Assanah-Carroll v. Law Offices of Maher

Alison Assanah-Carroll v. Law Offices of Edward J. Maher, P.C., et al., Misc. No. 11, September Term, 2021, Opinion by Booth, J. LANDLORD AND TENANT—LOCAL LICENSING ORDINANCE—FAILURE TO LICENSE PROPERTY—TENANT’S ABILITY TO BRING PRIVATE RIGHT OF ACTION UNDER THE MARYLAND CONSUMER PROTECTION ACT (“MCPA”) TO OBTAIN RESTITUTION OF RENT BASED UPON LACK OF LICENSURE Article 13, § 5-4(a)(2) of the Baltimore City Code, which prohibits a landlord from charging, accepting, retaining, or seeking to collect rent for a rental property unless the property is properly licensed, does not provide Baltimore City tenants with a judicial remedy enabling City tenants to seek restitution of rent under the Maryland Consumer Protection Act (“MCPA”). A tenant may only maintain a private action under the MCPA for deceptive trade practices arising from renting an unlicensed dwelling if the tenant can prove that the unlicensed condition caused them to suffer an “actual injury or loss.” LANDLORD AND TENANT—LOCAL LICENSING ORDINANCE—FAILURE TO LICENSE PROPERTY—LANDLORD’S ABILITY TO COLLECT UNPAID RENT THAT IS DUE AND OWING DURING THE UNLICENSED PERIOD In McDaniel v. Baranowski, 419 Md. 560 (2011), this Court applied common law principles to preclude an unlicensed landlord from utilizing the summary ejectment proceeding to enforce his contractual right to collect rent during a period when the landlord did not have a license to engage in rental activity. We determine that there is no reason to draw a distinction between an unlicensed landlord who is currently attempting to collect rent that is attributable to the unlicensed period on the one hand, and a landlord who later obtains a license and files a summary ejectment proceeding to collect rent attributable to the same unlicensed period.

Based upon the Court’s authority to apply the common law principles expressed in the Restatement (Second) of Contracts § 181 (1981), the Court holds as follows: Where a municipality or county enacts a rental license law which conditions the performance of a residential lease upon the issuance of a rental license, and a landlord fails to possess a valid license for a period of the tenant’s occupancy, a landlord may not utilize the courts, whether through a common law breach of contract action, or a statutory action arising under Title 8 of the Maryland Code’s Real Property Article to recover unpaid rent that is attributable to the unlicensed period. This prohibition shall not apply where the landlord can demonstrate that the wrongful actions of the tenant caused the licensing authority to suspend, revoke, or refuse to grant or renew the rental license. LANDLORD AND TENANT—LOCAL LICENSING ORDINANCE—FAILURE TO LICENSE PROPERTY—TENANT’S ABILITY TO BRING PRIVATE RIGHT OF ACTION UNDER THE MARYLAND CONSUMER PROTECTION ACT (“MCPA”) OR THE MARYLAND CONSUMER DEBT COLLECTION ACT (“MCDCA”) FOR DEBT COLLECTION ACTIVITY ASSOCIATED WITH UNPAID RENT Given our holding that a landlord may not engage in debt collection activities or pursue claims against a tenant who has failed to pay rent attributable to a period when the landlord was unlicensed, a tenant may have a right of action under the MCDCA and the MCPA where the landlord engages in such activity, and the tenant can establish that the unlawful conduct caused damages. United States District Court for the District of Maryland IN THE COURT OF APPEALS Case No.: 20-02376-CCB Argued: March 4, 2022 OF MARYLAND Misc.

No. 11 September Term, 2021 ALISON ASSANAH-CARROLL v. LAW OFFICES OF EDWARD J. MAHER, P.C., et al. *Getty, C.J., Watts, Hotten, Booth, Biran, Gould, McDonald, Robert N. (Senior Judge, Specially Assigned), JJ. Opinion by Booth, J. Watts, J., concurs and dissents. Getty, C.J. and Gould, J., concur and dissent.

Filed: July 28, 2022 *Getty, C.J., now a Senior Judge, participated in the hearing and conference of this case while an Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this active member of this Court. After being document is authentic. recalled pursuant to Md. Const., Art. IV, § 3A, 2023-01-17 15:27-05:00 he also participated in the decision and adoption of this opinion. Gregory Hilton, Clerk Under the Baltimore City Code, a landlord is required to have a rental license to provide residential rental housing. This matter comes before the Court pursuant to two questions of law certified1 by the United States District Court for the District of Maryland (“federal district court”) regarding a tenant’s right to recoup rent voluntarily paid by a tenant, as well as a landlord’s right to collect unpaid rent, which is attributable to the period in which the landlord was not licensed.

The federal district court has certified the following questions to this Court, which we have slightly rephrased as follows:2 1 Under the Maryland Uniform Certification of Questions of Law Act, Maryland Code, Courts & Judicial Proceedings Article (“CJ”), § 12-601 et seq. (1996, 2020 Repl. Vol.), this Court has the power to “answer a question of law certified to it by a court of the United States or by an appellate court of another state or of a tribe, if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision, or statute of this State.” CJ § 12- 603. 2 We have slightly rephrased the questions pursuant to our authority under CJ § 12- 604. The questions presented to this Court in the certification order are: 1.

Can a tenant who paid rent to a landlord in Baltimore City who lacked a license pursuant to the Baltimore City Code, Art. 13 § 5-4 maintain a lawsuit under either the Maryland Consumer Debt Collection Act (the “MCDCA”) or the Maryland Consumer Protection Act (the “MCPA”) to recover the rent paid without a showing of any damages separate from the rental payment itself? 2. Does a currently licensed landlord violate either the MCDCA or the MCPA by collecting rent from a tenant or pursuing ejectment actions against a tenant who has failed to pay rent during a prior period when the landlord, or a prior landlord, was not licensed under Baltimore City Code, Art. 13 § 5-4, where the tenant does not allege any damages separate from the rental payment itself? 1. Can a tenant who voluntarily paid rent to a landlord who lacked a rental license pursuant to the Baltimore City Code, Art. 13 § 5-4 maintain a private action under either the Maryland Consumer Debt Collection Act (the “MCDCA”) or the Maryland Consumer Protection Act (the “MCPA”) to recover restitution of rent where the tenant has not alleged that the lack of licensure caused her any actual injury or loss? 2. Does a currently licensed landlord violate either the MCDCA or the MCPA by engaging in debt collection activity or pursuing ejectment actions against a tenant who has failed to pay rent that is attributable to the period when the landlord was not licensed under Baltimore City Code, Art. 13 § 5-4, where the tenant does not allege any damages separate from the rent payment itself?

The answer to question 1 is “no.” As set forth more fully herein, a tenant who voluntarily paid rent to a landlord who lacked a rental license may not bring a private action under the MCPA or the MCDCA to recover restitution of rent based upon the landlord’s lack of licensure. Our case law firmly establishes that a tenant may only maintain a private action under the MCPA for deceptive trade practices arising from renting an unlicensed apartment if the tenant can prove that the unlicensed condition caused the tenant to suffer an “actual injury or loss.” The Baltimore City Council, in enacting Bill 18-0185, which added § 5-4(a)(2) to the Baltimore City Code, did not intend to create a judicial remedy enabling City tenants to seek restitution of rent as part of a private action filed under the MCPA. Even if the City Council had intended to create such a remedy, the City Council lacks the authority to adopt a local law that modifies the remedies established by the MCPA—a state statute that provides uniform remedies to consumers on a state-wide basis who are subject to unfair, abusive, or deceptive trade practices. With respect to question 2, we answer “yes.” Consistent with this Court’s authority to apply the common law, we hold that where a municipality or county enacts a rental 2 license law, which conditions the performance of a residential lease upon the issuance of a rental license, a landlord may not file an action against a tenant to recover unpaid rent that is attributable to the period when the property was not licensed.

Accordingly, where a landlord attempts to collect unpaid rent from a tenant during a period when the landlord lacked a license to engage in such activity, a tenant may have a claim under the MCDCA and the MCPA to the extent that the landlord’s unlawful collection activity caused the tenant to suffer damages, including rent payments made in response to the landlord’s attempts to collect the unpaid rent. I Background Under the Maryland Uniform Certification of Questions of Law Act, § 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). In responding to a certification from another court, this Court accepts the facts provided by the certifying court. See, e.g., Price v. Murdy, 462 Md. 145, 147 (2018).

We resolve only issues of Maryland law, not questions of fact. Parler & Wobber v. Miles & Stockbridge, 359 Md. 671, 681 (2000). A. Procedural Posture of the Case Pending in the Federal District Court Appellant Alison Assanah-Carroll (“Assanah-Carroll”) is a tenant in an apartment building located at 2601 Madison Avenue in Baltimore (the “property”), which is owned and operated by the Appellees E.T.G. Associates ’94 LP and Roizman Development, Inc. 3 For ease of reference, we will refer to both entities collectively as “Roizman.” In Baltimore City, all rental dwellings are required to be licensed. The property was unlicensed from August 15, 2019 to July 14, 2020.

The complaint 3 alleges that Roizman collected and retained rent from tenants for the period that the property was unlicensed, refused to return the rent, and sought to collect unpaid rent that was owed during the period when the property was unlicensed. Assanah-Carroll filed a class action complaint in the federal district court against Roizman, as well as the Law Offices of Edward J. Maher, P.C. and Edward J. Maher (“Maher”)—the latter being the attorney and law firm that Roizman retained to assist with the collection of unpaid rent that was owed during the period when the landlord did not have a license. For ease of reference, we will refer to Maher and the law firm collectively as the “Law Office.” The complaint was filed on behalf of Assanah-Carroll and members of a putative class comprised of other tenants who resided in the 146-unit apartment building during the unlicensed period. Roizman filed a motion to dismiss, in which the Law Office joined.

Before ruling on the motion to dismiss, the federal district court, with the parties’ consent, determined that it was advisable to consider our response to the certified questions presented herein, as well as our opinion in Aleti v. Metropolitan Baltimore, LLC, 479 Md. 650 (Filed July 28, 2022), which we issue simultaneously herewith. 3 The operative complaint is the First Amended Class Action Complaint and Demand for Jury Trial (hereinafter referred to as the “complaint”). 4 B. Facts Set Forth in the Certification Order In connection with our consideration of the questions of law presented herein, we accept the following facts set forth in the federal district court’s certification order, which are based upon Assanah-Carroll’s allegations contained in the complaint filed in that court. 1. Facts Related to Assanah-Carroll’s Voluntary Rent Payments Made During the Unlicensed Period Assanah-Carroll leased an apartment in a residential multi-unit building in Baltimore City, owned and operated by Roizman. When she began living in the apartment, the property had a valid license under the Baltimore City Code. During Assanah-Carroll’s tenancy, the license lapsed for approximately one year, and thereafter the property became properly licensed again, and continues to be properly licensed.

Assanah-Carroll made rental payments during the period when the property’s license had lapsed. She stopped making rental payments when she learned that the property’s license was not in effect. When she learned the property was again licensed, she resumed making rental payments. Assanah-Carroll does not allege that her dwelling unit was uninhabitable or that the value of the lease was diminished by any condition of the property caused by the lack of licensure.

Her claim for damages4 under the MCDCA and MCPA is based solely upon the 4 Assanah-Carroll characterizes her effort to recoup her rent payments as “damages.” As we explain more fully in this opinion, the rent payments she seeks to recover are not damages—rather, she is seeking restitution. As Dan B. Dobbs explains, “restitution is not damages; restitution is a restoration required to prevent unjust enrichment.” Law of Remedies: Damages-Equity-Restitution, 376 (3d ed. 2018). 5 fact that the property was not licensed. She alleges that the entire rental payment for any unlicensed period constitutes damages. 2. Facts Related to the Law Office’s Efforts to Collect Unpaid Rent Attributable to the Unlicensed Period On behalf of their clients, the Law Office filed summary ejectment actions in the District Court of Maryland sitting in Baltimore City to collect unpaid rent that would have been owed during the period that the property was unlicensed.

Assanah-Carroll made a payment for rent incurred during the period in which the property was unlicensed in order to redeem her lease pursuant to a final judgment of the Baltimore City District Court. Assanah-Carroll alleges that the collection of rent during the unlicensed period violated the Baltimore City Code, and that those payments constitute damages under the MCDCA and MCPA and must be refunded. For rent that was unpaid, she alleges that attempting to collect unpaid back rent for months when the property was not licensed, even though the property is currently licensed, violates the Baltimore City Code. She further asserts that the full amount of the unpaid rental payments constitutes damages under the MCDCA and MCPA.

II Discussion Baltimore City, like many other local governments in Maryland, has enacted a public local law governing residential rental licenses and inspections (sometimes hereinafter referred to as the City’s “rental license law”). The City’s rental license law has been around for many decades. The provisions of the Baltimore City Code that establish 6 the residential licensing and inspection requirements are codified in Article 13, Subtitle 5 of the Baltimore City Code. Under the applicable provisions of the Baltimore City Code, a person may not rent or offer to rent a residential dwelling unit5 without a rental license issued by the Baltimore City Housing Commissioner.

Baltimore City Code Art. 13, § 5- 4(a)(1).6 As a prerequisite to the issuance of an initial license or a renewal license, the unit must pass an inspection that certifies compliance with various housing codes. § 5-7. Violators of the rental license law may be subject to criminal and civil penalties, including a daily fine of $1,000 for every day that the violation continues. §§ 5-25, 5-26.7 In 2018, the Baltimore City Council adopted Bill 18-0185, which amended certain sections of Article 13, Subtitle 5. The Bill effectuated two significant changes to the City’s rental license laws. First, it expanded the application of the City’s rental license and inspection requirements to all non-owner-occupied dwellings rather than just multi-unit properties.

Aleti, Op. at 8. Second, it required property owners to hire third-party licensed home inspectors (instead of City inspectors) to complete the rental inspections prior to 5 The Baltimore City Code Article 13, § 5-1(g) defines “rental dwelling” as: “(1) any multiple-family dwelling; (2) any rooming house; and (3) any non-owner-occupied dwelling unit in a 1- or 2-family dwelling that is leased or rented or offered or available for lease or rental in exchange for any form of consideration.” 6 All references to the Baltimore City Code are to Article 13. For the sake of brevity, we shall refer to all provisions of Article 13 by the applicable subtitle section reference. For example, Art. 13 § 5-4 shall be referred to as “§ 5-4.” 7 In Aleti v. Metropolitan Baltimore, LLC, 479 Md. 650 (Filed July 28, 2022), we more fully describe the statutory scheme of the City’s rental license law, including the amendments made to the licensing requirements in 2018. 7 receiving a rental license, thereby shifting the administrative burden associated with those inspections from the City to the property owner.8 Id. at 8–9.

In connection with the expansion of the application of the City’s rental and inspection requirements to all owner-occupied dwelling units, Bill 18-0185 included an amendment to § 5-4. Prior to the 2018 amendment, § 5-4 stated as follows: “No person may: operate any multiple-family dwelling or rooming house without a license to do so from the Commissioner.” Bill 18-0185 modified the language in § 5-4(a) to read as follows: § 5-4. License Required. (a) In general.

Except as provided in subsection (b) of this section, no person may:[9] (1) rent or offer to rent to another all or any part of any rental dwelling without a currently effective license to do so from the Housing Commissioner; or (2) charge, accept, retain, or seek or collect any rental payment or other compensation for providing to another the occupancy of all or any part of any rental dwelling unless the person was licensed under this subtitle at both the time of offering to provide and the time of providing this occupancy. 8 The 2018 amendment also made additional changes, such as implementing a tiered license expiration based upon the property owner’s compliance with the local laws. However, the salient substantive changes related to the expansion of the license and inspection requirements to all non-owner-occupied dwellings and the privatization of the inspection process. 9 Section 5-4(b) contains an exception to the license requirement established in subsection (b) for any rental dwelling that is owned and operated by the Housing Authority of Baltimore City. 8 Assanah-Carroll alleges that the language set forth in § 5-4(a)(2), which came into existence with the adoption of Bill 18-0185, gives her a right to maintain a private action under the MCPA to obtain recovery of the rent that she paid during the period that the property was unlicensed without showing that she suffered any actual injury or damages from Roizman’s lack of licensure. She contends that the City’s enactment of this local law is “an express prohibition on the collection or retention of rent where a property was unlicensed at the time the occupancy was provided or at the time it was offered” and that the “plain language” of this local law “requires forfeiture of the prohibited rent regardless of whether the apartments were uninhabitable.” Unlike the tenants in Aleti, Assanah- Carroll does not allege that § 5-4(a)(2) creates its own implied private right of action to pursue such a remedy. Instead, she asserts that § 5-4(a)(2) establishes a judicial remedy of restitution that she may pursue by filing a private action under the MCPA.

Stated another way, Assanah-Carroll is asserting that Baltimore City has enacted a local law that provides her with additional remedies under a state statute. To consider Assanah-Carroll’s legal argument, we start our discussion by examining the statutory remedies provided by the General Assembly to consumers under the MCPA for violations of the Act, as well as our case law spanning 30 years which has consistently interpreted these remedies. The remedies established by the Maryland General Assembly within the context of the MCPA, and our case law interpreting the same, are particularly instructive here because “the creation of new causes of action in the courts has traditionally been done either by the General Assembly or by this Court under its authority to modify the common law of this State.” McCrory Corp. v. Fowler, 319 Md. 12, 20 (1990), 9 superseded by statute as stated by Wash. Suburban Sanitary Comm’n v. Phillips, 413 Md. 606 , 627–29 (2010).

And, as discussed in detail below, if we were to hold that the Baltimore City Council, in fact, intended to enact a local law purporting to modify the judicial remedies expressly provided under a state statute—the MCPA—such remedies would be inconsistent with the remedies provided by the plain language of the MCPA as consistently interpreted by this Court. A. Maryland Consumer Protection Act In 1973, the Maryland General Assembly enacted the MCPA, which is set forth in Maryland Code (1974, 2013 Repl. Vol., 2021 Supp.), Commercial Law Article (“CL”) § 13-101, et. seq. The purpose of the MCPA is to “set certain minimum statewide standards for the protection of consumers across the State . . . .” CL § 13-102(b)(1).

In enacting the MCPA, the General Assembly determined that the State “should take strong protective and preventative steps to investigate unlawful consumer practices, to assist the public in obtaining relief from these practices and to prevent these practices from occurring in Maryland.” CL § 13-102(b)(3). The General Assembly further instructed that the MCPA shall be “construed and applied liberally to promote its purpose.” CL § 13-105. To that end, the MCPA prohibits all trade practices that are unfair, abusive, or deceptive in, among other things, the collection of consumer debts. See CL §§ 13-301(14)(iii); 13-303(5).

Section 13-303 of the MCPA generally prohibits unfair, abusive, or deceptive trade practices, and § 13-301 contains a nonexclusive list of practices that are defined to be unfair, abusive, or deceptive, and include any: 10 (1) False, falsely disparaging, or misleading oral or written statement, visual description, or other representation of any kind which has the capacity, tendency or effect of deceiving or misleading consumers;10 (2) Representation that: (1) Consumer . . . realty . . . [has] a sponsorship, approval, accessory, characteristic . . . which they do not have; (3) Failure to state a material fact if the failure deceives or intends to deceive[.] We have held that a landlord who advertises and rents an unlicensed dwelling in violation of the Baltimore City rental license law violates CL § 13-301(1), (2), and (3). See Golt v. Phillips, 308 Md. 1, 9 (1986). However, as discussed below, simply establishing a violation of the MCPA does not entitle a consumer to a right to restitution of rent paid that would otherwise be owed in the absence of a violation. The Act not only defines the prohibited practices—it also provides separate public and private enforcement provisions, each with their own remedies.

We recently described the MCPA as “provid[ing] an array of options in enforcing the Act, some of them punitive in nature, designed to protect the public at large by punishing the wrongdoer, some designed more particularly to benefit individual victims of statutory violations, [and] some having a dual purpose, depending on the circumstances.” Linton v. Consumer Protection Division, 467 Md. 502, 515 (2020). In Linton, we discussed at length the distinction between the statutory relief available to consumers under the MCPA for civil damages, and the Under the Maryland Consumer Protection Act (“MCPA”), “consumer realty” is 10 defined as real property that is “primarily for personal, household, family or agricultural purposes.” CL § 13-101(d)(1). “Consumer” is defined as an “actual or prospective purchaser, lessee, or recipient of consumer goods, consumer services, consumer realty, or consumer credit.” CL § 13-101(c)(1). Under these definitions, residential tenants who lease real property qualify for protection under the MCPA. See Golt v. Phillips, 308 Md. 1, 8 (1986). 11 Division’s ability to recover restitution and disgorgement of funds received by defendants through their statutory misconduct.

Id. at 515–21. We classified the statutory enforcement options under the MCPA as falling within three categories. Id. at 515–16. 1. Public Enforcement by the Division In the first category are purely public enforcement measures—consisting of civil penalties that the Consumer Protection Division (“Division”) of the Office of the Attorney General, may impose against “merchants”11 who violate the Act, see CL § 13-410, as well as criminal penalties, see CL § 13-411.

Such actions may be initiated by a consumer complaint or a Division investigation. We described the Division’s broad powers to enforce the MCPA as including “the power to receive and investigate consumer complaints, initiate . . . investigation[s] of any possibly unfair and deceptive trade practice, issue cease and desist orders, adopt rules and regulations . . . and seek a temporary or permanent injunction in a civil enforcement proceeding.” Consumer Protection Div. v. Consumer Publ’g, 304 Md. 731, 745 (1985). Violators of the MCPA may also be criminally prosecuted. CL § 13-411. 2.

Private Right of Action In addition to these public enforcement provisions described above, the Legislature has also provided for a private action for damages by a consumer who has been subjected to a practice that is prohibited under the MCPA. CL § 13-408 provides in pertinent part: (a) Actions authorized. — In addition to any action by the Division or Attorney General authorized by this title and any other action otherwise 11 “Merchant” is defined as “a person who directly or indirectly either offers or makes available to consumers any consumer goods, consumer services, consumer realty, or consumer credit.” CL § 13-101(g). 12 authorized by law, any person may bring an action to recover for injury or loss sustained by him as the result of a practice prohibited by this title. (b) Attorney’s fees. — Any person who brings an action to recover for injury or loss under this section and who is awarded damages may also seek, and the court may award, reasonable attorney’s fees. (c) Frivolous actions. — If it appears to the satisfaction of the court, at any time, that an action is brought in bad faith or of a frivolous nature, the court may order the offending party to pay the other party reasonable attorney’s fees.

As we will discuss more fully below, for more than 30 years, we have consistently interpreted the plain language of CL § 13-408 as requiring that a plaintiff pursuing a private action under the MCPA must prove “actual injury or loss.” Lloyd v. Gen. Motors Corp., 397 Md. 108, 143 (2007); CitaraManis v. Hallowell, 328 Md. 142, 153 (1992). 3. The Right of the Attorney General and the Division to Seek Disgorgement and Restitution Remedies Through Public Enforcement That May Benefit Individual Consumers “In the third category are remedies that the [Division] may pursue to protect the public, directly or indirectly and to provide relief to individual [consumers].” Linton, 467 Md. at 516 (emphasis in original). “CL § 13-406 permits the Attorney General to sue for an injunction to prohibit persons from violating the Act, which can aid both the public and one or more [consumers], depending on what is sought to be enjoined.” Id. In addition to providing injunctive relief, CL § 13-406(c) “permits the court to restore to a person any money or real or personal property acquired from the person by means of a prohibited practice.” Id.

(cleaned up). We observed that “[a]lthough there is an indirect benefit to the public from that provision in terms of inflicting some economic pain on the violator, which, 13 depending on the circumstances, could be substantial, it is clearly designed as well to benefit individual victims.” Id. In Linton, we also pointed out an additional enforcement option in the third category—set forth in CL § 13-403(b)(1)(i)—which “permits [the Division], as part of a cease and desist order, to order the violator ‘to take affirmative action, including the restitution of money or property.’” Id. (some quotation marks omitted).

We observed that “[r]estitution also is provided for in [CL § 13-403(b)(1)(ii)], which allows the cease and desist order to contain any stipulation or condition listed in [CL] § 13-402(b).” Id. As we stated in Linton, the MCPA does not mention the word “disgorgement,” nor does it define the word “restitution.” Linton, 467 Md. at 517 . We observed that the “connection between those terms was supplied by this Court in Consumer Protection v. Consumer Pub[lishing], in which the Court first explored in any depth the purpose and meaning of the then-relatively new [MCPA].” Id. In Linton, we confirmed “a critical holding” in Consumer Publishing—which is this Court’s adoption of the distinction between civil damages and disgorgement/restitution.

Id. at 519 . Because Assanah-Carroll is seeking the remedy of restitution or disgorgement of rent payments within the context of a private action brought under CL § 13-408, it is useful to revisit this distinction. In Consumer Publishing, the Court explored the purpose and meaning of the then- relatively new MCPA. 304 Md. 731 . One issue was whether, as part of a cease and desist order, the Division could order restitution when there was no evidence of reliance by consumers on the company’s misleading advertisements.

Id. at 775 . In the context of this issue, we looked at the meaning of restitution and contrasted it with that of civil damages. 14 Id. at 776 . In doing so, this Court aligned itself with the views of Professor Dan. B. Dobbs, expressed in Dobbs, Law of Remedies § 4.1 at 224 (1973): “The damages recovery is to compensate the plaintiff and it pays him, theoretically, his losses.

The restitution claim, on the other hand, is not aimed at compensating the plaintiff but at forcing the defendant to disgorge the benefits it would be unjust for him to keep . . . Restitutionary recoveries often amount to about the same as the plaintiff’s losses, and thus serve many of the compensatory purposes served by a damages recovery. The justification lies, however, in the avoidance of unjust enrichment on the part of the defendant.” Consumer Publishing, 304 Md. at 776 .12 Normally, the Court continued, a plaintiff seeking disgorgement/restitution must show reliance on the misrepresentation. Id. at 777 .

After reviewing case law from other jurisdictions, we concluded that the reliance requirement is relaxed when the remedy is pursued by a government consumer protection agency. Id. at 779–81. We similarly determined that under the MCPA, “the Division may include a general restitution provision in a cease and desist order without direct proof of consumer reliance.” Id. at 781 . In Linton, after discussing Consumer Publishing and noting that the principles enunciated in that case have been “confirmed several times by this Court and applied by the 12 As we noted in Linton v. Consumer Protection Division, 467 Md. 502 , 518 n.5 (2020), Professor Dobbs later updated his 1973 book.

The current version is Dan B. Dobbs and Caprice L. Roberts, Law of Remedies, 3d ed. (2018). The authors confirm the difference between restitution and civil damages: “Restitution measures the remedy by defendant’s gain and seeks to force disgorgement of that gain. It differs in its goal or principle from damages, which measures the remedy by plaintiff’s loss and seeks compensation for that loss.” Id. at 374.

They give a simple example: the defendant steals [or obtains by fraud] the plaintiff’s watch, which has a value of $30, but which the defendant sells for $40. The plaintiff’s loss and compensatory damage is $30, but a restitution recovery is $40 – the measure of the defendant’s unjust enrichment. Id. 15 Court of Special Appeals and the U.S. Court of Appeals for the Fourth Circuit,” we once again affirmed the distinction between civil damages and disgorgement/restitution, stating that restitution through disgorgement is not in the nature of civil damages. Linton, 467 Md. at 519–20 (citing Consumer Protection v. Morgan, 387 Md. 125 , 164–66 (2005); Luskin’s v. Consumer Protection, 353 Md. 335, 383 (1999); CitaraManis v. Hallowell, 328 Md. 142 , 152–53 (1992); State v. Andrews, 73 Md. App. 80 , 85–86 (1987); In re Edmond, 934 F.2d 1304 (4th Cir. 1991)).

We pointed out that “restitution through disgorgement has a punitive element to it, it partakes of a public remedy, not just a personal one, especially when pursued by a government agency authorized by statute to pursue it.” Linton, 467 Md. at 520 . Notably, the right to seek disgorgement/restitution is solely within the purview of the Division. In other words, the MCPA does not confer a remedy of restitution as part of the consumer’s private action under CL § 13-408. The consumer’s private remedy is limited to “bring[ing] an action to recover for injury or loss sustained by him as a result of a practice prohibited by this title.” CL § 13-408(a) (emphasis added).

Only the Attorney General and the Division have the right to pursue the remedy of disgorgement/restitution— either in connection with the right to seek injunctive relief under CL § 13-406 or the Division’s authority to enter a cease and desist order under CL § 13-403(b)(1)(i) and (ii). Additionally, the Division’s ability to order restitution upon a finding of a statutory violation is not unlimited. “For the Division to order a violator to pay restitution to a particular individual, . . . the Division must determine that the consumer relied upon the misrepresentation.” Morgan, 387 Md. at 163 . “In Maryland, ‘[t]here is a reliance element in restitution.’” Id. (quoting Luskin’s, 353 Md. at 385 ); see also Consumer Protection v. 16 Outdoor World, 91 Md. App. 275, 291 (1992) (noting that “actual restitution may not be ordered in the absence of some evidence that the individual purchaser was deceived by and relied upon the offending communication”); Consumer Publishing, 304 Md. at 781 (holding that a blanket order or automatic restitution to all consumers was improper because restitution to particular purchasers was appropriate only after verification of actual reliance by those purchasers on the company’s misleading or deceptive advertisements). B. The Maryland Consumer Debt Collection Act The MCDCA was first enacted in 1972 and is codified at CL § 14-201, et. seq.

It applies to any “person collecting or attempting to collect an alleged debt arising out of a consumer transaction.” CL § 14-201(b) (defining “collector”); see also Nationstar Mortgage, LLC v. Kemp, 476 Md. 149, 161 (2021) (explaining that “[t]he MCDCA regulates the conduct of anyone who collects—or attempts to collect—a debt arising from a consumer transaction[]”). The MCDCA prohibits eleven categories of conduct when collecting or attempting to collect a debt, including: claiming, attempting, or threatening to enforce a right with knowledge that the right does not exist. CL §§ 14-202(8). “To prove a claim under this provision of the MCDCA, a complainant must establish two elements: (1) the debt collector did not possess the right to collect the amount of debt sought; and (2) the debt collector attempted to collect the debt knowing that it lacked the right to do so.” Chavis v. Blibaum & Assocs., P.A., 476 Md. 534, 553 (2021) (cleaned up). The “with knowledge” element of this subsection of the MCDCA “require[s] proof that a debt collector claimed, attempted, or threatened to enforce the non-existent right ‘with actual knowledge or with reckless disregard as to the falsity of the existence of the right.’” 17 Chavis, 476 Md. at 563 (quoting Fontell v. Hassett, 870 F. Supp. 2d 395, 407 (D. Md. 2012)) (internal quotation marks and citations in Fontell omitted).

Under CL § 14-203, “[a] collector who violates any provision of [the MCDCA] is liable for any damages proximately caused by the violation, including damages for emotional distress or mental anguish suffered with or without accompanying physical injury.” Like the MCPA, actual damages are an element of any MCDCA claim.13 Although MCDCA authorizes a private action (CL § 14-203), it does not provide for its own public enforcement. Rather, the General Assembly incorporated a provision into the MCPA making it an “unfair or deceptive trade practice” to engage in conduct that violates the MCDCA. CL § 13-301(14)(iii). C. Our Jurisprudence Concerning a Tenant’s Right to Bring a Private Action Under the MCPA Against a Landlord for Renting a Dwelling Without a License In the rental housing context, our jurisprudence firmly establishes a tenant’s right to bring a private action under the MCPA where a landlord violates a local rental license law, and the tenant can prove that he or she suffered actual injury or loss in connection with the unlicensed status of the property.

It similarly rejects the tenant’s ability to bring an action seeking restitution or disgorgement of rent under a private action filed under the MCPA based upon lack of licensure alone. 13 Two provisions of the MCPA also apply to consumer debt collection practices. CL § 13-303(5) prohibits a person from “engag[ing] in any unfair, abusive, or deceptive trade practice . . . in . . .[t]he collection of consumer debts[.]” A violation of the MCDCA also constitutes a per se violation of the MCPA as an “unfair, abusive, or deceptive trade practice.” CL § 13-301(14)(iii). 18 In Golt v. Phillips, 308 Md. 1 (1986), we first considered a tenant’s private action under the MCPA filed against his landlord, who was unlicensed under the Baltimore City rental license law. In that case, not only was the landlord unlicensed, but the apartment was uninhabitable. Id. at 5–6.

After the tenant moved in and the landlord refused to make repairs, the tenant called the City, which performed an inspection. Id. The housing inspector discovered that the landlord did not have the necessary license or inspection to operate the building as a multiple family dwelling. The inspector also found numerous housing code violations, including the lack of toilet facilities in the tenant’s apartment, defective doors and locks, and the lack of fire exits and fire doors.

Id. at 6 . The City issued violation notices to the landlord, ordering the landlord to correct the violations and either obtain a proper license or discontinue renting the multiple family dwelling. Id. Within five days of the inspection, the landlord sent the tenant an eviction notice informing him that the apartment was not properly licensed and was being illegally rented.

Id. The landlord ordered the tenant to vacate the apartment. Id. The tenant vacated and moved to a new apartment that cost considerably more than the rent that was advertised for the apartment that turned out to be unlicensed.

Id. After the tenant moved out and requested the return of his deposit, the landlord informed him that he was withholding a portion of the security deposit for rent and utility charges. Id. The tenant rejected the landlord’s tender of the balance of the deposit and filed suit in District Court.

Id. The tenant’s action included a claim that the landlord’s actions violated the MCPA. Id. The landlord filed a counterclaim for additional rent and other monies allegedly due.

Id. 19 After the District Court denied the tenant any relief under the MCPA, and the circuit court dismissed the tenant’s appeal, we granted the tenant’s petition for a writ of certiorari to determine whether the tenant had an action under the MCPA against the landlord. We first determined that advertising and renting an unlicensed dwelling violates CL § 13-301(1), (2), and (3). Id. at 9. After concluding that the landlord’s action in renting the unlicensed dwelling constituted an unfair and deceptive trade practice under the MCPA, we considered the “the amount of damages that may be received under the [M]CPA.” Id. at 11.

We observed: Section 13-408 of the [M]CPA sets forth the private remedy created by the act: “any person may bring an action to recover for injury or loss sustained by him as the result of a practice prohibited by this title.” This private remedy is purely compensatory; it contains no punitive component. Indeed, any punitive assessment under the [M]CPA is accomplished by an imposition of a civil penalty recoverable by the State under § 13-410, as well as by criminal penalties imposed under § 13-411. Thus, in determining the damages due the consumer, we must look only to his actual loss or injury caused by the unfair or deceptive trade practices. Id. at 12 (emphasis added).

We held that the tenant was entitled to compensatory damages consisting of restitution of the rent, which he had paid for three months of the uninhabitable apartment, and consequential damages, such as the cost of moving from the premises and the additional cost of substitute housing for the remainder of the term of the lease that he had entered. Id. at 13–14. In CitaraManis v. Hallowell, 328 Md. 142 (1992), we considered whether a tenant could maintain a private action under the MCPA or under a common law action for restitution, to recover rent paid in connection with the property they had rented that was 20 not licensed as required by the Howard County Code. Unlike the tenant in Golt—who had established that the property was not only unlicensed but also uninhabitable—the tenants did not allege that the lack of licensure caused them any injury or loss, and the condition of the house was acceptable during the tenancy, which lasted one-and-a-half years.

Id. at 145 . However, after learning that the property was not licensed, they filed suit to recover the amounts they had paid in rent as damages under the MCPA and as restitution of voluntary payments made under an illegal lease. Id. After the circuit court ruled in favor of the tenants, we reversed the circuit court’s judgment.

We pointed out that under the plain language of private action provisions of the MCPA, a plaintiff must prove “actual injury or loss sustained.” Id. at 151 (citing CL§ 13- 408(a)) (cleaned up). We discussed the public and private remedies that are available under the MCPA, observing that a consumer who has been subjected to an unfair, abusive, or deceptive trade practice “may elect to utilize either the public or private enforcement proceedings available under the [M]CPA or may utilize both public and private enforcement proceedings, either simultaneously or in the alternative.” Id. We noted that in a public proceeding under the MCPA, any prohibited practice is a violation regardless of whether the “consumer in fact has been misled, deceived, or damaged as a result of that practice.” Id. at 152 (quoting CL § 13-302) (emphasis added). By contrast, to maintain a private enforcement proceeding, we pointed out that the express terms of the MCPA “only permit[] a consumer ‘to recover for injury or loss sustained by him as the result of a practice prohibited by this title.’” Id.

(quoting CL § 13-408(a)(1)) (emphasis added). 21 Based upon the language in CL § 13-408(a), we concluded that the private action “therefore requires an aggrieved consumer to establish the nature of the actual injury or loss that he or she has allegedly sustained as a result of the prohibited practice.” Id. We stated that “[t]his statutory construction creates a bright line distinction between the public enforcement remedies available under the [M]CPA, and the private remedy available under [CL] § 13-408(a).” Id. We also observed that “awarding full restitution of the rent paid by the tenants who offered no proof of actual injury or loss would be in the nature of a punitive remedy,” serving to penalize the landlords for their failure to obtain a license and to serve as a general deterrent to similar conduct by other landlords generally. Id. at 153 (emphasis added).

We explained that CL § 13-408(a) “was not intended to punish the landlord or set an example for similar wrongdoers.” Id. Accordingly, we held that the plaintiff tenants could only recover on their private MCPA claim against their landlord for deceptive trade practices arising from renting an unlicensed apartment if they could prove that the unlicensed condition caused them to suffer an “actual injury or loss.” Id. In Galola v. Snyder, a companion case to CitaraManis, we held that the circuit court erred in granting summary judgment in favor of a tenant against an unlicensed landlord based on upon proof of voluntary payment of rent. 328 Md. 182 , 185–86 (1992). We summarized our interpretation of the private right of action under the MCPA in the context of a tenant’s claim against an unlicensed landlord as follows: [The MCPA] provides a private cause of action . . . for a tenant of residential property who has been the victim of unfair and deceptive trade practices by his or her landlord.

Rental of a dwelling that has not been 22 licensed as required by a local housing code is an unfair and deceptive trade practice by a landlord. Nevertheless, in such an action the tenant is limited to recovering actual loss or injury caused by the deceptive trade practices. A tenant is not entitled to damages under § 13-408(a) of the [M]CPA solely upon proof that the leased property was not licensed as required by law; rather, the tenant must prove actual loss or injury caused by lack of licensure. Furthermore, voluntary payment of rent under an unenforceable lease does not entitle a tenant to restitution of that rent unless the tenant can establish that he or she was provided less than she had bargained for in the lease.

Id. However, unlike the facts in CitaraManis, there was evidence that the tenant was harmed because the property contained defects such as cracks, holes, loose paint and plaster, windows that admit rain, defective heat and air conditioning, dampness in habitable room, and water in the basement. Id. at 184. As such, although we held that the trial court improperly granted summary judgment for the tenant on proof of no more than the tenant’s voluntary rent for the unlicensed property, we remanded the case for a trier of fact to determine whether the tenants suffered actual loss or injury arising from the condition of the unlicensed property.

Id. at 186. In McDaniel v. Baranowski, 419 Md. 560 (2011), we reaffirmed the analytical framework that we set forth in CitaraManis. In McDaniel, we considered whether an unlicensed landlord could initiate a summary ejectment proceeding for a tenant’s failure to pay rent. Id. at 562–63.

We will discuss our holding on that issue later when we consider the second certified question. We also considered whether the District Court erred in denying the tenant’s counterclaim that she filed under the MCPA because she failed to prove actual damages. Id. at 563, 587 . We compared the tenant’s allegation in McDaniel with the allegations made by the tenants in CitaraManis and Golt.

We 23 noted that in CitaraManis, the tenant had not alleged or proven that the rental dwelling “was unclean, unsafe, uninhabitable or unsuitable in any regard,” or that they had suffered any diminution of the rental value of the property resulting from the lack of licensure. McDaniel, 419 Md. at 587 (quoting CitaraManis, 328 Md. at 149). By contrast, we pointed out that in Golt, the tenant “demonstrated actual injury, in both the diminution of value of the premises due to defects in the unit, which did not even have toilet facilities, and also in the cost of securing suitable housing.” Id. We determined that the “[t]he present case is analogous to CitaraManis, because [the tenant] failed to present any evidence that she sustained any actual damages, such as bills for medical treatment, loss of wages, or the cost of securing suitable substitute housing, for example.” Id. at 587–88.

Based upon this analysis we agreed with the District Court that the tenant “failed to prove actual loss or injury, a prerequisite to recovery under the [MCPA].” Id. at 588. To summarize our holding in CitaraManis, which we applied in Galola and McDaniel, a tenant may only pursue a private action under the MCPA against an unlicensed landlord where the tenant can prove that the unlicensed condition caused the tenant to suffer an “actual injury or loss.” 328 Md. at 151. Simply alleging a lack of licensure is not enough. D. Analysis Pertaining to Certified Question 1 Turning to the issue presented in certified question 1, Roizman asserts that this Court’s holding in CitaraManis, which we applied in Galola, and McDaniel, also applies to Assanah-Carroll’s MCPA claim.

Roizman points out that, like the tenants in 24 CitaraManis, Assanah-Carroll does not allege that her dwelling unit was uninhabitable or that the value of the lease was diminished by any condition of the property caused by the lack of licensure. Roizman notes that Assanah-Carroll’s claim for restitution of rent under the MCPA is based solely upon the fact that the property was not licensed, which she contends constitutes “damages.” Roizman contends that we rejected the same argument 30 years ago in CitaraManis, which has not been overturned by this Court. Roizman further points out that, in the years since CitaraManis was decided, our interpretation of the private action arising under CL § 13-408(a) as requiring “actual injury or loss” has not been modified or overruled by the Legislature. Roizman also asserts that, in enacting Bill 18-0185—which amended the language in § 5-4(a)—the Baltimore City Council did not intend to create a new remedy under the MCPA.

Roizman further contends that, even if the City Council had expressly intended to create such a remedy, the City Council lacked the legal authority to adopt a local law that purports to establish expanded judicial remedies under a private right of action established by the General Assembly. Roizman also argues that, if Assanah-Carroll’s interpretation of § 5-4(a)(2) prevails, it would have the effect of improperly modifying (and would in fact, extinguish) the actual damages requirements of the MCPA. Simply put, according to Roizman, the Baltimore City Council cannot enact a local law that has the effect of circumventing the statutory requirement that a consumer prove actual damages when filing a claim under the MCPA. Assanah-Carroll argues that her MCPA claim is different from the tenant’s claim in CitaraManis because her claim arises out of the license requirements under the Baltimore 25 City local law instead of the Howard County local law.

Specifically, Assanah-Carroll argues that the City Council’s enactment of § 5-4(a)(2) provides her with the right to maintain a private action under the MCPA to obtain the judicial remedy of restitution of rent based upon lack of licensure alone. According to Assanah-Carroll, she is entitled to seek this judicial remedy in a private action under the MCPA because the City Council has made an “express policy decision” to permit the recovery of sums paid pursuant to an “illegal contract.” For the reasons set forth below, we agree with Roizman that § 5-4(a)(2) does not give Assanah-Carroll a right to seek the remedy of restitution or disgorgement of rent that was voluntarily paid in connection with the occupancy of an unlicensed dwelling under the MCPA. 1. There Is Nothing in the Language of § 5-4(a) or Its Legislative History to Suggest that the Baltimore City Council Intended to Create a Judicial Remedy that Could Be Pursued by Filing a Private Action Under the MCPA In Aleti, we determined that there is nothing in the legislative history of Bill 18- 0185 to suggest that the Baltimore City Council intended to create a stand-alone implied private right of action under § 5-4(a)(2) that would enable City tenants to pursue a judicial remedy of restitution of rent. Aleti, op. at 27–32.

We will not repeat our analysis of that issue here. It is sufficient to simply note that, similarly, there is nothing in the legislative history of Bill 18-0185 to indicate that the City Council intended to create a judicial remedy entitling City tenants to seek restitution of rent that could be pursued within a private action arising under the MCPA. As we observed in Aleti, the City’s Department of Law was asked to comment on the form and legal sufficiency of Bill 18-0185. If the City Council had intended to create a judicial remedy that could be pursued within a private action under 26 the MCPA that is inconsistent with the remedies expressly provide by the state statute, surely the City’s legal counsel would have commented on that fact.

Based upon our review of the legislative history that we outlined Aleti, we hold that City Council did not intend to create a judicial remedy enabling City tenants to seek restitution of rent as part of a private action brought under the MCPA. 2. The Maryland General Assembly Has Not Given Baltimore City the Authority to Enact Local Laws to Alter or Circumvent the Remedies Provided Under the MCPA We also determine that, even if the Baltimore City Council intended to create modified or expanded remedies for City tenants that could be pursued by filing a private action under the MCPA or MCDCA, it lacked the authority to do so. Baltimore City is a charter home rule jurisdiction under Article XI-A of the Maryland Constitution. On a number of occasions, we have pointed out that Article XI-A, which we commonly refer to as the Home Rule Amendment, enabled Baltimore City and counties “which chose to adopt a home rule charter, to achieve a significant degree of political self-determination.” Piscatelli v. Bd. of Liquor License Comm’rs, 378 Md. 623, 633 (2003) (quoting Holiday Universal, Inc. v. Montgomery Cty., 377 Md. 305, 313 (2003)) (additional quotations omitted). “Its purpose was to transfer the General Assembly’s power to enact many types of county public local laws to the [Article] XI-A home rule counties.” McCrory, 319 Md. at 16 .

In McCrory, we explained that the purpose of Article XI-A was to secure a “larger measure of home rule . . . to the people of the respective political subdivisions of the state in matters of purely local concern, in order that there should be the fullest measure of local self-government, and that these local 27 questions should thus be withdrawn from consideration by the General Assembly. . . .” Id. (quoting State v. Stewart, 152 Md. 419, 422 (1927)). “Sections 1 and 1A of Article XI-A empower Baltimore City and the counties of Maryland to adopt a charter form of local government.” Id. Article XI-A, § 2 of the Constitution requires the General Assembly to enact a grant of express powers for Baltimore City and the counties which have adopted home rule charters.14 As it pertains to Baltimore City, most of the express powers granted by the General Assembly pursuant to Article XI-A, § 2 are contained in Article II of the Baltimore City Charter.15 Section 3 of Article XI-A provides: From and after the adoption of a charter by the City of Baltimore, or any County of this State, as hereinbefore provided, the Mayor of Baltimore and City Council of the City of Baltimore or the County Council of said County, subject to the Constitution and Public General Laws of this State, shall have full power to enact local laws of said City or County. . . upon all matters covered by the express powers granted as above provided . . . . 14 Article XI-A, § 2 of the Maryland Constitution states: The General Assembly shall by public general law provide a grant of express powers for such County or Counties as may thereafter form a charter under the provisions of this Article. Such express powers granted to the Counties and the powers heretofore granted to the City of Baltimore, as set forth in Article 4, Section 6, Public Local Laws of Maryland [now codified as Article II of the Baltimore City Charter] shall not be enlarged or extended by any charter formed under the provisions of this Article, but such powers may be extended, modified, amended or repealed by the General Assembly. 15 Some additional express powers are set forth in other public general laws.

For example, the Land Use Article § 10-201 et seq. expressly grants zoning authority to the Mayor and City Council of Baltimore. 28 (Emphasis added). We have repeatedly emphasized that “Article XI-A ‘does not constitute a grant of absolute autonomy to local governments.’” Holiday Universal, 377 Md. at 314 (quoting McCrory, 319 Md. at 17 (quoting Ritchmount P’ship v. Bd. of Supervisors of Elections for Anne Arundel Cty., 283 Md. 48, 56 (1978))); also citing H.P. White Lab., Inc. v. Blackburn, 372 Md. 160 , 167–68 (2002) (“As made clear by the language of Article XI- A, § 3 of the Constitution . . . the law making authority of a home rule county is limited to the power to enact local laws of said . . . County”) (emphasis in original) (cleaned up); Sweeney v. Hartz Mountain Corp., 319 Md. 440 (1990). Indeed, if an “ordinance enacted by a charter county does not constitute a ‘local law’ within the meaning of Article XI-A, it is beyond the authority of a charter county and, therefore, is unconstitutional.” Montgomery Cty. v. Broadcast Equities, Inc., 360 Md. 438 , 441 n.1 (2000) (citing McCrory, 319 Md. at 17–24).

In determining whether an ordinance is a “local law” or a “general law,” we have described the distinction as follows: [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. Moreover, the Court has held that some statutes, local in form, are general laws, since they affect the interest of the whole state. McCrory, 319 Md. at 18 (quoting Steimel v. Board, 278 Md. 1, 5 (1976) (quoting Cole v. Secretary of State, 249 Md. 425 (1968))) (internal citations and quotations omitted).

Where a charter county attempts to enact an ordinance on “matters of significant interest to the entire state,” we have determined that it is not, in fact, “a local law” under Article XI-A. Id. at 19; see also H.P. White Lab., 372 Md. at 160 (holding that Harford 29 County’s anti-employment discrimination law was not a “local law” and was therefore unconstitutional under the Home Rule Amendment); Gunpowder Horse Stables, Inc. v. State Farm Auto. Ins. Co., 108 Md. App. 612 (1996) (holding that a Baltimore County Code provision that purported to create a private right of action against the owner of an animal for damages caused by the animal was invalid under Article XI-A because it was not a “local law”; and also noting that a county may not create a new right of action between private parties concerning matters of statewide concern). Even if we were to agree with Assanah-Carroll that Baltimore City intended to create a judicial remedy that could be pursued via a private action under the MCPA, the General Assembly, through the express powers granted to Baltimore City by statute and Article II of the Baltimore City Charter, has not conferred upon the City the authority to adopt a local law that alters the remedies provided under the MCPA—a state statute.

The Maryland Consumer Protection Act and its private and public enforcement provisions “affect matters of significant interest to the entire State.” McCrory, 319 Md. at 20 . The enforcement provisions provided under that Act apply uniformly to all consumers across the State. The Legislature has not conferred upon Baltimore City the authority to modify or circumvent the statutory remedies that uniformly apply to all consumers who are subject to a prohibited unfair, abusive, or deceptive trade practice. Were we to accept Assanah-Carroll’s argument that § 5-4(a)(2) gives Baltimore City tenants an expanded remedy to pursue restitution of rent within a private action under the MCPA, such a remedy would be inconsistent with the remedies provided under the plain language of CL § 13-408, as well as this Court’s consistent interpretation of the statutory 30 remedies provided under the MCPA.

As discussed above, the remedy of restitution or disgorgement has a punitive element to it16—it is only available under the MCPA within the context of a public enforcement proceeding filed by the Division or the Attorney General. See Linton, 467 Md. at 516 . Moreover, as we explained in Part II.A. of this opinion, where the Division intends to order restitution to a particular individual or individuals, the Division must determine that the individual consumer relied upon the misrepresentation that forms the basis of the prohibited deceptive conduct. See Morgan, 387 Md. at 163 (“[f]or the Division to order a violator to pay restitution to a particular individual, . . . the Division must determine that the consumer relied upon the misrepresentation.”); Consumer Publishing, 304 Md. at 781 (holding that a blanket order or automatic restitution to all consumers was improper because restitution to particular purchasers was appropriate only after verification of actual reliance by those purchasers on the company’s misleading or deceptive advertisements).

Such an interpretation would also be inconsistent with this Court’s decisions in CitaraManis, Galola, and McDaniel, which expressly held that a tenant may not bring a private action under MCPA against an 16 Indeed, we can imagine many instances where requiring the restitution/disgorgement of rent based upon a lack of license alone, would have a significant punitive element. As we recently noted in Velicky v. Copycat Building, LLC, 476 Md. 435 (2021), Baltimore City issues one rental license for an entire apartment unit. Under Assanah-Carroll’s theory, if a single unit in a 146-unit building failed an inspection, which in turn caused the entire building to fail to qualify for a new license, the consequence would be that the landlord would be forced to refund to all the tenants in the building, any rent that was voluntarily paid for the duration of the lapsed license period without demonstrating that they were damaged by the lack of licensure. Such an expanded remedy is inconsistent with plain language of CL § 13- 408(a), which requires a plaintiff to prove actual injury or loss arising from the violation of the Act in order to maintain a private right of action under the MCPA. 31 unlicensed landlord without proof that the unlicensed condition caused them to suffer an actual injury or loss—a statutory interpretation that has not been modified or overturned by the Legislature.

For these reasons, we hold that § 5-4(a)(2) does not provide Assanah-Carroll with a remedy of restitution of rent under the MCPA. We hold that the Baltimore City Council, in enacting Bill 18-0185, which added § 5-4(a)(2) to the City Code, did not intend to establish a judicial remedy that could be pursued by filing a private action under the MCPA. We further determine that even if the City Council had intended to create such a judicial remedy, it lacks the authority to adopt a local law that modifies the remedies established by the MCPA. E. Analysis Pertaining to Certified Question 2 Certified question 1 addressed the tenant’s right to obtain restitution of rent where the payment is voluntarily paid.

Certified question 2 involves a landlord’s right to engage in debt collection activities, including pursuing claims against the tenant in court, where the tenant has failed to pay rent attributable to the unlicensed period. Specifically, we must determine whether a landlord who is currently licensed may engage in collection activity or initiate a summary ejectment action based upon the tenant’s failure to pay rent during the period when the dwelling unit was unlicensed. In CitaraManis, we raised this very issue but left it undecided. 328 Md. at 158–159 (observing that “[h]ere, we need not decide whether lack of the required rental housing license, in and of itself and without 32 regard to the condition of the premises, would be sufficient to bar a landlord’s claim for unpaid rent or for use and occupation[]”).17 The parties once again direct us to the language of the Baltimore City Code § 5- 4(a)(2) and focus their arguments on that section. Our holdings in Aleti and our answer to certified question 1 dispose of the argument that the specific language of the City Code establishes new rights or remedies that may be pursued by the tenants.

We determine that our answer to question 2 similarly does not depend upon the specific language of any local law, but instead, is dependent upon established principles of common law that this Court has the authority to apply. As noted above, this Court has the authority to interpret and apply the common law. See Plank v. Cherneski, 469 Md. 548 , 625–26 (2020) (affirming the existence of an independent cause of action for 17 In his concurring and dissenting opinion, Judge Gould argues that CitaraManis should guide our analysis on the outcome of question 2. Gould, J., concurring and dissenting opinion (“Dissent”).

Dissent, part A. The Dissent points out that in CitaraManis, we declined to apply the common law rule articulated in Harry Berenter, Inc. v. Berman, 258 Md. 290, 293 (1970) (“Berenter”); Thorpe v. Carte, 252 Md. 523, 529 (1969); Smirlock v. Potomac Dev. Corp., 235 Md. 195, 203 (1964); Snodgrass v. Immler, 232 Md. 416 , 421–22 (1963); Goldsmith v. Mrfs. Liability Ins. Co., 132 Md. 283, 286 (1918) (collectively, the “Berenter cases”) to permit the tenant to recover restitution of rent voluntarily paid on the basis that the contract was unenforceable because of the landlord’s lack of licensure.

We are not persuaded by the Dissent’s analysis for two reasons. First, as the Dissent correctly points out, CitaraManis involved a tenant’s right to obtain restitution in the form of rent voluntarily paid, instead of the unlicensed landlord’s right to collect unpaid rent during the unlicensed period, and that “[t]hese are different causes of action with distinct elements.” Dissent Op. at 7. Second, although in CitaraManis, we declined to apply the common law rule expressed in the Berenter cases to the tenant’s claim for disgorgement/restitution, as we discuss infra, 19 years later, in McDaniel v. Baranowski, 419 Md. 560 (2011), we did, in fact, rely on the common law principle articulated in the Berenter cases to prohibit an unlicensed landlord from utilizing the summary ejectment statute, RP § 8-401, to collect unpaid rent owed in connection with an unlicensed rental property. 33 breach of fiduciary duty in Maryland and outlining the elements of the cause of action). In addition to our authority, the “common law rule may, without constitutional restraints, be changed or modified by legislative enactment[.]” Johns Hopkins Hosp. v. Correia, 405 Md. 509, 521 (2008) (internal quotations omitted).

As we explain below, in McDaniel, 419 Md. 560 , we applied common law principles to prohibit a landlord from enforcing his contractual right to collect rent from a tenant by filing a summary ejectment proceeding during a period that the property was unlicensed. We determine that there is no reason to limit our holding in McDaniel to those situations where an unlicensed landlord is contemporaneously attempting to enforce a contractual right to collect rent by filing actions in the courts. We conclude that the same common law principles should apply when a landlord subsequently obtains a license but is attempting to collect rent that is attributable to the unlicensed period. We explain our reasons for extending the application of these common law principles below. 1.

Landlord’s Contractual Remedies Arising from a Tenant’s Failure to Pay Rent A landlord’s right to receive rent is a contractual one. Velicky v. Copycat Building, LLC, 476 Md. 435, 448 (2021) (observing that “[a] landlord and tenant relationship arises when an individual occupies the real property of another with permission and for a consideration, which is usually in the form of the payment of rent.”) (citing 49 Am. Jur. 2d Landlord and Tenant § 1 (2021)). 34 Where a tenant breaches a lease by failing to pay rent, the landlord has both common law and statutory remedies. Under the common law, a landlord may bring a breach of contract action against a tenant for unpaid rent that was owed during the tenancy after a tenant vacates the property.

See e.g., Ben-Davies v. Blibaum & Assocs., P.A., 457 Md. 228 (2018). In addition to the common law breach of contract remedy, where a tenant is residing on the landlord’s property and fails to pay rent, the General Assembly has enacted a streamlined and expedited process to enable the landlord to regain possession and obtain a judgment for money damages. The landlord’s statutory right of action, which is codified in § 8-401 of the Real Property Article (“RP”) of the Maryland Code, commonly referred to as a “failure to pay rent” or “summary ejectment action,” “arises pursuant to a contractual relationship between the landlord and tenant—whether express or implied, oral or written—and is based upon the tenant’s failure to abide by his or her contractual obligation to pay rent.” Velicky, 476 Md. at 453 . “Summary ejectment proceedings empower the court to enter a money judgment for the amount of rent determined to be owing and also to issue an order for the tenant to yield possession of the premises when the jurisdiction over the tenant has been obtained.” Schuman, Kane, Felts & Everngam, Chartered v. Aluisi, 341 Md. 115, 122 (1995) (internal quotation marks omitted). As we have previously observed, “[s]ummary ejectment proceedings are expedited.” Cane v. EZ Rentals, 450 Md. 597, 602 (2016).

The summons issued by the court directs the tenant to appear in the District Court for a trial on the fifth day following the filing of the complaint and to show cause why the relief sought by the landlord should not be granted. 35 RP §§ 8-401(b)(3)(i)–(ii). The court is authorized to adjourn the trial for one day to permit either party to procure necessary witnesses “in the interest of justice[,]” but may not adjourn the trial for a period of longer than one day unless all parties consent. RP § 8-401(e)(1). If judgment is entered in favor of the landlord, the statute provides that the court shall order possession to be given to the landlord within four days.

RP § 8-401(e)(3). Because the summary ejectment action is based solely upon the tenant’s obligation to pay rent, if the tenant tenders the rent due, plus costs prior to the entry of judgment, the action is dismissed. If the court enters judgment in favor of the landlord, including possession of the premises, the tenant may redeem the leased premises if the tenant tenders to the landlord the amount of the judgment, as well as any court awarded costs and fees, at any time prior to the execution of the eviction order. RP § 8-401(g)(1).

The tenant’s right of redemption is no longer available if the tenant has had three judgments of possession within the previous 12 months. RP § 8-401(g)(2). The failure to pay rent or statutory summary ejectment action arising under RP § 8- 401 is a powerful tool that enables the landlord to enforce his contractual right to collect unpaid rent in an efficient and expedient manner. It provides the landlord with a statutory mechanism to receive not only possession (provided that the tenant has not exercised his right of redemption), but also a monetary judgment against the tenant for the unpaid rent.

Although a landlord has a right to file a statutory summary ejectment action arising from a tenant’s failure to pay rent, this right is not unfettered. Through the application of the common law, we have prohibited a landlord from initiating a summary ejectment proceeding to collect unpaid rent where the landlord lacks a rental license. 36 2. The Common Law Exception to the Enforceability of a Contract Where License is Required for Performance “From the dawn of the common law tradition in England, courts have refused to implement those private contractual undertakings which, when measured against the prevailing mores and moods of society, contravene judicial perceptions of so-called ‘public policy.’” Maryland-National Capital Park & Planning Comm’n v. Washington Nat’l Arena, 282 Md. 588 , 605 (1978) (citations omitted). “Public Policy is that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against the public good, which may be termed, as it sometimes has been, the policy of the law, or public policy in relation to the administration of the law.” Id. (citing Egerton v. Earl Brownlow, 4 H.L. Cas. 1, 196 (1853)).

One such application of this principle occurs where a party seeks to enforce an agreement where its performance is dependent upon the enforcing party securing a license. Restatement (Second) of Contracts (“Restatement”) § 181, cmt. a (1981). The general rule has been articulated as follows: If a party is prohibited from doing an act because of his failure to comply with a licensing, registration or similar requirement, a promise in consideration of his doing that act or of his promise to do it is unenforceable on grounds of public policy if (a) the requirement has a regulatory purpose, and (b) the interest in the enforcement of the promise is clearly outweighed by the public policy behind the requirement. Restatement § 181.

We have applied this rule in cases by prohibiting an individual from enforcing a contract seeking money damages against another party to the contract, where a 37 license was required for the performance of the contract and where we have determined that the license was necessary for the protection of the public. Harry Berenter, Inc. v. Berman, 258 Md. 290, 293 (1970) (“Berenter”); Thorpe v. Carte, 252 Md. 523, 529 (1969); Smirlock v. Potomac Dev. Corp., 235 Md. 195, 203 (1964); Snodgrass v. Immler, 232 Md. 416 , 421– 22 (1963); Goldsmith v. Mrfs. Liability Ins.

Co., 132 Md. 283, 286 (1918). In Goldsmith, an unlicensed insurance broker filed suit against a company to recover compensation, in the form of commissions, for services that the broker had performed which required a broker’s license. 132 Md. at 284 . This Court held that the unlicensed brokers could not recover compensation for their unlicensed services. We pointed out that under common law contractual principles, “[i]t is settled that, where the contract which the plaintiff seeks to enforce is expressly, or by implication, forbidden by the statute, no court will lend its assistance to give it effect.” Id. at 286 .

We explained that where the statute is enacted “not