Bowie Inn, Inc. v. City of Bowie

• Citation: 335 A.2d 679,73 A.L.R.3d 1079,274 Md. 230
• Decision Date: 24 March 1975
• Docket Number: No. 58,58
• Parties: , 7 ERC 2083, 73 A.L.R.3d 1079 BOWIE INN, INC., et al. v. CITY OF BOWIE et al.
• Court: Court of Appeals of Maryland

Page 230

274 Md. 230

335 A.2d 679, 7 ERC 2083, 73 A.L.R.3d 1079

BOWIE INN, INC., et al. v. CITY OF BOWIE et al.

No. 58.

Court of Appeals of Maryland.

March 24, 1975.

Alan I. Baron, Baltimore, and Daniel I. Sherry, Bowie (Stephen H. Sachs and Frank, Bernstein, Conaway & Goldman, Baltimore, and Henry F. Leonning, Upper Marlboro, on the brief), for appellants.

Joseph G. Finnerty, Jr., Baltimore, for appellees.

Aruged before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

ELDRIDGE, Judge.

On March 8, 1971, the City Council of Bowie enacted an ordinance designed to combat the problem of roadside litter in that municipality. Ordinance 0-4-71 made it unlawful for any person to sell any soft drink or malt beverage unless a deposit of at least five cents on each container were charged at the retail level and unless the deposit were given back upon return of the containers to the retail outlet. The ordinance provided that violation of any of its provisions would be a misdemeanor, subjecting the violator to a fine of up to $100 and imprisonment for a maximum of 30 days.

Two suits in equity were filed, seeking declarations that Ordinance 0-4-71 was invalid and seeking to enjoin the enforcement of the ordinance. The plaintiffs in the first suit were the Bowie Inn, Inc., and other retail merchants located in Bowie who sold soft drinks or malt beverages. The plaintiffs in the second case were the Maryland Soft Drink Association, Inc. and several bottlers and distributors of soft drinks who serve the Bowie area. The two cases were consolidated for trial, and the consolidation continues for purposes of appeal.

The cases were tried before the Circuit Court for Prince George's County (William H. McCullough, J.). On March 21, 1974, the court in an oral opinion held Ordinance 0-4-71 to be valid. After the filing of an appeal to the Court of Special Appeals, we issued a writ of certiorari prior to a decision by the Court of Special Appeals.

The petitioners challenged Ordinance 0-4-71 on six grounds in the circuit court, and they reiterate those same grounds here. Petitioners argue: (1) that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Art. 23 of the Maryland Declaration of Rights by imposing a mode of doing business on retailers within Bowie and distributors to Bowie which bears no real and substantial relation to the reduction of litter in Bowie; (2) that the ordinance violates the Due Process Clause because its definition of 'soft drink' is vague; (3) that the ordinance denies to the petitioners the equal protection of the laws in violation of the Fourteenth Amendment because it creates 'an artificial and arbitrary classification' of soft drink and malt beverage containers which is not different from containers for other products; (4) that the Bowie ordinance violates the Commerce Clause of the United States Constitution because the benefit to be achieved through the ordinance is negligible when compared to the burden on interstate commerce created by the ordinance; (5) that the City of Bowie was not authorized by its charter or any act of the State Legislature to enact the ordinance; and (6) that the State Legislature has preempted the matter of deposit requirements on malt beverage containers, thereby denying to municipalities the right to enact legislation on this subject. We reject all of these arguments and affirm the decision of the circuit court upholding Ordinance 0-4-71.

Petitioners presented a variety of evidence before the circuit court for the purpose of demonstrating that the ordinance would constitute a heavy burden on businesses in Bowie and their distributors, and that the ordinance would fail to achieve its aim in reducing letter in Bowie. The evidence, with regard to the burden on businesses located in Bowie, was presented through the testimony of four Bowie retailers. They indicated there were many sellers of soft drink and malt beverages located outside of Bowie but easily accessible to Bowie residents, that some Bowie residents would buy beer outside the city rather than buy it in returnable containers, that some soft drinks and beers are not available in returnable containers, that added expenses for handling returnables would be incurred by Bowie retailers, and that sales of beer in reusable containers by Bowie retailers had been decreasing. All the retailers testified that their businesses would suffer as a result of the ordinance. One retailer claimed that the ordinance would put him out of business. Testimony elicited from representatives of two soft drink bottlers and a beer distributor indicated that consumer demand for returnable beverage packaging was declining and that bottlers would be unwilling to change their marketing practices for the benefit of Bowie retailers. Petitioners also presented the testimony of Robert Weinberg, a beer marketing expert, who opined that a decrease in malt beverage sales by Bowie retailers of as much as 50% might result from the ordinance. Four retailers from Vermont and a beer distributor serving that state, where a mandatory deposit law had been enacted, testified that they had suffered significant losses in beer and soft drink sales since enactment of the Vermont statute.

With regard to the effectiveness of the Bowie ordinance in preventing littering in Bowie, petitioners presented the testimony of Christopher Gilson, a 'litter control consultant.' Mr. Gilson testified that the ordinance would be ineffective. He suggested alternative methods for controlling litter in Bowie.

The respondents-City of Bowie and various concerned public officials-presented the testimony of Aldene Bain, who described two litter pickups which had been carried out by an environmental ground and a group of high school students. She testified that a large quantity of bottles and cans had accumulated on the roadsides during the six months between the first and second pickup campaigns. Respondents also presented testimony that, following the passage of a mandatory deposit statute in Oregon, a substantial reduction in roadside litter took place.

In the circuit court, Judge McCullough concluded that the ordinance would cause the Bowie retailers to lose some customers and would increase their cost of doing business. However, he viewed the fears of the Bowie retailers that their business would be severely damaged as 'highly speculative.' He also found that the ordinance had a logical connection to resolving the problem of litter in Bowie, although the effectiveness of the legislation was uncertain.

(1)

Petitioners' initial contention is that Ordinance 0-4-71 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Art. 23 of the Declaration of Rights of Maryland. ¹ They argue that the evidence presented in the lower court establishes that the ordinance will not achieve its goal of reducing litter in Bowie and that, therefore, it violates due process because of the economic burden it imposes on them. They rely principally on Md. Bd. of Pharmacy v. Sav-A-Lot, Inc., 270 Md. 103, 311 A.2d 242 (1973).

In Sav-A-Lot, Maryland Code (1957, 1971 Repl.Vol.), Art. 43, § 266A(c)(4)(iv), which enabled the Maryland Board of Pharmacy to reprimand or suspend or revoke the license of any pharmacist who advertised the prices of prescriptions, dangerous or nonproprietary drugs, was held to be invalid. The Court in Sav-A-Lot reviewed extensive evidence concerning the adverse effect that the statute had on consumers and concerning whether the statute had any connection with the purposes which the Board of Pharmacy claimed that it served. The Court concluded that the means selected (the ban on advertising) had no real and substantial relation to the objects sought to be obtained (prevention of increased demand for drugs; monitoring of prescriptions by pharmacists; protection of the profession of pharmacy from demeaning rivalry; and prevention of pressure on doctors to prescribe larger quantities of drugs). Md. Bd. of Pharmacy v. Sav-A-Lot, supra, 270 Md. at 109, 116, 311 A.2d 242.

The principles set forth in Sav-A-Lot do not lead to the conclusion urged by petitioners. The test for constitutionality under the Due Process Clause is whether a statute, as an exercise of the state's police power, bears a real and substantial relation to the public health, morals, safety, and welfare of the citizens of this state. Md. Bd. of Pharmacy v. Sav-A-Lot, supra, 270 Md. at 106, 311 A.2d 242; Davis v. State, 183 Md. 385, 397, 37 A.2d 880 (1944). The exercise by the Legislature of the police power will not be interfered with unless it is shown to be exercised arbitrarily, oppressively or unreasonably. Salisbury Beauty Schools v. St. Bd. 268 Md. 32, 48, 300 A.2d 367 (1973). The wisdom or expediency of a law adopted in the exercise of the police power of a state is not subject to judicial review, and the law will not be held void if there are any considerations relating to the public welfare by which it can be supported. Sav-A-Lot, supra, 270 Md. at 106, 311 A.2d 242; Salisbury Beauty Schoos v. St. Bd., supra, 268 Md. at 48, 300 A.2d 367. Such a statute carries with it a strong presumption of constitutionality. Sav-A-Lot, supra, 270 Md. at 106, 311 A.2d 242; Salisbury Beauty Schools v. St. Bd., supra, 268 Md. at 48-49, 300 A.2d 367.

Petitioners are, in effect, asking us to substitute our judgment concerning the wisdom of Ordinance 0-4-71 for that of the City Council of Bowie. Before the enactment of Ordinance 0-4-71, a public hearing was held at which representatives of the soft drink and container industries presented their objections to the ordinance to the City Council. There was also testimony favorable to the ordinace at the hearing, and the results of the two roadside litter collections were presented to the City Council. ² After enactment of Ordinance 0-4-71, peti...