Can Maryland ban liquor licenses within 300 feet of a church's property line, and does that cover a church hall or parsonage?

Plain-English summary

The Board of License Commissioners for Somerset County asked the Attorney General about Article 2B, §53D of the Maryland Code, which barred the board from approving certain alcoholic beverage licenses within 300 feet of church property in Somerset County. A licensee who had held a license since before the law passed wanted to upgrade from an "off-sale only" license to "on-off sale." His premises sat within 300 feet of a church hall and parsonage, though more than 300 feet from the actual sanctuary building, and about 60 feet from the property line of the larger church parcel. The board wanted to know three things: whether §53D violated the First Amendment, whether "church" in the statute reached the hall and parsonage as well as the sanctuary, and whether an upgrade (as opposed to a renewal or transfer) fell within the law's grandfather clause for licenses that already existed in 1984.

The Attorney General concluded the statute was constitutional, relying on the U.S. Supreme Court's decision in Larkin v. Grendel's Den, which recognized that schools and churches have a valid interest in being insulated from establishments like liquor stores. On the scope of "church," the opinion found it didn't matter whether that word alone would cover an accessory building like a parsonage, because §53D measures the 300 feet from the property line of the church, not from the sanctuary building itself, so any structure within 300 feet of the church's property line, including a hall or parsonage on that same parcel, triggers the restriction. Comparing similarly worded distance statutes for other Maryland counties, and looking at how other states measure similar buffers, the opinion concluded the relevant line is the outer boundary of the whole church property, not just the building. On the grandfather clause, the opinion concluded it protects only a renewal or transfer of a license that already existed before the 1984 law, not an upgrade to a different type of license, because Maryland treated an upgrade administratively the same as applying for a brand-new license, and the statute barred new licenses within the buffer altogether.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here, including the current text and numbering of Maryland's alcoholic beverage licensing statutes (Article 2B has since been recodified) and any later case law on distance restrictions or license grandfather clauses.

Common questions

Did Maryland's 300-foot buffer around churches for liquor licenses violate the First Amendment?
No. The opinion found the law constitutional, relying on the U.S. Supreme Court's recognition in Larkin v. Grendel's Den that schools and churches have a valid interest in being insulated from certain commercial establishments, including liquor stores.

Did the buffer only apply to the church sanctuary building itself?
No. The opinion explained that §53D measures the 300 feet from the property line of the church, not from the church building, so a structure within 300 feet of the church's property line was covered by the restriction even if it was more than 300 feet from the sanctuary itself, reaching accessory structures like a hall or parsonage on the same parcel.

Could a licensee who already held a license before 1984 upgrade it without running into the 300-foot rule?
The opinion concluded no. It found that Maryland treated a license upgrade administratively the same as an application for a new license, and since the 1984 law barred new licenses within the buffer, the grandfather clause (which by its terms covered only "renewal or transfer" of a pre-1984 license) did not extend to an upgrade.

Background and statutory framework

Article 2B, §53D, enacted in 1984, barred Somerset County's Board of License Commissioners from approving certain alcoholic beverage licenses within 300 feet of a school, church or other place of worship, public library, or youth center, measured from the nearest point of the licensed building to the nearest point of the property line of the protected use. An uncodified savings clause in the same 1984 law provided that the measurement requirement did not apply to the renewal or transfer of any license already issued before July 1, 1984.

The opinion noted that other Maryland counties used different measurement points in comparable statutes: Anne Arundel County's §46 measured "entry to entry"; Baltimore and Harford Counties' §§47 and 52A(a)(1) measured building to building; and Charles and St. Mary's Counties' §49(b), like Somerset's, measured to the property line. Comparing Harford County's savings clause, which expressly protected "renewal, transfer, or upgrading" of a license, against Somerset's clause, which mentioned only "renewal or transfer," the opinion read the omission of "upgrading" from Somerset's clause as deliberate.

Citations and references

Statutes:

• Article 2B, §53D, Somerset County's 300-foot liquor license distance restriction from church, school, library, and youth center property
• Article 2B, §46, Anne Arundel County's "entry to entry" distance measurement
• Article 2B, §47, Baltimore County's building-to-building distance measurement
• Article 2B, §52A(a)(1), Harford County's building-to-building measurement and its savings clause covering "renewal, transfer, or upgrading"
• Article 2B, §49(b), Charles and St. Mary's Counties' property-line distance measurement

Cases:

• Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982), recognizing a valid interest in insulating schools and churches from establishments like liquor stores
• Jane Street Seafood Cafe v. New York State Liquor Authority, 426 N.Y.S.2d 200, 201 (N.Y. App. 1980), on the meaning of "church" in liquor licensing provisions
• Mint v. Utah Liquor Control Commission, 586 P.2d 428 (1978), same
• Doan v. Ascension Parish, 103 Md. 662, 668, 64 A. 314 (1906), on the primary meaning of "church" as an edifice for worship
• Zoning Board of Appeals v. McKinney, 174 Md. 551, 199 A. 540 (1938), on the test for whether a structure is used principally for religious worship
• Randolph v. Village of Turkey Creek, 240 La. 996, 126 So. 2d 341 (1961), construing a similar property-line distance statute
• Foodtown Inc. v. Town of Plaquemine, 129 So. 2d 877 (La. 1961), same
• Kamish v. Illinois Liquor Control Comm'n, 314 N.E.2d 240 (Ill. 1974), same
• Cities Service Co. v. Louisiana Dep't of Public Safety, 381 So. 2d 931 (La. 1980), same
• Hill v. Commonwealth Liquor Control Board, 388 A.2d 791 (Pa. 1978), treating a license upgrade as an application for a new license, not a transfer
• Baser v. Spaulding, 386 N.E.2d 1306 (Mass. 1979), same
• Maryland Comm'n on Human Relations v. Bethlehem Steel Corp., 295 Md. 586, 457 A.2d 1146 (1983), on the deference owed to an agency's interpretation of its own rules and regulations

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1991/Volume76_1991.pdf (this opinion appears at printed pages 35-40 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Alcoholic Beverages - Licenses - Distance Restriction From
Church Property

                         August 6, 1991

John P. Houlihan, Esquire
Counsel, Board of License
Commissioners of Somerset County

  On behalf of the Board of License Commissioners for Somerset

County, you have requested our opinion concerning the scope of Article
2B, §53D of the Maryland Code, which prohibits the issuance in
Somerset County of certain licenses to sell alcoholic beverages in any
building within 300 feet of church property. Specifically, you ask
whether §53D violates the First Amendment of the United States
Constitution. If the provision is constitutional, you ask whether the term
"church" would encompass a church hall and parsonage. Finally,
because the law contains an uncodified savings or "grandfather" clause,
we have identified an additional issue for consideration- whether a
licensee seeking to upgrade a license, as distinct from renewing or
transferring a license, is within the scope of the savings clause.

  For the reasons stated below, we conclude as follows:

  1.    Article 2B, §53D is constitutional.

   2.    In liquor licensing provisions, generally the term "church" by

itself refers only to the building that serves as a house of worship.
However, the distance requirement in Article 2B, §53D is framed in
terms of distance from the property line of the church and therefore in
effect encompasses outbuildings like a parsonage.

  3.    An upgrade of an existing license is not within the scope of

the savings clause.

                                      I

                               Background

  In 1984, the General Assembly enacted Chapter 38 of the Laws of

Maryland, codified as Article 2B, §53D.1 In pertinent part, this section
provides as follows:

                In Somerset County, the Board of License
          Commissioners may not approve any license to
          sell alcoholic beverages within a 300 foot
          measurement from the nearest point of the
          building that is the proposed establishment for
          which the license is requested to the nearest point
          of the property line of a school, church, or other
          place of worship, public library or youth center.

Uncodified Section 2 of Chapter 38 provides "[t]hat the measurement
requirement in this Act does not apply to, affect, or prohibit, in any
manner, the renewal or transfer of any license issued prior to July 1,
1984."

  Your opinion request stems from the following facts: A licensee

who held a license at the time of this statute's enactment has sought an
upgrade in his license status from "off-sale only" to "on-off sale." The
applicant's premises are within 300 feet of a church hall and parsonage
in Mt. Vernon, Maryland. The premises, however, are not within 300
feet of the actual church building. The licensed premises are also
approximately 60 feet from the property line of the contiguous parcel of
church property.

                                      II

                     Constitutionality of Statute

  This office considered the constitutionality of §53D when that law

was first enacted. In a bill review letter, the Attorney General
concluded that the restriction on liquor outlets within a reasonably
prescribed distance was constitutional. See Bill Review Letter from
Attorney General Sachs to Governor Hughes (February 10, 1984).

    1
        Unless otherwise stated, all statutory references are to Article 2B.

  That bill review letter relied on the Supreme Court case of Larkin

v. Grendel's Den, Inc., 459 U.S. 116 (1982), which recognized that
schools and churches have a valid interest in being insulated from certain
kinds of commercial establishments including liquor stores. Grendel's
Den remains good law and we therefore reaffirm the constitutionality of
§53D.

                                III

                  Application of the Statute

A. "Church"

   As we understand it, the applicant, focusing on the statute's use of

the term "church," argues that his establishment is not within the
restricted distance from the church. The church hall and parsonage,
although within 300 feet, are not the "church," he contends.

   The meaning of the term "church" can vary with context. In liquor

licensing provisions, the term "church" when used alone or in the term
"church building" usually refers only to the actual church building itself.
The "sine qua non for church status is the primary and paramount use of
the building for the holding of religious services." Jane Street Seafood
Cafe v. New York State Liquor Authority, 426 N.Y.S.2d 200, 201 (N.Y.
App. 1980) (citations omitted). See also, e.g., Mint v. Utah Liquor
Control Commission, 586 P.2d 428 (1978). See generally Doan v.
Ascension Parish, 103 Md. 662, 668, 64 A. 314 (1906) (["church's]
primary meaning ... is, 'an edifice or place of assemblage for Christian
worship.'") The general test is whether the structure is used principally
for religious worship. Zoning Board of Appeals v. McKinney, 174 Md.
551, 199 A. 540 (1938).

   However, for purposes of applying §53D, it does not matter

whether the term "church" is limited to the sanctuary building. This
statute prohibits a licensee from locating within 300 feet from the
"nearest point of the property line of a school, church or other place of
worship ...." (Emphasis added.) Thus, if a licensed establishment is
within 300 feet of a church property line, the scope of the term "church"
is irrelevant.

B. Measurement of Distances

  In enacting §53D, the General Assembly clearly identified a mode

of measurement to be used when determining distances. The 300 foot
cordon is measured between the "nearest point of the building that is the
proposed establishment for which the license is requested" to the "nearest
point of the property line of a ... church ...."

   In other sections of Article 2B, the General Assembly has

designated different terminal points for determining distance. For
example, §46, governing liquor license distance restrictions in Anne
Arundel County, provides that the measurement shall be "in a straight
line from entry to entry from a church or school ...." In Baltimore and
Harford Counties, measurement is from the "nearest point of the
building of the establishment to the nearest point of the building of the
school, church or other place of worship." §§47 and 52A(a)(1). In
Charles and St. Mary's Counties, much like Somerset, the distance is
measured by reference to "any building the nearest wall of which
measured in a direct line is within 500 feet of the property line of any
church ...." §49(b).

   We are not aware of any Maryland cases that have construed the

application of the "property line" point of measurement. However, cases
with identical or similar language from other jurisdictions have
construed that term to protect the entire contiguous parcel of property
measured by the property. Thus, an establishment must stay the
requisite distance away from any point on the property line. For
example, in Randolph v. Village of Turkey Creek, 240 La. 996, 126 So.
2d 341 (1961), the Louisiana Supreme Court considered a statute
virtually identical to §53D. In that case the premises to be licensed were
407 feet from a church. The distance between the premises and the
property line of the church, however, was only 207 feet. In upholding
the denial of the license, the court wrote:

              The use of the property line of the church,
       school, etc. is in our opinion, an obvious attempt
       by the legislature to permit the removal from the
       area occupied by such institutions, including their
       yards and grounds, those activities which are
       undesirable and which may be associated with
       establishments selling alcoholic beverages. It is
       felt, therefore, that insofar as the measurements
       at the church, school, etc. is concerned it must be
       made from the point nearest the sidewalk of its
       outer boundary or property line in which the
       usual and ordinary activities incident to such
       institution are carried on.

126 So. 2d at 349. See also Foodtown Inc. v. Town of Plaquemine, 129
So. 2d 877 (La. 1961). Accord, Kamish v. Illinois Liquor Control
Comm'n, 314 N.E.2d 240 (Ill. 1974); Cities Service Co. v. Louisiana
Dep't of Public Safety, 381 So. 2d 931 (La. 1980).

   Section 53D establishes the other terminal point of the distance

requirement as the nearest point of the licensed establishment. Thus, the
300 foot restriction is measured not from the actual church building
itself, but from the nearest point of the church property line to the
nearest point of the licensee's building. If that distance is less than 300
feet, a license should be denied.

   As indicated in Part I above, licenses in existence prior to §53D's

enactment are grandfathered in if the licensee is seeking a transfer or
renewal. Thus, under the facts of your inquiry, whether the particular
licensee may upgrade his current license turns upon the construction of
the savings clause. We next consider that provision.

                                    IV

                         The Savings Clause

   Although the uncodified savings clause in Chapter 38 of the Laws

of Maryland 1984 expressly allows any license in existence prior to the
statute's enactment to be transferred or renewed, it is silent regarding the
upgrade of a license. In our view, a licensee protected by the savings
clause may only renew or transfer a license of the same type held prior
to enactment.

   As we understand it, the procedures for the transfer or renewal of

a license in Somerset County are substantially the same. For example,
both procedures require a hearing only in the event of a protest. By
contrast, while there are no written regulations, an upgrade of a license
is administratively treated as an application for a new license.2
Inasmuch as §53D does not allow new licenses, it should not be
construed to allow upgrading a license, which amounts to the same
thing. See Hill v. Commonwealth Liquor Control Board, 388 A.2d 791
(Pa. 1978) (request for liquor license from beer-only license not a
transfer but an application for a new license). See also, e.g., Baser v.
Spaulding, 386 N.E.2d 1306 (Mass. 1979) (upgrade treated as new
license).

    2
      An agency's interpretation of its own rules and regulations is entitled to

great weight. Maryland Comm 'n on Human Relations v. Bethlehem Steel Corp.,
295 Md. 586, 457 A.2d 1146 (1983).

   We also find persuasive the fact that in a comparable provision,

where the General Assembly intended a savings clause to protect a
license upgrade, it said so expressly. Section §52A(a)(1), pertaining to
Harford County, has a savings clause for the "renewal, transfer, or
upgrading of license ...."

  In short, we do not think that a licensee seeking to upgrade a

license in existence prior to 1984 is protected by the savings clause in
Chapter 38. Rather, only licensees of the same type sought to be
transferred or renewed are protected.

                               V

                          Conclusion

  In summary, our opinion is as follows: Article 2B, §53D does not

violate the First Amendment of the Constitution. The section sets the
terminal point for measurement as the church property line. Therefore,
a licensee may not operate within 300 feet of the property line of the
entire parcel of land, even if the licensee's establishment is more than
300 feet away from the church sanctuary. Finally, the uncodified
savings clause of §53D applies only to the transfer or renewal of a
license, not to an upgrade of a license.

                            J. Joseph Curran, Jr.
                            Attorney General

                            Mary O'Malley Lunden
                            Staff Attorney

Jack Schwartz
Chief Counsel
Opinions & Advice