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A St. Mary’s judge ruled last week that the county liquor board had the authority to allow a 60-year-old Hollywood Road grocery with a liquor license become a market and cafe with prepared food and drink, to consume there or take home.

The challenge to the upgraded license granted in August for McKay’s Market & Cafe came from David Dent, a proprietor of W.J. Dent & Sons at a grocery-bar property in Tall Timbers who also serves as a co-chair of the St. Mary’s Retail Beverage Association. Steven Wise, Dent’s lawyer, argued last Friday, Feb. 1, in court that a grandfather clause in a 1962 state law, intended to restrict alcohol sales by grocers, authorized a transfer of the existing liquor license at the McKay store, but not changing it at the same time to another type of alcohol business.

“A person cannot transfer something they don’t already hold,” Wise said, and a specific exemption that the legislature passed for Prince George’s County exemplified the restrictions that remained on old grocery liquor licenses in St. Mary’s and elsewhere. “It makes it crystal clear that St. Mary’s County does not have the authority to upgrade that grandfathered license,” Wise said, later adding, “The specific trumps the general. If it’s not in the code, they don’t have the power to do it.”

Wise said the legal challenge was filed to prevent the possibility of the upgraded license being transferred in the future to a large chain supermarket.

Michael Davis, a lawyer representing the McKay business, countered that county liquor boards statewide have the authority to change businesses’ licenses, in part because the businesses need to be able to switch to whatever kind of alcohol permit they should hold, depending on how much of their income comes from selling food and how much from selling alcohol. Davis said that legislators from an individual county might have a state law on liquor boards changed specifically to further empower the one in their jurisdiction, but that St. Mary’s and other places not pursuing that change already might have that same authority.

Joann Wood, the attorney for the alcohol beverage board, said a transfer request for the McKay business was changed to an upgrade during last August’s meeting, and that the store’s grandfathered exemption from restrictions on changes in its license already had been recognized by the board at an earlier meeting in June.

St. Mary’s Circuit Judge David W. Densford said the board’s decision to reject in June an initial proposal for partitioning the business left open the possibility that it might “consider something else,” which it did two months later. By that time, the judge said, the deadline had passed for any court challenge to the board’s decision that the store was covered by the grandfathered exemption.

“The evidence does not prove that they acted outside their authority,” Densford said.