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Attachment 16jom ILI � i-- -, F -M Attachment #161 CL Page I of 5 urcuit court o� marypand LE A Court Sy m; UFrcu'ut caurtk)r BaUmag's county - C�VH syqm Case Numbero,, 03C962000434 F=3 Mde', En Thia Matter of: Baja muFs County Licensed Savarags Aasac�mtban, Case Type, Admn. Agency Appeal Ex Par�a Filing Date: ga/22/1996 Case Status® C-Mosad/Aaulve # Case Disposition: Decree or Order Disposition Date-, 06/12/1996 Plaintiff/ Petitioner information (Each PlatnUfflPetitioner is displayed below) Party Type: Petitioner Party No.4 I Business or Baltimore County Licensed C5evair-a-pe Association Organization Name: Address,., 8109 Shore Road City. saltimors stat m [D) Z6p Cadaao �S2'8'51), A etorn(sV(s) fot the PlainUfflPet1tionar Name: Mister, Esq, Uabf-lej' F Practice Name: Mister, Winter & oartqett L L C Address: $0 E Padonla Rd '�Mte 404 City, Timonium State-, MD Zip Code: Information (Each DefendantlRespondent Is displayed below) 6 ' Party No.: 1 Party Typo Respondent Busins or FWS INC Organization NaNme: Address 8727 Loch Raven BouleviEv'd ij City: Towson State: MD Zip CodeL- 29296 Aliases Defendant/Respondent Name: Beltway Fine Wines & SpIFRS Attarney(s) for the DefendantlRespondent • Name: Brooks, Esq, Charles E Pr?ictice Narritt, Law Offices Of Charles E Ou-0oks Address: 610 Bosley Avenue City: Towson State, MD Zip Code: 21204 Name: Mister, Esq, David F , I Practice Name: Mister,, Winter & Bartlett L L C Address: 30 E Padonia Rd Suite 404 City: Timonium State: MD Zip Cade: 21093 http:Hcasesearch.couns.state.md.us/*Mquiry/inquiryDetail-ji's?caseId=03C96000484&loc=5... 11/1/2013 c�so c obD4 oG6^0a'-+ ^ uu u u Case Information Page 2 Of 5 ' a Event Type: Civil Non Jury Trial Notice Dat .0 831 1t1996 Event Cate: 0+4/30/1996 Event Tune; C ,.,30 A • Result: Held/Concluded Result gate: CS/07/2_996 Related Persons Information (Each Related person is displayers below) Party Type: Interested Party Party No.. 1 Business or Board Of Liquor License Commissioners For Baltimore County The Organization Name-,, Addresso. III we Chesapeake Avenue City. Tewson State: MD Zip Code: 21204 A ernes) for the Related Persons Ntme: Butanis, Esq, Parry A MIR Pracfoe Name; Baltimore County Office Of Law . , Address: =2nd Floor, Old Courthouse 400 Washington Avenue r� City: Towson State: MD Zip Code: 21.204 .Party Type: Interested Party Party No.: 2 Name: `r'rone, David 3 Aarney(s) for the Related Persons Name. Brooks, Esq, Charles E Practice Name: Law Offices Of Charles E Brooks Address: 610 Bosley Avenue ` City: Towson Staten MV Zip Code. 21204 Document Tracking (Each Document listed. Documents are listed in Document No./Sequence No, order) • { Doc No./Seq No.. 1/0 F E File gate: 01/19/1996 Close Date. 05/30/1996 Decision: Party Type. Petitioner Party No.. I Document Name; Petition for Judicial Review with Exhibit and Certificate. . Doc No./Seq No.: I/ I Flle Date: 02/05/1996 Close bate: 05/30/1996 recision: , Party -Type,, Respondent Party No.: 1 Document Name: Answer and David 3, Trone NO DCiMM Doc N o./S eq No.: 1/2 File rate: 02/IS/1996 Close Date: 05/30/1996 Decision.- ecision:Party PartyType: Interested Party Party No.: 1 Document Name: Answer Doc No./Seq No.: 2/0 File Date: 01/24/1996 dose Date: OS/30/1996 Decision: Document Name: Certificate Of Compliance pot h ://casesearch.couns.state.md.us/inquiry/inquiryDetaiIji's?casseld=03C96000484&loc�5... 1111/2013 ZI Case Infonna6mii O!'MME Doc No./Seq Vol,; 310 File Date: MjOlsii996 Close Date: 05/30/199Decision: Document Name,., of Record from Adm Agency Doc No./Seq No IVO File Date: 02/0911996 dose Date,, 05/30/1996 Decision: Document Name: Notice - Recpt of Record of Proceedings Copies Sent Doc No./Seq No.: 5/0 File Date,, 03/06/1996 Close Date*, 03/06/1996 Decision, a . Party Type., Petitioner Party No.: I Document Narneo, Notice of Appeal Sent Doc No./Seq No.-. 610 File Datelci 0310611996 Close Date: 03/06/1996 Decision. Party Type-. Respond ent Party No.: I Document fia me .- MaNce oAppeal Sent Doc No./Seq No.: 7/0 Hie Date: 03/06/1996 Close Date: 03/06/1996 Decision: Party Type,,, Interested Party Party No.,. I DDcument Name: Notice of Appeal Sent Doc No./Seq No® 60 8/0 File Date.- 03/06/1996 Close Date: 03/06/1996 Decision. Party Type: Interested Party Party No.: 2 Document Name: Notice of Appeal Sent Doc Moj_�115'1?eq Wo" to, SID -- File DEME-O.o Declsion Close Date" us Doctimient Mamec. H(Baring Notice Doc No./Seq No.: 1010 File Date: 03/28/1996 Close Date: 05/30/1996 Decision: Party Type: Petitioner Party No.: I Document Name: Motion to Admit Additional Evidence **witb memorandum and exhibits Doc No./Saq MO'.: 10/1 Re Date: 04/05/1996 Close Mte: 05/30/1996 Decision: Party Type -0 Despondent Party No.: I Document Name: ,%nswer and David J. Trone and James P. Cutler's response to petitioners' memorandum in zupport of judical review and answer to petitioners' motion to admit zdd'OUvnaO evidence,, fd. br�p�.//casesmych-courts.state.md,us/1'nqu-iry/inquiryDetaii.j's?caseld=03C96000484&loc=5... 11/11 013 Finz 0 1=4 case information Page 4 of 5 Doc No./Seq No.: 11/0 Ale Date.- 04/01/1996 Close DaW gFj3@ja,9396 Decision: Party Type: Respondent Party No.: �L Document Name: MoVidn to Dismiss Appeal David J. Trone and James P. Cuttev�, M5mvmn domm Yn Support of Motion To Dismiss Appeal. Memorandum In Co)ppasat�anTQ �md'Ociaj Review, exhlbit, Doc No./Seq Not: 11/1 File Date: 04/22/1996 Close Date: 05/30/1996 Decision: Party Type: Petitioner Party NO.'O' a Document Name: Answer with exh*b" no dcm Doc No./Seq No. ov 1110 File Date: 04,106V:1996 Close Date: o5/30/1996 Decision: Party Type: Respondent Party No.: I Document Name: Motion To Dismiss The Petition POF Judicial Review And Memorandum in Suport thegeafe exhbblt. Doc No./Seq No.: 13/0 File Date,-, 04/24/1996 Close Date*,, 05/30/1996 Decision; . , Parry Type; Petitioner Party No.: Document Name: Memorandum Doc No./Seq No.: 14/0 Flie Date: 05/07/1996 Close Date: 05/30/1996 Decision. Document Name: open court Proceeding May 7, 1996 Hon., John pi, Turnbull.* n,, Hearing had In re Petition for Judicial RevieW and Motion to Dismiss Appeal and Motion to Admit Additional Evidentq� held sub curia® opinion and Order to be filed. Doc No./Seq No.: 15/0 File Date: 05/30/1996 Close Date: 05/30/1996 Decision-, Granted Party Type: Plaintiff Party No.: I Document Name: Opinion and order of the Court GRANTING the Respondents*motion to dismiss appeal, fd, (JGT,,n) Doc No./Seq No.: 16/Q File Date: 06/0711996 Close Date* 06/12/1996 Decision: Party Type: Petitioner Party No.: I Document Name; Motion to Alter/AMend Judgment Doc No./Seq No.. 1611 File Date: 07/0811996 Close Date: Decision: Party Type: Respondent Party No.: I Document Name: Response to Motion to Alter or Amend Judgment and Exhibft. (No DCM)Q Doc No./Seq No.: 17/0 File Date: 06/12/1996 Close Date: 06/12/1996 Decision: 6 Document Name: DOCKET ENTRIES AND ORDER SENT TO THE BOARD OF L_1QUOR LICENSE COMMISIONS FOR BALTIMORE COUNTY cb Val h.//casesearch.courts.state.md.us/in quiry/inqu'lryDeta'il.j'i's'.?Caseld-03C96000484&loc-5.00 11/1/2013 ttp-* E;Z Case Information Pago 5 Of 5 Doc No./Seq No.. SON File Date: 0711711996 Chose Date: Decision: • Document Name: Open, Cogrtl puo�eadiinq July 17e �996, Hang W5 3ohn Grason Turnbull., IL The court has read and considered the motion to alter or amend and the answer filed, (Paper 16000), Motion is DENIED. This Is an electronic case record. Full case InformAlon cannot be made available either because of legal restdctions on access to case records found in Maryland rules 16-1001 through 16-1011, or because of the practical Off7cuttles 1L;;11 "I PEI hap:Hcaseseareb. courts. state.. md ushnquio ry/1'nquW*Y, D et E6 1.3"1 Ocml d-03 096000484&loc-5... 11/1/2013 11ill ;;Ipit; IIII, AW Im L eA iodv a 8^pcew-i 572 F,3d 186 E572 Fo3d 166 (C(OPY Citat'On) o F ra n Ch 0' United States Court of Appeals for the Fourth Or cu*R No May 13,, 2009, Argued; My 15,, 2009e DecWed No. 07-2108 sm 13 Eft inn WIN ow flZIVIM A A • IN Core Terms district court, regulatory scheme, liquor, discount, ban, volurne, post -and -hold, clearly erroneous, the Sherman Act,. excise tax,, horizontal, retail, federa� 'Intavest,, per sel violation, law of the case,, pricing system, price fixing, wholesalers, hybrid, temperance, preempted, wine, manifest injustice, appellate court, antitrust, outweighs, quotation, law of the case doctrine, challenged regulationt ineffective Case Summary Procedural Posture Plaintiff liquor retailer filed an action against defendants, the Comptroller of the State of Maryland and others. On appeal, the court held that the State's liquor and wine regulatory scheme was a form of horizontal price fixing in per se violation of the Sherman Act, On remand, the U.S, District Court for the District of Maryland, at Baltimore, found that the State's regulatory scheme was preempted by the Shem-an Act,, The State appealed. overview The State asked the court to revisit and reverse its earlier holdlng. The court declined to revisit its prior holding because there were no exceptions to the law of the case because (1) the U.S. Supreme Court's intervening decision concerned vertical,, rather than horizontal, price fixing; (2) the State P rovided insufficient basis for the court to find clear error or manifest Injustice in its earlier holding; and (3) In remanding the case to deterr*dne regulatory effectiveness the court was following Supreme Court guidance. The State challenged the district court's finding that the State's regulatory scheme had a rrinimal Impact on pricing by arguing that the pricing data that the retailer provided was flawed. The district court's reliance on the data provided by the retailer was reasonable. The district court relied on the best evidence available and made a reasoned judgment on the basis of that record. Once the district court made Its finding of fact that the challenged regulatory scheme had minimal i"act in furthering the State's Interests, the legal conclusion that the federal Interest outweighed the state �Mterest followed more or less as a matter of course. Outcome ac:� Hf�fl V%F =nri 1AYS'nnra rrQ% 111atnrV The courL 'eL"'ned to revise ---' --verse its a g 0 I u I I I IL cis UU I C C e %Hier holding that the Stalt&, Scherm was a form of horizontal pn*ce fixing in per se violation of the She"n Act. The dostdct -i t W 10/31/13 TFWS, Inc . v. Frq_ncha� R2 F.W I OB-PrintaU a Page courts Judgrnent that the State's regulatory schem was preempted by the Shemian Act was .0 "W a ffi rme d 10 LangsNexis@ Heactnotes C-110 Procedure > Judgments > PrecWsOW W Judgments > Law of the Case MMS.,kP The law of the case doctrine posits that �ivheri a court decides upon a Me of law, that dec�WW shoWd continue to govem the same issues 'M subsequent stages M the sarin case. As a pracMcad matter,,, then, once the decision of an appellate court establishes the law of the case, ft must be fo��owed in all subsequent proceedings in the same case in the tM court or on a later appeaD umesso (1) a subsequent trial produces substantially different evidence,? (2) controiling authonky has a a 5�nce made a contrary decision of law applicable to the Issue, or (3) the prior dec'Is ion was cleaOjy erroneous and woWd work manifest injustice. Shepardize - Narrow by this Headnote Governments > Courts > Judicial Precedent HiVl;i; Ong y the UN'ted States Supreme Court itself may exercise the prerogative of deterrrtning whether any, of fts own prior holdings have been overtumed, The Suprem Court does not norni0y overturn, or dm- natcically lirrft, earlier authority sub silentio. Shepardize - Narrow by this Headnote am_ Antitrust 8L Trade Law > Regulated Practices > Price Fixing ik Restraints of Trade > N Horizontal Market Aflocatilon PrIce Antitrust & Trade Law > �-- > Price Fixing & Restraints of Trade > M Cartels & Horizontal Restraints > ,,,a. Fixing HN3,+,.,. The same lega� standard (per se unlawfulness) applies to horizontal market division and hodzontal puice fixing because both have similar econordc effect, Shepardize - Narrow by this Headnote MR Antitrust & Trade Law > Price Fixing & Restraints of Trade > 0 Cartels & Horizontal Restraints > 0 Price Fixing HN41, Horizontal price fixing is the paradigm of an unreasonable restraint of trade. Shepardize - Narrow by this Head -note P" Civil Procedure > Judgments > Preclusion of Judgments > 10 Law of the Case HNSI In the context of the law of the case doctrine.* a prior decision does not qualify for the third exception, which requires that the prior decision was clearly erroneous and would work manifest inajustice, by being just maybe or probably wrong; It must strike a court as wrong with the force of a five -week-old, unrefrigerated dead fish. It must be dead wrong. Shepardize - Narrow by this Headnote Antitrust &Trade Law > Sherman Act > Defenses Constitutional Law > Prohibition HNWI.The Twenty-first Amendment may provide shelter for a state's liquor statutes that violate the Shernm n Act only if the state's interest truly outweighs the federal interest. Shepardize - Narrow by this Headnote P" Antitrust &Trade Law > Sherman Act > General Overview Constitutional Law > Prohibition HN7±. Judicial determination of the effectiveness of a state's liquor regulations is necessary when those regulations violate the Sherman Act,. United States Supreme Court precedent clarifies the 01144 ZZ TFWS, Im. v, Fmchc� M F.3d 1r5-Pr1nWbj98 N 98 M-ats the e aenuse of MuLu'p�e sources to few ortancof determning regultory effectivesand s pe imp . D such a determinatin. Legislative findings, errpmcal studies (Le.other flndings), or flnd'�'ngs by o , ca court can all be useful In aassessing the effectiveness of a stateos regu�atoN scherne �n achieving ks stated purpose. SheparoJIze- =. Narrow by this Headnote Antitrust & Trade Law > Sherman Act > Defenses ON Constitutional Law > Prohibition HNSal Unsubstantiated state concerns under the Twenty-first Amndment are not sufficient to trumpo the goals of the Sherman Act* a state must dernonstrate that its liquor regulatory policies directly ,� serve (i.e., are effective in furthering) the interests k proffers under the Twenty-first Armndment. n the end, the state's interests must be of sufficient we�ght to prevail against the federal interest In enforcement of the antitrust laws® shepardize - Narrow by this Hendnote Civil Procedure > Appeals > Standards of Review > Clearly Erroneous Revtew PC'! CIA Procedure > Appeals > Standards of Review > De Novo Revlevv An appellate court defers to a district court's factual findings and does not set them aside unless cOeady erroneous- and the appellate court reviews legal conclusions de novo. A factual finding a is clearly erroneous when the appellate court is left with the deflnfta and flrm conviction that � mistake has been cornnitted. But if the district court's account of the evidence Is plausible in light of the record viewed in its entirety, the appellate court will not reverse the dostrlct court's finding simp0y because theappellate court has become convinced that it would have decided the question of fact differently, Thus, when there are two permissible views of the evidence, the district coupes chalce between them cannot be clearly erroneous. Shepardize - Narrow by this Headnote Counsel: ARGUED: William F. Brockman, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, na, for Appellants. William James Murphy, MURPHY & SHAFFEI:� LLC, Baltimore, Maryland, for Appeflee. ON BRlr=F,, Douglas F. Gansler,, Attorney General of Mary�and, Steven M,, Su�flvan, Solicitor General, OFFICE 6F THE ATTORNEY GENERAL OF MARYLAND, Baltimore,, Mary�and,, for Appe��ants. John 1, Connolly, MURPHY & SHAFFER, LLC, Baltimore, Maryland, for Appelleel Howard Graff, Deborah A. Skakel, DICKSTEIN SHAPIROr LLP, New York, New York; Robert C. Douglas, Glen K. Allen,, DLA PIPER US LLP, Baltimore,, Maryland, for Licensed Beverage Distributors of Maryland, Incorporated, Ardcus Supporting Appellants,, Anthony S. Kogut, John A. Yeager, WILLINGHAM & COTE, P.C., East Lansing, Michigan, for American Beverage Licensees and Maryland State Licensed Beverage Association, Amid Supporting Appellants. Stephen M, Diamond, Coral Gables,, Florida, Michael D. Madigan,, Katherine E. Becker., Jon R. Steckler,, MADXCAN,, DAHL & HARLAN, P.A., Minneapolis, Minnesota, for National Beer Wholesalers Association and Wine and Spinots,-,, Whoesalers of America, Incorporated., Amci Supporting Appellants. ud_7esq Before DUNCAN, CIrcult ludge, HAMILTON, Senior Circuit Judge, and Malcolm J., HOWARDI rolina sittinq Sdno'or Ungotled States DoMtflct Judge for the Eastern District of North Ca bv des gnatio Judge Duncan wrote the opin'Mrn, OM whPch Senior Judge Hamilton and Senior Judge Howard joined. Senior Judge Howard wrote a separate concurring opoinlom I CSU N, Circuit Judge: This long-runn'Mg antitrust suit is on appeal for the fourth time. Maryland novi asks us to revisit and reverse our earlier holding that the state's liquor and wine (collectively, "flquoe') regulatory scheme is a 0 04 . . Of. L —a _'I —%*%~ 3/11 10/31/13 TFWSO ft. v. Franchot, 572 F.3d 186- Printable Page form of horizontal price fixing In per se violation of the Sherman Act. We decline to do so because the Supreme Court's intervening decision in Leegin Creative Leather Products, Inc. V. PSK� Inc., 551 pati A� 877, 127 S. Ct. 2705, 168 L. Ed, 2d 623 (2007), on which Maryland primarily relies, concerned vertical, rather than horizontal, price fixing, and Maryland's other arguments are unavailing. Moreover.. as to the only Issue not controlled by the law of the case, we affirm the district court's holding that the state's regulatory scheme is preempted by the Sherman Act® I. In 1999, TFWS, Inc., a large liquor retailer �on Maryland, sought declaratory and injunctive reflef In federal dIstHct court alleging that the state's liquor and wine regulations violate, and are preempted by, Section I of the Sherman Act, is U.S.C. § 1. In particular., TFWS challenged Maryland's "post-and- hold"pricing system and its "volume discount ban." See Md. Code Ann., Art. 2B, § 12-102 [189] & 103. The post -and -hold pricing system prescribes how and when liquor wholesalers may change their prices. Spec iflocaHy,, wholesalers must post a schedule of prices with the Comptroller by a fax date every month. That schedule Is made available to other wholesalers and the prices are locked 'in for the following month. dander the volume discount ban, a wholesaler must offer every retailer the same phce- for a given product, thus preventing wholesalers from cutting prices to large retailers. Maryland moved to dish-dss the suit on two grounds.- (1) the suit was barred by 11th Amendment state imn-unity and (2) Section 1 of the Sherman Act did not apply to a state official's enforcement of state law (so-called "state actor antitrust immunity"). On September 1, 1999, the district court issued its oinion, 'Responding to Maryland's niotion, the court held that (1) the suit was not bar -red by the 11th p Amendment and (2) Maryland did not enjoy state actor antitrust immunity. Responding to TFWSs complaint, the court held that Maryland's "post -and -hold" pricing system and its "volunrie discount ban" are hybrid restraints on trade @ and per se violations g of the Sherman Act. Nevertheless f the district court dismissed the suit on 21st Amendment grounds. [R The court held. that, notwithstanding the anticompetitive effects of the challenged regulatory scheme, It was a valid exerci•se of Maryland's 21st Amendment powers [g and that the state's Interest in prornoting temperance trumped the federal Interest in promoting con -petition under the Shern-an Act. Consequently, the court concluded, the scheme was not preempted. TFWS appealed the district court's ruling on the 21st Amendment issue. Maryland cross -appealed on the other 'G'suas. A lengthy process of litigation ensued, which we summarize here as background to the current appeal. In TFWS, Inc. v, Schaefer ("TFWS 1"), 242 173d 198 (4th Cir, 2001), in the portion of our holding relevant to the current appeal, we affirmed the district court's Sherman Act holding and vacated its dismissal of the action. We held that the "post -and -hold" pricing system and the "volume discount ban" (a) are part of a single regulatory scheme; (b) both constitute hybrid restraints on trade; and (c) both are per se violations of the Sherman Act. We reasoned that [t]he post -and -hold system Is a classic hybrid restraint: the State requires wholesalers to set prices and stick to them., but It does not review those pn* vately set prices for reasonableness; the wholesalers are thus gr -anted a significant degree of private regulatory power. The volume discount ban Is a part of the [1901 hybrid restraint because it reinforces the post -and -hold system by making it even more Inflexible. TFINS r, 242 F.3d at 208-09, We further held that these hybrid restraints mandated activity that was "essentially a form of horizontal price fixing," id. at 209, making them per se violations of § 1 of the Sherman Act. g See NXAA. v, Bd,, of Regents of the UnIv. of Okla., 468 U.S. 851 100, 104 S. Ct. 2948.* 82 L. Ed. 2d 70 (1984) (labeling horizontal price fixing 'the paradigm of an unreasonable restraint of trade")4, see also Catalano, Inc., v. Target Sales, Inc., 446 U.S. 643, 649-50, 100 S. Ct, 19251 64 Lo Ede Zd 580 (198x0) (per cun"aa). In ,vacating the district court's ruling on the 21st Amendment 'issue, we remanded to the district court to give the parties the opportunity to argue the issue and develop the record. See TFWS 1, 242 F,3d at 211-13, Subsequent district court decisions in 2002, 2004 and 2007 Eg as well as this court's decisions In 2003 and 2005 0 dealt solely with the 21st Amendment and related issues. Following our vacatur in TFWS r,, Maryland moved the district court for summary judgment based on a 21st Amendment defense, The district court granted Maryland's motion,, holding that Maryland's Interests in promoting temperance under the 21st Amendment prevailed over the federal Interest under the Sherman Act. -&-Afifft 4111 TF Mo 10131/13 Franchot, Sn F.3d 18&Pr ntWe Page nent, holding vacated gagn the d'tnct CoUrt's grant of sumnlarY Judgn On appeal from that deciWw In, We aI s that there was a ftputed quesUon of fact as to whether (and to what extent) Maryland's regulations a I e of promoting temperance. TFWS were effectIve �'n semng theT c�a*med purpos , Inc. v. Schaefer (--ITFWS Hds),, 325 F -3d 234e 242 (4th C -9r, 7-003). Without deteragning the effectiveness of the reguiatory scherne, the distdct ccourt co0d not pmpedy weigh the competing state and federa� Interests. See id. at. 242-43. On remand from TFWS H,, the dolsiltdct court heard testimony and took evidence from the page s on the 19 ly on Hquor consumption and temperance. The. effect of the regulations on Hquor pdce, and consequent parties co aced Maryland's liquor and wine prices with those 'in Delaware, where TFWS also had reta'H operations, The district court found that Maryland's regulatory scheme was ineffective in furthering the state's purported Interest in teaperance and that the balance weighed in favor of the federal interest in promoting competition. Consequentlyr the district court concluded that the statutes and associated regulations at issue were preempted by the Sherman Act, Maryland appealed* I e 'it falfled once again,, we vacated the district court's ruling, finding that it was clearly erroneous because I to take OMF)ta account(or explain why it was not necessary to take Into account) the effect of excise taxes on the price of liquor and [191] wine, TFWS,, Inc., v. Schaefer ("TFWS 111"), 147 F,, App x 330, 334- 36 (4th On 2005) (unpublished), On ren -end from TFWS III, the dostnct court took ev'd-ence on the effcac t of she excise tax on liquor prices (cornpaong Maryland and Delaware), The district couirt again foujtrr�d that Mairy�and's regulatory scheme was ineffective in furthening ft's purported �'nterest *�n tennpammrtce and was therefore preempted by the Shernnan Act. In the rd-Leitter now before us, Mc-oiryin--nd timely appealed. Maryland primay argues that we erred on h6d'orbg 'M, 71FWS-, I that its scheme is a per se violation of the Sherman Act, Maryland further contends That 1he d' tact curt erred In finding that its reegulatory scheme is ineffective and preempted by the She, t9n Act, We exarru'bne these issues In tum. P" Jr. Maryland argues that we should reverse our 2001 decision in TFWS I ... after five additional court "9 decisions -- •in which we held that Maryland's "post- and. hold's pricing system and "volume discount ban" are hybrid restraints on trade and per se violations of § 1 of the Sherrnan Act. Maryland recognizes that our prior holding constitutes the law of the case. It nevertheless asserts that reconsideration is warranted here. HN1T The law of the case doctrine "posits that when a court decides upon a rule of law, that decision should continue to govem the same Issues In subsequent stages in the same case," United States v. Aramony, 166 F93d 655, 661 (4th Cir. 1999) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16., 108 Ss Ct, 2166, 100 L. Ed. 2d 811 (1988)). As a practical matter, then,, once the decision of an appellate court establishes the law of the case.. it "must be followed In all subsequent psiproceedings In the same case In the trial court or on a later appeal [ ] unless: (1) a subsequent trial produces substantially different evidence,, (2) controlling authority has since made a contrary decision of law applicable to the issue, or (3) the prior decision was clearly erroneous and would work manifest Injustice." Aramony, 166 P,3d at 661 (citations and internal quotations orritted), see also United States v. Lentz, 524 F.3d 501.e 528 (4th Cir, 2008). In attempting to convince us to overturn the law of the case, Maryland presents several arguments, which we consider In tum. A. Relying on the second exception (i.e., material change in controlling authority), Maryland first argues f" that It]his Court should revisit the preemption analysis In TFINS I In light of Intervening Supreme 1-11 F Court authority that renders untenable tne precedents that were central to the panes holding. Appellant's Br. at 26. Maryland points to the Supreme Court's 2007 decision In Leegin, arguing that 11resale price maintenance Is no longer subject to per se analysis under federal antitrust law, but must P" Instead be judged under a rule -of -reason standard." Appellant's Sr. at 28. Maryland's analysis Is flawed,, First, In Leegin, the Supreme Court did not overrule, or even question, fs" any Supreme Court precedent on which we relied in [192] TFWS L B The Supreme Court has repeatedly Instructed that HN 27 only the Supreme Court itself may exercise the prerogative of d6terrdning whether any of its own prior holdings have been overtumed. See., e.g., Rodriguez de QuUas h"r%e-11oAuww%P 1"a &11 10/31/13 TFM, Inc. v. FranchoL 572 F.3d 'I86 -Printable Page v. Shearson lAm, Inc., 490 U.&, 477© 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1.989). The Court has also clarified that it "does not nor fly overturn.. or ( ) dramatically limit., earlier authority sub silenFlo -" Shalala V. Ill. Council on Long Term Care, rnc., 529 U. S" le 181 120 S. Ct� 1484, 146 L. Ed. 2d spy 1 (2000). Second, In TFWS 1,. we ruled that Maryland's regulatory schen was "a form of horlxontal pn*ce fixing." TFW54 242 F.3d at 209 (emphasis added). Leeglnj contrast, concerned vertical resale price in maintenance, holding that such arrangements were no longer subject to the per se rule. Leegin, 127 S. Ct. at 2714-15, That holding is Inapposite. In fact, Lee in, far from undern-inhg our cora uAon that ho�zontal price fixing is per se illegal under the Sherman Act,, actuary reiterates that ma- See Leegln,, 127 S. Ct. at 2723 (noting that HN3"+"*,,[t]he sarne legal standard (per se unlawUness) -PpHes to hodzonW market division and horizontal price fixing because both have simlar economic effect"). Indeed, our holding in TFWS I that Maryland's horizontal price fixing was a per se violation of the Shen,Tsn Act exploicithl flowed from prior Supreme Court precedent, See TFWS 1,, 242 F.3d at 209 (com8ng Regents of the Univ. of Okla,,.. 468 U.S. at 100 (1984), for the principle that HN4"T horizontall, flAn 94 so Catalano, 446 U.S. at 649- pnce flAng 's the paradigm of an unreasonable restraint of trade"); see al 500 (hoUMg that there Is "a plain distinction between the lawful right to publish prices on the one hand, and an agreement among competitors limiting action with respect to the published prices, on the other"), Sugar Inst. v. United States, 297 U.S. 553, 581, 56 S. Ct, 629, 80 L. Ed. 859 (1936) (noting that steps taken to secure "adherence,, without deviation, to the prices and terms announced" violate § I of the Sherman Act), Consequently, the second exception to the law of the case doctrine dues not undermine our analysis in TFWS 1. B. Maryland's remaining challenges to the law of the case appear to be directed at the third exception to the law of the case doctrine, which perrylts a departure from the law of the case when the previous decision was "clearly erroneous and would work manifest injustice." Aramony, 166 [1931 F.3d at 661. We now consider these challenges* In TFWS 1, we ruled that the volume discount ban was part of the hybrid restraint and a per se violation. 9 Maryland contends on appeal that even if the post -and -hold" pricing system Is a hybrid restraint and a per se violation of the She Act., the 'Volume discount ban" Is a unilateraQ -- not hybrid --restraint that should not have been bundled with the "post- and- hold" pricing system,, Appellant's Br. at 33-35. Maryland asserts that 'the volume discount ban can stand on its own. Standing alone, it is clearly a unilateral restraint." P Appellant's Br. at 34. Significantly., although Maryland now challenges this ruling, in prior pleadings, it essentially agreed with * Ion in TFWS L For instance, Maryland earlier described the challenged statutes as "part of the our posit State of Maryland's longstanding statutory system to regulate and control sale and distribution of alcoholic beverages," Maryland's Br, for TFWS 1, No. 04-1688, at 7 (March 7, 2005) (emphasis added). Additionally.. Maryland cited with approbation the Maryland Court of Appeals's interpretation of the statutes at Issue as "part of a comprehensive scheme," 1A. 77 (citation and internal quotation marks omitted), as well as that court's holding that 'the proper rule of construction Is that all parts of Article 2B (which 'Includes the statutes at issue here] must be read together as they form part of a general system," J.A. 78 (citation and internal quotation marks omitted). Further, Maryland's own witness testified that the post -and -hold pricing system is utilized In part to enforce the volume discount ban.. 3,A. 2321-24, Sirruflarly, in its latest appeal, Maryland agreed that the post -and -hold pricing system and the volume discount ban operate together, conceding that 'the post -and -hold system facilitates monitoring and enforcement of the volume discount ban." Appellant's Br., at 34. Moreover, as we held In TFWS 1, Maryland's volume discount ban does "reinforce( ) the post -and -hold systern," and mikes it "even mire inflexible." TFWS I,. at 209. For instance, the volume discount ban facilitates self -policing among market participants because departures from established prices are readily recognizable. See, e.g., Catalano, 446 U.S. at 649- 50. In Maryland, a wholesaler who notices a low retail price for a competitor's product has all the information needed to report a violation: the filed wholesale price and the knowledge that the retailer cannot have received a discount. The challenged regulations allow private businesses to set prices, mandate price -filing and price -holding, and allow industry players to facilitate detection of would-be price cutters --especially in a state like Maryland where just two wholesalers control 850/0-900/o of the liquor market. In short., the two provisions at issue together grant private actors the tools to engage in coordinated pricing, and so constitute hybrid -- .- . a- _. . *. - SU -1.1 I LY31 A 3 TFWS, O= � Fvanchot, 672 F.3d 186-Print&O- P89s not unuatemcd -- restraflnts, P ts its argurnant for severance of its volume discount ban as E'1(94] though for review �n the first 9'nstance, and does not attempt to nmet the high burden of showing that our Wding Oh TFWS I was cieady arm) necus and %soWd woO,< a rymnifest injustice. HA157 A prior decaMon does not qualify for th'M tHrd excepUon by W'ng 'Just maybe or probably wrong; it nest , 0 , stnoke us as wrong. with the force of a. flve-i,4�ieak-oW, unrefflogerated dead fish." Bellsouth Telesensor v. Info. Sys. & Networks Corpu,g 199S U,,S. App. LEX�S 24802e 1995 VYL 512;091817 *5 n.6 (4th Or, 1995) (unpu�ised) (quoting Parts & Bec,, Motors , Zncv, Sterling Efec,,, Inc., 856 F.2d 228, 233 (7th CM:, 1988)). Kt must be "dead wrong." Sterling Elec,,, 866 F. Maryland 2d at 233, Ma�and providesins ufficient basis for us to find clear error or manifest injustice M this pouf's eafl�er WdIng that Mno viand's volme discount ban is a hybrid restraint and a per se vVatlon of the Sherman Act,, Maryland's final challenge to the law of the case is the rise ion that we timed by not giving proper deference •to legislative findings. The state rrWntains that the vaUdity of its chaflenged regWatory 11 'R scheme should not "depend on a judicial assessment of ft effectweness. Appellants. Br. at 41, 0 This argument fails to meet its required burden for two reasons. First, the primary Supreme Court precedent that Maryland relies upon, Exxon Corp. v. Governor of Md.,, 437 U.S. 117, 98 S. Ct. 2207, 57 L. Ed. 2d 91( 1978)' Is Inapposite, In Exxon, the Supreme Court found that Exxon Corp.'s substantive -due process challenge to Maryland's legislation rested on an evaluation of the economic wisdom of that legislation. The Supreme Court held that 'the Due Process Clause does not empower the judiciary to sit as a superlegislature to weigh the wisdom of legislation." Id. at 124 (citations and Internal quotation marks orrdtted). The judiciary's role In such a challenge is limited to rational basis review. See id. at 124-25("Re gardless of the ultimate economic efficacy of the statute, we have no hesitancy in concluding that it bears a reasonable relation to the State's legitinmte purpose in controlling the gasoline retail market,, and we therefore reject appellants' due process claim"). This holding simply. reiterates the Supreme Court's long-standing •judsprudence that due process challenges to economc regulations receive only the highly deferential rational basis review. The nature of the challenge here is fundamentally different. The regulatory scheme at Issue has been found to be aer se violation of the Sherman Act. This court's determination of the effectiveness of this scheme is pan effort to salvage the scheme despite this violation because of the state's authority :y under the 21st Amendment. See, e.g., Midcal, 445 U.S, at 112-14. In other words, despite the scheme's violation of federal law, the state is given the opportunity to demonstrate that its own Interests outweigh those of the federal government. Here, a determination of effectiveness is essential to weigh the competing interests because the stat'e's interests are weighed in the balance only insofar as they are actually advanced by the regulatory scheme. Id. at 113-14. HNdT The 21st Amendment may provide "shelter" for a state's liquor statutes that violate the Sherman Act only if the state's interest truly outweighs the federal interest. Id. at 114. The rational basis test, with its accompanying legislative deference, is simply irrelevant in this context. Second, in remanding In TFWS Ito determine regulatory effectiveness this court was following Supreme Court guidance Instructing that HN judicial determination of the effectiveness of a state's liquor regulations is necessary when those regulations [1951 violate the Sherman Act. See, e.g.,, Midcal, 445 US. at 113 ("Nothing in the record In this case suggests that the wine pricing system helps [further the state's Interest In] sustaining] small retail establishments."); 324 Liquor, 479 U.S. at 350 ([I]n this case the New York Court of Appeals cited no legislative or other findings that either the minimum markup requirement or the 'bottle price' definition of cost has been effective in (furthering the state's interest In] preserving small retail establishments, and made no findings of its own.") (emphases added). Supreme Court precedent clarifies the importance of determining regulatory effectiveness and permits the use of multiple sources to make such a determination. Legislative findings, empirical studies (i.eD, "other findings"), or findings by the court can all be useful in assessing the effectiveness of a state's regulatory scheme in achieving its stated purpose. See 324 Liquor, 479 U.S, at 350, As we sunvT rued in TFWS 1, drawing extensively on Supreme Court precedent.is 1 N9+' [U]nsubstantiated state concerns under the Twenty-first Amendment are not sufficient to trump the goals of the Shenren Act; a state must demonstrate that its liquor regulatory policies directly serve [i.e., are e"11active in furthering] the Interests it proffers under the Twenty-first Amendment, . . , In the end, the state's interests must be of sufficient weight to prevail against the federal interest in enforcement of the antitrust laws., �Qnb, 7111 10131113 Inc. V TFVVS, , FranchoL 572 F.3d 186,PrintaUe Page TFWS 11 242 F.3d at 212 (citations and quotations orru-tted). Rnfflng no exceptions to the law of the case, we decline to revisit our prior holdings on these points. 11Ro we turn now to the only issue not controlled by the law of the case. In TFWS III, we vacated the d�strict court's order finding that Maryland's regulatory scheme was 1 6 neffective and preempted by the SherTnan Act because the district court failed to take Into account, or explain why it was unnecessary to take into account� Maryland's and Delawares- excise tax rates and their effect on paces® TFWS 111, 147 F, Appix at 331-32. We remanded with instructions that the states' excise taxes must be considered to determine the effectiveness of Maryland's regUatmy schenwl, the district court, following our Instructions conducted additional fact-finding. FOHOW'Mg On remand, I a th*l§ fact-finding, the district court held that (1) controlling for excise taxes is a logical iwaans of elin-driating a separate variable and any excise tax differentials should be ellm*nated; (2) controfling for excise tax, Maryland's prices are on average only 0.2% more expensive than DeQaware's prices; (3) # will cause a 0.2% decrease In wine economc theory shows that a uniform 0.2% increase in price I consumption and a 0.3% decrease in liquor consumption and studies of states that have abolished similar laws indicate"no significant change in alcohol consumption patterns; and (4) Maryland proved only that the challenged regulations have (at best) a minimal impact in furthering the state's interest in temperance. Consequently, the district court concluded that the federal interest in promoting competition outweighs the state's interest and so Maryland's regulatory scheme is preempted by the Sherman Act. Although Maryland challenges the district court's legal conclusion that the federal Interest outweighs the state Interestr it does so primarily by challenging the court's second factual finding regarding [196] the minimal Impact of Maryland's challenged regulations on prices, our standard of review is well established. HN97 'We defer to the district court's factual findings and do not set them aside unless clearly erroneous; and we review legal conclusions de novo*" United States v. Stevenson, 396 F.3d 538, 541 (4th Cir. 2005)s A factual finding is clearly erroneous when we Anderson v. are "left with the definite and firm conviction that a mistake has been comnitt I ed,' I Bessemer Citylt 470 U,S. 564, 573, 105 S. Ct, 1504, 84 L Ed, 2d 518 (1985) (internal quotation marks and citation omitted). But "[I]f the district court's account of the evidence Is plausible in light of the record viewed in its entirety," we WHI not reverse the district court's finding simply because we have ..fid. at 573-74, Thus, become convinced that we would have decided the question of fact differently when 'there are two perrrissible views of the evidence, the [district court's] choice between them cannot be cleady erroneous," Id. at 574. Maryland challenges the district court's finding that the state's regulatory scheme has a minimal Impact and on which the court relied, was on pricing by arguing that the pricing data that TFWS provided flawed. Maryland errploys two primary arguments In attempting to demonstrate the unreliability of this data. First,, Maryland argues that 'in TFWS III 'this Court reversed, finding that [TFWS's analyses) were not Isufficiently reliable to provide an indication of the effect the challenged regulations have on Maryland prices. Appellant Appellant's Br. at 49 (quoting TFWS 111, 147 F. Appx at 335). However, Maryland'S--- attempt to find support In TFWS III for its current position (i.e., that TFWSs data is flawed) is rrisguided. The contextualized quote from omur holding M TFWS 117 is as follows-. rW]e cannot say at this point that the price comparisons cited by the district court are sufficiently reliable to provide an indication of the effect the challenged regulations have On Maryland prices., There is no factfinding or analysis by the district court that explains the extent of the impact excise taxes have on prices or why a comparison of prices need not be adjusted for excise taxes. Id. In other words, we did not hold that TFWS's analyses were not reliable --we mmply held that we could not evaluate whether or not the analyses were reliable because of the lack of Information about excise tax rates. Maryland has conceded that this most conspicuous" methodological flaw "was corrected In TFWSs revised price comparisons [which 'incorporated the effect of the states' excise tax 0 data took into account the excise tax rate in each state in rates]." Appellant's Br. at 52. The revised 6 land's liquor and wine orices with those in Delawares order tuo r-nore accurately compare Mam,• Consequently, our prior finding provides no support for Maryland's current challenges 8111 1MI113 TFVVS,, Inc. v. Franchot 5n F°319 66-FrinW a Page Second, Maryland questions the assumption underlying TFWSs data that retailers buy their stock exclusively in the months when the prices ire lowest. Maryland labels this type of purchasing art "extreme form of bridge buying.," and argues that most retailers do not have the credit or stoma ge capacity to engage in It., Appellant's Br. at 54. TFWS responds that since the assumption was rrode for both Maryland and Delaware, and the point of the study was to provide comparative data, Ws-, Jim t , Fi� See Appelleels [197) Br, at 54-56, The point of the analysis was not to assn tion was valid. . claim that all retailers actually buy when prices are at their lowest but simply to find a reference point that provides a fair basis of comparison for the two states' liquor and wine prices., See AppOee's Br. at 55, For Instance, It would also have made sense to compare average prices to average prices or highest prices to highest pn*ces. Id. The district court found that "[a]lthough TFWS1s_ data are far from perfect, they perrilt a more reliable comparison of Maryland and Delaware wholesale The State J has produced nothing better, and refles on TFWS's data in conducting its analysis, . U3 J.A. 5667. " In reviewing the record In its entirety, we find that the district court's reliance on the data provided by TFWS was reasonable. Maryland's arguments provide no bas'M for us to conclude that the district court's findings of fact -- and,, In particular, its finding that Maryland's regulatory scheme is ineffective M furthen*ng Maryland's pumortetd *Onterest in temperance -- are, clearly erroneous. Judging from the recordrefl ., the district court ed on the best evidence available and made a reasoned judgment on the basD's of that record. Once the district court made its finding of fact that the challenged regulatory scher—ne had rAnimal Impact 'In furthering the state's Interests, the legal conclusion that the federal C. Finding no error, we Mterest outweighed the state 'Interest followed more or less as a matter of course, affirm. M4 IV. For the foregoing reasons, the judgment appealed fromis Concur by: HOWARD Concur HOWARD, Senior District Judge, concurring** I agree that the law of the case controls our decision and, for that reason, concur in the majority's FINI opinion. Were we writing on a clean slate, however, I would vote to uphold both the volume -discount ban and the post -and -hold pricing system on the grounds that they are unilaterally imposed government restrictions, which do not run afoul of § 1 of the Sherri- n Act,, and, alternatively, that they constitute a proper exercise of Maryland's Twenty-first Amendment interests* Footnote 1 "Hybn"du restraints on trade are governmentally -imposed trade restraints that enforce private pricing decisions. "Unilater-al" restraints on trade are those that are unilaterally imposed by the government, See TFWS, Inc. v, Schaefer ("TFWS 11r) 242 F.3d 198,r 207-08 (4th Cir. 2001). Footnote 2 fop ae t A Is per se" violation occurs when a state regulatory stcheme- is Irrecon%ciflable.. o, its fcwih § 1 of n the Sherman Act, See Id,, at 206-07. Footnote 3 Maryland, howeverr, had not yet raised any 21st Arnendne-ent defense. 9/11 Vnmwarv-.A lmi,.c-rxraPwm/Ccntenr%riamPrintaNePaue.asox TFWS, Inc. v. Franchot 572 F.3d 186- Printable Page Footnote 4 Section Two of the Twenty�Flrst Amendment provides, 'The transportation or importation 'Into any atasta, Territory.. or possession of the United States for delivery or use therein of intoxicating liquors, In 9 Red," U.S. Const. arnend. XXI,:, This section has been 0 ; vVatlon of the laws thereof, 'I's hereby prof b 0 interpreted to give statess very/ broad authonty to regulate the sale and distribution of alcoholic beverages within their borders. See North Dakota v. United States f 495 U.S. 423, 431, 110 S. Ct. 1986, 109 L. Ed, 2d 420 (1990)0 Footnote 5 With the post-and-hoid pft� ng systeme we recognized a plain distinction between the lawful right to publish prices, on the one hand, and an un�awful agreerrent among competitors limiting action with respect to the published p�ices, on the other. A at 209 (citing Catalano,,, Inc. v, Target Sales,, Inc., 446 U.S. 643, 649-50, 100 S, Ct,:. 1925e 64 L Ed, 2d 580 (1980) �per cudam)),, We also concluded that under Catalano Maryland's ban on volurm discounts was a per se v'oda � Von of the Sherman Act. Footnote 6 See TFWS, Inc. v. Schaefer, 183 F. Supp. 2d 789 (D, Md, 2002) - ? TFWS , Inc. v. Schaefer, 315 F. Supp. 2d 775 D. Md. 2004); TFWS,, Inc. v. Schaefbr, 2007 U,S,, Dest. LEXIS 76362, 2007 WL 2917025 (D, Mdo Sept. 27, 2007) (unpubHmhed-), O Footnote 7 See TFWSTS, Inc. v. Schaefer FW .. Inc. v. Schaefer ("TFWS 11"), 325 F, 3d 234, 242 (4th Or. 2003) ('TFWS Iff"), 147 F. Appx 330, 334-36 (4th in 2005) (unpublished)LI Footnote 8 The relevant Supreme Court decisions we relied on in TFWS I were: 324 Liquor Corp. v. Duffy, 479 U',S, 3351, 107 So Ct. 720, 93 L. Ed, 2d 667 {x.987); Cal. Retail Liquor Dealers Ass"n v. Midcal Aluminum, Inc., 445 U.S* 97/ 100 S. Ct. 937, 63 L. Ed. 2d 233 (1980); and Schwegmann Bros. v. Calvert Distillers Corp,, 341 U.S. 384, 71 S. Ct, 745, 95 L Ed. 1035, 60 Ohio Law Abs, 81 (1.951). Footnote 9 Maryland's analysis seems to draw a parallel between Leegin and our holding in TFWS Ion the basis of the shared term "resale price maintenance." See Appellant's Br. at 28-29. In Leegin, the Supreme court used the term "resale price maintenance" to describe vertical price fixing that the Court held was to be evaluated according to the "rule of reason" and was no longer per se Illegal. However, In TFWS 1, we used the same term merely to describe a commonality between three Supreme Court decisions,, Schwegmann, Mldcal, and 324 Liquor, and not to describe the Maryland regulatory scheme, See TFWS T 242 F.3d at 208 ("All three of these cases, Schwegmann, Midcal, and 324 Liquor, dealt with the liquor or wine industry and some form of state--sanctioned resale price maintenance,,"). Further, at the point In our analysis in TFWS I where we relied on these Supreme Court decisions, we were analyzing whether Maryland's regulatory scheme was a hybrid restraint on trade and not whether this scheme was a per se violation of the Sherman Act -- the topic of interest in Leegin. See Id. at 208 {noting that Schwegmann,, Midcal, and 324 Liquor "[e]ach involved state liquor or wine laws that empowered private parties to set prices, and those prices were enforced by govemment mechan1sn-s.'j. We based our conclusion that the scheme is a per se violation explicitly on our finding that Maryland's scheme constituted horizontal price fixing. See id. at 209,. Footnote 10 10131/13 TFVVS, Inc. v. Franch0t, 572 F.3d 186-Printf a Page _ But see Costco Bol a Corp,, a Maleng, 522 F.3d 874 (9th Cir. 2008), in which the Ninth Circuit carne to a different conclusion in reviewing Washington law, The Ninth circuit struck down Washington's "post- and- hold" pricing system (which it found to be a per se violation of the Sherman Act but severed and upheld Washington's "'volume discount ban"" as unilateral restraint on trade. �� p PM 1, at 898-900. w..+ .. ' . es er ♦ .♦ •♦I1 y.a f• 9Nt • . o•... •..w.. q s. ..• w • •. •t w v s Oa < e • ' Footnote 11 Maryland f it da to even raise this concem until its third appeal to this court—years- after our initial decision �n TFF i S I and years after Maryland itself had staked a position ass ntiafly �danflcali to our holding in Td, R/G, I on this issue. .. . Footnote 12 TFWS also points out, and the statedr,, dispute, that Maryland has not raised its excise tax on liquor for nmre than fifty y o See A��p Hee' Br. at 5, 42. Maryland has consistently rejected bills '-' A, 5091-�12�(collectingbills pro osing to raise the excise tax that would raise its excise taxes. See � P that failed to make it through the legislature). Maryland, along with the District of Columbia, imposes the lowest excise tax in the nation on distilled spirits and a tax rate on wine that is well below the national median. 1A. 5134, Footnote 13 For instance, Maryland subrT itted data that was not representative of each state and which did not consistently survey the same retailers. 1A. 5660.61. Further, the state did not even provide any new analysis of its original data to control for the effect of excise taxes. ].A. 5661. Finally, although Maryland's approach did not allow for any discount via bridge buying in Maryland, it appliedquiant*Rty discount to all Delaware prices, even though not all Delaware retailers are able to take advantage of p, these discounts. J.A. 5662. This flawed approach skewed Maryland's prices upward and Delaware's paces downward. Terms: 572 F.3d 186 Search Type: Citation Narrow by: None Date and `fame: Thursday, October 31, 2013 — 01:31 Phi ARM6WLeAs exlse I About LexisNexis 1 Privacy Policy I Terms & Conditions I copyright 0 2013 LexlsNexis . hVs:1/ad%=eJeAs.cardPag es/Cont eWr1nbWeP efspx 11!11 "I P" OFFICE OF THE BOARD OF LICENSE COM USSIONERS Douglas M. Duncan Dennis lbeobaris County Bxecutive Executive Director September 26, 1997 Margolius, Mallios, Davis, Rider & Tomar, LLP c/o Dimitri Mallios `1828 L St., N.W. -Suite 500 Washington, D.C, 20036 Re: Resolution 97-54 ram Dear Mr. Mallios: 0" Thank you for pointing out the scrivener's error on the 15th line of page 41n the above-cited resolution. We are substituting a corrected page and I am enclosing a copy of the substitution. incerel Dennis Theoharis Executive Director , Do"cr: a bw oncDoo surce ou/Aud r--wr-m8l M., 048 16650 Crabbs Branch Way 0 RockvlUes Maryland 20855-2297 0 5=217-RY95, F.7 Montgomery County Dept of Liquor Control will special order the specialty wines for her store. Mrs. Trone also acknowledged that, due to a new state law that potentially could Ifinit square footage for beer and wine stores M' Maryland effective on October 1, her Gaithersburg Fine Wine could be the last store in Maryland which has over 10,000 square feet of retail space, Mrs. Trone stated that she is not aware of declining statistics on consumption. Ws. Trone acknowledged that the back of the Gaithersburg store borders on the fairground property. d. Cross-examination of4pplicant June Trone by David Mister. In response to questions put by Mr. Mister, Mrs. Trone testified, in substance, that. She has been mam*ed to David Trone for 10 years. Mr. Trone owns 100% of Retail Services & Systems Inc., a consulting fum, has served as a consultant for DJT, Inc. Mis. Trone received a loan from Mr. Trone to open her store in Pennsylvania, and he is paid a monthly fee for consulting services m' connection with her Pennsylvania store. Mrs. Trone also is an officer and director of, but not a stockholder in, QPA Inc. Mrs. Trone is aware of pending lawsuits against her husband and various corporations, and the allegations on which those lawsuits are based. Retail Services, and her husband currently are, involved in a lawsuit. The success of the Pennsylvania store has encouraged Mrs. Trone to expand her busLness. Startup capital for the Gaithersburg store is approximately $800,000., $5003,00 of which is in inventory. Mrs. Trone has $800,000 in liquid assets, and has not taken out any loans for the Gaithersburg store. Her brother -sin- law, Robert Trone, is an applicant for an alcoholic beverage license M' Anne Arundel County, Mrs, Trone has Joint accounts with her husband, who has a beer and wine license for a store M* Baltimore County. Mrs. Trone's husband is not providing consulting services for the store M" Gaithersburg. Mrs. Trone does not expect any discount prices from the Dept. of Liquor Control for Montgomery County, Mn. Traa6 spalet there is a loss of beer and wine sales to Virginia and the District of Columbia due to the limited selections of product in the stores in Montgomery County. She cannot verify or deny the statement that consumption levels of alcoholic bv�,,Farazm UE, gom's down* 4 C -::A Office of the County Attorney Montgomery County, Maryland MEMORANDUM September 19, 1997 TOO 0 Dennis Theoharis, Executive Director Board of Licens uoners FRO IVA Judson Crarre Assistant un Attorney cozywftd -page 4V is F--, am LAve", (LWFDCES M ARC 0 L � US, AM A L L Q 0 3, VAVY1 , RE ME Rt 66 ![: 00 MMK�, VL1", JAMES L. RIDER" 1028 L STREET, N,,W-- - SUITE 500 EDWARD Ma AWNEL DINTRI P. MALUOS+ WASH H4(31TONIO D.C. 20003ca SAM9RUFvC1v COUNSEL PHILIP N. MARGOLIUS+ RICHARD T. TOMAR+ 9202D 2964000 KARL E. DAVIS+ OF COUNSEL GARY A. STEIN+ RANDY ALAN WEISS. P.C.+® FACNALF 9200 296-63400 EUGENE G. HOROWffZ SHARON K GOLEY* CHRISTINE M. SORGE+ EDWARD L. DONOHUE+ STEPHEN K LEVEY+ sEMDOE 4 II ROAD THOMAS J. CARROLILO SUSAN M.BUTLERO JYAORFA%',11RSINJA 22030 +MD ALSO., OVA ALSO August 277v 199197 OHD ONLY; OVA ONLY Mr. Dennis Theoharis Board of License Commissioners 1.0 16650 Crabbe Branch Way j Rockville, Maryland 20855 can Re: aST, Inc. co Dear Dennis. in the 15th line of page 4 of the aST Resolution,, it stafhbs "Xr . Trane also is an of ficer and director of but not a N) Ift stockholder in, QFA Inc -9 This is a mistake. it should gay 1 gn nXro. Troneno Would you please correct this* incerely urs, Dimitri PO, Mallios f 0 0 P" 1�1 Montgomery County Dept. of Liquor Control will special order the specialty wines for ., her store. Mrs. Trone also acknowledged. that, due to a new state law that potentially could limit q s uare footage for beer and wine stores in Maryland effective on October 1, her Gaithersburg bine Wine could be the last store in Maryland which has over 10,000 square feet of retail space. . Mrs. Trone stated that she is not aware of declining statistics on consumption. Fli Mrs. Trone acknowledged that the back of the Qdthersburg store borders on the fairground property. d. Cross-e=minatlon of Applicant June Frons by Dav d Moen In response toY uestions put b Mr. Mister, Ms. 'Prone testified, %n substance, that: � p She has been married to David Trone for -1-0 years. Mr. Trone ovens 100% of Retail Services & Systems Inc., a consulting rued as a consultant for DJT, Inc. Mrs. �-, Trone received a loan from Mr. Trone to open her store in Pewsylvania, and he is pal a monthlyfee for consulting services in connection with her Pennsylvania stor Mr. Trone also is an officer and director of, but not a stockholder in, Q F c. QFA Inc. 1V h. Trane is aware of pending lawsuits against her husband and various corporations, and the wile 'ons on which those lawsuits are based. Retail Services, and her husband P, currently are involved in a lawsuit. The success ofthe Pennsylvania store has encouraged hdrs, Trone to expand her mss. �+ Startup capital for the Gaithersburg store is approkinately $800,0009 $500,00 of which is in inventory, Mrs. Trone has $8Q0,000 in liquid assets, and has not taken out any Ions for the Gaithersburg store. • Her brother -in- law, Robert Trone, is an applicant for an �+ alcoholic beverage license in Anne Arundel County, Mrs. Trone has joint accounts with her husband, who has a beer and wine license for a store in Baltimore County. Mrs. Trone's husband is not providing consulting'serWices for the store in Gaithersburg. Mrs. Trone does not expect any discount prices from the Dept. of Liquor Control' for Montgomery County. Mrs. Trone stated that there is a loss of beer and wine sales.to Virginia and the District of Columbia due to the limited selections of product in the stores in Montgomery -+ County. She cannot verify or deny the statement that consumption levels of alcoholic beverages are going down. POR 4 P" The letters and the petition are contained in the licensure file, are Pad Of the complete hearing record, and are incorporated herein. mcorporated 2Anached and herein is a list of the thirty-seven protestants who appeared at the bearing. O BOARD OF LICENSE COhOWSIONERS pool FOR MONTGOMERY COUNTY JUNETRONE, APPLICATION FOR STEPHEN LEVEE BEER & LIGHT WINE LICENSE • Applicants CLASS At OFF SALE ONLY R19SOLUTION 97-54 A. Proceedinga On June 19, 1997, the Board of License Conunissioners for Montgomery County (Board), held •he Trone and Stephen Levey, on behalf of JST, Inc., for a c on the application by June a publi aring - enuses known as Uthersburg Fine Nine Beer & Wine License, Class A., off Sale Only, for the Pr and located at 220 N. Frederick AvenPe, Gaithersbur% Maryland. The applicants were represented by Dimitri MaMos, Esquire. Two groups of protestants were represented counsel: one by Barry F. Helfand, Esquire and the other by David F. Mister, Esquin, B. Mdgnee ftMe In addition to the application and a sheieport, the Board received testimony and documentary in of the aPplicati.OfrOiu applicant June Ti�ne, applicant's consultant James F. evidence support .n Giegeric,IL mrs, Trone and Mr. Giegerich were cross- by counsel for two groups protesting the issuauce of the liceme (the r-cprotestan&). The Board also received WM--nine letter's opposing the granting of license., and a petition M' opposition that contained forty-seven signatures.' 0 2three of whom testified and were subject to Present at the were -seven protestant's, The letters and the petition are contained in the licensure file, are Pad Of the complete hearing record, and are incorporated herein. mcorporated 2Anached and herein is a list of the thirty-seven protestants who appeared at the bearing. O POR W 0" PAM cross ex ' ' on by applicants' counsel? The evidence may be swmrnaried as follows: 1. Witne�. a. Direct Examination ofApplicant June Prone. After demonstratin the required familiarity with personal identification requirements, purchasing proceftes and the respective legal ages for selling and purchasing alcoholic beverages, A"+ Mrs. T3rones on direct e . by her counsel, tested, in substance, as follows: The store for which this license is sought will be known as "CTT bersburg Fine 'Nine." It will be a 16,+644 square foot retail beer and ovine store that will o in stock between 400 to 500 kinds of beer and apprb?dmately 7,000 wines at reduced rates on the basis of mallprofit near in vs. hi volume. This type of facd�' is a unique concept in s g �` �� + Montgomery County, and could be categorized as a beer and wine ket. The huge selection and reduced rates will generate healthy competition, and, in the licant's o inion, will result in better service, selection, and pricing for the consumer. aPP P 'le radius, and that, in �+ This applicant stated that she intends to draw patrons from a 15 -mi , addition to sellingcold beer in a large number of varieties, the store will cater to . N ' " who will het the clientele who are interested in wines by having ane assocnates P + consumer select the correct wine for the occasion. She anticipates 4 to 7 million dollars annually in sales c - Mrs. Trone owns a "suP ermarker type store in Pennsylvania that sells beer and snack .. Initially food items, and does appro)d nately 3 to 4 m .tion dollars amat�atly in sales. y there was opposition to the opening of that store, but it has not, according to the applicant, driven the neighboring, beer retail stores out of business, l tion for Gaithersburgie Nine will be 11:00 a.m. to 8:00 The proposed hours of apexa �'g .m. on Sunda and 8:00 a.m. to 10:00 p.m. Monday through Saturday. 'There will be P y' ' ' in sate of alcoholic approximately 40 employees over the age of 18 and trailed nt Pp beverages. 111; applicants intend to have aWemployees alcohol ass certified. mg PP b. Direct Examination of COn"Itant James F, Glegerich Mr. (RegeriA of Giegerich & Associates, was called as a witness for the applicants. He testified, direct examination b counsel for the applicants, to the fnd s co in has Analysis of on y In order to conserve time and avoid cumulative testimony, all were not encouraged to 2 P" f" Public Accommodation for JST Inc., dated June 16, 1997 (the "Reporf), which was introduced into evidences The substance of Mr. Giegerich's testimony is contained in the M (pp, 1-4) and pq the Existing Beer and"wine Store Survey (pp. 12-14) parts of the Report C. Cross. -.Encu joy o� e Trons y/,,��t' �� o I" In response to questions posed by Mr. He yd Mrs. Trone testified, in substance, as Follows: Mrs. Trone resides in Pennsylvania, but will rent an apartment in Gaithersburg once the license is approved and Gaithersburg Fine wine is up and running. She intends to stay in Gaithersburg as long as needed to get the store operational and * smoothly. �+ Mrs. Trove's store" Pe�ur�sylvania is larger than the proposedsithersburg store and sells only beer and snack food items. She worked in the penns�lvam-a store from 70 to ► 80 hours per week during the store's first two years of operon. Currently, she is in the Pennsylvania store approximately one once every two weeks. In the past month she has visited that store uppry three times. During peak holiday times, Mrs. Trone is *�■� in the Pennsylvania store more often. Shoplifting has never been a major issue in her store. JST, Inc., is a Maryland corporation. Mr. Levey is the Montgomery County resident on the application; however, he has no pecuniary interest in JST, Inc. and will not be working in the store. The store managers have not been hired yet. +� Mrs. Trove's husband owns Beltway Fine Wines, a similar store in Baltimore County. The money invested in the Gaithersburg facility is Mrs. Trone's money; her husband has *�+ no financial, interest in Gaithersburg Fine Nine, and her husband will not be a consultant regarding this store. The initial dost of stocking this store will be approximately $500,+040. She receives the profits from the Pennsylvania store. r'! The target area for the Gaithersburg faces is a 10 to 15 mile radius. In her opinion, the licensing hearing is about public accommodation not competitive advantage. Currently, many Montgomery Countians go to Vir&a for products her store will offer. For example, according to Mrs. Trone, a Virginia store named Total Beverage pulls patronage from Montgomery County, Mrs. Trone did not get citizen input or support for her application. . The witness testified that she is aware of the Montgomery County dispensaries in the Gaithersburg area. Currently, according to her testimony, there are four beer and wine stores within a three -anile radius of the proposed site. Mrs. Trone understands that the ft 'A copy of the Report is attached hereto and incorporated herein. P" F" F" 0 P" has not yet been deterrmned, AwAing to Mrs. Trone, -W Levey, whose compensWon I will not be an employee of the store, and will not be on &e premises on a daily basis* She and her manager will make the day-to-daY decisions" M the Gaithersburg store, Mrs. Trove spends approximately 3 hours during each visit to the Pmisylvania store. e. Cros Van& s..&amination of Giegerich by Mr. He In response to questions POSed by We Helfand, Mr. G'egerch tamed, in substance, that He was hired 4 to 6 weeks ago, and two people worked on the * Report, spending 0 in ten copies. apprwdrnately 60 to 80 hours preparing the RePOM which was This witnws charged is paid $171 an hour for his appearance at this BRAg. de#exmxne Mr. Ciegerih testified that a market analysis is done to identify need and to and strictly within a trade am. He was aware Of Ms. TrOnes market "'tera (large a public, opinion poll, and he is not a wine store/large selection), He did not do connoisseur* The witness also testified that Prince George's County has a higher level of service an terms of more beer and wine off -Premises Stores,, ram Mr, Cjegerich stated that he has never appeared on behalf of an opposition 9XOUP; i* it bhe hasan however, if the facts supported a downsides he would ft to ecause obligation to the client to report good and bad. 0 Mr, Giegerich testified that 20% it a general figure accepted by the industry for a secondary trade area patronage. f. protestant .bane Crandall, Licensee, Goshen Plata Beer & Wine. te 41, 4 'S"ed, 44" M of this license, Mrs. Crandall M sujo��c Testifying in opposition to the follows: Her store, Goshen Ph= Beer & Vine., is located approximately 3 miles from the proposed store, ompies approAmately 2.*400 square feet of reW space* Mrs. Crwdall has been M* business for 9 1/2 years., and has a lease for an 10 years. The witness is a lifelong resident Of WntgOmerY County, and has reclassified her license testings in her store, She carries an to a Class D. On and Off Sales, to allow for wine L"aba cknd exte nsive inventory, approximately 23,120 wine items and 553 beer item in sto, a 5 N6 takes special orders from customers for items which she does not have M- stock. She pays cash for her purchases of alcoholic beverages from the Department of Liquor Control. Her overhead expenses increase yearly. In Montgomery County the only source for inventory is the Department of Liquor Control. Mrs. Crandall works 50 to 60 hours per week in her store and never sells at cost or below cost, she stated that she cannot afford to because of her overhead expenses. Mrs. Crandall testified that she is 7th m wine sales M* Montgomery County .1 to 0 and 17th in beer sales, and makes a reasonable nvmg.. This witness requested that the Board keep in mind their focus on moderation M* the granting of off -sale licenses, and stated that the proposed facility is not necessary for the accommodation of the public. 9. Protestant James Yate, Licensee, Burtonsville Beer & Wine. 0 Ln opposition to the granting of this license, Mr. Yates testified, in substance, as follows-. The proposed facility is not necessary for the accommodation of the public, and the mega store concept is not necessarily a good concept. Rather than stimulating compenuon, lower pricing drives competition out. For example, according to this witness, Home Depot and Lowes forced both Olney local hardware stores out of business. The mega store concept takes the consumers' choices away, and the small beer and wine stores in ,�, the area(wgl not be able to co -exist with this type of facility. Mr. Yates works 60 to 65 hours per week M* his store. I Protestant Linda Biagi, Licensee, Wine Rack a 1%&s. Bit gi,, m# opposition to the gra6ting of This license,, offered, M* substance, the following testimony: She has been a licensee in Montgomery County for 19 yews, Her sk". the Wine Rack, is 7/1 Oths, of a mile away from the site of the. proposed store, was not included M* the trade area survey by Mr. Giegerich. The Wine Rack is her store is a boutique, upscale wine store with 3,200 square feet of retail space. Her cooler can hold 3000 cases., and she carries 1,7o0 different wines arranged by country and price., Mrs. Biagi has a large special order business; special orders take 2 weeks from a local vendor and 4-6 weeks from a non,.Iocaj vendor, sales at the Wine Rack have gone down since the 1980's a * a 10 because of more stores, a different Mix of people, and less anniang, Mrs. Biagi testified that this business is not a 3 to 4 hour a day business; she employs 2 full-time managers and still has to be there six to seven days per week. 0 ess stated that t � t �` x �-F ns at sEry fie : Way � el 'aon Of � w.�trn �' �� sp�sa the public, regardless ardless of its shwa 5 t WCO)u 'a t azc sad ! s A&T, 2 WWI WO ,.� g serve the public need. 2. hoc .. videnc. evidence, mere ° c without obi n, � 1a!L m&� e Among the documentary • thsct�`o►District, 1�1o�ctoea�+ awls �aYtherstaun�e Plar� 9 Glasscock, P,�.•(Survey's - `cz 0a R9�,1-� �1 b dews K s,�endrncks, and Glas k, ' , o or Md. Re 'stmdon 10712). a plat ease fe def Professional Land Survey � ,n, comer of Grace United M �, Methodist Church to the closest corner of p a to be, 652' 4" �., C. Apipliggbh Later Article 2B of the Maryland Code controls the consideration and issuance or denial of alcoholic and. There are two provisions of Article 2B that generally apply to the beverage licenses ��.1nrY1 Pxo0 and disposition of every application for a license to sen alcoholic beverages m consideration pa lord to be lied b County. The are § 10-202 (a) (2) (i). which articulates the star app y Montgomery . tY Y � 3 which sets forth the Board in actin on an application for a license, and X10-202 (m) (3), the B g P requirements for a decision and resolution concerni re�uxre ng an application for a license. .. - 16(a),which a lies in certain uses, provides in pertinent part as follows: In addi#nvn, § 9 2 applies The Montgomery County Board of License Commissioners may not issue any license to sell within 750 feet of an secondary or elementary school, church or other alcoholic beverages Y ,� place of worshi ublic library or youth center sponsored or conducted by any gov P p' P e from the nearest int of the agency,, M ent of the distance shall be read � • • which the license is eyed to the nearest point � build&"& of the proposed establxslunent far wlu f the school, of the bu"ld"ng o church or other place of worship, public library or youth center. The Board of L 1, License Commissioners may within its disci ction and by unanimous action of the Board approve the application for any license to sell alcoholic beverages more than � elemen or secondary school, church or other place of worship, public 30� feet from any �'Y ' ed that youth center sponsored or conducted by any governmental agency proved library, or you the buil ' is sitAW in which the licensee would operate is classified �+ the land upon winch ding in a commercial or industrial zone under the applicable zoning Q�ce and is adjacent and/or con�guous to other land Whichis sirrdlarly classified under said zoning ordinance. fun j Mu t�.on "a11 be d:Sa roved and the license for which Among other bungs, Rhe app PP e shall be refused if the Board of License Commissioners determines that he application is mad grantingof the license is not necessary for the accommodation of the public, 7 r7-7 Lad" ners present for the entire hearing IF, G�Ru o hce, 'ag on ime- 19D 1997, the four commISSIO stated the following findings M add=sing a motion to grant the "cense: i. Three of the four comaussioners, present found, based on the application and the evidence presented, that, a. The applicants were able to properly answer questions with regard to the �•, Alcoholic Beverage Laws and have the knowledge and business experience necessary to administer an alcoholic beverage license, P" b. Neither applicant has been convicted of a felony; c. Thetin of this license would offer consumers a large facility with an P" 2,, variety and inventory of stock and low prices* and exMIL aye d. There was no testimony as to any factual matter relating to the applicants Lnbnag a licemvp, in Montgomery COuntY- which would preclude them frorm c) N-0, , 2. Ylie, fourth commissioner present, Mr. Nzykir, lbas@d ou the evidence presented) that: aV Beer and wine Wes in this area are decl b,; The trade area is a ten to fifteen mile radicaaWna forml-three. off- sta vi c° beer and wine stores, nine of which are in the I'Mmgd! WcWty of the proposed store; s within 750 feet of the C. The Grace United Methodist Churck which i p osed site, opposes the 4n of the license; proposed *4 d. 'The number of off -sale licensed facilities within the ='nediate area and within the entire trade area does not warrant an additional off -sale fheilitY; e. All Ecansees am required to purchase product through the Montgomery County Department of Liquor Control at the same prices, and therefore have "Because of a health problemt one member had to leave during the hearing, and therefore did not participate in either the deliberations Or the vote On this application® 8 i the same ability to offer the same products; f. This store is not necessary for the accommodation of the public. 3. All fouuioners present found that the corner of the Grace United Methodist Church closest to the site of the proposed store is less than 750, but more than 300, feet from that site. E. Conclusions of Lave & ctlon All four conrrnissioners present concluded that, as a matter of law, the action of the Board is required for approval of this application and issuance of the requested license. However, only three of the four commissioners concluded that the standard set forth in § 9.216 (a) had been . .. �., met. Commissioner Naylor concluded that the proposed store is not necessary for the accommodation of the public. THEREUPON, a motion to grant the license (made by Mr. Mok and seconded by Ms. Bolan) received less than the unanimous vote of the four members present (Ms. Boland, Mr Mok and Mr. Klig man voting in the positive and Mr. Naylor in the negative), wBEREFORE, BE IT RESOLVED, this day of August; 1997,, that the license applied for at the premises designated roust be, and it ?Hereby is, DENIED for want of the unanimous action of the Board required by Md. Code, Article 2B, § 9-21.6 (a),. Notice Any person, association or corporation aggrieved by the decision of the Board may, within 30 days of receipt of this Resolution, appeal the'decision of the Board of License Commissioners of Montgomery County to the Circuit Court for Montgomery County, Mary Appeals to the quit court are governed by Article 2B, Section 16-101 of the Annotated Code �., of Maryland, and Title 7, Chapter 200 of the Maryland Rules of Procedure, ATTEST: I, the undersigned, hereby certify that the Board adopted the foregoing Resolution on the 7th day of August, 1997. Dennis Theoharis Executive Director Office of the Board of License Cs for Montgomery County 9 37 PROTESTANTS WHO APPEARED AT 8/19/97 HEARING 1, peter Frank, 5234 River Road, Bethesda 2, Edward An, 460 N. Frederick Ave., Gaithersburg 3, Linda Biagi, 18 Bureau Drive, Gaithersburg 4, See Sin Cheng, 405 N. Frederick Ave.. Gaithersburg 5, Jane Crandall, 9150 Rothbury Drive. Gaithersburg 6. Won Chung, 225 Muddy Branch Road, Gaithersburg 7, Richard Furtovksyj 5307 Strathmore Avenue, Kensington 8, Quang Tran,18749 N. Frederick Ave. Gaithersburg g. Paul Muggo, 16701 Chester Mill Terrace, Silver Spring 10, Fred Mueller, 20-D Mont. Village Avenue, Gaithersburg- - 11. Mai Mugge 221 U. Washington Street, Rockville 12, Hasmukh Kalaria 13., Norman Plotnick,13748 Connecticut Avenue Wheaton 14. James Yates, 16309 Batchellorsfor Road 154, John Books, 7526 Cherry Tree Drive, Fulton 16. Ronald Greenbaumi 12817 Huntsman Way, Potomac 17. Toni Levin, 9915 Juniper Hill Road, Rockville 18, At Crandall, 19357 Brooke Grove Court. Gaithersburg 19. Abraham Habtemanious 217 AI, Frederick Avenue, Gaithersburg 20, Stuart Levin, 9915 Juniper Hill Road, Rockville 21,, Khuy E. Lim. 16254 S. Frederick Road, Gaithersburg 22, Kheng Chhay, 1071 Rockville Pike, Rockville 23. Pack Yon, 11512 Middlebrook Road, Germantown 24, Robert NIggel, Jr., 305 Kentlands Blvd*, Gaithersburg . 25. Yong Ok Yip 8403 Snouffer,School Road, Gaithersburg 26. Won S. Park, 888 Rockville. Pike, Rockville,. 27. Lee Sin, 405-A N. Frederick Avenue, Gaithersburg 28. ih Whan Lee,12845 Clopper Road, Germantown 29, Ron Young, 7250 Muncaster Mill Rodd, Derwood 30, Tom Yates, 18208 Village Mart Drive, Olney 31. Dave Schroeder, 18253 Flower Hill Way. Gaithersburg 32, Jeff Pettenati, 2011 A Viers Mill Road,Rockvilte 33, Sengoda Ramaswamyo 19727 Frederick Road, Germantown 34, William Sepelak, 410 Saybrook View Drive, Gaithersburg 35, Eric Shockey, 70 W. Deer Parc Road, Gaithersburg 36, Kheng Chhay, 1071 Rockville Pike, Rockville 37, Derby Sussman, 7601 Airparlc Road, Gaithersburg 0 0 Ezz 0 Mal 0 + e• • I °« • e e O • i • � + 4 O O • « d Do ♦ V • ♦ A dw 00 vo or a A •« 1 ► • ,. �. o DAM. datio gs of � ° w m « 0 a + .Licex�se Applicition, ° • e�wm O`Class,,A• • � a �i•� s y y ♦ + o y • for. JSTI Inc* s • ine. trading • Gaithersburg Fme • Do a • • • • • • ® • o ♦ « • • Aro • a e • • •• e c • ° 8 • • • s o ® 0 Y • a s e ! ► • • • • •0 Do • a y ,■� r• •A y •o.• •j • ° • • • • • ' • • + n+ ° oa ° • • •• • a o y • @ to ' mA •«°a A o y • •r ® m ° • r r.� ■ °: « • • « • • Pr paged• by: •' a • a ' • •v s�•eoa • r&orw�•i • • ° o •• 'a o. • • • + 9 d •• e • • . m . •• �bb °• • •+ • • . • Giegerio & Associates « June • 16 3997 ae Do • O k v • b • • ° ►• • Do ♦ • a 0 . -•:� M it m y _ ` • • + •• . • a3s . P • M • T� .@ • + • a • • s • • 0 set, 6 r • • m• , • o• M o , o s •• o ♦ • •• , t + • •• • • •. o ° a„ o • • r ♦ c o-� a --� ° °• •i• o e ='• +s ' o . .,' . • _• o•• • ♦ ' • ° a • �•'• do + •+ s f• ®Oa •t • • • • r mom. ��i, �' a• •, a . d ©_ y° � @ ams •d • • D ,'•• • c2p °•� • o ♦• ♦ a • •. • 1 -s •.•> • v M1° •• .d�s.A • 1• • ♦ • �•' ,S ��8 a ao •s a ,•O • '• • 0 o•• o +` +°� b c bi 4 ••• " �♦ • • P • ♦ • • e• •m • ••° • ° G • °••• ;•• N°• + • -Y o c1}d • • Ao s,+» .. ,••s.: ••8 a ,,, eo •'♦.'• t, , • ♦ • • • i ♦• • ••♦m �. • !1 +• •o 'A • •m� + • • • • e a e. D 6�•` •re ® .•m na D ► d • ' •• 10 Im •e • e o t + - ♦ T $t . • • • • • • ` +• me • •ti♦ •° • :•• p � Da •t• • • • ♦e • y A4 • O c 4•a ° • 1 • a' . i •• r • ° •o A. • no :! , 41••00 ••i • • •' •• • • •:r ,•I� • • ,• • •+• •f �•� •` • m •FINDINGOF CCO A,T ON OF TIS• UBLIC: �It* 1 0.a • • 4141 ,.. • too*.0 . • • a • • 0 • , •+. • i0 + • • • • • • • • • 4141 • • • •� • :• • .• • • :•� • • m ♦+ • '• • • i • ' 4141 .�` - •. • � '; :• 4141 • . � • • _ e to •be granted . ' ' • • ke' Odin hi hliQht .the need within. the county �1=or a Class A ircens The followutg y gs g b _ - - •� • .: 'thersbur Fme Vanes and demonstrate' that there is a need to accommodate • to the agphcant, Gay g .. - . • • - • + . • . • license in this area: . • the public b a rcial of another Class A •' . .. Y pp • .. . . � . • : • �, 4141 ♦ �-. • • � ,• • • � • . � • . • • �' • `b + � • � • , � • • • • • • _ 4141 ° ° �• • • • �• - •�°ave• ,� m Dve • - .•, • + • • • 4141 • • • • • + . ,• + ♦;+• • •..+ Y• •- • �••• • �•• :a. • M • • • e ♦ • m ? • • .• 1 Ore • ♦ • • • • • e ♦• ~ • • • • e -nro c►sed. Gaithersbri Fin+ "nines S + • "� 4141• ♦ •. •. , •+. o • i • • j °• So .•,. • • % • P° m. 0 4141 • 4141. •► • c an0 • �•• ' s • • »® °. 0 lip • • • +�• 41 • • • • • , �� •• • • • • • • • p • • 4141 to +'� 4141 , ` ` • • O n n. • 4141 ♦ • • 4141 ' , • • `4141• ,f,, • �! r + • `•�. t ♦ 4141 ♦• • ®- . ... - ' • • Selection• . and41 Serirrce - ♦ • ' r+ a .• ; • •+ , '+ ° • . . v + sr, , • • • • • •. ti • + • • • • 4141 • . 4141 • • < .4141 dO°+• • •; - • o . � +4141 • • . � • ,. �. °. 4141 4141 �• . • • ? � _ • ow: � ♦•' + • • * w • • , ♦ • • , . • • •. •M �, • i 4141' • • • • • 600 • + � • -`• ♦ i �a also have ° +~ •° • + :: .. . • a 600 to 700 different beers :•xt er ,000 different wines • n .: • • o `The store will. offer over ? 0. s ♦• 4141 ` • - • • ' • • ' • a • ed•and k owledgeable wine associates to assist cost iners�ir� tbe�r choices. + ° o Convenience • ' • . • _ • ' s.l • 4141 .. . • • • •., • .+ 4141 . , .. @ .. �+i . . ' 4141 ed +store will be conienient to trade area residents. it will have safe entry. irost UMMARY and est • ,: • ' o' The propos ' ' + Chestnut .. • «• d two gouts of access from Ch _ fr+arn Z•driveway accesses on Frederick Avenue an • •� • , + + , � • 41`41 " � n r~ •' e, which is s' nalized at Frederick Avenue .. . • ' . �, ♦ • • � • • � • • ♦ .♦ • ♦ - 4141 �• • • • . • •. • s m .: very convenient to day�timc employees in the Gaithersburg area from - • ' • r a The store wM also be ry • + • oto of Standards) d other world class employment facilities in the area. M, NIST (Bureau• • , - • . - ° • e • 16. Market 'Trade Area . ' • . • • a ♦ 4141 + • • ur Fine i�'vaes is u to 10 to IS.nuDes from the• site. 'T'his beer an _ • o The trade area for Gaithersburg .' •• -' because it wdI serve a unique and separate 'niche in , 'anal trade area . wine fay 'ty v serve s'regl g b . + e " . • 4141 anti• �64 serviced.in the market arrea.+ ythe market for specialty wines and -beers not carrV. . • . Ld ; • . . • • . i • • 4141 " 4141 •' 'i • ♦ '• 4141•• ` • .• , , • , .. • • S; •, s o • •g e• ® • e + • 4141 • .. • , , • • • ° e 4141 •r • ° , • •° • • ' ° • d ✓ ♦ • d+ :... • ... al she center. • • r Lake Foisest• Mall is a regioi shopping . dii&�b'urg ois senol shopper • . •a•+center of regi , a• . .� . Onal, draw. Th a • . ln*addition, ' e Club and Minnesota Fabrics and other stores also have• a regi Priv .the -shoppers that come'to : • - • ' ro okA Gaithers6ur iFini'Vinelso store vM be very cor venient� to •A • °° ° • . • , • 1+ 4141 - •� • • • • pmg • flus •Gat'thersburg regional center of shop . si • oil 4141 • .• • •r • ° r • ,• 4141 a :® s 4141 • • . , • • • • • • . • 4141 • m . • ♦ • • •' D • • • • m °Y • • - • , • 4141 , , • •° • , •-, ° ° • • • to , 4141 a •r .• i • • M • �•. ° • •, • • 4*G •• e, �� a •rowth in •the Trade'Area . . • , - •„z • y`` , 4141 .� , °�. •. �. t • • 4141 �e � cs • • • 4141 r• ♦ -- • 'd b a • K •M 4141 • ♦ • , , • 4141 •-• •` • • 4141 D r .• 4141 • ° hi ti•{ 4141 • a • -• • • • • • • ! » m • s . o, r • ♦ • ♦ • • 4141 • to •t . • • `♦ 4141 • _ •. .+i• • m i ds� • • 4141 ,e .• , ••• •• • • e e: • •� o 4141 • •� • 4141 r f• .i 4141' _4141 • •, ' *° ® • ♦ 41.41 4141 . • j • •, 4141 • , fii&*aea .•.. elate ./f the cM nt -and is proj�,c�• • . ce y _ ed to ow at 1500► • o :,The has grown at .twi M .....s• .. •.. .. - • _'�.•.� io r. . • • 4141 ~•. • • • • s- • • Ns.r 4141 4141 • • • ,•• • i 4141 f + •, • •. i .I ,• • • *egad for wne , • -, , .. ,:..• ,.._,.. _ M rebnc�resrn the total consumer ,(j .dl..•r • 4141 r -the county �n the Hari• years, the : Y•.. g , . ...� :.�.....:.. • • r • ° . , �: •- ....,� .. •. • . ° ujation at- faster rate •than the county as a �rh6le:fac tree to serve. thus growing. pop • •«. • • • s•• • • • • • • ,s • . • 4141 • s • +• • •' • • •i . • to • • ti • • • •-..I�•. ,�• • ' 4141 • • • 4141 • • •� • ' , 0 . . •i • • ° • • , 4141 • • • • + • ° • • 4141 • • . • •' • s • • • 4141 • ` + • , ` • • -4b Us • - • • y d 4141• m • i • • • • • r • • • a • so t • 4141 • ° � t • • 4141 . • • • ° • • • • D • , ` • • ,� • , • , • • 4141 • . a � • ♦ • . • Y + ,i • 4141 • � . • • • r • ea° • e •, • •' As. • • . • r + •F• • • . • • si 4141 ° s : • • • • ■ •� • ♦ + • o ° •, a • • • M • • •• • '• e • ♦ o •e, 4141 .. • • +• • , 4141 « ' • °e 0 4141 • S ' o n • a A • • a • Da t 0 F” P" 7.0 0 0 L;; P" LZZ • ♦ o+ n 1 • ° y • • ♦ �♦ O ••• o t•g s �• . ® •Ir • • • ' a tl° , • dm •o. •� e$ •♦. • ♦.a D" • • • ♦ • e . . • ••i • •G • . m• • , • op " s:7a a o °e 0 y9pO a GY` °:°o • t4i• ° ••! •♦ cFq '.. s MENEM i • ♦. • °t • • • cad{ t 4 °u -, • • . • •°R a a ° • , - � • . $ a oi' • .P . °. $, o y°p •y • . • r •♦'° •4.0 ,� •' 0 ♦ R • s O °` .•' • •• # ° o • •' O • a ti m f Y- 0 .a t ° . ! ' v ..•'° •ve.� • • • . ♦ -O • H • • • .•.� .o c • d da n o v •1 •r®a ° ov ° . • • w a, s e '•• -Anal is of current stores and'Ievei ofsemee �' ° . °•a.Q z a �g°:. ®. +. • • 4 0 f 0 ♦ • • s ' • . a Based on our review of the 'county, them are 241 facilities that, provide ` off sale" and "on- . . ofd'.' sale beer and wine coup 'de including county, dispensaries.: Our,anal�sxs indicates • • that there. are 3,407. people per store coon"de• �Iowever, the, trade area has 4,995 people • °o♦ • V • per•'store: 'This represents a 47!/o higher "popdf anion Load'_' per store in the trade' area than ' • ♦ • y ' % 9 • . counta %Vy v�ride• This is a clear reflection that the tra&arm is underserved with beer and wine stores • • ° . .. • • o-• • . N z. . � e a . • fin • a' Anotheir wa ' of anal ° g this d s that bounty wide; there are 2.94 licenses 'per, 10,000 ° • ' • Population: •However, within the market ar". there. are ©nl�i 2:00.licenses .per 10.060. ThiEs •• means the market area has onl • a ro ' ately68.11 % of the level of service gxperienced • • coun"de• This unbalance m s ° d level wf incr�rase by 20111 so that the trade areamill • • p the conn •de level ciservice. =To correct flus level.of undersem, ce • . decimne to 66.02 /o of • . , . . there is a.need to accconnnoI the public ;�Iffi additional beer and wine'stores in•this trade . • oo area, _ o Both bf these measures c1barly indicate that the tiade area is• under. served•and,that there is not aiufficient supply of licenses within the trade area to accommodate the public :in a ' ..: • ' M _ convenient manner: There is clean a net residual demand for additional beer and •wine off y . sale retail storesin the trade area, This imbalance M* the level of service to the trade- area is • = going to get worse over the next 5•yew. This demand is larger than could be - • accommodated solely by Gaithersburg Fine wines. • ..: S. • e effect of flus imbalance is that it resi�Its in. inconvenience to county residents havarng to ;'• . ° , o Th • •• a .• • ► s load u county4igh*ysto shop elsewhei a to obtain the services they require:' It also • ' p• • t 'prevents normal market forces to work to keep prices in Bine with norm market rates. O p so Market Se entation — The, need for wider selec#on in the trade area • a: • - • to ° • e • A. Selection and Ghaiice • • • • • • • • • • • • • ° . . ° . - a pa : ier the past 5 years, there liasas. a substantial growth in•the:humber of types, of mes a • 6 • • • • •av�iiilabYe:. I'naforniaal+on 'the number o f wineries has almost•4ou�led.in the past 10 ' •. a .0 'Do 11 • ` Most of these ..wines froi�a the•'e�g -and•neW �c�rruia.wmenes are not •gen�y - .::, - carried at local stores in the area. in,►ited b40 eers are. n:rell repres+�nl�ed �n the trade area. •. •. ; . s . • �• • • • • ♦ • •• ♦ � r• • • • • • • � • �•iY•I/h �YY•�ot �I�w • a ♦ s Sar lady; there lies b+�en a boom. nucrobreweries i��enca, • are..: a � • • ' •represented In•IOCal stores.. • • • • ° f ° ' • 'o .. o• ' t ° • • • ° ° • o •da' o • • O. � p • D o4 ; • •i1 M • • a ' • Accerdin •"the public7 inns trade area is not presently being served by a store, with the z a 4° • a -wide selectioh of wines land beers Aow genitally available: Based on our analysis of the a : . •s Opulation,It is our rofessiorial a inion that the consumer base.in the trade area.req� • • • • • • • • • ♦. more selection than is now available. •' "he proposed stare is designed t acconunodat� this • - ° •• ♦ . • .. ., . .. • . . , . • . . • i . • ~••. • . . to = euiient void in the market area. ' . ' • ' . ' - • • . LS O . i m a ♦ a . ° a ♦ •M ♦ • O 4 .37 1 Income aid le ietdrs - ° ° • ° ° ° - . • ` , a • r p 1 ® , • °p ,• i r. .• "m r °`r•° r v o i o , m r .o a .• ° ° ° ° • • Q •• ; ° _ , a - ! Q ♦. � acte " a' `lotion• with a � Sh.0 come,- h educational The trade rea ° p p . . • ' ° °' ' ' ` • ensu r ro e. i rtant as the a n� and n pjoessional +c JP • 1 ° • ' ` •~.to is 0 a to needed.to serge this segment of the market. Such a store number of • '°+ ® e onal service +♦veli as a selection that is suitable for personas must offer a high degree of p rs r' and jprofessiobal entertaining. % m • e • ° r ' a• . ° 6 es eci suitable for professionals ana women who wou� - s Gaithersburg• Fine♦"nies be • p � Y. , • •, p . t ° � - j, @ . . 4 ° ed staff to assist them. I 4g • refer a' dern,=spacious facility•w. 0 a highly tram g , ' ° ' riat� selections ♦ wide selection •t Support their business and professi®nal +� al, op • _ , 4 .` � ° °• +'♦ . spa• ° • • c * nt needS• • Pa • o °• ' ° •• •' ° •P am • _ ° • . • ° • ` t C+ ♦ w • ,o ane' innportant measure of acco o dation of the ublic is serving one Qf the dominant market e trade area. If the dominant market segment {thee highly educated, the high ° . segments. the , ess and professional community} must trkvel outside the county to be adequate y incoime busm • p . r a , rrnp t _ then.'it is not reasonably accommodated within the trade area or county. • o . it ♦ o • C. Sh6pping Patterns rebated to Chhoicemand public need - e Approval of this license will provide the much wider selection required by the trade area ® pp pr currently de residd ceczively increase sales In Montgomery County that are y ma ' o of e or of the proposed store will be to recapture these lost sales, the sales � Since the m ��.� • p � p • . volume of Q t�M sales will not substantially affect local, 11eensed off sale stares • the majority of E` u-rc es are not presently being made with the county or because h ) y . , trad6 area • , . ' ° ° r� • • a • . . fished firo*m•thee�cisting stores In trhe trade area. Metive%, the This market niche is d�stmgui• wih rousts a ix stm* stores fill a "convenience store" type! function whu'le the propose store p `� - g •a • • .. • ' the lamer selection and larger scala purchases super market' type function by providing for � . for t more regional trade area. a e ♦ t ®°• ��{� jJ(l�(I'f a�I�,p ir��(f�aR [��,{f�� • d 0 s • M • e • a ° :- py . mG �`_..1LSLS `.a{� oya 2S�lc CJ o�._.;% 0 • p �� od J• • • • '• ° °t ' • ° ° ° • ® J ° v • B• ° A • m ® � roe s i ° @a0 ®� Si o • e w ,• • • s . •® ° ° o ��• &Cflco; ..-•t rves'lhc same market segment or portionf Our al indicates a tri 'cility presen iy ° 'cant at this faci�,ty in the the public need in i�t�� UDt that -be served by the app i . • ' i .� n+'�► • . r . •.� G�ither''sbur Fine u1es would be serving a different market • grade area. �ns..qu�.n�..1 a ?l eau ° � .t • served existin • to iri Gaithersburg, the proposed facility e rnent than is currently being s r• . Y g 4 -vuM haveIttle significant effect on existing licensees® - • 6 - • i s s r ,.,..• , ° • • ° a ip + to to V to • • .. a •. 4 4 a a , e a , o ♦ • ® s. • s... j(�''y �p me too. `♦•,}•! . �///,,��/•/yam �{//y(s►�� r • • °' •♦ at , • . ••^• • . • • • •- * bur ' S • !4•e • ` i Y� * h !M! ]+r • Asfi 6�fu t s • , .s • .o .y.•.�A •ii�arket♦fdr Gaithersburg • e volume V . ° •'•.Oa ••• •° ♦ ,• ' he Aruna y • ° . • • • . 'i ; ° Q • • • • ° • '♦ •• ° •••° °a ® • a•a , b • ♦ • n 'e as • • • + •• • iii 9 • ' • •• • . ' n n • e area from then - M • � ° customer within a 10 to 15 m� a • • •. r e ®r •m • e9 •. 0 • • • ca ° o ti g• ♦ . e • • . • . ° . ° e oin a larger Trade area than the nearby local stores �n. shoppers to the.sit fr° • . o This store w�l. i3rraw•. Gaithersburg. _ ~' ' • . • • • • * • • s •• • • • • • r •• ' • . • • • • kotin effort' of the -proposed store win be to recapture lost sales to tout, of county . Since the mar g•• •• • a . d sales W1A • with these recapture not the sales volurne.asso�ciated . . :• .and:stat+e purcha;`ses;• _ • ° a Of ihi� • because the majorityuses are .. s•substaaatia�llaffebt local, licensed offsale stogy - - •° So.. t resentl • beim made w� the. county or. t�rade.4area. ' ' • • ... °• - . • no .. ♦ • • . •I° • :• ~ • •• • .. • • , ' LAO Qd , v •dr , • f •a • ,• ° ° s • • fir • • �• •'• a ° • `, ,• • . ♦ • • • i ° the local ♦ ' • servIng diwO rcd in a . The miA6t se • ent .for Gaithersburg Find. cies is orieS. nted to . • . • - • '°• ° • not currentl atronizing the local stores due to•farnited selection of . area of .th store , that are ..° ♦ .. beers and wines ° • •' • ' •acid wine store sales �will-not be substantially affected becauseLocal, nearby beerthey, wnl . .. '' • • - v'de convenient erson sece°to Choir customers who gill continue to • continue to pro P ° • • wire siore'locations and services near their r • n ♦ - - req .r . • ° ° • E. Accommodation of the Public measure of accommodation of the public is serving one of the dominant market r a One important me its in the trade area. If the dominant market segment, the high education attainment, . segments ' c me •and business and Professional communitji must travel outside the county to be high m o ° • F . • atdl acco�dated, this does not reasonably accorn�nodate the public. uff dent demand to acco� unddate an •additional store in this trade . o Secc ndly, ;since there is s .. . , : ' • •• • • - which no xe 0 Its .�611�benefit because. there w be increased cornpeti4on loch maUy . CIO -.6' area, the wit be • • ° . • `c' • •selection and quality of se�•vice for the xe idents of the trade area. • in better pn• nig, • n . �1 °. • , r • N . ° ° . •. • • e • ♦ • • ♦ • 1C j��jI,�� • •• • • • • • • • t • • a• • • • • • •' • • • V'/1/.ats�� • •.• Based Qn thew ind�in • ;itis arir.pr?fe,�sional ap�n ou that these p . . •• • • '• • • • o• •• • • f' Sale, deer, •�011<lhtrade area with an A , y • • •accanunodate the this , necessiti. to- • • .• • ; ket*ty. . ..' • ' a license and .that the subs ect appto licatYon wou41 xd snY.+°�IghtWin.,,.,, .• e public. ; ° • .. . • r , a ..;, ... °'� •' ° � acoo�nciadat� •t�ii e _ ;_. •. ,. • - -� the' %ai err bur 'l ne 'min stork would aceonvaa►odate this ° • Approval of the ucense for • : .. • . • d urines to .. ent of Ihe trndearea a�n� rovidefor the extensive,cho�ce of beers an market segm�' - • • ° •nate their xieed to shop outside the County 'a. .- . coupty and trade kr' ea residents that wodld elite , .fto to saw •#,heir +consumer needs•for�beer. and wines, .• awe 4o 0 - •°• ° •. ° � • • } • . • • • • E-.2 I i IV. Ela*sting Beer and Wine Store Survey A. Survey Methodology The methodology utilized in surveying beer & wine stores within the identified trade involved obtaining a current list of all licensed facilities offering beer & wine within Montgomery County, Maryland This list, along with the Rules & Regulations and License Categories, were provided to us by the staff of the Montgomery County Board of License Commissioners. Once the facilities within the trade area were identified, they were plotted on a trade area reap Each of the facilities were inspected to determine facility quality, condition, size, quantity and quality of merchandise. The information was recorded on a data sheet, and a photograph of each facility was taken. when possible, sales associates at the facilities werC gtiestioned regarding store traffic, customer service and satisfaction. (See Appendix 2, Gaithersburg Trade Area). r' f M Although the application is for an ABw license, we found in our review of the trade area other license category stores that serve beer and wine off -sale. These included stores such as Steve's Beer, wine and Deli (DBW) Kentl nds Gourmet BBW and Across the Street Too (DBW). We included this type license in the survey because, as their secondary function, they sell beer and wine products similar to the other beer and wine stores; also, the space devoted to beer and wine sales is equal to or larger than the typical beer and wine store in the trade area. For example, Steve's Beer, wine and Deli lists Beer and dine before the Deli function and has 1,200 square feet dedicated to beer and wine merchandise display. This space is in the range of 70% of the stores in the trade area. Similarly, Rentlands Gourmet has food service but has 2,000 square feet of beer and wine merchandise display space. This survey also included the 6 County dispensary stores because they also sell beer and wine. Similarly, to have excluded these stores would have been to understate the availability of beer and wine stores available to the people in the trade area. B. Facility/Merchandising. Area (Size) ' }ur survey identified 43 beer and wine stare facilities within the trade area that provide beer and wine products. These included all private and Montgomery County facilities. The merchandise area for these facilities range from the very limited 60 square feet of space with four coolers (7-11 store across N. Frederick Avenue) to the largest store with 3,000 square feet (Kwiek Stop at] 5104 Frederick Rodd). 'Our survey found that most of the stores are small. Of the 37 private stores, 26 stores or 70% are less than 1,500 square feet. Another 10 stores or 27% range from 1,500 to 2,500 square feet and the largest' store is 3,000 square feet. F) F 9 13 Q cc The majon'ty of the f'aciliti'es of reg shmilar merchandise and services. Over 95% of the facilities offer some type of Maryland Lottery servicia, Some of these facilities offer limited groceries, deli, and other convenience store services. However, it is not uncommon for a number of these facilities to sell single -service beers. Many of these facilities are utilized more for their convenient locnfliza-4 for an, and "convenience store" offerings, since they do not have the floor area to carry a large selection of beer and wine products. The majority of the product lines these stores offer are typically of the '`more affordable" category. Many of these facilities cannot offer a wide selection of the higher quality beer and wine selection available in nearby at available space. "supermarket" type stores such as Total Beverage M* Virginia, due to limited ava D. Location Montgomery County is characterized by "well defined master planning throughout the county. There is the county wide General Plan and there are local master plans for each of the areas, including this area of Gaithersburg. As a result of County planning*policies, commercial areas are "clustered" in order to concentrate services to neighborhoods and communities (several neighborhoods) into one identifiable commercial core serving that area. Accordingly, the only land zoned for beer and wine stores are in those limited, commercially zoned clusters in the county. In order to serve the community, it is not uncommon for beer and wine stores to be clustered in these limited commercial clusters in the county. This is the case in the Gaithersburg area. Within the vicinity of the site, there are 9 other beer and* wine stores. I D & D Beer and Wine — This is the 7 — 11 store across the street from proposed Gaithersburg Fine Wines. This is primarily a local convenience store with several small coolers, primarily with beer six-packs and singles for the convenience of its customers. This is the smallest merchandise area of all of the stores with 60 square feet of merchandise area. 2. 7 -Express 3. Villa Beer and Wine — Located in Gaithersburg Square Shopping Center 4. On the Avenue 5. Athletic Express — Has a DBW license for on-off sale and has dedicated carry out and coolers for off sale purchases as a convenience to its patrons. 6. Center Market in Olde Towne Gaithersburg 7. Lakeside Beer Cheese and Subs, - - 8. Dock of the Bay ot 9. County Dispensary (12 East Diamond Avenue) All of the private stores are less than 1,500 square feet except for Villa Beer and Wine which 'is 2,5®o square feet. E. Overall Survey Conclusion I E� i 0 E. Overall Survey Conclusion The size and extensive array of beer and wine products at the proposed Gaithersburg Fine Wines store may bring about some apprehension among the existing store operators. However, a closer review of the existing stores and, aha- proposed store will show there is a *strong distinction between the two. The trade area facilities are well recognized within their neighboohoods, and have P'loyafisl" relationship with many of their customers. They provide a "quick and easy" se F-, to the ir=ediate trade area. While their selection is not extensive, it generally is geared w e Ooidlnbfle product lines and most of the stores provide for the "singles" product sale. Most of the local stores also offer lottery sales, some offer deli and convenience groceries, magazines and sundfles. In effect, most operate as a conveniende category of store. The proposed store will not offer lottery, 'Check cashing and convenience foods and magazines. It will offer more extensive wine steward services and selection, such as high quality wines, and a vast variety of international and local brews. The proposed store will, provide a "supermarket" type function and, while serving local residents in the immediate area, will also attract consumers currently shopping outside the county for their beer and wine needs. Just as the supermarket food stores coexist alongside convenience food stores, the larger beer and wine store will coexist within the trade area with the smaller beer and wine stores. Convenience food stores all have higher prices than the supermarket and the public supports this because of convenience factor. Similarly with beer and wine stores in Montgomery County, the smaller stores will continue to provide local, convenient services, within their respective market niches, such as with the provision of lottery service, deli, and groceries along with the beer and wine sales. Shoppers will continue to patronize their local beer and wine store for convenient access to beer and wine products even if the prices of the smaller stores are somewhat higher than the larger store. The simple fact is that Gaithersburg line Wines will serve a hinction and provide a service to the community, which is not currently provided within the county and this trade area. "4