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

• Decision Date: 07 March 1975
• Docket Number: No. 60,60
• Citation: 274 Md. 158,334 A.2d 107
• Parties: , 76 Lab.Cas. P 53,633 GIANT OF MARYLAND, INC. v. STATE'S ATTORNEY FOR PRINCE GEORGE'S COUNTY, Maryland.
• Court: Maryland Court of Appeals

Page 158

274 Md. 158

334 A.2d 107, 76 Lab.Cas. P 53,633

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

No. 60.

Court of Appeals of Maryland.

March 7, 1975.

Joseph D. Tydings, Baltimore (Aaron L. Handleman Robert D. Roadman and Danzansky, Dickey, Tydings, Quint & Gordon, Washington, D. C., on the brief), for appellant.

Alexander L. Cummings, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

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

O'DONNELL, Judge.

We are here again confronted with a case arising from the legal skirmishing between the State's Attorney for Prince George's County in the fulfillment of his constitutional duties and the proprietor of a large supermarket alleged to have violated the 'Sunday Blue Law' in effect for Prince George's County. ¹ This is 'round two' of the State's Attorney's pursuit of Giant of Maryland, Inc. (Giant) and comes as a sequel to Giant of Maryland, Inc. v. State's Attorney for Prince George's County, 267 Md. 501, 298 A.2d 427, appeal dismissed, 412 U.S. 915, 93 S.Ct. 2733, 37 L.Ed.2d 141 (1973). On Giant's first visit to this Court we sustained the constitutionality of Maryland Code (1957, 1971 Repl. Vol.) Art. 27, § 534H, found that Giant was not within the 'small business' exemption provided in § 534H(c), par. 3, nor did it come within the exemptions provided for 'drug stores,' 'delicatessens' or 'bakeries and bake shops,' within the meaning of § 534H(b). In vacating an order which enjoined Giant 'from conducting business on Sunday with more than six employees at any given time in any one store in Prince George's County' we remanded the case for the entry of a decree enjoining Giant from violating the provisions of Art. 27, § 534H, and such a decree was entered on February 20, 1973.

On Sunday, December 16, 1973, Giant conducted an 'Associates Day' in the department store portion of its large supermarket located in the Free State Mall in Bowie, Maryland, where it permitted its employees and members of their families to purchase merchandise at discount. The State's Attorney petitioned the court to hold Giant in contempt for violating the decree. After a hearing, the Chancellor (Taylor, J.) found that Giant had operated the department store 'in their usual manner' and that the extension of shopping privileges to the families of Giant employees, including sisters-in-law, brothers-in-law and mothers-in-law, was tantamount to an operation of the establishment 'for the general public.' In its oral opinion the trial court stated:

'I can appreciate that people working in commercial establishments such as Giant would seldom have an opportunity during Christmas and Easter seasons to shop with his or her family, but I do believe that there is a violation of the statute.

They were doing business for labor or profit in the usual manner and location. The scale was not as great as that of other days and there were some areas of the store not operating, but certainly the department store was operating in 'their usual manner'; but it certainly does not seem to have been a flagrant violation of the statute. As a matter of fact, efforts were made to restrict participation in Associates Day to Giant employees or their families, and were it limited to Giant employees only I might be compelled to take a different view of the case.

When the privilege to shop on Associates Day was extended to sisters-in-law, brohers-in-law, mothers-in-law, as testified by Mr. Sisson, then Giant offered to operate and operated its establishment for the general public.'

From an adjudication that Giant was guilty of contempt and a fine of $100, an appeal was seasonably filed to the Court of Special Appeals. See Code (1974), Courts and Judicial Proceedings Article 12-304. While the case was pending in the Court of Special Appeals we issued a writ of certiorari to that court. See Code (1974), Courts and Judicial Proceedings Article § 12-203.

In its appeal Giant contends that the evidence offered in the trial court failed to establish that it conducted business on December 16, 1973, 'in the usual manner,' nor did it operate its establishment 'in any manner for the general public,' in violation of Art. 27, § 534H and that the evidence additionally failed to establish any intent on its part to violate the injunction.

In the trial court evidence was offered, in support of the petition for contempt, that an employee of Peebles Department Store, a competitor of the appellant in Bowie, at about 11 A.M. on December 16th was able to gain entrace to the store and made a single purchase of a pair of socks for seventy-nine cents. The witness acknowledged that two persons who had approached the entrance to the store in front of him were there confronted by a uniformed guard and upon acknowledgment that they were not employees of Giant were turned away by the guard, who told them that 'this is for employees only shopping.' Notwithstanding the witness's awareness of the restriction to employees for admission, he was able to evade the guard and gain entrance without being questioned.

A special investigator in the employ of the State's Attorney, upon the receipt of a complaint from an anonymous clergyman, visited the mall at about 2:50 P.M. that Sunday to verify the pastor's complaint. As he approached the entrance to the store from the mall he noticed six cashiers operating the cash registers. Entering, without confrontation-although he acknowledged that he was 'well known' in the area-he sought out the store manager. During his visit to the premises-not lasting more than five minutes-and in a dialogue with the manager, he made inquiry concerning the manager's awareness of the existence of the injunction, obtained a roster of the employees there on duty and observed what appeared to him to be the conduct of business by the cashiers in a normal manner. Although the witness did not recall seeing any posted signs restricting the patronage, he acknowledged that he was 'not looking for any particular signs.' The witness conceded that it was 'possible' that the manager told him that 'the store was open for employees only,' and disclosed that he had also received a complaint that the store was open on Sunday, December 2nd, but did not pursue it because it was open 'for employees only' on that date.

Uncontradicted testimony was offered by a vice-president and counsel for the appellant that beginning in 1964 Giant instituted an 'Associates Day' in order to give its employees-both before Easter and before Christmas-an opportunity on a special day to do their holiday shopping with members of their families and to purchase, at discount, department store type goods sold by their employer. Employees of its various stores in the metropolitan area were given notice of such private shopping days by letters addressed to them, as well as by bulletins posted in the 'employees only' area of the respective stores. When such an 'Associates Day' was first scheduled in Prince George's County, after the opening of that store in the Free State Mall in 1968, the witness consulted the State's Attorney seeking assurance that such an operation would not be in violation of the statute. Although the State's Attorney advised him that 'if it was an employees' or Associates Day, not open to the public that they would not take any action,' he further advised that if complaints were received they would be required to 'look into the situation with a closer analysis,' and Giant would be advised of any such complaint. No complaint concerning the conduct of 'Associates Day' was received from the State's Attorney in the intervening five year period. There was also testimony that the appellant regularly ran advertisements in the District of Columbia newspapers, soliciting the general public to purchase food and appliances on sale during the week and on which there was a legend announcing that the stores were 'Open Monday through Friday from 9 A.M. to Midnight.' The only announcement for Sunday, December 16th was that promulgated directly to Giant employees.

The testimony of the general manager of the department store unit was similarly uncontradicted. Through his testimony it was elicited that Sunday, December 16th, was chosen-nine days before Christmas-to permit the employees and members of their families-which included 'brothers, sisters, grandparents, brothers-in-law, sisters-in-law' ²-to be able to shop at a discount in an atmosphere devoid of crowding by the general public; that on the date in question, to give notice to the public, printed posters stating: 'SORRY! THIS IS A GIANT FAMILY PRIVATE PARTY. THANK YOU' were affixed on the only unlocked door into the mall in use that day, on both the right and left of the entrance to the store from the mall and on the exterior of an emergency exit facing High's Dairy Store, which is open on Sunday, to so inform the patrons of High's. Special guards were stationed at the entrance to the store and at the 'customer pickup' area in the rear, to turn away any members of the general public seeking to enter. Just for the occasion Giant hired a constumed Santa Claus with whom the invitees might have their photograph taken; a portable television set was awarded an employee as a result of a drawing held for those in attendance.

Both the manager and assistant manager served that Sunday without compensation; their duties were 'to socialize' with the employees, many of whom, personally known to the general manager, were greeted at the door; many who shopped were recognized by him. In addition to the special guards, he turned away members of the general public undertaking to enter the store by advising them that a 'private party' was in progress and asked them to 'please come back on Monday.'

The general manager was explicit in his testimony that in his...