GAYETY BOOKS v. CITY OF BALTIMORE, 279 Md. 206 (1977)

369 A.2d 581

[No. 101, September Term, 1976.]Court of Appeals of Maryland.
Decided January 24, 1977.

COURTS — Maryland Courts Are Final Arbiters Of State Law — Construction of Maryland Law By State Court Will Not Be Reversed Unless It Involves Federal Question — State Courts Not Bound By Holdings Of Federal District Court Or Federal Circuit Court Of Appeals — But State Courts May Consider Opinions Of Federal Courts As Persuasive Authority. pp. 212-213

CONSTITUTIONAL LAW — Permits And Licenses — Baltimore City Can Apply Non-Regulatory, Non-Confiscatory License Tax On Coin-Operated Amusement Machines To Coin-Operated Movie Machines — Baltimore City Code, Art. 15, § 71(a) (1966). p. 213

APPEAL — Scope Of Review — Ripeness For Review. Where appellant challenged constitutionality of ordinance by which City imposed license fees on coin-operated movie machines for years 1971 and 1972, the Court held that the effect of a later ordinance which became effective in 1975 would not be decided because it in no way affected the licensing and fee required for the years 1971 and 1972. Baltimore City Code. Art. 32, § 149. pp. 213-214

SUMMARY JUDGMENTS — Granted Where There Is No Genuine Dispute As To Any Material Fact And Party Is Entitled To Judgment As Matter Of Law — Maryland Rule 610 a. pp. 214-215

LICENSES — Permits And Licenses — Coin-Operated Amusement Device — Whether Coin-Operated Movie Machines Were Subject To Licensing As “Amusement Devices” Is Question Of Law Not Fact. Where there was no genuine dispute of fact concerning the nature and method of operation of coin-operated movie machines, the Court held that whether such devices were subject to licensing under City ordinance requiring license and fee for “coin-operated amusement devices” was a question of law for the court, and that partial summary judgment on this issue was properly granted. Maryland Rule 610; Baltimore City Code, Art. 15, § 71(a) (1966). pp. 214-215

J.A.A.

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Two appeals from the Superior Court of Baltimore City (GRADY, J.), pursuant to certiorari to the Court of Special Appeals.

Actions by the Mayor and City Council of Baltimore against Gayety Books, Inc., Martin McKew and Fayette News Center, Inc., for money allegedly due for failure to obtain license and pay fees for coin-operated amusement devices. From judgments in favor of the City against the corporate defendants, they appealed to the Court of Special Appeals. Certiorari was granted prior to argument in that court.

Judgments affirmed. Appellants to pay costs.

The cause was argued before MURPHY, C.J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

William E. Seekford for appellants.

Carl Berenholtz, Assistant City Solicitor, with whom wa Benjamin L. Brown, City Solicitor, on the brief, for appellee.

ORTH, J., delivered the opinion of the Court.

Article 15, § 71(a) of the Baltimore City Code (1966) (the ordinance) requires that

“Every person, firm, association, or corporation owning, or operating, or placing, or keeping, or permitting to be kept, or maintaining for use, or permitting the use of, any of the hereinafter described amusement devices for public entertainment or amusement, in any place or on any premises in the City of Baltimore shall obtain an annual license from the City Treasurer and shall pay therefore the annual license fee hereinafter set forth, before any such amusement device is placed in use or operation for any of the purposes hereinbefore mentioned. . . .”

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The amusement devices covered by the ordinance are described in subsection (a)(1):

“the term `coin-operated amusement device’ includes, but is not limited to, the following devices, if the same are operated or activated by coins or tokens; claw machines, bowling machines, shuffle board machines, pinball machines, pool tables, console machines, target machines, baseball machines, and other similar devices; provided, however, that such term does not include bona fide vending machines in which amusement features are not incorporated or made a part thereof. . . .”

The subsection, as amended, sets an annual license fee of $150 for each such device with exceptions not here relevant. Fayette News Center, Inc. (Fayette) and Gayety Books, Inc. (Gayety) were alleged to have operated such devices in Baltimore City, Gayety in 1972 and Fayette in 1971 and 1972. The Mayor and City Council of Baltimore (Baltimore City) sought to collect the license fees required by ordinance. The primary issue for decision is whether the ordinance is constitutional on its face and as applied to Fayette and Gayety. We hold that it is constitutional on its face and as applied.

The devices operated by Fayette and Gayety were coin-operated movie machines in individual viewing booths. In Dept. of Housing v. Ellwest Stereo, 263 Md. 678, 284 A.2d 406 (1971) we held that establishments having a number of such devices on the premises were not motion picture theatres so as to be subject to motion picture theatre regulations. It was after this decision that Baltimore City attempted to collect the annual license fee required by the ordinance. When Fayette and Gayety refused to pay the fees for the devices operated by them, Baltimore City sued them in the District Court.[1] The actions were instituted by the

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filing of statements of claim for summary judgment, in one case in the amount of $1350 for 9 devices against Gayety and Martin McKew, but referred to hereinafter simply as Gayety, and in the other case in the amount of $2850 against Fayette and 205 West Fayette Street Corporation, referred to hereinafter simply as Fayette. Each claim contained the common counts in assumpsit, and a special count referring to the ordinance and alleging that the defendants had not obtained the licenses required although found by Baltimore City to have such amusement devices on their premises. In each case the defendants elected a jury trial. The actions were transferred to the Superior Court of Baltimore City. Fayette and Gayety pleaded the general issue, and each filed a motion to dismiss and a supplemental motion to dismiss. The grounds for each original motion were that the ordinance as written and as applied was repugnant to the first, fourth, fifth and sixth amendments to the Constitution of the United States as applicable to the states under the fourteenth amendment. The ground for the supplemental motions was Ordinance No. 811, adding a new § 149 to Art. 32 of the Baltimore City Code, which had been duly passed and approved on 26 February 1975, effective thirty days from its passage. It required licensing for each “peep show establishment”,[2] § 1491, and a license for each coin-operated motion picture device, § 1496. Fayette and Gayety contended that the passage of this ordinance further rendered Art. 15, § 71 constitutionally repugnant because the new ordinance “cannot be superimposed upon the licensing requirements and fees of Article 15.” They urged

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that the passage of Ordinance No. 811 showed that the former ordinance did not contemplate the licensing and regulation of coin-operated motion picture devices.[3]

While all this was going on, an action challenging the constitutionality of Art. 15, § 71 of the Baltimore City Code was before the United States District Court for the District of Maryland. It had been brought by Al Star as President and Manager of Fayette and Gayety, seeking declaratory and injunctive relief against the Mayor, Director of Finance, City Solicitor and Treasurer of the City of Baltimore and the Governor and Attorney General of Maryland.[4] On 26 September 1973 the court held that “Art. 15, § 71(a)(1) is constitutional on its face and as applied to the plaintiff”, and ordered that judgment be entered in favor of the defendants. Star v. Benton, Civil No. 72-607Y, unreported. The judgment was affirmed by the United States Court of Appeals for the Fourth Circuit in a per curiam opinion filed 23 December 1975, which read in its entirety:

“We affirm for the reasons stated by the district court. The City of Baltimore can apply a non-regulatory, non-confiscatory license tax on all coin-operated amusement devices to coin-operated movie machines.” Star v. Benton, 530 F.2d 970.

By agreement of counsel, the proceedings against Fayette and Gayety in the Superior Court of Baltimore had been delayed pending the outcome of the litigation in the federal courts. As the federal case had become final to the extent that appellate review was available as a matter of right, Jones, J., presiding in the Superior Court of Baltimore City, deeming the decision of the United States District Court to be dispositive “as of the present time”, brought the cases

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before her to a hearing, which was held on 18 March 1976.[5] On 24 March the court denied the motions to dismiss of each of Fayette and Gayety. It granted Baltimore City’s motions for a summary judgment as to the issue of the liability of Fayette and Gayety for the payment of license fees, leaving to be litigated at trial only the factual issue of the number of coin-operated devices which were in operation.

At trial on 5 April 1976, with Fayette and Gayety expressly preserving the question of the applicability of the ordinance and “the liability of the fee itself,” it was stipulated that during 1971 and 1972 Fayette had nine coin-operated movie machines in operation at 205 West Fayette Street for a total license fee charge in the amount of $2650, and that during 1972, Gayety had nine such devices in operation at 409 East Baltimore Street for a total license fee charge in the amount of $1350. Upon inquiry by the court, the parties agreed that, “as to the arithmetic” the fees were correctly computed.[6] Judgment absolute was entered in favor of Baltimore City in each case — in the amount of $2650 with interest and costs against Fayette, and in the amount of $1350 with interest and costs against Gayety. Each noted an appeal to the Court of Special Appeals. By order of that court, the appeals, separately docketed, were consolidated for briefing and argument. We granted certiorari before decision by the Court of Special Appeals.

In denying the motions to dismiss and granting the motions for summary judgment, Judge Jones found that the comprehensive opinion of Judge Joseph H. Young, accompanying the order of the federal district court in Star v. Benton, supra, “disposed of the same legal issues raised in the present proceedings, i.e., the constitutionality of the license fees and the enforcement thereof by the City.” As we

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have indicated, she accepted Judge Young’s decision that the ordinance was constitutional on its face and as applied with respect to Fayette and Gayety as “dispositive of the legal issues here presented.”

Fayette and Gayety attack the constitutionality of the ordinance on the grounds that it is void for vagueness as written and applied, that it is lacking in adequate procedural safeguards, that it denies due process and equal protection, and that it is an impermissible tax upon first amendment rights and thus a prior restraint upon expression. The substance of these grounds was considered and rejected in Star v. Benton, supra.[7] Fayette and Gayety argue the contentions they place before us, but they do not do so in terms of why, in their opinion, the district court’s reasons in reaching conclusions contrary to their view were wrong. In fact, their only reference to the district court case is in claiming that Judge Jones erred in relying in her judgment on Judge Young’s opinion for the law and legal issues with respect to the case she was trying because “Maryland courts are the final arbiters of state law. And only an authoritative decision of the United States Supreme Court is determinative of issues of federal law over our highest courts, . . . . A construction of state law, however, is left to state courts and will not be reversed unless it involves a federal question. . . .” (citations omitted). Of course, “[t]he Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof . . . are, and shall be the Supreme Law of the State.” Art. 2 Declaration of Rights, Constitution of Maryland. And the decisions of the Supreme Court of the United States construing the federal constitution and acts of Congress pursuant thereto are conclusive. Wilson v. Turpin,
5 Gill 56 (1847); Howell v.

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State, 3 Gill 14 (1845). The courts of this State, however, are not bound by the holdings of a federal district court or of a federal circuit court of appeals. Wiggins v. State, 275 Md. 689, 698-716, 344 A.2d 80 (1975); Davis v. Director, 29 Md. App. 705, 713, 351 A.2d 905 (1976). But state courts may consider opinions of federal courts as persuasive authority. We have not heretofore reviewed the constitutionality of the ordinance in the context presented to us now, and in the absence of cases directly on the point in this State, the trial court here was persuaded by the district court opinion in Star v. Benton, supra, set out in Appendix A hereof. Having considered the cases and authorities therein cited and the cases and authorities cited by Fayette and Gayety, we are also persuaded by the district court opinion. We hold that there were no constitutional infirmities in the ordinance as claimed by Fayette and Gayety. The reasons for our holding are those reasons, as are applicable to the contentions here made, stated by the federal district court in arriving at its conclusions of law, leading to the finding that the ordinance was constitutional on its face and as applied to Fayette and Gayety.

Fayette and Gayety present as one of eight questions: “When one license for a motion picture projector under Article 32, § 149 is specifically required with procedural guidelines, may the City require a second license under Article 15, § 71 of the Baltimore City Code.” They divide their argument, however, into five parts, and the only reference to Art. 32, § 149 appears under that part dealing with first amendment rights, and then only to the extent of a bald assertion: “It should be sufficient licensing for police power purposes to require only the specific ordinance of Article 32, § 149 to be enforced and which has been complied with by [Fayette and Gayety] paying $100.00 licensing fees for it.” No issue with respect to Art. 32, § 149 is properly before us. By § 2 of Ordinance 811, its provisions became effective thirty days from the date of its passage on 26 February 1975, and, thus, in no way affected the licensing and fee required by Art. 15, § 71 for the years 1971 and 1972. We shall consider the validity of Art. 15, § 71 in the

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light of Art. 32, § 149 when it is properly an issue to be decided.

Fayette and Gayety claim that the trial court erred in granting Baltimore City’s motion for summary judgment. Maryland Rule 610 (a) 1 provides that a party may make a motion for a summary judgment in his favor as to all or any part of the claim on the ground that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law. See Lynx, Inc. v. Ordnance Products, 273 Md. 1, 327 A.2d 502 (1974). Fayette and Gayety assert that there was a genuine dispute as to material facts.[8] As the trial court granted the motion, it is manifest that it found that there was no genuine dispute as to a material fact, and that Baltimore City was entitled to judgment as a matter of law in an amount commensurate with the number of devices in operation. That the number of devices in question was to be determined by the trier of fact upon evidence adduced did not preclude the grant of summary judgment as to liability for the license and fee. It appears that Fayette and Gayety confuse questions of fact and matters of law. They say that the grant of the motion precluded their “opposition to the constitutionality and applicability of the statute and the liability of the fee itself.” They argue:

“[T]he determination of the exact number of coin-operated devices and the determination that such devices were other similar amusement devices, as the city officials claim, that the determination as to the amount actually placed in use or in operation and whether they came within the ordinance is a jury question properly determinable only by them, as Defendants dispute the facts of Plaintiff’s Motion for Summary Judgment. Judge Jones never saw the machines or their operation.”

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As we have indicated, the determination of the exact number of devices in operation was left for the trier of fact. But the “constitutionality and applicability” of the ordinance and “the liability for the fee itself” were not questions of fact but were matters of law for the court to determine. We think that the point Fayette and Gayety attempt to make is as stated later in their brief: “The determination of whether the coin-operated projectors were or were not other amusement devices was for the trier of fact. In this case it was for the jury to determine, or whether they were `similar’ (sic).” We do not share this view. It is patent that the devices here were coin-operated motion picture machines.[9] Whether such devices were within the contemplation of Art. 15, § 71 as subject to licensing is a matter of statutory construction for the court and not a question of fact for the trier of fact. The trial court was correct in finding that there was no genuine dispute as to a material fact with respect to the necessity of obtaining a license and that Baltimore City was entitled to judgment as a matter of law with respect to the liability of Fayette and Gayety for payment of license fees. The grant of the motion for summary judgment was not erroneous.

Judgments affirmed; appellants to pay costs.

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V.

CHARLES L. BENTON, in his capacity as Director of Finance of the
City of Baltimore, the Honorable WILLIAM DONALD SCHAEFER, in his
capacity as Mayor of the City of Baltimore, the Honorable GEORGE
L. RUSSELL, JR., in his capacity as City Solicitor for the City
of Baltimore, JOHN A. LUETKEMEYER, JR., in his capacity as
Treasurer of the City of Baltimore, the Honorable MARVIN MANDEL,
Governor of the State of Maryland, and the Honorable FRANCIS B.
BURCH, Attorney General for the State of Maryland

MEMORANDUM AND ORDER

Plaintiff, Al Star, challenges the constitutionality of Article
15 of the Baltimore City Code, further alleging a conspiracy by
defendants to interfere with the exercise of his First Amendment
rights in violation of 42 U.S.C. § 1983 and 1985 and the First
Amendment. Seeking declaratory and injunctive relief against the
enforcement of Baltimore City Code, art. 15, § 71 (1966)[1a] as
well as money

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damages, plaintiff invokes jurisdiction under 28 U.S.C. § 1331,
1343 (3)-(4) and 2201. Having considered the evidence presented
and arguments made on behalf of the parties, this court enters
the following:

FINDINGS OF FACT

Plaintiff is president and manager of Fayette News Center,
Inc., and Gayety Books, Inc., adult book stores with a number of
individual viewing booths on the premises that are equipped with
coin-operated movie machines; there are fourteen at Gayety and
nine at Fayette.

Defendants, Charles L. Benton, Director of Finance; George L.
Russell, Jr., City Solicitor; John A. Luetkemeyer, Treasurer;
William Donald Schaefer, Mayor, are all officials of the City of
Baltimore. Defendants Marvin Mandel and Francis B. Burch are
Governor and Attorney General, respectively, for the State of
Maryland. As to the last two defendants, there were neither
allegations nor evidence presented to connect them with this
case.

Through a series of letters from officials of the Department of
Finance (the first letter dated March 9, 1972), plaintiff was
notified that each of his machines required payment of an annual
license fee of $150.00 under § 71 (a)(1) of Article 15, which
licenses “coin-operated amusement devices.” It was stated in the
letters that failure to pay the required fees promptly would
leave the plaintiff open to criminal prosecution, making him
subject to arrest for a misdemeanor and liable for a fine of one
hundred dollars for each offense.

The decision to tax these machines under Section 71 followed
the decision in Dept. of Housing and Community Development v.
Ellwest Stereo Theaters, Inc., 263 Md. 678,

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284 A.2d 406 (Dec. 13, 1971). The Court of Appeals of Maryland
held that establishments having a number of these coin-operated
movie machines on the premises were not motion picture theaters
as the City of Baltimore contended and not subject to motion
picture theater regulations. Following the Ellwest decision,
Benton was advised that he should proceed with the collection of
license fees for these coin-operated machines. (PX-1, p. 11)

Plaintiff cites this sequence of events as evidence of
selective enforcement and harassment to effect suppression of his
activities by attempting to force him out of business. Defendants
explain this chain of events as an effort to fit plaintiff’s
businesses under the appropriate ordinance in recognition of
Ellwest. The testimony of Benton (PX-1, p. 17) substantiates
the City’s position that the ordinance is enforced uniformly and
all those with coin-operated amusement devices in the City must
pay the fee. Plaintiff offered no evidence to controvert this
except to state that motion picture projectors are not taxed
under section 71. From this evidence it is apparent that the
application of this ordinance is uniform.

On the question of the prohibitive nature of this tax, the
record is silent as to the income from the machines and lacks any
data to show that a tax of $150.00 is truly prohibitive; further,
he did not allege or show that he is unable to pay the fees. When
questioned about other taxation of his businesses, plaintiff
answered that he pays for a “trader’s license” which was
described as a general business license. Mr. Kinnersley stated in
his deposition that this trader’s license was the only other
(other than § 71) tax that he knew of that plaintiff was required
to pay, and that this license was issued “by the Court of Common
Pleas under the state.” (PX-2, p. 20) The evidence is clear that
the fees imposed under section 71 are the only City tax imposed
on the plaintiff’s businesses.

Attempts by the City to revoke permits granted under section 71
to similar businesses have occurred (PX-1, p. o). These attempts
led to the Ellwest case where plaintiffs succeeded in enjoining
the withdrawal of their arcade

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permits granted under Article 15, § 71(b). The power to revoke
or refuse to license machines under this ordinance is understood
by Benton (PX-1, p. 7) to reside in the Director of Finance upon
the approval of the Mayor under Article 15, § 22.[2a] This
authority is urged by plaintiff to be arbitrary and overbroad,
making the ordinance unconstitutional. However, such an
interpretation of section 22 and its relationship to section 71
is not advanced in any judicial decision or administrative
opinion relied on by the City.

Establishments having fifteen or more coin-operated devices,
licensed under Article 15, § 71(a)(1), qualify for licensure as
an amusement arcade under Article 15, § 71(b), and must pay an
annual fee of $1200.00.[3a]

No evidence was presented of any rules or regulations
promulgated under section 71 (g) for enforcement and collection
of fees.[4a]

There was no showing of “bad faith” enforcement of these
ordinances or a conspiracy to suppress plaintiff’s activities.

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CONCLUSIONS OF LAW

Plaintiff attacks the constitutionality of this ordinance on a
number of grounds: that the ordinance acts as a prior restraint
on First Amendment rights, is overly broad and vague, lacks
procedural safeguards, gives administrative officials unlimited
discretion, is class legislation, and further, that the
application of the ordinance has been unconstitutional due to
discriminatory enforcement, suppression of First Amendment
materials, unequal taxation and harassment by City officials.

Plaintiff’s standing to challenge the constitutionality of this
ordinance is uncontested by defendants. In the area of freedom of
expression, challenges that regulatory ordinances confer overly
broad discretion to licensing officials are favored, and

In the area of freedom of expression it is well
established that one has standing to challenge a
statute on the ground that it delegates overly broad
licensing discretion to an administrative office,
whether or not his conduct could be proscribed by a
properly drawn statute, and whether or not he applied
for a license. “One who might have had a license for
the asking may * * * call into question the whole
scheme of licensing when he is prosecuted for failure
to produce it.”

Freedman v. Maryland, 380 U.S. 51, 56 (1965).

Although Star has not been prosecuted for failure to obtain the
required licenses, he has been threatened with prosecution;
further, revocation of licenses under this ordinance have
occurred and the power to refuse or revoke these licenses may
have a “chilling effect” on plaintiff’s exercise of freedom of
expression. The potency of such threats to freedom of expression
has been recognized in United Steelworkers (AFL-CIO) v.
Bagwell, 383 F.2d 492 (4th Cir. 1967), where a union organizer
was found to have standing to challenge the constitutionality of
an anti-littering ordinance that was held out as requiring a

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permit for his union activities even though he had never applied
for such a permit, or been denied one, and had never been
prosecuted for failure to obtain a permit. However, he had been
threatened with prosecution under the ordinance and such a threat
in the area of First Amendment rights was held to be inhibitory
of free exercise, giving him standing to challenge the licensing
provisions.

Films shown in these coin-operated machines are protected under
the First Amendment as motion picture films, “* * * expression by
means of motion pictures is included within the free speech and
free press guarantee of the First and Fourteenth Amendments.”
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952). It
would seem anomalous to distinguish between motion pictures shown
in motion picture theaters and those shown in coin-operated
machines as far as the breadth of the First Amendment is
concerned, and we do not. Other courts considering this question
have refused to make the distinction. 414 Theater Corp. v.
Murphy, et al., 73 Civil No. 22, Memorandum Opinion No. 39641
(S.D.N.Y., filed June 29, 1973); Soof v. City of Highland Park,
30 Mich. App. 400, 186 N.W.2d 361 (1971).

Plaintiff argues that the taxation imposed by section 71 (a)
(1) is invalid since it taxes freedoms guaranteed by the First
Amendment. Certainly taxation as well as any regulation in the
First Amendment area meets stiff judicial scrutiny; however,
commercial enterprises dealing in First Amendment materials or
exercising First Amendment rights are not immune from reasonable
taxation. Grosjean v. Am. Press Co., 297 U.S. 233 (1935)
(newspapers); Chemline Inc. v. City of Grand Prairie, 364 F.2d 721
(5th Cir. 1966) (movie theater); City of Corona v. Corona
Daily Independent, 115 Cal.App.2d 382, 252 P.2d 56, cert.
den., 346 U.S. 833 (1952); Soof, supra (coin-operated movie
machines).

Grosjean held that the destructive effect of the taxation on
the breadth of newspaper circulation made the tax impermissible.
Similarly, in Murdock v. Pennsylvania, 319 U.S. 105 (1943), the
Court found that the tax imposed on

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those soliciting door-to-door served to restrict freedom of
religion of religious colporteurs seeking to distribute
literature, thereby spreading their faith. The Court in Murdock
drew a strong distinction between such ordinances regulating
commercial enterprises and those regulating non-commercial
enterprises. In Murdock it is clear that the effect of the tax
on the enterprise — not its form — must be examined to see if the
tax restricts free exercise. “It is true that the First
Amendment, like the commerce clause, draws no distinction between
license taxes, fixed sum taxes, and other kinds of taxes. But
that is no reason why we should shut our eyes to the nature of
the tax and its destructive effect.” 319 U.S. at 113.

Businesses such as plaintiff’s are subject to reasonable,
non-confiscatory taxation. In view of the absence of any showing
of hardship by plaintiff or inability to pay the tax and the
evidence that proprietors with such machines uniformly pay this
tax, the tax is neither unreasonable nor discriminatory.

Plaintiff questions the legitimacy of purpose in the taxation,
suggesting that the tax must be limited to an amount calculated
to defray the administration of licensing and related activities.
The City contends that it has broad authority to tax businesses
within its jurisdiction, citing McBriety v. Baltimore,
219 Md. 223, 148 A.2d 408 (1958), and admits that this ordinance provides
revenue to the City. (PX-1, p. 19)

Certainly businesses engaged in activities protected by the
First Amendment are not immune from contribution to the increased
costs to the City for upkeep and added services required as a
result of business operations, even though they deal in First
Amendment materials. As long as the taxation is uniform and
reasonable, and non-discriminatory, the City’s purpose in seeking
additional operating revenue through these licensing ordinances
is valid. The court considered this issue in Soof, supra,
stating at page 364, “The commercial entrepreneur can
legitimately be subjected to license regulations which, for
example, require a reasonable, non-confiscatory license fee to
provide

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additional revenue to offset increased municipal expenses
resulting from the licensee’s operation,” and in City of Corona
v. Corona Daily Independent, supra, the court found a
non-discriminatory tax levied on newspapers as well as other
business, for the sole purpose of maintaining the municipal
government, was constitutional.

Plaintiff’s challenge to the ordinance is based on the alleged
overbreadth of discretion granted to licensing officials. He
contends that section 22 has been applied to section 71 of
Article 15 in the past and can be applied to him in the future,
thus having a “chilling effect” on his activities since the
discretion is unlimited, without standards, and lacks procedural
safeguards. It is clear that any licensing of First Amendment
activities requires close examination, and licensing that allows
an official to refuse or revoke a required permit must set forth
limits to this discretion, standards to judge the objectivity of
the licensing process, and procedural safeguards that provide for
redress. Niemotko v. Maryland, 340 U.S. 268 (1950); Cox v. New
Hampshire, 312 U.S. 569 (1941).

It is well settled by a long line of recent
decisions of this Court that an ordinance which, like
this one, makes the enjoyment of freedoms which the
Constitution guarantees contingent upon the
uncontrolled will of an official — as by requiring a
permit or license which may be granted or withheld in
the discretion of such official — is unconstitutional
censorship or prior restraint upon the enjoyment of
those freedoms.

Staub v. Baxley, 355 U.S. 313, 322 (1958).

A literal reading of section 22 would seem to make it
applicable to section 71 as well as to the other sections of
Article 15; however, the indexing and treatment of the sections
make the applicability less certain. Article 15 is a general
licensing article with 90 sections. Five other divisions of
Article 15 have separate sections providing for revocation or
refusal of licenses. Under “Ambulances” (section 5), the
Commissioner of Health is empowered to

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revoke licenses of ambulance drivers where carelessness is shown.
Section 26 (o) deals with the suspension of a bail bond license
by the Bail Bond Board “for any cause which would be sufficient
for denial of the license * * *.” Similarly, sections 40, 41 and
45 deal with the authority of the Director of Traffic to refuse,
revoke or suspend licenses granted under the provisions of
Article 15 that deal with “Drivers Schools.” Sections 67 and 86
give the Mayor power to grant or revoke, respectively, a
pawnbroker’s license if “sufficient cause is shown” and a produce
wholesaler’s license if it is shown that the licensee is in
violation of the applicable licensing provisions.

Section 71 stands independent of other sections of Article 15,
having its own separate enforcement provisions that allow the
Director of Finance to adopt and promulgate rules and regulations
for the collection of fees (71-g) and a separate section dealing
with penalties (71-h). By construing section 71 as a section that
allows no discretion in granting, refusing or revoking a license,
only non-payment of the fee can result in non-licensing and no
licensing standards or procedural safeguards are needed. Such an
interpretation is not only plausible from the construction of
Article 15, but is necessary if section 71 is to stand and
follows the “venerable principle” of construing a provision so as
to avoid doubtful constitutionality. United States v. Bradley,
418 F.2d 688, 691 (4th Cir. 1969).

For the reasons herein set forth, Baltimore City Code, Art.
15, § 71(a)(1) is constitutional on its face and as applied to the
plaintiff.

It is, therefore, this 26th day of September 1973,

ORDERED by the United States District Court for the District of
Maryland, that judgment be and hereby is entered in favor of the
defendants.

/s/ Joseph H. Young
United States District Judge

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