Can a Maryland home rule county create a private lawsuit remedy for improper vehicle towing?

Plain-English summary

Montgomery County passed a new towing ordinance letting a vehicle owner sue directly, for triple the towing and storage fees charged, if a trespass towing company or a property owner improperly towed the owner's car. The county attorney asked the Attorney General whether the County Council actually had power to create this kind of private lawsuit remedy in a county ordinance. The opinion concluded that it did: under the Express Powers Act's broad grant of authority to charter home rule counties, Montgomery County could create an express private right of action, including the treble damages remedy, as a valid way of enforcing its towing regulations.

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 county pass an ordinance letting a driver sue directly over an illegal tow?
Yes, according to this opinion. The Attorney General concluded that Montgomery County, as a charter home rule county acting under the Express Powers Act, had authority to create an express private right of action, including the treble damages remedy in its towing ordinance, as a means of enforcing its towing regulations.

Did Maryland courts generally let cities and counties create these kinds of private lawsuit rights by ordinance?
The opinion found the general rule cautious: a municipal ordinance does not automatically create a private right of action unless the local government clearly intended to, citing Flynn v. Canton Co. of Baltimore, where a Baltimore City sidewalk-ice ordinance was found not to create an implied private right of action. But the opinion also found authority, including County Council v. Investors Funding Corp. involving Montgomery County's own landlord-tenant damages commission, supporting a county's power to create an express private right of action when it does so clearly.

Was there already a lawsuit challenging Montgomery County's towing ordinance when this opinion was issued?
Yes. The opinion noted that the towing ordinance was the subject of pending litigation, Cade v. Montgomery County, filed in the Circuit Court for Montgomery County in April 1988, though it stated the complaint in that case did not raise any issue related to the topic of this opinion.

Background and statutory framework

Montgomery County's Chapter 29 (Bill No. 16-87) of the Laws of Montgomery County 1988 created a new Chapter 30C of the County Code regulating motor vehicle towing from private property, including procedures a towing company had to follow before towing a vehicle. Section 30C-9(a) made both trespass towing services and the private property owners who authorized them liable to a vehicle owner for towing that did not comply with the chapter, mistaken towing, or damage from a lack of reasonable care, with Section 30C-9(e) setting damages at three times the towing, release, or storage fees charged. The county attorney asked whether Montgomery County, a charter home rule county under Article XI-A of the Maryland Constitution, had authority under the Express Powers Act (Article 25A of the Maryland Code) to create this kind of private right of action as an enforcement mechanism.

The opinion grounded the county's general regulatory authority in Article 25A, §5(S), a broad supplementary grant letting a charter county pass ordinances "as may be deemed expedient in maintaining the peace, good government, health and welfare of the county," quoting Montgomery Citizens League v. Greenhalgh and Holiday Universal Club v. Montgomery County for the principle that this provision gives charter counties a general police power for the public good. It then turned to the harder question of whether that police power extended to creating an express private right of action, surveying a leading treatise's general rule that a municipal ordinance does not create a private right of action between private parties unless the local government clearly intended to, illustrated by Flynn v. Canton Co. of Baltimore (an implied private right of action was not found in a Baltimore sidewalk-ice ordinance) and Owings v. Jones, alongside out-of-state cases like Bittle v. Brunetti and Papen v. Karpow recognizing that a municipality can create such a right by "express provision."

The opinion found Montgomery County's own precedent for an express remedy in County Council v. Investors Funding Corp., where the Court of Appeals upheld the county's Commission on Landlord-Tenant Affairs, an administrative body empowered to award damages to landlords or tenants based on the county's declared public interest in fair landlord-tenant relationships, even though a party first had to bring a claim to the Commission before going to court. The opinion reasoned that if the county could create this kind of remedial device through an administrative commission, it could likewise create a direct private right of action for improper towing, since the County Council had a legitimate public policy objective in protecting residents from unlawful towing and Article 25A, §5(S) gave it power to fashion remedies serving that police power objective, concluding there was no material difference between the damages remedy upheld in Investors Funding and the towing ordinance's treble damages provision.

Citations and references

Statutes:

• Chapter 29, Laws of Montgomery County 1988
• Chapter 30C of the Montgomery County Code
• §30C-4(c)
• §30C-9(a)
• §30C-9(e)
• Article XI-A of the Constitution
• Article 25A, §5(S)
• Article 25A, §5(A)

Cases:

• Cade v. Montgomery County, Civil Action No. 31777 (Cir. Ct. Mont. Cty. filed April 22, 1988)
• Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 161, 252 A.2d 242 (1969)
• Holiday Universal Club v. Montgomery County, 67 Md. App. 568, 573, 508 A.2d 991 (1986), appeal dismissed 107 S.Ct. 920 (1987)
• Brown v. Parish of East Baton Rouge, 126 So.2d 173 (La. 1960)
• Bittle v. Brunetti, 750 P.2d 49, 59 (Colo. 1988)
• Papen v. Karpow, 643 P.2d 375, 377-78 (Or. App. 1982)
• Flynn v. Canton Co. of Baltimore, 40 Md. 312 (1874)
• Owings v. Jones, 9 Md. 108 (1856)
• County Council v. Investors Funding Corp., 270 Md. 403, 312 A.2d 225 (1972)

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.

Local Government—Charter Counties—Home Rule Powers—Charter Home Rule County May Create Express Private Rights of Action as a Remedy for Violation of an Ordinance.

May 24, 1988

Clyde H. Sorrell, Esquire
County Attorney for Montgomery County Maryland

You have requested our opinion on whether the Montgomery County Council has the authority to create a private right of action for violation of a county law. Specifically, you ask whether the private right of action contained in Chapter 29, Laws of Montgomery County 1988, is valid.
For the reasons stated below, it is our opinion that a charter home rule county generally has authority, under the Express Powers Act, to specify a private right of action as a remedy for violation of a county law. The treble damages remedy in Chapter 29 is a valid exercise of that authority.1

                                       I
                            Towing Ordinance

In Chapter 29 (Bill No. 16-87) of the Laws of Montgomery County 1988, the County Council enacted a new Chapter 30C of the County Code, entitled "Motor Vehicle Towing from Private Property." Among other provisions, Chapter 30 specifies the procedures to be followed before a vehicle may be towed. E.g., §30C-4(c).
Section 30C-9(a) creates a private right of action for a vehicle owner whose vehicle is improperly towed or damaged:

1
Chapter 29 is the subject of currently pending litigation. Cade v. Montgomery County, Civil Action No. 31777 (Cir. Ct. Mont. Cty. filed April 22, 1988). However, the complaint does not raise any issue related to the topic of this opinion.

   Any trespass towing service, and any private property owner who authorizes, expressly or under a standing authorization, the towing of a vehicle from private property, are both liable for:
(1) any towing of a vehicle that does not comply with [Chapter 30-C]
(2) any towing of a vehicle in the mistaken belief that the vehicle was not authorized to park in the place from which it was towed; and
(3) any damages to a towed vehicle incurred during the tow or storage and caused by a lack of reasonable care by the towing service, the property owner or an agent of either.

The ordinance specifies damages at "3 times the amount of any towing, release or storage fees charged." §30C-9(e).

                               II
                  Charter Home Rule Powers

Montgomery County, having adopted a home rule charter under Article XI-A of the Constitution, may exercise the powers set out in the Express Powers Act, Article 25A of the Maryland Code. In addition to a series of enumerated powers, the Express Powers Act provides as follows:

   The foregoing or other enumeration of powers in this article shall not be held to limit the power of the county council, in addition thereto, to pass all ordinances, resolutions or bylaws, not inconsistent with the provisions of this article or the laws of the State, as may be proper in executing and enforcing any of the powers enumerated in this section or elsewhere in this article, as well as such ordinance as may be deemed expedient in maintaining the peace, good government, health and welfare of the county.

Article 25A, §5(S).
This provision is "a broad grant of power to legislate on matters not specifically enumerated in Art. 25A ...." Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 161, 252 A.2d 242 (1969). As the Court of Special Appeals recently summarized: "This grant of powers provides charter counties with a general police power to enact ordinances for the public good as long as the ordinances are not inconsistent with the other provisions of Article 25A or the other laws of the State." Holiday Universal Club v. Montgomery County, 67 Md. App. 568, 573, 508 A.2d 991 (1986), appeal dismissed 107 S.Ct. 920 (1987).
We have no doubt that, under Article 25A, §5(S), the Montgomery County Council may enact an ordinance to regulate the towing of vehicles from private property.2 Less clear is whether Article 25A, §5(S) authorizes the county to create a private right of action as the means of enforcing its towing regulations.3

                                     III
         Implied and Express Private Rights of Action

According to a leading treatise, "[t]he well-established general rule is that a municipal corporation cannot create by ordinance a right of action between third persons or enlarge the common law or statutory duty or liability of citizens among themselves." 6 McQuillan Municipal Corporations, §22.01, at 380 (3d ed. 1980). The cases cited in support of this generalization are of two types. Some held that the state legislature had not authorized the local government to create a private right of action. E.g., Brown v. Parish of East Baton Rouge, 126 So.2d 173 (La. 1960). Others held that the local government did not intend to create such a right, since the ordinance did not expressly provide for it. E.g., Bittle v. Brunetti, 750 P.2d 49, 59 (Colo. 1988); Papen v. Karpow, 643 P.2d 375, 377-78 (Or. App. 1982); Flynn v. Canton Co. of Baltimore, 40 Md. 312 (1874).

The Flynn case involved a Baltimore City ordinance requiring property owners to keep the sidewalks surrounding their property free from ice and other obstructions. The ordinance did not expressly

2
The problem addressed by Chapter 30C is described succinctly in the legislative history: "[C]ounty residents have complained of excessive rates, little or no notice of which areas are off-limits to parking, and difficulty in redeeming towed vehicles." Legislative Request Report, Bill No. 16-87. The Maryland Vehicle Law does not address the towing of vehicles from private property.
3
Article 25A, §5(A) empowers charter home rule counties to enforce local laws by criminal sanctions and "civil fines and penalties." However, §5(S) grants supplementary power "in executing and enforcing" ordinances. Hence, the omission of any reference to private rights of action in §5(A) is itself inconclusive.

create a private right of action. The Court of Appeals held that the plaintiff, injured when she fell on a patch of ice, had no cause of action based on the defendant's violation of the ordinance. A private right of action, the Court concluded, was not contemplated by the framers of the ordinance. Instead, "the only liability resting upon the property owner is that which the ordinance itself imposes, viz: the prescribed fine or penalty for each neglect, and the cost of removal ...." 40 Md. at 325. The Court of Appeals, however, did not hold that the city lacked the power to create a private right of action; rather, the Court simply held that the ordinance at issue did not implicitly create a private right of action since the intent to do so was lacking.4
Other jurisdictions have recognized a local government's power, under sufficiently broad authorizing legislation, to create express private rights of action. In Bittle v. Brunetti, 750 P.2d 49 (Colo. 1988), the Colorado Supreme Court held that the violation of a municipal ordinance requiring owners and occupants of property to clear snow and ice from adjacent sidewalks did not give rise to civil liability under the doctrine of negligence per se. The court also held, however, that "a municipality can create a right of action against abutting owners by 'express provision' ...." 750 P.2d at 59. Similarly, in Papen v. Karpow, 643 P.2d 375, 377-78 (Or. App. 1982), the court held that a municipal ice and snow ordinance "may, by express provision, give third parties a right of action against the abutting owner ...."
Although the Court of Appeals has not rendered a comparable decision approving a county's express creation of a private right of action, County Council v. Investors Funding Corp., 270 Md. 403, 312 A.2d 225 (1972) may be read as recognizing this power. In Investors Funding, the Court of Appeals upheld the county's authority to create a Commission on Landlord-Tenant Affairs, an administrative body empowered, among other things, to award damages to landlords and tenants. The Court approved the delegation of power to this agency on the basis of the "declared public interest in landlord-tenant

4
The Court of Appeals also reaffirmed its prior holding in Owings v. Jones, 9 Md. 108 (1856), in which the Court treated the defendant's deliberate noncompliance with a regulatory ordinance as evidence of the defendant's wrongful conduct for purposes of tort liability. In Owings, however, the Court did not hold that the ordinance itself impliedly created a private right of action.

relationships." Investors Funding, 270 Md. at 437.5
Part of the county's response to these inequities in the apartment rental business was the provision of a range of remedies, including the awarding of damages by the Commission. In effect, this ordinance created an express private right of action for a landlord or tenant to seek damages from the other. To be sure, the right could be exercised only through the private party's initial recourse to the Commission. Nevertheless, the Commission's award of damages was not itself a binding judgment: "Court action, instituted by the County attorney or the parties before the Commission, is always required." 270 Md. at 437 (emphasis added).
In short, the county's landlord-tenant law created, and the Court of Appeals approved, a remedial measure closely resembling a traditional private right of action in court. That a tenant aggrieved by a landlord's violation of the ordinance (or vice versa) must take his or her claim for damages to the Commission first does not change the fundamental nature of the remedy.6
Montgomery County has a legitimate public policy objective in ensuring that private vehicles are not improperly towed.7 Presumably, the County Council determined that the most effective way of protecting its citizens against unlawful towing was to enact §30C-9, a private right of action without the prerequisite of administrative

5
The County Council set forth the following legislative findings:
"[T]here is often unequal bargaining power between landlords and tenants; ... the common law principles pursuant to which leases are interpreted as grants of right of possession rather than mutual and dependent covenants evolved in an agricultural setting and are ill-suited to the modern residential setting of this urban County; ... in order to facilitate fair and equitable arrangements, foster the development of housing which will meet the minimum standards of the present day, and promote the health, safety and welfare of the people, it is necessary and appropriate that the County provide a commission and office to determine certain minimum rights and remedies obligations and prohibitions, for landlords and tenants of certain kinds of residential property."
Investors Funding, 270 Md. at 406-07.
6
Similarly, the Court of Special Appeals in Holiday Universal Club v. Montgomery County held that Montgomery County had the authority under its police powers to enact an ordinance prohibiting discrimination in places of public accommodations. 67 Md. App. at 575. As part of its regulatory scheme, the county created a commission with the authority to award monetary damages for violations of the county ordinance.
7
See note 2 above.

agency adjudication. In terms of the county's power under Article 25A, §5(S) to fashion remedies that best serve the exercise of its police power, we see no difference between the private damages remedy upheld in Investors Funding and that created by Chapter 30C.

                               IV
                          Conclusion

In summary, it is our opinion that a charter home rule county may create an express private right of action as a remedial device in an ordinance authorized by the Express Powers Act. The private right of action in §30C-9(e) of the Montgomery County Code is valid.

        J. Joseph Curran, Jr., Attorney General
        Sharon Krevor-Weisbaum, Staff Attorney

Jack Schwartz
Chief Counsel
Opinions & Advice