Attorney General Letter Likely Voids Bill on Stormwater Agreements, Hotels

The Attorney General has found that the language addressing alternative approaches for stormwater remediation fees in Carroll and Frederick Counties and a hotel rental tax in Harford County in Senate Bill 172, the Budget Reconciliation and Financing Act of 2014, are likely to be found unconstitutional because they violate the single subject rule. In his review for legal sufficiency, the Attorney General found the bill constitutional and legally sufficient, but raised a number of issues in a letter to the Governor.

From the Attorney General’s letter dated May 14, 2014:

It is our view that this year’s BRFA is constitutional and legally sufficient and that you may sign it. There are, however, a number of severable provisions of the BRFA that are very likely to be found unconstitutional because they violate the single-subject rule in Article III, Section 29 of the Maryland Constitution. We will identify those provisions and, where possible, suggest appropriate remedial measures.

Other provisions found to be likely unconstitutional include an extension of the discounted vehicle certificate fee for rental vehicles, a park service funding mandate, and a mandate that speed camera revenue be spent on vehicle purchases.

Below are excerpts from the letter on stormwater remediation fees and the hotel rental tax.

Stormwater Remediation Fees

Section 18, an uncodified provision, would permit the Maryland Department of the Environment, before December 1, 2014, to enter into a memorandum of understanding with Carroll County or Frederick County to permit them to establish an alternative source of funding to be deposited into a local watershed protection and restoration fund.

In our April 2,2014 letter to Delegate Mclntosh and Senator Pinsky, this Office advised that a proposed amendment to the BRFA that would modify the method by which counties may satisfy their obligations to assess stormwater remediation fees was not germane to the subject of the BRFA and thus violated the one-subject rule. While the proposed amendment addressed in the April 2 letter was broader and applied to any county, and not just Carroll and Frederick counties, narrowing the scope of the provision does not change the fundamental constitutional infirmity. It remains our view that this provision very likely violates the one-subject rule. As a result, it is our advice that this provision is not effective in authorizing the Secretary of the Environment to enter into the memoranda of understanding contemplated by this provision.

Hotel Rental Tax

Although the authorization of a hotel tax is relevant to the financing of local government, it is unrelated to any other provision in the BRFA as introduced or amended, or to the primary purpose of the BRFA, which is to balance the State budget in times of fiscal distress. Therefore, it is our view that the hotel rental tax authorization is not an appropriate subject for the BRFA. We do not, however, recommend any measures to remedy the constitutional flaws in this provision because it leaves to the county the decision whether to impose the tax. Harford County, then, will have to decide for itself whether to attempt to impose a hotel tax based on this provision or to seek a more constitutionally defensible method when the next Legislature convenes.

The Governor signed SB 172 on May 15, 2014.