# Express Scripts v. Anne Arundel Cnty.

> Court of Appeals of Maryland · March 23, 2026

URL: https://www.frixlaw.com/law-library/cases/11280388

## Case

- **Court:** Court of Appeals of Maryland
- **Decided:** March 23, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Booth
- **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/11280388

## How later opinions describe it (automated extraction)

- affirming orders to abate public nuisances requiring the removal of structures encroaching into a public street and beyond the mean high-water line, “title to which is vested in the State of Maryland, and held for the benefit of the inhabitants of the State”

## Opinion text

Express Scripts, Inc., et al. v. Anne Arundel County, Maryland, Misc. No. 1, September
Term, 2025, Opinion by Booth, J.

CERTIFIED QUESTION—MARYLAND COMMON LAW OF PUBLIC
NUISANCE

Pursuant to a certification order from the United States District Court for the District of
Maryland, the Supreme Court of Maryland (“Supreme Court”) was requested to answer the
following questions:

1. Under Maryland’s common law, can the licensed dispensing of, or
administration of benefit plans for, a controlled substance constitute an
actionable public nuisance?

2. If so, what are the elements of such a public nuisance claim, and what
types of potential relief can a local government plaintiff seek when
asserting such a claim?
The Supreme Court held that the licensed dispensing of, or administration of benefit plans
for, a controlled substance does not constitute an actionable public nuisance under
Maryland common law. Maryland has not expanded the public nuisance doctrine beyond
the traditional historical principles embodied in the common law—namely, that a public
nuisance action was not regarded as a tort but was instead a public action by a government
entity to pursue criminal prosecutions or seek injunctive relief to abate harmful conduct.
The Court has never recognized a government actor’s ability to recover damages for public
nuisance.

The Court determined that it did not need to decide whether to expand Maryland’s common
law of public nuisance because Anne Arundel County’s complaint against licensed
pharmacies and pharmacy benefit managers fails to satisfy a primary requirement of a
public nuisance action—specifically, that the defendants’ conduct of dispensing opioids,
and the administration of benefit plans for opioids, affects a common public right.
Moreover, even if the County were able to establish that the alleged conduct interfered with
a common public right, the Court recognized that judicial restraint is the best course given
the extensive federal and state statutory and regulatory framework that governs the highly
complex conduct of the licensed prescribing, dispensing, and administration of benefit
plans related to opioids. Common law public nuisance is an inapt vehicle to address
complex societal problems, which are best left to the legislative branch.
United States District Court for
the District of Maryland
Case No.: Civ. No. 1:24-cv-00090-MJM
Argued: September 9, 2025

IN THE SUPREME COURT

OF MARYLAND

Misc. No. 1

September Term, 2025

EXPRESS SCRIPTS, INC., et al.

v.

ANNE ARUNDEL COUNTY, MARYLAND

Fader, C.J.,
Watts,
Booth,
Biran,
Gould,
Eaves,
Killough,

JJ.

Opinion by Booth, J.
Killough, J., concurs.
Watts, J., concurs and dissents.

Filed: March 23, 2026
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2026.03.23
12:24:25 -04'00'
Gregory Hilton, Clerk
This case comes to us from the United States District Court for the District of

Maryland (the “District Court”) pursuant to a certification order 1 requesting that we answer
F

the following questions:

1. Under Maryland’s common law, can the licensed dispensing of, or
administration of benefit plans for, a controlled substance constitute an
actionable public nuisance?

2. If so, what are the elements of such a public nuisance claim, and what
types of potential relief can a local government plaintiff seek when
asserting such a claim?
We answer “no” to the first question. We hold that the licensed dispensing of, or

administration of benefit plans for, a controlled substance does not constitute an actionable

public nuisance. As discussed herein, Maryland’s public nuisance common law has not

been expanded beyond the traditional historical principles—namely, that an action for

public nuisance brought by a governmental entity on behalf of the public was not regarded

as a tort, but instead as a basis for public officials to pursue criminal prosecutions or seek

injunctive relief to abate harmful conduct. Although damages may be available in a private

nuisance action (as they were under the common law), this Court has never recognized a

government actor’s ability to recover damages in a public nuisance action.

We do not need to decide in this case whether to expand our common law of public

nuisance because the County’s complaint fails to satisfy a primary requirement of a public

1
Under the Maryland Uniform Certification of Questions of Law Act, Md. Code
(2020 Repl. Vol., 2025 Supp.), Courts & Judicial Proceedings Article (“CJ”) §§ 12-601
et seq., the court certifying the question shall issue a certification order containing “(1)
[t]he question of law to be answered; [and] (2) [t]he facts relevant to the question,
showing fully the nature of the controversy out of which the question arose[.]” CJ § 12-
606(a).
nuisance action—specifically, that the Defendants’ conduct of dispensing opioids, and the

administration of benefit plans for opioids, affects a common public right. But even if the

County were able to establish that the alleged conduct interfered with a public right, we

would nonetheless decline to expand our common law of public nuisance here given the

extensive federal and state statutory and regulatory framework that governs the highly

complex conduct of the licensed prescribing, dispensing, and administration of benefit

plans related to opioids.

I

Certification Order and the Parties’ Contentions

The certification order, and the operative complaint referenced therein, set forth the

following procedural history and facts, which we accept for the purpose of answering the

certified questions of law. United Bank v. Buckingham, 472 Md. 407, 412–13 (2021).

Appellee Anne Arundel County, Maryland (“the County”), a charter county of the

State of Maryland, brings this action against Express Scripts, Inc.; Express Scripts

Administrators, LLC; Medco Health Solutions, Inc.; ESI Mail Pharmacy Service, Inc.;

Express Scripts Pharmacy, Inc.; OptumRX, Inc.; CaremarkPCS Health, L.L.C.; Caremark,

L.L.C.; Maryland CVS Pharmacy, L.L.C.; and CVS Pharmacy, Inc. (collectively, “the

Defendants”).

The County’s lawsuit consists of a single public nuisance claim against the

Defendants, all of whom fall within three distinct categories: pharmacy benefit managers

2
(“PBMs”), mail-order pharmacies, or retail pharmacies. 2 The County contends that the
1F

Defendants caused and maintained a public nuisance by collaborating and partnering with

opioid manufacturers in deceptive and dangerous marketing of opioids for financial gain,

and by spurring opioid abuse by placing these drugs on formularies 3 with preferred status
2F

and without restriction on their approval for use.

The County’s public nuisance claim against the PBM Defendants arises out of their

actions to facilitate and encourage the use of opioids, allegedly flooding the market with

opioids through their formulary and benefit management decisions. As to the mail-order

and retail pharmacy Defendants, the County’s public nuisance claim arises out of those

Defendants’ actions in filling prescriptions for opioid medications in allegedly excessive

quantities and in an allegedly unsafe manner.

The County seeks the following relief: (1) a finding that the Defendants have created

a public nuisance and are jointly and severally liable; (2) an injunction permanently

enjoining the Defendants from “engaging in the acts and practices that caused the public

2
Defendants Express Scripts, Inc., Express Scripts Administrators, LLC Medco
Health Solutions, Inc., OptumRx, Inc., Caremark PCS Health L.L.C., and Caremark,
L.L.C. offer pharmacy benefit management services. Defendants CVS Pharmacy, Inc.
and Maryland CVS Pharmacy Service, L.L.C. operate retail pharmacies, and
Defendants ESI Mail Pharmacy Services, Inc., Express Scripts Pharmacy, Inc., Optum
Rx, Inc., Caremark PCS Health, L.L.C. and Caremark L.L.C. operate mail-order
pharmacies.
3
A formulary is “[a] list of prescription drugs covered by a prescription drug
plan or another insurance plan offering prescription drug benefits.” U.S. Ctrs. for
Medicare & Medicaid Srvs., Formulary, HealthCare.gov, https://perma.cc/MT57-
HWGD; see also Md. Code (2017 Repl. Vol., 2025 Supp.) Insurance Article (“Ins.”) §
15-1601(h) (defining “formulary” as “a list of prescription drugs used by a purchaser”).
3
nuisance”; (3) an order directing the Defendants to pay for the abatement of the public

nuisance; (4) an award of compensatory damages “in an amount sufficient to fairly and

completely compensate the County for all damages alleged” in the operative complaint;

and (5) costs, filing fees, pre-and post-judgment interest, and attorney’s fees. As the

County emphasizes in its brief, it is seeking, among other things, damages to reimburse it

for past, present, and anticipated costs of public services related to opioid misuse, such as

law enforcement and drug and addiction programs.

The Defendants argue that the County’s claim is inconsistent with Maryland’s

common law doctrine of public nuisance and would represent an unprecedented expansion

of the action. The Defendants contend that in 250 years, this Court has never recognized

a public nuisance claim that is untethered to the use of real property. The Defendants also

assert that a common law public nuisance claim is permitted only when the alleged conduct

interferes with the property rights of the public at large. The Defendants argue that because

neither licensed dispensing of, nor administration of benefit plans for, a controlled

dangerous substance has a connection to property and does not implicate any public right,

neither can give rise to a public nuisance under Maryland law.

The Defendants point out that the highest courts in Oklahoma, Ohio, and Maine—

the only state high courts to consider the issue—have rejected the expansion of public

nuisance to claims related to prescription opioids. Similarly, the supreme courts of Rhode

Island, New Jersey, and Illinois have rejected efforts to expand their respective common

laws of public nuisance to other product-based claims. The Defendants contend that these

out-of-state trends align with the Third Restatement of Torts, which recognizes that the

4
“common law of public nuisance is an inapt vehicle” for addressing the type of conduct

that the County challenges. Restatement (Third) of Torts: Liab. for Econ. Harm § 8 cmt.

g (2020).

The Defendants also argue that the County’s attempt to bring a common law

nuisance claim is preempted by the General Assembly’s comprehensive statutory and

regulatory authority over the practice of pharmacies and the provision of PBM services.

The Defendants assert that, through comprehensive legislation, the General Assembly has

occupied the entire regulatory field applicable to pharmacies and PBMs, including

enforcement provisions, thereby abrogating any common law applicable to the subject.

Given this regulation of pharmacies and PBMs, the Defendants contend that

applying the public nuisance doctrine to the conduct alleged by the County in this case

would be tantamount to the Court usurping legislative authority by making a policy

determination about the circumstances in which pharmacies and PBMs can be liable for

conduct that the State licenses and regulates—a determination that would expose countless

businesses to “limitless” tort liability for lawful activity.

For its part, the County asserts that in Tadjer v. Montgomery County, 300 Md. 539

(1984), this Court adopted the definition of public nuisance as outlined in the Restatement

(Second) of Torts § 821B (1979), which defines it as “an unreasonable interference with a

right common to the general public.” According to the County, the public nuisance

definition set forth in the Second Restatement is consistent with this Court’s “decades-old

formulation” of the doctrine. The County cites to this Court’s decisions in cases such as

Adams v. Commissioners of Trappe, 204 Md. 165 (1954) and Jewel Tea Corporation v.

5
Town of Bel Air, 172 Md. 536 (1937) in further support of its position that its claim falls

within this Court’s public nuisance jurisprudence.

The County argues that Maryland has never required that the alleged conduct at the

source of the public nuisance involve real property. Rather, the County asserts that the

alleged conduct must simply affect a general right based upon public health or safety. The

County rejects the Defendants’ characterization of its claim as being novel and contends

that its claim is consistent with the English common law from which Maryland public

nuisance law originates. The County points out that, as early as the 1660s, England’s

“common nuisance” definition included “apothecaries who sell products unfit for human

consumption.”

According to the County, we should answer the first question presented in the

affirmative, and as to the second question, this Court should “reiterate” the elements of

public nuisance under Maryland law, “as it has existed for decades,” namely that: (1) “the

conditions must interfere with a public right, hurting the public at large, not an individual

victim”; (2) “the defendant’s conduct must be unreasonable because it is unlawful,

substantially interferes with public health or safety, or is unreasonable in relation to

surrounding circumstances”; and (3) “the unreasonable conduct must be a cause of the

harmful conditions.” In addition to the equitable relief that a local government may seek

to abate a public nuisance, the County argues that we should hold that a local government

may seek damages for an injury to the public generally.

The County also contends that its common law claim is not preempted by

Maryland’s statutes and regulations governing pharmacies and PBMs. The County

6
argues that because neither the Maryland Pharmacy Act nor Maryland’s PBM statute

address or remedy public harms, the General Assembly has not abrogated its common

law claim.

The Defendants and the County both cite to English common law and numerous

Maryland cases in support of their respective positions concerning the parameters of

Maryland’s public nuisance law. At bottom, we hold that our common law of public

nuisance is neither as limited as the Defendants suggest, nor is it as expansive as the County

asserts. Our cases have not limited a public nuisance action to conduct that interferes with

real property. By the same token, we have never adopted an expansive common law public

nuisance tort in the manner asserted by the County.

Before we delve into nuisance law, we first discuss the comprehensive statutes and

regulations that establish professional standards for prescribing and dispensing prescription

medications. In addition to the statutes and regulations that govern the operations of

pharmacies and PBMs generally, federal law and Maryland law contain concurrent and

overlapping statutes and regulations that tightly regulate prescription opioids—from the

licensed individual who prescribes the medication, to the patient, and to all stages of the

distribution and supply chain.

7
II

Statutory Framework Applicable to Pharmacies and PBMs

A. The Maryland Pharmacy Act

The General Assembly has enacted the “Maryland Pharmacy Act,” 4 which 3F

establishes a comprehensive statutory and regulatory regime governing pharmacy practice

and the operation of pharmacies in the State. Md. Code (2021 Repl. Vol., 2025 Supp.),

Health Occupations Article (“HO”), Title 12. The Act provides detailed statutory oversight

over the dispensing of prescription drugs, covering the entire process from the initial

authorization of the prescribed drug by the authorized prescriber 5 to the distribution by the
4F

licensed pharmacy. 6 Anyone who wishes to practice pharmacy in Maryland must obtain a
5F

license, id. § 12-301(a), and a separate permit is required to establish or operate a

pharmacy, id. § 12-401. Mail-order and non-resident pharmacies 7 that deliver
6F

prescriptions in Maryland are expressly subject to the Act. Id. § 12-403(c)(17), (e)–(g).

4
See Md. Code (2021 Repl. Vol., 2025 Supp.), Health Occupations Article (“HO”)
§ 12-801 (designating the short title for Title 12).
5
HO § 12-101(b) states that “authorized prescriber” “means any licensed dentist,
licensed dental hygienist with prescriptive authority [], licensed physician, licensed
podiatrist, licensed veterinarian, advanced practice registered nurse with prescriptive
authority[], licensed nurse anesthetist, or other individual authorized by law to prescribe
prescription or nonprescription drugs or devices.”
6
Under the Maryland Pharmacy Act, “‘[p]harmacy’ means an establishment in
which prescription or nonprescription drugs or devices are compounded, dispensed, or
distributed.” HO § 12-101(t).
7
“‘Nonresident pharmacy’ means a pharmacy located outside this State that, in the
normal course of business, as determined the Board, ships, mails, or delivers drugs or
devices to a person in this State pursuant to a prescription.” HO § 12-101(q).
8
In addition to establishing licensing procedures and pharmacist qualifications, id.

§§ 12-302–12-306, the Act creates a Board of Pharmacy to regulate pharmacy practice, id.

§ 12-201. The Board is exclusively responsible for adopting “rules and regulations that

are necessary to protect the public health, safety, and welfare and that establish standards

for practicing pharmacy and operating pharmacies, including”: “methods of advertising

and promotion;” “standards for filling and refilling prescriptions;” and “a code of conduct

that specifies which behaviors are either required or prohibited in the practice of

pharmacy.” Id. §12-205(a)(3), (4) (citation modified). Pursuant to this delegation of

authority, the Board has adopted detailed rules and regulations. See generally Code of

Maryland Regulations (“COMAR”), Title 10, Subtitle 34.

Between the Maryland Pharmacy Act and the rules promulgated by the Board, there

are provisions addressing wide-ranging aspects of pharmacy practice and the operation of

pharmacies. 8 Among its many statutory conditions for operation, a licensed pharmacy is
7F

required to “ensure that a licensed pharmacist” is “immediately available on the premises

to provide pharmacy services at all times the pharmacy is in operation[.]” HO § 12-

403(c)(3). Notably, the statutory scheme ensures that the licensed pharmacist—not the

licensed pharmacy—is responsible for filling prescriptions in accordance with the

8
For example, the Act and its implementing regulations address substitution of
generic drugs, HO § 12-504; prescription labeling requirements, id. § 12-505; emergency
refills, id. § 12-506; pharmacy locations, id. § 12-403(c)(2); supervision of the pharmacy,
id. § 12-403(c)(3), (4); pharmacy equipment, id. § 12-403(c)(11); drug storage, id. § 12-
403(c)(12); staffing levels, id. § 12-403(c)(15), (16); requirements when prescription drugs
are sent by mail, id. § 12-403(17); pharmacy security, COMAR 10.34.03.06; and retention
of prescription records, id. 10.34.20.03.
9
pharmacist’s professional judgment. See id. § 12-403(c)(7) (stating that a licensed

pharmacy “[m]ay not offer pharmaceutical services under any term or condition that tends

to interfere with or impair the free and complete exercise of professional pharmaceutical

judgment or skill”).

The Maryland Pharmacy Act and its implementing regulations set forth specific

rules concerning the standards by which a pharmacist may fill or refuse to fill a

prescription. In particular, a pharmacist may do so as long as the decision is based on his

or her professional “judgment, experience, knowledge, or available reference materials.”

Id. § 12-501(a). And if a pharmacist has reason to believe that a prescription was not

written for a legitimate medical purpose, in the ordinary course of a prescriber’s practice,

the pharmacist must verify with the prescriber that the prescription is medically legitimate

before filling it. COMAR 10.34.10.08. 9 If, after consulting with the prescriber, and based
8F

9
COMAR 10.34.10.08 states:

A. If, based on generally accepted professional standards for the practice
of pharmacy, a pharmacist has reason to believe, or should have
reason to believe, that a prescription for a controlled dangerous
substance was not issued for a legitimate medical purpose in the usual
course of the prescriber’s practice, the pharmacist may not dispense
the controlled dangerous substance until the pharmacist:
(1) Consults with the prescriber; and
(2) Verifies the medical legitimacy of the prescription.

B. If, after consulting with the prescriber, and based on generally
accepted professional standards for the practice of pharmacy, a
pharmacist has reason to believe that the prescription for a controlled
dangerous substance was not issued for a legitimate medical purpose
in the usual course of the prescriber’s practice, the pharmacist shall:
(1) Refuse to dispense the drug; and
10
on generally accepted professional standards for the practice of pharmacy, a pharmacist

has reason to believe that the prescription for a controlled dangerous substance was not

issued for a legitimate medical purpose in the usual course of the prescriber’s practice, the

pharmacist is required to refuse to dispense the drug, and must report the incident to the

regulatory board that licenses the prescriber. Id.

The Act also establishes an enforcement scheme to ensure compliance with its

provisions. 10
9F The Act authorizes discipline of pharmacists, including suspension or

revocation of licenses and permits, and civil penalties. HO §§ 12-313, 12-314. The Act

permits the commencement of civil actions to enjoin the unauthorized practice of pharmacy

or any conduct that could subject a pharmacist to discipline. Id. § 12-319.

Finally, in addition to the various civil enforcement provisions, the General

Assembly has provided that a person who violates certain provisions of the Maryland

Pharmacy Act “is guilty of a misdemeanor,” and on conviction is subject to a fine not

exceeding $1,000, or, in some instances, imprisonment not exceeding 1 year, or both.

(2) Report the incident to the regulatory board that licenses the
prescriber.
10
In terms of enforcement, the Maryland Pharmacy Act authorizes the Board to
enter any permitted pharmacy in the State to inspect for compliance with federal and State
laws and regulations. HO § 12-413. The Board is empowered to “suspend or revoke any
pharmacy permit if the pharmacy: (1) is conducted so as to endanger the public health or
safety; (2) violates any of the standards specified in” HO § 12-403; “or (3) otherwise is not
conducted in accordance with the law.” Id. § 12-409(a) (citation modified). The Board
may also “impose a penalty not exceeding $10,000,” and any penalty collected is paid “into
the General Fund of this State.” Id. § 12-410(a), (c). A person against whom the Board
seeks to take action is entitled to notice and a hearing in accordance with the Administrative
Procedure Act, id. § 12-411(b), and may petition for judicial review thereafter, id. § 12-
412(a).
11
See id. § 12-707 (enumerating the subtitles or sections of Title 12 that are criminal

offenses). 11
10F

B. State Legislation Governing PBM Services

The General Assembly has likewise enacted comprehensive legislation regarding

the provision of PBM services. Before we describe the legislation that governs PBMs, it

is useful to first generally describe what a PBM is.

PBMs manage prescription drug plan benefits for insurers. They serve as

“intermediaries between prescription-drug plans and the pharmacies that beneficiaries

use.” Rutledge v. Pharm. Care Mgmt. Ass’n, 592 U.S. 80, 83–84 (2020). “When a

beneficiary of a prescription-drug plan goes to a pharmacy to fill a prescription, the

pharmacy checks with the PBM to determine that person’s coverage and copayment

information.” Id. at 84. “After the beneficiary leaves with his or her prescription, the PBM

11
The Maryland Pharmacy Act also covers wholesale distribution of prescription
drugs. Subtitle 6C of Title 12 of the Health Occupations Article, titled the “Wholesale
Distributor Permitting and Prescription Drug Integrity Act,” governs “the normal
distribution channel” for prescription drugs from the manufacturer to a distributor, and
ultimately to a pharmacy. See HO § 12-6C-01(l). We do not need to discuss the
wholesale distributor permitting statutory and regulatory scheme in detail. For our
purposes, we simply note that the General Assembly has enacted a detailed regulatory
framework associated with the distribution of prescription drugs consistent with
regulations promulgated by the U.S. Food and Drug Administration, including
permitting and inspection requirements, reporting requirements and records retentions,
disclosures of information, deliveries, returns, and exchanges. See generally id., Title
12, Subtitle 6C. The Board of Pharmacy is authorized to adopt regulations governing
wholesale distribution. Id. § 12-6C-07. The General Assembly confers considerable
enforcement authority in the Board for violations of the subtitle. Specifically, “[i]f a
person knowingly violates any provision of this subtitle or any regulation adopted under
this subtitle, the Board may impose a fine not to exceed $500,000.” Id. § 12-6C-
11(a)(1).
12
reimburses the pharmacy for the prescription, less the amount of the beneficiary’s

copayment. The prescription drug plan, in turn, reimburses the PBM.” Id. Although

PBMs “play no role in the physical distribution of prescription drugs, by handling

negotiations and payments within the supply chain, PBMs have a significant impact on the

total drug cost for payors, patient access to medications, and determining how much

pharmacies are paid.” Kathleen A. Birrane, Maryland Ins. Admin., Report of the Maryland

Insurance Administration on Rutledge v. Pharmaceutical Care Management Association

and its Impact on Title 15, Subtitle 16 of the Maryland Insurance Article (Jan. 5, 2022),

https://perma.cc/JYK4-RV7T. “PBM activities typically include the creation of

formularies, the negotiation of drug discounts, the creation of pharmacy networks, the

processing of claims, and the review of drug utilization.” Id. “In addition to cost

management and drug price negotiations, PBMs may offer a variety of administrative

services to a health plan, all related to prescription drug benefits.” Id.

Maryland began regulating PBMs in 2008. 12 11F The comprehensive regulatory

framework for PBMs is set forth in Title 15, Subtitle 16 of the Insurance Article (“Ins.”).

PBMs 13 must register with the Commissioner of the Maryland Insurance Administration,
12F

12
See 2008 Md. Laws, Chs. 202, 204, 206, 262, 279.

Ins. § 15-1601(q) states that “pharmacy benefits manager” “means a person that
13

performs pharmacy benefits management services.” “Pharmacy benefits management
services” means:

(i) the procurement of prescription drugs at a negotiated rate for
dispensation within the State to beneficiaries;
(ii) the administration or management of prescription drug coverage
provided by a purchaser for beneficiaries; and
13
which is the State agency vested with the authority to promulgate and implement

regulations, and to oversee enforcement of the statute and regulations. See Ins. §§ 15-1604,

15-1619, 15-1642.

Maryland legislation establishes certain requirements related to: (1) PBMs’

contracts with pharmacies and health plans, 14 id. §§ 15-1628–1631; (2) therapeutic
13F

interchanges of a substitute drug for the one that was originally prescribed, id. §§ 15-1633–

1639; and (3) treatment of certain types of drugs when setting reimbursement amounts, id.

§ 15-1612. The General Assembly requires that each PBM have a “pharmacy and

therapeutics committee”—a committee that makes therapeutic recommendations

concerning formulary decisions and utilization management. Id. §§ 15-1613–15-1618.

The Insurance Commissioner is authorized to adopt regulations for the implementation of

(iii) any of the following services provided with regard to the
administration of prescription drug coverage:
1. mail service pharmacy;
2. claims processing, retail network management, and payment of
claims to pharmacies for prescription drugs dispensed to
beneficiaries;
3. clinical formulary development and management services;
4. rebate contracting and administration;
5. patient compliance, therapeutic intervention, and generic
substitution programs; or
6. disease management programs.

Id. § 15-1601(p)(1).
14
The statute contains several requirements for these contracts, including: required
disclosures related to the maximum allowable cost pricing; dispute resolution processes
regarding cost pricing and reimbursements; prohibited fees and reductions in payments;
audits; internal review processes; and retroactive denials or modifications of approved
claims. Ins. §§ 15-1628–15-1631.
14
the statutory provisions related to a PBM’s pharmacy and therapeutics committee. Id.

§ 15-1619.

The General Assembly has also enacted legislation addressing PBM functions

related to formulary design and utilization management. As to formulary design, a PBM

is required to “ensure that its pharmacy and therapeutic committee has” “a process to

evaluate medical and scientific evidence concerning the safety and effectiveness of

prescription drugs, including available comparative information on clinically similar

prescription drugs, when deciding what prescription drugs to include on a formulary[.]”

Id. § 15-1617(2). Concerning utilization-management tools, the statute requires that a

PBM, through its therapeutic management committee, adopt a process to “evaluate medical

and scientific evidence concerning the safety and effectiveness of prescription drugs when

recommending utilization review requirements, dose restrictions, and step therapy

requirements[.]” Id. § 15-1617(3).

The General Assembly has vested authority in the Insurance Commissioner to

enforce the regulatory regime, including the authority to issue orders requiring a PBM to:

“(1) cease and desist” from identified violations; “(2) take specific affirmative action to

correct the violation;” or “(3) make restitution of money, property, or other assets to a

person that has suffered financial injury because of the violation[.]” Id. § 15-1642(c)(1)–

(3). The Commissioner may file a petition in the circuit court in any county to enforce

an order, and “[i]f the Commissioner prevails in an action brought under this section, the

Commissioner may recover, for the use of the State, reasonable attorney’s fees and the

costs of the action.” Id. § 15-1642(d)(4), (5). “In addition to any other enforcement

15
action, the Commissioner may impose a civil penalty not exceeding $10,000 for each

violation of this subtitle.” Id. § 15-1642(e). Finally, the enforcement authority granted

under § 15-1642 “does not limit any other regulatory authority of the Commissioner”

provided under the Insurance Article. Id. § 15-1642(g).

III

Statutory and Regulatory Framework Applicable to
Prescription of Controlled Substances

In addition to the general statutory and regulatory schemes discussed above, there

are concurrent and overlapping federal and state statutory schemes that regulate

prescriptions for controlled substances such as opioids.

A. The Federal Controlled Substances Act

Congress enacted the Comprehensive Drug Abuse Prevention and Control Act in

1970, 15 which was “prompted by a perceived need to consolidate the growing number
14F

of piecemeal drug laws and to enhance federal drug enforcement powers[.]” Gonzales

v. Raich, 545 U.S. 1, 12 (2005). Title II of that Act—the Controlled Substances Act

(sometimes hereinafter referred to as the “CSA”)—establishes a comprehensive

framework for regulating drugs and substances that pose a risk of abuse and dependence

The Comprehensive Drug Abuse Prevention and Control Act of 1970 consists
15

of three titles. Title I relates to the prevention and treatment of narcotic addicts, formerly
through the Department of Health, Education and Welfare, now the Department of Health
and Human Services. Gonzales v. Raich, 545 U.S. 1, 12 n.19 (2005) (citing 84 Stat.
1238). Title II addresses drug control and enforcement as administered by the Attorney
General and the Drug Enforcement Administration (“DEA”). Id. (citing 84 Stat. 1242).
Title III concerns the import and export of controlled substances. Id. (citing 84 Stat.
1285).
16
in the United States. 21 U.S.C. §§ 801–971. 16 The “main objectives of the” CSA “were
15F

to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled

substances.” Raich, 545 U.S. at 12. “Congress was particularly concerned with the

need to prevent the diversion of drugs from legitimate to illicit channels.” Id. at 12–13.

“To effectuate these goals, Congress devised a closed regulatory system making it

unlawful to manufacture, distribute, dispense, or possess any controlled substance except

in a manner authorized by the” CSA. Id. at 13 (citing 21 U.S.C. §§ 841(a)(1), 844(a)). The

Act “categorizes all controlled substances into five schedules.” Id. (citing 21 U.S.C.

§ 812). 17 “The drugs are grouped together based on their accepted medical uses, the
16F

potential for abuse, and their psychological and physical effects on the body.” Id. at 13–

14 (citing 21 U.S.C. §§ 811, 812). “Each schedule is associated with a distinct set of

controls regarding the manufacture, distribution, and use of the substances listed therein.”

Id. at 14 (citing 21 U.S.C. §§ 821–830).

16
21 U.S.C. § 801 states, in pertinent part:

The Congress makes the following findings and declarations:

(1) Many of the drugs included within this subchapter have a useful and
legitimate medical purpose and are necessary to maintain the health and
general welfare of the American people.
(2) The illegal importation, manufacture, distribution, and possession and
improper use of controlled substances have a substantial and detrimental
effect on the health and general welfare of the American people.
17
A “controlled substance” is defined under the Controlled Substances Act (the
“CSA”) as “a drug or other substance, or immediate precursor, included in schedule I, II,
III, IV, or V” of the CSA’s subchapter addressing control and enforcement. 21 U.S.C.
§ 802(6).
17
Most opioids are classified as schedule II substances, which have a “currently

accepted medical use in treatment in the United States or a currently accepted medical use

with severe restrictions.” 21 U.S.C. § 812(b)(2)(B). However, they have “high potential

for abuse[]” which can lead to “severe psychological or physical dependence.” Id.

§ 812(b)(2)(A), (C). As such, other than in emergency situations, no schedule II drug may

be “dispensed without the written prescription of a practitioner,” and “[n]o prescription for

a controlled substance in schedule II may be refilled.” 21 U.S.C. § 829(a), (f); see also 21

C.F.R. § 1306.12(a). 18 “A prescription for a controlled substance may only be filled by a
17F

pharmacist, acting in the usual course of his [or her] professional practice[.]” 21 C.F.R.

§ 1306.06.

The regulations promulgated under the CSA state that “[a] prescription for a

controlled substance to be effective must be issued for a legitimate medical purpose by

an individual practitioner acting in the usual course of his [or her] medical practice.”

Id. § 1306.04(a). The regulations further provide that “[t]he responsibility for the

proper prescribing and dispensing of controlled substances is upon the prescribing

18
The regulations authorize an individual practitioner to issue “multiple
prescriptions authorizing the patient to receive a total of up to a 90-day supply of a Schedule
II controlled substance provided” that certain conditions are met, including that: (1) each
separate prescription “is issued for a legitimate medical purpose by an individual
practitioner acting in the usual course of professional practice;” (2) the “individual
practitioner concludes that providing the patient with multiple prescriptions in this manner
does not create an undue risk or diversion or abuse;” and (3) the “issuance of multiple
prescriptions as described in this section is permissible under the applicable state laws[.]”
21 C.F.R. § 1306.12(b)(i), (iii), (iv).
18
practitioner, but a corresponding responsibility rests with the pharmacist who fills the

prescription.” Id.

The CSA and its implementing regulations, which are promulgated by the Drug

Enforcement Administration (“DEA”), “set forth strict requirements regarding

registration, labeling and packaging, production quotas, drug security, and

recordkeeping.” Raich, 545 U.S. at 13–14 (citing 21 U.S.C. §§ 821–830 and 21 C.F.R.

§ 1301 et seq. (2004)). All those who manufacture, distribute, prescribe, or dispense

controlled substances must register with the DEA, the enforcer of the Controlled

Substances Act. 21 U.S.C. §§ 822, 823. All regulated entities in the supply chain,

known as “registrants,” must “provide effective controls and procedures to guard

against . . . diversion of controlled substances.” 21 C.F.R. § 1301.71(a). “Diversion”

refers to the transfer of controlled substances “into other than legitimate medical,

scientific, and industrial channels[.]” 21 U.S.C. § 823(b)(1); see also Raich, 545 U.S.

at 10.

This statutory scheme recognizes that having excessive quantities of controlled

substances—and opioids in particular—available in the United States has the potential

for diversion and can contribute to overdose deaths and abuse. Id. § 826(a), (i). 19 18F

The CSA has enhanced considerations for opioid quotas, which are set forth in 21
19

U.S.C. § 826(i), which states, in pertinent part:

(1)(A) In establishing any quota under this section . . . for fentanyl,
oxycodone, hydrocodone, oxymorphone, or hydromorphone (in this
subsection referred to as a “covered controlled substance”), the Attorney
19
Accordingly, the CSA and its corresponding regulations require the DEA to annually

determine aggregate production quotas for each basic class of schedule II substances to

be manufactured for each calendar year. Id.; 21 C.F.R. Part 1303. Information

concerning the quotas is required to be annually submitted to identified congressional

committees. 21 U.S.C. § 826(i)(2)(B).

In addition to regulatory provisions related to filling prescriptions, see generally

21 C.F.R. Part 1306, the CSA and implementing regulations establish oversight over

registrants, including provisions for labeling and packaging, such as warnings to

patients, 21 U.S.C. § 825; 21 C.F.R. Part 1302; recordkeeping and reporting

requirements, 21 U.S.C. § 827; 21 C.F.R. Part 1304; and security requirements, 21

C.F.R. §§ 1301.71–1301.76.

General shall estimate the amount of diversion of the covered controlled
substance that occurs in the United States.

(B) In estimating diversion under this paragraph, the Attorney General—
(i) shall consider information the Attorney General, in consultation with
the Secretary of Health and Human Services, determines reliable on rates
of overdose deaths and abuse and overall public health impact related to
the covered controlled substances in the United States; and
(ii) may take into consideration whatever other sources of information the
Attorney General determines reliable.

(C) After estimating the amount of diversion of a covered controlled
substance, the Attorney General shall make appropriate quota reductions,
as determined by the Attorney General, from the quota the Attorney
General would have otherwise established had such diversion not been
considered.
20
The CSA and its corresponding regulations include significant civil enforcement

provisions 20 and establish criminal statutory offenses 21 for violations of particular
19F 0F

provisions. The CSA requires federal cooperation with state, local, and tribal agencies

“concerning traffic in controlled substances and in suppressing the abuse of controlled

substances.” 21 U.S.C. § 873. To that end, the CSA authorizes the Attorney General to,

among other things, enter into contractual agreements with state and local law enforcement

agencies “to provide for cooperative enforcement and regulatory activities under this

chapter.” Id. § 873(a)(7).

Finally, we note that Congress expressly declared that the CSA was not intended to

“occupy the field” in a manner that prohibits state law on the same subject matter. Id.

§ 903. 22 We turn to the concurrent statutory scheme enacted by the General Assembly.
21F

Various provisions of the CSA detail the civil enforcement tools available
20

including administrative inspection warrants, 21 U.S.C. § 880; forfeitures, id. § 881; and
injunctions, id. § 882. The DEA also has the authority to revoke or suspend a registrant’s
registration. 21 C.F.R. § 1301.36.

It is unlawful for any person to knowingly or intentionally “manufacture,
21

distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a
controlled substance[]” unless expressly authorized by the subchapter. 21 U.S.C.
§ 841(a)(1). The penalties for violating subsection (a) in the case of a schedule II substance
are set forth in § 841(b)(1)(C). The CSA establishes various other federal statutory
criminal offenses, including unlawful possession, id. § 844(a); attempt and conspiracy, id.
§ 846; continuing criminal enterprises, id. § 848; maintaining drug-involved premises, id.
§ 856; and endangering human life while illegally manufacturing a controlled substance,
id. § 858.
22
21 U.S.C. § 903 states:

No provision of this subchapter shall be construed as indicating an intent on
the part of Congress to occupy the field in which that provision operates,
including criminal penalties, to the exclusion of any State law on the same
21
B. Maryland’s Controlled Dangerous Substances Act

The General Assembly has enacted the Maryland Controlled Dangerous Substances

Act 23 (sometimes hereinafter referred to as the “MCDSA”), which is a comprehensive
22F

statutory and regulatory scheme that is consistent with the Controlled Substances Act. See

Md. Code (2021 Repl. Vol., 2025 Supp.), Criminal Law Article (“CR”) Title 5. 24 The 23F

MCDSA expressly contemplates coordinated and cooperative enforcement among federal

and state agencies and officials. 25
24F

The MCDSA provides for the same closed regulatory system that exists under the

CSA—establishing a “uniform law to control the manufacture, distribution, possession,

subject matter which would otherwise be within the authority of the State,
unless there is a positive conflict between that provision of this subchapter
and that State law so that the two cannot consistently stand together.

See Md. Code (2021 Repl. Vol., 2025 Supp.), Criminal Law Article (“CR”) § 5-
23

1101 (designating the short title for Title 5).

The General Assembly’s legislative findings and purpose of Title 5 of the
24

Criminal Law Article are virtually identical to some of the congressional findings and
declarations under the CSA outlined in note 16 above. Specifically, CR § 5-102(a)
states:

(a) The General Assembly finds that:
(1) many of the substances listed in this title have a useful and legitimate
medical purpose and are necessary to maintain the health and general
welfare of the people of the State; but
(2) the illegal manufacture, distribution, possession, and administration of
controlled dangerous substances have a substantial and detrimental
effect on the health and general welfare of the people of the State.

See, e.g., CR § 5-201(a) (describing efforts to ensure cooperation “with each unit
25

that enforces any federal, state, or local law relating to controlled dangerous substances”);
id. § 5-310 (requiring the Department to notify the DEA of any order suspending or
revoking registration and each forfeiture of a controlled dangerous substance under the
22
and administration of controlled dangerous substances” to “ensure their availability for

legitimate medical and scientific purposes[,]” while at the same time “prevent[ing] their

abuse, which results in a serious health problem to the individual and represents a serious

danger to the welfare of the people of the State.” Id. § 5-102(b)(1).

Maryland has adopted five schedules of “controlled dangerous substances” 26 that 25F

overlap with the federal schedules. Id. §§ 5-401–406. Most opioids are schedule II

substances, id. § 5-403, and, subject to some limited exceptions, may not be dispensed

without a written prescription or an electronic prescription from an authorized provider, id.

§ 5-501. 27
26F

subtitle); id. § 5-810(b)(2)(ii), (iii) (where an individual who holds a professional license
is convicted of a drug crime, requiring the court to determine, among other things, “whether
the public will be protected if the individual continues to perform tasks authorized by the
license” and “whether the nature and circumstances of the drug crime merit referral to the
licensing authority”).
26
CR § 5-101(g)(1)(i) defines “controlled dangerous substance,” which includes “a
drug or substance listed in Schedule I through Schedule V[.]”
27
The MCDSA defines “authorized provider” as:

(i) a person licensed, registered, or otherwise allowed to administer,
distribute, dispense, or conduct research on a controlled dangerous
substance in the State in the course of professional practice or
research; or
(ii) a pharmacy, laboratory, hospital, or other institution licensed,
registered, or otherwise allowed to administer, distribute, dispense, or
conduct research on a controlled dangerous substance in the State in
the course of professional practice or research.

Id. § 5-101(d)(1).
23
All manufacturers, distributors, 28 dispensers, and authorized providers of controlled
27F

dangerous substances are required to be registered by the Department of Health. CR §§ 5-

301–5-310. In addition to the registration requirements specified in the subtitle, an

authorized provider who prescribes or dispenses a schedule II substance must also be

registered with the State’s Prescription Drug Monitoring Program, which we discuss

below. Among other things, Subtitle 3 of Title 5 of the MCDSA: (1) imposes record

keeping requirements consistent with federal law, id. § 5-306; (2) authorizes the

Department to inspect a registrant’s establishment, id. § 5-305; and (3) establishes the

statutory bases on which a registration may be suspended, revoked, or denied, id. § 5-307,

which are independent of any criminal prosecution or other proceeding under State law, id.

§ 5-308(c). “Proceedings to deny, revoke, or suspend a registration or renewal of a

registration” are “conducted in accordance with the Administrative Procedure Act.” Id. §

5-308(b). The Department has the authority to immediately suspend a registration

28
CR § 5-303 establishes specific registration requirements for manufacturers and
distributors of controlled dangerous substances included in the five schedules. A registrant
may distribute schedule II substances only in accordance with an order form issued by the
Department or an order form issued under federal law. Id. § 5-303(d). Prior to issuing a
registration, the Department “shall consider” whether: (1) the registrant maintains
“effective controls against diversion of particular controlled dangerous substances and any
Schedule I or Schedule II substances compounded from a controlled dangerous substance
into other than legitimate, medical, scientific, or industrial channels; (2) compliance with
applicable federal, State, and local law; (3) any convictions of the applicant under federal,
State, and local laws relating to the manufacture, distribution, or dispensing of controlled
dangerous substances; (4) the applicant’s experience in the manufacture and distribution
of controlled dangerous substances and the effectiveness of the applicant’s controls against
diversion; and (5) any other factor that is relevant to and consistent with public health and
safety.” Id. § 5-303(b).
24
“simultaneously with the institution of proceedings if the Department finds that an

imminent danger exists to public health or safety.” Id. § 5-308(d).

Consistent with the closed regulatory system established by its federal CSA

counterpart, the MCDSA similarly establishes a statutory scheme of criminal offenses for

when controlled dangerous substances are manufactured, distributed, or sold in a manner

other than that authorized by law. 29 Notably—and related to our nuisance law discussion
28F

below—the General Assembly has established one particular violation of the MCDSA as

the statutory crime of “keep[ing] a common nuisance.” Id. § 5-605(b). 30 29F

Subtitle 9 of Title 5 sets forth criminal and civil liability for registrants who fail to

abide by the statutory scheme, regulations, and the conditions of the registration. 31 The
30F

29
For example, the MCDSA makes it a crime to “possess or administer to another
a controlled dangerous substance, unless obtained directly or by prescription or order from
an authorized provider acting in the course of professional practice.” CR § 5-601(a)
(citation modified). It is also a crime to “distribute or dispense a controlled dangerous
substance” except as authorized by the Act. Id. § 5-602(a)(1).
30
CR § 5-605(b) prohibits a person from keeping a “common nuisance,” which is
defined in subsection (a) as a “dwelling, building, vehicle, vessel, aircraft, or other place:
(1) resorted to by individuals for the purpose of administering illegally controlled
dangerous substances; or (2) where controlled dangerous substances or controlled
paraphernalia are manufactured, distributed, dispensed, stored, or concealed illegally.” A
person who violates CR § 5-605 is guilty of a felony and on conviction is subject to
imprisonment not exceeding 5 years or a fine not exceeding $15,000 or both. Id. § 5-
607(a).
31
For example, it is a criminal offense for a registrant to “manufacture, distribute,
or dispense a controlled dangerous substance to another registrant or other authorized
person[]” “[u]nless authorized by the registrant’s registration[.]” CR § 5-902(b). It is also
a crime for an authorized provider to “prescribe, administer, manufacture, distribute,
dispense, or possess a controlled dangerous substance” “except” “in the course of regular
professional duties” and “in conformity with this title and the standards of the authorized
provider’s profession relating to controlled dangerous substances[.]” Id. § 5-902(c). Upon
25
statute also establishes additional crimes by registrants who distribute certain controlled

dangerous substances, including schedule II substances, in violation of other statutory

provisions of the MCDSA. Id. §§ 5-903, 5-904. 32 31F

C. The Maryland Prescription Drug Monitoring Program

To combat prescription drug abuse and diversion, all 50 states and the District of

Columbia have created state-level prescription drug monitoring programs—electronic

databases that gather information from pharmacies on dispensed prescriptions for

controlled substances. Maryland’s Prescription Drug Monitoring Program (“the Program”)

was established in 2011 to address issues of prescription drug abuse and diversion. 2011

Md. Laws, Ch. 166, codified at Md. Code (2023 Repl. Vol., 2025 Supp.), Health-General

Article (“HG”) Title 21, Subtitle 2A. 33
32F

a finding of a “knowing[] and intentional” violation of any provisions of Section 5-902,
the person is “guilty of a misdemeanor and on conviction is subject to imprisonment not
exceeding 2 years or a fine not exceeding $100,000 or both.” Id. § 5-903(e)(1). “In all
other cases, a person who violates this section is subject to a civil penalty not exceeding
$50,000.” Id. § 5-903(e)(2).
32
A registrant manufacturer or distributor who knowingly or intentionally
distributes a schedule II substance in violation of the scope of the registration authorized
under CR § 5-303(d) “is guilty of a misdemeanor and on conviction is subject to
imprisonment not exceeding 2 years or a fine not exceeding $100,000 or both.” Id. § 5-
904(b)(1); see also id. § 5-904(a). In all other cases, a person who violates § 5-904(a)(1)
is subject to a civil penalty not exceeding $50,000. Id. § 5-905(b)(2). A person who
willfully distributes a schedule II substance except in accordance with the order form
issued under the registration provisions of the statute is guilty of a felony and on
conviction is subject to imprisonment not exceeding 10 years or a fine not exceeding
$100,000 or both. Id. § 5-904(a)(2), (b)(3).
33
The General Assembly enacted Maryland’s Prescription Drug Monitoring
Program (“the Program”) in response to the “growing problem” of prescription drug abuse
in Maryland and across the country. See Fiscal & Pol’y Note, S.B. 883 (Ch. 166, 2011) at
26
“To carry out its mission,” 34 the Program monitors the prescribing and dispensing
3 F

of all five schedules of controlled dangerous substances. HG § 21-2A-02(c). The Program

is administered by the Secretary of the Department of Health, in consultation with a

statutorily created 20-member Advisory Board, 35 and is required to adopt regulations to
34F

16. Since its enactment in 2011, the General Assembly has made modifications to the
Program as it has been rolled out. See 2013 Md. Laws, Ch. 177; 2014 Md. Laws, Ch. 92;
2015 Md. Laws, Ch. 381; 2016 Md. Laws, Ch. 147; 2017 Md. Laws, Ch. 40; 2019 Md.
Laws, Ch. 364; 2020 Md. Laws, Ch. 290.
34
The express “mission of the Program” is to: “(1) [a]ssist prescribers, pharmacists,
and public health professionals in: (i) [t]he identification and prevention of prescription
drug abuse; and (ii) [t]he identification and investigation of unlawful prescription drug
diversion; and (2) [p]romote a balanced use of prescription monitoring data to assist
appropriate law enforcement activities while preserving the professional practice of health
care providers and the access of patients to optimal pharmaceutical care.” HG § 21-2A-
02(b).
35
The Advisory Board is comprised of the following members: (1) the Secretary of
the Department of Health, or the Secretary’s designee; (2) the President of the State Board
of Pharmacy, or the President’s designee; (3) the Chair of the State Board of Physicians,
or the Chair’s designee; (4) the President of the State Board of Nursing, or the President’s
designee; (5) the President of the State Board of Dental Examiners, or the President’s
designee; (6) the President of the State Board of Podiatric Medical Examiners, or the
President’s designee; (7) the Chair of the Maryland Health Care Commission, or the
Chair’s designee; (8) four physicians and one nurse practitioner with expertise in clinical
treatment using controlled dangerous substances, including pain management, substance
abuse, and behavioral disorders; (9) one pediatrician; (10) three pharmacists who represent
the perspective of independent and chain pharmacies; (11) a local law enforcement official;
(12) the Secretary of State Police, or the Secretary’s designee; (13) the President of the
Maryland Association of County Health Officers, or the President’s designee; (14) an
academic or research professional; and (15) two Maryland residents who represent the
perspective of patients, appointed by the Secretary. HG § 21-2A-05(b).

The Board’s duties include making recommendations related to the design and
implementation of the Program, including regulations, legislation, and sources of funding,
including grant funding, and other sources of federal, state, or private funds. HG § 21-2A-
05(f)(2). The Board is also required to submit an annual report to the Governor and General
Assembly that includes: (1) the number of prescribers and pharmacists registered with and
27
carry out the Program. HG § 21-2A-04. All prescribers and pharmacists are required to

be registered with the Program, after completing training and instruction. Id. § 21-2A-

04.01.

Subject to certain statutory exceptions, 36 a prescriber is required to request and
35F

assess at least the prior four months of prescription monitoring data 37 for a patient before
36F

initiating a course of treatment that includes prescribing or dispensing an opioid. Id. § 21-

2A-04.2(a)(1)(i), (iii). 38 If a pharmacist has a reasonable belief that a patient may be
37F

using the Program; (2) the number of disclosures made to federal law enforcement agencies
or State or local law enforcement agencies; (3) an analysis of the impact of the Program on
patient access to pharmaceutical care and on curbing prescription drug diversion in the
State; (4) the number of providers who received outreach and education from the Program;
and (5) any recommendations related to modification or continuation of the Program. Id.
§ 21-2A-05(3).

HG § 21-2A-04.2(b) sets forth certain statutory exceptions from the prescriber’s
36

requirement to obtain prescription monitoring data before prescribing an opioid. These
exceptions include, among other things, amounts indicated for a period not to exceed three
days, or circumstances in which a patient is receiving treatment in an inpatient unit at a
hospital, hospice care, or is suffering from a terminal illness, or to treat or prevent acute
pain for a period of not more than 14 days following a surgical procedure, fracture,
significant trauma, or childbirth. Id.

“‘Prescription monitoring data’ means the information submitted to the Program
37

for a monitored prescription drug.” HG § 21-2A-01(p).

If a patient’s course of treatment requires prescribing or dispensing an opioid for
38

more than 90 days, the prescriber must request the monitoring data at least every 90 days
until the course of treatment has been completed, and to assess it before deciding whether
to continue prescribing the medication. HG § 21-2A-04.2(a)(1)(ii).

In addition to the prescriber’s statutory requirements under Maryland’s Prescription
Drug Monitoring Program, the General Assembly has enacted statutory requirements for
health care providers who prescribe opioids that are intended to prevent and address
prescription opioid misuse. For example, subject to certain statutory exceptions, when
treating pain, “a health care provider, based on” his or her “clinical judgment” is required
28
seeking a monitored prescription for any purpose other than the treatment of an existing

medical condition, the pharmacist is also required to “request prescription monitoring data

to determine if the patient has received other prescriptions that indicate misuse, abuse, or

diversion of a monitored prescription drug[.]” Id. § 21-2A-04.2(e)(1).

Each dispenser is required to submit, by electronic means, prescription monitoring

data to the Program at least once every 24 hours. COMAR 10.47.07.03.B. For each

monitored prescription drug, the dispenser is required to report data required by the

American Society for Automation in Pharmacy standards, in addition to other required

information, including the prescription number, the date the prescription was issued, the

date the prescription was filled, whether the prescription was new or a refill, the metric

quantity of drugs dispensed and units, the number of days’ supply of the drug dispensed,

the patient’s identifying information, and certain identifying information related to the

prescriber, including the prescriber’s DEA registration number. Id. 10.47.07.03.A.

Prescription monitoring data collected by the Program is privileged and confidential

and may not be disclosed to any person except as specifically authorized by law. HG § 21-

2A-06(a). However, the Program is required to disclose prescription monitoring data, in

accordance with regulations promulgated by the Secretary, to certain individuals and

to prescribe the “lowest effective dose of an opioid” and at “[a] quantity that is no greater
than the quantity needed for the expected duration of pain severe enough to require an
opioid that is a controlled dangerous substance[.]” HO § 1-223(b). When a health care
provider prescribes an opioid for pain under subsection (b), he or she is required to advise
the patient of the benefits and risks associated with the opioid. Id. § 1-223(d). A violation
of these subsections is “grounds for disciplinary action by the health occupations board
that regulates the health care provider who commits the violation.” Id. § 1-223(e).

29
agencies, including the patient, prescribers, dispensers, authorized licensed health care

practitioners, federal, state, and local law enforcement agencies for purposes of individual

investigations, licensing entities, and authorized administrators of another state

prescription drug monitoring program. HG § 21-2A-06(b); COMAR 10.47.07.05.

The Program is required to (1) review prescription monitoring data for possible

indications of misuse or abuse of monitored prescription drugs, (2) report the possible

misuse or abuse, and (3) provide education to the prescriber or dispenser. HG § 21-2A-

06(c)(1). If the Program’s review indicates a possible violation of law or possible breach

of professional standards, the statute creates a process for addressing the possible violation

or breach, starting with outreach and education. Id. § 21-2A-06(c)(2). If the Program

determines that such efforts are inadequate, it may refer the matter to the Office of

Controlled Substances Administration—an office created by statute within the Department

of Health. Id. § 21-2A-06(d)(4).

In connection with any investigation into any potential violation of the law or breach

of the professional standard, the Program is also required to obtain clinical guidance and

interpretation of the prescription monitoring data from a statutorily created technical

advisory committee. Id. §§ 21-2A-07, 21-2A-06(3). 39 3 F If the Office of Controlled

39
The purposes of the technical advisory committee are to: (1) review requests for
information from the Program made under various statutory provisions of the Program, and
(2) provide clinical guidance and interpretation to the Program regarding indications of
possible misuse or abuse of a monitored prescription drug or a possible breach of the
prescriber or dispenser’s professional standards. HG § 21-2A-07(b). The committee
consists of members appointed by the Secretary of the Department of Health, including:
(1) a board certified anesthesiologist; (2) a certified addiction medicine specialist; (3) a
pharmacist licensed and practicing in the State; (4) a medical professional licensed and
30
Dangerous Substances, in consultation with the technical advisory committee, and after

notice to the prescriber or dispenser, determines that there has been a violation of the law

or breach of professional standards, the office is required to “take any action authorized by

law regarding the violation or breach, including providing the prescription monitoring data

and records to the appropriate licensing entity for possible disciplinary action.” Id. § 21-

2A-06(d)(4)(ii)(2). The Program establishes civil and criminal penalties for violating its

provisions. 40
39F

As we noted at the outset, the action that is the subject of the certification order does

not involve a proceeding authorized by one of the many statutes discussed above. Instead,

it is brought by a county under Maryland’s common law of public nuisance. In answering

practicing in the State, who is treating cancer patients; (5) a board certified physician
specializing in the treatment of patients with pain, who is licensed and practicing in the
State; (6) two medical professionals, licensed and practicing in the State with expertise or
experience in providing care for patients with substance-related or mental health disorders;
(7) a dentist licensed and practicing in the State; and (8) a medical professional licensed
and practicing in the State in the field of internal medicine or family practice. Id. § 21-2A-
07(c).
40
“A dispenser who knowingly fails to submit prescription monitoring data” to the
Program “as required under the subtitle shall be subject to a civil penalty not exceeding
$500 for each failure to submit required information.” HG § 21-2A-09(a). A person who
knowingly discloses, uses, obtains, or attempts to obtain by fraud or deceit, prescription
monitoring data in violation of the subtitle is guilty of a misdemeanor and on conviction is
subject to imprisonment not exceeding one year or a fine not exceeding $10,000 or both.
Id. § 21-2A-09(b)(1). In addition to the penalties provided under paragraph 1 of subsection
b, a prescriber, pharmacist, or their delegate who knowingly discloses or uses prescription
monitoring data in violation of the subtitle is subject to disciplinary action by the
appropriate licensing entity. Id. § 21-2A-09(b)(2). A prescriber or pharmacist who violates
the registration requirements under § 21-2A-04.1 or the prescription monitoring
requirements under § 21-2A-04.2 is also subject to disciplinary action by the appropriate
licensing entity. Id. § 21-2A-09(b)(3).
31
the certified question, it is instructive to discuss: (1) the English common law of nuisance,

and the doctrine’s adoption generally in the United States; (2) Maryland cases involving

public nuisance and private nuisance, and the differences between the two types of actions;

and (3) the General Assembly’s codification of particular nuisance statutes, as well as

comprehensive statutory schemes that address conduct that would have been considered

public nuisances under common law.

IV

Nuisance Law

It is an understatement to say that public nuisance is difficult to define. As one

learned treatise notes, “there is perhaps no more impenetrable jungle in the entire law than

that which surrounds the word ‘nuisance.’ It has meant all things to all people, and has

been applied indiscriminately to everything from an alarming advertisement to a cockroach

baked into a pie. There is general agreement that it is incapable of any exact or

comprehensive definition.” W. Page Keeton, Prosser & Keeton on Torts § 86 (5th ed.

1984) (footnotes omitted); see also City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d

1099, 1110 (Ill. 2004) (citation modified) (“Because the concept ‘eludes precise

definition,’ public nuisance has been ‘negatively defined’ by distinguishing it from other

tort actions, such as trespass.”).

32
As discussed below, the elusive nature of public nuisance has its roots in English

common law. Although its evolution is complex and sometimes murky, we briefly

examine its history, outlining only its general contours. 41
40F

A. Public Nuisance Origins in English Common Law

Nuisance cases can be traced to the last half of the twelfth century. Donald G.

Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. Cin. L. Rev. 741, 790–

91 (2003). The earliest cases involved what would be considered a private nuisance

today. Id. at 792. A landowner was able to seek a remedy (either abatement or damages)

in royal courts where conduct occurring on the property of an adjoining landowner

interfered with the landowner’s possession of his land. Id. By way of example, such

cases included “those seeking compensation for the flooding of plaintiff’s land because

the defendant had failed to repair his sea walls, and actions for failure to repair roads,

bridges, and fences.” Id. at 796.

By the fourteenth century, the common law recognized a private individual’s right

to bring an action for “special damages” upon proving a public nuisance where the

landowner could establish a special injury or damages greater than the injury suffered by

the public as a whole. Id. at 799–800. Notably, although a private individual could recover

damages for special injuries arising from a public nuisance, “there is no historical

41
For a comprehensive discussion of the history and evolution of the common law
of public nuisance in England, see Donald G. Gifford, Public Nuisance as a Mass Products
Liability Tort, 71 U. Cin. L. Rev. 741 (2003).
33
evidence” that the Crown “was ever able to sue for damages to the general public resulting

from a public nuisance.” Id. at 782.

By contrast, public or common nuisance 42 cases were handled by local criminal
41F

courts. Id. at 795. The King’s Bench, which supervised the jurisdiction of the local

criminal courts in the seventeenth century, required that an indictment of any person

prosecuted in these courts for public nuisance state that the alleged conduct of the

defendant was harming the public at large. Id. The paradigmatic public nuisance case

involved the blocking of a public road or navigable waterway. Thomas W. Merrill, Is

Public Nuisance a Tort?, 4 J. Tort L. 1, 9 (2011). 43 “The right to use a road or navigable
42F

stream” was “understood to be a public right, in the sense of a privilege enjoyed by all

members of the community.” Id. A blockage, therefore, was considered to be an injury

common to the general public. Id. at 9–10. The available remedies for public nuisances

42
William Sheppard, a seventeenth-century treatise writer, described “common
nuisances” that were subject to abatement and criminal prosecution, to include:

matters affecting public highways and waterways; polluting the air with
houses of office, laying of garbage, carrion or the like, if it be near the
common high way, victuallers, butchers, bakers, cooks, brewers, malsters
and apothecaries who sell products unfit for human consumption; running
lewd ale-houses; and subdividing houses in good neighbourhoods that
become hurtful to the place by overpestring it with poor.

Gifford, supra, at 795 (citation modified).
43
With the exception of footnotes 45 and 47, all references to Professor Merrill’s
work are to the article entitled Is Public Nuisance a Tort?, 4 J. Tort L. 1 (2011).
34
were limited to abatement and criminal prosecution. Gifford, supra, at 795. “Actions for

damages were not available in such cases.” Id. at 796. 44 43F

By the seventeenth century, Parliament began passing laws establishing the variety

of conduct that the courts could consider to be a public nuisance—“thus beginning a pattern

of legislative bodies declaring certain activities to be public nuisances that continues to this

day.” Id. at 798. The “disparate origins of public nuisance were brought together” by a

treatise writer, William Hawkins, in his 1716 publication of Pleas of the Crown, “the first

comprehensive treatment of English criminal law that sought to provide definitions of each

offense and categorize the crimes.” Id. Indeed, scholars have characterized Hawkins’s

impact on the law of public nuisance as “profound”:

As might be expected, Hawkins had problems fitting everything into his tidy
scheme, and ended up with an annoying pile of bits and pieces left over.
These he seems to have dealt with by taking the vague heading “common
nuisance,” using it as a residual category, and stuffing into it all the things
that he could fit in nowhere else. Having done so, he fashioned a definition
of the concept broad enough to cover everything he had grouped within it …
The definition of common nuisance which he fabricated to cover all this is
“an offence against the publick, either doing a thing which tends to the
annoyance of all the King’s subjects, or by neglecting to do a thing which the
common good requires.”

Id. (quoting J. R. Spencer, Public Nuisance—A Critical Examination, 48 Cambridge L.J.

55, 65–66 (1989)). Hawkins’s “‘definition’ is the basis of the definition for a single offence

of public nuisance which appears in almost every book on tort or criminal law today.” Id.

at 799 (quoting Spencer, supra, at 66); see also W. Prosser, Private Action for Public

44
“In addition to these ‘public nuisances’ handled by the local criminal courts, the
King’s Bench had residual power to criminally prosecute any misconduct that threatened
the public good.” Gifford, supra, at 795.
35
Nuisance, 52 Va. L. Rev. 997, 1000 (1966) (explaining that “the crime [of public nuisance]

comprehends a very miscellaneous and diversified group of petty offenses, all based on

some interference with the interests of the community, or disruption of the comfort or

convenience of the general public”). 45
44F

B. Public Nuisance Laws in America

1. Early Application of the Common Law

The English law of public nuisance “was adopted without significant change in colonial

America” and, thereafter, in the United States. Gifford, supra, at 800. Early public nuisance

cases generally fell into two categories: obstruction of either public highways or navigable

waterways. Id. “Less common were a loose amalgamation of minor offenses involving public

45
Blackstone’s definition of “public nuisance” has been similarly described as a
“hodge-podge of activities or conditions[,]” in which he conjures up a general description
of this catalogue of ills, which he characterized as “‘the doing of a thing to the annoyance
of all the king’s subjects, or neglecting to do a thing which the common good requires.’”
Thomas W. Merrill, Public Nuisance as Risk Regulation, 17 J. L. Econ. & Pol’y 347, 357–
58 (2022) (quoting 4 William Blackstone, Commentaries on the Laws of England 166–69
(1769)). Blackstone identifies the following activities or conditions as constituting a public
nuisance:

(1) Obstructing a public way;
(2) Engaging in conduct that constitutes a private nuisance to multiple
persons;
(3) Operating a disorderly establishment, such as a brothel or a gambling
house;
(4) Running a lottery;
(5) Storing large quantities of explosives, as well as making, selling, or
setting-off fireworks;
(6) Eavesdropping and publicly quarrelsome behavior.

4 William Blackstone, Commentaries on the Laws of England 166–69 (1769).

36
morals or the public welfare that were classified as either public nuisances or common

nuisances, including lotteries, other forms of gambling and wagering, keeping a disorderly

house or tavern, enabling prostitution, and using profane language.” Id. at 800–01. Public

nuisance cases were brought as criminal prosecutions or actions by private individuals seeking

compensation for special damages. Id.; see also Merrill, supra, at 11. Cases often blurred the

lines between private nuisance and public nuisance. Gifford, supra, at 801.

Starting in the 1840s, the rise of industrialization broadened the scope of public

nuisance claims alleging new types of injuries, like “water pollution and air pollution

resulting from industrial enterprises.” Id. at 802. As Professor Gifford observes,

“[g]enerally, the rationale for extending a common nuisance cause of action to these new

fact patterns was not discussed.” Id. “Presumably, the justification for extending public

nuisance to these fact patterns lay either in the long tradition of finding noxious trades to

be public or common nuisances or in the fact that often the ‘unpleasant and unwholesome

vapors’ resulted from the spoiling of water.” Id.

With the American industrial transformation—which typically preceded

government regulation—state legislatures often utilized public nuisance statutes as a

“stopgap measure,” which gave states the ability to terminate unwanted conduct, “either

through criminal prosecutions or, more directly, through abatement actions.” Id. at 804.

Two different types of public nuisance statutes emerged: (1) statutes generally giving the

“power to prosecute or abate conduct described in broad terms as constituting a public

nuisance” and (2) statutes—often enacted in tandem with the first category of statutes—

37
declaring “a set of specific offenses to constitute public nuisances through a series of

specific statutes.” Id.

Professor Gifford observes that “[t]he onset of the Progressive Era and the New Deal

saw a substantial reduction in both governmental actions for public nuisance, whether criminal

prosecutions or suits seeking injunctive relief against public nuisance[s].” Id. at 805. 46 “A
45F

principal reason” for the decline, Professor Gifford posits, “was that the development of

comprehensive statutory and regulatory schemes that substituted other means of regulation for

many former targets of public nuisance prosecutions.” Id. at 805–06. 47
46F

Until the 1970s, public nuisance actions were understood to be criminal

prosecutions or government enforcement actions to abate a public nuisance. Id. at 745–46;

see also Merrill, supra, at 5 (explaining that “before the publication of the Restatement

(Second) of Torts, public nuisance, even when brought as a civil action, was universally

understood to be based on the defendant’s maintenance of a condition that was also a

crime”). A public nuisance action was not considered to be a civil tort. Merrill, supra, at

46
According to Professor Gifford, “a Lexis search for written opinions for public
nuisance from Jan. 1, 1930 to Dec. 31, 1969, suggests that the number of criminal
prosecutions for public nuisance was reduced by at least fifty percent compared with the
previous thirty year period.” Gifford, supra, at 805 n.331 (citation modified).
47
For example, the Rivers and Harbors Act of 1890 promulgated by Congress
prohibited unauthorized obstructions in navigable waters. Merrill, Public Nuisance as Risk
Regulation, supra, at 362–63. Other statutes, such as the Food and Drug Act and the Meat
Inspection Act of 1906, were enacted to regulate unadulterated or mislabeled food and drug
products—areas in which public nuisance had been used to address harms to public
welfare. Id. at 363. Over time, “the legislation established a significant regulatory
agency”—the Food and Drug Administration (“FDA”)—“with extensive powers to
prevent a variety of threats to public health from consumable products.” Id.
38
5. The marked absence of public nuisance from American tort law is perhaps best reflected

by its exclusion from the First Restatement of Torts. Id. at 20. Notably, when the treatise

was approved, it included a chapter on private nuisance but made no mention of public

nuisance. Id.; see generally Restatement (First) of Torts (1939). “The ‘Introduction’ to

the private nuisance chapter explained that public nuisance was not included because

public nuisance is ‘an offense against the State,’ unlike private nuisance, which is a tort.”

Merrill, supra, at 20. 48 Public nuisance underwent a seismic shift within the American
47F

Law Institute with the adoption of the Second Restatement of Torts.

2. The Second Restatement—The Adoption of a New Definition of Public
Nuisance

a. The Rejection of Prosser’s Definition

When the American Law Institute decided to revise the Restatement of Torts, it

appointed William L. Prosser, Professor of Law at Berkeley, as the Reporter. Id. 49 When
48F

48
The Introduction explained:

A public nuisance is an offense against the State, and as such is subject to
abatement or indictment on the motion of the proper governmental agency.
A private nuisance is a tort to a private person, and actionable by him as such.

Restatement (First) of Torts, Scope and Introductory Note to Ch. 40 (1939).

The Introduction’s description of public nuisance was consistent with the
contemporary view expressed by scholars prior to the adoption of the Second Restatement.
See Merrill, supra, at 11 (citing J. A. Jolowicz & T. Ellis Lewis, Winfield on Tort 392 (7th
ed. 1963) and John Salmond, The Law of Torts 83 (14th ed. 1965)); see also William L.
Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997 (1966) (stating that public
nuisance is “always a crime”).
49
At the time, Prosser was regarded not only as the “foremost expert” on torts, but
also “practically the only living expert on public nuisance[.]” Merrill, supra, at 20. Prosser
39
Prosser submitted his proposed draft of public nuisance for the Second Restatement, it

contained a significant limitation—conduct considered to be a public nuisance had to be a

crime. Id. at 23–24. 50 In connection with his submission, Prosser included an explanatory
49F

note in which he cited “eight English and American commentaries and nine American

judicial decisions (which Prosser said were representative of many more), all of which

equated public nuisance with criminal liability.” Id. at 24. “Prosser added that he had

failed to ‘uncover a single case in which it was held that there was a public nuisance

although there was not a crime[,]’ although he added that there was one case in which the

criminal character of the conduct was not mentioned and another case where the defendant,

a municipal corporation, was immune from criminal prosecution.” Id. (citing Restatement

(Second) of Torts (Am. L. Inst., Tentative Draft No. 15, 1969)).

Prosser’s draft was met with opposition by some members of the Institute. Merrill,

supra, at 24; Gifford, supra, at 806. The public nuisance discussion at the Institute was

occurring at a time in this country when the environmental movement was gaining

traction. 51 Merrill, supra, at 24. Some members of the Institute were concerned that
50F

equating public nuisance with criminal liability would restrict its use in emerging

had written two articles on nuisance law. See William L. Prosser, Nuisance Without Fault,
20 Tex. L. Rev. 399 (1942); William L. Prosser, Private Action for Public Nuisance, supra.
50
Section 821B of Prosser’s proposed draft provided: “A public nuisance is a
criminal interference with a right common to all members of the public.” Restatement
(Second) of Torts § 821B (Am. L. Inst., Tentative Draft No. 15, 1969).
51
Notably, the 1970 American Law Institute’s plenary session occurred
immediately after the first “Earth Day” on April 22, 1970. Merrill, supra, at 24.
40
environmental cases. Id. at 24–25; Gifford, supra, at 806–07. As Professor Merrill

describes, “[a]fter a heated debate, in which Prosser’s defense of the draft as a faithful

restatement of the weight of authority was parried by earnest calls to go on record in support

of the emergent environmental movement, a motion was passed recommitting the

provisions on public nuisance to the Reporter for further consideration.” Merrill, supra, at

25 (citing Presentation of Restatement of Law (Second) of Torts (Am. L. Inst., Tentative

Draft No. 16, 1969)); see also Gifford, supra, at 807. 52 Prosser was “distraught” by the
51F

plenary session’s rejection of his draft on public nuisance, and subsequently submitted his

resignation as Reporter. Merrill, supra, at 25; Gifford, supra, at 807 n.342.

Prosser was replaced as the Reporter by John C. Wade, Dean of Vanderbilt Law

School. Merrill, supra, at 25. Wade redrafted the definition of public nuisance and

substituted the word “unreasonable” for the word “criminal.” Id. at 26. The new definition

of “public nuisance” thus read: “A public nuisance is an unreasonable interference with a

right common to all members of the public.” Id. (citing Restatement (Second) of Torts

(Am. L. Inst., Tentative Draft No. 17, 1971)). The new definition was adopted in 1972.

Id. With the substitution of a single word, the definition of “public nuisance” underwent a

drastic expansion in the Second Restatement.

b. The Expanded “Public Nuisance” Definition

The expanded definition of public nuisance was adopted by the American Law

Institute in 1972 and was published in the Second Restatement in 1979. It provides:

52
The vote to recommit was 85 to 51. Merrill, supra, at 25 n.95 (citing Presentation
of Restatement of Law (Second) of Torts (Am. L. Inst., Tentative Draft No. 16, (1969))).
41
(1) A public nuisance is an unreasonable interference with a right
common to the general public.

(2) Circumstances that may sustain a holding that an interference with a
public right is unreasonable include the following:

(a) Whether the conduct involves a significant interference with the
public health, the public safety, the public peace, the public comfort or
the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or
administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a
permanent or long-lasting effect, and, as the actor knows or has reason to
know, has a significant effect upon the public right.

Restatement (Second) of Torts § 821B (1979).

Subsection (1) defines public nuisance as “an unreasonable interference with a right

common to the general public.” The only terms of limitation within this definition are that:

(1) a defendant’s conduct must interfere with a right “common to the general public[,]” and

(2) such interference must be “unreasonable.” Section 821B then goes on to define three

factors to be used in guiding courts as to the meaning of “unreasonable.” As Professor

Gifford aptly observes, factors (a) and (c) “are articulated in very amorphous, open-ended

language.” Gifford, supra, at 809.

Section 821C of the Second Restatement, titled “Who Can Recover for Public

Nuisance[,]” establishes the circumstances under which a private individual may recover

damages for a public nuisance. Specifically, for a private individual to seek damages

arising from a public nuisance, that individual “must have suffered harm of a kind different

from that suffered by other members of the public exercising the right common to the

42
general public that was the subject of the interference.” 53 Id. at 808 (citing the Second
52F

Restatement). The Second Restatement mentions damages only in the context of a private

individual action pursuant to the special injury exception—there is nothing in the Second

Restatement about public officials recovering damages for a harm to the public generally.

We will return to our discussion of the nuisance sections outlined in the Second

Restatement when we address the County’s argument that this Court has adopted the

expansive public nuisance definition described in Section 821B and that the County’s

public nuisance claim asserted here is consistent with Maryland’s common law. But first,

we discuss nuisance law in Maryland.

C. Maryland’s Common Law of Nuisance

Like English common law, nuisances in Maryland “are classified as public and

private.” Adams v. Comm’rs of Trappe, 204 Md. 165, 170 (1954). We have described

53
Section 821C of the Second Restatement, titled “Who Can Recover for Public
Nuisance[,]” states:

(1) In order to recover damages in an individual action for a public nuisance,
one must have suffered harm of a kind different from that suffered by
other members of the public exercising the right common to the general
public that was the subject of interference.

(2) In order to maintain a proceeding to enjoin to abate a public nuisance, one
must
(a) have the right to recover damages, as indicated in Subsection (1), or
(b) have authority as a public official or public agency to represent the
state or a political subdivision in the matter, or
(c) have standing to sue as a representative of the general public, as a
citizen in a citizen’s action or as a member of a class in a class action.

Restatement (Second) of Torts § 821C (1979).
43
“public nuisance” as “an injury to the public at large or to all persons who come into contact

with it[,]” whereas a “private nuisance is an injury to an individual or a limited number of

individuals only.” Id. Nuisances are also classified as “nuisances per se” and “nuisances

in fact.” Id. (citation modified). A nuisance per se “is an act, occupation, or structure

which is a nuisance at all times and under any circumstances regardless of location or

surroundings.” Id. A classic example of a nuisance per se is an unlawful encroachment in

a public street. Id. at 172. A nuisance in fact is not a nuisance per se, but is an act,

occupation, or structure that becomes a nuisance “by reason of the circumstances, location,

or surroundings.” Id. at 170.

A survey of our case law reveals that, to date, we have adhered to the traditional

principles of both public and private nuisance and have not expanded either action beyond

parameters established by the common law. We discuss both public nuisance actions and

private nuisance claims because conduct that may be considered a public nuisance can give

rise to a private nuisance claim, and our case law often discusses public and private

nuisance concepts together. Additionally, given that the General Assembly has the right

to codify and modify the common law—and has done so with respect to an array of conduct

that would be considered a nuisance at common law—we also touch upon various

legislative enactments that enable the State and its agencies as well as local governments

to vindicate public rights arising from statutorily defined public nuisances.

1. Cases Involving Government Action to Enjoin Nuisances Per Se

Maryland has long recognized the paradigmatic common law public nuisance action

involving obstructions to public streets, highways, and navigable waters. See, e.g., Caine

44
v. Cantrell, 279 Md. 392, 399 (1977) (affirming orders to abate public nuisances requiring

the removal of structures encroaching into a public street and beyond the mean high-water

line, “title to which is vested in the State of Maryland, and held for the benefit of the

inhabitants of the State”); Liller v. State Highway Admin., 25 Md. App. 276 (1975)

(affirming the circuit court’s entry of an injunction in a case brought by the State Highway

Administration to abate a public nuisance arising from a stockpile of excavated waste

material located on private property that caused a landslide onto a public highway, and to

require the removal of the pile to avoid future encroachments); Maxa v. Comm’rs of

Harford County, 158 Md. 229 (1930) (affirming a decree of the court of equity granting

the county’s request for an injunction preventing the arbitrary and constant encroachment

upon a public landing by three residents in the community, which constituted a public

nuisance); Arnsperger v. Crawford, 101 Md. 247, 258 (1905) (observing that “[t]he

obstruction of the King’s highways always constituted a public nuisance and was therefore

indictable by common law”); Phila., Wilmington & Balt. R.R. Co. v. State, 20 Md. 157,

161–64 (1863) (affirming a judgment in favor of the State upon an indictment charging the

railroad company with erecting and maintaining a nuisance upon a public highway where

the width of a bridge was too narrow and impeded the passenger’s transportation or

passage).

In Adams v. Commissioners of Trappe, 204 Md. 165 (1954), this Court discussed

the common law public nuisance principles applicable to obstructions of public roads,

which we determined to be a nuisance per se. In that case, we affirmed a circuit court’s

abatement order in an action filed by the town commissioners against a property owner

45
who had constructed a gas pump in a public sidewalk adjacent to a public street in a manner

that obstructed motorists’ vision and placed a gasoline storage tank under the surface of a

street, all in violation of the town code. Id. at 170.

In affirming the lower court’s determination that the encroachments constituted a

public nuisance, we described the distinction between a private and public nuisance,

explaining that a “public nuisance is an injury to the public at large or to all persons who

come into contact with it[,]” whereas a “private nuisance is an injury to an individual or a

limited number of individuals only.” Id. We cited to English common law in which courts

had equitable jurisdiction to prohibit “purprestures on public property”—which translated

in modern parlance to “encroachment[s] upon public rights and easements, such as

highways, streets, public squares, bridges and other public accommodations.” Id. We

explained that “the right of the public to use the streets” is “absolute and paramount,” and

accordingly, “they must be kept free from all nuisances, obstructions and encroachments

which destroy or materially impair their use as public highways.” Id. at 171.

In Whitaker v. Prince George’s County, 307 Md. 368, 372 (1986), the county

sought, and was awarded, a permanent injunction enjoining property owners from

operating a prostitution business that the county described as “a blatant house of ill repute,

a bawdyhouse” and that constituted “a nuisance per se.” Thereafter, the county filed a

motion for contempt, alleging that the property owners were continuing to operate the

prostitution business in violation of the injunction. Id. at 373. The circuit court found the

property owners to be in willful contempt of the court for continuing to operate a

bawdyhouse contrary to the court’s order. Id. The property owners were ordered to post

46
bonds guaranteeing that they would not engage in prostitution. Id. The property owners

appealed. Id. at 374.

This Court was asked to consider whether the county could maintain an equitable

action to abate or enjoin the existence and maintenance of a prostitution business. Id. at

377. The property owners argued that, because the keeping of a bawdyhouse or disorderly

house generally constituted a criminal offense, the county therefore had an adequate

remedy at law through the enforcement of criminal laws, and thus, the property owners

asserted that the county could not bring an equitable action seeking injunctive relief. Id.

We rejected the property owners’ argument, explaining that where “the enforcement of the

criminal law is merely incidental to the general relief sought” and the conduct in question

“constitute[s] a nuisance or a danger to the public health and public welfare and a more

complete remedy is afforded by injunction than by a criminal prosecution, a court of equity

may, on the request of the duly constituted authority, grant the relief sought by injunction.”

Id. at 377–78. Citing to Hamilton v. Whitridge, 11 Md. 128 (1857)—a private nuisance

case in which this Court upheld an injunction awarded to a landowner that prohibited the

neighbor from operating a bawdyhouse—this Court upheld the injunction, stating that “we

believe that the operation of a bawdyhouse constitutes a public nuisance whereby equity

jurisdiction would lie to afford a more complete remedy than is obtainable by law.” Id. at

379.

Cases involving government entities seeking to abate nuisances arising under the

common law are few and far between. In the last 70 years or so, Whitaker and

Commissioners of Trappe appear to be the only cases decided by this Court involving a

47
governmental entity seeking to abate a common law public nuisance in a civil enforcement

action as opposed to a private nuisance action brought by an individual or individuals

asserting a special injury arising from a nuisance. 54
53F

2. Private Nuisance Cases

The most common type of nuisance cases in our jurisprudence involves private

nuisances—civil suits filed by a private property owner or group of property owners seeking

to enjoin conduct occurring on an adjoining or nearby property that substantially interferes

with the use and enjoyment of their properties. These cases often involve conduct that

would have been considered a public or common nuisance under the common law but are

54
Although Whitaker and Commissioners of Trappe involved civil enforcement
actions under the common law, we discussed some limitations applicable to a statutory
nuisance in Becker v. State, 363 Md. 77 (2001). In that case, this Court was asked to
determine whether, in connection with a statutory nuisance action for abatement arising
from a property’s use for illegal drug activity, the District Court of Maryland had the
authority to order that a two-story structure be destroyed. Id. at 80. In holding that there
was no such authority, we pointed out that “[n]uisance abatement statutes have their roots
in common law public nuisance abatement principles.” Id. at 87. We also explained that
“[a]n action to enjoin a nuisance is an equitable one[,]” and that “[w]hile courts may have
considerable latitude in fashioning injunctive orders to abate nuisances, there are well-
established limitations upon this latitude.” Id. at 87–88. “One general limiting principle[,]”
we observed, “is that an injunction abating a nuisance ‘should go no further than is
absolutely necessary to protect the rights of parties seeking such injunction.’” Id. at 88
(quoting Singer v. James, 130 Md. 382, 387 (1917)). Particularly given the constitutional
prohibition against taking private property without compensation, we noted that we have
consistently held that “destruction of property to abate a nuisance is a drastic remedy and
may not be resorted to where the property constitutes a nuisance because of its use. If a
building is a nuisance, in and of itself,” i.e., because of its dangerous or unsafe condition,
“it may be demolished for the purpose of abating the nuisance.” Id. at 88–89. Applying
the doctrine of constitutional avoidance, we concluded that the statute in question did not
authorize the court to order that a structure used in connection with the illegal activity be
destroyed. Id. at 92–93.

48
filed by a private property owner seeking either an order for abatement or damages because

the conduct in question interferes with his or her use and enjoyment of private property. For

example, a livestock feed lot or refinery may produce pests or odors over such a wide area

that it affects the rights of the public, but at the same time, nearby private landowners may

suffer an extraordinary interference with the use and enjoyment of their own land by virtue

of their proximity to the nuisance. Wietzke v. Chesapeake Conf. Ass’n, 421 Md. 355, 374

(2011). Although these cases involve private nuisance claims, our case law often describes

the property owner’s claim simply as one to abate a “nuisance,” and our discussion often

describes both actions. See, e.g., Tadjer v. Montgomery County, 300 Md. 539, 551–54

(1984) (discussing both public and private nuisance principles in connection with third-

party claims for indemnification and damages against a county arising from an explosion

caused by a landfill operation); Wietzke, 421 Md. at 373–74 (arising in the context of a

private nuisance case and discussing both public and private nuisance and explaining some

of the differences between the two actions); Bishop Processing Co. v. Davis, 213 Md. 465,

472 (1957) (stating that “a nuisance may be either private or public in character, and when

it is both, it is termed mixed” (citing 66 C.J.S., Nuisances, § 2)).

Despite the fact that these are private suits alleging injury to the use and enjoyment

of real property—in contrast to a criminal or civil enforcement action filed by the state or

local government asserting that a public nuisance is interfering with a public right—they

are instructive in contrasting the differences between the two actions, particularly given

that the parties in the case at bar have cited many of them to support their respective

positions.

49
“A private nuisance as ‘a nontrespassory invasion of another’s interest in the private

use and enjoyment of land.’” Rosenblatt v. Exxon Co., 335 Md. 58, 80 (1994) (quoting §

821D of the Second Restatement). Private nuisance cases involve the application of the

“long settled” law that “an individual may file a bill to restrain the continuance of a public

nuisance if it injures or impairs the value of his [or her] property.” Bishop Processing Co.,

213 Md. at 473 (quoting Five Oaks Corp. v. Gathmann, 190 Md. 348, 352 (1948)). Cases

applying these principles often cite to opinions from English chancery courts, which had

equitable power to enforce the Latin maxim “sic utere tuo ut alienum non laedas”—which

translates to “use your own property in such a way that you do not injure the property of

another.” See, e.g., Bishop Processing Co., 213 Md. at 473; Fox v. Ewers, 195 Md. 650,

657–58 (1950); Five Oaks Corp., 190 Md. at 352; Singer v. James, 130 Md. 382, 386

(1917); Woodyear v. Schaefer, 57 Md. 1, 13 (1881); Murray v. McShane, 52 Md. 217, 226

(1879); Dittman v. Repp, 50 Md. 516, 522 (1879); Adams v. Michael, 38 Md. 123, 125

(1873).

In the context of this case, we do not need to discuss the specific elements necessary

to establish a private nuisance. For our purposes, it is sufficient to note that a finding of

nuisance requires evidence of an unreasonable and substantial interference with a

plaintiff’s use and enjoyment of his or her property. Leatherbury v. Gaylord Fuel Corp.,

276 Md. 367, 377 (1975); Hamilton Corp. v. Julian, 130 Md. 597, 560 (1917). The alleged

injury to the use and enjoyment of property must be of such a nature as to diminish

materially the value of the property and to seriously interfere with the ordinary comfort

and enjoyment of it. Carr’s Beach Amusement Co. v. Annapolis Roads Prop. Owners’

50
Ass’n, 222 Md. 392 (1960); Meadowbrook Swimming Club v. Albert, 173 Md. 641 (1938);

Adams v. Michael, 38 Md. 123 (1873).

A significant difference between private nuisance and public nuisance is that the

latter is an unreasonable interference with the rights of the community at large, and was

historically punishable as a crime, see Rosenblatt, 335 Md. at 79 n.7; Burley v. Annapolis,

182 Md. 307 (1943), whereas private nuisance is a tort. A plaintiff injured by a nuisance

may seek damages or injunctive relief if the plaintiff suffers an injury that is different in

kind from that suffered by other members of the public. See Cook v. Normac Corp., 176

Md. 394, 397 (1939) (explaining that private individuals cannot seek redress for a “mere

public wrong” arising from a defendant’s disregard of an ordinance, rather, they have

“relief only against damages to themselves, distinct in character from any to the public”);

see also Hamilton, 11 Md. 146–47 (discussing cases in which a private action was brought

where the underlying conduct constituted a public nuisance, but special damages were

alleged); Houck v. Wachter, 34 Md. 265, 269 (1871) (“The obstruction of a highway is a

common nuisance, and being a wrong of a public nature, the remedy is by indictment; it is

not in itself a ground of civil action by an individual, unless he has suffered from it some

special and particular damage, which is not experienced in common with other citizens.”);

Garitee v. City of Balt., 53 Md. 422, 436–37 (1880) (“The general rule doubtless is, in

regard to which there is but little disagreement among the authorities, that no person can

maintain a private action for injuries resulting from a common nuisance, unless he can

show that he has sustained some special damage therefrom different from that sustained by

the public generally.”); Woodyear, 57 Md. at 3 (“If the facts alleged be true, the remedy is

51
by indictment for a nuisance. If complainant has suffered special and peculiar damage,

beyond and different from that which affects the public at large, he has his remedy by

action at common law.”).

Our nuisance case law is replete with decisions in which we have affirmed a lower

court’s order for injunctive relief in favor of a private property owner where the conduct

on an adjoining or nearby property was causing an injury “shown to be of such a character

as to diminish materially the value of the property” and “seriously interfer[ing] with the

ordinary comfort and enjoyment of it.” Bishop, 213 Md. at 473 (quoting Five Oaks Corp.,

190 Md. at 352) (animal processing plant producing nauseating odors); see also Corbi v.

Hendrickson, 268 Md. 459, 460 (1973) (nightclub operation causing excessive noise to

nearby residential properties); Gorman v. Sabo, 210 Md. 155, 158 (1956) (radio playing at

an excessive and unreasonably high volume); Fox, 195 Md. at 654 (parking and storing

trucks containing asphalt, which were started at early morning hours thereby creating loud

noises and the asphalt mixture created a nauseating odor); Meadowbrook Swimming Club,

173 Md. at 644 (amusement venue with outdoor dancing and bands causing excessively

loud noise); Woodyear, 57 Md. at 5 (slaughterhouse operation releasing animal matter into

stream causing sickening odors and a dam that “is little better than a cesspool”); Dittman,

50 Md. at 521 (factory operation’s vibrations causing walls to shake on adjoining property).

This Court has also affirmed an order for injunctive relief where a property was being used

in a manner that constituted a crime to the detriment of the adjacent property owner. See

Hamilton, 11 Md. at 143 (enjoining the operation of a bawdyhouse or house of ill-repute,

which constituted criminal conduct).

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3. Cases Declining to Expand Nuisance

In contrast to the cases described above, we have rejected claims that have

attempted to expand the boundaries of nuisance beyond the traditional common law

parameters. In State ex rel. Bohon v. Feldstein, 207 Md. 20 (1955), for example, we

considered several claims brought by family members of a deceased tenant against a

landlord after the tenant died from asphyxiation arising from the discharge of carbon

monoxide fumes into his apartment due to an improperly vented hot water heater. The

plaintiffs’ declarations contained four counts—including three negligence-type counts

based upon sections in the Restatement that establish a landlord’s liability for a tenant’s

bodily injury arising from dangerous conditions, and where the landlord knew or had

reason to know of the condition. Id. at 24. The fourth count alleged a private nuisance.

Id. at 27. Although this Court determined that the plaintiffs could maintain one or more

causes of action that sounded in traditional negligence, 55 we affirmed the trial court’s
54F

ruling sustaining the defendant’s demurrer with respect to the private nuisance count. Id.

at 34. We cited Prosser for the proposition that nuisance was not “a separate tort” subject

to its own rules but involved “types of damage—the invasion of two quite unrelated kinds

of interests, by conduct which is tortious because it falls into the usual categories of tort

liability.” Id. at 35 (quoting W. Prosser, Prosser on Torts 557 (1st ed. 1941)). We noted

55
Although we determined that the trial court properly sustained the defendant’s
demurrers based upon some procedural errors and language in the plaintiffs’ declaration,
we concluded that plaintiffs should be permitted to amend their declaration “on account of
the seriousness” of the plaintiffs’ claims. See State ex rel. Bohon v. Feldstein, 207 Md. 20,
35 (1955). We therefore remanded the cases for new trials.
53
that we had “found no Maryland case in which recovery has been allowed by a tenant

against a landlord on the theory of nuisance” based upon the injuries alleged by the

plaintiffs, and we saw “no reason to extend the definition of nuisance.” Id. We stated

that in cases such as the one brought by the plaintiffs, recovery was limited to a theory of

negligence. Id.

We turn to Tadjer v. Montgomery County, 300 Md. 539 (1984)—the case upon

which the County relies for its assertion that we have adopted the Second Restatement’s

expansive definition of public nuisance. Given the County’s reliance on this case, it is

useful to discuss it in some detail.

The case was filed by a plaintiff who sued nine defendants as a result of injuries he

sustained in an explosion of methane gas at the autobody shop where he worked, which

was owned by one of the litigants in the case. Id. at 542. The plaintiff alleged that the

explosion was caused by the emission of methane gas from the accumulation of trash and

garbage below the property. Id. at 544. Prior to the autobody shop operation, the county

had leased the property in question and operated a public landfill. Id. at 543–44. After the

county ceased using the property as a landfill, the property owner leased it to the owner of

the autobody shop. Id. at 544. In connection with the autobody operation, the county

issued building and occupancy permits. Id.

Some of the defendants filed third-party claims against the county, alleging that the

county was (1) negligent in issuing permits for the autobody shop; (2) negligent in its

landfill operations; and (3) liable because it created and maintained a nuisance on the

property. Id. at 543. The trial court granted a demurrer on the third-party claims, ruling

54
that the claims against the county were barred by governmental immunity. Id. at 545. The

Appellate Court affirmed the trial court’s judgment. Id.

In explaining the issue before us, we stated that the “petition for certiorari is limited

to the issue of governmental immunity[,]” and, therefore, our discussion would be “limited

to that issue and the conflict between the concepts of governmental and proprietary

functions.” Id. We then proceeded to consider whether the various conduct by the county

alleged in the third party-complaint was a governmental function (and therefore subject to

governmental immunity), or proprietary function (and therefore subject to potential

liability). Id. at 546. We determined that the county’s issuance of permits was

governmental in nature and that the county was therefore entitled to immunity for claims

associated with the permits. Id. at 547, 550. As for the county’s landfill operations, we

held that we were unable to determine at the pleading stage whether the county was

undertaking a governmental or proprietary function. Id. at 548–50. We pointed out that

the declaration simply reflected that the county had “derived ‘substantial income’” from

the landfill operation, and we had no way of knowing the amount of the income. Id. at

549. We explained that if the income simply covered the county’s expenses, we would

agree that this landfill operation was a governmental function. Id. On the other hand, if

the income substantially exceeded the county’s expenses, it would be a proprietary

function. Id. at 549–50. On the negligence claim related to the county’s operation of the

landfill, we determined that no final judgment should have been entered, and that the matter

should proceed to trial. Id. at 550.

With respect to the nuisance claim, we noted that both the circuit court and the

55
Appellate Court had found the action to be barred by the defense of governmental

immunity. Id. We pointed out that we had “never applied a proprietary-governmental

function distinction to suits against municipalities based upon nuisance,” and that courts

generally made no such application. Id. Having concluded that the claim was not barred

by governmental immunity, we therefore determined that it would be “wise to examine the

terms private and public nuisance.” Id. at 551.

We quoted the definition of private nuisance as expressed in § 821D of the

Second Restatement, which states that a “private nuisance is a nontrespassory invasion

of another’s interest in the private use and enjoyment of land.” Id. (citation modified).

We also cited several other treatises, including W. Prosser, Law of Torts §§ 86, 89 (4th

ed. 1971). Id.

Turning to public nuisance, we cited two sources: (1) Prosser, Law of Torts, supra,

at § 88, and (2) § 821B of the Second Restatement. Id. at 551–52. We block quoted both

sections in their entirety and without any analysis or discussion of either. We also quoted

Prosser for the proposition that “[t]o be considered public, the nuisance must affect an

interest common to the general public, rather than peculiar to one individual, or several.”

Id. at 552 (quoting Prosser, Law of Torts, supra, at § 88). Additionally, we quoted comment

g of § 821B of the Second Restatement, which explains that for conduct to become a public

nuisance, it must interfere with a right “common to all members of the general public.” Id.

In addition to these treatises, we cited to two public nuisance cases—Commissioners of

Trappe, 204 Md. at 169–72, which we discussed above, and Burley, 182 Md. at 307, which

we will discuss in more detail below.

56
We noted that, in Burley, we concluded that the third-party claims did not set forth

an “alleged breach of duty on the part of the [c]ounty to the original plaintiff or to the public

generally.” Id. at 554. Concerning private nuisance, we noted that there was no allegation

that any land was invaded. Id. As for public nuisance, we observed that the declaration

did not “allege a breach of a duty by the [c]ounty to the original plaintiff which would fit

under the Restatement’s version of a public nuisance.” Id. We rejected what we considered

the third-party plaintiffs’ attempt to reframe the negligence action as “nuisance counts” by

“using somewhat different terms.” Id. Concluding that the county could not be liable for

either public or private nuisance, we determined that the “trial judge correctly sustained

demurrers to the nuisance counts although for the wrong reason.” Id.

We discuss below what effect, if any, Tadjer had on our public nuisance

jurisprudence. For purposes of our discussion here, it is sufficient to note that the case was

about governmental immunity, and that we determined that the third-party complaint did

not allege a claim for either public or private nuisance.

In Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58 (1994), we considered whether the

plaintiff, an occupant of commercial property could maintain a nuisance action against a

previous occupant whose activities during its occupancy allegedly caused the property to

become contaminated by toxic chemicals. The plaintiff contended that his nuisance

action was viable because the defendant’s contamination of the property during its

occupancy interfered with the plaintiff’s subsequent use and enjoyment of it. Id. at 67.

We disagreed and affirmed the circuit court’s entry of summary judgment in favor of the

defendant. Id. at 80.

57
We noted that the plaintiff cited “no legal authority for his claim that the law

provides a cause of action in nuisance to a subsequent occupant of land against a prior

occupant for activities conducted on the land during the prior occupancy.” Id. at 79. Nor

did “our review of the authorities reveal any support for this position.” Id. We pointed

out that, in prior cases, we “considered the application of the theory of nuisance with

regard to the rights of the community at large, in a situation involving a public nuisance,”

id. at 80 (citing Tadjer, 300 Md. 539), “and the rights of adjoining property owners, in

the context of a private nuisance,” id. (citing Wash. Suburban Sanitary Comm’n v. CAE-

Link Corp., 330 Md. 115 (1993)). Notably, we explained our understanding of the

doctrines of public and private nuisance as follows: “A public nuisance is a criminal

offense involving an interference with the community at large, as in the case of the

obstruction of a highway. A private nuisance, as is claimed here, is a civil matter,

involving the disturbance of an individual’s rights in land.” Id. at 79 n.8 (emphasis

added) (citing Prosser and Keeton, Law of Torts § 87 at 618 (5th ed. 1984)). We observed

that the plaintiff’s request that we expand the doctrine of private nuisance was

inconsistent with the definition of private nuisance as set forth in § 821D of the Second

Restatement, noting that other courts that had been asked to consider similar claims had

rejected them. Id. at 80.

As reflected in our discussion of these cases, we have adhered to a faithful application

of English common law nuisance principles that have been applied for centuries. Notably,

between the late twentieth century and into the twenty-first century, there are very few cases

involving private nuisances decided by this Court or the Appellate Court, and even fewer

58
cases in which a government files a civil enforcement action under the common law to abate

a public nuisance. One likely reason for the dearth of common law cases is the General

Assembly’s various legislative enactments that provide specific tools for enforcement.

D. The General Assembly’s Enactment of Nuisance Statutes

Over time—consistent with the trends at the federal level, as well as in other states—

the General Assembly has enacted numerous statutory schemes that are intended to prohibit

or regulate conduct that would have been a public nuisance under the common law. Where

a statute or code provision defines the conduct that may be considered a “public nuisance”

and delineates the boundaries for enforcement, individuals who may be subject to

enforcement actions have fair warning that the conduct in question might constitute a

public nuisance, and the courts have an objective standard to apply when considering the

government’s claim. These legislative enactments embrace a wide range of conduct, and

it is not possible to discuss every statute, regulation, or local provision that addresses

conduct that would have been a public nuisance under the common law. However, it is

instructive to touch upon a few as part of our discussion.

The General Assembly has codified certain common law nuisances as criminal

offenses, such as the sale and manufacture of drugs in certain places, 56 and the criminal
55F

penalty for the common law nuisance of “keeping a disorderly house.” 57 On the civil
56F

56
See CR § 5-605(b).
57
See CR § 10-202 (“A person who keeps a disorderly house is guilty of a
misdemeanor and on conviction is subject to imprisonment not less than 10 days and not
exceeding 6 months or a fine not less than $50 and not exceeding $300 or both.”). In Ward
v. State, 9 Md. App. 583, 586 (1970), the Appellate Court explained that although the
59
side, the General Assembly has defined certain conduct as constituting a “public

nuisance” and authorized State and local officials to pursue civil enforcement actions on

behalf of the public. For example, one State law authorizes certain individuals to bring

an action to abate a nuisance, which is defined as a property used for assembling or

manufacturing of controlled dangerous substances or for prostitution. 58 Two statutes of
7F

recent vintage define public nuisances to include the sale of “firearm-related products,” 5958F

as well as causing “damage to public infrastructure that causes” the infrastructure’s

closure to the public. 60
59F

penalty is prescribed by statute, the public nuisance offense of “keeping a disorderly house”
was not codified, and therefore retained its common law meaning.
58
See Md. Code (2023 Repl. Vol., 2025 Supp.), Real Property Article (“RP”) § 14-
120(a)(5) (defining “nuisance”); id. § 14-120(b), (c) (authorizing certain individuals to bring
actions to abate a nuisance).
59
The General Assembly enacted Subtitle 25 to Title 3 of the Courts and Judicial
Proceedings Article, titled “Civil Actions for Public Nuisance Against Firearm Industry
Members[,]” in 2024. 2024 Md. Laws, Ch. 714. CJ § 3-2502 defines as a “public
nuisance” certain conduct undertaken by the firearm industry under its provisions related
to the sale, manufacture, distribution, importation, or marketing of certain firearm-related
products. The legislation authorizes the Attorney General, a county attorney, or the
Baltimore City Solicitor to bring an action against a firearm industry member “for a public
nuisance caused by a violation of Section 3-2502.” Id. § 3-2503. The state or local
government may seek injunctive relief, restitution, compensatory and punitive damages,
reasonable attorney’s fees and costs, and any other appropriate relief. Id.
60
After the collapse of the Francis Sc

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11280388. Public record. Not legal advice.