Board of County Commissioners v. R & M Enterprises, Inc.

ELDRIDGE, Judge. This case presents the question of whether the Board of County Commissioners of Cecil County has the authority to adopt a licensing fee scheme for recreational vehicle parks, ⁵⁴³ campgrounds and tourist camps. We shall hold that it does not. I. On January 2, 1996, the Board of County Commissioners of Cecil County adopted an ordinance providing for the licensing of recreational vehicle parks, campgrounds and tourist camps, by amending the Cecil County Code to add a new chapter 152.

Section 152-2 of the new chapter requires “[t]he owner/operator of every recreational vehicle park, campground and tourist camp in Cecil county [to] obtain an annual license to operate from the Department of Permits and Inspections.” Under § 152-3, the Board of County Commissioners is authorized to set by resolution the amount of the annual license fees. Pursuant to § 152-3, the Board subsequently enacted a resolution to establish the amount of the license fees to be charged under Chapter 152. Under this resolution, the fees to be charged were as follows: (1) $50.00 for each site to be used between April 1 and October 31; (2) $240.00 for each site to be used beyond the April 1-October 31 season. Finally, § 152-5 imposes fines for violations of the license requirement, stating as follows: “Any owner/operator of a recreational vehicle park, campground or tourist camp found to be operating such recreational vehicle park, campground or tourist camp without a current, valid license in violation of this chapter, shall be liable for a fine of not more than Five Hundred Dollars ($500.00) for each unlicensed site within the recreational vehicle park, campground or tourist camp, and in addition, shall pay all fair and reasonable costs incurred by the County in its enforcement of this chapter including but not limited to attorneys fees, inspection fees and court costs.

Each day that a violation or operation continues/exist [sic] shall be deemed a separate offense----” ⁵⁴⁴ In enacting the ordinance, the Board specifically relied upon Maryland Code (1957, 1998 Repl.Vol.), Art. 25, § 3(i), for its authority. The preamble to the ordinance states: “WHEREAS, Article 25, Section 3(i) authorizes the Board of County Commissioners of Cecil County to license and regulate the construction, operation and location of trailers and tourist camps outside the limits of incorporated towns and cities ...” Article 25, § 3, of the Maryland Code states, in pertinent part, as follows: “The county commissioners of each county in this State, in addition to, but not in substitution of, the powers which have been or may be granted them, have the following express powers. “(i) Trailers and tourist camps.—To license and regulate the construction, operation and location of trailers and tourist camps outside the limits of incorporated towns and cities.” After the adoption of Ch. 152 and the license fee resolution, the county director of permits and inspections sent a letter regarding the fees to R & M Enterprises which owns and operates a recreational vehicle park consisting of 537 recreational sites on approximately eighty acres in Cecil County. Upon receipt of the letter, R&M filed in the Circuit Court for Cecil County a complaint for a declaratory judgment and an injunction against the County Commissioners. Although the County agreed not to take any action to collect the license fees from R&M during the pendency of the suit, the circuit court issued an interlocutory injunction enjoining the County from collecting the license fees pending the determination of the merits of the action.

Thereafter, the circuit court declared that Cecil County was without authority under Art. 25, § 3(i), to enact the licensing fee ordinance. The court permanently enjoined the County from collecting, or attempting to collect, the license fees. Cecil County appealed to the Court of Special Appeals, and ⁵⁴⁵ this Court issued a writ of certiorari prior to consideration of the case by the Court of Special Appeals. Cecil County Comm’rs v. R & M Enterprises, 344 Md. 396 , 687 A.2d 255 (1997).

II

It is clear, as the County now concedes, that the Cecil County Commissioners have no power under Art. 25, § 3(i), to enact the recreational site license fee. Article 25, § 3, enumerates certain specific powers held by county commissioners throughout the State. As noted previously, § 3(i) grants county commissioners the power to license the operation of trailers and tourist camps. Assuming arguendo that § 3(i) would authorize the type of fee here involved, 1 the Cecil County Commissioners received no grant of power from § 3(i).

Art. 25, § 3(a)(2)(iv), specifically excepts Cecil County from the enumerated powers granted by § 3, stating: “The following counties are excepted from these express powers. “(iv) Cecil County; included, however, in subsections (l), (s-1), (t)(3) and (t-1).” Thus, the Cecil County Commissioners have no authority under Art. 25, § 3(i), to enact the subject ordinance. Despite the fact that the ordinance and resolution passed by the Cecil County Commissioners imposing the license fees specifically invoked § 3(i) as the source of the power to do so, and despite the County’s present concession that the Commissioners had no such power under that section, the County still maintains that the Commissioners had the authority to enact this ordinance. The County first points out that Art. 25, § 6, states that § 3 is “intended to supplement or to supply authority in the ⁵⁴⁶ county commissioners” and should not “in any manner be considered a limitation or restriction on any existing power and authority granted the county commissioners of any county----” Thus, according to Cecil County, if a basis for the licensing fee ordinance can be found in another enactment of the General Assembly, the fact that Cecil County is specifically excepted from the specific grant of power to license trailers and tourist camps in § 3(i) should not matter. The County invokes two provisions in the Maryland Code, Art. 25, § 2, and Art. 24, § 9-401, which it believes provide a basis for the licensing fee scheme.

Before turning to a consideration of these two sections, we preliminarily note that (Controller v. Pleasure Cove, 334 Md. 450, 463-464 , 639 A.2d 685, 692 (1994)), “[a]s subdivisions of the State, counties do not have inherent taxing authority; their power to tax depends upon the grant of authority from the State____ Courts strictly construe the delegation of taxing power to a county.” See also, e.g., City of Annapolis v. Anne Arundel County, 347 Md. 1, 10 , 698 A.2d 523, 527 (1997); Waters v. Montgomery County, 337 Md. 15, 19 , 650 A.2d 712, 713 (1994). This principle of strict construction is fully applicable to license fees. Cambridge v. Water Co., 99 Md. 501, 503 , 58 A. 442, 443 (1904). Article 25, § 2, of the Maryland Code states as follows (emphasis added): “(a) [The county commissioners] shall also in their respective counties have control over all the public roads, streets and alleys, except in incorporated towns in their respective counties, and make such rules and regulations for repairing, cleaning, mending and perfecting the same, and providing for the payment of the cost of the same, as they may deem necessary; they shall also have power, by resolution, to regulate, except in incorporated towns in their respective counties, the parking of vehicles on the public highways, provided appropriate notice thereof is given to the public by posting or otherwise, the location and construction of fire ⁵⁴⁷ hydrants, the construction or establishment of trailer camps, the construction, maintenance, repair and cleaning of sidewalks, and any person violating any regulation adopted pursuant to the authority conferred by this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not exceeding $100 for any such violation; they may make all necessary rules and regulations for allowing and paying bounties for the killing of hawks, owls, crows, minks, foxes, wildcats and other and like destructive and harmful wild animals and birds.” Except for a different maximum fine in Calvert County, § 2 has no exceptions and appears to be applicable to all county commissioners in the State.

Cecil County argues that § 2’s grant of authority to “regulate ... the construction or establishment of trailer camps” is broad enough to authorize