Jordan Towing6/12/2002
rd v. Dept. of Public Safety, 339 Md. 343, 353, 663 A.2d 66 (1995) (Where the suspension of an employee was not authorized by the agency's regulation, the suspension was vacated); Heft v. Md. Racing Commission, 323 Md. 257, 265, 592 A.2d 1110 (1991); Resetar v. State Board of Education, 284 Md. 537, 550, 399 A.2d 225, cert. denied, 444 U.S. 838, 100 S. Ct. 74, 62 L. Ed. 2d 49 (1979). In addition, we have recognized that, under some circumstances, mandamus or other traditional actions may lie to enforce administrative compliance with procedural requirements or duties. Gisriel v. Ocean City Elections Board, 345 Md. 477, 496-500, 693 A.2d 757 (1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 702, 139 L. Ed. 2d 645 (1998), and cases there cited; Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, 307 Md. 1, 17, 511 A.2d 1079 (1986)." Id. at ____, ___ A.2d at ___ (alterations in original).
Mr. Freeman knew of the past, consistent interpretation of need and, albeit perhaps well-intentioned, improperly departed from the past consistent practice of the DPM to apply this single, newly-created standard when faced with the new license application. Such a departure from past consistent interpretation and practice is a matter better addressed either by a legislative entity, or by the adoption of a regulation.
As we have pointed out from the record, there was sufficient evidentiary support for the Board of Appeals' decision to reverse the decision of Mr. Freeman based upon the ground that the proper need standards were not applied. At the hearing before the Board of Appeals, there was significant testimony regarding the eight factors used by the BCPD in addressing the "need" criteria of section 24-229. Specifically, there was the testimony of Mr. Freeman himself that there was no need as traditionally interpreted, there was Officer Denker's report from his investigation showing no need for another licensed tower, and there were other witnesses who testified to the lack of need for additional towers in the area.
Therefore, there was no evidence on the record showing that actual need existed for an additional licensee in the Woodlawn area of Baltimore County, or in the county as a whole, for that matter. We hold that the Board of Appeals was correct when it found that "there is insufficient testimony or evidence to support the granting of a license solely on the basis of the fact that the owners of appellant are African-American." When the Board of Appeals stated that appellant's license could not be issued "solely" on race, it impliedly found the opposite - that the standard criteria had not been satisfied.
The Board of Appeals' interpretation of its own regulation or practice is owed deference. In MTA, discussed supra, Judge Eldridge, writing for the Court, detailed the deference owed to an agency's interpretation of its own regulation. He wrote:
". . . great deal of deference is owed to an administrative agency's interpretation of its own regulation. Judge Chasanow for this Court, in Ideal Federal v. Murphy, 339 Md. 446, 461, 663 A.2d 1272 (1995), set forth the principle as follows:
`In Udall v. Tallman, 380 U.S. 1, 16, 85 S. Ct. 792, 801, 13 L. Ed. 2d 616, 625 (1965), the Supreme Court of the United States noted that:
"When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.
"When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order." `See also First Gibraltar Bank, FSB, 19 F.3d at 1047.
Additionally, an agency's inter
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