Tidewater/Havre De Grace, Inc. v. Mayor of Havre De Grace

BELL, Judge. In this appeal, we shall consider whether Ordinance No. 765 exceeds the authority granted to the City of Havre de Grace by the General Assembly and/or is void for vagueness. Resolving the declaratory judgment action filed by Tidewater/Havre de Grace, Inc. and Penn’s Beach Arena, the petitioners, to test the validity of the Ordinance, the trial court found in favor of the Mayor and City Council of Havre de Grace, the respondent, on both issues, granting its motion for summary judgment and denying the petitioners’. Interpreting paragraph 6.B. of the Ordinance, the court concluded: Contrary to the arguments of the Plaintiffs, a marina cannot be penalized when a lessee fails to pay the fee.

As this Court interprets paragraph 6(B), the duty to submit the fee to the City is not incurred until the marina collects the fee. If a lessee refuses to pay the tax, then the marina has not collected the tax. Consequently the marina is not liable until it has collected the fee and failed to remit it to the City. Memorandum Opinion and Order, 98 Md.App. 218, 234 , 632 A.2d 509, 517 .

Both the marinas and the City appealed. Addressing the petitioners’ appeal, the Court of Special Appeals agreed with the trial court that the City acted with authority and that the Ordinance was not unconstitutionally vague; hence, it affirmed the judgment of the trial court in that regard. The City’s cross-appeal, challenged the court’s interpretation of paragraph 6.B. On that issue, the intermediate appellate court reversed, concluding that “the statute ³⁴¹ implicitly places a clear and affirmative obligation on the marinas to charge and collect the appropriate user tax coincident with the time when said mannas collect their rental fees.” Tidewater/Havre de Grace, Inc. v. Mayor of Havre de Grace, 98 Md.App. 218, 235 , 632 A.2d 509, 518 (1993). It added, “the statute implicitly provides a right of action on behalf of the marina against the lessee for the entire balance due (including both the unpaid rental charges and the unpaid user tax).” Id. at 236 , 632 A.2d at 518 .

We granted the petitioners’ petition for certiorari. I. In 1992, the General Assembly of Maryland enacted Chapter 261 of the Laws of Maryland (“Chapter 261”), now codified as Maryland Code (1957, 1994 Repl.Vol.), Art. 24, § 9-605. As introduced Chapter 261 permitted “[a] municipal corporation [to] impose by ordinance a user fee on charges for the docking and storage of boats” and limited that fee to a certain percentage of the total rental charges. 1 As enacted, in addition to the foregoing, by amendment, Chapter 261 included a further limitation on the amount of user fees that could be charged “per boat slip.” Both as introduced and enacted, the title of the bill was “An Act concerning Municipal Corporations—Boat Slip User Fee.” Moreover, while the preamble stated that the purpose of the statute was to “authoriz[e] a municipal corporation to impose a user fee on charges for the docking and storage of boats,” it also indicated that it was “generally relating to authorization for a municipal corporation to impose a boat slip user fee.” 2 ³⁴² Acting pursuant to the authority granted by Chapter 261, the respondent enacted Ordinance No. 765. That Ordinance imposed “[a]n annual fee of 5%, not to exceed One Hundred Dollars ($100), of all rental charges for the docking, slip rental and storage, dry or wet, of boats,” to be “collected by all businesses, including, but not limited to, all marinas, establishments, or individuals within the Havre de Grace City limits that rent space for boat docking, boat slip rental and boat storage.” Paragraphs 1 and 2.

It also provided for the remitting of the user fees, along with a report “listing the names of the lessees, the amount of rent paid and the user fee due” to the City, on a semi-annual basis, paragraph 3, 3 the ³⁴³ audit of the financial records of any affected business, paragraph 4, and civil penalties to be imposed upon businesses that fail to comply. Paragraph 6. 4 It is well-settled that, pursuant to Article XI-E, Section 5 of the Maryland Constitution, a municipality may levy only such type of tax, license fee, franchise tax or fee, that is specifically authorized by the General Assembly. See Campbell v. Annapolis, 289 Md. 300, 305 , 424 A.2d 738, 741 (1981). See also Allied Vending v. City of Bowie, 332 Md. 279, 296 , 631 A.2d 77, 85 (1993).

The threshold issue that is presented, therefore, is whether the tax imposed by Ordinance 765, which, by its express terms, is applicable to both the wet and dry storage of boats, exceeds the authority granted by the General Assembly to the City of Havre de Grace by enacting Chapter 261. The parties disagree as to the intended scope of Chapter 261. The petitioners contend that it authorizes imposition of user fees on only one form of boat storage, boat slips. To arrive at that conclusion, the petitioners argue that Chapter 261 is ambiguous.

In support of that conclusion, they point out that Chapter 261 refers both to “boat slip” and the ³⁴⁴ “docking and storage of boats.” Since “boat slip” refers to a specific kind of in-the-water storage, but “docking and storage of boats” is sufficiently broad to encompass both wet and dry storage of boats, it is unclear, they continue, what the Legislature’s intention was when it enacted Chapter 261. When the context of the statute is considered and the rules of statutory construction applied, they argue that the intention becomes clear, to impose user fees only on boat slips. The respondent does not dispute the meaning the petitioners attribute to the term “boat slip” or the phrase, “docking and storage of boats,” or the fact that both are used in the body of the statute. It does draw a different conclusion from those facts, however. 5 The respondent posits that the statute is clear and unambiguous.

Accordingly, it concludes that the fees imposed by Ordinance 765 are expressly authorized by Chapter 261. That being so, it contends that the petitioners’ argument to the contrary requires the creation of ambiguity where none otherwise exists. The threshold issue in this case involves the determination of the scope of Chapter 261. That, in turn, requires discerning its meaning, ie., the Legislature’s intent in enacting it.

It is well-settled that when the meaning of a statute— its legislative intent—is at issue, the court’s inquiry begins with the words of the statute, and ordinarily, also ends there. Gargliano v. State, 334 Md. 428, 435 , 639 A.2d 675, 678 (1994); Thanos v. State, 332 Md. 511, 522 , 632 A.2d 768, 773 (1993); Harris v. State, 331 Md. 137, 145-46 , 626 A.2d 946, 950 (1993); ³⁴⁵ Ball v. United Parcel Service, Inc., 325 Md. 652, 656 , 602 A.2d 1176, 1178 (1992). If the words of the statute are clear and free from ambiguity, we need not look further; there ordinarily is no need to look beyond the words of the statute to determine its meaning or scope. Montgomery County v. Buckman, 333 Md. 516, 523 , 636 A.2d 448, 452 (1994); Harris, supra, 331 Md. at 146 , 626 A.2d at 950 ; Ferguson Trenching Co., Inc. v. Kiehne, 329 Md. 169, 177 , 618 A.2d 735, 739 (1993); Scheve v. Shudder, Inc., 328 Md. 363, 371-72 , 614 A.2d 582, 586 (1992).

Nevertheless, “[i]n the interest of completeness ... we may look at the purpose of the statute and compare the result obtained by the use of its plain language with that which results when the purpose of the statute is taken into account,” Harris, 331 Md. at 146 , 626 A.2d at 950 , as well as such evidence as “a bill’s title and function paragraphs, amendments that occurred as it passed through the legislature, its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal.... ” Wynn v. State, 313 Md. 533, 539 , 546 A.2d 465, 468 (1988) (quoting Kaczorowski v. Mayor & City Council of Baltimore, 309 Md. 505, 515 , 525 A.2d 628, 632-33 (1987)). “[W]here statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, [we] are not at liberty to disregard the natural import of words with a view towards making the statute express an intention which is different from its plain meaning.” Fikar v. Montgomery County, 333 Md. 430, 434-35 , 635 A.2d 977, 979 (1994) (quoting Potter v. Bethesda Fire Dep’t, Inc., 309 Md. 347, 353 , 524 A.2d 61, 63-64 (1987)) (quoting State v. Fabritz, 276 Md. 416, 421-22 , 348 A.2d 275, 278 (1975), cert. denied, 425 U.S. 942 , 96 S.Ct. 1680 , 48 L.Ed.2d 185 (1976) (citations omitted)). We are not, in short, at liberty to create an ambiguity where none otherwise exists. Chapter 261 is clear and unambiguous. By its plain language, it authorizes a municipal corporation to “impose by Ordinance a user fee on charges for the docking and storage of boats.” Although it limits the rate of the user fee to a maximum of “five percent of the rental charges for the ³⁴⁶ docking and storage of boats,” if the mode of storage is by means of a boat slip, it further caps the total amount of user fees to be charged to not more than $100 per year.

Contrary to the petitioners’ argument, the mere reference to both “docking and storing” and “boat slip” in the body of the statute, even' when coupled with the provision for a different maximum fee in connection with the latter, does not render the statute ambiguous. Nor does the fact that the two kinds of storage are treated differently render the statute ambiguous. The broader term “docking and storage” encompasses “boat slips.” And the provision of a more specific limitation for boat slips does not in any way negate the requirement of, or the necessity for, a different rate for other forms of storage. Indeed, the scheme that treats the two separately, there being a basis for the difference, simply addresses the various forms of boat storage.

Consequently, although the term “dry” storage is never specifically used, the more general term “docking and storage,” encompasses “dry” storage, just as surely as it encompasses “boat slips,” a form of wet storage. Accordingly, it is incorrect to argue that the statute does not encompass “dry” storage. 6 Since wet storage and dry storage are discrete forms of boat storage, there is nothing inconsistent in a statute which treats them differently. Therefore, providing for imposition of a user fee upon the total rental charges for the docking and storage of boats, not to exceed 5% of the total rental charges, is not inconsistent with further limiting the amount of user fees applicable to boat slips. ³⁴⁷ Reviewing, in the interest of completeness, the external manifestations of legislative intent, produces the same result. Imposing a user fee on all forms of boat storage is consistent with the purpose of the statute, to permit municipal corporations to raise money to be used for certain specified purposes.

See Preamble to Chapter 261 (“requiring a municipal corporation to use the revenue from the user fee for certain purposes”) and Section 9-605(D), setting out the purposes for which the fees are to be used. The petitioners point out that the title and the preamble both refer to boat slip user fees. Having concluded that the statute is ambiguous, they argue that this supports their narrow construction of Chapter 261. We agree that, read together, the title and preamble are ambiguous; nevertheless, given the purpose of the legislation, and the clear and unambiguous language used in the body of the statute, the fact that the preamble also clearly states as one of the statute’s purposes, “authorizing a municipal corporation to impose a user fee on charges for the docking and storage of boats,” and that resort to the title and preamble is to resolve, rather than create, ambiguity, we believe they confirm our reading of Chapter 261. 7 ³⁴⁸ Nor are we satisfied, as the petitioners argue, that its legislative history requires a different result.

As introduced, Chapter 261 permitted municipal corporations to impose a user fee, not to exceed ten percent of the rental charges, for the docking and storage of boats. Except in the title and preamble, it did not mention “boat slips.” The Bill was amended to include the provision limiting the user fees per boat slip and concomitantly to insert in the preamble the phrase, “limiting the total user fees collected per year to a certain amount.” These amendments, the petitioners maintain, are an indication that the Legislature intended the statute to encompass only boat slip charges: Any doubt about the intended breadth of Chapter 261 is removed by the review of the history of the adoption of these amendments. The $100 annuál limitation ‘per boat slip’ is the only limitation in Chapter 261 which is equivalent to a ‘certain amount.’ If the addition of the $100 per boat slip limitation had the effect of limiting “total user fees collected per year to a certain amount,” as the General Assembly stated (and clearly understood) that it would, then logic dictates that boat slips were the only intended subjects ³⁴⁹ of Chapter 261 and that the General Assembly did not intend it to apply to other forms of boat storage. Petitioners’ Brief at 18-19.

As previously indicated, the amendment to limit the amount of user fees per boat slip did not render the statute ambiguous. The inclusion of the limitation in the preamble, however, did make the preamble, read with the title, also as indicated earlier, ambiguous. That, as we have already noted, does not warrant construing the substantive portion of the statute so as to reach a result inconsistent with its plain language. There simply is nothing in the legislative history to support the petitioners’ conclusion that the Legislature intended the statute to apply solely to boat slips.

In addition, although it is true that the $100 limitation is the only limitation equal to a “certain amount,” it is not true that this is the only limitation in the Act. In fact, both prior to and subsequent to the amendment of Chapter 261, the Act’s purpose included language stating that it would “[limit] the rate of the user fee to a certain percentage.” Accordingly, while Chapter 261 expressly provides that the $100 limit applies to boat slips, it also expressly provides for a 5% limitation to be applied to the “docking and storage of boats.” 8 Ordinance 765 provides, in pertinent part, that “an annual fee of 5%, not to exceed One Hundred Dollars ($100), of all rental charges for the docking, slip rental and storage, dry or wet, of boats is hereby imposed.” Having determined that the plain language of Chapter 261 encompasses both boat slips and other means of storing boats, including dry storage, it follows that Ordinance 765 does not exceed the authority granted the respondent to impose user fees on the “docking and storage of boats.” II. “It is well settled that a statute which prohibits the doing of an act in terms so vague that persons of ordinary intelligence ³⁵⁰ must necessarily guess at its meaning and differ as to its application violates the constitutional guarantee of due process of law.’’ Blum v. Engelman, 190 Md. 109, 113 , 57 A.2d 421, 422 (1948). See also Condon v. State, 332 Md. 481, 499 , 632 A.2d 753, 762 (1993); Williams v. State, 329 Md. 1, 8 , 616 A.2d 1275, 1278 (1992); Bowers v. State, 283 Md. 115, 121 , 389 A.2d 341, 345 (1978); State v. Cherry, 224 Md. 144, 149 , 167 A.2d 328, 330 (1961); State v. Magaha, 182 Md. 122, 125 , 32 A.2d 477, 478-79 (1943). On the other hand, as we stated in Eanes v. State, 318 Md. 436, 460 , 569 A.2d 604, 615 , cert. denied, 496 U.S. 938 , 110 S.Ct. 3218 , 110 L.Ed.2d 665 (1990): A statute is not vague when the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, common law, dictionaries, treatises, or even the words themselves, if they possess a common and generally accepted meaning.

(Quoting Bowers v. State, 283 Md. 115, 125 , 389 A.2d 341, 347 (1978)). The petitioners argue that Ordinance No. 765 is void for vagueness, that it is so “riddled with uncertainties” that it violates the constitutional guarantee of due process of law. 9 The uncertainty is reflected, in particular, they assert, in the Ordinance’s failure clearly to address on whom the fee is imposed, how the $100 limitation is to be applied, and how the collection system it prescribes is intended to work. First, the petitioners observe, “while it is clear that the Ordinance attempts to impose some sort of fee on someone, it is not at all clear on whom the fee is imposed.” Although cognizant that the Ordinance uses the term “user fee,” they contend that interpretation of the fee as a user fee is belied by the Ordinance’s title and preamble, both of which refer to user ³⁵¹ fees on charges. See paragraph 1 of the Ordinance, which references an “annual fee of 5% ... of all rental charges.” The petitioners interpret these references as imposing the fee not on users, but on the charges themselves, hence on the businesses that collect them.

The petitioners’ second point is a related one. It is that Ordinance 765 does not address how the $100 user fee limit is to be applied, that is, whether it is to be applied on a per renter, per space or per boat basis. Recognizing that the Court of Special Appeals determined that it was to be applied per renter, but noting the failure of the Ordinance to provide “a detailed calculus” in connection with its application, they suggest that the more logical interpretation is that it imposes the fee on the businesses. Finally, the petitioners argue that designating semi-annual reporting periods without specifying how they relate to when the rents are earned or are received by the businesses “provides no intelligible guidance to the persons obligated to remit the fees as to how the collection system is intended to work.” Petitioners’ Brief at 31-32.

The petitioners also see paragraph 3 of the Ordinance as having been interpreted inconsistently: while the tax is purportedly imposed on the renters, as the Court of Special Appeals interprets it, it requires the businesses to pay the City 5% of whatever rent they collect, thus, actually imposing the liability on the businesses whenever the renters fail to pay. This inconsistency is compounded, they assert, by the fact that the Ordinance does not provide a mechanism for the marinas to recover from the non-paying renters. Ordinance 765 is not a model of clarity on all of the issues it addresses. Consequently, it is necessary to construe it, using the canons of statutory construction for that purpose.

See Howard Research and Dev. Corp. v. Concerned Citizens for Columbia Concept, 297 Md. 357, 364 , 466 A.2d 31, 34 (1983); Clarke v. County Commissioners for Carroll County, 270 Md. 343, 349 , 311 A.2d 417, 421 (1973); Baltimore City v. First Methodist Episcopal Church, 134 Md. 593, 603 , 107 A. ³⁵² 351, 355 (1919). In that regard, the Ordinance must be read as a whole, see Vest v. Giant Food Stores, Inc., 329 Md. 461, 466-67 , 620 A.2d 340, 342 (1993), and the words used must be given their usual and common signification. See Richmond v. State, 326 Md. 257, 262 , 604 A.2d 483, 486 (1992).

Moreover, it is the policy of this Court to favor an interpretation that upholds the validity of an ordinance, see R.S. Constr. Co. v. Baltimore, 269 Md. 704, 706 , 309 A.2d 629, 630 (1973) (“The oft expressed presumption in favor, of the constitutionality of a statute, is no less true of an ordinance, be it county, or city.”) (citations omitted), one which would render the ordinance constitutional over one that would render it unconstitutional. Thus, every presumption favoring its validity will be indulged and the Ordinance will be declared unconstitutional only if it plainly contravenes the Constitution. See Baltimore v. Charles Center Parking, Inc., 259 Md. 595, 598 , 271 A.2d 144, 145 (1970); Gino’s of Maryland, Inc. v. Baltimore, 250 Md. 621, 636 , 244 A.2d 218, 226-27 (1968); Baltimore Transit Co. v. Metropolitan Transit Authority, 232 Md. 509, 520-21 , 194 A.2d 643, 649 (1963).

See also Anderson v. State, 328 Md. 426, 438 , 614 A.2d 963, 968 (1992) (“A construction of a statute which would cast doubt on its constitutional validity should be avoided.”). An annual fee “for the docking, slip rental and storage, dry or wet of boats,” is imposed by Ordinance No. 765. Paragraph 1. It also requires that the revenues thereby produced “be collected by” businesses, including marinas, within the Havre de Grace City limits that rent space for that purpose.

Paragraph 2. Those businesses are required by the Ordinance to submit to the City a report on a semir-annual basis containing the names of the lessees, the amount of the rent paid and the user fees due. Paragraph 3. Those businesses required to “charge and collect” user fees are also subject to audit by the City, at its option.

Paragraph 4. Moreover, the Ordinance refers to the annual fee as a “user fee.” See paragraphs 3, 4, 5, and 6.C. Accordingly, notwithstanding the petitioners’ arguments to the contrary, Ordinance ³⁵³ 765 places responsibility for paying the fee on those who rent docking and storage from the marinas and the responsibility for charging and collecting the fee on the marinas. The contention that the Ordinance is vague because it does not make clear whether the $100 limit applies separately for dry and wet storage is also without merit. As both the trial and intermediate appellate courts held, paragraph 1 makes crystalline the reach of the $100 limit.

It applies to “all rental charges for the docking, slip rental and storage, dry or wet, of boats.” Thus, we agree with the intermediate appellate court, “by the clear language of paragraph 1, and with respect to a given boat, the $100 maximum applies to “all