SUTASINEE THANA, et al.
BOARD OF LICENSE COMMISSIONERS FOR CHARLES COUNTY
from the Circuit Court for Charles County, Helen Harrington,
BY: Charles G. Byrd, Jr. (Alston & Byrd on the brief) all
of Baltimore, MD, FOR APPELLANT.
BY: Matthew P. Clagett (Office of the County Attorney for
Charles County on the brief) all of LaPlata, MD, FOR
Nazarian, Zarnoch, Robert A., (Retired, Specially Assigned),
Md.App. 558] Robert A. Zarnoch, J.
appeal of a decision of the Circuit Court for Charles County,
a liquor licensee seeks to raise a First Amendment challenge
to a " consent order" of a county liquor board that
prevented the establishment from offering " go-go
entertainment." In musical terms, this case, at first
glance, may look like The Miracles' 1965 hit, "
Going to a Go Go" meets 1984's "
Footloose."  Ultimately, we conclude that, because
of waiver and preservation problems, the appropriate tune is
the Grass Roots' 1967 hit, " Things I Should Have
case revolves around go-go, but not the go-go that Smokey
Robinson and the Miracles sang about in 1965. Go-go music--an
offshoot of funk--originated in Washington, D.C., in the
1970s, and is characterized by a syncopated drum beat and
call and response.
2012, appellants Thai Seafood & Grill, Inc., trading as
Thai Palace, a restaurant and bar in Waldorf, Sutasinee [226
Md.App. 559] Thana, and Michael J. Lohman (" Thai
Palace" or " licensee" ), proposed and
consented to restrictions on the use of promoters and on
providing go-go entertainment in exchange for the ability to
present live entertainment at the restaurant as reflected in
a consent agreement with appellee, the Board of License
Commissioners for Charles County (the " Board" ).
Soon after, the Charles County Sheriff's Office received
information that Thai Palace was using promoters and playing
go-go music. The Board brought an enforcement proceeding
against Thai Palace, and after a hearing, found that it had
violated the consent order. Thai Palace raised no
constitutional objection at this time. The Board revoked Thai
Palace's liquor license and its ability to host live
Palace petitioned the Circuit Court for Charles County to
review the Board's decision, arguing, inter
alia, for the first time that the restrictions in the
second consent order violated the due process and equal
protection clauses of the Fourteen Amendment to the U.S.
Constitution. After a hearing held on June 23, 2014, the
circuit court denied Thai Palace's petition in part in an
order and memorandum opinion entered on October 15,
2014. Thai Palace then appealed to this
Court. Now for [226 Md.App. 560] the first time on appeal,
the licensee raises a First Amendment challenge to the 2012
consent order. Thai Palace now presents the following
questions for our review, which we have consolidated and
I. Whether this Court should dismiss the appeal as moot
because the consent order at issue expired on January 12,
2015, prior to oral argument?
II. Whether substantial evidence supported the Board's
finding that Thai Palace used promoters who maintained
control over the entertainment provided on site?
III. Whether Thai Palace preserved its First Amendment
argument and whether it waived its right to raise
constitutional issues when it entered
into the consent agreement with the Board? And, if the issue
is preserved and not waived, whether a liquor board violates
a licensee's free speech rights under the First Amendment
of the United States Constitution and the doctrine of
unconstitutional conditions when it conditions certain
benefits of a liquor license upon the business not providing
a certain type of music?
that the case is not moot, but that the licensee's
constitutional claim is not properly before us. Thus, we
affirm the circuit court and the decision of the Board.
helpful to provide some background from the record on the
incidents that occurred prior to the proceedings at issue
here and the interactions between Thai Palace, the Waldorf
community, and the Board. From 2006 through 2008, police
responded to numerous reports of fights, disorderly behavior,
controlled-dangerous substance violations, and concealed
weapon violations at the location of the licensee's
restaurant. In 2007, these incidents resulted in 35 adult
arrests and 35 juvenile arrests. That year, Thai Palace's
alcoholic beverage [226 Md.App. 561] license was revoked
after it hosted entertainment that featured nudity--a
violation of the Alcoholic Beverages Article, Article 2B of
the Maryland Code (1957, 2011 Repl. Vol.). From 2007 to
2009, after the liquor license was revoked, Thai Palace held
regular go-go events hosted by promoters. During this time
period, the Charles County Sheriff's Office received
numerous calls reporting criminal activity, including fights,
disorderly behavior, and controlled-dangerous substance
August 13, 2009, the Board held a hearing in which it
considered Thai Palace's application for a Class B, beer,
wine, and whiskey, liquor license. Following the hearing, on
November 12, 2009, the Board issued a consent order (the
" first consent order" ) in which it imposed
several conditions on the restaurant, including the condition
that " there shall be no entertainment other than dinner
music from either a radio and/or t.v. and that there will be
no other source of entertainment without prior written
approval of the Board. . ." The order provided that it
" shall remain in effect until changed by the Board of
first consent order remained in effect for two years without
incident. In 2011, Thai Palace requested that the [226
Md.App. 562] Board rescind the earlier consent order to
allow the restaurant to once again provide live
entertainment. The licensee assured the Board that it would
" maintain control over arranging . . . entertainment
and [would] not use an outside promoter to do so", and
that it would not " offer any 'go-go' type
entertainment." Following a hearing on December 11,
2011, the Board issued a second consent order on January 12,
2012, modifying the conditions imposed on the restaurant.
Under the second consent order, Thai Palace was "
authorized to offer additional entertainment in the licensed
premises to include instrumental and acoustical music;
Karaoke; DJ music and dancing[.]" However, the order
restricted Thai Palace from allowing " an outside
promoter to maintain control of any entertainment" and
from offering any " 'go-go'
entertainment[.]" These provisions were obviously a
response to the police involvement at the establishment from
2007 to 2009 and were designed to limit the size and
unruliness of the crowds in and around Thai Palace.
order was also to " remain in effect for a period of
three years from the effective date of this order and shall
act as an endorsement on the alcoholic beverage license
issued to the licensees for the same three year
period[.]" It further provided that, " upon the
expiration of three years from the effective date of this
order, . . . this Order shall expire and be null and void and
of no further effect." The order was signed for the
Board by a Charles County assistant county attorney and by
the chairman of the Board of License Commissions for Charles
County, and " [a]pproved and [c]onsented to" by
Sutasinee C. Thana, Michael J. Lohman, and their attorney,
David J. Martinez, for Thai Palace.
after the issuance of the second consent order, the Charles
County Sheriff's Office sent a memorandum to the Board,
detailing several violations of the second consent order. On
June 20, 2013, the Board issued a show cause order to Thai
Palace that alleged that the restaurant hosted numerous
events that were advertised by promoters and that featured
Md.App. 563] The Board held a hearing on December 12, 2013,
to review the alleged violations of the second consent order.
The Board's attorney called Master Corporal Judith
Thompson of the Alcohol Enforcement Unit at the Charles
County Sheriff's Office. Officer Thompson provided the
details of her investigation, which commenced in February
2012. She described flyers and Facebook posts that advertised
purported go-go bands at the restaurant. Several of these
advertisements contained names of promoters and used the
words " promoted by," described in further detail
below. The Board's attorney then called Officers Curtis
and Chandler, also with the Charles County Sheriff's
Office, both of whom worked security for Thai Palace as
second jobs. They each testified that they observed go-go
music playing at Thai Palace on several occasions while they
Curtis stated that she observed go-go music on two occasions
while the second consent order was in effect. When asked how
she knew that it was go-go music, she stated " Just from
my generation, growing up. Going to school, I know what go-go
music is. . . . [from] personal experience." She
described go-go music as " go-go music is a -- to me is
people -- a lot of bass, drums, talking -- you know, kind of
screaming somewhat into the music, very fast beat. . . .
It's hard to explain." She also commented on the
difference between go-go and rhythm and blues as: "
Go-go has -- it's pretty much the same beat. Whatever
song is played, it's the same beat, same fast-paced beat.
is different beats, different sounds, different words,
everything is different."
Chandler stated that she observed go-go bands playing at Thai
Palace about five or six times, but could not recall the
dates. She knew that it was go-go music from personal
experience, and when asked to define go-go music, Chandler
stated " It's just a ...