Opinions, Advice and Legislation Quarterly News
October-December 1999

Opinions

  1. Accountants
  2. Counties
  3. Sheriffs
  4. Taxation

Advice Letters

  1. Banks
  2. Board of Public Works
  3. Circuit Courts
  4. Constitutional Law
  5. Criminal Law
  6. Elections
  7. General Assembly
  8. Health Care Providers
  9. Interest and Usury
  10. Minors

Accountants

Question:A 1981 opinion of the Attorney General concluded that a person could lawfully prepare "compilation" and "review" reports concerning financial statements without being licensed as a certified public accountant. Given changes in the Public Accountancy Act and accounting standards since that time, must such persons now obtain a CPA license?

Answer: The 1981 opinion was consistent with the law at the time, and neither State law nor accounting standards have changed so significantly as to change that opinion. However, unlicensed persons who prepare "compilation" or "review" reports should include a statement in each report that they are not licensed by the State to perform audits.

Opinion No. 99-018
November 16, 1999

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Counties

Question: The mandatory referral process of the Regional District Act requires that proposed sales of land by public entities in Montgomery and Prince George's Counties be referred for review to the Maryland-National Capital Park and Planning Commission. Does this requirement apply to Montgomery County's disposition of surplus school properties?

Answer: Yes.

Opinion No. 99-017
October 27, 1999

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Sheriffs

Question: Does the Sheriff of Garrett County retain appointment authority for deputy sheriffs and other employees of the Sheriff's Office, after legislation placed those employees in the county classified service?

Answer: Yes, except that such authority must be exercised within the parameters governing the county classified service.

Opinion No. 99-016
October 18, 1999

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Taxation

Question: May a business organized as a foreign general partnership change its form to a Maryland limited liability company ("LLC") without paying recordation and transfer taxes related to the consequent transfer of real property from the partnership to the LLC?

Answer: A foreign partnership that converts to a Maryland LLC by certain methods may claim the exemption set forth in Tax Property Article, 12-108(y), if the conditions of the exemption are satisfied. However, a foreign partnership may not transform itself into a Maryland LLC under a special conversion provision in the Maryland LLC law that avoids the obligation to pay recordation and transfer taxes.

Opinion No. 99-015
October 12, 1999

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ADVICE LETTERS

Banks

Question: Does State law forbid banks from sending unsolicited credit card applications?

Answer: State law generally forbids unrequested commercial solicitations by fax, but does not forbid banks from sending unsolicited credit card applications by mail. While the State may not directly regulate the postal service, it may regulate banks subject to its jurisdiction, and this regulation could extend to commercial solicitations by those banks by any means.

Letter to Hon. Delores G. Kelley
October 7, 1999

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Board of Public Works

Question: Is the Board of Public Works' approval required for the sale or disposition of real property previously acquired by the State Highway Administration to build the Intercounty Connector?

Answer: The approval of the Board of Public Works is required for most, if not all, sales or transfers of State property. However, because the law, applicable regulations, and contractual provisions do not appear to treat all dispositions alike, a definitive answer in a particular circumstance may turn on such factors as to whom the property is transferred and in what manner.

Letter to Hon. Robert Flanagan
October 8, 1999

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Circuit Courts

Question: What documentation should the circuit court require regarding the placement of, and payment for, publication notices related to real estate foreclosures?

Answer: The court should require submission of invoices demonstrating actual newspaper publication cost, as well as disclosure of any commissions paid by the newspaper to the auctioneers who placed the ad.

Letter to Hon. Ellen M. Heller
November 4, 1999

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Constitutional Law

Question: A proposed bill would authorize the Prince George's County Executive to sell or lease the right to name Bowie Stadium, which is owned by the Maryland-National Capital Park and Planning Commission ("MNCPPC"), and to use the proceeds for teacher recruitment and retention. Would such a bill unconstitutionally impair the obligation of the contract between MNCPPC and the Maryland Baseball Limited Partnership ("Maryland Baseball") because it transfers power over naming rights and related compensation between State entities and eliminates Maryland Baseball's contingent right to compensation from the sale of naming rights?

Answer: No.

Letter to Hon. Dereck Davis
December 2, 1999

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Question: Would the erection of a public monument honoring Matthew Henson, a Maryland-born Arctic explorer, on church property where his mother is buried, violate the constitutional ban on the establishment of religion?

Answer: No. Expending State funds for such a monument would not violate that constitutional prohibition.

Letter to Hon. Samuel C. Linton
October 21, 1999

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Criminal Law

Question: Is the circuit court decision in Williams v. Glendening a binding precedent that renders the criminal statutes relating to sodomy, oral sex, and "unnatural or perverted" sexual practices unenforceable by all Maryland law enforcement agencies?

Answer: The circuit court did not hold those statutes unenforceable - just that they did not apply to consensual, non-commercial, private sexual behavior. Although Williams is a circuit court decision, the Court of Appeals would likely reach the same conclusion.

Letter to Hon. Sue Hecht
October 29, 1999

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Question: Is it illegal for businesses to sell fake IDs over the Internet as a "novelty" to persons under 21 who could use the IDs to purchase alcoholic beverages illegally?

Answer: There are a number of federal and state laws that could be implicated in such sales, none of which contains an express exemption for the sale of "novelty" documents. Most of these statutes require guilty knowledge or an intent to defraud which may be difficult to prove. Certain statutes could be amended to make the sale of false IDs a strict liability crime.

Letter to Hon. Jean W. Roesser
October 22, 1999

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Elections

Question: What is the status of the Reform Party in Maryland and the voters affiliated with it?

Answer: In 1996 the Reform Party lost its status as a political party in Maryland. To date it has not filed to re-establish itself as a party. Because a voter cannot be affiliated, for purposes of registration, with an organization that is not a party, the State Board of Elections converted voters who were affiliated with the Reform Party to independents.

Letter to Hon. Richard Colburn
October 27, 1999

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General Assembly

Question: While Del. Fulton is under indictment on federal mail and wire fraud charges, what are the obligations of the Joint Ethics Committee and the House Speaker concerning his service in the House of Delegates?

Answer: The practice of the Maryland General Assembly (and also the U.S. House of Representatives) has been to defer committee investigation until the outcome of a criminal proceeding. While the Speaker has authority to refer these matters to the Joint Ethics Committee, and while the Committee may act on the referral, the Speaker has no unilateral power to take certain disciplinary actions against a member and could not unilaterally suspend a delegate's voting privileges on the floor or in delegation. The Speaker may, of course, exercise his authority with respect to committee and leadership assignments.

Letter to Hon. Casper R. Taylor, Jr.
December 21, 1999

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Question: Would legal or constitutional problems be raised by permitting a group of citizens to conduct prayers for the Legislature in the House and Senate Chambers prior to the beginning of the 2000 session?

Answer: Permitting this activity by one group could lead to suits by groups that are excluded based upon either the Free Speech or the Free Exercise Clauses of the First Amendment to the U.S. Constitution; and the chamber might then have to be made available for similar uses by other groups.

Letter to Hon. Thomas V. Miller, Jr. Hon. Casper R. Taylor, Jr.
November 17, 1999

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Health Care Providers

Question: Would federal law preempt proposed legislation that would create additional exceptions to Maryland's prohibition on self-referral by health care providers?

Answer: There are two separate federal laws that impose restrictions in this area: (1) the Stark Law, which prohibits referrals by physicians to certain health services in which they have ownership or other financial interests and (2) the federal anti-kickback law, a criminal statute, that prohibits the knowing and willful offer, payment, solicitation, or receipt of remuneration to induce federal health care program business. The proposed exemptions from the Maryland self-referral law would not be preempted by either the Stark law or the federal anti-kickback statute.

Letter to Hon. Ronald A. Guns
December 9, 1999

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Interest and Usury

Question: A "payday loan" is one in which a lender provides cash to a consumer in return for a personal check that the lender holds until the consumer's next pay day; the check equals the amount of the money advanced plus a fee. Are such loans subject to State laws regulating loan, and interest rates?

Answer: Yes. Payday loans are subject to usury laws, and the charges involved constitute interest. While the payday loans of today are structured somewhat differently from the loans that inspired the usury laws, the history of Maryland's small loan provisions, together with the inclusive language of Commercial Law Article 12-303 regulating salary-purchase agreements, provide overwhelming evidence that the General Assembly intended to cover payday loans.

Letter to Hon. Thomas L. Bromwel
November 24, 1999

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Minors

Question: Some high schools apparently permit students to register to vote at the time they vote for their school board representative. In connection with this practice: (1) Do signatures of minors have legal weight? and (2) Would a minor be subject to penalties of perjury for providing false information on the application for voter registration?

Answer: (1) The signature of a minor has legal weight in this context. (2) A minor who deliberately provides false information on a voter registration application may be punished for the perjury.

Letter to Hon. Christopher J. McCabe
October 26, 1999

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Wiretap and Electronic Surveillance

Question: Would the State wiretap law be violated if the State's Attorney were to publicly replay a message voluntarily left on the voicemail system of the State's Attorney's Office?

Answer: No.

Letter to Hon. Jack Johnson
November 30, 1999

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