Citaramanis v. Hallowell , 328 Md. 142 ( 1992 )

ROBERT M. BELL, Judge,

dissenting.

In Golt v. Phillips, 308 Md. 1, 4, 517 A.2d 328, 329 (1986), this Court addressed the question “Whether the leasing of an unlicensed dwelling unit constitutes an unfair or deceptive act under Maryland’s Consumer Protection Act (CPA)” (emphasis added). In an unanimous opinion, we answered in the affirmative. Noting that, “[i]n our view, advertising and renting unlicensed dwelling violates § 13-301(1), (2), and (3) [of the CPA],” ¹ id. at 10, 517 A.2d at 332, we held, relying on authority from Connecticut, see Conaway v. Prestia, 191 Conn. 484, 464 A.2d 847 (1983), that “[i]t is fully apparent... that Phillips Brothers’s actions in renting the unlicensed dwelling constitutes an unfair and deceptive trade practice under the CPA.” 308 Md. at 11, 517 A.2d at 333, citing Conaway v. Prestía, 191 Conn. 484, 464 A.2d 847 (1983). That case had recently held that the rental of apartments and the collecting of rents therefor without first obtaining proper licensing violated the Connecticut Unfair Trade Practice Act, which, like the Maryland CPA, prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” 308 Md. at 11, 517 A.2d at 333.

Having determined that the rental of an unlicensed dwelling was an unfair and deceptive trade practice under the CPA, this Court proceeded to determine what damages were recoverable under the CPA. We very clearly and, again, unanimously, expressed our agreement with the appellant’s argument “that he should recover (1) restitutionary damages — the rent paid for August, September and October....”² 308 Md. at 11-12, 517 Md. at 333. Recognizing that § 13-408 of the CPA provided for a private, purely compensatory and non-punitive, remedy³, we observed that “[I]n determining the damages due to the consumer, we must look only to his actual loss or injury caused by the unfair or deceptive trade practices.” 308 Md. at 12, 517 A.2d at 333. We then addressed what constitutes “actual loss or injury.” On that subject, we observed:

It is well settled in this State that if a statute requires a license for conducting a trade or business, and the statute is regulatory in the sense that it is for the protection of the public, an unlicensed person will not be able to enforce a contract within the provisions of that regulatory statute. Moreover, it is also well established that the unlicensed person will not be able to recover under quantum meruit, regardless of any unjust enrichment to the other party; to permit a recovery under quantum meruit would defeat the efficacy of the regulatory statute.

308 Md. at 12, 517 A.2d at 333 (citations omitted). We concluded that “if the license [required] is designed to protect the public, appellees are prohibited from benefiting from the illegal lease of the apartment.” 308 Md. at 13, 517 A.2d at 334.

Having determined that “the Baltimore City licensing requirement for multiple family dwellings is a model example of a public health and safety regulation,” this Court asserted:

It is evident that the license fee is charged to support the cost of inspections, and not to raise revenue. Therefore, Phillips Brothers may not retain any benefits from the unlicensed lease, and Golt may recover his full damages.

308 Md. at 13, 517 A.2d at 334 (emphasis supplied).

The majority characterizes the emphasized statement from Golt as the foundation for the petitioners’, the CitaraManises’, argument that their claim for restitution does not depend upon the leased premises being uninhabitable or, at least, defective in some way. Perceiving a real connection between “actual loss and damage” and the habitability of unlicensed premises, and, being aware from the statement of facts that, in Golt, the unlicensed premises were in a deplorable state, the majority overrules that statement, explaining that the Court spoke too broadly when it made it. op. at 149.

In so doing, the majority relies on an issue that was not present in Golt. Therefore, it could not have been and, in fact, was not critical to the Court’s decision, a fact that even a cursory reading of the opinion makes obvious. In addition, disregarding principles of stare decisis, it moves precipitously, in this admittedly hard case, to provide extraordinary relief to parties who concededly acted illegally and against this State’s public policy in an effort to “protect” them from the victims of the illegality and, in the process, makes bad law. Finally, the majority does by judicial fiat, that — undermine the effectiveness of local licensing laws— which the Legislature refused to do when given the opportunity shortly after the Golt decision was filed.

Recognizing that Golt acknowledged that, unlike section 13-302, the public enforcement provision of the Act, section 13-408(a), requires proof of “actual injury or loss sustained,” the majority expends considerable effort to establish that the actual injury or loss, to which reference is made, relates to the habitability of the premises, i.e. proof that the value of the premises was less than the rental paid rather than to the illegality of the lease. Among the arguments it advances are: to permit restitution to the tenant would be to punish the landlord, which is not permitted by § 13-408(a), see Golt, 308 Md. at 12, 517 A.2d at 333, and, to the extent that punitive measures are required to ensure that an unlicensed landlord complies with the licensure laws, the civil penalty provided for by § 13-410 and the criminal punishment prescribed by § 13-411 are sufficient. Moreover, the majority asserts that proof that an illegal contract is nonenforceable and, hence, that the offending party is not entitled to reap any benefits from it, is not enough. It suggests that Golt really does not address this issue or, due to its context, did not adequately do so.

The decision in Golt, either directly or by necessary implication, addressed the concerns the majority expresses: our discussion of § 13-408, see 308 Md. at 12, 517 A.2d at 333, clearly demonstrates that we were aware when we decided Golt that punishment was not its goal. Moreover, that we ordered restitutionary damages to be awarded, coupled with our recognition that only actual injury or loss could support a recovery, is a clear indication that we held that Golt actually suffered injury or loss. The Court not only unanimously addressed the actual damages question in Golt, but we defined it in terms of the rent paid for an unlicensed apartment: contrary to the majority’s statement on page 149, we held that the restitutionary damages due to the plaintiff were for three months rent the plaintiff paid for the “unlicensed premises.” See 308 Md. at 13-14, 517 A.2d at 334. Indeed, not even the closest reading will disclose anything in Golt that suggests that the condition of the premises was important to the decision; there was never any mention in the opinion of the apartment’s uninhabitability.⁴

The facts, including those pertaining to the condition of the leased premises, though detailed in the Golt opinion, played no role in our decision. Because our decision turned exclusively on the issue of whether advertising and renting an unlicensed apartment was a violation of the CPA, 308 Md. at 7 n. 2, 517 A.2d at 331 n. 2, only those facts surrounding the execution of the lease, especially those which were relevant to prove that they were unlicensed, were critical. The same is true of our decision as to the damages that could be recovered. Significantly, therefore, having set out the statement of facts, at no time, did we discuss, or even address, whether sufficient proof was offered, or was in the record, to support a finding that the leased premises were uninhabitable. We did not because the habitability of the premises was not an issue in the case. The record in that case revealed that, at all times, Golt contended that the violation of the CPA was the failure to obtain a license before advertising and leasing the apartment. He never argued that the condition of the premises was relevant to that issue or to his damages. I repeat, our resolution of the issue indicates that we agreed on all counts.

Had the habitability of the premises been the focal point of our inquiry into the proper damages, we would not have focused on cases addressing the effect of a failure of one required to do so, to obtain a license when a statute requires a license for regulatory, as opposed to revenue generating, purposes. But that is precisely what we did. Thus, having concluded that such statutes do not permit an unlicensed person to recover damages either pursuant to contract or under quantum meruit, “regardless of any unjust enrichment to the other party”, we went one step further and held that the unlicensed person could not benefit from the illegal contract at all. 308 Md. at 12, 517 A.2d at 333-34.

The analysis of the Baltimore City licensing requirement for multiple family dwellings conducted by the Golt Court was undertaken solely for the purpose of determining whether it was regulatory or revenue-generating. And it was in that same vein, rather than as a statement of the required condition of the premises that we commented that the licensing requirement was an aid to the City’s efforts to maintain safe and healthful living conditions. Conspicuously absent from that discussion was an analysis of proof offered to establish the uninhabitability of the premises in that case. Id. at 13, 517 A.2d at 334. Again, no such proof was offered or relevant to our view of the case.

Golt held that, where a statute, regulatory in nature and designed to protect the public, requires a person to be licensed preliminary to conducting his or her trade or business, and that person fails to obtain a license before undertaking it and/or entering into a business relationship with another, it is against the public policy of this State to permit that person to enforce any resulting contract. The cases upon which we relied proceed on the premise that, because they are illegal, “courts of equity will not lend their aid to enforce an illegal contract ...," Harry Berenter, Inc. v. Berman, 258 Md. 290, 296, 265 A.2d 759, 763 (1970), whether or not, and, indeed, notwithstanding, that the other party to the contract may be unjustly enriched, “[t]he court’s refusal ... not [being] for the sake of the defendant, but because it will not aid such a plaintiff.” Thorpe v. Carte, 252 Md. 523, 529, 250 A.2d 618, 622 (1969), quoting Restatement (Second) of Contracts, § 598, cmt a. Quantum meruit recovery was not permitted, the cases indicated, because that “would defeat and nullify the statute.” Harry Berenter, Inc., 258 Md. at 296, 265 A.2d at 763, citing Northern v. Elledge, 72 Ariz. 166, 232 P.2d 111 (1951); Lewis & Queen v. N.M. Ball & Sons, 48 Cal.2d 141, 308 P.2d 713 (1957). In extending the remedies available in the case of an illegal contract to include recovery, on a restitution basis, of amounts paid pursuant to the illegal contract, Golt simply recognized that, to do otherwise — not requiring an illegally gained benefit to be disgorged — would result in the unlicensed person benefiting significantly from his or her illegal conduct and violation of public policy. We also acknowledged thereby our affirmative duty to avoid allowing such a result.

Other courts, on similar logic, have reached consistent results. See Rubin v. Douglas, 59 A.2d 690, 691 (D.C.App. 1948); Cooper v. Paris, 413 So.2d 772, 773-74 (Fla.App. 1982); State v. Masters Distributors, Inc., 101 Idaho 447, 615 P.2d 116, 123-125 (1980) (restitution may be ordered as an adjunct to injunctive relief sought by the State); Huffmaster v. Robinson, 221 N.J.Super. 315, 534 A.2d 435, 439-440 (1986); State v. Ralph Williams’ Northwest Chrysler Plymouth, Inc., 82 Wash.2d 265, 510 P.2d 233, 241 (1973) (“[t]he recovery of that which has been illegally acquired and which has given rise to the necessity for the injunctive relief not only restores the property to the party but insures future compliance where it is assured a wrongdoer is compelled to restore illegal gains.”).

In Rubin v. Douglas, a plaintiff sued to recover monies she paid the unlicensed defendant for treatment for her arthritis. The Healing Arts Practice Act required a person practicing the healing arts to be licensed. The defendant argued that, because the contract was illegal, the services were illegally rendered; hence, the plaintiff could not recover the monies she paid. The Municipal Court of Appeals for the District of Columbia rejected that argument. While acknowledging the general rule, it pointed out:

However, if the parties are not in pari delicto, and one of them has not been guilty of serious moral turpitude, he may repudiate the contract and recover what he has paid under it. And even though a party be considered technically in pari delicto he may be permitted to recover if the law in question was passed for his protection and it appears that the purposes of the law will be better effectuated by granting relief than by denying it.

In the present case we do not consider plaintiff in pari delicto with defendant, but even if she were it is apparent that the law was passed for the protection of the public, including plaintiff, and that the purposes of the Act will not be effectuated by permitting defendant to retain that which he ought not to have received. The public interests, in our opinion, are best served by requiring defendant to pay back the fruits of his illegal agreement.

59 A.2d at 691 (citations and footnote omitted).

Cooper v. Paris involved the payment of a portion of a real estate commission to an unlicensed real estate broker by a person who, when the payment was made, was aware that he was unlicensed. Having held the contract to be void and illegal ab initio, 413 So.2d at 773, the court ordered restitution of the part payment to be paid to the plaintiff. Rejecting the argument that by being aware that the defendant was not licensed to transact real estate business in Florida, the plaintiff was in pari delicto with the defendant, the court said:

When the legislature enacts a statute forbidding certain conduct for the purpose of protecting one class of persons from the activities of another, a member of the protected class may maintain an action notwithstanding the fact that he has shared in the illegal transaction. The protective purpose of the legislation is realized by allowing the plaintiff to maintain his actions against the defendant within the class primarily to be deterred. In this situation it is said that the plaintiff is not in pari delicto. This rule is applied in favor of a person seeking to recover back money for services performed by a person lacking a required license to perform such services.

413 So.2d at 773, quoting Maurice T. Brunner, Annotation, Recovery Back of Money Paid to Unlicensed Person Required By Law to Have Occupational or Business License or Permit To Make Contract, 74 A.L.R.3d, 637, 662 (1976). It went on to say that

[T]o refuse to return the monies paid would affront this Court’s affirmative duty to see that the party violating public policy not benefit in any way as a result of his wrongdoing. Otherwise, [the defendant] stands to be rewarded for his illegal activities, a result to which this Court cannot subscribe. Moreover, by allowing [the defendant] to keep these monies this Court would implicitly encourage unlicensed persons to seek up-front money, thereby eviscerating the salutary purpose of [the real estate broker’s licensing law] by permitting those persons to keep any funds garnered prior to a judicial declaration that the contract is void.

413 So.2d at 774.

Huffmaster v. Robinson, a consumer protection case, is instructive insofar as it included in the definition of damages recoverable, i.e. restitution, the sum of $2,000 that the plaintiff paid the defendant on account of a contract to repair the plaintiff’s car. 534 A.2d at 440.

The majority does not dispute that the lease in this case was illegal, against the public policy of the State of Maryland, and, hence, unenforceable. Indeed, it specifically so acknowledges. Nevertheless, relying primarily on out-of-state authority, much of which predates Golt, e.g. Comet Theatre Enterprises, Inc. v. Cartwright, 195 F.2d 80 (9th Cir.1952); Host v. Gauntlett, 73 Misc.2d 96, 341 N.Y.S.2d 201 (1973); and Mosley v. Johnson, 22 Utah 2d 348, 453 P.2d 149 (1969); see also 74 A.L.R.3d 637, 642, and decrying the unjust enrichment that would result were the petitioners awarded restitution, it holds that the public policy considerations are outweighed, in this case, by the degree of the violations. Therefore, the majority says that restitution is not a permitted remedy.

Inasmuch as Golt, like the cases the majority relies upon, was decided on restitution principles, I do not believe, as the majority implies, that we were not aware of those cases, including the ones discussed in 74 A.L.R.3d at 642. In point of fact, I am satisfied that being very much aware of them, we simply rejected their rationale. In any event, Golt was decided on Maryland public policy. The out-of-state decisions on which the majority relies, while similarly based on public policy, invoke the public policy of the state or jurisdiction whose law they applied. Juxtaposed against Golt, therefore, they simply are not persuasive.

The majority also relies upon a line of Maryland cases dealing with claims for compensation for services rendered, made by unlicensed persons engaged in occupations for which a license is required. I find that reference to be quite interesting, but also curious. Three of the four cases the majority cites to undermine the Golt principle predate that case. Schloss v. Davis, 213 Md. 119, 131 A.2d 287 (1957); Gerry Potter’s Store Fixtures v. Cohen, 46 Md. App. 131, 136-37, 416 A.2d 283, 286 (1980); Hiram Ricker & Sons v. Students Int’l Meditation Society, 501 F.2d 550, 557 (1st Cir.1974). The one that was decided after Golt was decided by a court whose decisions are not binding on this Court. Smithy Braedon Co. v. Hadid, 825 F.2d 787, 791 (4th Cir.1987). As I indicated above, I am not convinced that we were ignorant of so well-known a principle when we decided Golt; on the contrary, I am satisfied that we considered, and rejected, its application to the facts with which we were there presented. Had these cases been cited in a concurring opinion to Golt the contention that we were mistaken when we decided Golt might now be persuasive. That having not occurred, however, that contention, made now, is, at best, unpersuasive and, in any event, too late.

In any event, an illegal contract will not be enforced even when the effect of non-enforcement will be to unjustly enrich the other party to the contract. Indeed, whenever a contract has been at least partially performed, one, or the other, of the parties to it will have been enriched, and when enforcement is refused solely because the contract is illegal, unjustly so. This is particularly the case when quantum meruit recovery is disallowed as well. Golt, and the cases upon which it relied, recognized as much. Therefore, it is no answer to the petitioners’ action that they will be unjustly enriched if permitted to recover restitution; to deny a party to a contract the right to recovery under that contract after it has been performed, or under quantum meruit, necessarily is to permit the enrichment, most often, unjustly, of the other party.

The cases that have addressed the issue have involved the situation in which the defendant has received a benefit, to which he or she would not otherwise been entitled, as the result of the partial or complete performance by the plaintiff of an illegal contract. When, therefore, the court refuses the request of the party who was author of the illegality of the contract, that party suffers a detriment. In this case, however, the petitioners have paid all of the sums due under the lease. Consequently, the issue is not now about enforcing an illegal contract for the benefit of the offending party; it is about, rather, whether an offending party will be allowed to enjoy, completely, the benefits of his or her illegal conduct. Here, the respondents have not suffered any loss as the result of their actions; on the contrary, they have benefitted to the fullest possible extent. The public policy of this State cannot condone such a result, even if it had contemplated it.

Rather than provide incentive to comply with the local regulatory scheme, today’s decision provides a disincentive. If a landlord who fails both to obtain a license before renting his premises and to advise the tenants of that fact, is allowed to retain the fruits of that illegal conduct, that landlord may never feel the need to license the premises. He or she could lease the unlicensed premises until the tenant discovers the violation, secure in the knowledge that, as long as the tenant pays the rent when due, he or she has no, or at most, little, financial exposure for that violation. The tenant would never be able to recover the rent paid for the premises; if, and when, the tenant discovers the lack of licensure, the tenant will not be able to take advantage of that fact, either because the tenant at that time would be in pari delicto or because it would be unfair to allow him or her to do so. Therefore, as soon as the tenant learns the premises are unlicensed, the landlord could effect his or her removal and, thus, be free to lease the premises to another, unsuspecting tenant. The scenario could be repeated over and over again, at great profit.⁵

The condition of the leased premises is one of only two conceivable distinguishing features between the case sub judice and Golt. Indeed, it is the only one the majority identifies. The majority’s attempt to demonstrate that the reason for the principle enunciated in Golt no longer exists fails miserably. Therefore, since, as we have seen the habitability of the premises played no role in the Golt decision, that case is dispositive of the issue presented here.

There also is no basis for deviating from the Golt rule so soon after its enunciation. In State v. Cohen, 166 Md. 682, 688, 172 A. 274, 277 (1934), we asserted that doctrines established by decisions of this Court should not be abandoned, unless the reason therefor has ceased. See Rice v. Biltmore Apartments Co., 141 Md. 507, 513-14,119 A. 364, 366 (1922) (a rule, once deliberately adopted and declared, ought not to be disturbed except for very urgent reasons and upon a clear manifestation of error). Accord Hearst Corp. v. State Dep’t of Assessment & Taxation, 269 Md. 625, 643-44, 308 A.2d 679, 689 (1973) (doctrine of stare decisis is not to be construed as preventing a change in a rule of law if the rule has become unsound in the circumstances of modern life).

The only other conceivable basis for differentiating this case from Golt is the nature of the respondents, which, of course, colors the majority’s perception of the equities. The respondents, unlike the appellees in Golt, are not in the business of renting real estate — the record reveals that the only house they leased was the single family dwelling, their former residence, which is the subject of this litigation. Were Golt to be affirmed, the respondents would have to return the respectable income they derived from that lease, $10,200 for the one year term and $5,250 for the month to month tenancy, to the petitioners, presumably at a great hardship. The equities not being as clearly on the side of the petitioners as they were in Golt, this case then is a “hard” case. But hard cases make bad law. Federal Communication Comm’n v. WOKO, Inc., 329 U.S. 223, 229, 67 S.Ct. 213, 216, 91 L.Ed. 204, 209 (1946); Northern Securities Co. v. U.S., 193 U.S. 197, 400-01, 24 S.Ct. 436, 468, 48 L.Ed. 679, 712 (1904) (Holmes, J. dissenting). The majority seeks to avoid what it considers to be a harsh result by changing the rules of the game. It can only be sympathy for the respondents which motivates and informs this decision.

Notwithstanding that it may be harsh in this case,⁶ a result consistent with Golt would be neither unreasonable nor unfair. It was, after all, the respondents who failed to obtain the necessary license and it was that failure that caused their present predicament. Their present misfortune is traceable to no one but themselves. I can see no reason to treat them any different than we would a professional landlord who made the same omission. Public policy does not favor relieving a party who admittedly failed to do what he or she was charged by law to do from the consequences of that failure. And the policy underlying the CPA does not justify such a result.

What Golt decided was clearly understood when the opinion was filed in 1986. Legislation which would have impacted the Golt decision was proposed during the 1989 session of the General Assembly. It, House Bill 391 (“HB 391”), would have amended § 8-204 of the Real Property Article to add the following:

(e)(1) Notwithstanding any local ordinance or regulation requiring the licensing or inspection of single or multifamily units, a tenant shall pay rent which is due to a landlord if:

(i) The premises were rendered to or provided for the tenants;

(ii) The premises were otherwise habitable;

(iii) The premises were used and enjoyed by the tenant; and

(iv) The tenant was under reasonable notice that the landlord, in rendering or providing such premises, expected to be paid by the tenant.

(2) The amount of rent paid by a tenant who rents a single or multi-family unit from a landlord who does not comply with a local ordinance or regulation described in paragraph (1) of this subsection shall reflect the difference between the property value of the rented unit and the property value of a similar unit , rented in compliance with the local ordinance or regulation described in paragraph (1) of this subsection.

The obvious purpose of the amendment, as even a cursory review reveals, was to overrule Golt. Proponents of the bill admitted that this was so. The Legislation Committee of the Associated Landlords of Cumberland, Maryland, wrote to the House Judiciary Committee:

Dozens of landlords were sued by tenants for thousands of dollars because the landlords’ permit was no longer valid. They were using a court case from Baltimore (Golt vs. Phillips) and the judges were helpless to rule in an equitable manner because the Maryland Law was mute on the subject. As a stop gap measure, Cumberland repealed [its] occupancy permit ordinance until a remedy could be found. We believe HB 391 is that remedy.

The letter written by the President of the Maryland Builders Association, in support of HB 391, opined:

This legislation is reasonable and necessary. There are circumstances when a person may be renting a unit where the landlord does not have all required licenses and inspections. So long as this unit is habitable and being used by the tenant, then the rent on that unit should be paid.

Its opponents joined the issue. The President of Baltimore Neighborhoods, Inc. opposed the bill because its passage

would allow landlords throughout the state of Maryland to be free from accountability in their duty to be properly licensed, which undermines the existing regulations of the local governments. This adversely affects tenants of multiple housing units in that the landlord suffers no consequences for failure to meet the standards mandated for such units.

The Legal Aid Bureau and the Legal Officer supervisor of the Baltimore City Department of Housing and Community Development, who characterized the intent of the bill as “to circumvent the ruling in a recent Maryland case (Golt v. Phillips) where the Court of Appeals found a Baltimore City tenant entitled to recover rent paid for an unlicensed dwelling unit/' both made the point that a licensing requirement, as part of the police power, is essential to a governmental subdivision’s ability to ensure decent housing. The Housing and Community Development letter was specific:

There is an economic benefit to remaining unlicensed, and without the possibility of loss of rent there is little incentive to become licensed. A dwelling that is not licensed does not get inspected, unless there is a specific complaint. When an unlicensed multiple dwelling is discovered, the landlord is subject to a fine of $100 only if he fails to obtain the license within a reasonable time of being cited by a violation notice.

This bill establishes a disincentive for landlords to comply with the licensing law. Our code has a [definite] prohibition against renting an unlicensed unit. To allow a landlord to collect rent in such an unlicensed unit obviously undermines the effect of the law.

The proposed legislation did not make it out of Committee, the vote being 15 to 6, with 1 absent.

The facts that the decision in Golt was rendered in 1986 and, since then, the Legislature has taken no action to overturn or ameliorate its effect indicate that the Legislature has acquiesced not only in the interpretation we gave the CPA with respect to advertising and renting unlicensed premises, but also in the definition given to “injury or loss” as used in § 13-408 and in the remedy we prescribed for the CPA violation, as well. See Nationwide Mutual Insurance v. USF& G, 314 Md. 131, 143, 550 A.2d 69, 75 (1988) (“[T]he General Assembly is presumed to be aware of this Court’s interpretation of its enactments and, if such interpretation is not legislatively overturned, to have acquiesced in that interpretation.”); Frank v. Storer, 308 Md. 194, 203, 517 A.2d 1098, 1102-03 (1986). (Legislative acquiescence in interpretation placed on a statute should not be judicially altered.); Frey v. Frey, 298 Md. 552, 562, 471 A.2d 705, 710 (1984) (“[T]he General Assembly is presumed to be aware of the prior holdings in this Court.”); Health Services Cost Review Comm’n v. Holy Cross Hospital, 290 Md. 508, 519, 431 A.2d 641, 646 (1981) (The General Assembly is presumed to be fully familiar with the holdings of this Court); Bingman v. State, 285 Md. 59, 65, 400 A.2d 765, 768 (1979) (legislature presumed to know interpretation of statute by Court of Appeals prior to statutory amendment or revision).

In Golt, we held unanimously that the advertising and leasing of unlicensed premises violate § 13-301 of the CPA. We also held that where a license to rent premises was required for purposes of regulation, and not revenue generation, a lease of such unlicensed premises is void and against public policy and, therefore, not enforceable by the lessor. Moreover, we held that the lessee under such a lease may recover, as restitutionary, i.e., actual, damages, the rent paid in respect of those unlicensed premises. 308 Md. at 11-12, 517 A.2d at 333. We did so because, we held, the lessor of unlicensed premises should not benefit in any way from his or her illegal acts. Id. at 12, 517 A.2d at 333-34. Without challenging the public policy underpinnings of Golt or the continuing vitality of the rule that illegal contracts are unenforceable, and with only an implicit disagreement with the notion that a party should not benefit from his or her illegal acts, the majority overrules the portion of the opinion which would permit a lessee to recover rent paid pursuant to an illegal lease. And it does so on a ground Golt rejected or, at least, did not rely on, maintaining, to the contrary, at least by implication, that Golt decided an issue that it plainly did not. And it does so despite the fact that the Legislature having been presented with the opportunity to reverse the Golt decision, refused to act, thus, acquiescing in its holding. This Court, in my opinion, has responded to an admittedly hard case by making bad law, in total disregard of the principles of stare decisis and, in the process, has taken a giant step toward undermining the licensing laws of the State’s subdivisions.

I dissent.

ELDRIGE, J., joins in the views expressed herein.

1 . Maryland Code (1973, 1983 Repl.Vol.), § 13-301, in pertinent part, provides:

Unfair or deceptive trade practices include any:

(1) False, falsely disparaging, or misleading oral or written statement, visual description, or other representation of any kind which has the capacity, tendency, or effect of deceiving or misleading consumers;

(2) Representation that:

(i) Consumer ... realty, ... have a sponsorship, approval, accessory, characteristic ... which they do not have;

******

(3) Failure to state a material fact if the failure deceives or tends to deceive ...

These provisions are identical in the 1992 Replacement Volume. Section 13-201 has been amended since Golt v. Phillips, 308 Md. 1, 517 A.2d 328 (1986) was decided, although not the subsections under consideration in this case.

2 . Golt also sought and was awarded "consequential damages — the cost of moving and the difference between the rental cost of the apartment and the higher rental cost of substitute housing maintained for three months." Golt v. Phillips, 308 Md. at 12, 517 A.2d at 333. This element of damages is not at issue in this case.

3 . Section 13-408. Actions for damages.

(a) Actions authorized. — In addition to any action by the Division or Attorney General authorized by this title and any other action otherwise authorized by law, any person may bring an action to recover for injury or lost sustained by him as the result of a practice prohibited by this title.

(b) Attorney’s fees. — Any person who brings an action to recover for injury or loss under this section and who is awarded damages may also seek, and the court may award, reasonable attorney’s fees.

(c) Frivolous actions. — If it appears to the satisfaction of the court, at any time, that an action is brought in bad faith or is of a frivolous nature, the court may order the offending party to pay to the other party reasonable attorney’s fees.

4 . In the proceedings at the trial level, the District Court concluded that Phillips Brothers, the defendant, improperly withheld $135 for rent for November 1983 because the apartment could not be rented legally. The trial court did not base its decision on the condition of the premises. In fact, the trial court found the conditions of the apartment to be irrelevant because Golt had inspected the premises prior to moving in.

5 . Howard County Code § 13.103 makes violation of any provision of the Code a misdemeanor punishable by a fine of not more than $1000. Section 13-411 of the CPA, like § 13.103 prescribes a criminal punishment of not more than $1000 fíne, 1 year imprisonment, or both. The CPA also provides a civil penalty; § 13-410 imposes a civil fine of not more than $1000 for each violation of the CPA, up to a maximum of $5000 for subsequent violations.

To be sure, were the Consumer Protection Division of the Attorney General’s Office to pursue criminal charges against the lessor of unlicensed property, that might provide incentive for that lessor to obtain the proper license. Whether to pursue a particular violation, and then, whether to seek civil or criminal sanctions, rests in the sole discretion of the Consumer Protection Division. It also depends upon that Division’s knowledge of the violation. It is significant that neither in this case nor in Golt was the Consumer Protection Division involved.

Civil proceedings under the CPA and the local criminal proceedings are not so satisfactory an incentive inducing agent as the CPA criminal proceedings. They provide only limited monetary exposure for the lessor, which may be dwarfed by the size of the profit derived from the unlicensed premises.

6 . To the extent that the result in this case is harsh when applied to a non-professional landlord, one who owns and rents only a single family home, the subdivision involved may amend its ordinance or statute to make an exception for such rentals.