Can a Maryland town pass its own rules regulating charity gambling that the state already allows?

Plain-English summary

A state senator asked the Attorney General whether Maryland municipalities could regulate or ban charitable gambling, such as the casino nights and bingo games that state law already allowed nonprofit groups to run, after some municipalities in Prince George's County wanted tighter rules than the county itself had adopted. The opinion revisited and reversed an assumption from an earlier, unpublished 1985 opinion that had simply taken for granted that a county's general "general welfare" power reached gambling regulation. After examining a Court of Appeals decision on a related home-rule question, the Attorney General concluded that municipalities currently have no authority, either under their specific power to "punish and suppress" vice and gambling or under their broader general police power, to regulate or prohibit charitable gambling activities that state law permits. That conclusion, the opinion explained, was not the end of the story: the General Assembly remains free to pass a statute expressly granting municipalities the power to regulate or prohibit charitable gambling, and could do so even where a county already has its own licensing authority over the same activities.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a Maryland town pass its own ordinance restricting bingo or casino nights that state law already allows?
No, according to this opinion. The Attorney General concluded that municipal corporations had no authority under either Article 23A, §2(b)(23)'s power to "punish and suppress" gambling or their broader general welfare police power to regulate or prohibit charitable gambling activities that were otherwise permitted by state law.

Could the General Assembly still give a town that power if it wanted to?
Yes. The opinion concluded that the General Assembly could pass a statute specifically authorizing municipalities to regulate or prohibit charitable gambling, and that this authority could exist alongside, and even alter, any licensing authority already granted to the county the municipality is located in.

Why did the Attorney General change position from an earlier opinion on this topic?
The 1988 opinion explained that a 1985 unpublished opinion had simply assumed, without analyzing the question, that a county's general welfare power covered gambling regulation. After directly examining the Court of Appeals' decision in Steimel v. Board of Election Supervisors on the similar question of Sunday closing laws, the Attorney General concluded that assumption was incorrect and that gambling regulation, like Sunday closings, is not among the powers granted to local governments unless the legislature says so expressly.

Background and statutory framework

The opinion explained that Maryland's "Gaming" subtitle of Article 27 largely consists of individual statutes authorizing charitable gambling in specific counties, a pattern dating back to 1939 laws permitting bingo in Baltimore City and Allegany County and continuing through recent county-specific statutes for Baltimore, Howard, and Anne Arundel Counties. In Prince George's County, organizations conducting gambling under Article 27, §258B needed a permit from the county's Department of Inspections and Permits, and §258B(c)(1) let the county's governing body restrict or prohibit those permits, authority the county had used to regulate casino nights.

The opinion first examined whether municipalities' specific grant of power to "punish and suppress vagrancy, vice, [and] gambling" under Article 23A, §2(b)(23) covered regulation of lawful charitable gambling. It concluded that "punish and suppress" language connotes imposing sanctions to prevent prohibited conduct, and since the other listed activities (vagrancy, vice) are themselves crimes, the provision authorized ordinances penalizing illegal gambling, not regulating gambling that state law already permits.

Turning to the broader question of municipalities' general police power under Article 23A, §2(a) (and the parallel charter-county grant in Article 25A, §5(S)), the opinion relied heavily on the Court of Appeals' analysis in Steimel v. Board of Election Supervisors of Prince George's County, a case about county authority over Sunday business closings rather than gambling. Steimel held that regulating Sunday closings was not among the powers already granted to charter counties, based on the long history of the General Assembly enacting individual, county-by-county Sunday closing laws, the absence of any political subdivision ever challenging that legislative practice, and the fact that no subdivision had regulated Sunday closings except when the legislature expressly authorized it. The opinion found the same three factors present for charitable gambling regulation: a decades-long pattern of the General Assembly enacting individual county-specific gambling statutes, no subdivision ever challenging that pattern as intruding on home rule, and no subdivision regulating charitable gambling without express legislative authorization. On that basis, the opinion concluded that Steimel compelled the same result for gambling that it reached for Sunday closings, expressly disavowing the contrary assumption in the office's 1985 opinion to the Sheriff of Wicomico County.

The opinion closed by confirming that this limit on existing municipal authority did not restrict what the General Assembly itself could do: citing Town of Forest Heights v. Frank, it concluded the legislature remains free to pass a statute granting municipalities power to regulate or prohibit charitable gambling activities, whether in addition to or instead of any licensing power already given to the county.

Citations and references

Statutes:

• Article 27, §255
• Article 27, §258B
• Article 27, §258B(c)(1)
• Article 27, §258B(c)(2)
• Article 23A, §2(b)(23)
• Article 23A, §2(a)
• Article 25A, §5(S)
• Article XI-A, §4
• Article XI-E, §1
• Chapter 716, Laws of Maryland 1939
• Chapter 701, Laws of Maryland 1939
• Chapter 7, Laws of Maryland 1987
• Chapter 190, Laws of Maryland 1987
• Chapter 193, Laws of Maryland 1987

Cases:

• Steimel v. Board of Election Supervisors of Prince George's County, 278 Md. 1, 357 A.2d 386 (1976)
• Norris v. Baltimore, 172 Md. 667, 681, 192 A. 531 (1937)
• Steuart Petroleum Co. v. Board, 276 Md. 435, 446, 347 A.2d 854 (1975)
• Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 158, 252 A.2d 242 (1969)
• Town of Forest Heights v. Frank, 291 Md. 331, 346, 435 A.2d 425 (1981)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1988/Volume73_1988.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Gambling—Local Government—Municipalities—Municipalities Lack Statutory Authority To Regulate or Prohibit Gambling Activities Permitted by State Law, But General Assembly May Grant Such Power.

December 2, 1988

The Honorable Leo E. Green
Senate of Maryland

You have requested our opinion on whether incorporated municipalities have, or may be given by statute, authority to regulate or prohibit the gambling activities of charitable and other nonprofit organizations.
In Opinion No. 85-033 at 5-6 (December 19, 1985) (unpublished), this office advised the Sheriff of Wicomico County that the county may regulate the value of prizes awarded at charitable organizations' gambling events and the frequency of those gambling events. Our discussion on that point focused solely on whether county regulation had been preempted by or would conflict with State law; we assumed without discussion that a charter home rule county's power to enact ordinances for the general welfare extends to the regulation of charitable organizations' gambling activities.
In response to your request, we have directly considered whether the power to regulate those activities is among the "general welfare" powers of charter home rule counties and municipal corporations. Our review of a pertinent case, Steimel v. Board of Election Supervisors of Prince George's County, 278 Md. 1, 357 A.2d 386 (1976), has persuaded us that our earlier assumption was incorrect.
For the reasons given below, we conclude that municipal corporations presently have no authority to regulate or prohibit gambling activities that are permitted by State law. However, municipal corporations may be given statutory authority to regulate or prohibit gambling activities otherwise permitted by State law, even if a county has authority to license or regulate those gambling activities.

                              I
                         Background

A number of State statutes authorize various charitable, civic, and similar nonprofit organizations to conduct gambling activities under certain circumstances, notwithstanding the general prohibitions against gambling. See, e.g., Article 27, §255. In Prince George's County, those organizations are required by Article 27, §258B to obtain a permit for their gambling activities from the county's Department of Inspections and Permits, and §258B(c)(1) authorizes the county's governing body to restrict or prohibit the issuance of permits.
Acting pursuant to that authorization, Prince George's County has enacted an ordinance regulating the issuance of permits for casino nights.1 However, you indicate that some municipalities located in the county believe that there is a need for more stringent regulation than that enacted by the county.

                                       II
                      Authority of Municipalities

Under Article 23A, §2(b)(23), municipalities have authority to "punish and suppress vagrancy, vice, [and] gambling ...." However, in our view, that provision authorizes only the enactment of ordinances imposing sanctions on illegal gambling. The phrase "punish and suppress" clearly connotes the imposition of sanctions to prevent the occurrence of prohibited action. Moreover, the other activities mentioned in §2(b)(23) all are crimes. Therefore, we believe that the provision does not authorize ordinances to regulate or prohibit gambling activities that are permitted by State law.
Municipalities also have a grant of general police power, the power to enact ordinances "they may deem necessary in order to assure the good government of the municipality, ... to preserve peace and good order, ... and to protect the health, comfort and convenience of the citizens of the municipality ...." Article 23A, §2(a).2 That grant of power is unquestionably broad. Nonetheless, we think that it does not encompass regulation of gambling activities conducted by charitable and similar organizations.

1
The term "casino night" is defined for that purpose as "a benefit performance conducted under the provisions of this section at which card games, wheels of fortune, or roulette are played and prizes are awarded." Article 27, §258B(c)(2).
2
This grant of authority is much the same as Article 25A, §5(S)'s grant to charter counties of power to enact "such ordinances as may be deemed expedient in maintaining the peace, good government, health and welfare of the county."

In Steimel v. Board of Election Supervisors of Prince George's County, 278 Md. 1, 357 A.2d 386 (1976), the Court of Appeals considered the analogous question of the power of charter counties to regulate Sunday business closings under their power to enact ordinances for the general welfare. In that case, the validity of an enactment of the General Assembly applicable solely to Prince George's County and made subject to a referendum was challenged by county residents on two alternative grounds: As a public general law, it could not be made subject to a referendum; or, as a public local law on a matter within the express powers of a charter county, it violated Article XI-A, §4 of the Maryland Constitution.3
The Court of Appeals held that the enactment was a public local law, noting that its operation was confined to prescribed territorial limits and equally applicable to all persons within those limits and that its subject matter was of no significant interest outside Prince George's County. 278 Md. at 5. See also Norris v. Baltimore, 172 Md. 667, 681, 192 A. 531 (1937) (public local law is statute dealing with matter peculiarly local in character, in which persons outside locality have no direct interest; public general law deals with subject in which all citizens of State are interested alike). As a public local law, the law could be made subject to a referendum under Steuart Petroleum Co. v. Board, 276 Md. 435, 446, 347 A.2d 854 (1975). Hence, the Court rejected the first objection to the law.
The Court also held that the matter of Sunday business closings is not encompassed within the express powers of charter counties. 278 Md. at 11. In this regard, the Court noted (i) the lengthy history of extensive, county-by-county regulation of Sunday closings by the General Assembly; (ii) the previous failure of any political subdivision to challenge the General Assembly's power to enact those laws; and (iii) the failure of any political subdivision to regulate Sunday closing except when expressly authorized to do so. 278 Md. at 9-11.
In our view, the same factors mandate the conclusion that regulating the gambling activities of charitable and similar organizations is not a matter included within the powers of local governments. The "Gaming" subtitle of Article 27, §§236 through 264C,

3
Article XI-A, §4 prohibits the General Assembly from enacting any public local law for a charter county or the City of Baltimore on any subject covered by the express powers of those subdivisions. Article XI-E, §1 similarly prohibits the General Assembly from acting "in relation to the ... government, or affairs" of municipal corporations other than "by general laws which shall in their terms and in their effect apply alike to all municipal corporations ...."

consists largely of statutes authorizing and regulating charitable gambling in particular counties. The first of those statutes were enacted in 1939 and applied to specified individual counties. Chapter 716, Laws of Maryland 1939 (bingo in Baltimore City); Chapter 701, Laws of Maryland 1939 (bingo in Allegany County). Since then, laws regarding gambling, like those regarding Sunday closings, have frequently been enacted for particular charter, as well as noncharter, counties. See 287 Md. at 9. Indeed, some of the most recently enacted statutes have applied to individual charter counties. E.g., Chapter 7, Laws of Maryland 1987 (Baltimore County); Chapter 190, Laws of Maryland 1987 (Howard County); and Chapter 193, Laws of Maryland 1987 (Anne Arundel County). As in the case of Sunday closing laws, no political subdivision has challenged the General Assembly's gambling enactments as violative of the home rule powers of either counties or municipal corporations. See 287 Md. at 10. Nor does any political subdivision appear to have regulated charitable organizations' gambling activities in the absence of legislative authorization to do so.
Under these circumstances, we think that Steimel compels the conclusion that the regulation of gambling by charitable organizations is not a matter that the General Assembly included within the police powers granted to political subdivisions. Instead, the subdivisions have authority to regulate those activities only if the authority is granted to them expressly or as a necessary concomitant of an express power like the power to license the gambling activities. See Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 158, 252 A.2d 242 (1969) (power of political subdivisions to enact laws depends on extent of General Assembly's delegation of legislative powers). Accordingly, we now believe that our 1985 opinion incorrectly assumed that the police powers of home-rule political subdivisions encompass the regulation of gambling activities by charitable and similar organizations.4
The General Assembly, however, may by statute authorize municipal corporations to regulate or prohibit charitable organizations' gambling activities. That power may be granted in addition to or in substitution for any regulatory or licensing power granted to counties. See Town of Forest Heights v. Frank, 291 Md. 331, 346, 435 A.2d 425 (1981) (General Assembly may by statute delineate respective

4
We do, believe, however, that a grant to a political subdivision of power to license those gambling activities includes the power to make reasonable regulations governing the issuance of licenses. No express statutory provision is necessary to grant officials charged with administering a statute authority to adopt rules necessary for administration of the statute. 62 Opinions of the Attorney General 36, 38 (1977).

powers of counties and municipalities generally or in specific areas). Thus, the General Assembly may authorize municipal corporations to regulate or prohibit gambling in general or particular gambling activities, notwithstanding any authorization granted to counties to license and regulate the gambling activities of charitable organizations.

                               III
                          Conclusion

In sum, it is our opinion that municipal corporations presently have no authority to regulate or prohibit gambling activities of charitable and similar organizations that are permitted by State law. However, municipal corporations may be given statutory authority to regulate or prohibit gambling activities otherwise permitted by State law, notwithstanding any grant to a county of authority to license or regulate those gambling activities.

        J. Joseph Curran, Jr., Attorney General
        C.J. Messerschmidt, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice