Giant of Maryland, Inc. v. State's Attorney for Prince George's County

• Decision Date: 02 January 1973
• Docket Number: Nos. 116 and 149,s. 116 and 149
• Citation: 298 A.2d 427,267 Md. 501
• Parties: , 70 Lab.Cas. P 52,972 GIANT OF MARYLAND, INC. v. STATE'S ATTORNEY FOR PRINCE GEORGE'S COUNTY. STATE'S ATTORNEY FOR PRINCE GEORGE'S COUNTY v. The GRAND UNION COMPANY and Safeway Stores, Incorporated.
• Court: Maryland Court of Appeals

Page 501

267 Md. 501

298 A.2d 427, 70 Lab.Cas. P 52,972

GIANT OF MARYLAND, INC. v. STATE'S ATTORNEY FOR PRINCE GEORGE'S COUNTY.

STATE'S ATTORNEY FOR PRINCE GEORGE'S COUNTY v. The GRAND UNION COMPANY and Safeway Stores, Incorporated.

Nos. 116 and 149.

Court of Appeals of Maryland.

Jan. 2, 1973.

Clarence W. Sharp, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, and Arthur A. Marshall, Jr., State's Atty., and Alan E. D'Appolito and John B. Wynes, Asst. State's Attys., respectively, for Pr. George's County, Upper Marlboro, on brief), for State's Attorney for Prince George's County.

Hal C. B. Clagett, Upper Marlboro (Sasscer, Clagett, Channing & Bucher, Upper Marlboro, on brief), for The Grand Union Co.

W. Frank Stickle, Jr., Rockville (Hanson, O'Brien, Birney, Stickle & Butler, Washington, D. C., on brief) for Safeway Stores., Inc.

Joseph D. Tydings, Baltimore (Aaron Handleman, Robert D. Roadman and Danzansky, Dickey, Tidings, Quint & Gordon, Washington, D. C., on brief for Giant of Maryland, Inc.

Richard S. McKernon, County Atty., Alfred H. Carter, Deputy County Atty. and William J. Chen, Jr., Asst. County Atty., Rockville, on brief for Montgomery County, amicus curiae.

J. Gibson Semmes, Harry A. Inman, David B. Robinson, Patton, Blow, Verrill, Brand, Boggs & May, Washington, D. C., and James C. Tuttle, Troy, Mich., on brief for S. S. Kresge Co., amicus curiae.

W. Frank Stickle, Jr., Rockville, Md., and Hanson, O'Brien, Birney, Stickle & Butter, Washington, D. C., on brief for Safeway Stores, Inc., amicus curiae.

Argued before MURPHY, C. J. and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

MURPHY, Chief Judge.

These appeals bring into question the construction and constitutionality of § 534H of Article 27 of the Maryland Code (1957, 1971 Repl.vol.). This statute, one of many included among the mass of so-called 'Sunday Blue Laws' enacted by the General Assembly of Maryland, is applicable only in Prince George's County. Insofar as here pertinent, the section provides:

'(a) In Prince George's County, except as specifically in this section otherwise provided, it is unlawful on Sunday for any wholesale or retail establishment to conduct business for labor or profit in the usual manner and location or to operate its establishment in any manner for the general public. It shall not cause, direct, permit, or authorize any employee or agent to engage in or conduct business on its behalf on Sunday.

'(b) Notwithstanding any provision of this section, the operation of any of the following types of retail establishments is allowed on Sunday.

1. Drugstores whose principal business is the sale of drugs and related items.

2. Delicatessens whose principal business is the sale of delicatessens and related food items.

3. Bakeries and bakeshops.

'(c) Nothing in this section applies to:

3. Small business with not more than six (6) persons on any one shift with the exception of persons or retailers engaged in the sale of motor vehicles.

'(i) The State's Attorney of Prince George's County may petition the Circuit Court to enjoin any violation of this section.'

On June 6, 1972 the State's Attorney for Prince George's County, alleging violations of § 534H, filed petitions to enjoin Giant of Maryland, Inc. (Giant), Safeway Stores, Incorporated (Safeway), and The Grand Union Company (Grand Union) from operating their respective chains of supermarket stores in Prince George's County on Sunday. Answering the petitions, the respondents each claimed that the statute was inapplicable to the business it conducted on Sunday because it was a '(s)mall business with not more than six (6) persons on any one shift . . .' within the contemplation of § 534H(c) 3. In addition, Giant maintained that certain of its stores were exempt as 'drugstores,' 'delicatessens' or 'bakeries and bakeshops' within the meaning of § 534H(b). Each of the respondents also contended that the statute was void for vagueness in violation of the Fourteenth Amendment to the United States Constitution; ¹ and, further, that as a penal statute (§ 534H(j) makes '(a)ny person, firm or corporation violating the provisions of this section . . . guilty of a misdemeanor . . .'), § 534H must be strictly construed in favor of the accused and against the State. Safeway and Giant raised the additional defense of unequal enforcement of the law in violation of the Fourteenth Amendment.

At the trial before Judge James H. Taylor, evidence was adduced showing that on Sundays, June 4 and 11, 1972, there were eleven Giant stores, twenty-nine Safeway stores, and six Grand Union stores open and operating in Prince George's County; that each of the individual Safeway and Grand Union stores was operated with not more than six employees working at any one time on Sunday; that Giant operated with more than six employees per store at any one time during the Sunday business hours, but because it utilized 'overlapping shift structures,' not more than six employees began and ended their work period at the same time; that each of the eleven Giant stores in Prince George's County contains a delicatessen section for the sale of delicatessen and related food items; that four of Giant's stores contain bakery sections (where the baking is done on the premises) and all stores contain bake sections where 'Heidi' (a wholly owned Giant subsidiary) bakery products are sold; and that two of Giant's stores have pharmacy licenses and operate drug sections.

Evidence was adduced showing that on Sunday, June 4, 1972 the Prince George's County police conducted an investigation at a Giant store located in Bowie; that it found seven employees assigned to the pharmaceutical department, five to the delicatessen department, three to the bakery department, and six additional employees assigned to other areas of the store. On the same day, the police surveyed a Giant store located in Clinton, finding that five employees were there assigned to the bakery department, five to the delicatessen section, and ten others to different areas of the store.

One of Giant's officers testified that in conducting its business on Sundays, it 'cautioned the (store) managers that they could use no more than six persons on any shift' (meaning the group of employees beginning and ending their work at the same time).

It was shown by the evidence that Safeway's 1971 sales volume nationally exceeded $5,300,000,000, making it the largest food retailer and second largest retailer in the United States. Grand Union's 1971 sales nationally were $1,300,000,000; it is the twenty-first largest retailer and the tenth largest food retailer in the United States. Giant's gross sales in 1971 amounted to $560,000,000.

It was stipulated that respondents' competitors in the County-7-Eleven Stores, Consumer Supermarkets, Jumbo Food Stores, High's Dairy Stores, Dart Drug Stores, Drug Fair, and People's Drug Stores-each regularly operates numerous retail outlets in the County on Sundays. It was also stipulated that a dispute exists in Montgomery County, Maryland, between the State's Attorney and the County Executive concerning the interpretation of Code, Article 27, § 534J, which is, with the exception of one insignificant word, identical with Article 27, § 534H; that this dispute has resulted in the State's Attorney for Montgomery County filing a suit to enjoin the County Executive from causing the arrest of managers or owners of 'food chains' conducting business on Sundays without regard to the number of persons employed.

At the conclusion of the evidence, Judge Taylor entered an order permanently enjoining Giant from conducting business on Sundays with more than six employees at any given time in any one store in Prince George's County. At the same time the court dismissed the petitions against Safeway and Grand Union, finding that their respective Sunday operations, conducted with not more than six employees in each store at any given time, did not violate Article 27, § 534H. In an oral opinion rendered in support of his decrees, Judge Taylor refused to find 'that the departmentalization of the drug section, the delicatessen or bakery section is such as would remove any Giant store's operations from the prohibition of the statute,' in that the bakeries and delicatessens 'are that and parcel of . . . (Giant's) total operations and not a separate entity or a concession'; and that Giant's testimony that 75% of its sales come from the sale of food products not related to drug store activities precludes it from being a drug store whose principal business is the sale of drugs. The court rejected Giant's argument that Article 27, § 534H(c) 3 is unconstitutionally vague in that the words 'small business' and 'shift' are subject to varying interpretations; the court held that 'small business' is defined by the qualifying phrase, 'with not more than six (6) persons on any one shift' without regard to any other indicia of size, such as gross sales or square footage; and that 'shift,' in its ordinary and common meaning, refers to 'any given work period.' Thus constructed, the court held that 'on Sunday the operation must be carried on with not more than six persons at any given work period if the activity is to be within the exception. . . .' Lastly, Judge Taylor held that the fact that others were doing business on Sunday 'does not inure to the benefit of Giant.' He noted that the State's Attorney is vested with discretion on the matter of prosecuting violations of § 534H; he also stated that the classifications drawn by the Legislature in enacting § 534H were within its power to provide for a day of rest and relaxation.

Giant appealed from Judge Taylor's order that it 'cease and desist . . . operating with more than six (6) employees at a given time in any one (1) store with respect to the Sunday Sales operations of Giant of Maryland, Inc., in Prince George's County. . . .' The State's Attorney for Prince George's County appealed...