After Maine voters changed the Sunday closing law in 1990, what could large retail stores actually do, and what protection did employees have?

Plain-English summary

Maine's Sunday Sales Law dates to 1821. At its core: "No person, firm or corporation may, on the Lord's Day ... keep open a place of business to the public" (17 M.R.S.A. § 3204). Over time, 30-plus exemptions accumulated, including a 1963 carve-out for stores with no more than 5,000 square feet of customer-selling space, and a 1983 carve-out for the noon-to-5 PM window on Sundays between Thanksgiving and Christmas.

On November 6, 1990, Maine voters approved an initiated amendment (P.L. 1989, I.B. 3) that added two pieces to § 3204:

• A new exemption for stores with more than 5,000 square feet of customer-selling space that engage in retail sales and that do not require Sunday work as a condition of employment.
• A new closing rule: stores with more than 5,000 square feet must be closed on Easter, Thanksgiving, and Christmas.

Attorney General James Tierney issued this opinion to the eight Maine district attorneys to coordinate statewide enforcement. The opinion answers six concrete questions.

Required employee work on Sundays. The new "no required Sunday work" condition applies only to stores availing themselves of the new large-store exemption. It does not retroactively apply to the 30 other previously exempt categories. Smaller stores (under 5,000 sq ft, an older exemption) can still require Sunday work because their exemption pre-dates the 1990 amendment.

Salaried vs hourly. No distinction. The amendment uses "employees" without qualification. A store using the new exemption may not require any employees, including supervisors, to work Sundays.

Reduced hours as a "condition." If a store warns an existing employee that hours will be cut for not working Sundays, the AG read that as imposing a condition of employment, which destroys eligibility for the new exemption.

Employee remedies. Three routes. A reporting employee can (1) report the violation to the appropriate district attorney for criminal prosecution; (2) if a resident of the municipality, file in Superior Court for an injunction under § 3204; and (3) report to the Maine Human Rights Commission under the Whistleblowers' Protection Act, 26 M.R.S.A. § 831 et seq., which requires giving the employer a reasonable opportunity to correct before seeking relief.

Easter, Thanksgiving, Christmas closures. Whether the closure requirement reaches the 30+ previously exempt businesses is ambiguous. The text could be read either way. Citing the rule of lenity from State v. S. S. Kresge, Inc., 364 A.2d 868, 870 (Me. 1976), and noting that few of the 30+ exempted activities are "stores" anyway, the AG resolved the doubt in favor of business and concluded the closure rule does not extend to other-category exempt businesses.

Noon-to-5 restriction on Sundays between Thanksgiving and Christmas. The 1983 restriction limited Sunday opening between noon and 5 PM during that window. The AG concluded that newly-exempt large retail stores are not bound by this; the 1983 restriction applies only to stores still otherwise subject to the general Sunday closing rule.

"Retail" definition. No statutory definition. The AG referenced the dictionary definition: sale of goods or articles individually or in small quantities directly to the consumer. So the exemption is for goods sales (not services) made directly to ultimate consumers. Case-by-case in the margins.

Unrelated provisions. Other Sunday Sales Law sections (§ 3203 on motor vehicle sales, § 3205 on amateur sports, § 3207 on motion pictures) were unaffected by the 1990 amendment.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Sunday closing laws (often called "blue laws") have a long history in Maine, dating to legislation passed by the First Legislature in 1821 (P.L. 1821, ch. IX). Maine's version became a patchwork as 30+ specific exemptions accumulated over the decades.

Under 17-A M.R.S.A. § 4-A, violations of the Sunday Sales Law are Class E crimes. Class E crimes are the lowest crime category in Maine, and the opinion notes these violations have traditionally been enforced by the district attorneys' offices rather than by the Attorney General.

The 1990 initiative was part of a broader national trend toward eroding Sunday closing requirements. The political dynamic in Maine pitted large retail chains (wanting to open Sundays) against employees and smaller competitors (wanting protected days off). The initiative's "no required Sunday work" condition was a compromise: large stores could open, but only if employees could decline Sunday work without consequence.

The Whistleblowers' Protection Act (26 M.R.S.A. § 831 et seq.) provides a parallel civil remedy. Under § 833(1)(A), an employee who reports a suspected violation of state law to a supervisor and gives a reasonable opportunity to correct is protected from retaliation. The Maine Human Rights Commission enforces the Act.

Common questions

Could a small store still make employees work Sundays?
Yes, under this opinion. Stores 5,000 sq ft or smaller fall under the older exemption (P.L. 1963, ch. 370), which has no Sunday-work restriction. Only stores using the new large-store exemption are subject to the no-required-Sunday-work rule.

What if an employee just refuses to work Sundays?
The store loses its eligibility for the new exemption if it disciplines the employee for that refusal, and can be prosecuted under § 3204 for being open in violation of the Sunday closing rule. The employee can also use the Whistleblowers' Protection Act remedy.

Why is the Easter/Thanksgiving/Christmas rule narrower than it looks?
The AG read the rule narrowly because the language was textually ambiguous and the rule of lenity calls for narrow construction of penal statutes. S. S. Kresge is the cited authority. Also, the 30+ existing exemptions cover businesses that mostly are not "stores" in the ordinary sense (transportation, lodging, restaurants, etc.).

What happened with the Sunday Sales Law after 1990?
The statute has been amended repeatedly since. Don't rely on the specific exemption list or penalties in this opinion as current law. The general framework (Sunday closing with exemptions, employee protection for the large-store carve-out) is still recognizable, but the details have changed.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1990/ag_19901126.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

State of Maine
Department of the Attorney General
State House Station 6
Augusta, Maine 04333

November 26, 1990

[Addressed to eight District Attorneys / District Attorneys-Elect: Michael Cantara (York County), Stephanie Anderson (Cumberland County), Janet Mills (Androscoggin County), David W. Crook (Kennebec County), Christopher Almy (Penobscot County), William Anderson (Knox County), Michael E. Pavich (Hancock County), Neale T. Adams (Aroostook County)]

Dear District Attorneys:

This letter is intended to provide the Opinion of this Department concerning the enforcement of the so-called Maine Sunday Sales Law, 17 M.R.S.A. § 3201, et seq., in the wake of the amendment of that law by initiated legislation at the general election earlier this month. As you know, violations of the Sunday Sales Law are criminal in nature, and thus may be enforced either by this office or by the appropriate District Attorney's Office. Since, however, by operation of 17-A M.R.S.A. § 4-A, violations of the Sunday Sales Law are Class E crimes, they have traditionally been enforced by the District Attorneys' Offices. Nonetheless, this Department has been receiving numerous questions concerning the interpretation of the newly amended law since the election, and provides the following advice in order to ensure statewide consistency in its enforcement.

I. The Sunday Sales Law

The Sunday Sales Law derives from legislation passed by Maine's First Legislature in 1821, P.L. 1821, ch. IX. Essentially, it provides that: "No person, firm or corporation may, on the Lord's Day ... [and certain specified holidays], keep open a place of business to the public, ..." 17 M.R.S.A. § 3204. Since its enactment, the law has been the subject of frequent amendment. First, the law has been amended to exempt over 30 specific classes of businesses, which appear in the second paragraph of Section 3204. Second, in 1963, the law was amended to include, as the last of this series of exempted establishments, a general category of exempted enterprises consisting of "stores which have no more than 5,000 square feet of interior customer selling space, excluding back room storage, office and processing space." P.L. 1963, ch. 370. Finally, in 1983, the law was also amended to exempt from its operation any place of business which operated "between the hours of noon and 5:00 P.M. on those Sundays falling between Thanksgiving Day and Christmas Day." P.L. 1983, ch. 156.

II. The 1990 Amendment

The initiated legislation passed by the electorate on November 6, 1990 made two amendments to this statutory scheme. First, it added to the list of exemptions from the law (including the general exemption for stores which are no more than 5,000 square feet in size) a new exemption providing that: "stores with more than 5,000 square feet of interior customer selling space which engage in retail sales and which do not require, as a condition of employment, that their employees work on Sundays." Second, the initiated legislation added a new sentence to the paragraph containing the list of exemptions, providing that: "In no event, however, shall any store having more than 5,000 square feet of interior customer selling space be open on Easter Day, Thanksgiving Day and Christmas Day." P.L. 1989, I.B. 3. The results of the election enacting the initiated legislation were certified by the Secretary of State on November 26, 1990. Under the provisions of Me. Const., Art. IV, Pt. 3, § 19, it is now in order for the Governor to make a public proclamation of the results within 10 days of the Secretary of State's action, after which the amendments will take effect 30 days thereafter.

III. Specific Questions

Before answering the specific questions which have arisen as a result of the new amendments to the Sunday Sales Law, it is important first to observe that since these amendments occurred as the result of initiated legislation, there is no legislative history in the traditional sense to which a person seeking to interpret the intention of the amendments may resort. Thus, one is left only with the text of the amendments, as well as the manner in which the initiators choose to integrate the amendments within the text of the entire law, as legally cognizable sources for their interpretation.

A. Ability of Business Establishments to Require Employees to Work on Sundays

Perhaps the most frequently asked question thus far concerning the interpretation of the 1990 amendments to the Sunday Sales Law is whether the provision of those amendments prohibiting stores from requiring employees to work on Sundays as a condition of employment applies to business establishments which were previously exempted from the operation of the law in its entirety. In the view of this Department, it was not the intention of the initiators that this provision apply to business establishments (including stores of less than 5,000 square feet in size) which were previously exempted. The reason for this view is that, instead of setting forth the prohibition against required Sunday work in a separate sentence, the initiators elected to contain it within an additional exemption which they added to the long list of exemptions already in the law. Thus, it appears that their intention was that only those stores which avail themselves of the newly created exemption of "stores with more than 5,000 square feet of interior customer selling space which engage in retail sales" should be subjected to the requirement that they not be allowed to require their employees, as a condition of employment, to work on Sundays. Consequently, if a business establishment can show that it is exempt under one of the other exemptions (including the one exempting stores which have "no more than 5,000 square feet of interior customer selling space"), it may continue to require that its employees work on Sunday.

This Department has also been asked whether this restriction on requiring employees to work on Sunday applies to salaried employees, such as supervisors, as well as those who work on an hourly basis. On this question, the initiators have provided no assistance other than their use of the word "employees." Thus, it appears that they did not intend to discriminate between classes of employees. Consequently, retail stores seeking to take advantage of the newly created exemption may not require any of their employees to work on Sundays.

A final question concerning employee relations is whether a company availing itself of the new exemption may tell an existing full-time or part-time employee that his or her hours of employment may be reduced or rearranged if he or she does not work on Sunday. In the view of this Department, such an action by an employer would constitute the imposition of a "condition of employment" on the employee not choosing to work on Sunday, and would destroy the employer's eligibility for the exemption.

B. Employee Remedies

This Department has also been asked what remedies would be available to an employee whose employer, while availing himself of the new exemption for retail stores of more than 5,000 square feet in size, requires that employee to work on Sunday. Such an employee would first have the ability to report the violation to the appropriate District Attorney so as to cause the employer to be prosecuted for maintaining a business illegally on Sunday. In addition, if the employee is a resident of a municipality in which the violation occurred, he or she may file a complaint in Superior Court seeking an injunction. 17 M.R.S.A. § 3204. Finally, such an employee would also have the ability to report the employer to the Maine Human Rights Commission for a violation of the Maine Whistleblowers' Protection Act, 26 M.R.S.A. § 831 et seq. That Act provides that "no employer may discharge, threaten or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location or privileges of employment because ... the employee, acting in good faith ... reports orally or in writing to the employer or a public body what the employee has reasonable cause to believe is a violation of a law or rule adopted under the laws of this State, ..." 26 M.R.S.A. § 833(1)(A). Protection under the Act is given to an employee only if the employee 1) brings the alleged violation of the Sunday Sales Law to the attention of a supervisor and 2) allows the employer a reasonable opportunity to correct the alleged violation. If, having met these preconditions, the employee has the conditions of his employment in any way altered by the employer because of his or her refusal to work on Sunday, that employee may then bring the matter to the attention of the Human Rights Commission which, after investigation, is authorized, at no cost to the employee, to seek a court order to make the employee whole (by restoring lost employment, hours, pay, and benefits) and assessing civil penalties.

C. Easter, Thanksgiving and Christmas

This Department has also been asked whether the new provision of the law requiring that "stores" with more than 5,000 square feet of interior customer selling space be closed on Easter, Thanksgiving and Christmas applies to stores which were previously exempted from the law. On this point, the text of the initiators' amendments can be read in two inconsistent ways. On the one hand, the fact that the initiators chose to include the prohibition against opening on the three holidays in a separate sentence, preceded by the words "In no event, however ...," could be read to manifest an intention that all stores more than 5,000 square feet in size, regardless of whether they were previously exempted, would be covered. On the other, the fact that the initiators used the same word, "stores," in both of the two new provisions of the law might manifest an intention that they mean the same thing, namely, stores more than 5,000 square feet in size which were not previously exempt.

In view of this uncertainty, and mindful of the rule of statutory construction that penal statutes are to be strictly construed against the State, State v. S. S. Kresge, Inc., 364 A.2d 868, 870 (Me. 1976) (construing Sunday Sales Law), this Department is reluctant to conclude that the initiators intended that the prohibition on opening on Easter, Thanksgiving and Christmas apply to any of the 30 or so activities previously exempted. This conclusion is supported by the fact that few of these activities could properly be said to occur in "stores." Thus, in the view of this Department, if a business, even of more than 5,000 square feet in size, was previously exempted from the Sunday Sales Law, it may remain open on the three holidays in question.

D. Meaning of "Retail" Stores

As indicated above, the new exemption for business establishments of more than 5,000 square feet in size, applies only to "stores" which engage in "retail sales." Not surprisingly, some question has arisen as to the scope of these terms. On this issue, this Department is not able to be of great assistance except to refer to the dictionary definition of "retail," which suggests that the term applies to "the sale of goods or articles individually or in small quantities directly to the consumer." Webster's New World Dictionary, 2d ed. Thus, it would appear that the exemption applies only to businesses involved in the sale of goods, rather than services, and applies only if those sales are being made directly to the ultimate consumers. Beyond this, the Department (and the courts) would have to determine its view of the application of the exemption to individual business establishments on a case-by-case basis.

E. Continuing Vitality of Hour Limitations on the Sundays between Thanksgiving and Christmas

Beginning in 1991, the new amendments to the Sunday Sales Law will apply to the Sundays falling between Thanksgiving Day and Christmas Day. A question arises, therefore, as to whether the existing provision that the law does not apply at all between the hours of noon and 5:00 P.M. on those Sundays applies to the stores newly exempted from the law. In the view of this Department, those restrictions would not apply to these stores. As indicated above, the initiated legislation simply adds a new class of exempted business establishments to the list of already exempted business establishments, namely retail stores of more than 5,000 square feet in size. Since all of the other previously exempted business establishments were not bound by the noon to 5:00 P.M. restrictions on the Sundays between Thanksgiving and Christmas, the newly exempted stores would therefore also not be so bound. Consequently, only the business establishments which somehow remain subject to the general prohibition of the Sunday Sales Law would be allowed to open only on those Sundays between Thanksgiving and Christmas and only within the hours specified.

F. Certain Businesses

Finally, it is worth noting that there are other provisions of the Sunday Sales Law, outside of Section 3204, which deal with specific businesses or activities, and which are not affected by the amendments to Section 3204. Those businesses and activities include those involving in the sale of motor vehicles, 17 M.R.S.A. § 3203; the conduct of amateur sports, 17 M.R.S.A. § 3205; and the showing of motion pictures, 17 M.R.S.A. § 3207. Therefore, questions concerning the application of the Sunday Sales Law to these activities should be answered by reference to the appropriate section dealing specifically with them and not by reference to Section 3204.

I hope the foregoing is of assistance to you in the enforcement of the Sunday Sales Law. Please feel free to inquire with this office if you have any further questions, directing those questions to Deputy Attorney General Cabanne Howard.

Sincerely,

James E. Tierney
Attorney General

JET: SW

cc: Patricia Ryan, Executive [Director], Maine Human Rights Commission
Charles A. Morrison, Commissioner of Labor

[Attached: 17 M.R.S.A. § 3204 statutory text as it stood after the 1989, c. 156, 1985, c. 480 (effective June 9, 1986), 1985, c. 819, § 1, eff. April 19, 1985, 1985, c. ... amendments, and showing the proposed amendments by P.L. 1989, I.B. 3, certified by the Governor on Nov. 6, 1990.]