A state agency’s enabling act is constitutional if their decisions are subject to judicial review; Maryland law provides guidelines for state agencies when using their discretion to issue penalties

By: Nicholas Mastracci

     The Court of Appeals of Maryland held that the Maryland Underground Facilities Damage Prevention Authority enabling act does not violate the Judicial Vesting Clause of the Maryland Constitution or the Separation of Powers Clause of the Maryland Declaration of Rights.  Reliable Contracting Co. v. Md. Underground Facilities Damage Prevention Auth., 446 Md. 707, 729, 133 A.3d 1112, 1125 (2016).  The court also ruled that the Authority was a state agency based on the relationship between the Authority and the State of Maryland.  Id. at 729, 133 A.3d at 1124-1125.  As such, section 10-1001 of the State Government Article provides guidelines when assessing civil penalties.  Id.

     In February 2013, a local utility notified the Maryland Underground Facilities Damage Prevention Authority (the “Authority”) that Reliable Contracting Company (“Reliable”) began an excavation project without permission.  Reliable’s conduct was in violation of section 12-101 of the Public Utilities Article (“PU”), which establishes the one-call system.  As a result, Reliable caused damage to the local utility’s facilities.  On April 16, 2013, after an investigation, the Authority assessed a civil penalty of $2,000 for excavating without notifying the one-call system, and a $1,000 penalty that could be waived if Reliable completed training offered by the Authority.