declines to reach First Amendment merits |
| Board authority to revoke liquor license as penalty | Revocation was improper because no statutory revocation procedure/finding under Article 2B | Board argued license conditioned on consent order compliance | Circuit court held Board lacked statutory authority for revocation on these facts; that ruling was not disturbed on appeal |
Key Cases Cited
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (music is protected expression; content-neutral time/place/manner restrictions analyzed under intermediate scrutiny)
- Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) (live musical entertainment falls within First Amendment protections)
- Perry v. Sindermann, 408 U.S. 593 (1972) (government cannot condition benefits on relinquishment of constitutional rights)
- Bd. of Liquor License Com'rs for Baltimore City v. Fells Point Café, Inc., 344 Md. 120 (1996) (licensee who agrees to restrictions may be estopped from later challenging them)
- Paek v. Prince George's County Bd. of License Com'rs, 381 Md. 583 (2004) (administrative decisions upheld if supported by substantial evidence and free of legal error)
- Bulluck v. Pelham Wood Apartments, 283 Md. 505 (1978) (definition of substantial evidence standard for administrative review)