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Baltimore bars lose constitutional challenge to limited hours of operation

Appeals court rejects race discrimination claim

A Maryland statute requiring bars in a predominantly Black area of Baltimore to open later and close earlier than most others in the city does not violate the constitutional guarantee of equal treatment under the law, the state’s second-highest court ruled last week.

In its reported decision, the Court of Special Appeals said the General Assembly did not intentionally discriminate on the basis of race when it enacted the law known as Chapter 389 in 2020 in an effort to reduce alcohol-fueled violence in an especially crime-ridden area of the city.

Under long-standing Supreme Court precedent, parties challenging a law as racially discriminatory on equal protection grounds must prove the discrimination was intentional and not merely an unfortunate effect of the statute, the appellate court stated in its 3-0 decision. Sen. Cory V. McCray, D-Baltimore City and the law’s chief sponsor, stated in legislative documents in 2020 that the restricted hours in that part of his 45th legislative district were designed to reduce violent crime, the court noted.

“In fact, our thorough review of the record in this case, including all of the legislative history materials available from the General Assembly, reveals that the sponsors and supporters of Chapter 389 were solely focused on curtailing crime in the region – not on discriminating against a suspect class,” Judge Donald E. Beachley wrote for the appellate court. “In short, we see no evidence of a discriminatory intent.”

The controversial law limits the hours when bars can be open in a statutorily defined section of the legislative district to between 9 a.m. and 10 p.m., whereas other places can be open from 6 a.m. to 2 a.m.

The carved-out section is generally defined as bounded on the north by North Avenue; on the west by Central and Harford avenues; on the south by Monument and McElderry streets; and on the east by Luzerne Avenue and Rose Street.

Cory McCray

Cory McCray

Three area bars – M&M Lounge, Q’s Liquors and Tavern, and Cocky Lou’s – were cited for being open outside the authorized hours. They subsequently challenged the law’s constitutionality on equal protection grounds, arguing that their competitors in areas with smaller Black populations were permitted to stay open later.

The bars’ legal challenges were not consolidated in Baltimore City Circuit Court and resulted in one judge finding no constitutional violation but another ruling that the law violates equal protection.

The Court of Special Appeals, in upholding the law’s constitutionality, cited McCray’s legislative testimony as well as that submitted by the Baltimore Police Department regarding the area’s high violent crime rate, particularly near liquor establishments. The court also noted that counsel for the three bars conceded he had no evidence of discriminatory intent by the legislature.

“The record evidence unequivocally shows that the sole purpose in enacting Chapter 389’s restriction on hours was to curtail crime within the bounded area of the 45th legislative district,” Beachley wrote.

“Moreover, we note that Chapter 389’s operating hours restriction only targets a defined portion of the predominantly African American 45th legislative district – it otherwise leaves untouched the remaining portion of that district,” Beachley added. “If the legislation were truly designed to target African Americans, one would expect Chapter 389 to restrict the operating hours for liquor licensees in all of the predominantly African American neighborhoods located in the 45th legislative district. Chapter 389, however, does no such thing.”

Peter A. Prevas, the bars’ appellate counsel, said Tuesday that he and his clients are “considering” seeking review by the Court of Appeals.

Prevas said other laws have been enacted since the 2020 statute that have similarly required that bars in predominantly black Baltimore neighborhoods close at 10 p.m. while allowing other bars to stay open.

“The issue may be ripe for another analysis,” said Prevas, of Prevas & Prevas in Baltimore.

“There may be a pattern,” he added. “Yes we lost, but I think this is going to be a developing issue.”

McCray, the senator, hailed the Court of Special Appeals decision.

“It was very, very positive news,” McCray said Tuesday.

“The court stood by the community,” he added. “Because of the reduction in hours, we’ve seen public safety addressed.”

In its decision, the Court of Special Appeals also rejected the bars’ argument that Chapter 389 violated the Maryland Constitution’s requirement that each statute be limited to one subject.

The bars argued that Chapter 389 not only limited their hours but that an unrelated second statutory provision, or “subject,” applied to the changing of liquor license classifications.

The court, however, said the two provisions related to a single subject – “the overall regulation of alcohol in Baltimore City” – and, thus, the law was constitutional.

The Maryland Attorney General’s Office defended the law in court.

“We are pleased to have prevailed on the two constitutional challenges made by the licensees,” the office said in a statement Tuesday. “The Court of Special Appeals adopted our reasoning on both issues and found the bill passed constitutional muster.”

Beachley was joined in the opinion by Judges Christopher B. Kehoe and Melanie Shaw.

The Court of Special Appeals rendered its decision in the consolidated cases represented by Myong Nam Kim et al. v. Board of Liquor License Commissioners for Baltimore City, Nos. 137, 140, 885 and 886, September Term 2021.