“Common sense must guide us in our interpretation of statutes, and ‘we seek to avoid constructions that are illogical, unreasonable, or inconsistent with common sense.’” (quoting Frost v. State, 336 Md. 125, 137 (1994))
How later courts described this case
- “Common sense must guide us in our interpretation of statutes, and ‘we seek to avoid constructions that are illogical, unreasonable, or inconsistent with common sense.’” (quoting Frost v. State, 336 Md. 125, 137 (1994))
- courts cannot “add []or delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute,” or “construe a statute with forced or subtle interpretations that limit or extend its application”
- explaining that courts “read the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory” (cleaned up)
- “Review of the legislative history of [a] provision may help confirm conclusions drawn from the text or resolve its ambiguities.”
Written by the judges who cited it.
The opinion
ALCOHOLIC BEVERAGES
STATUTORY INTERPRETATION – HEALTH – FOOD SERVICE
FACILITIES – WINERIES – WHETHER THE HOLDER OF A
CLASS 4 LIMITED WINERY LICENSE CAN PREPARE
CERTAIN LIMITED FOODS FOR SALE OR SERVICE AT THE
WINERY
March 14, 2023
The Honorable Edward C. Rothstein
President, Board of County Commissioners of Carroll County
Since the repeal of Prohibition in 1933, Maryland has had a
detailed scheme of laws that regulate the manufacture, distribution,
and sale of alcohol in the State. See 1933 Md. Laws, Spec. Sess.,
ch. 2; see also U.S. Const., Amend. XXI (repealing the 18th
Amendment and recognizing state regulation of alcohol). That
scheme, broadly speaking, establishes a “three tier” system that
distinguishes alcohol manufacturers from wholesalers, and
wholesalers from alcohol retailers. See Department of Legis.
Servs., Regulation of the Alcoholic Beverages Industry in
Maryland 13 (2017) (“Regulation of Alcohol”). Licenses for
manufacturers and wholesalers are issued by the State’s Alcohol
and Tobacco Commission (“ATC”), while retail licenses are issued
by the local boards of license commissioners in the counties and
Baltimore City. Regulation of Alcohol, supra, at 13; see also 99
Opinions of the Attorney General 31, 32 (2014).1
You have asked for an opinion of the Attorney General
regarding the scope of one type of manufacturer’s license—the
Class 4 limited winery license authorized by § 2-206 of the
Alcoholic Beverages Article. Among other things, that provision
1
These sources and others written before 2021 indicate that the State
Comptroller is responsible for licensing and regulating alcohol
manufacturers and wholesalers. In 2019, the Legislature passed a law
creating the Alcohol and Tobacco Commission, see 2019 Md. Laws, ch.
12, which, as of 2021, is tasked with issuing manufacturing and
wholesaling licenses, and generally enforcing and regulating the State’s
alcohol laws, see Comptroller of Maryland, “Maryland Alcohol [and]
Tobacco Commission,” https://www.marylandtaxes.gov/divisions/atc/index.php
(noting that, “[e]ffective January 1, 2021,” the ATC became “authorized
to enforce and regulate the state’s laws concerning alcoholic beverages”)
(last visited Mar. 8, 2023). The Comptroller continues to have authority
over alcohol taxes. See Alcohol & Tobacco Tax Joint Annual Report by
the Alcohol and Tobacco Commission & Comptroller of Maryland 1
(2021).
3
4 [108 Op. Att’y
permits a licensee to “sell or serve” only limited types of foods—
including, for example, baked goods, cured meats, fruits, and pizza.
Md. Code Ann., Alc. Bev. (“AB”) § 2-206(b)(5)(iii). You ask
whether this subsection allows the license holder to prepare the
listed foods on the winery premises for sale or service at the winery
or whether the license holder is instead limited to selling or serving
food prepared elsewhere. As explained below, we conclude that
nothing in AB § 2-206 precludes a limited winery license holder
from preparing the foods enumerated in that section on the
premises of the winery. But the license holder must still comply
with any applicable food service licensing requirements authorized
under the Health-General Article.
I
Background
A. Winemaking and Class 4 Limited Winery Licenses
State law regulating the manufacture, distribution, and sale of
alcohol is located in the Alcoholic Beverages Article. Division I
of that article contains general and statewide provisions. See, e.g.,
AB § 1-405 (precluding issuance of licenses for premises unless
the premises conform with certain tax requirements and zoning
laws, regulations, or ordinances); id. §§ 2-201 through 2-219 (laws
related to manufacturer’s licenses). Division II contains the
provisions relevant to local jurisdictions, including all of the
counties, Baltimore City, and Annapolis. In addition to authorizing
specific alcohol retail licenses for each local jurisdiction, see, e.g.,
id. § 16-803 (Class B beer and wine license in Carroll County), the
provisions in Division II also authorize jurisdiction-specific
exemptions from some of the general provisions in Division I, or
tailor those general provisions in certain ways,2 see id. § 1-202(b)
(“A provision in Division II of this article prevails over a
conflicting or inconsistent provision in Division I of this article or
2
Notably, while the General Assembly has, through laws enacted in
Division II of the Alcoholic Beverages Article, added variations to Class
4 limited winery licenses issued under § 2-206 in certain jurisdictions,
there is no local jurisdiction in which that class of manufacturing license
is entirely inapplicable. See, e.g., AB §§ 16-401(c)(1), 16-403
(providing that the Class 4 limited winery license applies in Carroll
County, and that a license holder that applies for a Class A wine license
is exempt from certain license population quota limitations); § 25-407(b)
(providing that, in Montgomery County, the “restrictions under
§ 2-206(b)(5)(iii), (6)(ii)”—the food service provisions—“do not apply
to a [Class B-BWL (clubhouse/lodge)] license issued under this
subsection”).
Gen. 3] 5
a provision in the Tax-General Article relating to alcoholic
beverages.”); compare, e.g., id. § 2-208 (providing, in Division I,
for a Class 6 Pub-Brewery License), with id. § 9-401(b) (providing,
in Division II, that a Class 6 Pub-Brewery License does not apply
in Allegany County). We focus here, of course, on the provisions
governing limited winery licenses that are codified in AB § 2-206.
The General Assembly first created the Class 4 limited winery
license in 1951. See 1951 Md. Laws, ch. 276. That law, among
other things, made changes to the ordinary “three tier” system to
allow the holder of a rectifying, winery, or brewery license to apply
for and obtain a wholesaler’s license. Id. By 1973, the Legislature
appeared to recognize that, in addition to operating as
manufacturers and wholesalers of alcohol, wineries occupied space
in the State’s agricultural and tourism industries as well. Thus, the
General Assembly amended the Class 4 limited winery license
provision so that wineries could engage in, to some extent, the
activities of all three tiers of Maryland’s system of alcohol
regulation—manufacturing, wholesaling, and retailing.3 See 1973
Md. Laws, ch. 593 (allowing holders of Class 4 limited winery
licenses to “sell wine made from products grown in Maryland at a
retail price at the plant to persons participating in a guided tour of
the facility”); see also Regulation of Alcohol, supra, at 7 (noting
that “[i]n the last several decades, economic forces have prompted
manufacturers, wholesalers, and retailers to expand their scope of
operations, causing a partial melding of the three tier system”). In
light of these laws, one historian of Maryland wine has suggested
that “wineries don’t easily fit into th[e] three-tier system, as they
are a unique business model that happens to be a manufacturer, a
wholesaler and quite often a retailer of its own product.” Regina
McCarthy, Maryland Wine: A Full-Bodied History 87 (2012).
Maryland had nine wineries by 1984, McCarthy, supra, at 65,
and throughout the 1990s and early 2000s, the industry continued
to grow, id. at 68, 72. In 2004, the Secretary of Agriculture
appointed the Maryland Wine and Grape Advisory Committee
(“Wine & Grape Committee”) to “investigate the Maryland wine
industry and learn how to promote its growth.” Id. at 89. The Wine
3
In some instances, a manufacturer may need additional alcoholic
beverage licenses in order to act as a wholesaler or retailer. See, e.g., AB
§ 2-307 (providing for Class 6 limited wine wholesalers’ licenses, which
holders of Class 4 limited winery licenses may obtain). However,
“[e]xcept as provided in Subtitle 3”—the subtitle governing wholesalers’
licenses—“a [Class 4 limited winery] license holder need not obtain any
other license to possess, manufacture, sell, or transport wine or pomace
brandy.” Id. § 2-206(b)(4).
6 [108 Op. Att’y
& Grape Committee issued a report the next year detailing fifty-
five recommendations aimed at “mak[ing] Maryland a welcome
and attractive state for investors to plant vineyards and open
wineries” and “moderniz[ing] liquor laws related to wine making
and marketing.” Maryland Wine & Grape Advisory Committee,
Maryland Wine: The Next Vintage 1 (2005) (“Next Vintage
Report”). Among the recommendations for “[l]egislative changes
to foster industry growth,” the Wine & Grape Committee urged that
laws be enacted to “[e]nable Maryland wineries to establish a
restaurant on the winery’s premises.” Id. at 18-19. The committee
explained that “[a]s tourist destinations, wineries need the ability
to add related attractions to their site in an effort to further promote
their product in an ideal setting,” and that on-site restaurants would
“facilitate longer visits and extend wineries’ opportunities to
market their wines to consumers.” Id. at 19.4
In 2005, the General Assembly created the Governor’s
Advisory Commission on Maryland Wine and Grape Growing
(“Wine Commission”).5 See 2005 Md. Laws, ch. 319. Among
other things, the Wine Commission was charged with “provid[ing]
a forum to address the issues that are relevant to wineries and grape
growers” and “identify[ing] strategies to facilitate growth of
viticulture of the state.” Id. In 2008, the Wine Commission issued
a report titled “Impediments to Growth,” which flagged specific
statutes and regulations that the Commission believed were
impeding the growth of wineries and vineyards in Maryland.6
McCarthy, supra, at 91.
The recommendations in the Wine Commission’s 2008 report
inspired legislation introduced in 2009 that would have created, in
4
The report does not explain why, in the Committee’s view, wineries
were not permitted to establish restaurants on their premises. It is not
clear to us whether the law at the time would have prohibited such a
practice, at least assuming the winery obtained a Class B alcoholic
beverages license, but there is no need to decide that question here in
order to respond to your opinion request.
5
The Wine Commission recently ceased to function. In 2022, the
Legislature repealed the provisions related to the Wine Commission and
created the Advisory Commission on Maryland Alcohol Manufacturing,
which focuses on a broader range of alcohol manufacturers, including
breweries and distilleries. See 2022 Md. Laws, ch. 462; see also Md.
Code Ann., Econ. Dev. §§ 5-2101 through 5-2112.
6
Although the Wine Commission’s 2008 Report appears to have been
central to the drafting of amendments to AB § 2-206 considered in 2009
and 2010, we have been unable to locate this 2008 report.
Gen. 3] 7
a number of different counties, a “Class W winery license.” See,
e.g., H.B. 351, 2009 Leg., Reg. Sess. (First Reader) (Washington
County); H.B. 772, 2009 Leg., Reg. Sess. (First Reader) (Carroll
County); see also Hearing on H.B. 772 Before the House Econ.
Matters Comm., 2009 Leg., Reg. Sess. (Feb. 23, 2009) (written
testimony of Barbara J. Beverungen, Manager, Carroll County
Tourism). Under the legislation, a Class W license would have
issued only to those already holding Class 4 manufacturing
licenses, and would have, among other things, explicitly allowed
the licensee to “sell and serve food incidental to the sampling of
wine” and “maintain tables, chairs, and other appropriate indoor
and outdoor furnishings to enable patrons to consume wine and
food.” H.B. 772, 2009 Leg., Reg. Sess. (First Reader). These bills
that proposed establishing a Class W license received an
unfavorable report in committee, and the legislation did not pass.
Then, in 2010, the General Assembly enacted the Maryland
Winery Modernization Act. 2010 Md. Laws, ch. 355. Like the
bills introduced in 2009, that law was informed by the
recommendations in the Wine Commission’s 2008 report. See
Hearing on S.B. 858 Before the House Econ. Matters Comm., 2010
Leg., Reg. Sess. (Apr. 6, 2010) (written testimony of the
Department of Agriculture). Among other things, the Act added
the explicit food service provision, now found in AB § 2-
206(b)(5)(iii), that we are being asked to interpret in this opinion.
2010 Md. Laws, ch. 355. As introduced, Senate Bill 858 allowed
a license holder to “sell or serve” only specific, enumerated types
of food, including, for example, bread and other baked goods, chili,
cured meats, hard and soft cheeses, pizza, and soup. S.B. 858, 2010
Leg., Reg. Sess. (First Reader). According to a floor report, this
list was based on the foods sold and served at existing wineries at
the time. Floor Report, House Econ. Matters Comm., S.B. 858,
2010 Leg., Reg. Sess., at 5 (“House Floor Report”).
During the legislative process, Senate Bill 858 was amended,
at the urging of the agency that was then called the Department of
Health and Mental Hygiene (“DHMH”), to specify that “nothing in
this subsection limits the application of relevant provisions of Title
21 of the Health-General Article, and regulations adopted under
that title, to a licensee.” Amend. No. 774239/1, S.B. 858, 2010
Leg., Reg. Sess., at 2-3 (Senate Educ., Health, & Env’t Affairs
Comm.). DHMH explained that the proposed amendment would
“clarify that a winery that serves or sells food is required to obtain
a license issued by the department,” given that “[m]any of the foods
listed in the bill that the licensee may offer are potentially
hazardous and require careful handling to prevent cross
8 [108 Op. Att’y
contamination and the growth of pathogenic microorganisms.”
Hearing on S.B. 858 Before the Senate Educ., Health, & Env’t
Affairs Comm., 2010 Leg., Reg. Sess. (Mar. 5, 2010) (written
testimony of DHMH).
In 2016, the Legislature moved the provision for Class 4
limited winery licenses to § 2-206 of the newly created Alcoholic
Beverages Article. 2016 Md. Laws, ch. 41. The language of the
statute did not change in any substantive way. See id. (Revisor’s
Note). Since then, AB § 2-206 has been amended numerous times,
but not in a manner substantively relevant to the section’s food
service provisions.7
Section 2-206(b) currently provides, in relevant part, that a
limited winery “license holder may . . . sell wine and pomace
brandy produced by the license holder for consumption,” and “sell
or serve only”:
1. bread and other baked goods;
2. chili;
7
The General Assembly is currently considering bills that would
amend AB § 2-206(b) to expand the food service provisions.
Specifically, those bills would add language that “[a] license holder is
not limited to selling or serving only the food specified in paragraph
(5)(iii) . . . if the license holder . . . is also licensed to operate a food
establishment under Title 21, Subtitle 3 of the Health-General Article,”
and meets a certain ratio of receipts as between food and alcohol sales.
See H.B. 246, 2023 Leg., Reg. Sess. (First Reader); S.B. 322, 2023 Leg.,
Reg. Sess. (First Reader). Prior to the committee hearing, the House
bill’s sponsor offered two amendments, one of which, she explained,
“clarifies the legislative intent dating back to the Winery Modernization
Act of 2010 that wineries are able to ‘prepare’ and serve foods—such as
pizzas, chili, soup, and baked goods.” Hearing Before the House Econ.
Matters Comm. (Feb. 20, 2023) (written testimony of Del. Andrea
Fletcher Harrison). On March 13, 2023, the Senate version of the bill
passed the Senate floor unanimously after having been amended in the
same way as the House version of the bill. As amended, the bill permits
wineries to “prepare, sell, or serve” food. S.B. 322, 2023 Leg., Reg.
Sess. (Second Reader). Assuming that the bill as amended is ultimately
enacted, the question of whether anything in AB § 2-206(b) prohibits a
Class 4 limited winery from preparing the foods listed in subparagraph
(b)(5)(iii) on-site would presumably be resolved. We emphasize,
however, that the bill as amended still includes the proviso that
“[n]othing in this subsection limits the application of relevant provisions
of Title 21 of the Health–General Article, and regulations adopted under
that title, to a license holder.” Id.
Gen. 3] 9
3. chocolate;
4. crackers;
5. cured meat;
6. fruits (whole and cut);
7. hard and soft cheese (whole and cut);
8. salads and vegetables (whole and cut);
9. the following items made with Maryland
wine:
A. ice cream;
B. jam;
C. jelly; and
D. vinegar;
10. pizza;
11. prepackaged sandwiches and other
prepackaged foods ready to be eaten;
12. soup; and
13. condiments.
AB § 2-206(b)(5)(i) and (iii).
In addition, “a license holder may conduct” those activities
only:
(i) for off-premises consumption of wine and
pomace brandy and for sampling, from 10
a.m. to 10 p.m. each day; and
(ii) for on-premises consumption of wine and
pomace brandy and sales and service of food
on the licensed premises:
1. from 10 a.m. to 6 p.m. each day; or
2. if guests are attending a planned
promotional event or other organized
activity on the licensed premises, from 10
a.m. to 10 p.m. each day.
Id. § 2-206(b)(7). Finally, the statute specifically provides that
“[n]othing in [subsection (b)] limits the application of relevant
provisions of Title 21 of the Health-General Article, and
10 [108 Op. Att’y
regulations adopted under that title, to a license holder.” Id.
§ 2-206(b)(10).
B. Food Service Licensing
Like the provisions of the Alcoholic Beverages Article, the
laws regulating food establishments and food service in Maryland
are detailed and complex. Their overarching purpose is to ensure
that “all food establishments in this State are constructed, operated,
and maintained in a manner that assures that all food manufactured,
processed, stored, or prepared for human consumption is done so
under conditions necessary to protect the public health, safety, and
welfare.” Md. Code Ann., Health-Gen. (“HG”) § 21-303.
Consistent with that purpose, the law also requires the Maryland
Department of Health (“MDH”) to “adopt rules and regulations
necessary to carry out the provisions of [the State’s food
establishment law],” id. § 21-304(a)(1), and permits home rule or
charter counties and Baltimore City to “adopt and enforce laws,
ordinances, and regulations that are consistent with the purposes of
[the State law],” including local licensing laws, id. § 21-304(c).
Those laws, ordinances and regulations, however, may not be “less
stringent than [the] rules and regulations adopted under [State
law].” Id. § 21-304(b); see, e.g., Baltimore City Health Code,
§§ 6-101 through 6-802.
Under the Health-General Article, a “food establishment”
means a “food service facility” or “food processing plant.” HG
§ 21-301(f). A “food service facility,” in turn, is broadly defined
to mean “[a] place where food or drink is prepared for sale or
service on the premises or elsewhere” or “[a]ny operation where
food is served to or provided for the public, with or without
charge.” Id. § 21-301(h)(1); see also COMAR
10.15.03.02B(34)(b) (providing examples of food service facilities,
including restaurants, coffee shops, taverns, and a “food operation
in an industry . . . in which food or drink is prepared for sale or for
service on the premises or elsewhere”). MDH regulations,
however, provide that facilities that “offer[] only prepackaged
foods that are not potentially hazardous” as defined by regulation
are not considered food service facilities. COMAR
10.15.03.02B(34)(c)(i).8
8
MDH regulations also specify that certain other types of facilities,
including, for example, a “[f]ood preparation or serving area where food
is prepared or served only by an excluded organization,” do not qualify
as food service facilities for purposes of Title 21, Subtitle 3 of the Health-
Gen. 3] 11
Generally, to operate a food establishment, a person must be
licensed by MDH. HG § 21-305(a). In practice, however, the
required license is typically issued by a county health department
acting under authority provided by HG § 21-304(b) and (c)—unless
MDH determines, after a hearing, that the licensee is not in
compliance with State law, in which case MDH must “act to ensure
that the food establishment and its operator comply with [State
law].” Id. § 21-305(d); see also Maryland Department of Health,
Office of Food Protection, Facility & Process Review,
https://health.maryland.gov/phpa/OEHFP/OFPCHS/Pages/plan-
review.aspx (last visited Mar. 8, 2023) (explaining that “many of
the responsibilities for retail food are delegated to the local health
departments, including facility licensing and inspection”).
The license application form must include the applicant’s
name and address, the location and type of the proposed food
establishment, and “any other information [MDH] requires.” HG
§ 21-306. In order to qualify for a license, an applicant must
comply with the requirements of State law, agree to permit access
for any required or permissible inspections, and pay the licensing
fee, unless exempt. Id. § 21-307. State law allows MDH or a
representative to “[e]nter and inspect any food establishment” at
any “reasonable time,” and a licensee may not refuse to grant
access to the facility or interfere with an inspection.9 HG § 21-313.
With this general background in mind, we turn to your
question of whether a Class 4 limited winery license holder may
prepare food on the winery premises or whether, as the
memorandum prepared by your County Attorney suggests, a Class
General Article. COMAR 10.15.03.02B(c)(iii). However, none of these
other exceptions appear to implicate wineries, which are not an
“excluded organization” as defined in Maryland’s Code or by MDH
regulations. See HG § 21-301(e) (defining “excluded organization” to
mean a volunteer fire company or nonprofit fraternal, civic, war
veterans’, religious, or charitable organization or corporation that does
not serve food to the public more often than four days a week but which
may, once a year, serve food to the public for up to thirty consecutive
days); COMAR 10.15.03.02B(28) (same).
9
State law also imposes numerous “miscellaneous” obligations on
food service facilities. See, e.g., HG § 21-325 (providing toilet and
lavatory requirements for food service facilities), § 21-326 (requiring
food service facilities that “prepare[] food and provide[] seating for
patrons” to post a “diagram or illustrative directions” for choking rescue
maneuvers), § 21-330.2 (requiring food service facilities to “display
prominently in the staff area . . . a poster relating to food allergy
awareness”).
12 [108 Op. Att’y
4 license prohibits food preparation on the premises because the
General Assembly did not, in the County Attorney’s view, intend
to allow wineries to operate as food service establishments.
Memorandum of Timothy C. Burke, Carroll County Attorney, at 2
(Dec. 20, 2022) (“Burke Memorandum”).
II
Analysis
To answer your question, we must interpret AB § 2-206 and
determine, as best we can, the intent of the Legislature in enacting
it. In doing so, we start with the statute’s plain language. See Pabst
Brewing Co. v. Frederick P. Winner, Ltd., 478 Md. 61, 75 (2022).
If the text is “unambiguous and clearly consistent with the statute’s
apparent purpose,” we generally end our inquiry into legislative
intent and apply the statute as written. Id. “We ‘neither add nor
delete language so as to reflect an intent not evidenced in the plain
and unambiguous language of the statute, and we do not construe a
statute with forced or subtle interpretations that limit or extend its
application.’” Id. (quoting Lockshin v. Semsker, 412 Md. 257, 275
(2010)). Further, we consider the statute at issue “within the
context of the statutory scheme to which it belongs.” Id. Because
we presume that the General Assembly “intends its enactments to
operate together as a consistent and harmonious body of law,” we
also “seek to reconcile and harmonize the parts of a statute, to the
extent possible consistent with the statute’s object and scope.” Id.
at 75-76 (quoting Lockshin, 412 Md. at 276).
The text of AB § 2-206 does not explicitly authorize a Class
4 winery to prepare food. It simply provides that license holders
may “sell or serve only” a list of sixteen enumerated types of foods.
AB § 2-206(b)(5)(iii). But just because subparagraph (b)(5)(iii)
does not expressly permit food preparation does not necessarily
mean that food preparation is precluded.
Rather, in authorizing Class 4 wineries to “sell or serve”
certain types of food, the General Assembly seems to have
implicitly recognized that such a winery might prepare some of
those foods on-site, so long as the winery had the necessary license
for food preparation. That becomes clear when one examines the
list of foods that licensees are permitted to “sell or serve” under the
statute. Several of the listed foods either explicitly refer to
preparation—such as “fruits (whole and cut)” or “hard and soft
cheese (whole and cut)”—or are of the type that typically would
require some form of preparation, such as heating—such as chili,
pizza, and soup. Although the references to cut fruits and cheeses
Gen. 3] 13
could in theory refer to pre-prepared foods that had been cut
elsewhere, the statute separately permits a license holder to sell or
serve “prepackaged sandwiches and other prepackaged foods
ready to be eaten.” AB § 2-206(b)(5)(iii)(11) (emphasis added);
see also COMAR 10.15.03.02B(62)(a) (“‘Ready-to-eat food’
means food in a form that is edible without washing, cooking, or
additional preparation by the food service facility or the consumer”
(emphasis added)). This suggests that the “cut” fruits, cheeses,
salads and vegetables that the subsection permits do not necessarily
arrive at a winery in prepackaged, ready to be eaten form;
otherwise, there would be no need to list those foods separately
from “prepackaged foods ready to be eaten” permitted by
(b)(5)(iii)(11). See Lawrence v. State, 475 Md. 384, 404 (2021)
(explaining that courts “read the statute as a whole to ensure that
no word, clause, sentence or phrase is rendered surplusage,
superfluous, meaningless or nugatory” (cleaned up)).
Although it is possible that some of the listed foods could be
prepared elsewhere and then sold and served at the winery, we
doubt that the General Assembly expected, in specifically
authorizing Class 4 limited wineries to serve hot foods like pizza
or chili, that the winery could do so only if it bought those hot foods
fully cooked from another facility and then immediately resold
them—while still hot—at the winery. See Marriott Emp. Fed.
Credit Union v. Motor Vehicle Admin., 346 Md. 437, 445 (1997)
(“Common sense must guide us in our interpretation of statutes,
and ‘we seek to avoid constructions that are illogical, unreasonable,
or inconsistent with common sense.’” (quoting Frost v. State, 336
Md. 125, 137 (1994))). Consistent with that conclusion, we note
that the word “only” in the statute’s authorization to “sell or serve
only” a list of permissible foods modifies the list and not the phrase
“sell or serve.” That word placement suggests that the Legislature
intended to restrict only the type of food that may be sold or served
and did not intend to limit a winery’s ability to prepare that limited
food for sale or service (assuming, as discussed more below, that
the winery has the appropriate license for food preparation).
It is also significant that the text of AB § 2-206(b) contains an
explicit reference to Title 21 of the Heath-General Article, the title
that governs food, drugs, and cosmetics. Specifically, the statute
provides that “[n]othing in [AB § 2-206(b)] limits the application
of relevant provisions of Title 21 of the Health-General Article, and
regulations adopted under that title, to a license holder.” AB
§ 2-206(b)(10). This cross-reference to food service laws suggests
that the General Assembly contemplated that wineries might
prepare the foods enumerated in the statute in a way that would
14 [108 Op. Att’y
require a winery to obtain a food service license from MDH or the
local health department. As noted above, the Winery
Modernization Act was amended during the legislative session to
add this particular provision, presumably at the behest of DHMH,
who explained that “[m]any of the foods listed in the bill that the
licensee may offer are potentially hazardous and require careful
handling to prevent cross contamination and the growth of
pathogenic microorganisms.” Hearing on S.B. 858 Before the
Senate Educ., Health, & Env’t Affairs Comm., 2010 Leg., Reg.
Sess. (Mar. 5, 2010) (written testimony of DHMH). Although a
food service license can sometimes be necessary even if an entity
is merely selling or serving food (and not preparing it on site), see
HG § 21-301(h)(1) (defining food service facility to include “[a]ny
operation where food is served to or provided for the public, with
or without charge”), we suspect that, if wineries were entirely
precluded from preparing food on their premises, there might have
been less reason for concerns like those expressed by DHMH.
The memorandum prepared by your County Attorney
compares the text of AB § 2-206 to that of AB § 2-210, which
provides for Class 8 farm brewery licenses. Specifically, the
memorandum suggests that the language in AB § 2-210(c)(1)(iv)
that a license holder may, subject to certain conditions, “sell or
serve any food if the license holder is licensed to operate a food
establishment under Title 21, Subtitle 3 of the Health-General
Article” means that, while the Legislature intended farm brewery
license holders to operate as food service facilities, it did not intend
the same for Class 4 limited winery license holders, given the
absence of similar language in AB § 2-206(b). Burke
Memorandum at 2.
But we do not read AB §§ 2-206 and 2-210 together in that
way. The Class 8 farm brewery license provision contains, like AB
§ 2-206(b), a limited list of foods that all such license holders are
permitted to “sell or serve.” See id. § 2-210(c)(iii). There are food
items on those lists that could conceivably be sold or served by a
brewery or winery that is not a licensed food service facility. See,
e.g., id. § 2-206(b)(5)(iii)(3) and (11) (chocolate and prepackaged
foods); id. § 2-210(c)(1)(iii)(3) and (14) (same); see also COMAR
10.15.03.02B(34)(c)(i) (“‘Food service facility’ does not include a
. . . [f]acility that offers only prepackaged foods that are not
potentially hazardous as specified in § B(55)(c) of this
regulation.”). The language relied on by the County Attorney is
part of a separate rule that allows Class 8 farm brewers, if they have
a food service license, to “sell or serve” any foods, not just the
foods listed in subsection (c)(iii). AB § 2-210(c)(iv). The absence
Gen. 3] 15
of a similar provision in § 2-206(b), then, does not mean that Class
4 wineries are prohibited from preparing the specific foods
identified in that statute. Instead, it means that Class 4 limited
wineries are restricted to selling or serving only the foods listed in
the statute, even if a winery also has a food service license. In other
words, neither Class 8 nor Class 4 license holders are precluded
from preparing, on the licensed premises, the food that they are
entitled to sell or serve, so long as they have a food service license
if one is required. Read this way, the two provisions, which deal
broadly with the same subject, are “harmonize[d] . . . so that each
may be given effect.” Kushell v. Department of Nat. Res., 385 Md.
563, 577 (2005).
The legislative history of the 2010 Winery Modernization Act
also supports our conclusion that AB § 2-206 does not itself
preclude the preparation of the foods listed in subparagraph
(b)(5)(iii) on the premises of a Class 4 limited winery. See In re
O.P., 470 Md. 225, 255 (2020) (“Review of the legislative history
of [a] provision may help confirm conclusions drawn from the text
or resolve its ambiguities.”). Prior to the amendments enacted in
2010, the provision—then found in § 2-205 of Article 2B—did not
refer to food or food service at all.10 In 2007, our Office was asked
whether that version of the statute allowed the Comptroller11 or a
local board of license commissioners to “restrict the sale, service,
or consumption of food on [the] licensed premises of a winery in
Maryland.” Letter from Sandra Benson Brantley, Assistant
Attorney General, to Del. Barry Glassman, at 1 (Nov. 2, 2007)
(“Brantley Letter”). Our Office concluded that, as long as a winery
was serving alcohol only within the parameters of its
manufacturing license, “the winery may also serve and sell food
without authority granted by the local board of license
commissioners or the Comptroller.” Id. at 2. But, the advice letter
explained, “[i]f the winery qualifie[d] as a food service facility
under State law, it w[ould] have to be licensed by the local health
[department] under the authority of [MDH]” because “the food
10
As is still the case today, a different provision prohibited license
holders from “directly or indirectly” giving or offering food “for the
purpose of inducing, procuring or influencing” a customer to buy alcohol
to drink on the licensed premises, except that license holders were
permitted to place “hors d’oeuvres, pretzels, cheese or crackers” on a
counter for customers to consume without charge. See Md. Ann. Code,
Art. 2B, § 12-106 (2005 Repl. Vol.) (now codified at AB § 6-310(a)).
11
See supra note 1.
16 [108 Op. Att’y
service aspect is regulated by the local health [department], not the
Comptroller or the local board of license commissioners.” Id.12
Thus, in enacting what is now AB § 2-206(b)(5)(iii)—the
limited list of foods that Class 4 wineries are permitted to sell or
serve—during the 2010 legislative session, the General Assembly
would have been legislating on the basis of that 2007 advice from
our Office and with the background understanding that the
provision, as it existed at that time, did not prohibit wineries from
preparing, serving, and selling food so long as they did not do it in
a way that the Alcoholic Beverages law expressly prohibited and
had any necessary food service license. See, e.g., Md. Ann. Code,
Art. 2B, § 12-106 (2005 Repl. Vol.) (now codified at AB
§ 6-310(a)) (placing restrictions on the provision of free food).
And although the intent behind adding the specific list of foods in
2010 was apparently to impose some additional restrictions on the
ability of wineries to sell or serve food, the restrictions imposed
were very specific, and there is no evidence that they were intended
to change a winery’s ability to prepare food on its premises,
provided the winery stuck to the limited list of foods in the statute.
12
The 2007 advice letter also concluded that “a winery seeking to
serve food as well as beer, wine or liquor to additional person[s] beyond
those who participated in a guided tour or promotional event would need
to seek a Class B restaurant permit from the local board [of license
commissioners].” Brantley Letter at 2. A Class B license is an alcohol
retail license issued by local boards of license commissioners, typically
to hotels and restaurants. See, e.g., AB § 16-803(b) (“The [Class B beer
and wine] license authorizes the license holder to sell beer and wine at a
hotel or restaurant, at retail, at the place described in the license, for on-
and off-premises consumption.”). In 2007, when the advice letter was
written, the Class 4 limited winery provision authorized retail sale of
wine for on-premises consumption only in limited circumstances—i.e.,
to people “participating in a guided tour of the facility” or “attending a
scheduled promotional event or other organized activity at the licensed
premises.” Md. Ann. Code, Art. 2B, § 2-205(b)(3)(iv) (2005 Repl. Vol.
& 2006 Supp.). So in 2007, even assuming a Class 4 limited winery had
the MDH permits necessary to operate a restaurant, the winery would
have needed additional alcoholic beverages licenses to sell alcohol—
including its own wine—at that restaurant. The current Class 4 limited
winery provision, however, authorizes broader retail sale of wine and
does not require a winery to obtain additional retail licenses to sell wine
at retail. See AB §§ 2-206(b)(4) (providing that, except in the case of
wholesaling, “a license holder need not obtain any other license to
possess, manufacture, sell, or transport wine”), 2-206(b)(5)(i) (allowing
a license holder to “sell wine and pomace brandy produced by the license
holder for consumption”).
Gen. 3] 17
Numerous documents in the legislative history reveal that the
amendments related to food were viewed in that way. For example,
a floor report noted that under the bill, a winery “may only serve a
very limited menu, based on foods currently served at Maryland
wineries.” House Floor Report at 5. Similarly, in written
testimony, the Maryland Wineries Association explained further
that the bill “place[d] reasonable limits on wineries, which ha[d]
not existed to th[at] point,” including the “limited food menu,” and
that the limits were “all new restrictions which the Maryland
Wineries Association ha[d] accepted as part of creating the
consensus statutory framework.” Hearing on S.B. 858 Before the
Senate Educ., Health, & Env’t Affairs Comm., 2010 Leg., Reg.
Sess. (Mar. 5, 2010) (written testimony of Patrick H. Roddy,
Maryland Wineries Association) (“Roddy Testimony”); see also
id. (written testimony of Kevin M. Atticks, Executive Director,
Maryland Wineries Association) (noting that the bill “[r]estricts
food service at a winery to a specific list of food items”).
Indeed, the broader context of the Winery Modernization Act
supports the Maryland Wineries Association’s characterization of
the changes to the scope of winery food service as a compromise
between various parts of the alcoholic beverage and food service
industries. See Roddy Testimony at 2 (referring to a “consensus
statutory framework”). As noted above, the 2005 Next Vintage
Report recommended that the Legislature pass laws to “[e]nable
Maryland wineries to establish . . . restaurant[s] on their . . .
premises” in order to “facilitate longer visits and extend wineries’
opportunities to market their wines to consumers.” Next Vintage
Report at 18-19. But, as our Office opined in 2007, nothing in the
Class 4 limited winery license provision as written at that time
precluded Class 4 wineries from selling and serving food, assuming
they had any food service licenses that might be required. See
Brantley Letter at 2. Thus, in 2009, when the Class W legislation
allowing wineries to “sell and serve food” only “incidental to the
sampling of wine” was introduced, the Wineries Association
advocated for removing the “language regarding food service,” in
light of “[a]dvice from [an] Assistant Attorney General not[ing]
that Article 2B is not the proper place to regulate food.” Hearing
on H.B. 772 Before the House Economic Matters Comm., 2009
Leg., Reg. Sess. (Feb. 23, 2009) (written testimony of Kevin M.
Atticks, Executive Director, Maryland Wineries Association); see
also H.B. 772, 2009 Leg., Reg. Sess. (First Reader). By the time
the 2010 legislation was introduced, however, the Wineries
Association was apparently ready to accept “reasonable limits” on
what food may be served—and when that food may be served—at
Class 4 limited wineries. See Roddy Testimony at 1-2.
18 [108 Op. Att’y
Taken together, then, the history and context of the 2010
legislation suggest that the Legislature intended to separate Class 4
wineries from traditional restaurants, but to do so in very specific
ways that do not necessarily address food preparation—that is, by
imposing limitations on the type of food available for sale or
service, as specified in AB § 2-206(b)(5)(iii), and by limiting the
hours of food service operation, as set forth in subsection (b)(7).
The House Floor Report explained that the “operational limits”
placed on Class 4 wineries, including the more limited hours of
operation and limited food menus, were intended to make it so
those wineries could not compete with local restaurants. House
Floor Report at 5. Written testimony on behalf of the Maryland
Wineries Association stated that the “goal” of the proposed
legislation was to allow “Maryland wineries to be manufacturers
with exceptions, not to be restaurants, and not to be bars and
taverns.” Roddy Testimony at 1. The Wineries Association explained
further that the bill “separate[d] wineries from bars and taverns by,
for the first time, restricting retail operations from 6:00 p.m. until
closing at 10:00 p.m.” and “distinguishe[d] wineries from
restaurants by restricting them in the food items they can sell,” a
limitation that was “totally new” and “in addition to any zoning or
health department food handling restrictions.” Id. These very specific
limitations do not regulate where the food is actually prepared, let
alone preclude food preparation on winery premises entirely.
One of the primary arguments against the 2010 legislation,
advanced by the Maryland Restaurant Association, was that
allowing Class 4 limited wineries to sell or serve certain
enumerated foods essentially rendered those wineries
indistinguishable from restaurants. See Hearing on S.B. 858 Before
the Senate Educ., Health, & Env’t Affairs Comm., 2010 Leg., Reg.
Sess. (Mar. 5, 2010) (written testimony of Melvin R. Thompson,
President, Maryland Restaurant Association) (“Thompson
Testimony”) (maintaining that the “expansion into food sales . . .
goes beyond the winery’s core business” and had led to questions
of whether “granting such privileges to wineries would put nearby
restaurants and cafes at a competitive disadvantage”). To illustrate
its point, the Restaurant Association noted that “the fact that a
couple visiting a winery may choose to purchase a pizza at the
winery instead of at a nearby pizza shop [wa]s troubling.” Id. at 1.
Regardless of the merits of such critiques, however, the fact
is that there is no suggestion in the legislative history that the
General Assembly intended to go further than the express limits
imposed on the type of food that wineries could serve and the hours
that they could do so and to also preclude food preparation on
Gen. 3] 19
winery premises. See Pabst Brewing Co., 478 Md. at 75 (courts
cannot “add []or delete language so as to reflect an intent not
evidenced in the plain and unambiguous language of the statute,”
or “construe a statute with forced or subtle interpretations that limit
or extend its application”).
In fact, the General Assembly was presented with a suggested
amendment that would have clearly implicated—and restricted—
food preparation but failed to take any action on that measure. In
its written testimony, the Maryland Restaurant Association advised
that it opposed the bill unless amended to “restrict wineries to
selling and serving only prepackaged foods that are sold or served
directly to customers in such packaging.” Thompson Testimony at
1. The Restaurant Association explained that “[f]rom the very
beginning, [it] told [the Wineries Association] that [it] would have
no problem with legislation that limited the sale of food to
prepackaged products only,” and that the Restaurant Association
was “surprised in January when [it] saw hot foods listed in a revised
draft version of the bill.” Id. at 2. That Senate Bill 858 was not
amended as suggested by the Restaurant Association is more
evidence that the intent of the Legislature was to put some distance
between wineries and full-fledged restaurants by restricting (1) the
food items that a Class 4 winery can sell or serve and (2) the hours
in which sales or service of food can occur, but not by restricting
how or where the permissible foods are prepared.
That said, even though AB § 2-206 does not preclude a winery
from preparing the food listed in the statute on its premises, the
statute also does not, standing alone, authorize a winery to prepare,
sell, or serve food if circumstances would otherwise require a food
service license issued by MDH or under MDH’s authority. The
text of the statute is clear on that point: “Nothing in this subsection
limits the application of relevant provisions of Title 21 of the
Health-General Article, and regulations adopted under that title, to
a [Class 4] license holder.” AB § 2-206(b)(10). Despite the
changes to the Class 4 limited winery license provision since 2007,
it remains the case that “the food service aspect is regulated by”
this separate regulatory regime, and that if a winery “qualifies as a
food service facility under State law”—which may, under some
circumstances, be the case even if it is not preparing food on the
premises—“it will have to be licensed by the local health
[department] under the authority of [MDH].” Brantley Letter at 2;
see also HG § 21-305 (license required).
While we do not draw any bright lines as to exactly when and
under what circumstances a Class 4 limited winery would need a
20 [108 Op. Att’y
food service license—that is for the appropriate regulatory
authorities to determine—we observe that the definition of “food
service facility” is broad. With limited exceptions, a “food service
facility” is “[a] place where food or drink is prepared for sale or
service on the premises or elsewhere” or “[a]ny operation where
food is served to or provided for the public, with or without charge.”
HG § 21-301(h)(1); see also COMAR 10.15.03.02B(34)(b) (food
service facilities include “[a] restaurant, coffee shop, cafeteria,
short order cafe, luncheonette, tavern, sandwich stand, soda
fountain, retail market, or retail bakery outlet,” and “[a] food
operation in an industry, institution, health care facility, club,
school, camp, church, catering kitchen, commissary, or a similar
place in which food or drink is prepared for sale or service on the
premises or elsewhere”). But see COMAR 10.15.03.02B34(c)(i)
(“‘Food service facility’ does not include a . . . [f]acility that offers
only prepackaged foods that are not potentially hazardous as
specified in § B(55)(c) of this regulation.”). Those Class 4 limited
wineries whose food service activities fall within these broad
definitions must apply for and obtain the necessary licenses and
comply with any applicable regulations governing food service
facilities that are included in, or have been adopted under the
authority of, Title 21 of the Health-General Article.
III
Conclusion
In sum, it is our opinion that AB § 2-206 does not prohibit
holders of Class 4 limited winery licenses from preparing the food
listed in § 2-206(b)(5)(iii) on the premises of their wineries.
Nothing in the text of the statute or the legislative history of the
provision suggests that the Legislature intended that Class 4
wineries sell or serve those foods only if they have been prepared
elsewhere. At the same time, AB § 2-206 requires that Class 4
license holders comply with Title 21 of the Health-General Article
and regulations adopted under that title. Thus, to the extent that a
Class 4 winery prepares, sells, or serves food in a manner that
would require it to be licensed as a food service facility, it must
obtain the necessary licenses from MDH or the local health
department, as appropriate.
Anthony G. Brown
Attorney General of Maryland
Sara Klemm
Assistant Attorney General
Patrick B. Hughes
Chief Counsel, Opinions and Advice