Gayety Books, Inc. v. Mayor of Baltimore

Orth, J., delivered the opinion of the Court. Article 15, § 71 (a) of the Baltimore City Code (19661 (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 . . . .” ²⁰⁸ 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 ²⁰⁹ 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 ²¹⁰ 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. Starv.

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 ²¹¹ 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 co in-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 ²¹² 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. ²¹³ 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 82, § 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. 82, § 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 82, § 149 to bo enforced and which has been complied with by [Fayette and Gayety] paying $100.00 licensing foes 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. IB, § 71 for the years 1971 and 1972.

We shall consider the validity of Art. 16, § 71 in the ²¹⁴ 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 Plaintiffs Motion for Summary Judgment.

Judge Jones never saw the machines or their operation.” ²¹⁵ 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. ²¹⁶ APPENDIX A IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CIVIL NO. 72-607-Y AL STAR, as Manager and President of FAYETTE NEWS CENTER, INC., and GAYETY BOOKS, INC.

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) 1 as well as money ²¹⁷ 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. t 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 , ²¹⁸ 284 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