Maryland Attorney General Opinion 98 OAG 136

136] [98 Op. Att’y

COMMERCIAL LAW

LIQUEFIED PETROLEUM GAS CONTAINERS – POTENTIAL
CRIMINAL LIABILITY OF SUPPLIERS THAT REMOVE
COMPETITOR’S TANK

November 21, 2013

The Honorable Edward D.E. Rollins, III
State’s Attorney for Cecil County

The Maryland Liquefied Petroleum Gas Container Law makes
it a misdemeanor, among other things, to “take,” “or otherwise use,
dispose of, or traffic in” a liquefied petroleum gas (“LPG”) storage
tank marked as belonging to another without the written consent of
the owner. Md. Code Ann., Comm. Law (“CL”) §§ 11-603, 11-604,
11-606 (2013 Repl. Vol.); see generally CL §§ 11-601 et seq. You
ask whether an LPG supplier may be prosecuted under the Container
Law for acts committed in the course of replacing another
company’s underground LPG tank on the customer’s property with
its own tank, presumably with the consent of the
customer. Specifically, you ask whether the supplier can be charged
under the Container Law for leaving the other company’s partly-
filled LPG tank by the side of the road without the other company’s
written consent.
In our opinion, it would be problematic to charge the supplier
for violating the Container Law when the supplier has excavated the
tank and left it on the customer’s property. Conversely, we think it
would be possible to prosecute the supplier under the Container Law
when the supplier, without the other company’s written consent, has
left the other company’s tank in the road itself or “by the side of the
road” in a place beyond the control of both the customer and the
other company. Whether to prosecute the supplier in a particular
case will thus depend on where the new supplier left the tank, and on
other factors such as the customer’s role in the supplier’s actions, the
customer’s contractual obligations to the first supplier, and the
notice, if any, given to the first company.
The Container Law, however, is not the only option for
prosecuting an LPG supplier for leaving another company’s partly-
filled propane tank by the side of a public road. Although other
statutes are not the focus of this opinion, criminal actions might be
brought under § 3-204(a) of the Criminal Law Article for reckless
endangerment, or under the Public Safety Article for the knowing
violation of the State Fire Prevention Commission’s regulations,
Gen. 136] 137

see Md. Code Ann., Pub. Safety (“PS”) § 6-601 (2011 Repl. Vol.),
or for using equipment in a way that “endangers life or property due
to the hazards of fire or explosion.” Id. § 6-317(a)(1). The theft
provisions in the Criminal Law Article might also apply, as might
other laws ranging from local littering and nuisance ordinances to
federal regulations on the safe transport of LPGs.
I
Background
A Liquefied Petroleum Gas
“Liquefied petroleum gas,” also known as “LP-gas” or “LPG,”
is a catch-all term for a mix of several hydrocarbons (including
propane and butane) stored under pressure sufficient to convert the
gas into a liquid. It is often referred to simply as “propane” or
“bottled gas.” NIOSH Pocket Guide to Chemical Hazards,
http://www.cdc.gov/niosh/npg/npgd0679.html (last visited Nov. 12,
2013). First used for cooking and domestic heating purposes in
1912, LPGs began to be widely marketed in the 1930s. See
generally National LP-Gas Council, The First Fifty years of LP-
Gas: An Industry Chronology (1962), http://www.npga.org/files/
public/LPGA_Times_1962_History.pdf (“First Fifty Years”). By
1950, the trade association’s history reports, “LP-gas was truly big
business.” Id. at Ch. 7, 19.
As the use of LPG spread, so too did the recognition of its
risks. By 1953, it was “well-known” that LPG had the “tendency to
escape and become an element not only entailing possible but
probable death and disaster.” Thompson v. Econ. Hydro Gas Co.,
363 Mo. 1115, 1124 (1953). Today, the National Oceanic and
Atmospheric Administration (“NOAA”) includes the following
warning on datasheets used, among other things, to guide emergency
responders:
EXTREMELY FLAMMABLE. Will be easily
ignited by heat, sparks or flames. Will form
explosive mixtures with air. Vapors from
liquefied gas are initially heavier than air and
spread along ground. . . . Vapors may travel to
source of ignition and flash back. Cylinders
exposed to fire may vent and release
flammable gas through pressure relief devices.
Containers may explode when heated.
Ruptured cylinders may rocket.
138] [98 Op. Att’y

NOAA, Computer-Aided Management of Emergency Operations
Database, Liquefied Petroleum Gas, http://cameochemicals.noaa.gov/
chemical/987 (last visited Nov. 12, 2013). In addition to the fire
hazard it presents, spilled LPG can freeze skin on contact; NOAA
advises responders to “[w]ear appropriate personal protective
clothing to prevent skin from becoming frozen from contact with the
liquid or from contact with vessels containing the liquid.” Id.
Efforts to control the risks of LPG emerged with the fuel’s
growth in popularity. In 1932, the National Board of Fire
Underwriters—now the National Fire Protection Association
(“NFPA”)—issued model codes for handling LPGs, including
“Pamphlet 58,” which was entitled “A Liquefied Petroleum Gas
Code.” See NFPA 58, Liquefied Petroleum Gas Code at 1 (2014
ed.), available at https://www.nfpa.org/codes-and-standards/
document-information-pages?mode=code&code=58 (listing the
revisions to the NFPA LP-gas standards since 1932); see also Allied
Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 495-96
(1988) (describing NFPA Code). Now known as “Code 58” or
“NFPA 58,” the current model code contains 100 pages of model
regulations organized into twelve categories of standards for the
“storage, handling, transportation, and use of LP-Gases.” See NFPA
58, § 1.1, at 58-7. The NFPA has incorporated NFPA 58 into NFPA
1: Fire Code (“Code 1”), which is a compendium of the various
NFPA codes and many other fire safety standards. Code 1, § 2.2, at
1-25 (2012 ed.), available at http://www.nfpa.org/codes-and-
standards/document-information-pages?mode=code&code=1.
As of 2007, all fifty states had adopted NFPA 58 in some form.
See National Propane Gas Ass’n, Current State Adoptions of NFPA
58, http://www.npga.org/files/ public/NFPA_58_State_Adoptions_
2-07.pdf (last visited Nov. 12, 2013). Maryland has adopted NFPA
58 through regulations promulgated by the Maryland State Fire
Prevention Commission. Under a Maryland law first enacted in
1964, see 1964 Md. Laws, ch. 46, § 1, the Fire Commission must
“adopt comprehensive regulations as a State Fire Prevention Code”
in order to “protect life and property from the hazards of fire and
explosion.” PS § 6-206(a)(i); 2005 Md. Laws, ch. 5, § 2
(recodifying the statute). The Fire Code, the statute stipulates, must
“comply with standard safe practice as embodied in widely
recognized standards of good practice for fire prevention and fire
protection.” PS § 6-206(a)(ii). The Fire Code promulgated by the
Fire Commission incorporates most of NFPA Code 1, including the
portion that in turn incorporates NFPA Code 58. See COMAR
29.06.01.06 (incorporating NFPA Code 1 (2012 ed.) by reference);
Gen. 136] 139

NFPA Code 1, §§ 2.1, 2.2 (incorporating NFPA 58, Liquefied
Petroleum Gas Code, by reference).
NFPA 58 is now the industry standard. As one court has
observed, “Propane is relatively safe if it is handled in accordance
with these regulations. It is when the precautions prescribed by
NFPA 58 are not taken that handling propane becomes extremely
dangerous.” Apodaca v. AAA Gas Co., 134 N.M. 77, 88-89 (N.M.
Ct. App. 2003).
B. The Provision of LPG Storage Tanks for Residential Use
In part due to the risks involved with the storage and handling
of LPGs, gas companies typically maintain control over the tanks
used to supply LPG to residential customers. As we understand it,
most contracts between a residential customer and an LPG supplier
specify that the supplier will install its own tank and related
equipment on the customer’s property and will deliver the LPG to
that tank. The customer leases the tank and pays for the product,
usually when delivered, but in some cases on the basis of metered
usage. A contract might also require the customer to give the
supplier advance notice of the customer’s intention to terminate the
service, to provide the supplier with unlimited access to the
equipment, and to allow access to the equipment only to the
supplier. See, e.g., Amerigas, Terms and Conditions for Residential
Customers, §§ 11, 8, 7, http://www.amerigas.com/residential/pay
billing_terms.htm (last visited Nov. 12, 2013). The customer’s duty
to safeguard the tank thus depends on the contract, as does the exact
nature of the customer’s possessory interest in the leased tank.
The duty that one supplier owes to another is governed not by
contract but by industry practice. As a matter of courtesy, a supplier
who is about to take over a customer’s account and install its own
tank will often arrange with the current supplier for the disposition
of the first supplier’s tank. It is our understanding that gas
companies handle these transitions in different ways. The two
suppliers may coordinate to remove the old tank and install the new
one at the same time, with the old supplier hauling its tank to its
facility. Or, the new supplier may perform the excavation itself and
haul the old tank back to its own facility and make subsequent
arrangements for the old supplier to collect its tank. Finally, the two
competitors may sometimes effect a “steel swap,” by which the new
supplier assumes ownership of the buried tank and gives the old
supplier a substitute tank. None of these alternatives is prescribed
by law.
140] [98 Op. Att’y

C. The LPG Container Law
Although Maryland law does not regulate expressly the
transition from one residential LPG supplier to another, it does
protect each company’s ownership rights in its tanks. The Container
Law, which was originally enacted in 1968, see 1968 Md. Laws, ch.
533, applies to any container with a total capacity of over five
gallons that bears the mark of the company that owns it and restricts
the use of that tank by any other entity:
§ 11–603.
Unless he is authorized by the owner in
writing, a person other than the owner of a
container may not:
(1) Fill or refill a marked container with
liquefied petroleum gas or any other gas or
compound;
(2) Buy, sell, offer for sale, give, take, loan,
deliver, permit to be delivered, or otherwise
use, dispose of, or traffic in a marked
container; or
(3) Deface, erase, obliterate, cover up, or
otherwise remove or conceal any mark on a
container.
§ 11–604.
Unless taken with the written consent of the
owner, each of the following actions by any
person, other than the person whose mark is on
the container, is presumptive evidence of a
violation of this subtitle:
(1) Use of a marked container;
(2) Possession of a marked container; or
(3) Purchase of a marked container for:
(i) The sale of liquefied petroleum gas; or
(ii) The filling or refilling of the container
with liquefied petroleum gas.
§ 11–606.
Any person who violates any provision of this
subtitle is guilty of a misdemeanor and on
conviction is subject to a fine not exceeding
Gen. 136] 141

$300 or imprisonment not exceeding 90 days
or both.
The statute defines a “marked” container as one that “bears on its
surface in plainly legible characters the mark of its owner.” CL
§ 11-601(e). A “mark” “includes any name, initial, or device.” Id.
§ 11-601(d). An “owner” is “(1) Any person who holds a written
bill of sale under which title or ownership to a container was
transferred to him; or (2) Any manufacturer of a container who has
not transferred ownership of the container under a written bill of
sale.” Id. § 11-601(f).
There are no reported cases interpreting Maryland’s Container
law, and not much legislative history. Originally enacted as part of
the former Article 27 (“Crimes”), see 1968 Md. Laws, ch. 533, the
Container Law was moved to Title 11 of the Commercial Law
Article in 1975, without substantial change, as part of the Code
revision process. See 1975 Md. Laws, ch. 49, § 1.1 The Commission
to Revise the Annotated Code explained, “Title 11 contains statutes
generally intended to regulate trade and commerce in a relatively
broad sense.” Commission Report No. 175-1 to the General
Assembly of Maryland (Jan. 10, 1975), at 8 (addressing the
codification of various provisions into Article 11, Title 11, as
proposed by 1975 House Bill 26). The Container Law remains in
the Commercial Law Article under the title “Trade Regulation,”
without reference to the statutes codified in the Public Safety Article
that authorize the State Fire Commission to regulate the use,
handling, and placement of LPG containers.
The National Propane Gas Association (“NPGA”) reports that
at least 42 states had adopted container laws or regulations as of
2012. NPGA, Propane Container Filling Laws, Regulations and
Standards: The Safety Reasons Supporting Accountability at 6
(March 2010, rev. Jan. 2012), available at http://www. npga.org/
files/NPGA%20Container%20Law%20White%20Paper%20
(Jan%202012)(1).pdf (last visited Nov. 19, 2013). Like Maryland’s
container law, the restrictions enacted in other states typically
prohibit anyone other than the owner of a tank from (a) filling the
tank; (b) taking, using, or disposing of the tank, or (c) defacing the

1
The General Assembly also amended the Container Law in 1975 to
adopt a standard definition of “person” throughout much of the
Commercial Law Article. 1975 Md. Laws, ch.49, § 3.
142] [98 Op. Att’y

mark on the tank. See, e.g., Va. Code Ann. § 18.2-494 (2013); Del.
Code Ann. tit. 16, § 7202 (2013); Minn. Stat. § 299F.40 (2013).
Of the three actions prohibited by such laws, the “ownership
filling” requirements have proven to be the most controversial.
Although industry representatives emphasize the safety benefits of
ownership filling requirements, Propane Container Filling Laws at
2-3, some states have questioned whether such requirements
principally serve as restraints on trade that “prevent[] consumers
from choosing their propane suppliers.” Connecticut’s Regulation
of Propane, Legislative Program Review and Investigation at 21
(2011), available at http://www.cga.ct.gov/pri/docs/2011/
Connecticut_Regulation_ of_Propane_Final_Report.PDF); see also
Op. Utah Atty. Gen., No. 90-27 (March 5, 1991) (concluding that
Utah’s ownership filling requirement constitutes a “restraint of
trade” in violation of state and federal antitrust laws and is
preempted by federal antitrust law).2 By contrast, the prohibition on
non-owners taking, using, or disposing of another company’s tank—
about which you inquire—has not achieved the same notoriety,
perhaps because such prohibitions often do little more than re-state
generally applicable theft laws.
D. The Facts Posited Here
In the situation you posit, a residential LPG customer has
decided to contract with a new supplier for the provision of LPG gas

2
The NPGA reports that the Utah Attorney General’s opinion was
subsequently “overturned” by a decision of the U.S. District Court for the
District of Utah in a declaratory judgment action. Propane Container
Filling Laws at 2 (citing Suburban Propane Div. of Quantum Chem.
Corp., et al. vs. D. Douglas Bodrero and R. Paul Van Dam, Civ. Case No.
91-C-382G (D. Utah April 15, 1992)). The Attorney General’s opinion
nevertheless prompted the NFPA to delete the ownership filling
requirement from the 1992 version of its model code and replace it with a
provision allowing LPG tanks to be filled by “qualified persons.”
Propane Container Filling Laws at 2; see NFPA 58, § 7.2.2.1. In 1998,
the committee responsible for revisions to the LPG portions of the model
code approved an amendment restoring the ownership filling requirement
only to have its decision reversed by the NFPA Standards Council, which
is responsible for “the entire standards-making process and all the codes
and standards.” NFPA 58: LP-Gas Code Handbook, Comment to
§ 7.2.2.2 (2011 ed.). Although Maryland’s Container Law continues to
include an ownership filling requirement, see CL § 11-603, the tank-
removal issues you raise do not require us to address the potential antitrust
implications of that requirement.
Gen. 136] 143

and an underground tank to contain it. The new supplier has
excavated the former company’s underground storage tank from the
customer’s property in order to install the supplier’s own tank.
Neither the customer nor the new supplier has informed the other
company in advance, let alone obtained that company’s written
consent to any conduct regarding its tank. The new supplier then
places the former supplier’s tank “by the side of a road with LP gas
still inside.” We have been told that new suppliers have left disused
underground tanks in various places, sometimes on the customer’s
property, sometimes in the street in front of the property, and
sometimes elsewhere entirely. We have no information on the role
played by the customer in these events, but we assume that the
customer has at least consented to the supplier’s excavation and
removal of the first company’s tank from its position underground.3
II
Analysis
A. The Excavation and Movement of an LPG Tank from the
Customer’s Property, Depending on Other Facts, May Form
the Basis of a Criminal Prosecution
The Container Law makes it a misdemeanor to, among other
things, (1) “take, . . . deliver, permit to be delivered, or otherwise
use, [or] dispose of” (2) a marked LPG container that (3) has a
capacity of over five liquid gallons, (4) without the written
authorization of the container’s owner. See CL §§ 11-602, 11-
603(2). The defendant’s “use” or “possession” of the marked
container is presumptive evidence of a violation of the statute. Id.
§ 11-604. We understand your inquiry to be directed primarily at
whether the first element, which consists of the acts set forth in CL
§ 11-603(2), would be met by proof that the new supplier placed the
first company’s tank by the side of the road.
The only acts proscribed by CL § 11-603(2) that might apply
here are the “taking” or “disposing of” the container.4 The statute

3
We have not analyzed, as beyond the scope of the inquiry, the
potential culpability of the customer under the Container Law or the
supplier as an accessory to violations by the customer.
4
Your letter does not suggest that the supplier has “sold,”
“delivered,” “used,” “filled,” or committed any other of the prohibited acts
with regard to the container.
144] [98 Op. Att’y

does not define either term, so we will first look for their meanings
within the larger context of the statutory scheme in which they
appear. See, e.g., Lockshin v. Semsker, 412 Md. 257, 276 (2010). In
that context, one indication of what the General Assembly intended
by the terms “take” and “dispose of” may be found in CL § 11-605,
which sets forth the remedies available to the owner of a tank that
has been handled in a manner that violates the Container Law. In
such cases, the owner may obtain a warrant against any person who
“has violated any provision of [the Container Law]” to require him
“to be brought into court for the purpose of discovering and
obtaining the container.” CL § 11-605(a). If, as posited by your
request, the new supplier has simply left the LPG tank “by the side
of the road” in front of the customer’s house, it seems unlikely that
the owner would require judicial intervention to “discover[] and
obtain[]” it. Rather, the relief available by statute suggests that the
General Assembly may have envisioned violations that involved
some type of spiriting away of the tank.
But a civil remedy available to an owner of a missing tank does
not necessarily limit the meaning of terms that could also form the
basis of a criminal prosecution for other types of offending conduct.
The remedy, we think, does not limit the law.5 So we continue our
search for legislative intent by considering the way in which the
General Assembly has used the terms “take” and “dispose of” in
other statutes, see, e.g., TransCare Maryland, Inc. v. Murray, 431
Md. 225, 249 (2013) (looking to “other parts of the Maryland Code”
for the typical use of the terms in question), and to their meanings in
1968, when the law was enacted, see Chow v. State, 393 Md. 431,
448 (2006) (analyzing a term “in light of the definitions in effect at
the time of the legislative enactment”).
1. “Dispose Of”
The most likely offense suggested by the new supplier’s
movement of the other company’s LPG tank to the side of the road
is the offense of “disposing” of the tank without the owner’s written
authorization. When, as here, the term has been used in a statute
along with words such as “sell” or “give,” we have construed it to
5
We note that the Revisor’s Note accompanying amendments to the
Container Law in 1975 “question[ed] whether retention of [§ 11-605],
with the specific and unique procedures established by it, is necessary in
light of the general procedures which normally apply to actions of this
sort.” 1975 Md. Laws, ch. 49, § 3. Given that the section may not have
been necessary, we are reluctant to view it as a substantive limit on the
scope of the Container Law as a whole.
Gen. 136] 145

capture a broad array of ways in which one might transfer
property. In 1970, construing a statute regulating the disposition of
confiscated firearms, we concluded that the term “disposal” included
various methods of disposition, including destruction:
“Disposal” is defined as sale, pledge, giving
away, using, consumption, or any other
disposition of a thing. See Black’s Law
Dictionary. The same source defines the term
“dispose of” as “to exercise finally, in any
manner, one’s power of control over; to pass
into the control of someone else; to alienate,
relinquish, part with, or get rid of; to put out of
the way; to finish with; to bargain away”. See
also 12(A), Words and Phrases, 492, which
clearly acquaints disposal with action to get rid
of property in some manner.
55 Opinions of the Attorney General 313, 315-16 (1970); see also
58 Opinions of the Attorney General 808, 811 (1973) (concluding
that the phrase “or otherwise dispose of,” used in a statute applicable
to any person who “shall barter or sell or otherwise dispose of, or
shall offer for sale any goods,” was “clearly broad enough” to
include the consignment of the goods for sale by someone else).
Construing the term “disposal” in a 1969 contract, the Court of
Appeals similarly turned to a “common dictionary meaning” of the
term: “the ‘sale, pledge, giving away, use, consumption or any other
disposition of a thing.’” Harford County v. Town of Bel Air, 348
Md. 363, 385 (1998) (quoting Black’s Law Dictionary at 557 (4th
ed., 1951)). The term has long been used as a catch-all for various
types of transfers of property; in 1858, for example, the Court,
discussing a law restricting the sale of liquor, explained that the
Legislature used words other than “sell”—“such as ‘dispose of’ or
‘give’”—to prevent transfers of alcohol by other methods. See
Franklin v. State, 12 Md. 236, 247-48 (1858).
Here, a supplier who has removed the tank from the customer’s
land and deposited it out in the street has likely “g[otten] rid of” it,
55 Opinions of the Attorney General at 315, and thus “disposed of”
it within the Black’s Law Dictionary definition quoted above.
However, a supplier who has excavated another company’s tank and
left it on the customer’s land, even “by the side of the road,”
146] [98 Op. Att’y

probably has not “disposed of” the tank, because the tank has
remained in the actual possession of the customer6 and remains the
property of the company that owns it—no one has “gotten rid of” it.
Your ability to allege that a tank was actually “disposed of” thus
would likely depend on what the supplier did with the tank after
excavating it.
2. “Take”
The next possibility is that the supplier “takes” an LPG tank
within the meaning of CL § 11-603 when the supplier excavates it
and moves it to a different location, either on or off the customer’s
property. We did not find any reported cases on the term as used in
either Maryland’s Container Law or similar container laws in other
states. However, given that the General Assembly originally
included the Container Law within the same Article as the Code’s
criminal offenses, see Art. 27, §§ 355A-355G (1967 Repl. Vol.,
1968 Supp.), the use of “taking” in the context of larceny cases from
that period may suggest what the 1968 General Assembly
understood the term to mean.7
As explained by the Court of Special Appeals in one such case
from the time, “taking” is a crime against lawful possession,
regardless of ownership:
“[T]aking” refers to the taking of possession
from possession of one entitled thereto. Thus
it must be a trespassory taking and trespass

6
The customer, if not a lessee in possession of the tank, likely at least
possesses the tank as a bailee, i.e., a person to whom the tank owner has
entrusted the tank for a particular purpose. Bailees are deemed to have
temporary “possession” of the bailed goods. See, e.g., Jones v. State, 304
Md. 216, 219 (1985) (stating that the bailment of a car to the defendant for
repair involved a transfer of possession).
7
The Container Law was enacted before the theft crimes were
gathered into the Consolidated Theft Statute, which the General Assembly
enacted in 1978 to “eliminate technical and absurd distinctions” between
different offenses, and to address the “plethora of special provisions” that
those distinctions had engendered. Jones v. State, 303 Md. 323, 328
(1985) (quoting Joint Committee on Theft Related Offenses, Report on
Revision of Maryland Theft and Bad Check Laws at 19 (1978)). Because
“take” now falls within the statutory definition of “deprive” in the theft
statute, see Md. Code Ann., Crim. Law (“CR”) § 7-101(c) (2012 Repl.
Vol.), we have looked to the pre-consolidation cases for the General
Assembly’s probable understanding of the word in 1968.
Gen. 136] 147

against possession is the matrix of the common
law larceny concept. There has been a constant
judicial struggle to ascertain who has
possession because an accused cannot, in legal
contemplation, trespass against a person’s
property, if that person does not have
possession. In general, the taking of
possession from another is always a trespass
unless with the consent of the other.
Farlow v. State, 9 Md. App. 515, 517 (1970) (citations and footnote
omitted). In Robinson v. State, 17 Md. App. 451, 458-59 (1973), for
example, the court stated that the defendant could not be convicted
for the larceny of a rental car without proof of a trespassory taking
from the rental customer, because the customer had been the person
in possession on the day the car was taken. Here, because the
customer—rather than the former supplier—is in possession of the
tank, there could be some doubt as to whether a new supplier who
has removed a tank with the consent of the customer has “taken” it
within the plain meaning of the term as construed by courts when
the Container Law was enacted.8
But allowing the consent of the customer, as the party in
possession, to determine the legality of the new supplier’s removal
of the tank—as the reasoning of Farlow and Robinson suggests—
would present its own interpretive difficulties. The plain language
of CL § 11-603 prohibits the “tak[ing]” of a tank without the written
consent of the owner, not the customer. Given that we are to
construe statutes in such a way as to give effect to every term used
by the General Assembly, see Mayor of Oakland v. Mayor of Mt.
Lake Park, 392 Md. 301, 327 (2006), we do not believe that a
definition of “taking” in Maryland larceny jurisprudence serves as a
useful guide for how we are to interpret the term “take” as used in
the Container Law. Under the plain language of the statute, the fact
that a customer has permitted the removal or relocation of the tank
would not seem to be relevant.

8
We emphasize that we are discussing the crime of theft as it existed
in 1968. The “new and broader crime of theft” embodied in the
Consolidated Theft Statute after 1978 “‘no longer makes necessary[] what
once were the trespassing, taking and carrying away elements of common
law larceny.’” In re: Antoinette, 200 Md. App. 341, 348-49 (2011)
(quoting Moylan, Maryland’s Consolidated Theft Law and Unauthorized
Use § 4.2 at 24 (MICPEL, 2001)).
148] [98 Op. Att’y

Other aspects of Maryland’s larceny jurisprudence, however,
seem more directly applicable and weigh against interpreting the
word “take” to require the removal of the tank from the customer’s
property. The Container Law proscribes the “tak[ing]” of an LPG
tank, not its “carrying away.” The two terms are understood to be
distinct from one another, see, e.g., Harris v. State, 353 Md. 596,
615 n.12 (1999) (noting the distinction between “taking” and
carrying, or “asportation” for purposes of carjacking statute), which
cautions against reading “take” to require some form of absconding,
lest we “place in the statute language which is not there.” Leppo v.
State Highway Admin., 330 Md. 416, 423 (1993) (quoting Simpson
v. Moore, 323 Md. 215, 226 (1991)).
At the same time, we have not found any indication that the
General Assembly intended to use the term “take” in this legal,
technical manner instead of in its more common sense, meaning:
“[T]o get into one’s hand or into one’s possession, power, or control
. . . .” Webster’s Ninth New Collegiate Dictionary 1202 (1989).
Given that a reviewing court might well “approach the analysis of
the language from a common sensical, rather than a technical
perspective,” Motor Vehicle Admin. v. Chamberlain, 326 Md. 306,
315 (1992), superseded by statute on other grounds, as recognized
in Motor Vehicle Admin. v. Delawter, 403 Md. 243, 265 n.12 (2008),
we cannot say with confidence that an LPG company that excavates
a tank but leaves it on or adjacent to the customer’s property has
“take[n]” the tank within the meaning of the Container Law.
Nor does the Container Law reflect the kind of “clear purpose,”
Bonds v. Royal Plaza Cmty. Assocs., 160 Md. App. 445, 458 (2004)
(quoting River Birch Assoc. v. Raleigh, 326 N.C. 100, 109 (1990)),
that would compel it to be interpreted broadly. It could be argued
that the statute reflects a strong policy goal—public safety—that
supports a broad construction of the term “take” that would forbid
the movement of an LPG tank by anyone other than its owner, who
presumably knows best how to do so safely. However, when the
General Assembly enacted the Container Law, it had already
entrusted the regulation of combustible and explosive materials to
the Fire Commission and had already mandated the adoption of the
Fire Code, which addresses the proper handling of LPG tanks
without respect to ownership. This order of enactment suggests that
the Legislature did not intend the Container Law as a public safety
measure, but instead “generally intended to regulate trade and
commerce,” as the code revision commission concluded.
Commission Report No. 175-1 at 8. In the absence of meaningful
legislative history suggesting otherwise, we are unable to discern a
Gen. 136] 149

clear purpose that would compel an expansive, remedial
construction of the law.
Rather, we think that the one interpretive rule that clearly
applies here—the rule of lenity—weighs against a broad
construction of “take” or “dispose of.” Under the rule of lenity,
“courts will not extend the punishment to cases not plainly within
the language used [by the Legislature].” Jones v. State, 304 Md. at
220 (citation and quotation marks omitted); see also Walker v. State,
432 Md. 587, 627 n.26 (2013) (describing the rule as an aid to
resolving an ambiguity in a criminal statute). Given that rule, we
cannot say that the new supplier’s movement of a tank “by the side
of the road” with the consent of the customer falls plainly within the
language used by the Legislature when it prohibited the “taking” or
“disposal of” of a marked tank without the owner’s written consent.
3. The Statute’s Evidentiary Presumption
Although the rule of lenity counsels against finding that this
type of conduct is proscribed by the Container Law, we must
consider whether the evidentiary presumption established by CL
§ 11-604(2), which is triggered by a person’s “possession” of a
marked container, would make it any easier to prosecute the supplier
for “disposing of” or “taking” the other company’s tank. In our
view, the presumption would not change the conclusions we reach
above.
At first glance, it would seem that a supplier who picks up an
underground storage tank with heavy equipment has “possession”
over it; the supplier has acquired a degree of control over the tank
and is exerting that control, and “control” over a thing has long been
deemed “possession” of that thing. See, e.g., Polansky v. State, 205
Md. 362, 366 (1954) (stating that possession occurs “as soon as one
obtains a measure of control or dominion over the custody of the
goods”). However, as explained by the Court of Special Appeals,
not every act of control over a thing rises to the level of “control” or
“possession” of it. Burns v. State, 149 Md. App. 526, 551
(2003). Instead, “possession generally contemplates something
more by way of continuing and exclusive exercise of dominion and
control over property than is required to show that a defendant was
merely a participant or joint possessor in some variety of prohibited,
but possibly short-lived, behavior.” Id. Whether the supplier has
acquired enough control over the tank to be deemed to “possess” it
for the purposes of the evidentiary presumption may again depend
on whether the supplier was merely leaving the tank on the
150] [98 Op. Att’y

customer’s property for the customer’s disposition, or, instead,
exercising a continuing and exclusive dominion over it by removing
it from the customer’s possession. In our view, then, the
presumption adds little to how the statutory scheme applies to the
scenario you describe.
In any event, the existence of the presumption would not
excuse the prosecution from proving the acts of taking or
disposal. Graham v. State, 151 Md. App. 466, 483 (2003)
(explaining that “a mandatory presumption” still requires that the
jury be “instructed that the presumption was rebuttable and that it
did not shift the burden of persuasion to appellant” (emphasis in
original)). Although we believe you have arguments available that
would allow you to charge such acts, the considerations described
above—the lack of a statutory definition of the operative terms, the
absence of meaningful legislative history, and the application of the
rule of lenity—suggest that a charge under this statute might be
difficult to prove when the new supplier has left the tank in a readily
accessible location on, or immediately adjacent to, the customer’s
property.
B. Leaving a Partially Filled LNG Tank “By the Side of the
Road” May Constitute a Criminal Violation of Other Laws
Relating to Public Safety.
We are quick to add, though, that other public safety laws may
prove a more effective means of prosecuting the conduct you
describe. Section 6-317 of the Public Safety Article, for example,
prohibits the alteration, maintenance, or use of equipment or land in
a way that “endangers life or property due to the hazards of fire or
explosion.” PS § 6-317(a)(1). The actions you describe may also
violate the NFPA 58 standards for the storage, handling,
transportation, and use of LPGs, which have been adopted into the
Maryland Fire Code. COMAR 29.06.01.06 (incorporating NFPA
Fire Code 1 (2012 ed.) by reference); NFPA Code 1, §§ 2.1, 2.2
(incorporating NFPA 58, Liquefied Petroleum Gas Code, by
reference). The Fire Code “has the force and effect of law in the
political subdivisions of the State.” PS § 6-206(a)(iii). The model
code provisions that might apply to the scenario you describe
include those that require most LPG tanks to be installed within
certain distances from dry grass and other combustibles, overhead
electrical lines, sources of ignition such as window air conditioners,
“public vehicular thoroughfare[s],” and “designated parking
locations.” NFPA 58, §§ 6.6.5.2, 6.4.4.3, 6.3.2.3, 6.6.6.1(B),
6.6.6.1(E), and 6.6.1.2; Annex J. Although these provisions are part
of the regulations for “installation” of LPG containers, courts may
conclude that they were intended to apply to the placement of
Gen. 136] 151

containers after their removal as well. If so, the knowing violation
of any of these provisions is a misdemeanor. PS § 6-601.
Depending on the circumstances, § 7-104 of the Criminal Law
Article might also apply; that theft statute provides that a person
may not exert unauthorized control over property if the person
“abandons the property knowing the . . . abandonment probably will
deprive the owner of the property.” CR § 7-104(a)(3). And a
supplier who knowingly places a leaking tank by the side of the road
or otherwise leaves it in a condition that “creates a substantial risk of
death or serious physical injury to another” could potentially be
prosecuted for reckless endangerment under § 3-204(a)(1) of the
Criminal Law Article. See Kilmon v. State, 394 Md. 168, 174
(2006) (guilt under the reckless endangerment statute does not
depend on “whether the defendant actually intended that his reckless
conduct create a substantial risk of death or serious injury”). Other
provisions of the criminal code might apply, as might the provisions
of subject-specific articles ranging from local littering and nuisance
ordinances to federal regulations on the safe transport of LPGs. The
many prosecutorial choices offered by these laws suggest that there
is likely little need to read the Container Law expansively.
III
Conclusion
Depending on the circumstances, the Container Law might
provide a route to prosecuting an LPG supplier for leaving a tank
“by the side of the road” in a place beyond either the customer’s or
owner’s control. However, given the lack of statutory definitions of
the operative terms of the Container Law, the absence of meaningful
legislative history, and the rule of lenity, the Container Law likely
would not provide the most direct path for prosecuting a supplier for
that conduct. In cases where the supplier leaves a partly-filled
propane tank in a place where it might be hit by traffic, vandalized,
or otherwise damaged, prosecution for reckless endangerment under
§ 3-204(a)(1) of the Criminal Law Article may be the best response,
as might a prosecution under the Public Safety Article, which
incorporates the extensive State Fire Code regulations on the
handling of liquefied propane gas.
Douglas F. Gansler
Attorney General
D’Arcy Talley
Assistant Attorney General
Adam D. Snyder
Chief Counsel, Opinions & Advice