HEAR THIS HoCo: THE MPP NOISE LAW IS UNCONSTITUTIONAL

As previously discussed, the Maryland Noise Control Law that applies to Merriweather Post Pavilion was poorly conceived and drafted; in addition the law IS UNCONSTITUTIONAL.

This post will tackle how the law is unconstitutional overall.  In the future, I hope to explain in further detail the unconstitutionality of the separate provisions.

First, Howard is a Chartered Home Rule County. As the Maryland Court of Appeals has explained Howard County

has chartered home rule under Article XI-A of the Maryland Constitution. Article XI-A was proposed by Ch. 416 of the Laws of Maryland of 1914 and ratified by the voters on November 2, 1915. The Article, known as the Home Rule Amendment, enabled counties, which chose to adopt a home rule charter, to achieve a significant degree of political self-determination. Its purpose was to transfer the General Assembly’s power to enact many types of county public local laws to the Art. XI-A home rule counties. See generally, e.g., Bd. of Election Laws v. Talbot County, 316 Md. 332, 344, 558 A.2d 724 (1989); Griffith v. Wakefield, 298 Md. 381, 384, 470 A.2d 345 (1984); Town of Forest Heights v. Frank, 291 Md. 331, 342, 435 A.2d 425 (1981); Cheeks v. Cedlair Corp., 287 Md. 595, 597-598, 415 A.2d 255 (1980)

McCrory Corp. v. Fowler, 319 Md. 12, 570 A.2d 834 (1990).

Second, the General Assembly pursuant to the mandate of Article XI-A (2) of the Maryland Constitution enacted the Express Powers Act for Charter Counties.

Third, the Express Powers Act authorizes Howard and other Charter Counties to pass local laws for the to “provide for the prevention, abatement, and removal of nuisances.” MD Code, Local Government, § 10-328 Nuisances and health.  The Express Powers Act also authorizes:

(a) A county council may pass any ordinance, resolution, or bylaw not inconsistent with State law that:
(1) may aid in executing and enforcing any power in this title; or
(2) may aid in maintaining the peace, good government, health, and welfare of the county.

Maryland Local Government § 10-206. Additional legislative powers.

Fourth, in 1997 Howard County passed a noise code that limited among other sounds those at Merriweather Post Pavilion.

Fifth, Article XI-A (4) of the Maryland Constitution prohibits the General Assembly from passing any legislation for a single Charter County “on any subject covered by the express powers.”  In other words, it prohibits public local laws on matters regulated by a county under the Express Powers Act.

Sixth, in 2013 the General Assembly passed HB 1514 Howard County – Noise Control – Outdoor Concert Venues. which only applies in Howard County and no other county.

For the reasons explained below, the enactment of HB 1514 violated the Maryland Constitution. The Maryland Court of Appeals has explained the steps to this determination:

A conclusion that a statute violates the Home Rule Amendment requires two findings: (1) that the law in question is a public local law, as opposed to a public general law; and (2) that the law addresses a subject covered by the express powers granted to the particular geographical subdivision. See State’s Attorney v. Mayor & City Council, 274 Md. 597, 337 A.2d 92 (1975).

Park v. Board of Liquor License Commrs. for Balto. City, 338 Md. 366 (1995).

With regard to the second finding first, the Maryland Courts have recognized that the Express Powers Act authorizes a Charter County to regulate noise as a nuisance. Miller v. Maloney Concrete, 63 Md.App. 38, 491 A.2d 1218 (1985)(County regulation rejected on due process grounds).

Regarding the first finding to determine whether a law is constitutional, the Courts have found that laws such as HB 1514 which are limited in scope to just one county are public local laws and not public general laws which apply to two or more counties.  The Court of Appeals in the case of Cole v. Secretary of State found that a statute that amended various provisions regarding the courts in Cecil County was a public local law. The statute at issue in Cole when compared to HB 1514 has an analogous structure.  In HB 1514, the restated provisions of the Noise Control Law apply to a list of more than one county regarding hunting for example.  In Cole, the provisions regulating the courts also applied to more than one county. However, the Court found that some provisions, like subsection (c) (7) in the Noise Control Law were “purely mechanical with no effect outside of Cecil County.”

The Maryland Court of Appeals rejected the Attorney General’s argument that

the  Act  was  essentially  general,  rather  than  local  in  scope.  The  classification  of  a particular  statute  as  general  or  local  is  based  on  subject  matter  and  substance  and  not  merely  on form. Ness  v.  Baltimore, 162  Md.  529,  536 , 160 A.  8  (1932);  State  v.  Stewart, 152  Md.  419,  425 ,  137 A.  39   (1927).  Nor  does  the  fact  that  the  statute  takes  the  form  of  an  amendment  to  the  general law  make  it  a  public  general  law  rather  than  a  public  local  law  if  its  subject  matter  is exclusively local. State  v.  Stewart,  supra.  If  we  apply  the  test  adopted  by Judge Alvery in State  ex  rel. Webster v. Co. Commers. of Balt. Co. supra i.e. that local laws differ from general laws only in that they are confined in their operation to certain prescribed or definite territorial limits, the conclusion is inevitable: the Act was a local, not a general law.

Cole v. Secretary of State, 249 Md. 425 (Md. 1968).

The Court in Cole v. Secretary of State also ruled that

Our consideration of the provisions of the Act leads us to the view that in subject matter and substance it is a law which is confined in its operation to prescribed territorial limits, equally applicable to all persons within  such  limits.  It  is  thus  readily  distinguishable  from  a  general  law,  which  deals  with  the  general public  welfare,  a  subject  which  is  of  significant  interest  not  just  to  any  one  county,  but  rather  to  more than one geographical subdivision, or even to the entire state.

Cole v. Secretary of State, 249 Md. 425 (Md. 1968).

The Noise Control Law is confined in its operation to the territorial limits of  Howard County. It is not a general law because it only applies within one county and not any other geographical subdivision.  Thus, under the Court’s ruling in Cole, the statute is a public local law.

This conclusion is also supported by the Court’s reasoning in McCrory:

In Steimel v. Board, 278 Md. 1, 5, 357 A.2d 386, 388 (1976), we stated that a local law “in subject matter and substance” is “confined in its operation to prescribed territorial limits….” A general law, on the other hand, “`deals with the general public welfare, a subject which is of significant interest not just to any one county, but rather to more than one geographical subdivision, or even to the entire state.'” Steimel, 278 Md. at 5, 357 A.2d at 388, quoting Cole v. Secretary of State, 249 Md. 425, 240 A.2d 272 (1968).

McCrory Corp. v. Fowler, 319 Md. 12, 570 A.2d 834 (1990).

Furthermore, the Courts explained that previous rulings have

specifically rejected the contention made by the Board in this case that any amendment to a public general law must also be a public general law simply because it is an amendment.

“Otherwise, any law could be removed from the domain of public local laws by the mere act of the Legislature in calling it an amendment to a public general law. If such could be done in the present case, the Legislature could, by such a device, evade the constitutional prohibition in respect to local legislation.”

Stewart, 152 Md. at 425, 137 A. at 42 (citations omitted); see also Cole v. Secretary of State, 249 Md. 425, 433, 240 A.2d 272, 277 (1968) (“Nor does the fact that the statute takes the form of an amendment to the general law make it a public general law rather than a public local law if its subject matter is exclusively local.”) Adopting Respondent’s argument would “result in the complete frustration of the object of the [Home Rule] amendment.” Stewart, 152 Md. at 424, 137 A. at 41-42.

Park v. Board of Liquor License Commrs. for Balto. City, 338 Md. 366 (1995).

Finally, paraphrasing the Court’s ruling in Park:

Although [HB1514] as a whole is a public general law, the amendment at issue here, [subsection (c)(7)], has a subject matter which is “exclusively local to [Howard County].” Despite the fact that [HB 1514] amended a public general law, it becomes clear when one examines the geographic scope of its subject that it is a public local law.

The General Assembly CANNOT pass  a law local in scope that only regulates noise at outdoor concert venues in Howard County.  The so-called Merriweather Noise Law is unconstitutional.

 

Comments please.  If you think that something should be done about this unconstitutional law, say something. If you want to defend the law, say why the argument above is wrong.

95 DBA Could Be Coming to a Neighborhood Near You

In 2013, the General Assembly passed House Bill 1514 which effectively raised the noise levels at Merriweather Post Pavilion to 95 DBA from 9 am to 11 pm.  It is generally assumed by most people that this only applies in Howard County to MPP. While that is true, it is also not entirely correct.

The Maryland Constitution prohibits special legislation that only applies to one entity.  Therefore, the statute never uses the word “Merriweather.” Nor does it describes Merriweather with any specificity.  It just refers to it as “an outdoor concert venue with a capacity of over 15,000 individuals.” While it is true that only Merriweather currently meets this definition today, this does not mean that some other venue might one day meet the definition. The courts have found that there is no special legislation if it is possible, no matter how unlikely, that the statute may apply to some other individual or entity.

The statute does not define “outdoor concert venue.”  It does not require that the venue is permanent.  It does not require covered seating.  It does not even require seating. It does not specify a paved area for the spectators.  It does not require bathrooms with indoor plumbing. Essentially it says nothing other than that it have the  CAPACITY for 15,000–not the attendance of 15,000.  It need not have ever actually had 15,000 in attendance nor even have an expectation that 15,000 will actually attend an event.  All that is required is that there be capacity for 15,000.  Apparently, even standing room only for 15,000.

At 2 square feet per person, 15,000 will take 30,000 square feet.  At 3 square feet per person, 45,000 square feet would be required. Assume one needed 5 square feet per person, then this would require 75,000 square feet.  An acre is 43,560 square feet. Two acres is 87,120 square feet.  So to have a capacity of 15,000 individuals, all that is needed is about 1 to 2 acres.

Therefore, it is possible that many so-called outdoor concert venues in Howard County could have capacity for 15,000 and thus claim that the 95 DBA limit applies to their event.  This might include the Sunset Serenades in Centennial Park. Clark’s Elioak Farm could decide to hold a special concert event on their farmland. The Howard County Fairgrounds could possibly have an outdoor event with room for 15,000. Glenelg Country School could lease their 90-acres for an outdoor concert event. An event in Symphony Woods at the Chrysalis could also possibly hold 15,000. The list could go on; think of all the farmland that could host a Woodstock style event.

The Merriweather Noise Statute is a badly flawed bill that should never have been passed. Only in Howard County are sounds of 95 DBA permitted in Maryland.

Why did we permit our state representatives, which include our current County Executive, to pass this unconstitutional law?

More on that at a future time.

 

 

 

Why Do Our Elected Officials Think That Howard County Needs Legislation to Authorize Regulation of Massage Establishments?

Every year it seems our local Howard County Delegation sponsors legislation to regulate massage establishments. This year it is Howard County Bill 13-16 http://howardcountymd.gov/departments.aspx?id=6442478112

Why is this even necessary? Why did the former Police Chief testify before the House Committee “that Howard County does not have all the tools” to regulate massage? Howard County already has an ordinance at Title 14 Subtitle 8. The County Code is here. How does giving Howard County the authority to “adopt ordinances or regulations relating to massage establishments and the practices of massage therapists, massage practitioners, and any other individuals who provide massage for compensation” enhance the regulation in Howard County?  If there is something missing in the ordinance, then the Council should amend the law, not pass redundant and dubious state legislation.

Moreover, why does nobody in the General Assembly seem to realize that the law as drafted is unconstitutional?  It is a law that only applies to Howard County–a Charter County.  The Maryland Constitution prohibits legislation that only applies to one Charter County.  If regulation of massage or more specifically prostitution and trafficking needs to be regulated, then why not pass a bill that applies statewide.  Regulating only in Howard County is hardly prudent; it will just push the problem in the more populated neighboring counties.

Moreover, why does nobody realize that the law is unconstitutional because the amendment is to a statute that deals with regulation of massage establishments in Charles and Washington Counties–counties which have more limited commission forms of government?  They can only regulate matters locally if the General Assembly authorizes it; as a Charter County, Howard County already has the power to regulate under the broad powers of the Express Powers Act.