3 STATUTORY CONSTRUCTION

V EHICLE L AWS

– L EGISLATIVE H ISTORY

– S TATUTE B ARRING

T HE S OLICITATION O F A “R IDE
, E MPLOYMENT
, O R

B USINESS ” F ROM R OADWAY N OT I NTENDED T O

E NCOMPASS C HARITABLE S OLICITATION

May 18, 2012

The Honorable Anne R. Kaiser Maryland Senate

You asked for our opinion on whether the fire fight ers’ annual “Fill the Boot” campaign to raise money for the Muscular Dystrophy Association is prohibited by § 21-507(a) of the Transportation Article, which prohibits any person from “stand[ing] in a roadway to solicit a ride, employm ent, or business.” Specifically, you have asked whether th e General Assembly intended its use of the word “business” in § 21-507(a) to include charitable solicitations. After a thorough review of the legislative history of the provision, both before a nd after its enactment in 1970, we now conclude that the Legisla ture did not

intend the term “business” to include charitable so licitations. In reaching this conclusion, we depart from the interp retation we adopted in a previous opinion, see 93 Opinions of the Attorney

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

determination that the local ordinance at issue in the earlier opinion was preempted by State law. We also recogn ize that the interpretation we reach here raises First Amendment concerns that a reviewing court might choose to avoid with a broa der reading of the word “business.” However, in our view, interpr eting § 21- 507(a) to allow charitable solicitation within the roadway does not make the law clearly unconstitutional, although add itional legislation may be advisable to ensure that charita ble contributions, which would include panhandling, are solicited in a manner that is consistent with the public safety goals of the stat ute.

I

Background

The International Association of Fire Fighters (“IA FF”) is one of the national sponsors of the Muscular Dystro phy Association (“MDA”) and has since 1954 supported th e MDA4 [97 Op. Att’y

through a variety of volunteer and fund-raising act ivities. Perhaps the most recognizable aspect of the IAFF’s activiti es on behalf of the MDA is the annual Fill the Boot campaign, in wh ich members of IAFF locals across the country invite the public at intersections, malls, and sporting events to fill a fire fighter’s boot with donations for the MDA. Here in Maryland, local cha pters of the IAFF have carried out the Fill the Boot campaign si nce at least 1986. In 2011, Fill the Boot campaigns helped fire fighters raise $27 million—the highest yearly contribution from an MDA

sponsor.

The Fill the Boot campaign involves fire fighters ( or the professional fundraisers they employ) standing on t he median strip at busy intersections and soliciting contributions from motorists when stopped at red lights. If the car is close en ough to the median strip, the fire fighter can extend the boot and col lect the contribution without ever leaving the median strip. More typically, however, the fire fighter must step into the roadwa y to collect the contribution, particularly when the car is in a lan e that is not immediately adjacent to the median strip. The enti re fundraising process—from soliciting from the median strip to en tering the roadway to collect the contribution—is carried out pursuant to safety manuals that instruct fundraisers to wear or ange vests or reflective material on their clothing, initiate all collections from the roadside or the median strip, and never stop traffi c or approach a moving vehicle.

Section 21-507(a) of the Transportation Article

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

restrictions on roadside solicitations that are the subject of this opinion: “Except for the occupant of a disabled ve hicle who seeks the aid of another vehicle, a person may not stand in a roadway to solicit a ride, employment, or business from the oc cupant of any vehicle.” Md. Code Ann., Transp. (“TR”) § 21-507(a ) (2011 Supp.). For purposes of § 21-507(a), the term “roa dway” refers to the portion of a road designed for vehicular travel , while the term “highway” encompasses a wider area. See TR §§ 11-151.1, 11- 127 (2009 Repl. Vol.). 1 Additional subsections in § 21-507

1 Those definitions are as follows: “Highway” means :

(1) The entire width between the boundary lines of any way or thoroughfare of which any part is used by th e public for vehicular travel, whether or not the way or (continued . . .)Gen. 3] 5

regulate solicitations along the highways in partic ular counties. TR § 21-507(c)-(k) (2011 Supp.). Violation of § 21 -507 is punishable as a misdemeanor and subject to a fine o f not more than $500. 2

This Office first addressed the scope of § 21-507 i n a 2004 legislative advice letter, which concluded that the statute clearly prohibited standing in the roadway for the purpose of selling things, but that it was a “closer question” whether the solicitation of donations was similarly banned. See Letter of Assistant Attorney General Kathryn M. Rowe to Delegate David D. Rudolph (June 28, 2004) (“2004 advice letter”). The advice letter cited the public safety purpose of the statute, case law in w hich courts have treated the activities of nonprofit organizations u nder the rubric of
“business,” and the conclusion that, “[f]rom the st andpoint of public safety, there is little or no difference bet ween a person standing in the roadway to sell things and one stan ding in the roadway to solicit money.” Reasoning that the term “business” could encompass a charitable transaction as well as a commercial
transaction, the advice letter concluded that the r eference to soliciting business should be “read broadly” in thi s context to

include the solicitation of donations.

thoroughfare has been dedicated to the public and accepted by any proper authority; and

(2) For purposes of the application of State laws, the entire width between the boundary lines of any way or thoroughfare used for purposes of vehicular travel on any property owned, leased, or controlled by the Un ited States government and located in the State.

TR § 11-127. “‘Roadway’ means that part of highway that is improved, designed, or ordinarily used for vehicular travel, other than the shoulder.” TR § 11-151(a). In relevant part, thes e definitions are unchanged since their initial enactment in 1970. Compare with 1970 Md. Laws, ch. 534 at 1313 (§ 1-132), 1319 (§ 1-777)

.

2 TR § 27-101(a), (b). The 2011 District Court of M aryland “Schedule of Pre-Set Fines and/or Penalty Deposits, ” used by law enforcement officers as a reference in issuing cita tions, lists the fine for violation of § 21-507(a) as $70 with no points. See http://

www.courts.state.md.us/district/forms/criminal/dccr 090.pdf (last visited May 11, 2012).6 [97 Op. Att’y

Subsequently, in 2008, we were asked to opine on th e constitutionality of Gaithersburg’s anti-solicitati on ordinance. The opinion concluded that the provisions of the ordina nce addressing conduct in the roadway were preempted by State law. In the course of analyzing that issue, however, the opinio n noted with respect to § 21-507(a) that “[t]his Office has take n the position that

the ban on business solicitation in this statute sh ould be interpreted broadly to encompass the solicitation of donations, given that its purpose is to promote public safety.” 93 Opinions of the Attorney

General 31, 35-36 (2008) (citing with approval the 2004 ad vice letter). It is that subsidiary conclusion that we now revisit.

II

Analysis

Familiar principles guide the interpretation of sta tutory provisions. The Court of Appeals has instructed th at “[t]he cardinal rule of statutory interpretation is to asc ertain and effectuate the real and actual intent of the Legisl ature.” Gardner v.

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

To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the statute. If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to the legislative intent ends ordinarily and we apply the statute as written

without resort to other rules of construction. We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we

do not construe a statute with forced or subtle interpretations that limit or extend its application.

Id. at 8-9. Other principles of statutory constructio n caution against “read[ing] statutory language in a vacuum” or confining an interpretation of a statute’s plain language “to th e isolated section

alone.” Id. at 9. Even when the words of a statute “are clear and unambiguous when viewed in isolation,” resort to le gislative history is warranted if those words “become ambiguo us when read as part of a larger statutory scheme. . . .” Id. At the same time, itGen. 3] 7

is important not to “disregard the natural meaning of the statutory
words” or “rewrite statutes to reflect [one’s own] ideas of public policy.” BAA, PLC v. Acacia Mut. Life Ins. Co ., 400 Md. 136, 158 (2007).

A. Ordinary Meaning of “Business”

The plain language of § 21-507(a) limits its reach to roadway solicitations for “a ride, employment, or business. ” The term “business” is not defined by statute and has a numb er of meanings, ranging from “any purposeful activity” ( e.g. , the business of learning) to connoting personal rights ( e.g. , “You had no business hitting him.”). Webster’s Ninth New Collegiate Dic tionary (Merriam Webster, 1989). The more common meaning o f the term
“business,” however, is “commercial or mercantile a ctivity.” Id

. That, too, is the common meaning of the term “busin ess” in legal parlance. See Black’s Law Dictionary (9th ed. 2009) (listing first definition of “business” as “[a] commercial enterpr ise carried on for profit; a particular occupation or employment h abitually engaged in for livelihood or gain”). Because neith er the fire fighters nor the Muscular Dystrophy Association is a “business” in the sense of engaging in commercial activity for pr ofit or gain, the plain language of § 21-507(a) would not appear to r each the fire fighters’ annual Fill the Boot campaign.

B. Legislative History

Although the term “business” does not ordinarily in clude
“charitable solicitation,” there is at least some a mbiguity as to its precise meaning. To that extent, it is appropriate to consider the legislative history of § 21-507 and other interpret ive aids to ascertain legislative intent. For the reasons expl ained below, we find that these non-textual indicia of legislative intent also indicate that the General Assembly did not mean to prohibit charitable

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

The Warnken Committee and the Uniform Vehicle Code

The circumstances surrounding the adoption of § 21- 507 indicate that the General Assembly intended to proh ibit solicitation
of business, but not to bar all solicitation of con tributions. The predecessor of § 21-507 was enacted following a 196 8 report to the Legislature by the Committee to Study Revision of t he Motor
Vehicle Laws, sometimes referred to as the “Warnken Committee” after its chairman, Judge S. Ralph Warnken. The Co mmittee was convened to compare existing Maryland law to the la ws of other8 [97 Op. Att’y

states and to the provisions of the Uniform Vehicle Code (“UVC”) 3 and recommend revisions to modernize Maryland’s

vehicle laws. The Committee carried out its delibe rations over an approximately four-year period, culminating in its “Proposed

Revision of the Motor Vehicle Laws of the State of Maryland” issued on September 1, 1968 (“Warnken Report”). Th e Legislative Council considered the Warnken Report in 1969, and the Judiciary Committee of that body appointed a special committe e which “studied the matter and recommended adoption of the report of the
Warnken [C]ommittee.” Covington v. Gernert , 280 Md. 322, 324- 25 (1977). The General Assembly accepted that reco mmendation and adopted the new motor vehicle code in 1970. See generally
1970 Md. Laws, ch. 534.

At the time the Warnken Committee began its deliber ations, existing Maryland law appears to have prohibited on ly the placement of “any structure, building or vehicle on any State highway right-of-way for the purpose of selling or displaying any produce or merchandise in such a manner which shall constitute a
traffic hazard. . . .” Md. Ann. Code Art. 661⁄2, § 2 48 (1967 Repl. Vol.). The Uniform Vehicle Code, by contrast, proh ibited an individual from standing in a roadway to solicit “a ride, employment, or business from the occupant of any ve hicle.” 4

3 Unlike most other “uniform” laws, the Uniform Vehi cle Code is not a product of either the National Conference of Commissioners on

Uniform State Laws or the American Law Institute. Rather, it was developed, and is still updated from time to time, by the National Committee on Uniform Traffic Laws and Ordinances (“ NCUTLO”), a private, nonprofit organization which is located in Alexandria, Virginia, and has a website at www.ncutlo.org. The Uniform V ehicle Code has been adopted in full or in part by most states.

4 The complete text of § 11-507 of the Uniform Vehic le Code in place at the time provided as follows:

(a) No person shall stand in a roadway to solicit a rid e, employment or business from the occupant of any

vehicle.

(b) No person shall stand on or in proximity to a stree t or highway for the purpose of soliciting the watching or guarding of any vehicle while parked or about to be parked on a street or highway.

NCUTLO, Uniform Vehicle Code: Rules of the Road at 332 (1967); see Warnken Report at 147. A provision prohibiting a p erson from standing

(continued . . .)Gen. 3] 9

Although members of the Warnken Committee “consider ed and discussed at great length the respective merits of [existing] Maryland [law] versus UVC provisions,” Warnken Repo rt at iv,

the new motor vehicle code that the Warnken Committ ee proposed followed “very closely” the Uniform Vehicle Code. Id . at iii; State

v. Moon , 291 Md. 463, 486 (1981). With respect to roadsid e solicitation, the language the Committee proposed, and the General Assembly adopted, was substantively identical to th e UVC provision and is identical to the current version o f § 21-507(a).

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

Even as the Warnken Committee was carrying out its review, however, the anti-solicitation provisions of the Un iform Vehicle

Code were themselves under revision. The result of that revision was to split the roadside solicitation provisions o f what was § 11-

507 into two subsections. See NCUTLO, Uniform Vehicle Code: Rules of the Road

at 120 (1970 Supp.). The first subsection prohibited the solicitation of a ride by a person s tanding in the roadway— i.e ., the traveled portion of the highway. Id. The second subsection was broadened to apply to the ent ire highway and barred solicitation of “employment, business, or contributions ”

from drivers. Id. (emphasis added). The second subsection of the uniform code thus applied to a broader geographical area, and added the word “contributions” to the terms “employ ment” and “business” that had appeared in the model law for 16 years. 5

in a roadway to solicit a ride had been included wi thin the Uniform Vehicle Code since 1930, with the words “employment ” and “business”
added in 1952. NCUTLO, Uniform Vehicle Code: Rules of the Road at

333.

5 The complete text of § 11-507 of the revised versi on of the Uniform Vehicle Code that was adopted in 1968 provi ded as follows:

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

(b) No person shall stand on a highway for the purpose of soliciting employment, business, or contributions f rom the occupant of any vehicle.

(c) No person shall stand on or in proximity to a stree t or highway for the purpose of soliciting the watching or guarding of any vehicle while parked or about to be parked on a street or highway.

NCUTLO, Traffic Laws Annotated 182 (1979).10 [97 Op. Att’y

Although no legislative bill files are available fo r sessions prior to 1975, the Warnken Committee’s reports indi cate that it was aware that the Uniform Vehicle Code was “underg oing substantial modification” as the Committee was prep aring its report and recommendation to the General Assembly. Remarks of S. Ralph Warnken before the Legis. Council (Nov. 16 , 1967) reproduced in Rep. to the Gen. Assembly of 1968, vol. 1, at 342. While the Committee reports do not specifically men tion the changes to the roadside solicitation provisions of the uniform code, they do indicate that Committee members “had to eva luate the as yet tentative proposals for amendment of that Code. ” Id. In the end, however, neither the committee, in making its recommendations, nor the General Assembly, in enact ing legislation based on those recommendations, include d the term “contributions” in the roadside solicitation provis ion that, after 1968, appeared in the Uniform Vehicle Code.

In our view, this history suggests that the legisla tive decision to adopt the phrase “ride, employment, or business” from the pre1968 Uniform Vehicle Code, and not the phrase “empl oyment, business, or contributions” that appeared after 1968, was deliberate. Its various reports demonstrate that t he Warnken Committee was aware of the proposed modifications t o the
Uniform Vehicle Code, evaluated those modifications for adoption in Maryland, and chose not to recommend them to the Legislature.

Legislative Action Prior to the Attorney General’s 2004 and 2008 Interpretation

Legislative action and inaction since the enactment of § 21- 507 further supports the conclusion that the Genera l Assembly did not understand charitable solicitation to be prohib ited by the term “business” in § 21-507(a). It is significant, for example, that the anti-solicitation provision has not been amended su bsequently to conform to the 1968 changes in the Uniform Vehicle Code. In this respect, Maryland is different from the many states that, based on our limited review, have adopted anti-solicitation provisions that are identical or functionally similar to the anti-s olicitation provision in the post-1968 version of the Uniform V ehicle Code. See, e.g. , Op. S.C. Att’y Gen., 1979 S.C. AG LEXIS 155 (Oct. 8, 1979) (discussing state law prohibition on “solicit ing employment, business, or contributions” from the highway). Ind eed, NCUTLO,

in its 1979 Traffic Laws Annotated , identified Maryland as one of only 12 states that, “[l]ike the [Uniform] Code pri or to 1968,” prohibit the solicitation of “employment or busines s,” but notGen. 3] 11

charitable contributions. NCUTLO, Traffic Laws Annotated at 183 (1979).

The first time the Legislature revisited the issue of roadside
solicitation came in 2001, when it amended §§ 21-50 7 and 21-313 to authorize the Charles County Commissioners to pr ohibit a person from soliciting “money, donations of any kin d, employment, business, or a ride from the occupant o f any vehicle.” 2001 Md. Laws, ch. 585. Three aspects of this legi slation are noteworthy. First, an amendment to § 21-507(a) to prohibit the solicitation of “donations of any kind” would have been largely surplusage if § 21-507(a) had already prohibited th e solicitation of donations by its use of the term “business.” Secon d, the legislative history indicates that the General Assembly was awa re of the discrepancy between the proposed county-specific pr ovisions and § 21-507(a). The Fiscal Note for the 2001 bill sta tes that State law at that time did “not specifically prohibit solicit ing donations or money from a controlled access highway or from a me dian divider

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

Finally, the evolution of the bill’s language as it moved through the legislative process suggests strongly t hat the Legislature considered, but decided against, expand ing the prohibition of § 21-507(a) to encompass charitable solicitation. When that bill was first introduced, the language p roposed to amend § 21-507(a) in the following way:

Except for the occupant of a disabled vehicle who seeks the aid of another vehicle, a person may not stand in a roadway, MEDIAN
DIVIDER, OR INTERSECTION to solicit a ride, employment, [or] business, MONEY,

OR DONATIONS OF ANY KIND from the occupant of any vehicle.

S.B. 225, 2001 Gen. Assembly (first reader) (propos ed amendments capitalized). In other words, the bill initially sought to broaden the statewide prohibition to include don ations and extend the prohibited conduct beyond the roadway. As the bill moved through the legislative process, it was amend ed to make the broadened prohibition applicable only in Charles Co unty and left § 21-507(a) unchanged. The General Assembly, thus, was aware that § 21-507(a) did not specifically prohibit char itable solicitations, considered amending the provision to include such a prohibition, but in the end chose not to do so.12 [97 Op. Att’y

In 2004, the General Assembly returned to § 21-507 to authorize Anne Arundel County to establish a licens ing program for individuals and qualified charitable organizati ons—including fire companies—who wish to “solicit money or donati ons from the occupant of a vehicle by standing in a roadway, med ian divider, or intersection.” 2004 Md. Laws, ch. 156. The legisl ative history surrounding Ch. 156 is consistent with that surroun ding the 2001 legislation and also supports the conclusion that t he Legislature did

not believe that the term “business” included chari table solicitation. Specifically, the Fiscal Note draws a distinction between the then-current State law, which prohibite d solicitation for “a ride, employment, or business,” and the law applicable within Charles, Harford, and Washington Counties, w hich by then prohibited a person from standing “in a roadway, me dian divider, or intersection to solicit money or donations of an y kind.” 6

Revised Fiscal and Policy Note for H.B. 187, at 3 ( 2004). More importantly, the Fiscal Note makes clear that “[n]o thing in the bill should be construed as prohibiting individuals or o rganizations from roadway solicitation if the county council doe s not enact an ordinance to create a licensing program.” Id. This caveat provides

further evidence that charitable solicitation was n ot believed to be prohibited under § 21-507(a) as a matter of State l aw, for if it were, such solicitation would have remained prohibited as a matter of State law whether or not the County enacted a licen sing program.

Legislative Action Subsequent to the Attorney

General’s Advice

The history of amendments to § 21-507(a) occurring after this Office made known its earlier interpretation—both i n the 2004 advice letter and in the 2008 opinion—do not compel the conclusion that the Legislature has adopted or rati fied that interpretation. It is, of course, relevant that th e General Assembly has not statutorily superseded the interpretation o f § 21-507(a) provided by this Office in the 2004 advice letter a nd echoed in the 2008 opinion. “The Legislature is presumed to be a ware of the

6 As discussed above in text, Charles County was the first county in which this broader prohibition on the roadside soli citation of “donations of any kind” was prohibited, see 2001 Md. Laws, ch. 585. Harford County and Washington County were added in 2003. See 2003 Md. Laws, chs. 219 (Harford), 463 (Washington). Carrol l County was subsequently added in 2005. 2005 Md. Laws, ch. 93.Gen. 3] 13

Attorney General’s statutory interpretation and, in the absence of enacting any change to the statutory language, to a cquiesce in the Attorney General’s construction.” Potomac Valley Orthopaedic Assocs. v. State Board of Physicians , 417 Md. 622, 637 (2011) (internal quotation marks omitted). Here, however, the Legislature
has amended § 21-507 on a number of occasions after 2004 to enact county-specific roadside solicitation provisi ons that expressly do apply to charitable donations without also amendin g subsection (a) to modify the statewide ban in a sim ilar manner.

Since 2004, the Legislature on several occasions ha s amended § 21-507 to enact county-specific provisions—some t hat extend the solicitation ban beyond the roadway, 7 others that relax the ban by adopting permit programs that impose conditions on solicitors 8 —and in each instance has expressly included “donations” in the scope of regulated roadway solic itations. Yet § 21-507(a) has never been amended to include donat ions. And in each of the instances in which a county-specific bi ll was enacted, the Department of Legislative Services noted that t he bill, if passed, “may affect some nonprofit organizations ( e.g. , local fire departments, advocacy groups, charities) . . . thatconduct fundraising activities from median dividers.” Fiscal a nd Policy Note for H.B. 1429, at 2 (2005); see also Revised Fiscal and Policy Note for H.B. 392, at 3 (2009). Again, if State law had already prohibited the roadside solicitation of donations b y fire fighters and other groups under the term “business,” the cou nty-specific legislation making that prohibition express would h ave had little or no effect. The history of legislative action both b efore and after 2004 simply does not support the proposition that t he General Assembly intended its use of the word “business” in § 21-507(a) to encompass charitable solicitation.

7 See 2009 Md. Laws, ch. 695 (Howard County); 2008 Md. L aws, ch. 436 (Prince George’s County); 2007 Md. Laws, ch . 537 (Anne Arundel County); 2006 Md. Laws, ch. 473 (broadening prohibition in Montgomery County to ban minors from standing on me dian divider or in intersection, as well as in roadway, and authori zing Anne Arundel to do the same); 2005 Md. Laws, ch. 93 (Carroll County ).

8 See 2011 Md. Laws, ch. 586 (Frederick County); 2009 Md. Laws, ch. 698 (Prince George’s County); 2009 Md. Laws, ch . 669 (Baltimore County); 2005 Md. Laws, ch. 311 (Cecil County).14 [97 Op. Att’y

This understanding of the meaning of the term “busi ness” appears to be consistent with the history of the Fi ll the Boot campaign here in Maryland. Without purporting to h ave made a detailed investigation or conclusive finding, we ar e unaware of any evidence that § 21-507(a) has ever been applied to prohibit fire fighters from carrying out the Fill the Boot campai gn from the roadway, either before or after the 2008 opinion an d the earlier advice letter. To the contrary, our limited inquir y indicates that the fire fighters have been conducting the Fill the Boo t campaign here in Maryland at least since 1986 without restriction or citation by
local law enforcement authorities. Indeed, as rece ntly as August 2011, the Montgomery County State’s Attorney’s Offi ce reassured the Montgomery fire fighters that their Fill the Bo ot campaign, if carried out in accord with internal fire department safety guidelines, “would be in compliance with Section 21 -507. . . .”
Letter from John D. Lalos, Assistant State’s Attorn ey, to Richard Bowers, Chief, Montgomery County Fire and Rescue Se rvice (August 17, 2011).

C. Prior Interpretations of the Statutory Language

Neither the 2004 advice letter nor 2008 opinion exa mined the legislative history to ascertain the intent behind the enactment of § 21-507(a) and its subsequent application. Our pr ior advice was instead based primarily on the conclusion “that the term solicitation of business should be interpreted broa dly in this context to accomplish the purposes of the statute, which are to promote the public safety.” 9 Based on a more complete analysis of

9 The larger statutory scheme relating to motor vehi cles, although of little aid here, does not suggest a legislative int ent to include charitable

solicitation within the term “business.” To the co ntrary, provisions relating to special registration plates and excise tax exemptions—like the county-specific solicitation provisions discussed i n text—suggest that the General Assembly knows how to craft legislation tha t reaches charitable organizations. See TR §§ 13-619(c) (providing for issuance of special plates to “member of a nonprofit organization”), 13 -810(a)(24) (exemption vehicles acquired by certain “religious, charitable, or volunteer organization[s]” from excise tax). And t hat charitable organizations are regulated under the Business Regu lation Article, as the 2004 advice letter points out, says little about wh ether charitable solicitations were intended to qualify as “business ” for purposes of traffic safety or other concerns. Cf.

, Young v. State , 370 Md. 686, 712 (2002) (Legislature’s placement of sex offender reg istry in the Criminal Procedure Article “does not necessarily indicate an intent on the part of

(continued . . .)Gen. 3] 15

§ 21-507 and its relevant history, we conclude that our 2004 advice was incorrect; the Legislature did not intend to ba n charitable solicitations from the roadway. 10

Consistency with statutory purpose is, of course, a n important element of the interpretive process, but there are other rules of construction that cut the other way. For example, interpreting the

word “business” to include charitable solicitations may raise vagueness concerns within the context of individual prosecutions under § 21-507(a). See Galloway v. State , 365 Md. 599, 614 (2001) (“The void-for-vagueness doctrine as applied to the analysis of penal statutes requires that the statute be suff iciently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.”) (internal qu otation marks omitted). More importantly, resort to the Legislat ure’s presumed intent is not necessary here, where the extensive h istorical record indicates the General Assembly’s actual intent not to include charitable donations within the scope of § 21-507(a ).

Our conclusion here differs from that reached by th e Louisiana Attorney General, the only other state at torney general who has addressed a state-law provision which, like § 21-507(a),

the General Assembly to punish sex offenders”). Th e provisions of the Business Regulation Article are at least equivocal with respect to the status of charitable organizations as businesses. Compare Md. Code Ann., Bus. Reg. § 6-101(d)(2) (2010 Repl. Vol.) (ad dressing the “principal place of business” of a charitable organ ization), with id. , § 6- 620 (drawing a distinction between the “charitable organization” to be benefitted by donations collected in a “vending mac hine, canister, or other device or container for the deposit of money” and the “business placing the device or container, if not the charita ble organization”). Neither statute addresses charitable organizations as businesses in a manner that would overcome the presumption that the Legislature intended the term to have its commonly accepted mea ning.

10 As explained in a 1987 opinion, “[w]e do not overr ule a prior opinion simply because we might have resolved a clo se question the other way, were we first presented with it. At the same time, we will not perpetuate a significant mistake in legal reasoning .” 72 Opinions of the Attorney General 200, 202 (1987). The 2008 opinion is not overrule d; it remains valid because it “correctly treated the que stions actually presented in [it],” 76 Opinions of the Attorney General 287, 294 (1991), which was whether a Gaithersburg ordinance prohibit ing a person from making roadway solicitations was preempted by § 21- 507.16 [97 Op. Att’y

was based on the pre-1968 version of the Uniform Ve hicle Code. He was asked whether charitable organizations, volu nteer organizations, or school or other civic groups coul d legally solicit funds on public roadways and concluded that “it is clear that the practice of soliciting funds from vehicles is prohi bited in the State of Louisiana on interstate highways and state roadw ays.” Op. La. Att’y Gen. No. 1998-487, 1998 La. AG LEXIS 545 at *4 (Dec. 29, 1998). The opinion does not analyze the specific i ssue, however, and does not indicate that the statutory provision in question—La. Rev. Stat. § 32:218 (2012)—had been addressed by th e Louisiana Legislature in the same manner that the General Ass embly has addressed § 21-507(a) here. Shortly after the opin ion was issued, the Louisiana legislature amended the statute to pe rmit solicitations by “a professional fire fighters association or oth er nonprofit organization . . . on behalf of bona fide charitabl e organizations,” subject to the permission of the local governing au thority. La. Rev. Stat. § 32:218(b) (2012). The Louisiana Attor ney General later recognized that the 1998 opinion had been “st atutorily superseded.” Op. La. Att’y Gen. No. 03-0394, 2003 La. AG LEXIS 493 at *2 (Nov. 17, 2003).

Other states that have adopted the newer version of the Uniform Vehicle Code language have added provisions that relax
the anti-solicitation ban for contributions, someti mes by creating a permitting system for solicitations by non-profit o rganizations. Some of these provisions allowing specified charita ble solicitations in the roadway have been determined to be invalid a s violating the free speech guarantee of the First Amendment, while others have withstood constitutional scrutiny. See, e.g., Bischoff v. Florida

, 242 F. Supp. 2d 1226 (M.D. Fla. 2003) (exemption in Florida statute permitting highway solicitations on behalf of registered § 501(c)(3) charities violated U.S. Constitution); Op . Del. Att’y Gen., 2002 Del. AG LEXIS 12 (July 8, 2002) (excepti on in state

motor vehicle law that allowed solicitations on roa dway by some charitable organizations, but barred solicitations by others, was not

content-neutral and therefore violated First Amendm ent); Op. Tex. Att’y Gen. No. DM-367, 1995 Tex. AG LEXIS 122 (Dec. 4, 1995) (state statute that permitted local governments to enact charitable exceptions to ban on roadway solicitations would be

unconstitutional unless local ordinance was narrowl y tailored); but see People v. Tosch , 501 N.E.2d 1253 (Ill. 1986) (upholding statute that banned roadway solicitation except for charitable organizations engaged in statewide campaigns).Gen. 3] 17

Your question, however, focused on whether, under § 21- 507(a), the fire fighters’ annual “Fill the Boot” c ampaign to raise money for the Muscular Dystrophy Association may co ntinue. We answer that question in the affirmative, having con cluded that, based on the plain language of the provision and it s legislative history, the General Assembly did not intend its us e of the term

“business” to include charitable solicitation. You did not ask us to address the First Amendment issues thus presented a nd we consider those issues to be beyond the scope of thi s Opinion.
Nevertheless, as the court decisions cited above su ggest, giving effect to the plain language and legislative intent of § 21-507(a) does raise constitutional concerns. It is possible , therefore, that a reviewing court would elect to construe the term “b usiness” broadly to avoid those issues. See VNA Hospice v. Dep’t of Health & Mental Hygiene , 406 Md. 584, 605-09 (2008) (“In light of the policy against deciding constitutional issues unnec essarily, we have consistently adhered to the principle that an interpretation which raises doubts as to a legislative enactment’s constitutionality should be avoided if the language of the act permit s.”) (internal quotation marks omitted). In our view, however, th at type of “saving construction” may not be necessary. “[S]ta tutes carry a strong presumption of constitutionality,” Koshko v. Haining , 398 Md. 404, 426 (2007), and this Office will defend en actments of the Legislature unless “clearly unconstitutional.” 93 Opinions of the Attorney General

154, 161 n.12 (2008). Because we do not find that giving effect to the Legislature’s actual inte nt here would be clearly unconstitutional, it is our opinion that th e fire fighters may conduct their annual Fill the Boot campaign and ent er the roadway to collect contributions without violating § 21-507 (a). 11

11 Other types of solicitation, such as panhandling, would also be allowed by § 21-507(a), as we now construe it. See Henry v. City of

Cincinnati , 2006 U.S. Dist. LEXIS 94704, 16-20 (S.D. Ohio 200 6) (“After [ Village of Schaumburg v. Citizens for a Better Envi r. , 444 U.S. 620 (1980)], lower federal courts and state courts have equated panhandling to charitable solicitations, and analyz ed them under the same framework.”). We express no opinion herein ab out the constitutional permissibility of statewide legislat ion drawing a distinction between panhandling and charitable soli citations undertaken by public safety officials.18 [97 Op. Att’y

III

Conclusion

In our opinion, the General Assembly did not intend for its use of the term “business” in § 21-507(a) to extend the ban on roadside solicitations to the fire fighters’ annual Fill the Boot campaign and other solicitations for charitable don ations. The plain language of the statute and its legislative h istory belie any such intent. However, a statute that prohibits so licitation for some purposes but not others does raise constitutional i ssues. We therefore recommend that the Legislature consider r evising the

statute should it wish to ensure that charitable so licitations continue and without compromising the public safety goals of the Transportation Article.

Douglas F. Gansler Attorney General

Sandra Benson Brantley Assistant Attorney General

Adam D. Snyder Chief Counsel Opinions & Advice