Opinions, Advice and Legislation Quarterly News
January-March 1999

Opinions

  1. Corrections
  2. Criminal Law
  3. Gaming
  4. Health Services Cost Review Commission
  5. Retirement Systems
  6. Smart Growth
  7. Taxation

Advice Letters

  1. Budget Bill
  2. Condominiums, Cooperatives and Home Owners Associations
  3. Domestic Violence
  4. Education
  5. Firearms
  6. First Amendment
  7. Health
  8. Home Improvement Licenses
  9. Nursing Homes
  10. Residency Requirement
  11. State Funds
  12. Telemarketers

Corrections

Question: What principles should guide the computation of good-conduct credits for inmates serving multiple sentences in light of 1992 and 1996 legislation affecting such computations?

Answer: 1. As a general rule, an inmate subject to multiple sentences serves a single term of confinement that begins on the first day of the sentence that begins earliest and ends on the last day of the sentence that ends last. However, in certain circumstances, sentences must be considered separately for purposes of computing good-conduct credits.
2. For all sentences imposed before October 1, 1992, an inmate is entitled to good-conduct credits at the rate of 5 days per month.
3. For all sentences imposed on or after October 1, 1992, so long as none of those sentences is for a crime of violence or a drug offense as described in the Annotated Code of Maryland, Article 27, 700(d)(2), an inmate is entitled to good-conduct credits at the rate of 10 days per month. This is true even if the inmate's term of confinement includes sentences imposed before October 1, 1992, for violent crimes or drug offenses.
4. For all sentences imposed on or after October 1, 1992, if at least one of those sentences is for a crime of violence or a drug offense as described in Article 27, 700(d)(2), an inmate is entitled to good-conduct credits at the rate of 5 days per month.
5. If a sentence is imposed on or after October 1, 1996, for a crime committed while the defendant was on parole and parole is revoked, good-conduct credits earned prior to the defendant's release on parole may not be applied to the current term of confinement.

Opinion No. 99-002
February 16, 1999

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Criminal Law

Question: Is a prosecution for automobile theft under the general theft statute precluded because another statute specifically relates to unlawful takings of motor vehicles?

Answer: The statute that specifically prohibits unlawful takings of motor vehicles neither supersedes nor repeals by implication the general theft statute. Accordingly, a theft of an automobile may be prosecuted under the general theft statute.
Note: Senate Bill 382 passed in the 1999 session ratifies this result

Opinion No. 99-005
March 2, 1999

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Gaming

Question: May an on-line game called MegaMania be operated under a Class NG bingo license in Calvert County?

Answer: No. Although MegaMania is a form of bingo, as currently designed it would not be operated within Calvert County nor would it be conducted by the licensee, as required by the license.

Opinion No. 99-004
March 1, 1999

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Health Services Cost Review Commission

Question: May bonds issued on behalf of a hospital by the Maryland Industrial Development Financing Authority be paid and refinanced under the Maryland Hospital Bond Program?

Answer: Yes. The Bond Program is available for bonds issued by MIDFA on behalf of a hospital, assuming that other conditions of the Bond Program are satisfied.

Opinion No. 99-007
March 29, 1999

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Retirement Systems

Question: Is a member of the State Retirement and Pension System, who has served in a reserve component of the United States armed forces, entitled to "military service" credit for the member's participation in annual summer reserve training performed prior to State employment?

Answer: Yes, if the member was placed on active duty for such reserve training; has at least ten years of creditable service with the State; and otherwise satisfies the conditions for military service credit.

Opinion No. 99-006
March 11, 1999

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Smart Growth

Questions:1. Are the Manchester Route 30 and Westminster Route 140 bypass projects exempt from the Smart Growth funding restrictions as a result of the "grandfather" provision of the 1997 Smart Growth legislation?
2. Can an exception to the Smart Growth funding restrictions be sought from the Board of Public Works for either bypass project?

Answers: 1. No. Neither the Manchester Bypass nor Westminster Bypass is exempted from Smart Growth funding restrictions by the grandfather provisions of the Smart Growth legislation.
2. Yes. Either the county or the State Department of Transportation may seek an exception. However, even if the BPW grants an exception from Smart Growth restrictions, a project is still subject to the normal State budgetary process.

Opinion No. 99-003
February 22, 1999

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Taxation

Questions: 1. May the State or its political subdivisions levy a special tax, with the resulting revenues dedicated to public libraries?
2. May the State or its political subdivisions create a benefit assessment district to fund public library services?

Answers: 1. The State, as well as two counties and Baltimore City, have the authority to levy a special tax that could generate revenues dedicated to public libraries.
2. The State could create special assessment districts to fund public library services by public general law. Counties with home rule and Baltimore City have the power to create such districts. In counties without home rule, the State could create such districts by public local law.

Opinion No. 99-001
January 22, 1999

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Budget Bill

Question: Is a separation of powers problem presented by a proposed amendment to the Budget Bill that would condition the increase in certain appropriations to the judiciary and criminal justice agencies up on the submission to the Legislature of a plan to address the problems of the Baltimore City Circuit Court?

Answer: The proposed amendment is within the judicially recognized power of the General Assembly to condition appropriations and does not violate the separation of powers clause.

Letter to Hon. Howard P. Rawlings
March 15, 1999

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Condominiums, Cooperatives and Home Owners Associations

Questions: 1. Does the Maryland Condominium Act apply to condominiums established before 1982?
2. Do the bylaws of condominiums need to be amended to reflect changes in State law?
3. Is there an exception from the statutory condominium rulemaking procedures for "administrative or ministerial rules"?

Answers: 1. Yes.
2. Changes in State law that conflict with a bylaw supersede the bylaw by operation of State law. A bylaw must be amended to reflect changes in State law that are permissive if the home owners association wants to incorporate the changes.
3. No.

Letter to Hon. Leonard H. Teitelbaum
March 19, 1999

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Domestic Violencee

Question: Is proposed legislation that would restrict the ability of a respondent in a domestic violence case to possess firearms during the pendency of the proceeding and that would authorize courts to issue search warrants for such weapons constitutional?

Answer: Yes.

Letter to Hon. Anne Marie Doory
February 5, 1999

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Education

Questions: 1. What requirements does State law create for the funding of Regional Institutes of Children and Adolescents (RICAs)?
2. Are local subdivisions paying their appropriate share under Education Article 8-415(d)?

Answers: 1. Statutes governing the RICAs provide little guidance on how expenses for the education program should be allocated between the State and local political subdivisions.
2. The formula set forth in ED 8-415(d) is a rough approximation of the cost ordinarily associated with such programs. However, ED 8-415(d) itself applies only to placements in non-public programs and therefore does not govern placements at the RICAs.

Letter to Oscar L. Morgan
March 31, 1999

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Firearms

Question: Does Article 27, 36I of the Maryland Annotated Code prohibit the State or a political subdivision from bringing a law suit against the manufacturers of guns for the costs arising from shooting injuries?

Answer: The statute would not prevent all of the possible types of suits that could be brought against gun manufacturers, but it would prevent some causes of action involving strict liability.

Letter to Hon. Timothy F. Ferguson
March 2, 1999

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First Amendment

Question: Would a proposed bond bill providing a grant to a religious organization to renovate a building for a homeless shelter violate the constitutional ban on establishment of religion?

Answer: A State grant to a religious organization for renovation of a building for a homeless shelter at which there would be regular religious services would violate the constitutional prohibition on the establishment of religion.

Letter to Hon. Norman H. Conway
February 11, 1999

Question: Would a proposal to provide State funds in the form of bond proceeds to the New Chapel Baptist Church for the development of a community center be consistent with the provisions of the federal and State constitutions prohibiting the establishment of religion?

Answer: The proposed bond issue meets the constitutional test developed in Lemon v. Kurtzman that requires that the statute have a secular purpose, that its principal or primary effect be one that neither advances nor inhibits religion, and that it not foster an excessive government entanglement with religion and therefore, would be constitutional.

Letter to Hon. David M. Valderrama
March 5, 1999

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Health

Question: Would a proposed bill that would impose liability against health care carriers and managed care entities under State law be preempted by the federal Employee Retirement Insurance Security Act (ERISA)?

Answer: The proposed bill could be upheld against Supremacy Clause challenge so long as it is read not to reach decisions to deny a benefit under the health benefit plan but only to reach medical care treatment decisions with respect to care that is provided.

Letter to Hon. Leo E. Green
February 1, 1999

Question: Does a nursing home's use of opioids in the management of pain for terminally ill patients carry a risk of criminal prosecution for homicide if the resident dies while receiving opioids?

Answer: Under State regulations applicable to nursing homes, every nursing home resident who is terminally ill should receive pain and symptom management that is consistent with sound medical practice and the resident's plan of care. Criminal liability for homicide cannot be imposed on health care providers who prescribe or administer clinically-justified opioid analgesia for the purpose of relieving properly documented pain.

Letter to Becky Sutton
March 5, 1999

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Home Improvement Licenses

Question: If a person wishes to supplement his income by doing odd jobs, may he do so without a license; if not, what type of license might be required? Would incorporation be necessary to protect this person's assets and what type of insurance would he need? How might sales and use tax laws apply to these types of transactions?

Answer: Some types of home repair and improvements may be performed only by persons who have a license to engage in that business; some types of work also require special certification from the State. Creation of a corporation may limit personal liability, whether incorporation is advisable for a specific person is not a matter for this office to advise. An applicant for a contractor's license and renewal of the license is required to maintain general liability insurance of a certain amount. While Tax-General Article 11-102 imposes sales and use tax on all retail sales of either tangible personal property or a taxable service in the State, specific application of the statute would depend on the nature of the transaction.

Letter to Hon. J. Anita Stup
January 5, 1999

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Nursing Homes

Question: Does DHMH Nursing Home Transmittal 135 establish a level of care for eligibility for nursing home benefits under the Medicaid Program that is more stringent than that allowed by federal law and the Department's own regulations?

Answer: Transmittal 135 is not inconsistent with applicable federal law and regulations, given certain ambiguities and contradictions in the federal statute and regulations.

Letter to Hon. Paula C. Hollinger
February 16, 1999

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Residency Requirement

Question: Would proposed legislation that would alter the durational residency requirements for the chief executive officers of Baltimore City and Montgomery County violate the Home Rule Amendment of the Constitution.

Answer: No. The proposed legislation is a two-subdivision "public general law" expressly sanctioned by Article XI-A, 4 of the State Constitution.

Letter to Delegates Marriott, Rawlings, Rosenberg and McIntosh
January 27, 1999

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State Funds

Question: Would a proposal by the State Legislative Auditor to limit future investments of State funds by a Specialized Small Business Investment Company to Maryland companies violate the Commerce Clause or be preempted by federal law?

Answer: Neither the Commerce Clause or the Supremacy Clause is a barrier to the recommendation of the State Legislative Auditor to limit investments made by a SSBIC that is funded in part with State funds.

Letter to Hon. Samuel I. Rosenberg
January 22, 1999

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Telemarketers

Question: Would certain proposed legislation (patterned on a Georgia statute) that regulates telemarketers be constitutional?

Answer: The Georgia legislation regulates telephone solicitation, which it defines as "any voice communication over a telephone line for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services." The law applies to both live calls and those made by machines, but not to calls made at the invitation of the person called, calls to a person as part of an existing business or personal relationship, or calls by or on behalf of a charitable organization. The statute establishes a database of persons who object to telephone solicitations and prohibits telemarketing calls to those numbers. The proposed legislation could be defended against challenge on the First Amendment and federal preemption grounds.

Letter to Hon. Mary A. Conroy
January 21, 1999

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To obtain a copy of any item in this newsletter, call Deborah Spence at 410-576-6327
Or e-mail dspence@oag.state.md.us.
Maryland Attorney General's Office
Issue Date 1999.