Opinion

Maryland Attorney General Opinion 108OAG3

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Maryland Attorney General Reports
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Mar 14, 2023
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More cited than 40.3%

“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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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