An individual applying for a liquor license cannot be rejected simply because he or she is not a U.S. citizen, an Anne Arundel County Circuit Court judge has ruled.
Judge Alison L. Asti, in a matter of first impression in Maryland, ruled that while the 21st Amendment gives states broad powers to regulate alcohol, those regulations cannot violate the 14th Amendment’s Equal Protection Clause.
“This citizenship requirement operates to the disadvantage of a suspect class by discriminating who may be an individual licensee on a liquor license based on alienage,” Asti wrote Wednesday.
Baltimore, Howard and Prince George’s counties already do not require license holders to be citizens, according to her opinion.
Asti remanded to the Board of License Commissioners for Anne Arundel County the license application of Jose Portillo to determine “whether there is any basis to strike [Portillo’s] application other than the citizenship requirement.”
Portillo, the owner of Giuseppe’s Pizza & Pasta in Pasadena, immigrated to the United States from El Salvador and has been a lawful permanent resident of the United States since August 2013, according to Asti’s opinion. The resident card he presented to the liquor board expired in October 2013 but he subsequently renewed it, according to the opinion.
Portillo, who operates the restaurant on a day-to-day basis, applied for the liquor license with a business partner. In August, the board awarded the license only to the business partner, prompting Portillo’s appeal.
Citizenship requirements for liquor licenses also are found in Kansas, Iowa, and Vermont, according to Asti’s opinion. But Minnesota and Arizona struck down their citizenship requirements after challenges to the law were made, according to the opinion.
Under a 1933 state law, a liquor license applicant must be a registered voter, but courts over the years have found the requirement unconstitutional when dealing with non-citizens, according to a 2013 Court of Special Appeals opinion.
Richard C. Bittner, Portillo’s lawyer, cited the appellate court’s analysis in calling the citizenship requirement “discriminatory, outdated and prejudicial” in his memorandum on appeal.
“This illogical result does not advance any compelling government interest, and in fact restricts and impedes many,” he wrote, citing employment and tax collection.
Bittner, a Glen Burnie solo practitioner and former county liquor board chairman, did not respond to requests for comment Thursday.
Sara Arthur of the Arthur Law Group LLC in Annapolis, the liquor board’s lawyer, also did not respond to a request for comment Thursday.
Stephan W. Fogleman, former chairman of the Baltimore City Liquor License Board, praised the ruling for removing an impediment to small business owners.
“I don’t think alienage should be a bar for opening a bar,” said Fogleman, of The Law Offices of Fogleman & Ransom in Baltimore.
Charles E. Brooks, who has appeared before liquor boards across the state for more than 40 years, also applauded the ruling. Brooks, a Towson solo practitioner, recalled many instances where had to advise a non-citizen business owner to give up a portion of the business to a citizen in order to obtain a liquor license.
“It’s time it happened,” he said. “I have no idea why it was a requirement.”
David F. Mister, who has handled liquor board cases statewide for more than 35 years, said there are a “significant number” of noncitizens interested in applying for liquor licenses. But Asti’s opinion might also serve as the basis for challenging other potentially archaic aspects of the state’s liquor licensing laws, including a requirement that applicants must have lived for at least two years in the jurisdiction where they are seeking the license.
“Residency in the state should be more than adequate,” said Mister, of Mister, Winter & Bartlett LLC in Timonium. “That’s all we require in other forms of business.”
The case is In the Matter of Jose Portillo, 02C14190867.