Allview Inn, Inc. v. Howard County

Equity No. 7879 (Md. Cir. Ct. January 21, 1972)

A county ordinance which forbids the sale of soft drinks, beer and malt liquors in nonreturnable containers is a proper exercise of the country's delegated power to control the disposal of wastes and is not forbidden by a state statute which reserves to the state the power to regulate the manufacture and sale of alcoholic beverages. A state statute authorizing the State Comptroller to regulate the amount of deposit imposed on returnable containers by manufacturers and wholesalers does not preempt regulation of nonreturnable containers by county governments.

Counsel for Plaintiffs
Richard J. Wilkinson
3716 Court Place
Ellicott City, Maryland 21043

Counsel for Defendants
Gilbert Rosenthal Asst. Attorney General
Baltimore, Maryland

Thomas E. Lloyd
3716 Court Place
Ellicott City, Maryland 21043

JamesN. Vaughan
8370 Court Avenue
Ellicott City, Maryland 21043

[2 ELR 20223]

Macgill, J.

Memorandum and Order

Allview Inn, Inc. and Lawrence W. Molloy have filed a bill of complaint for a declaratory judgment and for injunctive relief against Howard County and other defendants and in their bill they allege that Mr. Molloy is the holder of a liquor license for the place of business known as Allview Inn which sells beer and malt liquors, as well as soft drinks in non-returnable containers. The bill of complaint attacks Council Bill No. 7, Legislative Day No. 3 of the 1971 Legislative Session of the County Council. This bill prohibits the sale of what are commonly called "throw-away" bottles or containers for soft drinks, beer and malt liquors.

At this stage of the proceedings the plaintiffs have moved for a partial summary judgment in their favor on the issue of the validity of that portion of the Council Bill which purports to regulate the sale of beer and malt liquors in the County. As the basis for the motion it is contended that the County lacks the power to legislate in the area in question and that the alcoholic beverage field has been preempted by the State.

As to the first contention, the plaintiffs call attention to the language of Section 5 (S) of Article 25A, "Chartered Counties", of the Annotated Code. This subsection reads:

"The foregoing or other enumeration of powers in this article shall not be held to limit the power of the county council, in addition thereto, to pass all ordinances, resolutions or bylaws, not inconsistent with the provisions of this article or the laws of the State, as may be proper in executing and enforcing any of the powers enumerated in this section or elsewhere in this article, as well as such ordinances as may be deemed expedient in maintaining the peace, good government, health and welfare of the county.

Provided, that the powers herein granted shall only be exercised to the extent that the same are not provided for by public general law; provided, however, that no power to legislate shall be given with reference to licensing, regulating, prohibiting or submitting to local option, the manufacture or sale of malt or spiritous liquors."

[2 ELR 20224]

As to the second contention, the plaintiffs cite certain provisions of Article 2B, "Alcoholic Beverages", of the Code, specifically Section 1 and Sections 185 and 186. The last two sections read, in part, as follows:

"The comptroller . . . is authorized to adopt rules and regulations in regard to labeling and advertising similar to those adopted by the Federal Alcohol Administration; nature, form and capacity of all containers . . . ."

"The Comptroller is hereby authorized and empowered to make, amend, alter and publish rules and regulations regarding the amount of deposit on returnable beer containers which shall be charged and collected by manufacturers and wholesalers of beer."

The County relies on the provisions of Section 5 (T) of Article 25A which gives the County power:

"To enact local laws enabling the county council to adopt from time to time, after reasonable notice and opportunity for public hearing and with or without modifications, ordinances and amendments thereof for the protection and promotion of public safety, health, morals, comfort and welfare, relating to any of the following: The location, construction, repair, and use of streets and highways; the disposal of wastes; the control of problems of soil erosion and of the preservation of the natural topography in newly developed and other areas; and the erection, construction, repair and use of buildings and other structures; and to enact local laws providing appropriate administrative and judicial proceedings, remedies, and sanctions for the administration and enforcement of such ordinances and amendments." (italics supplied)

"Waste" and "Refuse" are used synonymously. "Words and Phrases", "Waste". Refuse has been defined as "worthless matter, rubbish, scum, leavings" and, as stated in Stern Holding Co. v. O'Connor, 119 N.J.L. 291, 196 A. 432, "One can set his imagination to work and think of a score of elements that would come within the meaning of the word, such as leaves, drift wood, fallen branches, litter thrown in the streets, etc." There is authority, however, that the plural of the word, or "wastes" means excrement or ordure. Webster's Third New International Dictionary, and it may well be that that meaning was intended in the section of the statute quoted, although the heading of the section refers to "waste disposal".

Regardless of which meaning is applied to the word, it seems clear that the County Council, in the exercise of its police power under Section 5 (S) of Article 25A, could properly pass the regulatory legislation in question unless such legislation fell within the areas in that section in which local legislation was prohibited, or unless the provisions of Article 2B had preempted that area of regulation. The language of the first paragraph in Section 5 (S) is almost identical with the language of Section 31 of the Baltimore City Charter, as quoted in Rossberg v. State, 111 Md. 394, 411, although the phrase "either express or implied" is omitted from the section in Article 25A.

"Under specific power, under police power, or under power respecting nuisances, municipal corporations ordinarily may regulate the removal, collection, and deposit or disposal of rubbish, trash, filth, house dirt, ashes or similar substances. 'Rubbish' has been defined as waste material and refuse of every character collected or accumulated within the city, except garbage." McQuillan: Municipal Corporations, Section 24.249, citing, among other authorities, Petrushanky v. State, 182 Md. 164, 32 A.2d 696, and Baltimore v. Hampton Court Co., 138 Md. 271, 113 A. 850, 15 ALR 304.

This Court in determining the questions before it, is guided by the principles that "If two legislative acts can reasonably be construed so as to give effect to both, such a construction is to be preferred." Montgomery County v. Bigelow, 196 Md. 412, 423, and "In construing Acts of Assembly not necessarily incompatible, and where the legislative intention is not expressed to substitute one for the other, an apparent repugnancy between them may often be reconciled by considering the reasons for their enactment. The real intent of a statute, when ascertained, will always prevail over the literal sense of the terms. If the words do not exclude doubt, the intention is to be collected from the occasion and necessity of the law." Browning v. Loraw, 58 Md. 524.

The reasons for the enactment of Council Bill No. 7 is, clearly, not to prohibit or regulate the sale of malt or spiritous liquors. The reason and intent of the bill is to regulate the disposal of waste material or refuse.The bill is not exclusively directed to regulating the disposal of beer and malt liquor "throw-away" containers but embraces soft drink containers as well. Presumably, if "throwaway" containers for other substances had presented a serious rubbish problem, they, likewise, would have been included in the bill. It would be anomalous indeed, to say that while the County has authority to regulate the disposal of waste material, trash and rubbish, the perhaps major component of such, or the chief offender, is exempt because it is covered by paramount legislation regulating it in other aspects.

It is well settled that a state's control over the manufacture, dispensing or sale of alcoholic beverages does not preclude the counties or municipalities, when authorized to do so, from regulating the locations of retail liquor outlets under zoning ordinances or from requiring that such outlets comply with health and sanitary regulations. McQuillan, Municipal Corporations, Section 24.173.

A question somewhat similar to the one here was raised in Montgomery County v. Bigelow, supra, where it was contended that a local law of Montgomery County imposing license fees on the owners or operators of taxicabs was invalid as being in violation of the provisions of Article 66-1/2. The Court held that regulation of, or charges for, conduct of a business which requires the use of motor vehicles on highways did not constitute regulation of, or charges for, the use of motor vehicles on highways within the meaning of Article 66-1/2.

This Court is satisfied that the doctrines of "concurrent power" or "supplemental" or "additional" regulation apply on the facts in this case. See: City of Baltimore v. Sitnick and Firey, 254 Md. 303, and Rossberg v. State, supra. The following statement from the opinion in the case first cited is apropos: "A distillation of the opinions we have cited leaves the residual thought that a political subdivision may not prohibit what the State by general law has permitted, but it may prohibit what the State has not expressly permitted. Stated another way, unless a general public law contains an express denial of the right to act by local authority, the State's prohibition of certain activity in a field does not impliedly guarantee that all other activity shall be free from local regulation and in such a situation the same field may thus be opened to supplemental regulation." (Italics supplied). Howard County, in this instance, is not legislating in the field of regulating the sale of malt or spiritous liquors; it is legislating in the field of the disposal of rubbish, refuse or waste material. Unless that County legislation, under the guise of regulating activity in the field of the disposal of waste material or refuse, indirectly but effectively usurps the power reserved to the State to legislate in the field of alcoholic beverages, it should be upheld. Rossberg v. State, supra, 416, 417. At this stage of the proceedings, this Court cannot say, as a matter of law, that the County legislation will have that effect.

This Court finds that the area of legislation in question has not been preempted by the State by virtue of the provisions of Article 2B referred to. Section 185 empowers the Comptroller to make rules and regulations as to the "nature, form and capacity" of all containers, and Section 186 empowers him to make rules and regulations regarding the amount of deposit on returnable beer containers which shall be charged and collected by manufacturers and wholesalers of beer. The application of the latter section need not be considered since the Council bill does not purport to regulate such deposits. There does not appear to be, facially, a conflict between the local legislation and Section 185. The local legislation does not purport to regulate the "nature, form or capacity" of containers. It forbids the sale of containers upon which a deposit is not charged to encourage the return, rather than the throwing away, of such containers.

Perhaps the case most nearly on point as to the issues raised is Edward R. Bacon Grain Co. v. City of Chicago, 325 Ill. App. 245, 59 N.E.2d 689. There it was contended that a municipal ordinance [2 ELR 20225] regulating grain elevators or warehouses so as to reduce the hazards of fires and explosions was invalid because the subject of such regulations was covered by Federal and State Legislation, The Court, in its opinion, stated, in part, as follows:

"The ordinance is not rendered invalid by provisions of the state constitution relating to warehouses, or by legislation under that provision. Article 13 of the Constitution of 1870, Smith-Hurd Stats. relating to warehouses, contains provision for the protection of producers, shippers and receivers of grain from misconduct in the storage, mixing, grading or weighing of grain, or in respect to receipts issued for grain stored. By sections 6 and 7 the legislature is enjoined to pass all necessary laws to prevent the issue of false and fraudulent warehouse receipts, and for the inspection of grain for the protection of producers, shippers and receivers of grain or produce, and to give full effect to article 13, 'which shall be liberally construed so as to protect producers and shippers.' Legislative action under article 13 has been designed to secure that protection. We find no legislation prescribing regulations for the purpose of preventing or neutralizing dangers from spontaneous combustion, dust explosions, etc., and are referred to no regulation by any administrative officer or body for that purpose. There is no conflict between the ordinance and the constitutional and legislative provisions relating to warehouses. The latter cover the conduct of the business and the dealings of the warehousemen with the producer, shipper and receiver of the grain stored with him. The ordinance is merely a police regulation to protect the grain and warehouse from damage or destruction through fire or explosion. The regulations of the municipality must yield to state legislation when there is a conflict, but the mere fact that the state has legislated upon a particular subject does not necessarily deprive the city of its power to deal with the subject by city ordinance."

It is contended on behalf of the plaintiffs, in a supplemental memorandum, that confusion and economic chaos in the alcoholic beverage field could result from the application of the bill. Of course, this Court is not authorized to weigh the wisdom of the legislation. City of Blatimore v. Sitnick and Firey, supra, 325. It is for the legislative body to balance the conflicting hardships, the hardships imposed on a class, and the hardships sought to be removed from the general public, by the legislation in question.

For the reasons herein stated, it is, this 21st day of January, 1972, by the Circuit Court for Howard County, sitting in Equity, Adjudged and Ordered that the motion of the plaintiffs, Allview Inn, Inc. and Lawrence W. Molloy, for a partial summary judgment in their favor be, and the same is hereby, denied.