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Jakanna Woodworks Inc. v. Montgomery County2/13/1997
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In support of its claim that Chapter 30-10 directly advances its interest, the County states: "the statute requires that the merchant provide specific information to the Office of Consumer Affairs so that may determine whether that merchant is conducting a legitimate distress sale." If the Director finds that the merchant is not conducting a legitimate distress sale, she can protect the public by denying a license to place the advertisement.
Finally, the County contends that Chapter 30-10 is narrowly tailored because of its use of "triggering words." Only certain words trigger the applicability of Chapter 30-10, those that are inherently misleading to consumers. These triggering words, e.g., "liquidation," "going out of business," "lost our lease," all imply distress, non-voluntariness and perhaps the need to sell at any price. Thus, the County argues that Chapter 30-10 is narrowly tailored and will burden only advertisements that are actually fraudulent or that use inherently misleading words.
Two arguments have been advanced by the County as to why Chapter 30-10 is a valid prior restraint on speech. The first is that Chapter 30-10 provides "narrow, objective and definite" standards to guide the Director in her decision to grant or withhold a license. See Shuttlesworth, 394 U.S. at 150-51, 89 S. Ct. at 938-39, 22 L. Ed. 2d at 167 (stating that "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional"). Chapter 30-10 requires that certain information be submitted with each application. The Director is supposed to examine this information and she may grant a license if she is "satisfied ... that the proposed sale is consistent with the proposed advertising." MONTGOMERY COUNTY CODE, ยง 30-10(b)(3). The County characterizes these requests for information as guidelines that satisfy the requirement that the Director's discretion be limited and states that, with a few limited exceptions clearly outlined in the statute, "if the application contains the required information, is accompanied by the application fee, and is filed within the time period provided, the license is granted if the proposed advertisement is found to be consistent with the proposed sale."
The County also argues that the ordinance is not an invalid prior restraint because it ensures that a license will be issued within a brief and reasonable period of time. Chapter 30-10 requires anyone who wishes to advertise a "closing-out" sale to apply for a license to do so 14 days before the sale is scheduled to begin. Thus, the County concludes: "Although not expressly stated as such, [the ordinance] contemplates that a decision on the application for a license will be made in fourteen days or less in order to permit the sale to begin as scheduled." (Emphasis added). It also explained that every attempt is made to issue a decision within the 14 day window and that, in practice, the decision is typically made in "'a couple of days'" after an on-site inspection of the premises of the sale is held.
IV.
Petitioner first argues that the Circuit Court for Montgomery County applied the incorrect standard of judicial review to Montgomery County's ordinance. Although the applicability of the Central Hudson test was argued before the circuit court, Judge Pincus failed to apply that test. The court found Chapter 30-10 to be a "legitimate exercise of governmental power" that served "a legitimate governmental interest" and stated that there was "nothing unreasonable" about the law. Thus, it seems that the circuit court applied a standard of review analogous to th
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