Maryland Attorney General Opinion 97 OAG 003

STATUTORY CONSTRUCTION

VEHICLE LAWS – LEGISLATIVE HISTORY – STATUTE BARRING

THE SOLICITATION OF A “RIDE, EMPLOYMENT, OR

BUSINESS” FROM ROADWAY NOT INTENDED TO

ENCOMPASS CHARITABLE SOLICITATION

May 18, 2012

The Honorable Anne R. Kaiser

Maryland Senate

You asked for our opinion on whether the fire fighters’

annual “Fill the Boot” campaign to raise money for the Muscular

Dystrophy Association is prohibited by § 21-507(a) of the

Transportation Article, which prohibits any person from

“stand[ing] in a roadway to solicit a ride, employment, or

business.” Specifically, you have asked whether the General

Assembly intended its use of the word “business” in § 21-507(a) to

include charitable solicitations. After a thorough review of the

legislative history of the provision, both before and after its

enactment in 1970, we now conclude that the Legislature did not

intend the term “business” to include charitable solicitations. In

reaching this conclusion, we depart from the interpretation we

adopted in a previous opinion, see 93 Opinions of the Attorney

General 31, 35-36 (2008), but do so without disturbing its ultimate

determination that the local ordinance at issue in the earlier

opinion was preempted by State law. We also recognize that the

interpretation we reach here raises First Amendment concerns that

a reviewing court might choose to avoid with a broader reading of

the word “business.” However, in our view, interpreting § 21-

507(a) to allow charitable solicitation within the roadway does not

make the law clearly unconstitutional, although additional

legislation may be advisable to ensure that charitable contributions,

which would include panhandling, are solicited in a manner that is

consistent with the public safety goals of the statute.

I

Background

The International Association of Fire Fighters (“IAFF”) is

one of the national sponsors of the Muscular Dystrophy

Association (“MDA”) and has since 1954 supported the MDA

3

4 [97 Op. Att’y

through a variety of volunteer and fund-raising activities. Perhaps

the most recognizable aspect of the IAFF’s activities on behalf of

the MDA is the annual Fill the Boot campaign, in which members

of IAFF locals across the country invite the public at intersections,

malls, and sporting events to fill a fire fighter’s boot with

donations for the MDA. Here in Maryland, local chapters of the

IAFF have carried out the Fill the Boot campaign since at least

1986. In 2011, Fill the Boot campaigns helped fire fighters raise

$27 million—the highest yearly contribution from an MDA

sponsor.

The Fill the Boot campaign involves fire fighters (or the

professional fundraisers they employ) standing on the median strip

at busy intersections and soliciting contributions from motorists

when stopped at red lights. If the car is close enough to the median

strip, the fire fighter can extend the boot and collect the

contribution without ever leaving the median strip. More typically,

however, the fire fighter must step into the roadway to collect the

contribution, particularly when the car is in a lane that is not

immediately adjacent to the median strip. The entire fundraising

process—from soliciting from the median strip to entering the

roadway to collect the contribution—is carried out pursuant to

safety manuals that instruct fundraisers to wear orange vests or

reflective material on their clothing, initiate all collections from the

roadside or the median strip, and never stop traffic or approach a

moving vehicle.

Section 21-507(a) of the Transportation Article

Section 21-507(a) of the Transportation Article sets forth the

restrictions on roadside solicitations that are the subject of this

opinion: “Except for the occupant of a disabled vehicle who seeks

the aid of another vehicle, a person may not stand in a roadway to

solicit a ride, employment, or business from the occupant of any

vehicle.” Md. Code Ann., Transp. (“TR”) § 21-507(a) (2011

Supp.). For purposes of § 21-507(a), the term “roadway” refers to

the portion of a road designed for vehicular travel, while the term

“highway” encompasses a wider area. See TR §§ 11-151.1, 11-

127 (2009 Repl. Vol.).1 Additional subsections in § 21-507

1

Those definitions are as follows: “Highway” means:

(1) The entire width between the boundary lines of any

way or thoroughfare of which any part is used by the

public for vehicular travel, whether or not the way or

(continued . . .)

Gen. 3] 5

regulate solicitations along the highways in particular counties.

TR § 21-507(c)-(k) (2011 Supp.). Violation of § 21-507 is

punishable as a misdemeanor and subject to a fine of not more than

$500.2

This Office first addressed the scope of § 21-507 in a 2004

legislative advice letter, which concluded that the statute clearly

prohibited standing in the roadway for the purpose of selling

things, but that it was a “closer question” whether the solicitation

of donations was similarly banned. See Letter of Assistant

Attorney General Kathryn M. Rowe to Delegate David D. Rudolph

(June 28, 2004) (“2004 advice letter”). The advice letter cited the

public safety purpose of the statute, case law in which courts have

treated the activities of nonprofit organizations under the rubric of

“business,” and the conclusion that, “[f]rom the standpoint of

public safety, there is little or no difference between a person

standing in the roadway to sell things and one standing in the

roadway to solicit money.” Reasoning that the term “business”

could encompass a charitable transaction as well as a commercial

transaction, the advice letter concluded that the reference to

soliciting business should be “read broadly” in this context to

include the solicitation of donations.

thoroughfare has been dedicated to the public and

accepted by any proper authority; and

(2) For purposes of the application of State laws, the entire

width between the boundary lines of any way or

thoroughfare used for purposes of vehicular travel on

any property owned, leased, or controlled by the United

States government and located in the State.

TR § 11-127. “‘Roadway’ means that part of highway that is improved,

designed, or ordinarily used for vehicular travel, other than the

shoulder.” TR § 11-151(a). In relevant part, these definitions are

unchanged since their initial enactment in 1970. Compare with 1970

Md. Laws, ch. 534 at 1313 (§ 1-132), 1319 (§ 1-777).

2

TR § 27-101(a), (b). The 2011 District Court of Maryland

“Schedule of Pre-Set Fines and/or Penalty Deposits,” used by law

enforcement officers as a reference in issuing citations, lists the fine for

violation of § 21-507(a) as $70 with no points. See http://

www.courts.state.md.us/district/forms/criminal/dccr090.pdf (last visited

May 11, 2012).

6 [97 Op. Att’y

Subsequently, in 2008, we were asked to opine on the

constitutionality of Gaithersburg’s anti-solicitation ordinance. The

opinion concluded that the provisions of the ordinance addressing

conduct in the roadway were preempted by State law. In the

course of analyzing that issue, however, the opinion noted with

respect to § 21-507(a) that “[t]his Office has taken the position that

the ban on business solicitation in this statute should be interpreted

broadly to encompass the solicitation of donations, given that its

purpose is to promote public safety.” 93 Opinions of the Attorney

General 31, 35-36 (2008) (citing with approval the 2004 advice

letter). It is that subsidiary conclusion that we now revisit.

II

Analysis

Familiar principles guide the interpretation of statutory

provisions. The Court of Appeals has instructed that “[t]he

cardinal rule of statutory interpretation is to ascertain and

effectuate the real and actual intent of the Legislature.” Gardner v.

State, 420 Md. 1, 8 (2011) (internal quotation marks omitted).

To ascertain the intent of the General

Assembly, we begin with the normal, plain

meaning of the statute. If the language of the

statute is unambiguous and clearly consistent

with the statute’s apparent purpose, our

inquiry as to the legislative intent ends

ordinarily and we apply the statute as written

without resort to other rules of construction.

We neither add nor delete language so as to

reflect an intent not evidenced in the plain and

unambiguous language of the statute, and we

do not construe a statute with forced or subtle

interpretations that limit or extend its

application.

Id. at 8-9. Other principles of statutory construction caution

against “read[ing] statutory language in a vacuum” or confining an

interpretation of a statute’s plain language “to the isolated section

alone.” Id. at 9. Even when the words of a statute “are clear and

unambiguous when viewed in isolation,” resort to legislative

history is warranted if those words “become ambiguous when read

as part of a larger statutory scheme. . . .” Id. At the same time, it

Gen. 3] 7

is important not to “disregard the natural meaning of the statutory

words” or “rewrite statutes to reflect [one’s own] ideas of public

policy.” BAA, PLC v. Acacia Mut. Life Ins. Co., 400 Md. 136, 158

(2007).

A. Ordinary Meaning of “Business”

The plain language of § 21-507(a) limits its reach to roadway

solicitations for “a ride, employment, or business.” The term

“business” is not defined by statute and has a number of meanings,

ranging from “any purposeful activity” (e.g., the business of

learning) to connoting personal rights (e.g., “You had no business

hitting him.”). Webster’s Ninth New Collegiate Dictionary

(Merriam Webster, 1989). The more common meaning of the term

“business,” however, is “commercial or mercantile activity.” Id.

That, too, is the common meaning of the term “business” in legal

parlance. See Black’s Law Dictionary (9th ed. 2009) (listing first

definition of “business” as “[a] commercial enterprise carried on

for profit; a particular occupation or employment habitually

engaged in for livelihood or gain”). Because neither the fire

fighters nor the Muscular Dystrophy Association is a “business” in

the sense of engaging in commercial activity for profit or gain, the

plain language of § 21-507(a) would not appear to reach the fire

fighters’ annual Fill the Boot campaign.

B. Legislative History

Although the term “business” does not ordinarily include

“charitable solicitation,” there is at least some ambiguity as to its

precise meaning. To that extent, it is appropriate to consider the

legislative history of § 21-507 and other interpretive aids to

ascertain legislative intent. For the reasons explained below, we

find that these non-textual indicia of legislative intent also indicate

that the General Assembly did not mean to prohibit charitable

solicitation with its use of the term “business” in § 21-507(a).

The Warnken Committee and the Uniform Vehicle Code

The circumstances surrounding the adoption of § 21-507

indicate that the General Assembly intended to prohibit solicitation

of business, but not to bar all solicitation of contributions. The

predecessor of § 21-507 was enacted following a 1968 report to the

Legislature by the Committee to Study Revision of the Motor

Vehicle Laws, sometimes referred to as the “Warnken Committee”

after its chairman, Judge S. Ralph Warnken. The Committee was

convened to compare existing Maryland law to the laws of other

8 [97 Op. Att’y

states and to the provisions of the Uniform Vehicle Code

(“UVC”)3 and recommend revisions to modernize Maryland’s

vehicle laws. The Committee carried out its deliberations over an

approximately four-year period, culminating in its “Proposed

Revision of the Motor Vehicle Laws of the State of Maryland”

issued on September 1, 1968 (“Warnken Report”). The Legislative

Council considered the Warnken Report in 1969, and the Judiciary

Committee of that body appointed a special committee which

“studied the matter and recommended adoption of the report of the

Warnken [C]ommittee.” Covington v. Gernert, 280 Md. 322, 324-

25 (1977). The General Assembly accepted that recommendation

and adopted the new motor vehicle code in 1970. See generally

1970 Md. Laws, ch. 534.

At the time the Warnken Committee began its deliberations,

existing Maryland law appears to have prohibited only the

placement of “any structure, building or vehicle on any State

highway right-of-way for the purpose of selling or displaying any

produce or merchandise in such a manner which shall constitute a

traffic hazard. . . .” Md. Ann. Code Art. 66½, § 248 (1967 Repl.

Vol.). The Uniform Vehicle Code, by contrast, prohibited an

individual from standing in a roadway to solicit “a ride,

employment, or business from the occupant of any vehicle.”4

3

Unlike most other “uniform” laws, the Uniform Vehicle Code is

not a product of either the National Conference of Commissioners on

Uniform State Laws or the American Law Institute. Rather, it was

developed, and is still updated from time to time, by the National

Committee on Uniform Traffic Laws and Ordinances (“NCUTLO”), a

private, nonprofit organization which is located in Alexandria, Virginia,

and has a website at www.ncutlo.org. The Uniform Vehicle Code has

been adopted in full or in part by most states.

4

The complete text of § 11-507 of the Uniform Vehicle Code in

place at the time provided as follows:

(a) No person shall stand in a roadway to solicit a ride,

employment or business from the occupant of any

vehicle.

(b) No person shall stand on or in proximity to a street or

highway for the purpose of soliciting the watching or

guarding of any vehicle while parked or about to be

parked on a street or highway.

NCUTLO, Uniform Vehicle Code: Rules of the Road at 332 (1967); see

Warnken Report at 147. A provision prohibiting a person from standing

(continued . . .)

Gen. 3] 9

Although members of the Warnken Committee “considered and

discussed at great length the respective merits of [existing]

Maryland [law] versus UVC provisions,” Warnken Report at iv,

the new motor vehicle code that the Warnken Committee proposed

followed “very closely” the Uniform Vehicle Code. Id. at iii; State

v. Moon, 291 Md. 463, 486 (1981). With respect to roadside

solicitation, the language the Committee proposed, and the General

Assembly adopted, was substantively identical to the UVC

provision and is identical to the current version of § 21-507(a).

See 1970 Md. Laws, ch. 534 at 1475-76 (§ 11-507).

Even as the Warnken Committee was carrying out its review,

however, the anti-solicitation provisions of the Uniform Vehicle

Code were themselves under revision. The result of that revision

was to split the roadside solicitation provisions of what was § 11-

507 into two subsections. See NCUTLO, Uniform Vehicle Code:

Rules of the Road at 120 (1970 Supp.). The first subsection

prohibited the solicitation of a ride by a person standing in the

roadway—i.e., the traveled portion of the highway. Id. The

second subsection was broadened to apply to the entire highway

and barred solicitation of “employment, business, or contributions”

from drivers. Id. (emphasis added). The second subsection of the

uniform code thus applied to a broader geographical area, and

added the word “contributions” to the terms “employment” and

“business” that had appeared in the model law for 16 years.5

in a roadway to solicit a ride had been included within the Uniform

Vehicle Code since 1930, with the words “employment” and “business”

added in 1952. NCUTLO, Uniform Vehicle Code: Rules of the Road at

333.

5

The complete text of § 11-507 of the revised version of the

Uniform Vehicle Code that was adopted in 1968 provided as follows:

(a)No person shall stand in a roadway for the purpose of

soliciting a ride.

(b) No person shall stand on a highway for the purpose of

soliciting employment, business, or contributions from

the occupant of any vehicle.

(c) No person shall stand on or in proximity to a street or

highway for the purpose of soliciting the watching or

guarding of any vehicle while parked or about to be

parked on a street or highway.

NCUTLO, Traffic Laws Annotated 182 (1979).

10 [97 Op. Att’y

Although no legislative bill files are available for sessions

prior to 1975, the Warnken Committee’s reports indicate that it

was aware that the Uniform Vehicle Code was “undergoing

substantial modification” as the Committee was preparing its

report and recommendation to the General Assembly. Remarks of

S. Ralph Warnken before the Legis. Council (Nov. 16, 1967)

reproduced in Rep. to the Gen. Assembly of 1968, vol. 1, at 342.

While the Committee reports do not specifically mention the

changes to the roadside solicitation provisions of the uniform code,

they do indicate that Committee members “had to evaluate the as

yet tentative proposals for amendment of that Code.” Id. In the

end, however, neither the committee, in making its

recommendations, nor the General Assembly, in enacting

legislation based on those recommendations, included the term

“contributions” in the roadside solicitation provision that, after

1968, appeared in the Uniform Vehicle Code.

In our view, this history suggests that the legislative decision

to adopt the phrase “ride, employment, or business” from the pre-

1968 Uniform Vehicle Code, and not the phrase “employment,

business, or contributions” that appeared after 1968, was

deliberate. Its various reports demonstrate that the Warnken

Committee was aware of the proposed modifications to the

Uniform Vehicle Code, evaluated those modifications for adoption

in Maryland, and chose not to recommend them to the Legislature.

Legislative Action Prior to the Attorney General’s 2004

and 2008 Interpretation

Legislative action and inaction since the enactment of § 21-

507 further supports the conclusion that the General Assembly did

not understand charitable solicitation to be prohibited by the term

“business” in § 21-507(a). It is significant, for example, that the

anti-solicitation provision has not been amended subsequently to

conform to the 1968 changes in the Uniform Vehicle Code. In this

respect, Maryland is different from the many states that, based on

our limited review, have adopted anti-solicitation provisions that

are identical or functionally similar to the anti-solicitation

provision in the post-1968 version of the Uniform Vehicle Code.

See, e.g., Op. S.C. Att’y Gen., 1979 S.C. AG LEXIS 155 (Oct. 8,

1979) (discussing state law prohibition on “soliciting employment,

business, or contributions” from the highway). Indeed, NCUTLO,

in its 1979 Traffic Laws Annotated, identified Maryland as one of

only 12 states that, “[l]ike the [Uniform] Code prior to 1968,”

prohibit the solicitation of “employment or business,” but not

Gen. 3] 11

charitable contributions. NCUTLO, Traffic Laws Annotated at 183

(1979).

The first time the Legislature revisited the issue of roadside

solicitation came in 2001, when it amended §§ 21-507 and 21-313

to authorize the Charles County Commissioners to prohibit a

person from soliciting “money, donations of any kind,

employment, business, or a ride from the occupant of any vehicle.”

2001 Md. Laws, ch. 585. Three aspects of this legislation are

noteworthy. First, an amendment to § 21-507(a) to prohibit the

solicitation of “donations of any kind” would have been largely

surplusage if § 21-507(a) had already prohibited the solicitation of

donations by its use of the term “business.” Second, the legislative

history indicates that the General Assembly was aware of the

discrepancy between the proposed county-specific provisions and

§ 21-507(a). The Fiscal Note for the 2001 bill states that State law

at that time did “not specifically prohibit soliciting donations or

money from a controlled access highway or from a median divider

or intersection.” Revised Fiscal Note for S.B. 225, at 2 (2001).

Finally, the evolution of the bill’s language as it moved

through the legislative process suggests strongly that the

Legislature considered, but decided against, expanding the

prohibition of § 21-507(a) to encompass charitable solicitation.

When that bill was first introduced, the language proposed to

amend § 21-507(a) in the following way:

Except for the occupant of a disabled vehicle

who seeks the aid of another vehicle, a person

may not stand in a roadway, MEDIAN

DIVIDER, OR INTERSECTION to solicit a

ride, employment, [or] business, MONEY,

OR DONATIONS OF ANY KIND from the

occupant of any vehicle.

S.B. 225, 2001 Gen. Assembly (first reader) (proposed

amendments capitalized). In other words, the bill initially sought

to broaden the statewide prohibition to include donations and

extend the prohibited conduct beyond the roadway. As the bill

moved through the legislative process, it was amended to make the

broadened prohibition applicable only in Charles County and left

§ 21-507(a) unchanged. The General Assembly, thus, was aware

that § 21-507(a) did not specifically prohibit charitable

solicitations, considered amending the provision to include such a

prohibition, but in the end chose not to do so.

12 [97 Op. Att’y

In 2004, the General Assembly returned to § 21-507 to

authorize Anne Arundel County to establish a licensing program

for individuals and qualified charitable organizations—including

fire companies—who wish to “solicit money or donations from the

occupant of a vehicle by standing in a roadway, median divider, or

intersection.” 2004 Md. Laws, ch. 156. The legislative history

surrounding Ch. 156 is consistent with that surrounding the 2001

legislation and also supports the conclusion that the Legislature did

not believe that the term “business” included charitable

solicitation. Specifically, the Fiscal Note draws a distinction

between the then-current State law, which prohibited solicitation

for “a ride, employment, or business,” and the law applicable

within Charles, Harford, and Washington Counties, which by then

prohibited a person from standing “in a roadway, median divider,

or intersection to solicit money or donations of any kind.”6

Revised Fiscal and Policy Note for H.B. 187, at 3 (2004). More

importantly, the Fiscal Note makes clear that “[n]othing in the bill

should be construed as prohibiting individuals or organizations

from roadway solicitation if the county council does not enact an

ordinance to create a licensing program.” Id. This caveat provides

further evidence that charitable solicitation was not believed to be

prohibited under § 21-507(a) as a matter of State law, for if it were,

such solicitation would have remained prohibited as a matter of

State law whether or not the County enacted a licensing program.

Legislative Action Subsequent to the Attorney

General’s Advice

The history of amendments to § 21-507(a) occurring after this

Office made known its earlier interpretation—both in the 2004

advice letter and in the 2008 opinion—do not compel the

conclusion that the Legislature has adopted or ratified that

interpretation. It is, of course, relevant that the General Assembly

has not statutorily superseded the interpretation of § 21-507(a)

provided by this Office in the 2004 advice letter and echoed in the

2008 opinion. “The Legislature is presumed to be aware of the

6

As discussed above in text, Charles County was the first county in

which this broader prohibition on the roadside solicitation of “donations

of any kind” was prohibited, see 2001 Md. Laws, ch. 585. Harford

County and Washington County were added in 2003. See 2003 Md.

Laws, chs. 219 (Harford), 463 (Washington). Carroll County was

subsequently added in 2005. 2005 Md. Laws, ch. 93.

Gen. 3] 13

Attorney General’s statutory interpretation and, in the absence of

enacting any change to the statutory language, to acquiesce in the

Attorney General’s construction.” Potomac Valley Orthopaedic

Assocs. v. State Board of Physicians, 417 Md. 622, 637 (2011)

(internal quotation marks omitted). Here, however, the Legislature

has amended § 21-507 on a number of occasions after 2004 to

enact county-specific roadside solicitation provisions that

expressly do apply to charitable donations without also amending

subsection (a) to modify the statewide ban in a similar manner.

Since 2004, the Legislature on several occasions has amended

§ 21-507 to enact county-specific provisions—some that extend

the solicitation ban beyond the roadway,7 others that relax the ban

by adopting permit programs that impose conditions on

solicitors8—and in each instance has expressly included

“donations” in the scope of regulated roadway solicitations. Yet

§ 21-507(a) has never been amended to include donations. And in

each of the instances in which a county-specific bill was enacted,

the Department of Legislative Services noted that the bill, if

passed, “may affect some nonprofit organizations (e.g., local fire

departments, advocacy groups, charities) . . . that conduct fund-

raising activities from median dividers.” Fiscal and Policy Note

for H.B. 1429, at 2 (2005); see also Revised Fiscal and Policy Note

for H.B. 392, at 3 (2009). Again, if State law had already

prohibited the roadside solicitation of donations by fire fighters

and other groups under the term “business,” the county-specific

legislation making that prohibition express would have had little or

no effect. The history of legislative action both before and after

2004 simply does not support the proposition that the General

Assembly intended its use of the word “business” in § 21-507(a) to

encompass charitable solicitation.

7

See 2009 Md. Laws, ch. 695 (Howard County); 2008 Md. Laws,

ch. 436 (Prince George’s County); 2007 Md. Laws, ch. 537 (Anne

Arundel County); 2006 Md. Laws, ch. 473 (broadening prohibition in

Montgomery County to ban minors from standing on median divider or

in intersection, as well as in roadway, and authorizing Anne Arundel to

do the same); 2005 Md. Laws, ch. 93 (Carroll County).

8

See 2011 Md. Laws, ch. 586 (Frederick County); 2009 Md. Laws,

ch. 698 (Prince George’s County); 2009 Md. Laws, ch. 669 (Baltimore

County); 2005 Md. Laws, ch. 311 (Cecil County).

14 [97 Op. Att’y

This understanding of the meaning of the term “business”

appears to be consistent with the history of the Fill the Boot

campaign here in Maryland. Without purporting to have made a

detailed investigation or conclusive finding, we are unaware of any

evidence that § 21-507(a) has ever been applied to prohibit fire

fighters from carrying out the Fill the Boot campaign from the

roadway, either before or after the 2008 opinion and the earlier

advice letter. To the contrary, our limited inquiry indicates that the

fire fighters have been conducting the Fill the Boot campaign here

in Maryland at least since 1986 without restriction or citation by

local law enforcement authorities. Indeed, as recently as August

2011, the Montgomery County State’s Attorney’s Office reassured

the Montgomery fire fighters that their Fill the Boot campaign, if

carried out in accord with internal fire department safety

guidelines, “would be in compliance with Section 21-507. . . .”

Letter from John D. Lalos, Assistant State’s Attorney, to Richard

Bowers, Chief, Montgomery County Fire and Rescue Service

(August 17, 2011).

C. Prior Interpretations of the Statutory Language

Neither the 2004 advice letter nor 2008 opinion examined the

legislative history to ascertain the intent behind the enactment of

§ 21-507(a) and its subsequent application. Our prior advice was

instead based primarily on the conclusion “that the term

solicitation of business should be interpreted broadly in this

context to accomplish the purposes of the statute, which are to

promote the public safety.”9 Based on a more complete analysis of

9

The larger statutory scheme relating to motor vehicles, although of

little aid here, does not suggest a legislative intent to include charitable

solicitation within the term “business.” To the contrary, provisions

relating to special registration plates and excise tax exemptions—like the

county-specific solicitation provisions discussed in text—suggest that the

General Assembly knows how to craft legislation that reaches charitable

organizations. See TR §§ 13-619(c) (providing for issuance of special

plates to “member of a nonprofit organization”), 13-810(a)(24)

(exemption vehicles acquired by certain “religious, charitable, or

volunteer organization[s]” from excise tax). And that charitable

organizations are regulated under the Business Regulation Article, as the

2004 advice letter points out, says little about whether charitable

solicitations were intended to qualify as “business” for purposes of

traffic safety or other concerns. Cf., Young v. State, 370 Md. 686, 712

(2002) (Legislature’s placement of sex offender registry in the Criminal

Procedure Article “does not necessarily indicate an intent on the part of

(continued . . .)

Gen. 3] 15

§ 21-507 and its relevant history, we conclude that our 2004 advice

was incorrect; the Legislature did not intend to ban charitable

solicitations from the roadway.10

Consistency with statutory purpose is, of course, an important

element of the interpretive process, but there are other rules of

construction that cut the other way. For example, interpreting the

word “business” to include charitable solicitations may raise

vagueness concerns within the context of individual prosecutions

under § 21-507(a). See Galloway v. State, 365 Md. 599, 614

(2001) (“The void-for-vagueness doctrine as applied to the analysis

of penal statutes requires that the statute be sufficiently explicit to

inform those who are subject to it what conduct on their part will

render them liable to its penalties.”) (internal quotation marks

omitted). More importantly, resort to the Legislature’s presumed

intent is not necessary here, where the extensive historical record

indicates the General Assembly’s actual intent not to include

charitable donations within the scope of § 21-507(a).

Our conclusion here differs from that reached by the

Louisiana Attorney General, the only other state attorney general

who has addressed a state-law provision which, like § 21-507(a),

the General Assembly to punish sex offenders”). The provisions of the

Business Regulation Article are at least equivocal with respect to the

status of charitable organizations as businesses. Compare Md. Code

Ann., Bus. Reg. § 6-101(d)(2) (2010 Repl. Vol.) (addressing the

“principal place of business” of a charitable organization), with id., § 6-

620 (drawing a distinction between the “charitable organization” to be

benefitted by donations collected in a “vending machine, canister, or

other device or container for the deposit of money” and the “business

placing the device or container, if not the charitable organization”).

Neither statute addresses charitable organizations as businesses in a

manner that would overcome the presumption that the Legislature

intended the term to have its commonly accepted meaning.

10

As explained in a 1987 opinion, “[w]e do not overrule a prior

opinion simply because we might have resolved a close question the

other way, were we first presented with it. At the same time, we will not

perpetuate a significant mistake in legal reasoning.” 72 Opinions of the

Attorney General 200, 202 (1987). The 2008 opinion is not overruled; it

remains valid because it “correctly treated the questions actually

presented in [it],” 76 Opinions of the Attorney General 287, 294 (1991),

which was whether a Gaithersburg ordinance prohibiting a person from

making roadway solicitations was preempted by § 21-507.

16 [97 Op. Att’y

was based on the pre-1968 version of the Uniform Vehicle Code.

He was asked whether charitable organizations, volunteer

organizations, or school or other civic groups could legally solicit

funds on public roadways and concluded that “it is clear that the

practice of soliciting funds from vehicles is prohibited in the State

of Louisiana on interstate highways and state roadways.” Op. La.

Att’y Gen. No. 1998-487, 1998 La. AG LEXIS 545 at *4 (Dec. 29,

1998). The opinion does not analyze the specific issue, however,

and does not indicate that the statutory provision in question—La.

Rev. Stat. § 32:218 (2012)—had been addressed by the Louisiana

Legislature in the same manner that the General Assembly has

addressed § 21-507(a) here. Shortly after the opinion was issued,

the Louisiana legislature amended the statute to permit solicitations

by “a professional fire fighters association or other nonprofit

organization . . . on behalf of bona fide charitable organizations,”

subject to the permission of the local governing authority. La.

Rev. Stat. § 32:218(b) (2012). The Louisiana Attorney General

later recognized that the 1998 opinion had been “statutorily

superseded.” Op. La. Att’y Gen. No. 03-0394, 2003 La. AG

LEXIS 493 at *2 (Nov. 17, 2003).

Other states that have adopted the newer version of the

Uniform Vehicle Code language have added provisions that relax

the anti-solicitation ban for contributions, sometimes by creating a

permitting system for solicitations by non-profit organizations.

Some of these provisions allowing specified charitable solicitations

in the roadway have been determined to be invalid as violating the

free speech guarantee of the First Amendment, while others have

withstood constitutional scrutiny. See, e.g., Bischoff v. Florida,

242 F. Supp. 2d 1226 (M.D. Fla. 2003) (exemption in Florida

statute permitting highway solicitations on behalf of registered §

501(c)(3) charities violated U.S. Constitution); Op. Del. Att’y

Gen., 2002 Del. AG LEXIS 12 (July 8, 2002) (exception in state

motor vehicle law that allowed solicitations on roadway by some

charitable organizations, but barred solicitations by others, was not

content-neutral and therefore violated First Amendment); Op. Tex.

Att’y Gen. No. DM-367, 1995 Tex. AG LEXIS 122 (Dec. 4, 1995)

(state statute that permitted local governments to enact charitable

exceptions to ban on roadway solicitations would be

unconstitutional unless local ordinance was narrowly tailored); but

see People v. Tosch, 501 N.E.2d 1253 (Ill. 1986) (upholding

statute that banned roadway solicitation except for charitable

organizations engaged in statewide campaigns).

Gen. 3] 17

Your question, however, focused on whether, under § 21-

507(a), the fire fighters’ annual “Fill the Boot” campaign to raise

money for the Muscular Dystrophy Association may continue. We

answer that question in the affirmative, having concluded that,

based on the plain language of the provision and its legislative

history, the General Assembly did not intend its use of the term

“business” to include charitable solicitation. You did not ask us to

address the First Amendment issues thus presented and we

consider those issues to be beyond the scope of this Opinion.

Nevertheless, as the court decisions cited above suggest, giving

effect to the plain language and legislative intent of § 21-507(a)

does raise constitutional concerns. It is possible, therefore, that a

reviewing court would elect to construe the term “business”

broadly to avoid those issues. See VNA Hospice v. Dep’t of Health

& Mental Hygiene, 406 Md. 584, 605-09 (2008) (“In light of the

policy against deciding constitutional issues unnecessarily, we

have consistently adhered to the principle that an interpretation

which raises doubts as to a legislative enactment’s constitutionality

should be avoided if the language of the act permits.”) (internal

quotation marks omitted). In our view, however, that type of

“saving construction” may not be necessary. “[S]tatutes carry a

strong presumption of constitutionality,” Koshko v. Haining, 398

Md. 404, 426 (2007), and this Office will defend enactments of the

Legislature unless “clearly unconstitutional.” 93 Opinions of the

Attorney General 154, 161 n.12 (2008). Because we do not find

that giving effect to the Legislature’s actual intent here would be

clearly unconstitutional, it is our opinion that the fire fighters may

conduct their annual Fill the Boot campaign and enter the roadway

to collect contributions without violating § 21-507(a).11

11

Other types of solicitation, such as panhandling, would also be

allowed by § 21-507(a), as we now construe it. See Henry v. City of

Cincinnati, 2006 U.S. Dist. LEXIS 94704, 16-20 (S.D. Ohio 2006)

(“After [Village of Schaumburg v. Citizens for a Better Envir., 444 U.S.

620 (1980)], lower federal courts and state courts have equated

panhandling to charitable solicitations, and analyzed them under the

same framework.”). We express no opinion herein about the

constitutional permissibility of statewide legislation drawing a

distinction between panhandling and charitable solicitations undertaken

by public safety officials.

18 [97 Op. Att’y

III

Conclusion

In our opinion, the General Assembly did not intend for its

use of the term “business” in § 21-507(a) to extend the ban on

roadside solicitations to the fire fighters’ annual Fill the Boot

campaign and other solicitations for charitable donations. The

plain language of the statute and its legislative history belie any

such intent. However, a statute that prohibits solicitation for some

purposes but not others does raise constitutional issues. We

therefore recommend that the Legislature consider revising the

statute should it wish to ensure that charitable solicitations

continue and without compromising the public safety goals of the

Transportation Article.

Douglas F. Gansler

Attorney General

Sandra Benson Brantley

Assistant Attorney General

Adam D. Snyder

Chief Counsel

Opinions & Advice