# Maryland Attorney General Opinion 97 OAG 003

> Maryland Attorney General Reports · May 18, 2012

URL: https://www.frixlaw.com/law-library/cases/11146239

## Case

- **Court:** Maryland Attorney General Reports
- **Decided:** May 18, 2012
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11146239

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11146239. Public record. Not legal advice.