Guns, Marijuana, Opioids and Alcoholic Beverages

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Guns, Marijuana, Opioids and Alcoholic Beverages

Authors
Sarah R Burt
Winthrop & Weinstine, P.A.
Minneapolis, MN

Edward N. Hershon
Hershon Legal, LLC
Annapolis, MD

Jordan Humphrey
Winthrop & Weinstine PA
Minneapolis, MN

Craig M. Kadish
Craig M. Kadish & Associates, LLC
Baltimore, MD

Thomas J. Maronick Jr.

The Law Offices of Thomas J. Maronick Jr. LLC
Baltimore, MD

Kurt E. Nachtman
Eldridge, Nachtman & Crandell
Baltimore, MD

Michael S. Rothman
Law Office of Michael S. Rothman
Rockville, MD
 Presenters
EDWARD N. HERSHON is the managing member of Hershon Legal, LLC, in Annapolis,
Maryland. He focuses his practice in Second Amendment law, construction law, family law,
veteran's benefits, and landlord-tenant law. Mr. Hershon is admitted to practice throughout the
states of Maryland and Illinois, as well as the U.S. District Court of Maryland, the U.S. Court of
Appeals for the 4th Circuit, the U.S. Court of Federal Claims, and the U.S. Court of Appeals for
the Federal Circuit. He earned his B.A. degree from the University of Maryland and his J.D. degree
from the University of Baltimore School of Law. Mr. Hershon also attended the George
Washington University to study procurement law, and the United States Army Judge Advocate
General's School at the University of Virginia for advanced legal training in government contracts
law.

CRAIG M. KADISH is the managing partner with Craig M. Kadish & Associates, LLC, a practice
focused exclusively in criminal defense. Mr. Kadish is a member of the Maryland State Bar
Association, the Baltimore City Bar Association, the National Association of Criminal Defense
Attorneys, and the Maryland Criminal Defense Attorneys' Association. Mr. Kadish has been an
instructor in both constitutional law and criminal trial practice and procedure, and has been
nominated and elected to the Top 100 Criminal Trial Attorneys. He has also been selected as one
of the top attorneys in Maryland in the area of criminal law by his peers, and has been selected to
Super Lawyers every year since 2012. Mr. Kadish earned his B.A. degree from George
Washington University, and his J.D. degree from University of Maryland School of Law.

THOMAS J. MARONICK JR. is the founder and managing partner with The Law Offices of
Thomas Maronick Jr. LLC, where he devotes most of his practice to criminal defense and personal
injury law, with a focus on internet crimes, sex offense cases, gun crimes, and DUI cases. He is
admitted to practice in the U.S. Supreme Court, the State of Maryland, the U.S. District Court of
Maryland, and the U.S. Court of Appeals for the 4th Circuit. Mr. Maronick has been selected to
Super Lawyers for 2017 and 2018, and his other honors include the National Trial Lawyers Top
100 and the American Society of Legal Advocates-MD Top 40 Criminal Lawyers Under 40. He
earned his B.A. degree from the University of Maryland College Park and his J.D. degree from the
University of Baltimore School of Law.

KURT E. NACHTMAN is an attorney and managing partner with Eldridge, Nachtman &
Crandell, where 90% of his practice consists of aiding injured persons and helping businesses
grow. On the business side of things, he represents several local law firms in their own ethics
issues. Mr. Nachtman is barred in both state and federal courts in Maryland and Pennsylvania. He
practices throughout Maryland, but primarily in Harford and Baltimore city and county. Mr.
Nachtman regularly represents individuals and businesses at administrative proceedings at the
Maryland Office of Administrative Hearings for a wide variety of licensing cases. He also has
litigated several hundred judge and jury trials, ranging from violent crimes to traffic cases. Mr.
Nachtman is a member of the Trial Table Law Club, Maryland State Bar Association, Maryland
Association of Criminal Defense Attorneys, Maryland Association of Justice, as well as the
Baltimore County Bar Association. He has been recognized as a Rising Star by Super Lawyers
every year since 2012. Mr. Nachtman received his B.S. degree from Pennsylvania State University,
followed by earning his J.D. degree from the University of Baltimore School of Law.
 Presenters (Cont.)
MICHAEL S. ROTHMAN is the principal attorney with the Law Office of Michael S. Rothman,
where he focuses his practice in criminal defense, which includes white collar defense, drug
crimes, DUI/DWI, domestic violence, and sex offense cases. Additionally, Mr. Rothman has
extensive experience in commercial litigation of business and commercial matters, including
corporate disputes over ownership, business, and contract rights. He is admitted to practice before
the federal and state courts in Maryland and the District of Columbia. Mr. Rothman has been
selected to Super Lawyers every year since 2011. He is a member of the National Association of
Criminal Defense Attorneys and the American Academy of Forensic Sciences. Mr. Rothman
earned his B.A. degree, with honors, from Emory University; his M.P.A. degree from the George
Washington University; and his J.D. degree from University of Maryland School of Law.
 Table Of Contents

Legalized Marijuana Law 1

Prescription Painkiller Law 21

Alcoholic Beverages Law 39

Gun Law in Maryland 51

Adult Entertainment Law 63

Substance Abuse and Mental Health in the Legal Industry 391

Legal Ethics 399

Legalized Marijuana Law
Submitted by Michael S. Rothman

1
2
 GUNS, MARIJUANA, OPIOIDS AND ALCOHOLIC
BEVERAGES
Michael S. Rothman, Esq.
Medical Cannabis Law Group
Law Office of Mike Rothman
401 East Jefferson St., Suite 201
Rockville, MD. 20850
Phone: (301) 251-9660
mike@medicalcannabislawgroup.com
mike@rothmanlegal.com

BIOGRAPHY

Mike Rothman is the founder and principal of the Medical Cannabis Law Group
located in Rockville, Maryland. In addition to the medical cannabis law work, Mr.
Rothman is also the founder and principal at the Law Office of Mike Rothman -- a
criminal defense practice serving clients in Maryland and the District of Columbia both
in federal and state courts. For more than ten (10) years, Mr. Rothman has advised
clients all over the country regarding the laws and regulations pertaining to cannabis, its
medical uses, its regulation, its oversight, and its changing legal status.
Mr. Rothman has taught classes and spoken on the subject of medical cannabis to
the Maryland State Bar Association, the Montgomery County Bar Association, Maryland
Public Television’s Law School for the Public, Anne Arundel Community College, and
the Patients Out of Time Seminar in Baltimore. Mr. Rothman is admitted to practice law
before the United States Supreme Court, the Fourth Circuit Court of Appeals, the United
States District Courts of Maryland and the District of Columbia, the Maryland Court of
Appeals, and the District of Columbia Court of Appeals. Since 2011, Mr. Rothman has
been identified by Superlawyers Magazine (Maryland and District of Columbia Editions)
as among the top 5% of practicing attorneys in criminal defense. Mr. Rothman graduated
with honors from the University of Maryland School of Law; received a Master’s Degree
in Public Administration from George Washington University; and received his
undergraduate degree in Political Science from Emory University.

3
 CANNABIS : HISTORY OF HUMAN USE, REGULATION, AND
PROHIBITION

Marijuana, Marihuana, Hemp, Pot, Weed, Dope, Tree, The Devil’s Lettuce. No
matter how you refer to it, the plant known as Cannabis Sativa has entered the public
discussion once again as an intoxicant with medicinal applications. Additionally, it has
also become a much sought-after source of raw materials for textiles and biodegradable
materials. But these slang terms don’t fully reflect the complicated history of the plant
that has extended backwards for thousands of years of recorded human history. Or the
role that its prohibition played in the mass incarceration of hundreds of thousands of
Americans for the last forty years. Regardless, it’s time to advance the public discussion
by deconstructing those myths and separating fact from fiction
For more than 10,000 years, the plant known as cannabis has been used by
humans as a raw material for textiles, as well as for medicinal, therapeutic, and
ceremonial purposes. The earliest evidence of use by humans comes from Central Asia
and China. As late as the 1800’s and early 1900’s, cannabis was sold in the United States
and around the world as an over-the-counter medicine in pharmacies. But what do we
mean when we are talking about the plant known as cannabis. What is the difference
between cannabis and hemp, and does it matter? Surprisingly, the answer is yes. And it
matters more than you think.
Cannabis is the name of family of plants commonly understood to have two
primary species – indica and sativa. The taxonomy of the genus cannabis has actually
been the subject of a fairly large debate over the last couple of years, as genetic testing
and organic chemistry add to the discussion. Scientists are split as to whether the
cannabis consists of a single species or multiple species. The plant with the
psychoactive cannabinoid compound known as Delta-9 Tetrahydrocannabinol (THC) can
be classified as either a sativa or an indica species. While hemp (referred to by its
Linnaean taxonomy Cannabis Sativa L) and bred for its fiber, can only be a sativa and
contains less than 0.3% THC by definition. Are they a different species? No. But these

4
plants have been selectively bred by human beings for two different purposes – resulting
in widely differing appearances and chemical compositions.
It wasn’t until the 1960’s when an Israeli biochemist named Raphael Mechoulam
isolated and synthesized the organic compound THC. By tracing the metabolic path of
THC through protein receptor sites throughout the body and in the mammalian brain,
scientists eventually stumbled upon the endocannabinoid system (ECS) -- a formerly
unknown molecular signaling system involved in regulating a broad range of biological
functions. Cannabinoids, a diverse class of chemical compounds that act upon the
cannabinoid receptors located in the brain and throughout the body, are produced by
plants from the genus cannabis. There are over 100 different identified cannabinoids,
which include THC, cannabidiol (CBD), and cannabinol (CBN). Of the cannabinoids
produced by cannabis, only THC is psychologically active.
History of American Regulation and Prohibition
Beginning in the early 1900’s, the United States Congress passed the Pure Food
and Drug Act (1906), requiring certain special drugs, including cannabis, be accurate
labeled with its contents. At that time, there was a movement to label health aids sold to
the public -- including cannabis -- as a “poison” or “drug.” Further, the federal and state
governments moved to restrict access to the general public of many such drugs, limit sale
to pharmacies, and require doctor’s prescriptions. Some states, beginning with California
in 1907, began controlling the distribution and labeling cannabis as a “drug” or “poison,”
leading to its outright prohibition of non-medical cannabis in many states by the late
1920’s.
The scrutiny of cannabis and other drugs only increased in intensity after the
creation of the Federal Bureau of Narcotics (FBN) in 1930 – headed by Harry J.
Anslinger. Anslinger claimed cannabis caused people to commit violent crimes and act
irrationally and overly sexual. The FBN produced propaganda films promoting
Anslinger's views such as “Reefer Madness.”

5
 Just as alcohol prohibition was ending in 1933, states began taking a new interest
in cannabis as a drug to be regulated. This lead to the eventual adoption of the Uniform
State Narcotic Drug Act, of which 35 states became signatories.
The Marihuana Tax Act of 1937 effectively made possession or transfer of
marihuana illegal throughout the United States under federal law, excluding medical and
industrial uses, through the imposition of excise taxes on all sales of cannabis. As
Tetrahydrocannabinol (THC) had not yet been isolated as the psycho-active ingredient in
cannabis, the Act took little notice about the chemical differences between cannabis
(containing THC) and hemp (containing negligible amounts of THC). To compound the
confusion, hemp carried the same criminal punishment as the genetically related psycho-
active version of the plant. Over the next decade, the United States Congress further
solidified the reputation of cannabis as a social ill by increasing the punishment for
simple possession of cannabis to a mandatory minimum of jail time from between two to
ten years and a $ 20,000 fine.
In 1969, the United States Supreme Court held that the Marihuana Tax Act of
1937 was an unconstitutional violation of a defendant’s Fifth Amendment Rights against
self-incrimination. In response, Congress passed the Controlled Substances Act (“CSA”)
as part of Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970,
repealing the Marihuana Tax Act of 1937. Although the new law did officially prohibit
the use of cannabis for any purpose, it eliminated the harsh penalties for simple
possession and separated the classes of narcotics into Schedules of drugs.
Cannabis was assigned to Schedule I in the CSA, the most dangerous category of
scheduled drugs, meaning the drug carried a “high potential for abuse” and “no accepted
medical uses,” alongside other Schedule I drugs such as heroin, LSD, and PCP. The
medical use or prescription of cannabis was thereafter prohibited by the CSA, and
experimentation and testing of the plant ground to a total halt. Although there have been
numerous attempts to require the Executive Branch to re-schedule cannabis from
Schedule I in the CSA based on new medical evidence, thus far there has been no efforts
in that direction.

6
 Following the passage of the Comprehensive Drug Abuse Prevention and Control
Act of 1970, a commission was formed under decree of the Act to study the use of
cannabis in America and make policy recommendations. Formally known as the
National Commission on Marihuana and Drug Abuse, the Shafer Commission – led by
former Pennsylvania governor Raymond P. Shafer – determined in its March 1972 report
to the President and Congress that the societal harms caused by cannabis were limited,
and recommended removal of criminal penalties for possession and distribution of small
amounts of the drug. Despite the Shafer Commission’s findings about the innocuous
nature of cannabis, the United States buried the findings and launched what is now
considered to be the War on Drugs – marked by increased incarceration rates and
mandatory minimum sentences.
In 1975, a Washington D.C. resident named Robert Randall was arrested for
cultivating cannabis. Randall, who had discovered that cannabis relieved the symptoms
of his glaucoma, employed a medical necessity defense at trial to justify his use of the
drug. The charges against Randall were dismissed, and as a result of an ensuing petition
filed with the FDA, Randall became the first person to receive cannabis from the federal
government in 1976. After his supply was cut off in 1978, he filed a lawsuit to have it
restored, setting in motion the creation of the Compassionate Investigational New Drug
(IND) program shortly thereafter. The program allowed patients with serious medical
conditions to receive a regular supply of cannabis from the federal government.
The Compassionate IND program was closed to new patients in 1992, due to a
flood of new applications from AIDS patients and concerns that the program
undercut Bush administration efforts to discourage illegal drug use. As of 2016, most of
the original 13 patients had perished, but at least two were still known to be receiving
cannabis from the federal government.
In 1991, 79% of San Francisco voters approved Proposition P, a non-binding
ballot measure expressing support for the medical use of cannabis. The City’s Board of
Supervisors soon followed with a resolution which urged law enforcement not to
prosecute individuals using cannabis under a doctor's care (as proven by a letter from a

7
treating physician). The resolution allowed the open distribution of cannabis to AIDS
patients and others throughout the city, most notably through the San Francisco Cannabis
Buyers Club. Similar clubs appeared outside San Francisco in the ensuing years as other
cities passed legislation to support the medical use of cannabis. These were the first
cannabis dispensaries in the U.S., allowed to operate openly by city officials even though
in violation of both state and federal law.

Following the success of Proposition P and other local initiatives, medical

cannabis advocates in California turned their attention towards reform efforts at the state
level. A pair of medical cannabis bills was approved by state legislators in 1994 and
1995, both of which were vetoed by Governor Pete Wilson. Following these vetoes,
California medical cannabis advocates collected over 775,000 signatures for qualification
of a statewide ballot initiative in 1996.

On November 5, 1996, California voters approved Proposition

215 (Compassionate Use Act of 1996), making the state the first in the nation to legalize
the medical use of cannabis. The measure, approved with 56% of the vote, allowed the
use, possession, and cultivation of cannabis by patients with a physician's
recommendation, for treatment of cancer, anorexia, AIDS, chronic pain, spasticity,
glaucoma, arthritis, migraine, or "any other illness for which marijuana provides relief.”
The law also allowed patient caregivers to cultivate cannabis at home, and urged
lawmakers to facilitate the "safe and affordable distribution of marijuana.”

The passage of Proposition 215 was followed by the approval of five more State
medical cannabis ballot initiatives in 1998 (Washington, Oregon, Alaska, Nevada, and
the District of Columbia). Maine followed in 1999, along with Nevada (for a second
time) and Colorado in 2000. Also in 2000, Hawaii became the first state to legalize
medical cannabis through an act of state legislature.

After Proposition 215 passed, the Clinton administration reiterated its firm
opposition to the medical use of cannabis, and threatened to revoke the ability of doctors
who recommend or prescribe cannabis medically. The administration also made threats

8
to criminally prosecute physicians, and ban them from participating
in Medicare and Medicaid. A group of physicians challenged this policy as a violation
of First Amendment rights. In September 2000, the physicians prevailed in the case
of Conant v. McCaffrey, which affirmed the right of physicians to recommend (but not
prescribe) cannabis. As a result, cannabis must be recommended instead of prescribed in
all states where its medical use has been legalized.
During the Obama Administration in October 2009, the United States Justice
Department issued the Ogden Memo, advising U.S. attorneys to only prosecute medical
cannabis providers who violate state law or engage in other federally-illegal activity
(such as money laundering or illegal use of firearms). Despite such guidance the
warrants and raids on medical cannabis providers actually increased following the release
of the Memo. Prompted by public outcry and requests for clarification from numerous
elected officials, a new memo was issued by Deputy Attorney General James M. Cole in
June 2011. The 2011 Cole Memo clarified that the Ogden memo's protections applied
only to individual patients and not commercial operations. Two years later in 2013, the
U.S. Justice Department revised the Cole Memo to assume a more deferential approach
towards the states and listed a broad set of principles under which the federal government
would not prosecute properly licensed state entities.
In 2012, the voters in the State of Colorado passed a voter initiative altering the
legal status of cannabis within their State, despite federal laws prohibiting such activity.
Colorado's Amendment 64 was a popular initiative ballot measure to amend Colorado's
constitution, outlining a statewide drug policy for cannabis. The Colorado measure
passed on November 6, 2012, and along with a similar Washington measure, marked a
first for the United States. Now enacted as Article 18, section 16 of Colorado’s
constitution, the law addresses "personal use and regulation of marijuana" for adults 21
and over, as well as commercial cultivation, manufacture, and sale, effectively regulating
cannabis in a manner similar to alcohol. The first stores officially opened on January 1,
2014.

9
 In response to increased raids on medical cannabis providers, Congress passed
the Rohrabacher–Farr amendment in 2014, to prohibit federal prosecution of individuals
acting in accordance with state medical cannabis laws. In May 2014, the amendment
passed the House by a 219–189 vote, and was later signed into law in December that
same year as part of an omnibus spending bill. It was renewed following a 242–186
House vote in 2015, and has since been included in a long series of spending bills
approved by Congress.
After the amendment's 2014 enactment, the Justice Department initially continued
to prosecute medical cannabis providers based on a new interpretation of the amendment
that was being employed. U.S. District Judge Charles Breyer ruled against the DOJ in
October 2015, however, stating that the interpretation "defies language and logic" and
"tortures the plain meaning of the statute", and was "counterintuitive and opportunistic.”
The Ninth Circuit Court of Appeals similarly rejected the DOJ's arguments in an August
2016 ruling.
In January 2018, Attorney General Jeff Sessions rescinded the Cole
Memorandum, an Obama-era policy that generally discouraged U.S. Attorneys from
enforcing federal law against state-legal cannabis enterprises. The impact of rescinding
the US Department of Justice guidance in the Cole Memorandum remains unclear. In the
absence of any direction, some United States Attorney’s Offices have issued their own
mini-Cole Memo’s, effectively providing limited guidance in the individual states.

A. STATE LAW: WHAT’S LEGAL AND WHAT’S NOT

Type of Cannabis Amount of Cannabis

Legal Status Criminal Penalties
Product Possessed

Civil Penalty ( $ 100

Cannabis Flower
fine for 1st; $ 250 fine
(Non-Medical 10 g or less None
for 2nd; drug class if
Permission)
under 21)

10
 Type of Cannabis Amount of Cannabis
Legal Status Criminal Penalties
Product Possessed

Misdemeanor or Felony
Misdemeanor (6 months
Cannabis Flower (Possession with Intent
and/or $ 1,000 fine);
(Non-Medical 10 g or more to Distribute)(no
Felony (5 years and/or $
Permission) specific amount
15,000)
required)

Up to 120 g of Cannabis
Cannabis Flower Legal for Qualified
Flower or 36 g of None
(Medical Possession) Patient
infused product)

Not considered
Distillate, Shatter, Wax,
Any amount Cannabis; Considered (1 year and/or $ 5,000)
Live Resin, Rosin, etc.
by prosecution as THC

Cannabidiol (CBD) Any amount Depends upon its source Depends upon its source

Cannabis law in Maryland has taken a long and twisted path, reflecting the
struggles faced by the State, law enforcement, and its diverse population. Maryland has
traditionally been one of the least friendly states for cannabis consumption in the country,
along with a disproportionate amount of arrests . For example, in 2010 the ACLU
reported that Maryland had the fifth-highest overall arrest rate for cannabis possession in
the United States, with 409 arrests per 100,000 residents. (The national rate was 256 per
100,000 people). In that year, marijuana arrests made up 49.9% of all drug possession
arrests in the state. In Maryland, blacks were 2.9 times more likely than whites to be
arrested for marijuana possession.1

                                                       
1
 The War on Marijuana in Black and White: Billions of Dollars Wasted on Racially Biased
Arrests (June 2013), American Civil Liberties Union Foundation, p. 15. (available at
https://www.aclu.org/sites/default/files/field_document/1114413-mj-report-rfs-rel1.pdf) 
 

11
 In May 2013, Governor O'Malley signed legislation that established a medical
cannabis program in Maryland. The legislation initially restricted cannabis distribution
to academic medical centers, which were supposed to monitor patients. After the
collapse of the proposal to enlist academic centers to act as the medical dispensary in the
State, there was an open revolt by the members of the Black Caucus in the closing days
of Maryland’s 2014 legislative session. The House of Delegates forced the medical
cannabis program measure to a vote, and it passed overwhelmingly.
Under the newly revised medical cannabis law, qualified patients would be
registered to receive public access to medical cannabis (and derivative products) from
qualified licensed cultivators and dispensaries. The law made Maryland the 21st medical
cannabis state. The new law permit state residents suffering from certain qualifying
conditions to purchase and use medical cannabis if their qualified provider recommended
it. The law allowed registered cultivators to grow medical cannabis within the State for
consumption within the State, and authorized the State’s regulators to license up to
Fifteen (15) dispensaries to distribute the medicine to patients. A state-sanctioned
Commission was created by the legislation to develop and regulate the quantity limits and
regulations governing cultivation and dispensary facilities.
In April 2014, Gov. Martin O'Malley signed the harm reduction counterpart to the
medical cannabis law, making Maryland the 18th state to decriminalize possession of less
than 10 grams of marijuana reducing the penalty from a criminal offense to a civil
offense punishable by a fine of up to $100 for a first offense, up to $250 for a second
offense, and up to $500 for subsequent offenses. The law took effect on October 1, 2014.
In 2016, the Maryland Medical Cannabis Commission awarded 15 preliminary
pre-approvals to grow medical cannabis (out of a pool of almost 150 applicants) and a
further 15 licenses to process medical marijuana "into pills, oils and other medical
products.” The Commission received more than 150 grower applications, 124 processor
applications, and 850 dispensary applications. Seven companies received licenses to
both grow and process.

12
 Under Maryland’s new law, physicians, nurse practitioners, dentists, podiatrists
and nurse midwives may certify patients as eligible for medical cannabis.
On December 1, 2017, after five years of delay, Maryland's medical cannabis
program became operational and sales began. Today, the Maryland Medical Cannabis
Commission’s programs boast that there are 15 licensed cultivators, 16 licensed
processors, and 75 licensed dispensaries operational. The Program has recorded sales
figures over the last 12 months of $ 96 million. In addition, there are more than 65,000
certified patients, which is expected to grow to more than 200,000 within the next couple
of years. There are over 1,400 qualified providers who have signed up with the
Commission to serve the medical cannabis patient population.

B. FEDERAL LAWS AND ENFORCEMENT: CONFLICTING PRIORITIES

Under federal law, all growing, possessing, or distributing cannabis remains

illegal pursuant to the Controlled Substances Act of 1970. To this day, cannabis remains
a Schedule I controlled substance – meaning it has a high potential for abuse and no
accepted medical uses—alongside heroin, LSD, and PCP. When former Attorney
General Jeff Sessions declared that cannabis “is illegal in the United States—even in
Colorado, California, and everywhere else in America,” he was technically correct about
the federal status of the plant. But, of course, that’s not the whole story or the end of the
story.
Regardless of its federal prohibition, a majority of states regularly license, tax,
and regulate state-sanctioned cannabis businesses, despite this continuing federal
prohibition. Currently, ten states (and the District of Columbia) now have state-
sponsored adult use and medical programs sanctioned by state law in direct prohibition of
federal law. Another 36 states permit its citizens to purchase and receive some form of
medical cannabis or CBD only from the state. This means that all but four states, Idaho,
Kansas, Nebraska, and South Dakota, permit its citizens to either possess, distribute, or
grow some form of cannabis in direct contravention of the federal prohibition. How can
this be?

13
 The Commerce Clause of the United States Constitution
The Commerce Clause of Article I, Section 8 grants Congress the authority to
regulate interstate commerce; that is, commerce between the states or commerce that
crosses state lines.2 This includes both the subjects of commerce (goods/services/people)
and the channels and instrumentalities of commerce (transportation/
communications/utilities). The Constitution does not, however, grant Congress the
explicit authority to regulate intrastate commerce within the borders of one state. Rather,
the Necessary and Proper Clause of the Constitution leaves open the door for Congress to
enact additional laws that are ‘necessary and proper’ to effectively exercise its other
explicitly enumerated powers.3 Applying this to the interstate commerce power,
Congress could claim the authority to regulate intrastate commerce only if such
regulation is ‘necessary and proper’ to effectively exercise its otherwise validly enacted
regulation of interstate commerce.
To be clear, regulation of activities that are purely local in nature are generally
reserved to the states with a constitutional guarantee that the federal government will not
interfere.4 Governance over activities of a national significance, on the other hand, is
generally granted to the federal government.5 Historically, when wishing to extend its
prerogatives in order to regulate locally, Congress will invoke in tandem these two key
provisions of the Commerce Clause and the Necessary and Proper Clause.
The ultimate arbiter of these questions is of course the U.S. Supreme Court. In
2002 the Court actually took up the controversial issue of whether the CSA could ban

                                                       
2
 U.S. Const. A.I, §8, cl.3 (“The Congress shall have Power To regulate Commerce…among the several 
States[.]”)   
3
 U.S. Const. A. I, §8, cl. 3 (“The Congress shall have the Power To make all Laws which shall be necessary 
and proper for carrying into Execution the forgoing Powers, and all Powers vested by this Constitution in 
the Government of the United States, or in any Department or Office thereof.”) 
4
 See U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the states, are reserved to the states respectively, or to the people.”). Crime and 
punishment, laws regarding property, contracts, civil suits, and the family—these are all examples of the 
traditional ‘Police Powers’ reserved to the states.   
5
 See, e.g., U.S. Const. A.I, §8 (granting Congress, inter alia, the power to raise an army, declare war, 
regulate commerce with foreign nations, establish immigration laws, coin and borrow money, etc.).   
 

14
intrastate cannabis activity was a constitutionally permissible exercise of the federal
interstate commerce power.
In the case of Gonzalez v. Raich, the Court heard arguments over the following set
of facts: agents from the Drug Enforcement Administration confiscated and destroyed a
small number of medicinal marijuana plants grown pursuant to state law by two
California women (Angel Raich and Diane Monson) to treat their own serious illnesses.6
Seeing that this cannabis was grown and used personally, neither the parties nor the Court
disagreed with characterizing it as intrastate. The Court therefore had to determine
whether it was necessary and proper for Congress to regulate this intrastate marijuana
activity in order to achieve the otherwise valid objective of regulating the interstate
marijuana market.
In a 6-3 decision, the Court ruled in favor of the federal government. Citing
precedent dating to the New Deal,7 the Court reaffirmed a rule that has become the
central crux of our American system of federalism – the extension of federal regulatory
authority to intrastate commerce is constitutional if the intrastate activity belongs to “a
class of activities” that when taken in the aggregate has, or could have, a substantial
economic effect on interstate commerce. The Court determined that the medicinal
marijuana grown by Raich and Monson was part of a class of activities that included all
homegrown, personal-use marijuana anywhere, and that because homegrown, personal-
use marijuana in the aggregate has, or could have, a substantial effect on the interstate
drug market, it may therefore be federally regulated.
The Court also found a rational basis for Congress to determine that if it were not
permitted to regulate the local marijuana activity, the otherwise permissible federal

                                                       
6
 Gonzalez v. Raich, 545 U.S. 1, 3‐4 (2005).   
7
 See Wickard v. Filburn 317 U.S. 111 (1942) (in this landmark 1942 battle over FDR’s Agricultural 
Adjustment Act, the Supreme Court established the standard that would markedly expand Congress’s 
commerce power. The Court ruled that wheat grown on Roscoe Filburn’s farm purely for personal 
consumption, was nevertheless a kind of activity that when taken with other like‐activities would, or 
could, have a substantial effect on the supply and demand, and therefore prices, of the interstate wheat 
market. Because of that connection to interstate commerce, Congress was permitted to reach the 
Filburn’s personal, intrastate activity.)   
 

15
regulation of interstate commerce in cannabis would have been undermined.
Accordingly, the question over whether the federal government may enforce the CSA
within any state under any circumstance remains settled. Accepting this expansive
federal role as the current reality of federalism jurisprudence, we examine now its limits,
and the Constitution provides cover for the states’ ability to defy federal regulation.
The Tenth Amendment and Anti-Commandeering Principles
The federal government may neither command a state to enact state legislation
nor assist the federal government in enforcing federal law. Even if Congress possesses
the constitutional authority to regulate intrastate activity, if the states are unwilling to
assist, Congress must do so itself, and it may not conscript states into its service. The
Supreme Court has consistently interpreted both the text of the 10th Amendment and the
Constitution to guarantee to the states this protection against federal commandeering.
Stringing together our discussion of the Commerce Clause in Raich with the
dictates of the anti-commandeering doctrine, the conclusion easily follows that while
there are no constitutional obstacles to the federal government criminalizing local, in-
state marijuana use and entering states to enforce the CSA, there is nothing the federal
government can do to require the states to help. The Supreme Court recently underscored
the importance of the Anti-Commandeering statute in Murphy v. NCAA.8 In 1992,
Congress passed the Professional and Amateur Sports Protection Act (PASPA) to
prohibit state-sponsored sports gambling. In 2012, New Jersey enacted the Sports
Wagering Act, permitting sports wagering at state casinos and racetracks, and forming a
regulatory body for licensing. In a 6-3 opinion, the Court reversed in favor of New
Jersey, finding that the PASPA’s provision prohibiting a state from authorizing state-
sponsored gambling was a violation of the U.S. Constitution’s Anti-Commandeering
Statue.
The Supremacy Clause of the U.S. Constitution
The Supremacy Clause of Article VI, Clause 2 states that the “Constitution, and
the Laws of the United States which shall be made in Pursuance thereof…shall be the

                                                       
8
 Murphy v. NCAA, 584 U.S. _____ (2018). 

16
supreme Law of the Land…any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” If a state passes a law that prevents or obstructs the effective
execution of a legitimate federal law, the state law must be invalidated. The legal name
for such invalidation is ‘preemption,’ and it comes in a variety of forms.
For state cannabis legislative purposes, conflict preemption provides the most
important framework of analysis. There is no federal law, including the CSA, that
explicitly and wholesale preempts state regulation on this subject, and the federal
government has never so pervasively legislated in the field of drug activity as to preclude
concurrent state regulation. The traditional police powers of the state to protect its
citizens from harm underscores the predominant role states have played in drug
enforcement throughout American history. The applicability of conflict preemption
standards to marijuana are furthermore reinforced by a provision in the CSA itself stating
federal intentions to preempt state laws only if there is a “positive conflict so that the two
cannot consistently stand together.”9
But what would happen if a state law simply obstructs the execution of federal
law? Conflict preemption precedent says that in this scenario state law must give way.
The debate over what constitutes such an obstruction to federal law was the question
presented to the Supreme Court in litigation initiated against Colorado in December 2014
by the states of Nebraska and Oklahoma. Although in late March 2016 the Supreme
Court declined to hear the case.

C. LICENSING, PERMITTING AND ZONING

Pursuant to Maryland’s medical cannabis regulations, an entity seeking licensure

with the Maryland Medical Cannabis Commission as a grower, processor, or a dispensary
is required to meet all local zoning and planning requirements. At least two counties,
Anne Arundel and Prince George’s County, have enacted restrictive zoning or variance
ordinances that require medical cannabis businesses to comply with locational
restrictions.

                                                       
9
 21 U.S.C. §903 (emphasis added).   

17
 In contrast, Maryland’s Office of the Attorney General has issued an advisory
opinion that undermines any such attempt.10 In particular, the Opinion Letter states that
because medical cannabis dispensaries, cultivation centers, and processors are sanctioned
by State law, any local interference with such state law would be impermissible under
principles of preemption.

D. RISKS AND LIABILITIES FOR CANNABUSINESSES

As discussed previously, the federal prohibition of cannabis remains. This
cascades into a host of other problems affecting the availability of ordinary transactions
amongst legitimate businesses. This effectively relegates any cannabis-related business
having direct contact with the medical cannabis, including its by-products (cannabinoids)
or distillates, to a virtual gray market. In this business climate, banking is prohibited,
acceptance of credit cards is prohibited, intellectual property cannot be protected, and a
business cannot admit to serving such an industry in order to receive basic services
(insurance), the use of basic business protections (bankruptcy), or ordinary business tax
deductions (Section 280E of the IRS Code).
Federal banking provisions make it difficult for any business dealing with
cannabis to obtain a loan or register an account with a bank. Banks will not risk federal
prosecution due to the increased reporting requirements under federal banking laws.
Many medical cannabis businesses have difficulty accessing capital and operate on a
cash-only basis, raising the risks for money laundering, tax evasion, robbery, and other
crimes. Insurance companies and security firms often cite federal laws as the reason they
cannot do business with the cannabis industry.
Cannabis businesses, although illegal under federal law, are obligated to pay
federal income tax on their taxable income.11 Under section 280E of the Internal
Revenue Code, a cannabis producer or re-seller, cannot deduct the ordinary business
expenses attributable to a taxpayer’s trade or business. Adjusted gross income for
businesses generally includes gross income less any listed deductions, including those

                                                       
10
 https://mmcc.maryland.gov/Documents/Attorney%20General%20Letter%209.22.15.pdf 
11
 U.S. Const. amend. XVI. 

18
attributable to a taxpayer’s trade or business. The Internal Revenue Code (Code) does
not distinguish between income derived from legal sources and income derived from
illegal sources.12

E. WORKPLACE CONFUSION: ACCOMMODATIONS AND MORE

The Americans with Disabilities Act (ADA) requires employers to make

reasonable accommodations for qualified workers with disabilities. The act does not
protect illegal drug use, though it does permit some protections for recovering addicts. As
cannabis remains illegal under federal law as a Schedule I drug, with no exceptions for
medicinal use, its use is not protected under the ADA.
Federal courts have ruled that the ADA does not require a medical cannabis
accommodation. In 2012, the 9th U.S. Circuit Court of Appeals held in James v. City of
Costa Mesa that although the plaintiffs were "gravely ill," and California legalized
medical cannabis use, the ADA did not protect the plaintiffs' use of the drug. The court
said that the plain language of the ADA only protects drug treatments prescribed by
health care professionals when those drugs are not explicitly banned by the federal
Controlled Substances Act, like cannabis.
While Maryland has passed a law permitting the cultivation of medical cannabis
for qualified patients, a system for recommending and dispensing the medical cannabis to
such patients, as well as the decriminalizing of small amounts, it has not provided for
protections for employees who use such substances. As a result, employers are still free
to drug test employees. In addition, the law does not protect employees who test positive
for the metabolites of cannabis usage, and employers are free to discharge an employee
for such usage without penalty under State or federal law.
F. ISSUE FOR LAWFUL USERS: DRIVING, STORAGE, ETC.

The possession of cannabis in a vehicle, operating or not operating, can provide

the necessary articulable suspicion for a search or a test for impairment by a Drug

                                                       
12
United States v. Sullivan, 274 U.S. 259 (1927)(formed basis of Al Capone conviction pertaining to 
taxation of gains from illicit trafficking of liquor); 

19
Recognition Expert (DRE). In Maryland, driving while under the influence of cannabis
is an offense and punishable by up to one year in jail and/or a $ 1,000 fine.
If you are recognized as a Maryland Medical Cannabis Commission patient by
virtue of carrying a patient card, the police should determine whether the possession is
compliant and then release the individual, unless law enforcement suspects other crimes.
There is no requirement that cannabis be contained in the original container in which it
was originally received from the dispensary.
Maryland law states that the medical use of cannabis is an affirmative defense to
the crime of simple possession of cannabis, and shall result in the dismissal of the
charge.13

FOR FURTHER INFORMATION OR QUESTIONS INVOLVING THE ABOVE

MATERIALS, PLEASE CONTACT ME AT ANY OF THE FOLLOWING :

Michael S. Rothman, Esq.

Medical Cannabis Law Group
Law Office of Mike Rothman
401 East Jefferson St., Suite 201
Rockville, MD. 20850
Phone: (301) 251-9660
mike@medicalcannabislawgroup.com
mike@rothmanlegal.com

                                                       
13
 Md. Code Ann., Crim. L. § 5‐601(c)(3)(ii)(2). 

20
Prescription Painkiller Law
Submitted by Craig M. Kadish

21
22
I. Prescription Painkiller Law

a. Painkiller Legal Classifications and Types

i. Schedule I: Md. Code Ann., Crim L. § 4-402. No currently accepted

medical use and high risk for abuse

1. Opiates (57 listed)

2. Opium derivatives (23 listed)

3. Hallucinogenic substances (69 listed):

a. Lysergic Acid Diethylamide (LSD or acid)

b. Marijuana (but see, medical marijuana)

c. Mescaline

d. Peyote

e. Psilocybin (mushrooms)

4. Core Substances (15 listed)

5. Depressants (3 listed)

6. Stimulants (9 listed)

7. Analogues: In this subsection

a. "controlled dangerous substance analogue" means a

substance:

i. that has a chemical structure substantially similar to

the chemical structure of a controlled dangerous

substance listed in Schedule I or Schedule II; and

ii. that has a stimulant, depressant, or hallucinogenic

effect on the central nervous system that is

23
 substantially similar to or greater than the stimulant,

depressant, or hallucinogenic effect on the central

nervous system of a controlled dangerous substance

listed in Schedule I or Schedule II; but

b. "controlled dangerous substance analogue" does not

include:

i. a controlled dangerous substance;

ii. a substance for which there is an approved new

drug application; or

iii. a substance exempted for investigational use under

§ 506 of the Federal Food, Drug, and Cosmetic Act.

c. To the extent intended for human consumption, each

controlled dangerous substance analogue is a substance

listed in Schedule I

8. Required factors for adding substance. -- The Department may

not add a substance to Schedule I under § 5-202 of this title unless

the Department finds:

a. a high potential for abuse of the substance;

b. no accepted medical use in the United States for the

substance; and

c. a lack of accepted safety for use of the substance under

medical supervision.

24
ii. Schedule II: Md. Code Ann., Crim. L. § 4-403 High potential for abuse

which may lead to several psychological or physical dependence

1. Core Substances (20 listed):

a. Raw Opium

b. Opium Extracts

c. Codeine

d. Hydrocodone

e. Morphine

f. Oxycodone

g. Oxmorphone

2. Also include (6 listed):

a. Opium poppy

b. Cocaine

c. A combination of any of the substances listed in this

section

3. Certain Opiates (29 listed):

a. Fentanyl (as a technical matter, this is incorrect. According

pediaa.com, Fentanyl is only an opioid, not an opiate)

b. Methadone

4. Stimulants (6 listed):

a. Amphetamine/amphetamine salts

b. Methamphetamine

5. Depressants (8 listed)

25
 6. Required factors for adding substance. -- The Department may

not add a substance to Schedule II under § 5-202 of this title unless

the Department finds:

a. a high potential for abuse of the substance;

b. currently accepted medical use of the substance in the

United States, or currently accepted medical use with

severe restrictions; and

c. evidence that abuse of the substance may lead to severe

psychological or physical dependence.

iii. Schedule III: Md. Code Ann., Crim. Law § 4-404 Moderate to low

potential for physical and psychological dependence

1. Nalorphine

2. Anabolic steroid consisting of a material, compound, or

preparation that include (59 listed):

a. Testosterone

b. Nandrolone

3. Stimulants (5 listed):

a. Benzphetamine;

b. Phendimetrazine

4. Depressants (20 listed):

a. Gamma hydroxybutyric acid preparations

b. Lysergic acid

c. Lysergic acid amid

26
 d. Pentazocine

5. Narcotic Drugs (10 listed):

a. Not more than 500 milligrams of opium per 100 milliliters

or per 100 grams, or not more than 25 milligrams per

dosage unit, with one or more active, nonnarcotic

ingredients in recognized therapeutic amounts;

b. Not more than 100 milligrams of opium per 100 milliliters

or per 100 grams, or not more than 5 milligrams per dosage

unit

c. Buprenorphine

6. Other Drugs (3 listed):

a. Ketamine

b. Fioricet (containing butalbital, acetominophen, and

caffeine)

7. Required factors for adding substance. -- The Department may

not add a substance to Schedule III under § 5-202 of this title

unless the Department finds:

a. a potential for abuse of the substance that is less than that

for the substances listed in Schedule I and Schedule II

b. well documented and approved medical use of the

substance in the United States; and

27
 c. evidence that abuse of the substance may lead to moderate

or low physical dependence or high psychological

dependence.

iv. Schedule IV: Md. Code Ann., Crim. Law § 4-405 Low potential for

abuse and low risk of dependence

1. Core Substances (67 listed):

a. Alprazolam (Xanax)

b. Clonazepam (Klonopin)

c. Lorazepam (Ativan)

d. Diazepam (Valium)

e. Phenobarbital

f. Tramadol

g. Zolpidem (Ambien)

h. Zopiclone (Lunesta).

2. Fenfluramine (Pondomin/Fen-Phen)—Substances listed in

Schedule IV include:

a. a material, compound, mixture, or preparation that

contains fenfluramine; and

b. if its existence is possible:

i. a salt of fenfluramine;

ii. an optical, position, or geometric isomer of

fenfluramine; and

iii. a salt of an isomer of fenfluramine.

28
3. Stimulants (3 listed):

a. Diethylpropion

b. Phentermin

4. Exemptions. -- By regulation, the Department may exempt from

this section a compound, mixture, or preparation that contains a

depressant substance listed in Md. Ann. Code, Crim L. §4-505(b)

if:

a. the compound, mixture, or preparation contains an active

medicinal ingredient that does not have a depressant effect

on the central nervous system; and

b. the admixtures are included in combinations, quantity,

proportion, or concentration that vitiate the potential for

abuse of the substances that have a depressant effect on the

central nervous system.

5. Required factors for adding substance. -- The Department may

not add a substance to Schedule IV under § 5-202 of this title

unless the Department finds that:

a. the substance has a low potential for abuse relative to the

substances listed in Schedule III;

b. the substance has currently accepted medical use in

treatment in the United States; and

29
 c. abuse of the substance may lead to limited physical

dependence or psychological dependence relative to the

substances in Schedule III.

v. Schedule V: Md. Code Ann., Crim. Law § 4-406 Lower potential for

abuse than Schedule IV. It contains low dose of narcotics.

1. Core Substances (10 listed)

2. Required factors for adding substance. -- The Department may

not add a substance to Schedule V under § 5-202 of this title unless

the Department finds

a. the substance has a low potential for abuse relative to the

substances listed in Schedule IV;

b. the substance has currently accepted medical use in the

United States; and

c. abuse of the substance may lead to limited physical

dependence or psychological dependence liability relative

to the substances listed in Schedule IV.

b. Use and Abuse: State Laws and Regulations

c. Liability Issues for Medical Professionals

i. The standard for medical malpractice requires that a physician act as a

reasonably competent physician would under the same/similar

circumstances. The type of drug and dosage must be appropriate to treat

the condition diagnosed. Furthermore, if there is a failure to address a

clear developing addiction, a breach of duty may have occurred.

30
ii. CDC Guidelines: prescribers should take certain precautions such as

getting an adequate patient history to rule out addiction, fully informing

the patient about the risks associated with prescription opioid use, and

regularly following up with a patient during treatment with the drug.

iii. As of 2016, Maryland requires the use of the Prescription Drug

Monitoring Program (PDMP). See Md. Code Ann., Health–Gen. § 21-2A-

01.

iv. Under the PDMP, all practitioners authorized to prescribe CDS must be

registered. The prescribers must review the patient’s PDMP data before

prescribing opioids. Prescribers must also review the patient’s PDMP at

least every 90 days during the treatment.

v. Pursuant to Md. Health Gen. § 21-2A-08,

1. Department, agents and employees. -- With respect to the

administration and operation of the Program, the Department and

its agents and employees are not subject to liability arising from:

a. The inaccuracy of any information submitted to the

Program in accordance with this subtitle; or

b. The unauthorized use or disclosure of prescription

monitoring data by a person to whom the Program was

authorized to provide the prescription monitoring data

under this subtitle.

c. Prescriber, prescriber delegate, pharmacist, or

pharmacist delegate. -- Except as provided in § 21-2A-

31
 09(b)(3) of this subtitle, a prescriber, prescriber delegate,

pharmacist, or pharmacist delegate, acting in good faith, is

not subject to liability or disciplinary action arising solely

from:

i. Requesting or receiving, or failing to request or

receive, prescription monitoring data from the

Program; or

ii. Acting, or failing to act, on the basis of prescription

monitoring data provided by the Program.

vi. Md. Code Ann., Crim. Law, § 5-303—covers the regulations applicable to

the Manufacturers and Distributors (attached)

vii. Md. 5-904(a) provides that a registrant MAY NOT: (1) distribute or

dispense a CDS listed in Schedule I or Schedule II in violation of Md.

Code Ann., Crim. Law, § 5-303(d); or (2) distribute a CDS listed in

Schedule I or Schedule II in the course of the registrant’s legitimate

business, except in accordance with an order form under Md. Code Ann.,

Crim. Law, § 5-303(d).

viii. Md. Code Ann., Crim. Law, § 5-701

ix. Penalties:

1. Md. Code Ann., Crim. Law, § 5-307—Suspensions, revocations,

and denials – grounds

2. Before the Maryland Department of Health takes action under Md.

Code Ann., Crim. Law, § 5-307, the Department SHALL serve the

32
 applicant or registrant an order to show cause why registration

should not be denied, revoked, or suspended or its renewal refused.

Md. Code Ann., Crim. Law, § 5-308 (a)(2) provides what the order

to show cause shall contain.

x. Md. Code Ann., Crim. Law, § 5-904(b) provides,

1. If the trier of fact specifically finds that a person knowingly or

intentionally violated subsection (a)(1) of this section, the person is

guilty of a misdemeanor and on conviction is subject to

imprisonment not exceeding 2 years or a fine not exceeding

$ 100,000 or both.

2. In all other cases, a person who violates subsection (a)(1) of this

section is subject to a civil penalty not exceeding $ 50,000.

3. A person who willfully violates subsection (a)(2) of this section is

guilty of a felony and on conviction is subject to imprisonment not

exceeding 10 years or a fine not exceeding $ 100,000 or both.

xi. A person who violated Md. Code Ann., Crim. Law, § 5-701 is guilty of a

misdemeanor and on conviction is subject to imprisonment not exceeding

2 years or a fine not exceeding $1,000 or both.

xii. Oltman v. Md. State Bd. of Physicians, 162 Md. App. 457, 875 A.2d 200,

cert.denied, 389 Md. 125, 883 A.2d 915 (2005). A physician’s assistant

conviction of prescription forgery and related actions involved a crime of

moral turpitude under Maryland case law, even though it was a

misdemeanor rather than a felony, because it implicated fraudulent

33
 behavior. Thus, even though the Maryland Board of Physicians was not

required to revoke the physician’s assistant’s certificate, as would have

been the case with certain regulated professions, it did not act arbitrarily

and capriciously in doing so. (Case is attached)

d. Current Issues and Updates

i. Opiates: they are getting worse because of fentanyl. \

ii. The CDC says that prescription drug abuse is the fastest growing drug

problem in the nation. From 1997-2007, the use of prescription opioids in

the US increased 402%.1

iii. Between 2013 and 2016, opioid prescriptions dropped 13.3%.

iv. In 2016, drug overdoses killed 63,632 people. Two-thirds of these deaths

involved opiated.

v. The Centers for Disease Control and Prevention (CDC) in March 2016

finalized a list of recommended practices to help physicians navigate

assessment and management of the risks and benefits of opioid prescribing

for chronic pain. CDC recommendations provide several specific

suggestions that can mitigate clinical and legal risks, including: discussing

known risks of opioids directly with patients; reevaluation of patients

every 3 months to assess for risks in relation to benefits; considering use

of urine drug testing; avoiding co-prescribing of benzodiazepines and

opioids; and referring or offering treatment for patients identified as

having an opioid use disorder.

                                                            
1
 Maryland Behavioral Health Administration.   

34
 vi. In 2017, 1,985 overdose deaths involving opioids in Maryland.i This

meant a rate of 32.2 deaths per 10,000 persons. Maryland’s rate is twofold

greater than the national rate, which is 14.6 deaths per 10,000 persons.

Maryland ranks in the top 5 for opioid-related death rates. Maryland has

the largest increase attributed to cases involving synthetic opioids.

vii. Also in 2017, Governor Larry Hogan declared Maryland’s opioid

epidemic a state of emergency and threw 50 million dollars at the crisis

via an executive order.

viii. According to The Baltimore Sun, opioid overdoses in Maryland increased

14.8 percent in the first 6 months of 2018

e. Why are opioids bring overprescribed?

i. At one time, doctors were taught that patients would only take opioids for

pain and would stop when the pain stopped—they were not taught/did not

realize how physically and psychologically addictive opioids were. Some

of the doctors who were taught this way still practice this way. This

practice meant when many of the people prescribed opioids were cut off

because their pain stopped, they could no longer get the pain pills and

turned to heroin.

ii. Pharmaceutical Companies: Aggressively market directly to consumers

(through commercials and advertisements) and to doctors.

f. Kickbacks to physicians prescribing opioids to patients: Medicare and Medicaid

Patient Protection Act of 1987) Anti-Kickback Statute 42 U.S.C. § 1320a-7b

provides criminal penalties for certain acts impacting Medicare and Medicaid

35
 reimbursable services. It specifically prohibits the offer or receipt of certain

remuneration in return for referrals or recommending purchases under

government healthcare plans. A person who violates this statue is guilty of a

felony and, upon conviction, may be subject to 5 years’ incarceration and a

maximum fine of $25,000. The Anti-Kickback Act reinforces the policies

underlying the Stark Act (see below) through criminal sanctions.

g. Stark Law: Provides that a physician may not refer a patient to an entity with

which the physician has an ownership interest or compensation arrangement if

payments for the services furnished under the referral are to be made by the

Medicare or Medicaid programs. The Stark Act prevents a physician’s personal

financial interests from influencing the type and quality of care that patients

receive.

h. How should we, as attorneys, advise doctors?

1. Be wary of making these substances available to patients.

2. Many abusers will fake symptoms to get painkillers/opioids. That is why

mandatory reporting and keeping an accurate database is so important and

necessary.

i. A useful tool that is helping to curb prescription drug abuse is

Chesapeake Regional Information System for our Patients

(CRISP). CRISP is a database that allows doctors to monitor

prescriptions filled by other doctors to their patients.

According to their website (http://crisphealth.org): 

CRISP is a regional health information

exchange (HIE) serving Maryland and

36
 the District of Columbia. We are a non-
profit organization advised by a wide
range of stakeholders who are responsible
for healthcare throughout the region.
CRISP has been formally designated as
Maryland's statewide health information
exchange by the Maryland Health Care
Commission.

Health information exchange allows

clinical information to move
electronically among disparate health
information systems. The goal of the HIE
is to deliver the right health information
to the right place at the right time -
providing safer, timelier, efficient,
effective, equitable, patient centered care.
In doing so, CRISP offers a suite of tools
aimed at improving the facilitation of
care for our region's providers.
Prescription pad liability:
1. With prescription abuse on the rise addicts and drug dealers alike are increasingly prone

to steal or forge prescription pads while prescribers may not have criminal liability for

forged or stolen prescription pads, there are procedures that can be put in place to avoid

costly and time consuming problems as well as try to prevent potential overdoses by

individuals who would be getting substances and dosages not appropriate for them.

2. What can be done by physicians to limit their exposure to prescription pad stealing and

prescription fraud:

a. Buy and use prescription pads without DEA number on them.

b. Use electronically transmitted prescriptions for CDS when possible.

c. Avoid pre-signing prescription pads

d. Establish and maintain inventory of prescription pads.

e. Lock prescription pads in a secure location (21 CFR §

f. Guard against tampering by writing prescriptions in gel pen

37
 g. Inform local police department and DEA of stolen prescription pads

                                                            
 

38
 Alcoholic Beverages Law
Submitted by Jordan Humphrey and Sarah Burt

39
40
 21st Century Liquor Law: Cheers to the 21st Amendment

By: Jordan Humphrey, Winthrop & Weinstine, P.A.

Research and drafting assistance by Sarah Burt, Winthrop & Weinstine, P.A.

I. Prohibition and Repeal

A. 18th Amendment

By the early nineteenth century, heavy drinking was the norm among American
men, with the average male consuming seven to twelve gallons of alcohol each
year. In response, several organizations formed in the latter half of the century to
combat liquor consumption, viewing it as both a “public nuisance” and a “national
curse” that needed to be contained. Prohibition advocates campaigned for a federal
ban on alcohol, arguing that it would lower crime rates, strengthen families, and
generally improve national character.

The temperance movement had intermittent success throughout the late nineteenth
and early twentieth centuries, as the number of members grew and the general
public became familiar with the cause. However, the true turning point for the dry
campaign came during World War I. Advocates expertly exploited the patriotic
swell that accompanied the war, arguing that prohibition would benefit U.S. troops
in two principal ways. First, the grain used for the manufacture of alcohol could
instead be used to feed the troops. Second, prohibition would protect the soldiers
from the temptations of liquor and saloons and their accompanying vices.
Temperance politicians used the anti-German sentiment prevalent at the time to
vilify German-American beer manufacturers. As one politician stated, “We have
German enemies in this country, too. And the worst of all our German enemies, the
most treacherous, the most menacing, are Pabst, Schiltz, Blatz, and Miller.”

Congress ratified the 18th Amendment on January 29, 1919, and the amendment
went into effect the following year. Contrary to popular belief, the Amendment did
not prohibit drinking alcohol, but rather prohibited the manufacture, transportation,
and sale of alcohol nationwide.
AMENDMENT XVIII
SECTION 1: After one year from the ratification of this article the manufacture, sale, or transportation
of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United
States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
SECTION 2: The Congress and the several States shall have concurrent power to enforce this article by
appropriate legislation.
SECTION 3: This article shall be inoperative unless it shall have been ratified as an amendment to the
Constitution by the legislatures of the several States, as provided in the Constitution, within seven years
from the date of the submission hereof to the States by the Congress.

41
 The National Prohibition Act—popularly known as the Volstead Act, after its
sponsor Representative Andrew J. Volstead of Minnesota—provided the
government with the means to enforce Prohibition. Enforcement was initially
assigned to the Internal Revenue Service, but was later transferred to the Justice
Department. Loopholes in the act and inconsistent government support throughout
the 1920’s, however, hampered enforcement generally and resulted in Prohibition
remaining more of an ideal than a reality.

B. Prohibition Era

Rise of Organized Crime. Illegal activities such as bootlegging, manufacturing

moonshine, and operating speakeasies began almost immediately as soon as
Prohibition was instituted. In fact, police recorded the first attempt to break the law
only one hour after it had gone into effect when six armed men stole approximately
$100,000 worth of “medicinal” whisky from a Chicago train. Gangsters became
more organized than ever to take advantage of the opportunity to exploit the new
and lucrative illegal liquor market. Various mobs employed lawyers, accountants,
brew masters, boat captains, truckers, warehouseman, and armed thugs—in
addition to bribing police officers and other Prohibition enforcement agents. At the
height of his operations, the infamous Al Capone paid out as much as $500,000 per
month in bribes to the police to keep his illegal booze trade afloat—equivalent to
approximately $6 million per month today. Nonetheless, this cost of doing business
was dwarfed by the estimated $100 million or more a year (about $1.3 billion in
2016 dollars) Capone earned during the 1920’s by supplying the 10,000 speakeasies
he controlled with illegal alcohol. By 1930, the U.S. government estimated that
smuggling foreign-made liquor into the country was a $3 billion industry—roughly
equal to $41 billion in 2016 dollars.

The enormously profitable illegal alcohol trade also stimulated an increase in gang
violence. In New York alone, more than 1,000 people were killed in mob clashes
during Prohibition. The violence drew national attention in 1929 after the so-called
St. Valentine’s Day Massacre in Chicago, in which seven people were brutally
executed with machine guns in a local garage. Capone was suspected of
orchestrating the attack on the rival gang, but never charged. The murders stunned
the country and largely contributed to eroding support for Prohibition.

Harm to the Public. In the beginning, speakeasies often obtained illegal alcohol by
smuggling foreign-made liquor into the United States. Bootleggers would cross the
Canadian and Mexican borders with alcohol hidden in a variety of ways, such as
stored in fake gas tanks or under false bottoms of luggage. Smugglers also used
high-powered boats that could outrun the U.S. Coast Guard in order to meet foreign
ships anchored off the Atlantic coast. As smuggling became more risky and
expensive, however, bootleggers turned to new and more dangerous sources of
alcohol.

Many bootleggers resorted to selling still-produced moonshine or “bathtub” gin. As

the black market for illegally produced alcohol became more lucrative, the quality

42
of the liquor produced declined. To hide the taste of the poorly distilled spirits,
many speakeasies offered to combine the alcohol with other drinks or flavors—
such as ginger ale, cola, sugar, mint, lemon, or various fruit juices—consequently
making cocktails a fashionable drink during the era. While cocktails helped
drinkers stomach the taste of the illegally produced alcohol, it could not protect
them from the crippling effects of “rotgut” created with dangerous impurities.
Faulty batches resulted in blindness, paralysis, and even death for thousands of
drinkers. In 1930, two men created an alcoholic beverage known as a “Ginger Jake”
that was responsible for crippling up to 100,000 Americans nationwide.

Various trades were permitted to use denatured alcohol for industrial purposes, and
the government’s eagerness to prevent consumption of this alcohol lead to
poisoning, paralysis, and deaths of thousands of more drinkers. Increased levels of
notable poisons—such as gasoline, formaldehyde, and chloroform—were added to
industrial alcohol to discourage bootleggers from distributing the products for
consumption. Despite the known dangers of these chemicals, it is estimated that
around 60 million gallons of alcohol were stolen annually to be sold to speakeasies.
Mobs and other bootleggers employed chemists to “wash” the industrial alcohol of
the poisonous substances, believing this would make it safe for drinking. The
denaturing process worked on some concoctions, but not all. An average of 1,000
Americans died every year during Prohibition from the effects of drinking tainted
liquor. Critics of Prohibition blamed the harm to drinkers on reckless government
policies, such as the absence of warning labels on industrial alcohol to mark the
increasing prevalence of noxious chemicals. Some medical professionals even
accused the government of murder.

Effect on the Economy. Many advocates of Prohibition claimed banning alcohol

would have a positive impact on the economy. Supporters assumed that sales of
other goods and entertainment would skyrocket as people looked for alternatives to
drinking. Landlords and real estate developers anticipated an increase in property
values, as neighborhoods improved with the closure of saloons. Specific industries,
like manufacturers of chewing gum and soft drinks, expected growth in their
businesses and market share. Theatres anticipated a surge in crowds, as people left
saloons behind.

The grand expectations of a boost to the economy never materialized, and the initial
economic effects of Prohibition were overwhelmingly negative. Thousands of jobs
were eliminated when the law went into effect, as breweries, distilleries, and legal
saloons all closed their doors. Barrel makers, truckers, waiters, and other related
trades also suffered. Additionally, many restaurants couldn’t make enough money
without liquor sales to stay in business. None of the expected benefits to real estate
owners, other manufacturers, or theatres came to pass. In fact, theatre revenues
actually declined during Prohibition.

Government coffers also suffered significantly during Prohibition, as enforcement

costs skyrocketed and the excise tax revenue from liquor sales vanished. Costs for
law enforcement, jails, and prisons spiraled upward during the 1920’s, with the

43
 government spending approximately $300 million on enforcement. At the same
time, the federal government lost about $11 billion in revenue. States suffered
similarly. New York, for instance, derived almost 75% of its revenue from alcohol
sales in the years leading up to Prohibition. With this source of funds eliminated,
many states and the federal government turned to higher income taxes to make up
the difference.

C. 21st Amendment

The inability to enforce sobriety, increase in criminal activity, injury to many

drinkers, and beginning of the Great Depression all contributed to waning support
for Prohibition by the early 1930’s. With the country suffering economic hardship,
the appeal of creating jobs and revenue through again legalizing the liquor industry
had an undeniable allure. Franklin D. Roosevelt campaigned on the promise to end
Prohibition, and his victory ensured its demise. In February 1933, Congress adopted
a resolution proposing the 21st Amendment. The amendment would repeal the 18th
Amendment and give states the authority to regulate the production, importation,
distribution, sale, and consumption of alcohol within their borders. Unique among
the 27 amendments to the U.S. Constitution, the 21st Amendment—ratified in
December of 1933—is the only amendment to repeal a prior amendment and to
have been ratified by state ratifying conventions as opposed to state legislatures.
TWENTY FIRST AMENDMENT
SECTION 1: The eighteenth article of amendment to the Constitution of the United States is hereby
repealed.
SECTION 2: The transportation or importation into any State, Territory, or possession of the United
States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby
prohibited.
SECTION 3: This article shall be inoperative unless it shall have been ratified as an amendment to the
Constitution by conventions in the several States, as provided in the Constitution, within seven years
from the date of the submission hereof to the States by the Congress.

With the end of Prohibition came the loss of the carefree speakeasy, replaced
largely by what would come to be known as the “three-tier system” of licensed
barrooms stocked with liquor provided by licensed wholesalers, produced by
licensed manufacturers—all subject to both heavy government regulation and
taxes.

II. Current Regulatory Framework

A. Three-Tier System

Today, the alcohol industry is regulated at the federal, state, and local levels. While
the passage of the 21st Amendment did not prescribe any particular regulatory
scheme, both the federal government and many of the states subsequently adopted

44
similar regulatory regimes designed to address the main concerns surrounding the
alcohol industry at the time: safety, taxation, and monopoly. First, as a result of the
thousands of injuries and deaths to occur during Prohibition, an emphasis was
placed on ensuring all alcohol products would be safe for consumption. Second, the
framework promoted the orderly collection of revenue by the federal and state
governments through liquor excise taxes. Third, in response to the prevalence of
tied-houses where retailers were forced to purchase the products of particular
producers or were owned outright by those producers (often tied up in organized
crime), certain fair business practices were mandated and specific non-competitive
activities prohibited. All of these goals were pursued through implementation of
the three-tier system, which is still in place throughout most of the United States
today.

The three-tier system requires alcohol to be sold at three separate market levels
(“tiers”) and prohibits certain ownership interests and business activities among the
various tiers:

x Tier 1: Manufacturers/Suppliers
x Tier 2: Wholesalers
x Tier 3: Retailers

Most states adhere to the general framework of the three-tier system. While specific

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requirements vary from state to state, businesses operating at each tier generally
must be separately licensed and owned independent of one another. Restrictions
often prohibit one tier from having financial interests in or influence over another
tier. The separation of the tiers seeks to eliminate the “tied-house” practices that

45
 dominated the liquor industry before Prohibition, in which taverns or bars were
required to purchase products from a single manufacturer. The current three-tier
system creates a series of checks and balances to enforce provisions from one tier
to another, and helps to manage alcohol availability, quality and safety, price, and
promotional practices.

B. Federal Regulation

Federal Alcohol Administration Act of 1935. Codified in 27 U.S. Code, Chapter 8

and known more commonly as the FAA Act, the Federal Alcohol Administration
Act of 1935 was signed into law by President Roosevelt to regulate the alcohol
industry in the wake of the 21st Amendment. Above all, the FAA Act was designed
to protect the safety of consumers, to ensure the integrity of the industry, and
prevent unfair trade practices. As outlined on the website of the Alcohol and
Tobacco Tax and Trade Bureau, a modern division of the Department of Treasury
more commonly known as the “TTB”:

x To ensure the integrity of the industry, the FAA Act includes provisions to:
o Require a permit for those who engage in the business as a producer,
importer, or wholesaler of alcohol beverages;
o Issue, suspend, and revoke such permits; and
o Prevent persons who are not likely to operate in accordance with the
law from entering the trade.
x To protect consumers, FAA Act provisions:
o Ensure that labeling and advertising of alcohol beverages provide
adequate information concerning the identity and quality of the
product;
o Require that alcohol beverage bottlers and importers have an
approved certificate of label approval (“COLA”) or an exemption
certificate before any alcohol product may be sold in the United
States; and
o Prevent misleading labeling or advertising that may result in
consumer deception regarding the product.
x The FAA Act’s provisions crafted to preclude unfair trade practices:
o Regulate the marketing promotional practices concerning the sale of
alcohol beverages; and
o Regulate practices such as exclusive outlets, tied-house
arrangements, commercial bribery, and consignment sales.

The TTB’s implementation of the FAA Act includes supervising all federal tax
revenues, permits, licenses, tax audits, trade investigations, and labels related to
alcohol products. The lasting effects of Prohibition continue to influence alcohol
policy today, as shown by the TTB’s stated mission:

x Collect the taxes on alcohol, tobacco, firearms, and ammunition;

x Protect the consumer by ensuring the integrity of alcohol products; and

46
 x Prevent unfair and unlawful market activity for alcohol and tobacco
products.

Registration & Permits. Applicants looking to operate a winery or distillery must

file for a Federal Basic Permit, while those hoping to operate a brewery must apply
for a Brewer’s Notice. Both applications can be completed electronically through
the TTB’s “Permits Online” system, but generally take several months to fully
process. While individuals of legal drinking age may produce wine or beer at home
for personal or family use, federal law strictly prohibits individuals from producing
distilled spirits at home (See 26 U.S.C. §§ 5042(a)(2), 5053(e)). Producing distilled
spirits at any place other than a TTB-qualified distilled spirits plant exposes you to
federal charges for serious offenses including felonies punishable by up to 5 years
in prison, a fine of up to $10,000, or both, for each offense. (See 26 U.S.C. § 5601).

Labeling. The TTB’s responsibility for the regulation and approval of labels on the
packaging of alcohol products requires that every product introduced into interstate
commerce have a COLA. The goal of the regulations is to ensure that consumers
are provided with adequate information as to the identity and quality of the product,
as well as to prevent consumer deception more generally. To that end, a product
evaluation is required for many alcohol products to determine whether a label
identifies the product adequately and fairly, so as not to mislead the consumer.
Among other things, the evaluation aims to confirm no beverage contains a
prohibited ingredient and to ensure the proper tax and product classifications are
designated.

Although not regulated by the TTB and not specific to liquor law, a manufacturer
must be mindful of trademark law when considering the labeling and packaging of
a product—the house brand and product names can be among the most important
assets of a brewery, winery, or distillery. A trademark is any word, phrase, symbol,
design, or other device that identifies or distinguishes the goods of one party from
those of another party. Trademark rights are generally based upon the use of the
mark in commerce; however, the rights are typically not extended solely by virtue
of use by someone operating under a TTB license. In order to adequately protect a
trademark, the mark must be registered.

A state trademark registration gives the applicant statewide rights, meaning that
exclusive use of the mark can be enforced within state borders. In general, use at
the time of filing is required for state trademark registration. Federal trademark
registration grants nationwide rights, allowing a trademark owner the ability to
enforce rights in a mark even in areas where the mark has not been used by the
owner. The mark does not have to be in use at the time of filing a federal
registration; applicants can file with an intent-to-use prior to actual use of a mark.
Priority of rights in a mark date back to the original filing of a federal application.
Therefore, manufacturers should file a federal trademark application while in the
planning stages of building their business or launching a new product they desire
to protect.

47
When considering whether a trademark can be registered or has been infringed, the
United States Patent and Trademark Office (“USPTO”) and courts, as applicable,
consider the likelihood of consumer confusion. Among other factors, the following
will be considered in measuring the potential for confusion:

x Strength of the original mark;

x Similarity of the two marks;
x Similarity of the goods or services;
x Similarity of trade channels;
x Number and nature of similar marks on similar goods or services;
x Length of time and conditions under which there has been a concurrent use
without consumer confusion; and
x Actual consumer confusion.

In assessing the strength of a mark, the courts and USPTO will consider where it
falls on the “spectrum of distinctiveness.” Merely descriptive or generic marks are
inherently less distinctive than arbitrary or fanciful marks, and so they are afforded
less protection.

Taxation. The TTB also oversees collection of the appropriate federal tax revenue
from alcoholic beverages. Beer, wine, and spirits are taxed at differing rates as
defined by statute. Beer produced for commercial use is governed by 26 U.S.C. §
5051, which imposes a tax on all beer “brewed or produced, and removed for
consumption or sale, within the United States, or imported into the United States.”
All wine and distilled spirits produced in or imported to the United States is taxed
according to 26 U.S.C. § 5041 and 26 U.S.C. § 5001 respectively.

Common Compliance Issues. TTB agents will periodically perform audits of

suppliers in order to ensure compliance with relevant regulations. According to the
TTB, the most common audit issues found during TTB visits relate to:

x Recordkeeping
o A brewer is required to maintain daily records of operations (27
C.F.R. § 25.292), records of balling* and alcohol content (27 C.F.R.
§ 25.293), inventory records (27 C.F.R. § 25.294), records of
unsalable beer (27 C.F.R. § 25.295), and records of beer concentrate
(27 C.F.R. § 25.296) for at least three years.
ƒ *Balling means the percent by weight of dissolved solids at
60° F present in wort and beer, usually determined by a
balling saccharometer.

48
 o Bonded wineries are required to maintain records of winemaking
materials received and used, bulk wine records, bottling records,
transfer in bond records, and taxpaid removal records, among other
things (27 C.F.R. §§ 24.300-.323).
x Production and Inventory
o Suppliers must adequately track all products they handle, ensuring
the proper amount of tax is paid.
x Reporting and Tax Payment
o Brewers and bonded wineries must periodically file operational
reports; the frequency of reports depends on the amount of excise
tax liability.
o Reporting requirements for distillers vary according to the type of
permit held by the operator.
o Frequency of excise tax payments varies from operation to
operation.
x Basic Permit, Registration, and Bond Requirements
o Generally speaking, all suppliers must ensure that their paperwork
filed with the TTB is current and licenses are up to date.
o Certain business changes must be registered with the TTB – such as
a change in location, mailing address, business name, or ownership
– through filing an amended permit application.
o Brewers must file a new brewer’s bond or a continuation certificate
once every four years.
o Wineries should periodically review their bond coverage to ensure
it is providing adequate coverage based on sales volume.
x Penalties
o The IRS and TTB can assert a variety of penalties against non-
compliant industry members, which can include suspension or
revocation of permits and licenses, as well as fines and fees, and
even jail time.
o Under 26 U.S.C. § 5672 a brewer’s failure to maintain or disclose
records requested by the TTB, can result in a fine of up to $1,000
per incident or up to a year in prison, or both.
o Under present law, if you fail to timely file your tax return you may
have to pay a penalty equal to 5% of the tax not paid by the due date
for each month or part of a month that the return is late. This penalty
cannot be more than 25% of the tax. Additionally, interest,
compounded daily, is charged on any unpaid tax or penalty as
prescribed by law.

C. State and Local Regulation

Section 2 of the 21st Amendment left to the states how each would regulate the
“transportation, importation or possession” of alcohol within its borders. States
have opted for one of three general types of regulatory schemes placing different
levels and methods of control on the three tiers of the system. State law generally

49
prescribes either: (1) a “control” system for alcohol where the state itself controls
the distribution and sale of alcohol; (2) a “license” system where the state licenses
individuals to act in these capacities; or (3) a hybrid system where particular aspects
of sale and distribution are controlled/operated by the state and other aspects are
operated by independent companies or individuals licensed by the state. Currently,
seventeen states and certain counties in Maryland have opted for a “control” system
over at least certain parts of the distribution and sale of alcohol in their state. This
will be most readily apparent in states where consumer facing retail stores are
operated by the state’s alcohol beverage control (“ABC”) authority. In Virginia, for
instance, liquor stores are actually called “VAABC” stores and will reflect such a
label on the sign above their doors.

The most important thing to know about state liquor law is that, before doing any
business in a particular state, you must become well versed in the alcohol laws
there. Although states generally share some similarities in their regulatory
schemes—such as the requirement that independent producers, wholesalers, and
retailers be licensed/permitted, and that certain transactions and ownership interests
among the different tiers are prohibited or severely restricted—you can never
assume you know how something works in one state because you have dealt with
familiar concepts in another. More generally, you should also not expect state rules
to seem logical or small-business friendly. Most rules date very far back and contain
protections (often for wholesalers who were once considered the “the little guy” by
comparison with enormous macro level liquor manufacturers) that no longer seem
to make sense in today’s market and the meteoric rise of craft producers. While
laws in some states are far behind the times, others have been updated and are more
relevant, creating a favorable climate for growth of the craft beverage industry. As
the craft industry has grown in size and popularity it has earned more clout with
state legislatures, catalyzing further modernization of laws and allowing for further
growth of the industry and competition among states. If you see a booming craft
beverage industry in a state, you can often assume its laws have been modernized
to be (or were from the beginning) more flexible to allow for growth of small liquor
producers.

50
 Gun Law in Maryland
Submitted by Edward N. Hershon

51
52
 Gun Laws in Maryland
Presented by Edward N. Hershon, Esquire
Hershon Legal, LLC
420-I Chinquapin Round Road
Annapolis, MD 21401
(443) 926-1702
ed@HershonLegal.com
www.HershonLegal.com

A. Firearms and the Constitution

The Second Amendment – “A well regulated militia, being necessary to the security of a
free state, the right of the people to keep and bear arms, shall not be infringed.”
This Amendment to the Constitution has been the source of much litigation in recent years.
The most notable of these recent cases was District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct.
2783 (2008) and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020 (2010).
Heller involved a District of Columbia statute (Firearms Control Regulations Act of 1975)
which restricted firearms ownership and also required that all firearms including rifles and shotguns
to be kept “unloaded and disassembled or bound by a trigger lock”. The Supreme Court held in
Heller that the Second Amendment protects and individual’s right to possess a firearm unconnected
with service in a militia and to use that firearm for traditionally lawful purposes such as self-
defense.
Since Heller concerned a District of Columbia statute and the District is not a state, it is a
Federal enclave, the 14th Amendment did not apply and the Court did not address the applicability
of its decision to the states.
Similar to the Heller facts, in McDonald, the City of Chicago had instituted a ban on the
registration of handguns after 1982. Mr. McDonald was a city resident who legally owned shotguns
but wanted to purchase and possess a handgun due to the increasing crime in his neighborhood and
the fact that his home had been robbed five times. Due to the ban that the City of Chicago instituted,
he was prohibited from purchasing a handgun.
Justice Alito, writing for the majority, held that the Due Process Clause of the Fourteenth
Amendment incorporated the Second Amendment rights recognized in the Heller decision to the
states. Thus, Heller, was now recognized as applying to the states.

53
 Heller was very specific regarding its applicability to a resident within his/her own home.
However, both the Heller and McDonald Courts failed to address, and left the door open to the
issue regarding the Second Amendment’s applicability outside the home. To date, this has not been
addressed by any subsequent Supreme Court decisions.
Post Heller and McDonald
As mentioned above, while the Supreme Court has ruled that owning and possessing of a
handgun within one’s own residence is a constitutional right, there remains much disagreement
around the country regarding whether Heller and McDonald extend beyond the home.
In Wrenn v. District of Columbia, 808 F.3d 81 (2015), The D.C. Circuit tackled the issue
of whether a person can carry a handgun outside the home. The District of Columbia, which had
fashioned its concealed carry permit law from its Maryland cousin, required a “good reason”
(Maryland’s rule is a “good and substantial” reason) to be granted a permit.
The Wrenn panel held that the right to keep and bear arms includes the right not only within
the home, but also to bear arms outside the home. Although D.C.’s “good reason” was based on
Maryland’s “good and substantial”, the Maryland law is still a requirement even though D.C.’s law
was struck down.
On April 29, 2019, the Fourth Circuit Court of Appeals in Malpasso v. Pallozzi, Case No.
18-2377 in unpublished decision upheld Maryland’s good and substantial law to obtain a wear and
carry permit. This will most likely set up an appeal to the Supreme Court citing the differing
circuits’ rulings. However, for the foreseeable future Maryland still requires a “good and
substantial” reason to be granted a “wear and carry” permit to carry a permit outside the home.
The Supreme Court has recently decided to take another “gun” case (it is notable that the
Supreme Court has taken any “gun” cases since McDonald in 2010). This case, New York State
Rife and Pistol Association v. City of New York will be heard by the Court, in the fall of 2019. In
this case, which is presented on a very narrow issue, the Court will be ruling on constitutionality of
a New York City ordinance which restricts gun owners from transporting their firearms outside of
the New York City for any reason. It specifically limits that they can only transport their firearms
to a firing range or gunsmith within the city limits. There are only 7 legally regulated firing ranges
in the city for an approximate population of 8 million people. The restriction even applies to
individuals who own property outside of the City, but still in the State of New York. While this
case is on appeal to the Supreme Court on such a narrow issue (it is believed that New York City
is the only entity that has such a restrictive law on its books), it will be interesting to see how the

54
Court treats this case since it will be the first gun case since the addition of Justice’s Gorsuch and
Kavanaugh.

B. State Firearms Laws

Maryland Handgun Purchases

In 2013, Maryland, enacted the Firearms Safety Act of 2013, which brought much change
to the landscape of firearms laws in Maryland. Prior to effective date of this law, October 1, 2013,
there were no requirements for any type of licensing to purchase a regulated handgun in the state.
However, the Firearms Safety Act created a new Handgun Qualification License that is a
prerequisite to obtain prior to the purchase of a handgun.
In order to obtain a Handgun Qualification License or “HQL”, an individual is required to
take a four-hour training class taught by a Maryland State Police approved instructor and fire at
least 1 round (bullet) of a handgun. The applicant then would apply to the Maryland State Police
for the HQL and as so long as they are not a “prohibited person” from owning a firearm, they would
be granted their HQL. Despite obtaining a HQL, every person who purchases a handgun in
Maryland still has to complete a Form 77R and go through a NICS check. There is a 1 week waiting
period prior to being allowed to taking possession of the handgun.
In order to purchase a handgun in Maryland, whether it is a new or used firearm, all sales
must be completed by a Federal Firearms Licensed Dealer (“FFL”). There is no similar requirement
for long guns in Maryland. There was legislation that was introduced this past legislative session
(2019) in the Maryland General Assembly to regulate long guns in a similar fashion as handguns,
but the Senate and House were unable to work out the differences in their two versions before Sine
Die.
The requirements and disqualifying issues for ownership and possession of either a
handgun or long gun are listed below under Section C.

C. What Guns are Legal and Who Can Buy, Rent, Transfer or Loan
Them (Maryland)
In order to purchase and possess a firearm in the State of Maryland, you may not be a
prohibited person. Must be over the Age of 21 – Exceptions apply
a. A member of the armed forces and is performing official duties

55
 b. Required to possess a regulated firearm for employment purposes (Police
Officer, Security Guard, Armored Car Driver)
c. Temporary transfer (if under the supervision of another who is at least 21)
d. Transfer by inheritance of title (and not in possession)
e. Temporary transfer in participating in marksmanship training of a
recognized organization and under the supervision of a qualified instructor
f. Possession of a firearm for self-defense or the defense of others against a
trespasser into the residence of another person in possession

2) May not possess if you are:

a. Habitual Drunkard
b. Addicted to or a habitual user of CDS
c. A fugitive from justice
d. Has been convicted of a:
i. A crime of violence
ii. Any violation classified as a felony in Maryland
iii. Any violation classified as a misdemeanor in this State that carries a
statutory penalty of more than 2 years; or
iv. Any violation classified as a common law offense where the person
received a term of imprisonment of more than 2 years.
e. Has received probation before judgment for a crime of violence, except for
assault in the second degree or a case in which a person received probation
before judgment for a disqualifying crime and that crime was expunged under
Criminal Procedure Article, Title 10, Section 1, Annotated Code of Maryland;
f. Has received probation before judgment for a domestically related crime, as
defined in Criminal Procedure Article, Section 6-233, Annotated Code of
Maryland, except when the crime was expunged under Criminal Procedure
Article 10, Subtitle 1, Annotated Code of Maryland.
g. Has been found not criminally responsible under Criminal Procedure Article,
Section 3-110, Annotated Code of Maryland
h. Has been found incompetent to stand trial under Criminal Procedure Article,
Section 3-106
i. Has a mental health disorder and a history of violent behavior
j. Has been voluntarily admitted for more than 30 consecutive days to a mental
health facility
k. Is under the protection of a guardian appointed by a court under the Estates of
Trusts Article, Section 13-201(c) or 13-705 Annotated Code of Maryland, unless
the appointment of a guardian was solely a result of a physical disability
l. Is a respondent against whom a current non ex parte civil protection order has
been entered under Family Law Article, Section 4-506, Annotated Code of
Maryland

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 m. Is a respondent against whom an order for protection, as defined in Family Law
Article, Section 4-508.1, Annotated Code of Maryland has been issued by a court
of another state or a Native American tribe and is in effect;
n. Is younger than 30 years old and has been adjudicated delinquent by a juvenile
court for committing an act that would be
i. A crime of violence if committed by an adult
ii. A violation classified as a felony in this State if committed by an adult;
or
iii. A violation classified as a misdemeanor in this State that carries a
statutory penalty of more than 2 years if committed by an adult; or
o. Is prohibited from otherwise possessing a firearm by federal or state law.

D. Sales and Transfers

For handguns, all sales and transfers must be done through a Federal Firearms
Licensed Dealer (“FFL”) and the transferee must go through a National Instant Criminal
Background Check System (“NICS”) check to determine if they are a non-prohibited
person (see the disqualifying factors above in Section C).
For long guns there is no requirement in Maryland that the transfer or sale of a long
gun be through a FFL at this time. Despite this, it is notable that both houses of the
Maryland General Assembly introduced legislation this past year (2019) to impose a Long
Gun Qualification License (“LGLQ”) similar to that for handguns from the Firearms Safety
Act of 2013. This legislation would have also imposed a training requirement for all
prospective applicants. Further, the legislation would also require all sales and transfers of
a long gun take place through a FFL as do all handguns. This was introduced despite
assurances in 2013 that such legislation would not be introduced and passed.
The U.S. House of Representatives this year have also passed H.R. 8 and H.R. 1112
which would criminalize the private transfer of firearms (H.R. 8) and eliminate certain
provisions which now permit the FFL to sell at their discretion to a purchaser after a 3 day
waiting period if the NICS check is not complete. This legislation would permit the Federal
government to slow down the NICS check or delay it indefinitely thus, preventing the
purchaser from obtaining the firearm. This legislation has very little likelihood of passing
the Senate.

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E. Machine Guns, Silencers and Other Title II Items
Bump stocks – By regulations promulgated in 2018, all bump stocks were made
illegal to possess on March 26, 2019. The penalty for possession of a bump stock is a
$250,000 fine and up to 10 years in prison. The regulations require that the bump stocks
be either destroyed or turned into the police. Since it is now illegal to possess a bump
stock, even turning one into the police, may result in a fine and imprisonment. Destruction
of the bump stock would be the most logical way to dispose of it at present. There are
currently at least five federal lawsuits pending on this ban.
Machine Gun - A machine gun is defined as a weapon designed to shoot,
automatically, more than one shot without manual reloading by a single function of the
trigger. Machine guns have been illegal to possess since 1934 when the National Firearms
Act went into effect. There are exceptions to the ban on machine guns. A person can be
designated a collector and may obtain certain machine guns for collector’s purposes upon
the payment of a special tax stamp from the Bureau of Alcohol, Tobacco, Firearms and
Explosives. These firearms are strictly regulated and generally not available to the general
public.
Silencers – Silencers or “suppressors” are defined as any device for silencing,
muffling, or diminishing the report of a portable firearm. It is not illegal to own a silencer
under federal law. State law differs, depending upon the state. Maryland does not prohibit
the ownership of silencers. You will have to pay a tax stamp when you first buy the
silencer. The requirements for the purchase of a silencer in Maryland are the same as those
of a handgun.

F. Wear & Carry and Self-Defense: Top Issues

Wear and Carry Permits
Maryland is one of the most restrictive states in the nation in order to obtain a “wear and
carry” permit. Please note that in Maryland it is “wear and carry” and not “concealed carry”. In
Maryland a permit holder can conceivably “open carry” which is to wear it on the outside of an
article of clothing in plain sight. There are two very good reasons not to open carry: First, if you
do elect to carry a firearm, open carrying that firearm gives away the tactical advantage of carrying

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concealed. In essence, you make yourself a target for potential threats. The second reason is more
obvious, in a gun averse society such as Maryland, if people were to see you carrying openly, they
would most likely call the police and you would be staring down the barrels of several police
officers’ weapons. This would be foolish as it might result in the accidental discharge of a firearm,
yours or the police officers.
As alluded to previously, Maryland requires a person who wishes to obtain a wear and
carry permit to have a “good and substantial” reason for obtaining a permit. Maryland Ann. Code,
Public Safety Art. 5-306(a)(6)(ii) a handgun permit will be based upon an investigation that
the applicant has a “good and substantial reason to wear, carry, or transport a handgun such
as a finding that the permit is necessary as a reasonable precaution against apprehended
danger.”
The term “apprehended danger” has not been defined in statute or regulation, but
in Scherr v. Handgun Permit Review Board, 880 A.2d 1137 (Md. Ct. Spec. App. 2005), an
MSP Sergeant who determined the appellant’s application stated that he would only issue
a permit if the applicant “faced a level of danger that was higher than the level the average
person would encounter.” Id. at 1148 and is more than his/her personal anxiety (Maryland
State Police Standard Operating Procedure 29-15-007 (.03).
Like the term, “apprehended danger”, the Maryland statute is also silent on what constitutes
a “good and substantial reason to obtain a wear and carry permit. The Maryland State Police, under
their Standard Operating Procedure 29-15-007 (2015) the following items would entitle a person
to obtain a wear and carry permit as a “good and substantial” reason:
a. Business
b. Personal Protection
c. Police Officer – Active
d. Police Officer – Retired
e. Security Guard
f. Private Detective
g. Armored Car Driver
h. Special Police Officer
i. Bail Bondsman
j. Correctional Officer
k. Private Security Officer

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 This list is not part of any statute, code or regulation, but the MSP’s own internal
operating procedures (29-15-007) and is subject to different interpretations. There was a
recent decision at the Maryland Office of Administrative Hearings which stated that an
applicant for a wear and carry permit did not apply for a “personal protection permit”.
There is no such classification of permits. Maryland Code Ann., Public Safety Article, §
5-303, states “[a] person shall have a permit issued under this subtitle before the person
carries, wears, or transports a handgun.”
If a permit is issued by the MSP, more likely than not, that permit will contain
restrictions. The most common reason for being granted a permit is business operations.
The MSP will grant a permit to a business owner or an authorized employee of a business
that desires its employees to obtain a permit. While the statute provides that the Secretary
of the State Police may impose restrictions, it is not a mandatory requirement. However,
despite the fact that the Secretary is under no duty to impose restrictions (See, MD. Code
Ann., Public Safety Article §5-307(b) “The Secretary may limit the geographic area,
circumstances, or times of the day, week, month, or year in which a permit is effective.”),
it has been apparent by action of the MSP, that for almost every permit issued under the
business classification, restrictions are provided with a restriction.
Other than permits for “personal protection” or for law enforcement almost every
permit is granted with a restriction. Permits that have been issued on the grounds of
business purposes will have a restriction that reads, “Valid only while conducting business
as XYZ Company”. Due to this language, which is vague and ambiguous, there are very
real dangers to a permit holder being detained and arrested for carrying outside of their
restrictions.
The main issue here for most permit holders is what is considered “conducting
business”? The problem is that on the side of the road during a traffic stop, the realistic
burden is on the permit holder to establish to law enforcement that the permit holder is
within their restrictions. This may force the permit holder to waive their Fifth Amendment
Right to not incriminate one’s self. If the permit holder asserts their Fifth Amendment
right to not incriminate themselves, that will most likely give the law enforcement officer

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probable cause to arrest and take into custody the permit holder and the confiscation of the
firearm.
How to avoid this conundrum is not simple. The best thing is to have your client
seek a modification to their permit to remove all restrictions from the permit. This will not
be an easy feat as the MSP is not known for their willing reversals of their decisions. At
present, Maryland law has what is known as the Maryland Handgun Permit Review Board.
This is a review board that consists of five citizens appointed by the Governor for rotating
terms. The Board is charged with determining whether the Maryland State Police have
issued or denied permits and restrictions within the law.
The 2019 Maryland General Assembly passed legislation by both houses that
would abolish the Handgun Permit Review Board. While both houses passed this
legislation, at the time of this writing, the Governor has not yet signed, vetoed or let this
law go into effect without his signature.
If this law goes into effect, all appeals of the MSP decisions will then be heard at
the Office of Administrative Hearings (“OAH”) in Hunt Valley, MD. While the
proponents of the law that authorized appeals to be heard at the OAH, stated that no
attorney is necessary to handle these appeals, it would be foolhardy for an individual to
represent themselves pro se. These appeals are de novo and new evidence can be
introduced by either the MSP or the appellant. Appeals must be brought within 30 days of
the decision by the MSP and the OAH has to hear all appeals within 60 days. Decisions
by the OAH must be issued within 90 days from the date of the last hearing on the matter.
Where You Can and Cannot Carry
If you or your client is lucky enough to be granted a wear and carry permit, there
are limitations in the law that establish where you cannot carry. These are very important
to understand because if a permit holder violates these prohibitions, then their right to carry
will be revoked as well as criminal charges be brought.
A wear and carry permit holder will not be able to carry in any federal, state or local
public buildings. Permit holders are also not allowed to wear, carry or transport a firearm
onto state parks and forests. Also, it should be noted that due to the large number of

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military installations in Maryland, you should also advise your clients that bringing a
firearm on to a federal reservation (military base, post or field) is also not permitted. With
regard to federal contractors who are not on-site at a federal installation, the permit holder
should check with the individual facility to determine if they permit the carrying of firearms
in the workplace.
It is important to note that it is illegal to wear, carry or transport a firearm on public
school property. Your clients should understand that even if they get pulled over and are
legally carrying their firearm, the minute they step onto or drive onto public school property
(even at the direction of law enforcement), they are in violation of their permit and risk
arrest. So, advice your clients accordingly, if they have a wear and carry permit and get
pulled over, make sure they do not stop on public school grounds. This prohibition does
not extend to private school property.
G. The Difference between Wear, Carry & Transport
In order to “wear” a handgun in Maryland, you will need a “wear and carry” permit. To
“carry” a handgun, unless you have the gun on your person (wearing), the gun must be unloaded
and the ammunition be stored separately from the firearm. Transporting a firearm means that you
are taking the firearm to another location.
As indicated at the very beginning of this, you may wear, carry or transport a firearm
anywhere on your own property (Heller). However, in Maryland, you may not carry or transport a
firearm unless:
a) To and from a legal purchase or sale;
b) To and from a gun repair shop;
c) To and from the actual residences of the person;
d) To and from the person’s home and business (if the person substantially owns and
operates a business);
e) To and from a target shoot or practice;
f) To and from a firearms safety class;
g) To and from a gun exhibition by a gun collector.

The issue where most people may get into trouble is if they “stop” anywhere along the way.
Technically speaking, if a person who is transporting a weapon who does not posses a wear and
carry permit, stops for gas or to get food, they are in breach of the law. It is important to counsel
your clients on this so that they know, legally, the transport is to and from without a deviating stops.

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 Adult Entertainment Law
Submitted by Thomas J. Maronick Jr.

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§4–605.

(a)(1)Exceptasprovidedinparagraph(2)ofthissubsection,alocallicensingboardshall
revokealicenseif,afterahearingunder§4–603(b)ofthissubtitle,anactivitylistedinthis
sectionisfoundtohaveoccurredonthelicensedpremises.

(2)Thelicenseofapersonmaynotberevokedunderparagraph(1)ofthissubsectionif:

(i)thepersonoperatesatheater,aconcerthall,anartcenter,amuseum,orasimilar
establishmentthatisprimarilydevotedtotheartsortheatricalperformances;and

(ii)theperformancesexpressmattersofseriousliterary,artistic,scientific,orpolitical
value.

(b)Anindividualmaynot:

(1)beemployedorusedinthesaleorserviceofalcoholicbeveragesinoronthelicensed
premiseswhiletheindividualisunclothedorinattire,costume,orclothingsoastoexposeto
viewanyportionofthefemalebreastbelowthetopoftheareolaoranyportionofthepubic
hair,anus,cleftofthebuttocks,vulva,orgenitals;

(2)beemployedoractasahostessoractinasimilarcapacitytominglewiththepatrons
whilethehostessorindividualactinginasimilarcapacityisunclothedorinattire,costume,or
clothingdescribedinitem(1)ofthissubsection;

(3)encourageorallowanindividualonthelicensedpremisestocaressorfondlethe
breasts,buttocks,anus,orgenitalsofanotherindividual;or

(4)allowanemployeeorotherindividualtowearoruseadeviceorcoveringexposedto
viewthatsimulatesanyportionofthebreast,genitals,anus,orpubichair.

(c)Withrespecttoentertainmentprovided,apersonmaynot:


347
(1)allowanindividualtoperformanactoforactthatsimulates:

(i)sexualintercourse,masturbation,sodomy,bestiality,oralcopulation,flagellation,or
asexualactthatisprohibitedbylaw;

(ii)thecaressingorfondlingofthebreast,buttocks,anus,orgenitals;or

(iii)thedisplayofthepubichair,anus,vulva,orgenitals;

(2)subjecttoitem(1)ofthissubsection,allowanentertainerwhosebreastsorbuttocks
areexposedtoperformcloserthan6feetfromthenearestpatron;or

(3)allowanindividualtouseanartificialdeviceorinanimateobjecttodepict,perform,or
simulateanactivityprohibitedunderitem(1)ofthissubsection.

(d)Apersonmaynotshowamotionpicture,astillpicture,anelectronicreproduction,or
othervisualreproductiondepicting:

(1)anactorasimulatedactofsexualintercourse,masturbation,sodomy,bestiality,oral
copulation,flagellation,orasexualactthatisprohibitedbylaw;

(2)anindividualbeingcaressedorfondledonthebreast,buttocks,anus,orgenitals;

(3)asceneinwhichanindividualdisplaysthevulva,anus,orgenitals;or

(4)asceneinwhichanartificialdeviceorinanimateobjectisusedtodepict,oradrawing
isusedtoportray,aprohibitedactdescribedinthissubsection.

(e)Apersonmaynotallowanindividualtoremaininoronthelicensedpremiseswho
exposestopublicviewanyportionoftheindividual’sgenitalsoranus.


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(f)Thissectiondoesnotallowanyconductorformofattireprohibitedbyanyotherstatute,
ordinance,rule,orregulation.

§11–102.

(a)Apersonmaynotknowinglyselloroffertoselltoaminor:

(1)apicture,photograph,drawing,sculpture,motionpicture,film,orothervisual
representationorimageofanindividualorportionofthehumanbodythatdepicts
sadomasochisticabuse,sexualconduct,orsexualexcitement;

(2)abook,magazine,paperback,pamphlet,orotherwrittenorprintedmatterhowever
reproduced,thatcontains:

(i)anymatterenumeratedinitem(1)ofthissection;

(ii)obscenematerial;or

(iii)explicitverbaldescriptionsornarrativeaccountsofsadomasochisticabuse,sexual
conduct,orsexualexcitement;or

(3)asoundrecordingthatcontains:

(i)obscenematerial;or

(ii)explicitverbaldescriptionsornarrativeaccountsofsadomasochisticabuse,sexual
conduct,orsexualexcitement.

(b)Apersonwhoviolatesthissectionisguiltyofamisdemeanorandonconvictionissubject
toimprisonmentnotexceeding6monthsorafinenotexceeding$1,000orboth.
 

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§11–103.

(a)Thissectionappliestoamotionpictureshoworotherpresentation,whetheranimated
orlive,thatwhollyorpartly:

(1)depictsorreveals:

(i)sadomasochisticabuse;

(ii)sexualconduct;or

(iii)sexualexcitement;or

(2)includesobscenematerialorexplicitverbaldescriptionsornarrativeaccountsof
sexualconduct.

(b)Formonetaryconsiderationorothervaluablecommodityorservice,apersonmaynot
knowingly:

(1)exhibittoaminorwithoutthepresenceoftheminor’sparentorguardianamotion
pictureshoworotherpresentationdescribedinsubsection(a)ofthissection;

(2)selltoaminoranadmissionticketorothermeanstogainentrancetoamotionpicture
showorotherpresentationdescribedinsubsection(a)ofthissection;or

(3)admitaminorwithoutthepresenceoftheminor’sparentorguardiantopremises
whereamotionpictureshoworotherpresentationdescribedinsubsection(a)ofthissectionis
exhibited.


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(c)Apersonwhoviolatesthissectionisguiltyofamisdemeanorandonconvictionissubject
toimprisonmentnotexceeding6monthsorafinenotexceeding$1,000orboth.
§11–104.

(a)Apersonwhooperatesorisemployedinasales,cashier,ormanagerialcapacityina
retailestablishmentmaynotknowinglyallowaminorwithoutthepresenceoftheminor’s
parentorguardiantoenterorremainonanypremiseswhereanitemoractivitydetailedin§
11Ͳ102(a)ofthissubtitleisshown,displayed,ordepicted.

(b)Apersonwhoviolatesthissectionisguiltyofamisdemeanorandonconvictionissubject
toimprisonmentnotexceeding6monthsorafinenotexceeding$1,000orboth.

§11–104.1.

(a)InHarfordCountyandCecilCounty,apersonwhooperatesabookstoreor
entertainmentvenueinwhichanitemoractivitydescribedin§11Ͳ102or§11Ͳ103ofthis
subtitleisshown,displayed,ordepictedandconstitutesamajorityoftheitemsoractivities
offeredforsaleorrentalbythebookstoreorentertainmentvenue:

(1)shallrequireeachindividualuponenteringthepremisestodisplayadriver’slicenseor
anidentificationcardthatsubstantiatestheindividual’sage;and

(2)maynotknowinglyallowaminortoremainonthepremises.

(b)Apersonwhoviolatesthissectionisguiltyofamisdemeanorandonconvictionissubject
toimprisonmentnotexceeding6monthsorafinenotexceeding$1,000orboth.

 

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§11–105.

(a)Apersonmaynotknowinglydisplayforadvertisingpurposesapicture,photograph,
drawing,sculpture,orothervisualrepresentationorimageofanindividualorportionofa
humanbodythat:

(1)depictssadomasochisticabuse;

(2)depictssexualconduct;

(3)depictssexualexcitement;or

(4)containsaverbaldescriptionornarrativeaccountofsadomasochisticabuse,sexual
conduct,orsexualexcitement.

(b)Apersonmaynotknowinglyallowadisplaydescribedinsubsection(a)ofthissectionon
premisesthatthepersonowns,rents,ormanages.

(c)Apersonwhoviolatesthissectionisguiltyofamisdemeanorandonconvictionissubject
toimprisonmentnotexceeding6monthsorafinenotexceeding$1,000orboth.
§4–605.

(a)(1)Exceptasprovidedinparagraph(2)ofthissubsection,alocallicensingboardshall
revokealicenseif,afterahearingunder§4–603(b)ofthissubtitle,anactivitylistedinthis
sectionisfoundtohaveoccurredonthelicensedpremises.

(2)Thelicenseofapersonmaynotberevokedunderparagraph(1)ofthissubsectionif:

(i)thepersonoperatesatheater,aconcerthall,anartcenter,amuseum,orasimilar
establishmentthatisprimarilydevotedtotheartsortheatricalperformances;and


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(ii)theperformancesexpressmattersofseriousliterary,artistic,scientific,orpolitical
value.

(b)Anindividualmaynot:

(1)beemployedorusedinthesaleorserviceofalcoholicbeveragesinoronthelicensed
premiseswhiletheindividualisunclothedorinattire,costume,orclothingsoastoexposeto
viewanyportionofthefemalebreastbelowthetopoftheareolaoranyportionofthepubic
hair,anus,cleftofthebuttocks,vulva,orgenitals;

(2)beemployedoractasahostessoractinasimilarcapacitytominglewiththepatrons
whilethehostessorindividualactinginasimilarcapacityisunclothedorinattire,costume,or
clothingdescribedinitem(1)ofthissubsection;

(3)encourageorallowanindividualonthelicensedpremisestocaressorfondlethe
breasts,buttocks,anus,orgenitalsofanotherindividual;or

(4)allowanemployeeorotherindividualtowearoruseadeviceorcoveringexposedto
viewthatsimulatesanyportionofthebreast,genitals,anus,orpubichair.

(c)Withrespecttoentertainmentprovided,apersonmaynot:

(1)allowanindividualtoperformanactoforactthatsimulates:

(i)sexualintercourse,masturbation,sodomy,bestiality,oralcopulation,flagellation,or
asexualactthatisprohibitedbylaw;

(ii)thecaressingorfondlingofthebreast,buttocks,anus,orgenitals;or

(iii)thedisplayofthepubichair,anus,vulva,orgenitals;


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(2)subjecttoitem(1)ofthissubsection,allowanentertainerwhosebreastsorbuttocks
areexposedtoperformcloserthan6feetfromthenearestpatron;or

(3)allowanindividualtouseanartificialdeviceorinanimateobjecttodepict,perform,or
simulateanactivityprohibitedunderitem(1)ofthissubsection.

(d)Apersonmaynotshowamotionpicture,astillpicture,anelectronicreproduction,or
othervisualreproductiondepicting:

(1)anactorasimulatedactofsexualintercourse,masturbation,sodomy,bestiality,oral
copulation,flagellation,orasexualactthatisprohibitedbylaw;

(2)anindividualbeingcaressedorfondledonthebreast,buttocks,anus,orgenitals;

(3)asceneinwhichanindividualdisplaysthevulva,anus,orgenitals;or

(4)asceneinwhichanartificialdeviceorinanimateobjectisusedtodepict,oradrawing
isusedtoportray,aprohibitedactdescribedinthissubsection.

(e)Apersonmaynotallowanindividualtoremaininoronthelicensedpremiseswho
exposestopublicviewanyportionoftheindividual’sgenitalsoranus.

(f)Thissectiondoesnotallowanyconductorformofattireprohibitedbyanyotherstatute,
ordinance,rule,orregulation.

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Substance Abuse and Mental Health
in the Legal Industry
Submitted by Craig M. Kadish

391
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SUBSTANCE ABUSE IN THE LEGAL PROFESSION, HOW TO SPOT IT AND WHAT
TO DO ABOUT IT.

What is substance abuse?

Different people have different definitions, but the properly accepted definition is as follows:
“The use of any substance (alcohol, drugs, (legal and illegal)) Which through there or use
makes the attorneys life unmanageable to any degree”.

What does “unmanageable to any degree” mean?

 To some, unmanageability could be as simple as waking up with a hangover.

 To others, it could be needing a drink or a pill in the morning before tackling the day.

 To still others, it could be telling yourself you are not going to have a drink at happy hour

with your coworkers and then doing it anyway.

 Unfortunately, for some, unmanageability may come in the form of failing to meet both

personal and professional obligations.

However, substance-abuse does not require daily or even weekly use. In many Professionals who

are otherwise disciplined in their lives, substance-abuse may present itself as an occasional

binge. Unfortunately, the consequences of those binges may be severe.

Common Signs of Addiction:

Oftentimes, an attorney’s performance at work will be affected in the form of inability to focus,

not finishing tasks that have deadlines, poor work quality, inappropriate mood swings both in the

office and in the court room, and, in severe instances, failure to make appointments, to be

available for phone conferences, and even failure to appear in court.

Of course, professional difficulties are not always the first indicators and in fact, may be the last.

Initial indicators may be isolation from friends and family, ultimately resulting in the loss and or

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straining of interpersonal relationships. Marriages may become strained or even broken,

relationships with children may be lost, participation in professional and social groups may

become sporadic or nonexistent where they had existed prior to the onset of the problematic you

send abuse of substances.

Ironically, if an attorney develops financial challenges in their personal and/or professional lives,

the incident of drugs and/or alcohol abuse may increase there by resulting in and exacerbation of

the already existent financial challenges. Spotting these challenges may in many cases be more

difficult with an attorney if they have some financial resources or the appearance of financial

resources there by making it easier for them to mask their deteriorating situation. Thus, the

question arises as to how to identify and assist the attorney with these ongoing problems at an

early stage before the damage caused becomes expensive.

If the attorney works in a law firm with many other colleagues, the problem may be caught early

should those colleagues identify the behavior and the attorney may be confronted before any

long-lasting damage is done. However, if the attorney is a solo practitioner, (and according to the

latest statistics compiled by the American Bar Foundation, 48% of all attorneys in private

practice were solo practitioners), then the problem of substance-abuse may only be recognized

and or reported by attorneys with whom they come in contact or by the court. As a result,

substance abuse may go unreported and underdressed for months years or even decades.

What To Do About It? (Available Help):

Fortunately, the Maryland State Bar Association has a vibrant Lawyer Assistance Program. This

program has a mandate to “provide assistance to lawyers, judges, law students, the legal

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community and their families by offering assessment, referral, short term counseling, and

continued support to ensure long-term success.” www.MSBA.org

In addition to providing services for a broad range of personal and professional problems which

include many topics such as gambling, marital and family relationships in the legal community,

depression, etc., the Lawyer Assistance Program addresses alcohol and drug abuse as well as

prescription drug concerns. Indeed, if an individual has a concern about another law student,

lawyer or judge, the Lawyer Assistance Program accepts confidential referrals. The

confidentiality of these referrals is insured by both Federal and State law. Further, rule 8.3 of the

Maryland Lawyers’ Rules of Professional Conduct and Attorney Trust Accounts further protect

the confidentiality of any lawyers using that program. In addition to being completely

confidential, counseling provided by this program is free. The program has a network of

counselors throughout the state of Maryland. The program’s director is Jim Quinn, who can be

reached at 443-703-3041, or at his email address, jim@maba.org. His associate director is Lisa

Caplan, LCSW-C, who can be reached at 443-703-3042, or at her email, lisa@msba.org. There is

also a toll-free number: 1-888-388-5459.

Additionally, there is a 12 step support meeting for legal professionals every Thursday evening

from 6:30 p.m. through 7:30 p.m. at the MSBA in Baltimore City.

Statistics and Percentages:

So, what are the percentages? Obviously, it is difficult to calculate with definitive accuracy the

rates of substance abuse among any given population as much of it relies upon self-reporting.

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Especially in a community such as the legal profession, the use and abuse of alcohol and or drugs

may be under- reported as a result of the social stigma associated with such behavior. There are

also ancillary consequences such as loss of business, committee positions, teaching positions,

etc. should the attorney’s behavior be exposed. This being acknowledged, we are able through

statistical analysis of samplings of attorneys, obtain some fairly reliable numbers, and they are

quite disturbing for those in the legal community.

A study entitled “The Prevalence of Substance Use and Other Mental Health Concerns Among

American Attorneys” and published in the journal of Addiction Medicine February 2016

sampled nearly 13,000 licensed employed attorneys and found that, according to those attorneys

self-reporting:

 20.6% screen positive for hazardous, harmful and potentially alcohol dependent drinking.

In this Survey, men have a higher proportion of positive screens then did women.

 It should also be noted that younger participants who have been working in the legal

industry for a shorter duration or more likely to have higher percentages of abuse in their

population.

 According to the study, the alcohol abuse rate among practicing attorneys is

approximately double that of the general population.

1. While there is no definitive conclusion as to why the rate of alcohol abuse is so much higher

than the national norm, it is important to note that levels of depression, anxiety, and stress

among attorneys were extremely high, specifically 28%, 19%, and 23% for each of the

aforementioned, respective conditions. An additional conclusion of this study was that

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 attorneys exhibit problematic drinking at a higher rate than that of other professionals

surveyed. The study goes on to discuss that while the substance abuse among lawyers may

not have as immediate an impact on the recipient of the attorney services as with the

substance-abuse of a physician, the merits are real and longlasting. That reality may simply

make it less likely that the attorney would receive prompt attention, rehabilitation, and

counseling for that problem thereby allowing the problem to expand in magnitude as

compared to that of those in the medical profession.

What level of substance involvement and/or abuse can result in professional sanctions

such as reprimands, suspensions and potentially disbarment?

1. Drug Dealing:

a. Felony

b. Disbarment

2. Drug Possession

a. Reprimand, then Suspension

3. Drug Use

a. Monitoring

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 Legal Ethics
Submitted by Kurt E. Nachtman

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Ethics for the Business Contract Attorney
Kurt E. Nachtman Esq.
Eldridge and Nachtman, LLC
217 N. Charles St, 3rd Floor, Baltimore, MD 21201
www.enlawyers.com
443.559.4384
Standard Disclaimer
Any and all memes used today will be utilized under FAIR USE. They are used only
for teaching, scholarship, and legal research only. You may feel free to comment but
please do not distribute or redistribute these materials for anything other than their
educational purposes The opinions contained herein are expressing my opinion and
my opinion alone…except where citing case law.
Ethics in Business
Planning error #2
Fail to obtain client consent #8 (#3 in Canada)
Conflict of interest #9
Who is the client?
When representing the business, either at the start of the business or the continuation
of the entity you MUST recognize the client.
Individual
Business
Multiple businesses
Maryland Rule 19-301.7
a) Except as provided in section (b) of this Rule, an attorney shall not represent a
client if the representation involves a conflict of interest. A conflict of interest exists
if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the attorney's responsibilities to another client, a former client
or a third person or by a personal interest of the attorney.

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(b) Notwithstanding the existence of a conflict of interest under section (a) of this
Rule, an attorney may represent a client if:
(1) the attorney reasonably believes that the attorney will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against
another client represented by the attorney in the same litigation or other proceeding
before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Maryland Rule 19-301.8
These are the “we shouldn’t have to tell you but we do” Rules.
Don’t go into business with a client without informed consent and independent
counsel. Don’t solicit a gift from a client. Don’t use information gained from a client
to disadvantage of the client.
Don’t loan money to a client.
Attorney had a conflict of interest where he confessed a judgment in favor of his wife
against a corporation in which he was active, but delayed service even though the
corporation had offices in his building. Att'y Griev. Comm'n v. Hines, 366 Md. 277,
783 A.2d 656 (2001).

Md. Rule 19-301.9

Duties to former clients
Attorney-client relationship existed between defendant corporation's attorney and the
attorney during her time at another law office even if her work was limited to what
the corporation characterized as "administrative tasks;" the attorney performed tasks
on behalf of the patent in furtherance of its patent application sufficient to establish an
attorney-client relationship. Stratagene v. Invitrogen Corp., 225 F. Supp. 2d 608 (D.
Md. 2002).
Multiple businesses
Conflicts abound. Informed consent in writing.

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Usually don’t at intake. I send confirmatory email
Business breakup – You are arguably disqualified from representing anyone (there is
no case law in Maryland.
One instance where partners broke up and one asked me to help with a new business,
Informed consent, signed/dated, etc.
Best practices
Identify the client at intake
Startup business
Multiple partners?
Relationship with one or more partners before?
There is no attorney client relationship between partners in a business. The lawyer
must act on the best interest of the business, not a manager, partner, CEO, etc. See
Md. Rule 19-301.13
Business breakup?
You got a client – now get to work!
Beware the Boilerplate
Why we need boilerplates!
Saves time
Experience through contracts that work
Revise based upon experience.
Insurance carriers change their agreements regularly
DANGER
Maryland Rule 13-301.3 Diligence
“A lawyer shall act with reasonable diligence and promptness in representing a
client.”
And yes, that means you have to read and consider the boilerplate language.
Attorney Grievance Commission v. Chasnoff, 366 Md. 250 (2001).
Signature block
Make sure the signatures are at the end of the document.
Make sure they are captioned correctly

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Java Joe’s Coffee, LLC
BY:_________________
Title of signer
Correct representative capacity (agent, POA, etc)
Attorney’s Fees
The losing party shall pay the prevailing party’s attorney’s fees.
In any litigation between the parties regarding this Agreement, the losing party shall
pay to the prevailing party all reasonable expenses and court costs including
attorney’s fees incurred by the prevailing party. A party shall be considered the
prevailing party if:
(1) it initiated the litigation and substantially obtains the relief it sought, either
through a judgment or the losing party’s voluntary action before arbitration, trial, or
judgment;
(2) the other party withdraws its action without substantially obtaining the relief it
sought; or
(3) it did not initiate the litigation and judgment is entered for either party, but without
substantially granting the relief sought.

Arbitration
Who picks the arbiter?
From where? Lawyer, expert in the field?
Binding? Non-binding?
Appealable? DeNovo or Record?

Forum Selection/Choice of law

Any dispute between the parties shall be filed in the District or Circuit Court for
Baltimore County or the United States District Court of Maryland, Northern Division.

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Maryland follows the rule of lex loci contractus which means the law of the
jurisdiction in which the contract was made will govern its terms. See Cunningham v.
Feinberg, 441 Md. 310 (2015).
If you are certain of your applicable law, your law choice should say something like,
“This Agreement is made in the State of Maryland and shall be governed by its laws,
regardless and exclusive of conflict of law rules.”
Waiver
Should be called “Non-waiver” clause, but commonly referred to as a waiver clause.
This must always be examined.
The failure of the parties to enforcement any of the rights or remedies in this
agreement shall not constitute a waiver with regard to any remedies available for such
subsequent breach of this agreement (super short form as an example).
Chertkof v. Southland Corp., 280 Md. 1 (1977). LL accepted rent after breach by
tenant, waived right to forfeiture of leasehold.
But see Pumphrey v. Pelton, 205 Md. 662 (1968). Conduct of the parties can waive
the waiver provision.

Warranty
Warranty can be express or implied
Implied Warranty of Merchantability, for example – a particular good IS what it
purports to be.
LESSOR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS
OR IMPLIED, IN RESPECT OF THE EQUIPMENT INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR OF TITLE.
Indemnification

Many times in a contract parties would want an indemnification provision. One party
agrees to reimburse another party if there is a problem.

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Landlord/Tenant in a commercial situation

Other provisions
Countercopies
Amendments
Assignability?
Construction against drafter
Force Majeure clause
Merger/integration clause (ALL agreements?)

Other tips
Terms/Name consistency
Contract Drafting and Review for the Maryland Lawyer, 2nd Edition; Charles Borek,
JD, MBA, CPA; MSBA Publishing June 2015.

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continuing education needs.

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for a complete list of
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