Lussier v. Maryland Racing Commission

P. Frank LUSSIER MARYLAND RACING COMMISSION. Term, 96, Sept.

No. Maryland. Appeals of Court of Nov. 1996. (Brocato, Bushel, P.A.,

Glenn E. Bushel brief), Price & on Baltimore, for Petitioner. (J.

Bruce C. Spizler, Attorney Assistant Joseph General Curran, Jr., General, Attorney brief), Baltimore, for Re- spondent.

ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, RAKER, JJ., BELL and McAULIFFE, and JOHN F. Judge (Retired), Specially Assigned.

ELDRIDGE, Judge. The single issue before us in this case concerns validity, owner, as applied to a Maryland racehorse of a Racing Com- mission regulation which authorizes the Commission to impose $5,000 a monetary penalty not exceeding upon a person sub- ject who, alia, jurisdiction inter violates the Commis- regulations.1 sion’s provides

1. COMAR 09.10.04.03D as follows: "D. Denials of Licenses and Sanctions. license, may The Commission refuse to issue or renew a or it, suspend or revoke a license issued applicant if it finds that the or licensee: (a) conduct; engaged Has in unethical or criminal (b) associating Is consorting with an individual who has been jurisdiction; convicted of a crime in

I. Lussier, resident who Frank P. is Vermont petitioner, The spring racehorses thoroughbred three purchased Mary- shipped were three horses Later 1991. in three Race Course at the Laurel they where raced land and Decem- 26, 1991, December on November races Maryland Lussier was licensed ber racehorses, expired and his license an owner of his did not renew of 1991. Lussier the end 1992 or thereafter.2 license for with, with, (c) consorting associating or has consorted Is bookmaker, tout, pursuits; or individual of similar tout, bookmaker, Is, been, (d) operating or a similar as a or has pursuit; (e) responsible; financially Is not in, in, any (f) attempted engage fraud or engaged or Has been breeding racing of a with the or misrepresentation in connection horse; to, Assaults, injury of the bodily a member (g) or threatens to do representatives or a member employees or or of its Commission association; employee of an or (h) racing; or engaged in conduct detrimental Has violated, (i) attempted or to violate: Has State, (1) including any jurisdiction, in A law (ii) imposed by A condition the Commission. license, to, of, (2) suspending a the Commis- or in addition Instead $5,000. exceeding may impose a fine not sion penalty imposed, the Commission shall determining In to be consider the: violation; (a) Seriousness of the violation; (b) Harm caused licensee; (c) good and faith of the Good faith or lack (d) Licensing history of the licensee.” monetary penalties in various regulations fines or Other authorize $5,000, amounts, specific types exceeding of miscon- for certain but See, e.g., duct. COMAR09.10.03.02. change Although no substantial in there has been numbering regulations of the

pertinent to this case since opinion in this use the changed. Except quotations, for we shall regulations. numbering of the current 09.10.01.28, an owner of a racehorse COMAR09.10.01.25 and 2. Under subject in a race allowed to start the horse is not licensed jurisdiction unless that owner is Commission's basis, expires and on is issued on an annual Commission. The license year. 31st of each December Maryland Racing Commission February an Racing Protective Bureau commenced Thoroughbred 26, De- to the races on November investigation regard with the true to determine whether and December cember horses had been concealed or trainer of the three owner horses had reports workout for the three whether falsified investigation, published. Upon completion been 1, 1992, the July hearing after a before Commission “improper participated that Lussier had Commission found in violation of COMAR racing acts relation 09.10.01.11(A)(3);” two of his horses that Lussier transferred purpose for a person to the name of another “from himself in violation of sale of the horses legitimate other than the 09.10.01.11(A)(14);” perpetrated and that Lussier COMAR activities, responsibili- his acts in connection with “dishonest track, in conduct engaged the race and has ties and duties on violation of COMAR detrimental 09.10.01.25(B)(8).” July In an issued on order $5,000 upon a fine Lussier.3 imposed Court for Baltimore

Lussier filed an action Circuit decision, chal- judicial review of the Commission’s County After grounds. decision on several lenging the administrative order upheld the circuit court the Commission’s hearing, $5,000 appealed Lussier. Lussier upon fine imposing numerous issues. The again raising of Special Appeals, Court rejected each of Lussier’s conten- appellate intermediate court Comm’n, Maryland Racing Lussier v. tions and affirmed. A.2d 259 Lussier then filed Md.App. certiorari, all presenting petition this Court a for writ in both courts below. This the issues which he had raised namely petition single question, limited to granted Court could, regula- accordance with whether tion, absent a a fine as a sanction for misconduct impose Court, light of limited issue before this we have no occasion to presented hearing regarding at the administrative set forth the evidence is contained in Lussier's misconduct. A detailed review of the evidence Special Appeals. comprehensive opinion of the Court of See Lussier Comm'n, (1994). Md.App. Maryland Racing 640 A.2d 259 of a imposition expressly authorizing statutory provision fine.

II. Mary- “elementary” principle an argues Lussier that it is fix authority to lack the agencies land law that administrative statutory authorization specific in the absence of “penalties been the always and that “it has Legislature,” from the fix ... for trans- penalties exclusive Legislature’s province law, specific delegation.” or via gressions directly either 17). (Petitioner’s which brief at Lussier cites three cases Maryland adminis- support alleged principle he claims this Services, v. Health They Holy Hosp. trative law. are Cross (1978); 393 A.2d 181 v. Easton Publish- Gutwein denied, Co., (1974), cert. ing 325 A.2d 740 (1975); and County 95 S.Ct. 43 L.Ed.2d 673 U.S. 312 A.2d 225 Funding, Council v. Investors Lussier, According since the General did explicitly impose upon not authorize the Commission to a fine owner, in this case “is a a racehorse the Commission’s order (Petitioner’s 10). at Lussier asserts that nullity” brief fine, regulation authorizing imposition Commission’s of a 09.10.04.03D, except applied is invalid to those COMAR operators licensed racetrack who have been awarded 16-18). (Petitioner’s Maryland dates. brief at See Code 11-308(d) (1992, § Business Supp.), Regulation (expressly authorizing impose Article the Commission to $5,000 racetrack monetary penalty exceeding upon opera- alia, who, inter violate the statute or the Commission’s tors regulations). pointed Special Appeals,

As out the Court of Lussier v. Comm’n, Maryland Racing supra, Md.App. upon by cases relied prior Court’s that, assertion recognize support

Lussier neither nor law, an lacks agency under particular penalty explicit unless it has authoriza- Legislature Holy Hosp. tion from the to do so. Cross Services, imposition Health was not concerned with the

686 instead, whether, in that case was penalties; question of construction, agency’s an statutory a matter of administrative to hospital extended fees statutory authority regulate to rates In by physicians hospital patients. to Gutwein v. charged Co., 576, 747, A.2d at 272 Md. at 325 Publishing Easton whether, statutory provi- pertinent issue .under the /was Commission’s “[i]n [Human Relations] sions and view of Human background,” the Relations Commission legislative damages an award of to compensatory was authorized make penalty a nor employment a victim of discrimination. Neither involved by agency a was regulation adopted v. case. The of Investors portion County Gutwein Council 246-247, 441-143, Funding, supra, 270 Md. at 312 A.2d had to do with an relating monetary penalties, nothing type agency’s imposition particular administrative fact, statutory without authorization. penalty express express statutory there was authorization Funding Investors monetary The issue in agency penalties. for the light validity that case concerned the the statute due delegation powers process principles. constitutional Lussier, nor any cases relied by Neither called to other decisions of this Court which have been our attention, general set forth or state support principle authority, to fix a agency by regulation, lacks subject jurisdiction civil misconduct to its unless penalty expressly agency authorized the the General type penalty. fix that Lussier,

Instead, the cases invoked as well as Court, that, other indicate numerous decisions determining agency whether a state administrative autho manner, statutes, in a legislative rized to act particular policies pertinent agency are control background See, Restaurant, e.g., v. 339 ling. Comptroller Washington 670-673, 667, 899, (1995); Md. 664 A.2d 900-902 Luskin’s v. Protection, 188, 196-198, A.2d Consumer 338 Md. (1995); Restaurant, H Md. Fogle 792-793 v. & G (1995); Resources, A.2d 449 Natural Department Christ (1994); McCullough (1989); Wittner, Pub., 756- v. Consumer Protection Consumer v. Health (1985); Hosp. Cross 48, Holy 501 A.2d 184-187; 683-689, A.2d at Services, Md. at supra, 575-576, Co., at supra, Publishing v. Easton Gutwein validity Moreover, regard with 746-747. agency, an administrative by regulation promulgated “is ‘consistent whether standard governing agency under which the of the law spirit letter and with the ” Resources, supra, Natural Department v. acts.’ Christ Department quoting at 644 A.2d at Armacost, Md. Transportation Restaurant, supra, Hv. & G Fogle also See there cited. and cases A.2d at III. Maryland applicable the statutes

Turning to Regu Business of the Commission, subtitle title the Commis Code establishes lation Article staff, forth and sets membership sion, for its provides partic Instead of the Commission. authority generally regard with of the Commission ularizing powers various in trainers, and others involved owners, jockeys, racehorse §in broad provisions, statutory Maryland racing, ... regulations to “adopt authorize the Commission ly State,” and then betting racing on govern racing may the Commission regulations which types four specify Article Thus, Regulation the Business § 11-210 of adopt. not as follows: part in relevant states Regulatory of Commission.

“§ 11-210. (b) (a) subsection provided general. Except — section, may: the Commission racing (1) govern and conditions to adopt regulations ... racing the State betting

(b) regulations. Prohibited —The that allow: regulations adopt

(1) law; or a breed of horse not now authorized currently unauthorized: holding

(i) betting; intertrack (ii) or betting; off-track (iii) betting telephone other than account telephone betting.” that, consistently Legislature

This Court has held where the such broad to a state administrative delegated area, regulations an agency promulgate agency’s are valid under the statute if do not contra- they statutory language purpose. repeatedly dict the We have here, rejected argument, similar to that made Lussier Legislature required expressly explicitly that the was particular regulatory Recently authorize the action. Christ Resources, Department Natural 335 Md. at 437- 38-39, in upholding Department 644 A.2d at a of Natural regulation prohibiting persons age Resources under the of (335 watercraft, from certain of we operating types explained 39): Md. at 644 A.2d at Act, “In ... Assembly broadly the State Boat the General granted Department authority adopt regula- to the the to tions of vessels’ which are governing ‘operations any subject to the Act. numerous situations where the Gener- Assembly delegated al similar broad to an admin- power agency adopt legislative istrative to rules or in a regulations area, particular upheld this Court has the agency’s rules or regulations they as did not contradict the long language purpose of the statute. Comm’n,

“For in example, Racing Jacobson Md. (1971), Md. where pertinent gave statute Commission the ‘full rules, power prescribe regulations to and conditions under conducted,’ which all horse races shall be the contention that legislative delegation did not reach a rule regulating the transfer of race horses by was characterized this Court as an argument ‘approaches which the frivo- ” lous.’ upholding in Court numerous cases reviewing After other au- delegations of under broad types various to on Christ we went thority agencies, Lussier in the by like advanced an reject argument 39): (335 case at Md. present concerning absence plaintiffs argument “The crux delegation authority specific is that ‘there no statutory Department the General authority regulations which Department promulgate permitting the of citizens of an entire class the use vessels prohibit 10). (Plaintiffs at As above-cited the State.’ brief demonstrate, however, is not specificity required. such cases governing promulgate ‘regulations The broad encompasses a plainly ... vessels’ operations motor vessels certain regulation prohibiting operation 14.” by persons under Restaurant, Fogle H & G

See (in regulation prohib- upholding A.2d at an administrative though even the statute did iting smoking workplaces, in most matter, this Court out “that expressly pointed not address agencies’ promul- courts should defer to decisions generally rules they presumably new make gating regulations because field”). upon expertise particular based their Legislature Similarly, authority granted by the broad promulgate regulations Maryland Racing racing” govern racing betting plainly encompasses “to authorizing monetary penalty, of a imposition $5,000, upon racehorse who exceeding engaged owner in connection with three races deceptive Lussier’s misconduct regulation in no at the Laurel Race Course. The manner language relating contradicts the of the statutes the Com- mission.

Moreover, authorizing a fine imposition have entirely statutory purpose. in accord with the We in Legislature’s purpose granting often stated that “[t]he Racing rules was promulgate in Maryland fairly, to assure that horse races are ‘conducted ” Comm’n, decently clean[ly],’ and v. Md. 323 Md. Heft 257, 263-264, (1991), 592 A.2d quoting Mahoney (1946). 81, 84, Byers, A.2d The “Commis- performs sion an active role of formation in order to policy ensure the integrity racing Maryland horse this State.” Castrenze, 284, 294, Racing Com’n v. Club, Maryland Jockey See Greenfeld (1948) (one purposes

statute and was to insure that law protects “[t]he fraud”). against bettors

If we were to accept argument Lussier’s that the Racing Commission is powerless impose any penalty or express statutory sanction without authority relating to that owners, type penalty, trainers, then racehorse jockeys and others could commit numerous deceptions and frauds upon public, bettors and the and the Commission could do little statutory about it. The purpose requires that the Commission be able to sanction misconduct in racing. connection with The is, therefore, challenged regulation clearly consistent with the statutory purpose insuring integrity of racing protecting public from fraud. Assembly

As the General has delegated broad Maryland Racing Commission to adopt regulations govern “to racing State,” betting racing and as the regula- tion providing for the of a imposition monetary penalty does statutory language contradict the or purpose, regula- statutorily tion is under a authorized consistent line of this Court’s decisions with the dealing regulatory authority of state administrative agencies.

IV. Furthermore, history, nature and regu- rationale of the latory governing State, scheme horse this as well as actions by Court, the General opinions by validity confirm the of the regulation authorizing imposi- owners, trainers, etc., tion of a fine racehorse upon jockeys, engaging misconduct.

691 1920, racing of horse licensing regulation and Prior on a accomplished was betting Maryland and on horse races racing jurisdictions, local basis. In a few county-by-county rac and horse regulate were to license commissions created counties, licenses. In most the circuit courts issued ing. with accomplished by statutes regulation Much of the was for each attorney the state’s criminal sanctions enforced regulation licensing For a review of the and county. pre-1920 see, State, 332, 146 A. v. 157 Md. racing, e.g., Nolan horse Asso., (1929); Md. Agr. 268 v. Md. 134 Close Southern State, (1919); v. Agri. County 108 Montgomery A. 209 Soc. of (1917); & Agri. A. v. Clark Harford Asso., (1912), 85 A. 503 overruled Breeders’ Md. v. County Metropolitan Howard Comm. West grounds, other (1963); Dycer, phal, 232 Md. State 36 A. 763 for the In this Court that the statutes providing held racing of horse the circuit courts were unconstitu- licensing nonjudicial and duties they imposed tional because functions upon separation powers circuit courts in of the violation requirement Maryland Article Declaration Asso., Rights. Agr. Close Southern Md.

629, 108 A. 209. case, in 1920 response Close the General entirely licensing scheme adopted an new statewide intact, racing continued, horse regulating largely which until time. present By Ch. 273 of the Acts of Legislature Maryland created Commission as agency, appointed by state whose members were the Gover- nor, jurisdiction within encompassed “any meeting and whose racing permitted State of whereat horse shall be stake, purse reward.” Ch. 273 the Acts of 1,§ subsection 1. 1920 statute contained somewhat The detailed with provisions regard licensing of “[a]ny person persons, association or desir- corporation id., ing of Maryland,” to conduct within the State Apart concerning subsection 7. from the racetrack provisions however, the 1920 operators racing, owners or who conducted broadly “Racing statute stated that the Commission shall have rules, conditions under prescribe full of which all horse-races shall be conducted within the State re- Maryland. governing, Said Commission make rules id., races,” stricting regulating betting on such subsection 11. expressly Mary-

As the 1920 statute did not authorize the regulate land Commission to license and racehorse owners, trainers, etc., in 1921 jockeys, Attorney the General asked whether the Commission was authorized specifically was and Motz for the of jockeys. Judge to license trainers Court present Attorney case summarized the Special Appeals (Lussier Maryland Racing General’s as follows response 267): Comm’n, at Md.App. “In was asked whether Attorney General quoted general powers permitted above jockeys Opp. Att’y that and trainers be licensed. 6 require jockeys of and concluding licensing Gen. of scope authority granted trainers was within the Commission, the Attorney specifically recognized General by that ‘no over them given control the Commission [was] [Act],’ any express provision very id. at and that express statutory powers few of the Commission’s dealt regulation racing with ‘the itself.’ Id. at 480. The Attorney noted that the reason for this was that the General that the formulation of legislature adequate, prac- ‘realized satisfactory regulations tical and those involved [governing involved a racing knowledge racing conditions itself] did not Assembly possess, which General and which only acquired by study racing, could be a careful and of many problems connected therewith.’ Id.” Special Appeals point The Court of went on to out that the Attorney opinion General’s no though given “concluded even the Commission was over, license, express statutory control let alone trainers, jockeys and intended that it General have power. He reasoned: racing control complete full and no ‘There can be upon those Commission, it controls unless of the part largely race so of the the outcome honesty skill whose pre- conditions rules and regulations, All other depends. securing purpose for the the Commission by scribed which elevating the standards racing and clean nullified be could to be conducted is I do and trainers.... jockeys purchasable dishonest jock- intended that believe, Legislature ... that the a feature of trainers, so essential probity whose eys and control of the entirely beyond be racing, should clean Commission____ give clearly designed Act was] [The control powers sweeping broad and the Commission that, in opinion and I am of racing, conferred expressly authorization spite [limited] unlimited therein, possess practically the Commission rules and such and pass, promulgate power enforce racing control of the actually dealing with to be desirable appear of the Commission judgment necessary. and added). Thus, the General since (emphasis at 481-82

Id. regu- power’ ‘full had the Commission Assembly given that the Attorney found the General horseracing, late ability ‘full[y] do without the could not so honesty and ‘those whose upon control completely]’ and 480-81.” Id. depended.’ outcome of races skill the Attorney General opinion regard With Commission’s Racing that position taking trainers, and others owners, jockeys, to racehorse extended language, this Court by statutory covered expressly not 84-85, A.2d at 187 Md. Mahoney Byers, supra, stated: under the Act stated that may outset it be

“At the 78B, which created Article Code Chapter Commission, and authori- it has Maryland govern rules to reasonable ty promulgate the conduct of regulating rules may It make such horses. owners, all matters trainers, regulate jockeys, generally racing, they may to horse order be pertaining but not revoke fairly, decently clean[ly] conducted except Opinions Attorney a license for cause. 6 General 11, 273; 24, 480; governed have Attorneys

“These decisions General time, long Attorney for a General the Commission shortly pas decision was rendered after the Armstrong’s no to alter or disturb these sage of the Act. We see reason decisions, long Popham v. Conservation Commis applied. sion, Machen, 184; City Baltimore 618, 104 A. 175.” mentioned, As scheme of the 1920 previously basic the present statute has continued until time. Under (1992, 11 of Supp.), Regulation Code title the Business Article, legislated in detail with General meetings Mary- to those licensees who hold race respect See, land, i.e., e.g., of race courses. operators owners 11-320, 11-526, §§ 11-501 11-601 through through 11-301 11-704, 11- through through 11-801 through Thus, and 11-1001 of the Business Article. Regulation Maryland Racing expressly Commission is authorized grant deny desiring statute to licenses to those to hold race or revoke a license” to hold a race meetings, “suspend $5,000 exceeding or to for each meeting, “impose penalty a race racing day” holding meeting licensee violation of the statute or a Commission or a condition set the Commission.4 Regulation 4. Section of the Business Article states follows: Denials, reprimands, suspensions, “11-308. and revocations— Grounds; penalty. (a) general. Subject hearing provisions §§ In 11-309 and — subtitle, may deny 11-310 of this the Commission a license' to an applicant discipline or a licensee in accordance with this section. (b) may deny any applicant Denials.—The Commission a license to that the Commission reason considers sufficient. (c) (1) Reprimands, suspensions, and. The Commis- revocations.— may reprimand any suspend sion licensee or or revoke a license if the licensee violates: title; (i) this Nevertheless, with regard persons other involved Maryland racing subject jurisdiction, and to the Commission’s owners, trainers, etc., such as jockeys, grooms, racehorse statutory provisions remain silent. There are no largely sections, above, statutory comparable relating to those cited owners, Instead, racehorse jockeys. trainers or the General granted has simply the Commission the broad authority to regulate racing Maryland, and has specified few areas which beyond are the Commission’s adopt regulations. scheme, accordance this statutory with and the 1921

Attorney opinion, General’s the Maryland Racing Commission since 1921 adopted regulations governing racehorse own- ers, trainers, jockeys, which, and others to the extent that is relevant, parallel the statutory provisions concerning race- Thus, track operators. the regulation at issue in the present (ii) title; regulation adopted under this or (iii) a condition set the Commission. (2) suspend The appli- Commission shall or revoke a license if the cant or licensee fails to: (i) keep reports records ownership and make of stock that are subtitle; required § under 11-314 of this or (ii) get §11- make a required reasonable effort to affidavits under 314(h) (c) of this subtitle. (d) Penalty. (1) may impose penalty The Commission not ex- — $5,000 ceeding racing day for each that the licensee is in violation of (c) subsection of this section: (1) suspending instead revoking a license under subsection (c)(1) section; of this (ii) suspending revoking addition to a license under subsec- (c)(2) tion of this section. (2) To penalty imposed para- determine the amount of the under (1) subsection, graph of this the Commission shall consider: (i) violation; the seriousness of the (ii) violation; the harm caused (iii) good good faith or lack of faith of the licensee. penalty imposed A paid on a licensee shall be from the licen- see's share of the takeout.” " purposes § For person a '[l]icensee' means a who has been racing days 101(h) awarded year.” § for the current calendar 11— Regulation § Business Article. See also 11-302 of the same Article (indicating "person that a licensee is a meeting holds a race [who] ”). the State ... or

case, 09.10.04.03D, for the providing suspension COMAR licenses, exceeding imposition revocation of or the of a fine not $5,000, engaging specified types with to those respect misconduct, § Regulation 11-308 of Business parallels licens- provides Article which or revocations of suspensions es, $5,000, monetary operators of racetrack penalties up to types who of misconduct. engage specified Moreover, authority upon a fine racehorse impose etc., owners, trainers, has set forth jockeys, been consistently regula- since first Commission’s Thus, the 1921 stewards regulations permitted tions in 1921. exceeding impose the licenses fine suspend $200 trainers, “[ojwners, jockeys, grooms, persons and other upon ” 24 and Racing, Rules of Rules attendant horses.... maximum Furthermore, 27. if the was deemed insuffi- $200 cient, could advise the Commission which the stewards so Id., impose higher penalty. Consequently, could Rule 27. statute, authority impose under the Commission’s guilty owners and others monetary penalty upon racehorse misconduct, long and consistent adminis- supported Assembly of the The has trative construction statute. General not, years, changed that administrative past over See, e.g., Employ statute.5 construction Md. Classified Asso., Governor, 19, 33, ees Inc. 599 A.2d (1991) in a acquiescence long-standing administra (“legislative ‘ that the “gives strong presumption tive construction rise to a Racing clearly Maryland General been aware of the The upon regulation authorizing imposition race- Commission’s fines owners, trainers, others, legislated with jockeys, and and has horse See, e.g., authorizing respect those Ch 786 of the Acts of fines. the Commission to establish "the Relief Fund of the Commission,” referring preamble title and to the "fines both the trainers, [monetary] jockeys, ... owners penalties and collected from others,” paid providing and that such fines should continue to be into the Relief Fund. Department also the of Fiscal Service’s Sunset Review See Maryland Racing referring to the Commission for upon "general” such Commission's fines licensees owners, jockeys, commending trainers the effec- racehorse monetary penalties. these

tiveness of ’ ”); George’s Morris v. Prince Coun- interpretation is correct” (“long- ty, construction of and its standing [the statute] by agency charged administering statutes an with predecessor Harker, deference”); them ... is entitled to Board v. (1989) (“the

683, 699, 219, agency 561 A.2d rule is entitled weight determining meaning [the to considerable the Wittner, provisions”); McCullough supra, statute’s] (“The 612, of a statute interpretation Md. at is, by charged administering those officials with the statute course, weight”); Hosp. Dep’t Employ- entitled to Sinai (1987) (“the ment, 28, 46, long- 309 Md. 522 A.2d standing legislative the administrative inter- acquiescence [in gives strong presumption rise to a pretation statute] correct”); the is Balto. Gas & Elec. v. interpretation Comm’n, 305 Md. 501 A.2d Public Serv.

(1986) (“the by of a statute contemporaneous interpretation agency charged great with its administration is entitled to deference, especially interpretation applied when been time”); consistently long period and for a Consumer Protec- Pub., tion v. Consumer 304 Md. at 501 A.2d at 63 supra, (“The consistent construction of a statute agency responsible administering for it is entitled to considerable weight”). pointed

This Court has often to the Commission’s broad regulatory authority, and we have regularly upheld appli- cation of the regulations, including penalty Commission’s owners, trainers, provisions, to racehorse jockeys and others. Commission, In Jacobson v. Md.

274 A.2d Jacobson was both a racehorse owner and trainer who violated a regulation prohibited which an owner or trainer who had claimed a in Maryland horse claiming selling days race from it within 60 of the claim. The $2,500 Commission fined claiming Jacobson for a horse in a race and selling the horse New York before the expiration 60-day period. Jacobson con- principally tended that the Commission’s prohibiting the sale invalid; days the claimed horse for 60 was he inter argued, alia, had not to the Commis- Legislature delegated that the occurring to events apply sion Maryland. Judge Hammond for response, outside of Chief necessity conferring regula- broad explained the Court (261 Md. at authority upon the Commission tory 103): racing undertaking an endeavor neces- “Horse is intensive, and minute sarily subject must be the extensive Club, v. Md. 104- regulation. Jockey Greenfeld it financed only 57 A.2d 335. It exists because legalized from which must be receipts gambling controlled possible, only far as to sustain kept suspicion above fraternity feed substantial ... profit but to surprisingly legis- to the State’s revenues. Not millions given the- Commission full to control power lature racing.” regulation that the

Addressing argument Commission’s days of the horse 60 was not prohibiting sale within statute, Judge of the Ham- by language authorized Chief 105): (261 Md. at A.2d at succinctly mond stated 274 delegations that the to argument legislature’s “Jacobson’s regulate racing the Commission of the does not 80 regulation imposed approaches extend to Rule frivolous, and to his arguments.” we turn constitutional Although specifically challenged Jacobson had Com- $2,500 regulation a if authority mission’s fine valid, concerning sale of claimed horses was nevertheless (261 as at opinion this Court concluded its follows Md. 274 107, emphasis supplied): A.2d racing think that had become a citizen of “We Jacobson far Maryland purposes as the and effects of the Rules are acquired personal concerned and that this State sufficient jurisdiction racing permit over him in matters licensed enjoin him 80 from horse in a selling it to Rule claimed Maryland sixty punish licensed race for and to him days, if disobeyed he that rule.” broad recognizing

For other cases reg- and enforce Maryland Racing promulgate Commission rac- integrity Maryland to insure the appropriate ulations Castrenze, see, Maryland Racing Com’n v. ing, e.g., (in at 417 the Commis- affirming 335 Md. at 643 A.2d sus- regulation providing reciprocal of a application sion’s Racing we commented that Commission is pensions, “[t]he statutory authority adopt regulations governing broad given betting racing Maryland”); horse v. Md. Heft Comm’n, 257, 264, Racing 323 Md. 592 A.2d out (applying regulations, pointing numerous Commission statute and ‘the Commission’s rules and “[t]he provide comprehensive regulation scheme for the of horse ” Ramsey, Silbert v. racing Maryland,’ quoting (1984)); Agri. Southern Md. Ass’n of 274, 280, George’s County Magruder, Prince (1951) (“The Maryland Racing A.2d Commission exceedingly comprehensive regulatory powers. wide and given * * * Legislature deliberately It is that the apparent imposed Racing Commission order grave responsibility upon [betting exception anti-gam- that this on horse races] limits”); bling proper laws of the State within Brann kept be (1946) (the Mahoney, 187 Md. Racing “may regulating Commission make rules the conduct trainers, jockeys, and owners in order that horse racing may be fairly”). conducted earlier,

As acceptance argument, discussed of Lussier’s authorizing particular penalty Commission to a of must be impose type authorized expressly statutory language, would leave position whereby promulgate the Commission a it could owners, regulations governing the conduct of racehorse train- ers, others, jockeys but could not enforce regula- those statutory provisions expressly tions. The do not authorize the imposition any particular type upon of of sanction racehorse owners, trainers, etc. The Commission’s jockeys, authority to owners, trainers, or revoke suspend the licenses racehorse others, jockeys and like the to authority impose monetary them, entirely based the Commission’s upon upon is penalties It inconceivable the General regulations. to grant regu- the Commission intended broad individuals, not intend that the conduct these but did late sanctions. regulations be able to enforce the Commission statutory even if were some basis distin- Finally, there a license on the suspension revocation or guish between the hand, a on the monetary penalty imposition one other,6 still leave the inability fine would regulations to enforce its under powerless in the instant After the circumstances those case. race like expiration day which was last before December license, Maryland left and did not thereaf- of Lussier’s Lussier When his ter seek to renew his license as a racehorse owner. discovered, possessed was Lussier neither nor misconduct Maryland nothing There to revoke or desired a license. was circumstances, aof mone- imposition Under the suspend. only imposed upon was the sanction that could be tary penalty to enforce the the Commission. We Lussier Legislature much doubt intended that race- very Maryland, into enter his horses in horse owner could come names races "withthe true of the owner trainer Maryland sum publish reports, large false workout make a disguised, track,7 horses at the and then money by betting escape on his sanction his misconduct because he did desire his license. renew conclude, below, that with both courts agreement

We regulation authorizing the im- Maryland Racing Commission’s fine is valid. reasonable position THE OF JUDGMENT OF COURT SPECIAL APPEALS TO PAY AFFIRMED. PETITIONER COSTS. statutory provisions We hasten to add that no such basis 6. suggested to been us. $30,000 winnings three Lussier collected more than on the races in question. BELL, Judge, dissenting. essential, if not agencies important, are an

Administrative and, in any landscape part legal governmental Indeed, is event, there today’s society. fixtures in permanent had at least a who has not likely single Marylander not a As one agency. an administrative modicum of interaction with has observed: commentator of a doctor auspices

A is born under the Marylander today by a Board qualifications passed upon whose have been Examiners, has been and a nurse whose fitness Medical of Nurses. If Board of Examiners determined State schools, of his education and public scope he attends the are selected or thoughts the text books which mold his If, after his Board of Education. approved by State dentist, doctor, lawyer, he wishes to become a schooling, appropriate State plumber, satisfy architect he must begin he can to earn his qualifications board of his before bring him living. very His movements to and from work into close contact of administrative law. processes with are determined pays The carfare or taxicab fare which he Commission; if drives an automo- by the Public Service he bile, his license be revoked for cause which sufficient; deems he can- Commissioner Motor Vehicles from the not even take to the air without a license State track, if Aviation .... he a bet at a race places regulations prescribed by he does so under the rules and Maryland Racing Commission.... Maryland, Administrative Law Oppenheimer, Reuben (1938). to, and, in fact purpose Md. L.Rev. Their do, efficient; thus, they make more administrative government proper working government. are critical to the agencies operations Administrative law involves the nature of the agencies, as well as the control exercised their creation and activities. Id. at 187. courts over statute, only An administrative as a creature of agency, to it. Commission on enabling delegates statute Stillman, Discipline Med. Inc. Hosp. Spring, Silver Holy See also Cross Comm’n, 677, 683, 393 Cost Review

v. Health Servs. v. (1978); Baltimore 181, Mayor City Council A.2d 184 813, 236-37, Koons, Inc., 231, 310 A.2d 270 Md. E. William Law Administrative 1 Am.Jur.2d (quoting 621, 640, 244 (1962); 250 Md. City, v. Baltimore § 132 Gino’s (1968)); inherent and its 218, 228-229, powers “it has no A.2d it provided beyond not reach warrant authority thus does 683, A.2d at 283 Md. at 393 Hospital, Holy statute.” Cross Board, 184; National Labor Relations Dodge Corp. v. Phelps (1941) (the 845, primary 1271 177, 85 L.Ed. 313 61 S.Ct. U.S. carry is to out the will agency function of an administrative it). Admin- legislation creating in the as enunciated State have, not Legislature does exist because agencies istrative necessary acquire, to be able to expected and can not be for variety of areas knowledge sophisticated specific Sullivan, 293 Md. at government responsibility. which also, 1 Administrative 122, at 563. Am.Jur.2d 442 A.2d See (1942). Law, contrast, is able agency an administrative By so, and, the task or perform requisite expertise acquire Dep’t it is charged. with which program administer the Corp., & 274 v. Linchester Sand Gravel Natural Resources Osborne, (1975); 220, 514, 150 Tighe 522 Md. 334 (1926) (an agency 452, 463, Md. 133 A. information, details, out the working of acquiring has “the task and standards it has been [which these rules applying cases.”). specific provided guidance] exercise, context, an ad- In the administrative law authorization, legislative agency, specific ministrative without exercise, by agency, of the to fine is the power of the Furthermore, of a imposition penal- to make laws. power fine, power matter. But the adjudicatory such as a is an ty, adjudicate power function and the legislative make laws is a The with- judiciary. Legislature, to the ordinarily is reserved least, to direct out, safeguards and standards providing at the exercise, to an adminis- delegate the former of government. an arm of the executive branch agency, trative Armacost, 64, 80, 311 Md. Department Transportation Barnes, Pressman v. (1987); 532 A.2d due Principles process, 121 A.2d of the exercise are applicable including proportionality, 644, 665, County, Somerset Aravanis v. power. latter State, Henry v. (1995); 664 A.2d (1974) (“The a due to bear ought punishment offense”). Thus, notwithstanding proportion (1992) § 11-2091 of Code scope Maryland of the breadth it, § Article, nor neither Regulation Business respon- justified adoption regulations, authorizing the adopting State dent in this actions to which the regulation pursuant portion pur- That taken, 09.10.04.03D.3 COMAR case were (1992) Regulation Article § of the Business Code provides: tide, (a) powers the Commis- general. under this other In —Besides fully all the necessary proper carry out powers or has the sion purposes of this title. (b) powers, jurisdiction, supervision, and duties Scope.—The racing purse, for a person holds to each who Commission extend reward, or stake. provides: 2. That section section, (b) (a) provided in subsection general. Except In — may; Commission (1) betting racing and govern adopt regulations and conditions State; racing (2) disapprove: approve or race, (i) may to a a service prices that a licensee set admission track; performed, sold at a or an article reward, (ii) purse, or to be offered at a race. the size of the stake (b) adopt may regulations. Commission Prohibited —The that allow: law; (1) or racing a not now authorized breed horse (2) currently holding unauthorized: (i) betting; intertrack (ii) betting; or off-track (iii) telephone telephone betting. betting other than account provides: 09.10.04.03D 3. COMAR D. and Sanctions. Denials of Licenses license, or may refuse to issue or renew The Commission it, applicant or suspend if finds that the or issued it revoke license

licensee: conduct; (a) engaged in or criminal Has unethical

ported to empower the sanctions, Commission to impose in- cluding fines. Never before today has this Court approved, under the circumstances that exist sub judice, an administra- agency’s tive exercise of the power to fine. I am convinced that it is unwise to do so now. that,

Notwithstanding statute, as a creature of an adminis trative agency only that authority it, delegated Sullivan supra, Stillman, 293 Md. at 564; A.2d at Koons, Inc., 759; William E. 435 A.2d at 236-37, Md. at broad delegations of authority have been upheld. fact, such delegations are particularly appropriate areas, in some e.g. “where the discre tion to be exercised relates to police regulations for the protection morals, of public health, safety, general or welfare.” Barnes, Pressman v. 209 Md. at 121 A.2d at 822.4 (b) associating Is consorting or with an individual who has been any jurisdiction; convicted of a crime in (c) with, consorting associating with, Is or or has consorted a book- maker, tout, pursuits; or individual of similar Is, (d) bookmaker, tout, operating or has been as a or a similar pursuit; (e) financially responsible; Is not (f) in, in, Has engaged attempted been engage or any fraud or misrepresentation horse; connection with the breeding or of a Assaults, (g) to, bodily or injury threatens do a member of the employees or of its representatives or a member or association; employee of an (h) engaged Has racing; conduct detrimental to (i) attempted Has violated or to violate: (1) A any jurisdiction, State, law or resolution in including this (ii) imposed A condition the Commission. (2) of, to, license, Instead suspending or in addition the Commis- $5,000. impose sion exceeding a fine not (3) determining penalty In imposed, the to be the Commission shall consider the: (a) violation; Seriousness of the (b) violation; Harm caused the (c) licensee; good Good faith or lack of faith of the and (d) Licensing history of the licensee. Barnes, It is 544, of interest that the Court in Pressman v. 209 Md. A.2d placed a limitation principle. required, on this It addition, impracticable that "it be to fix destroying standards without flexibility the necessary to enable the administrative carry officials to Transportation health, Department see They public include (1987); Armacost, 73, 532 A.2d at 1060 supra, Md. at State, 164, Petrushansky see zoning, Osborne, supra, (1943); 150 Md. at Tighe v. Pressman, 209 Md. at 467; safety, and public 133 A. at at 816.5 holdings: the clear in its Nevertheless, has been this Court legislative power only “delegations those approve Court will safeguards leg- are sufficient officials where to administrative in its of the guidance agency the islatively provided for Armacost, of the statute.” administration therein). (and the This that means A.2d at 1060 cases cited reasonably should be agency the administrative delegations to to agency for follow. the provide guidelines and some specific Stillman, In other 435 A.2d at 759. 291 Md. at equally It is legislative Id. at 121 A.2d at 822. out will." the concerning the interesting no case there was issue to note that to City's authority delegate its traffic director the to to sought to ruling by penalties. the trial court that The guilt presumptions was

prescribe as minimum fines and establish appealed. Id. at 121 A.2d at 820. invalid was not City was of Baltimore 5. At issue in Pressman the City speed empower to set limits and its traffic director upholding regulations promulgate related thereto. case, subject Court made clear that it was delegation in that delegation determination of that was critical matter proper standard: growth for of traffic and the need On account of tremendous control, increasingly supervision of traffic it also become constant city metropolitan delegate to imperative for councils centers experts a amount of discretion in their administra- traffic reasonable problems constantly arising, there- New traffic are and tive duties. specific each require the of an ordinance to cover fore to enactment delays problem likely widespread and even would be to result in practical necessity for is obvious that there serious hazards. It application concept expert prompt judgment situations, public safety that the standards admin- to concrete public safety be at least in the domain of should istrative officials public flexible as in the domain health. clear, however, 821. We made that whether Id. at entirely arbitrary delegation were were or outside that, debatable, fairly those matters are different issues unless judicial Id. delegations should not withstand review. words, the must ... Legislature “lay intelligible down an principle person body which authorized to [act] directed to conform.” J.W. Jr. Hampton, & Co. v. United States, 394, 409, 276 U.S. 48 S.Ct. 72 L.Ed. 624 (1928). Armacost, principle, This said to be corollary, see with, 311 Md. at A.2d at is thus consistent and to, separation conformable of That powers doctrine6. doctrine is constitutional scope premised on the belief “that separating the functions of government assigning the execution of those functions to different branches [is] government fundamental to good preservation and the civil of Vile, liberties.” Id. at citing M. (1967). Separation Constitutionalism and the Powers of I am the separation aware that powers doctrine does not be, circumstance, impose, nor insist there in every complete separation between the government. branches of recognize Our cases that there accept- is a certain amount of able overlap government. between branches of also They however, recognize, that “this ‘elasticity’ constitutional cannot where, be stretched to a point effect there no exists longer separation governmental power, as the Maryland Consti- tution does permit merger three branches of our government....” State Linchester & Gravel Corp., Sand atMd. at 521.

Consistent with foregoing, although Maryland’s state- ment of the separation powers is “a more concrete barrier any Supreme than which the Court has had to hurdle under Constitution,” the Federal R. Oppenheimer, Administrative Law Maryland, (1938), 2 Md. L.Rev. right Legislature delegate powers to agencies has been recognized this State for more than years. Baltimore, Harrison v. & Mayor C.C. Gill 264 Rights Article provides 8 of the Declaration of as follows: Legislative, "That powers Executive and Judicial of Government other; ought separate to be forever and distinct from each no person exercising Departments functions of one said shall assume or discharge the duties other.” held, legislative power “delegation of Thus, as we have ‘where suffi- constitutionally permissible is branch executive guidance for the legislatively provided are safeguards cient ” Judy Schaefer, v. of the statute.’ ... in ... administration Armacost, citing (1993), 1039, 239, 261, 1050 627 A.2d 331 Md. Dep’t See also 1064, 532 A.2d at 311 Md. at of Corp., 274 Gravel Linchester Sand & Resources v. Natural v. County Council 520-521; 218-220, 334 A.2d at Md. at 225, 441-442, 403, 312 A.2d Funding Corp., 270 Investors Md. (1860). State, 376, v. 15 459 Baltimore (1973); Md. 244-246 Mary- clear, recently has made most Similarly, this Court State, (1995), 658„ 655 A.2d 886 v. Aggregates land 337 Md. that ordinarily per- in the executive branch agency

“[A]n of harmony with the principle adjudicatory form functions is an provided opportunity that there powers separation determination.” agency’s final judicial for review v. Attorney General Id. at 896. See 678, at also 655 A.2d Johnson, 64-65; Shell 286-288, 385 A.2d at supra, 282 Md. at 36, 44-47, 343 A.2d at 526-27 v. Supervisor Oil Md. Co. 276 Funding, supra, 270 Md. County v. Investors (1975); Council v. Insurance Comm’r 241-243; State at Underwriters, 292, 299-301, 236 Nat’l Bureau Cas. 248 Md. Co., 202 Fidelity Burke v. Trust (1967); A.2d 286-287 Coal & Johnstown 178, 187-189, (1953); A.2d 260 Md. 96 467, 473-474, 847, 850 Dishong, 84 A.2d Coke Co. v. Cobb, Heaps v. (1951); “ authorize an equally ‘any attempt The true: converse purely perform what is deemed agency administrative separation violate the judicial power, function would ” principle.’ Maryland Aggregates, 337 Md. at powers Supervisor, Md. Shell Oil Co. (quoting 655 A.2d at 895 526-27.) 47, 343 A.2d at at an delegation to there to be a

We have never allowed insisting adjudicatory power without agency review of by provisions judicial that it be accompanied hand, the other Court power. exercise of that On without legislative power delegation never condoned the first determining guidance provided the administra- tive agency was sufficient to direct its power. exercise

The Commission’s adoption of a it authorizing a fine on impose horse owners and persons related legislative absence of action an permitting impermissible it is exercise, if a usurpation, not of legislative power by an admin- istrative agency separation violation of the of powers doc- trine. An administrative agency may fines or penalties7 except with the specific authorization statutory Legislature, tempered prescribed safeguards legislative Cross Holy Hosp. Health Servs. Cost and standards. Cormn’n, Review 184; at Md. A.2d Co., Gutwein v. Easton 563, 574-77, Publishing (1974); County Council v. Investors Funding 403, 440-43, Corp., (1973). A.2d 245-47 It penalties 7. Fines historically and have been viewed as a form of punishment, by specific criminal legislative which can be sanctioned (1957, only. § action See Code Repl.Vol.) Art. provides: That section any penalty imposed by When or is any Assembly fine of act of this any State by any incorporated city or of ordinance or in town this pursuance authority, State in doing enacted of sufficient for the of ordinance, any by Assembly act forbidden to be done such act of or or omitting any required by for to do act to be done act such ordinance, doing or of such act or the to omission do such act shall be deemed to be a criminal offense unless the offense is municipal Any may defined as a infraction. prosecut- such offense be by by holding ed arrest offender for such offense and him to appear committing in or him for in jurisdic- trial the court which has proceed try dispose tion in the cases shall said and to or of the same same manner as other bemay proceed- criminal cases tried or of, disposed with may prosecuted by ed or or such be offenses any person indictment such If adjudged guilty court. shall be any by any jurisdiction such court having premises, offense he penalty prescribed by shall be sentenced to the fine or act such Assembly or ordinance and shall be liable for costs of his prosecution; payment and in default of penalty may of the fine or he jail be committed to in accordance with Sec. of4 this article until fine, discharged by Any undischarged thence due course of law. and costs, any unpaid may upon judgment be levied and executed as for a Any in a civil case. indictment for the violation ordinance of any incorporated city may State "against town conclude provided against form the ordinance in such case made and and peace, government dignity of the State.” it to “fill in of laws entrusted the details” be authorized may administer, to itself permitted no means is it but Indep. v. Bankers the law. Insurance Comm’r promulgate Bankers, we Co., 606 A.2d 1072 Insur. put thusly: it regula- to make rules and delegated power legislatively

[A] nature, is and can not be is and it tions administrative laws; only adopt it power is power to make legislature as carry into the will of the effect may not be enacted Legislation expressed the statute. guise of its exercise agency under the by an administrative issuing a rule regulations by to make rules power with, harmony or out of regulation which is inconsistent subverts, alters, to, enlarges, extends or or which adds limits, administered. being or restricts the act impairs, Mayor City 606 A.2d at 1075. See also 326 Md. at Koons, E. Inc. Baltimore v. William Council of 1 Am.Jur.2d (quoting (1962)). differently: § Law 132 Stated Administrative delegated not be functions legislative [EJssential it is and in this sense said agencies, administrative legislative and are agencies power have no administrative The most strict sense. from precluded legislating upon conferred administrative power pervasive legislative regulations and the to make rules and agencies pow- with this agencies necessity vesting provid- of the lawmakers impracticability because the er details has varying for various and ing general regulations by the courts. recognized been §

Id. at 92. to quarrel Racing power the Commission’s I do not with be no doubt simply in this State. There can regulate fact, enabling legislation authority. it has that the Racing it the Commis- explicit empowering to applicable conditions,” consistent with “adopt regulations sion to and regula- To enforce those legislatively prescribed mandate. revoke, free rules, the Commission is to Racing tions and 710

restrict, suspend any required or participation licenses racing Maryland. power Such well be incidental to the and, thus, power regulate fairly to from it. I do not implied believe, however, provision broadly that a authorizing “powers necessary or proper carry fully out all the of this purposes permits Racing title” the to promulgate Commission rules and that fines and be prescribing penalties may as- and, conduct, sessed of specified case their amount. As broad; to that the delegation issue is too it provides absolutely no or guidance standard to focus and power direct as- sumed.8

The Maryland General is well aware how empower agencies to impose Examples fines. of its done having Maryland so can be found throughout agencies Code. The power given which such has been include one with and responsibilities duties similar to and Racing Commission, reminiscent the State Athletic see Maryland Commission, (1992, § Code 4- 1996 Cum.Supp.) Indeed, case, power in this has Commission assumed the to fine. Moreover, fine, fine, it also determined whether to whom to under circumstances, fine, what amount of the all without Legislative majority whatsoever. The asserts that loss power would ability regulate render ineffective the Commission’s racing. simply power so. beyond That is not To the extent that directly impacts necessary, which licensure is go is free to Assembly— back the source of its creation —the General Then, request delegation it. accompanied by because the must be standards, guidelines Resources, Department see Christ v. Natural 441, 427, 34, (1994)("[u]nder cases, 335 Md. delega- A.2d our .legislative power agencies tions of to executive branch or officials ordinarily separation powers do violate constitutional re- quirement circumstances, long guidelines safeguards, as sufficient under statutes.”), pertinent are contained statute see 1051; Judy Schaefer, supra, also v. atMd. Warwick, Maryland State Police v. 330 Md. at 624 A.2d 1241; Armacost, Department Transportation v. 311 Md. (emphasis supplied), application will subject be to review capriciousness. for arbitrariness and Baltimore Auth., 335, 342, Import Maryland Car v. Port 258 Md. 265 A.2d (1970); MTA, 93, 98, Gaywood Community Ass'n v. 246 Md. 227 A.2d 735, 739, (1966); Ghingher, 145 A.2d Gonzales (1958); Brennan, Corp. Theatrical 911, 914(1942). (hereinafter 310(a)(2)9 Regulation Article the Business Commission, see “BR”); Maryland Improvement Home Exam- Veterinary Medical 8-62010; § Board BR the State Volume), (1974, 1985 iners, Replacement Maryland see Code Article; Commis- Maryland Agriculture § of the 2-310.111 (1989, Brokers, Maryland see Code sion on Real Estate § of the Volume, Cum.Supp.) Replacement Article; the State and Professions Occupations Business (1981, 1994 Examiners, see Code Board Dental 4-317(a)13 Volume) Occupations § of the Health Replacement Commission, see (“HO”); Compensation the Workers’ Article 9-664(a)14 (1991) § the Labor and Employ- Maryland Code 9. That section states: revoking suspending or license under a of or addition to Instead subsection, up impose penalty of to may a the Commission

this $2,000 for each violation. part: provides, in relevant 10. That section person (a) may impose on who a general. In Commission —The $5,00 penalty exceeding for each viola- not violates tion, title a civil this person is under this title. or licensed whether not provides: 11. That section (a) suspension. lieu of or in to Penalty in lieu of or addition —In license, may penalty impose a suspension the Board

addition to $5,000. not more than of (b) addition to revocation of to revocation. —In Penalty in addition $5,000. license, penalty of not more than may impose a the Board relevant, that section reads: As (c) revoking suspending or Penalty. (1) or in addition Instead of — $2,000 license, exceeding penalty not for each violation. provides: 13. That section (a) hearing § Imposition penalty. after under 4-318 of —If grounds § 4-315 of this there are under the Board finds that subtitle practice dentistry, a general license to suspend revoke a subtitle or practice practice dentistry, or a teacher's license

limited license to dentist, may impose a dentistry, reprimand the Board a licensed or $5,000: penalty exceeding license; (1) suspending Instead of reprimanding suspending revoking the license or addition the licensee. provides: 14. That section Article; Commissioner, 48A,

ment the see Insurance Article 55A15; see, § Industry, e.g. the Commissioner of Labor and 9-310(b)16 408(d)17. cases, §§ BR and In the some General 9— fine, Assembly provided, power has in addition to the to E.G., guidelines § and standards to focus that BR 8- power. 620(b)18 17-322(c)(2)19. § Business Occup. preceding and The (a) (1) employer If the finds Commission that the or its insur- Fine. — failed, cause, good pay er has without to or for treatment services required §by days 9-660 of Part IX of this this subtitle within 45 order, Commission, by finally approves charge after the the fee or for services, impose the or may treatment the Commission a fine on the insurer, employer exceeding ap- or of amount of 20% the the

proved charge. fee or (2) employer pay The or insurer shall the fine the to deposited be of the General Fund State. section, provided the General has that of 15. ‘‘[i]n lieu suspension or in addition revocation or of an insurer’s certifícate (1) authority may impose penalty the Commissioner of not a less than ($100) ($50,- fifty one dollars hundred or more than thousand dollars 000) violation of each this article insurer whose certificate of subject suspension provision or the revocation under this article....” provision Effective October this codified will be in a new Insurance See Article. ch. Acts 1996. provides: 16. That section (b) Penalty suspension. revoking instead of revocation or —Instead license, suspending impose or a penalty the Commissioner a $25 $500.

not less than and not than more provides: 17. That section (d) Penalty suspension. revoking instead of revocation —Instead license, suspending a may impose penalty the Commissioner $25 $500.

not less than and not than more (b) setting Considerations.—In the penalty, amount of civil 18. Commission shall consider: (1) violation; of the seriousness good violator; (2) faith of the (3) violations; any previous (4) complainant, effect of public, harmful the violation on the improvement; the business of home (5) violator; assets (6) any relevant other factors. imposed To penalty determine amount of the under this subsection, the Commission shall consider: say, howev- it to byis no means exhaustive. Suffice catalogue here, not mentioned er, agencies, of omitted those that the list Commission. does not include instances, many expressly in so Legislature, That to fine agencies speaks of administrative power prescribed it has case. When its intention regard with volumes monetary impose a an to fine or agency to authorize wanted delega- so. A broad clearly explicitly said it has penalty, Gen- Attorney suffice. The does not authority simply tion of different, but related just this expressed view eral has Recognizing Att’y. Gen. 197 Op. context. See 66 broad be from the implied fines could Attorney jurisdiction, of a local of a statute language was invalid. that statute nevertheless concluded General fine, or forfei- power impose penalty opined He that the but, implied ... be civil criminal —“cannot ture —either Assem- rather, an from the General depends express grant demonstrated, is consistent As I have this bly.” Id. at 203. is also consis- Assembly. of the General It practice with the with our cases. tent that, under some circum- previously held

This Court has must in order stances, express the Legislature grant Mossburg Montgomery act. agencies legitimately (1993). In Mossburg, 620 A.2d County, Court, majority opinion, the author of the speaking through had supermajority requirements noted in which the instances that General concluding “where the upheld, been requirement, it has supermajority authorize a has intended to 505, 620 We also expressly.” Id. at 892. done so requirement implied “should not be made clear that such a adopt regulations.” authorization to rules and general from a Id. at See also & Professional Office Admin., Union, Local Transit Int’l 2 v. Mass Employees violation; (i) seriousness violation; (ii) by the the harm caused licensee; (iii) good faith of the (iv) by history previous violations the licensee. 88, 97, 453 A.2d (stating “absent

express legislative authority,” a governmental agency cannot enter into binding arbitration or binding collective bargaining agreements hours, establishing wages, pension rights, or working conditions for public employees). majority

The has not cited even one case which it was held, under circumstances similar to judice, those sub where there is no legislative direction on subject, that an admin- agency may istrative promulgate a rule or regulation imposing .relies, instead, a fine or It penalty. on the broad delegation of authority given Commission, the Racing the Commission’s power to promulgate rules and regulations, and majority’s conclusion regulation that “the authorizing the imposition of a fine is entirely accord with statutory purpose.” 343 Md. The majority cites Christ Resources, v. Department Natural 644 A.2d 34 (1994), in support of the first two propositions. The the Department of Natural Resources to fines for violations of its regulations was not at case, issue in that only whether subject was the appeal was authorized the enabling legislation pursuant to which it was adopted. That this is so is demonstrated very passage from quoted by Christ the majority: Act, the State Boat ... the General Assembly broadly

granted to the Department the authority to adopt regula- tions governing the “operations any vessels” which are subject to the Act. In numerous situations where the General Assembly delegated has similar power broad to an administrative agency to adopt legislative rules or regula- in particular area, tions a this Court has upheld agen- the cy’s rules or regulations as long they did not contradict the language purpose of the statute.

343 Md. at 684 A.2d at 807 (quoting Department Christ v. Resources, 39) (.Em- Natural 335 Md. at added). phasis

I agree with the result reached Christ. A statute permit- ting Department the of Natural Resources to “adopt regula- subtitle,” of this provisions the carry out necessary tions ves ... governing operations “regulations specifically with complying each subtitle so that vessel subject to this sels or under equal freedom operated be with regulations may the State,” Maryland requirements on all waters similar 8-704(b-1)(1) § (1974, Cum.Supp.) Repl.Vol., Code Article, regulation does a authorize of the Natural Resources types old certain year operating a 14 from prohibiting differently quite the matter I have viewed watercraft. would the 14 old for regulation fining year operat been had the one would have watercraft. Such ing prohibited the statutory provision of a unauthorized absence been of a fine. imposition the permitting the majority the also stand for by

The other cases cited only that the Com- proposition, proposition, regula- rules and promulgate mission broad majority opinion as the governing racing Maryland; tions see Md. at A.2d 812- clear, at makes itself power to with the Commission’s none was concerned fines. imposition of latter that the respect proposition, With legislative does purpose fine be in accord with the pertinent Consistency legisla- with question. answer by with authorized purpose synonymous being tive is not regulate is the identical to Legislature. power Nor words, act may In an unauthorized be to fine. other purpose with the for which statute nevertheless consistent effect, therefore, as- majority merely was enacted. never controversy; simply directly it sumes the issue proffered by petitioner, applica- principles, addresses the of that issue. ble to resolution history, in “the nature and

The takes comfort majority horse regulatory governing scheme rationale State, as well as actions General this Court,” it maintains “confirm opinions which validity [subject] regulation.” The is not justified.

at 808. comfort critical to the is an importance majority’s argument Of Attorney opinion Op. Att’y General’s issued Gen. in 1920 of against backdrop 480. Issued enactment addressed, which directly Ch. 273 of the Acts of some detail, “[a]ny person per- the licensure and sons, corporation desiring association or to conduct Maryland,” but was silent as to its applica- within State owners, trainers, etc., bility Attorney to racehorse jockeys, General concluded that the statute nevertheless to the applied latter I do not share the persons. majority’s view this makes clear that the opinion Legislature Racing intended the regulatory power Commission’s to be All all-encompassing. and, therefore, opinion Legislature does most the can in, is acquiesced be said to have to indicate that the Commis- extend to critical regulatory powers persons sion’s to the it does not racing industry; simply address whether it has the Indeed, authority to fine. so an interpretation broad is to to Attorney opinion General’s accord Commis- takes, power, sion unlimited ie. whatever it including legislat- for ing, accomplish purpose which it was created. Premised on the 1921 Attorney opinion General’s and the statutory owners, provisions applicable to racetrack the Com- mission, promulgated regulations, including since has fine, paralleling provisions, those applicable but owners, trainers, jockeys, racehorse etc. The majority relies on this “long and consistent administrative construction of the statute,” which not been disturbed the General Assem- bly, indicated, support position. previously As I do quarrel they apply with insofar as Thus, licensure. administrative construction and Legislative acquiescence to that extent be even if not appropriate, properly before this Court. With to the regard ability fines, however, impose Commission to an entirely different situation is There presented.20 nothing ambiguous about Attorney opinion It should be recalled General's did fines, nor, contrary not concern the Commission’s 681, 697-700, suggestion majority opinion, etc., not trainers, it does owners, jockeys, statute; toas the is power That fines. impose Commission the authorize track owners. case of only the Commission given con- unambiguous, is statutory language “When entrenched, given are not structions, how well no matter Md. George’s Hospital, v. Prince Falik weight.” (1991). 302 Md. Comptroller, Co. v. 324, Macke 588 A.2d reason, (1984). Nor, for the same 254, 18, 22-23, A.2d acquiescence. Legislative is upon cases relied that the majority maintains

The were they for which the proposition not stand for do petitioner very specifically contrary, they agree. I not On cited. do agencies that administrative demonstrate persuasively fine or Legislature from the authorization require not will authorization general that a mere penalty suffice. Co., 563, 325 A.2d Publishing Easton

In v. Gutwein Relations, having Human Maryland Commission discrimination, compensatory awarded found employment (1996), appellate court Court or other has this presented with that issue. In Jacobson been this State (1971), Commission, only issue 274 A.2d 102 sale of validity regulation prohibiting the of a before the Court was authority to period The Commission's specific of time. a horse for a case; intentionally challenged that not specifically and fine was brief, any question presented as to the is appellant “[n]or in his said Appellant's at 2-3. Conse- money fine.” Brief imposition of a ... commented, opinion, concluding its quently, the Court the fact that jurisdiction personal [Jacobson] over acquired this State sufficient "that permit enjoin Rule 80 from racing to it to him of licensed in matters sixty days, and Maryland race for selling in a licensed a horse claimed rule,” disobeyed id. at 274 A.2d punish him if he extremely Certainly, best an dispositive persuasive. it is at nor neither important proposition. to base so slender reed on which sure, therefore, impose fines has power to the Commission's To be during the Commission challenged the entire time that been on that anticipation argument based power. of an exercised that fact that mere premise, please "[T]he that this Court has observed: note expense the Act in to contest thought it worth the trouble no one has case, years] not detract from does [in courts until now Brennan, Corp. Maryland Theatrical right appellant to do so.” of the 911, 916 the Commission was damages complainant.21 Although in every “to statutorily charged by Legislature promote relations,” and was of human way the betterment possible as will “to take such affirmative action specifically empowered subtitle,” id. at particular purposes effectuate added), this Court held that the (emphasis 325 A.2d at 741 jurisdiction,” “plainly beyond power acted monetary make no authorization to being express there awards. vein, statutory grant that a

In the same this Court held the reasonableness of approve “full to review and Health Services hospital empower rates” did not physician to and set certain Cost Review Commission review 283 patients. Holy Hospital, to Cross charges hospital billed 181, 182, 183-85, 186, 677, 679, 682-83, A.2d 393 442, 312 Funding Corp., in Investors 270 Md. at 187. And 246, cloaked -with county agency properly where a was up to a impose monetary penalty to specific amount, delegation power, held that of specified Court “complete unconstitutional due to the permissible, otherwise or standards.” Without any legislative safeguards lack of exercise, governing agency’s and standards its safeguards we up specified ceiling, discretion to fix the to the penalties noted, would be unlimited. See, jurisdictions e.g., from other are to like effect.

Cases al., 109, Plan et. 803 F.2d 117 Groves v. Retirement Modified (3rd Cir.1986) (“... has wide agency while an administrative implement legislation, how to remedial deciding discretion Bowles, 398, 64 see L. P. & Bros. v. 322 U.S. S.Ct. Steuart 1097, (1944), it may penalize specific 88 L.Ed. 1350 decide to only Legislature] expressly [the kinds of conduct when Hotel delegated power agency”); Fayetteville to the In re (1994) (The Assocs., 568, 450 S.E.2d 570 N.C.App. 117 sanctions authori- power impose requires specific legislative to fine, Although given power on Human not to the Commission authorized, explicitly, grant monetary been relief. Relations has 49B, (1957, Volume) 11(e). Replacement § Maryland Code 1994 Article

719 sanctions authority, power impose such ty without general rulemaking authority”); the Commission’s “exceed[s] v. Trustees Construction Co. Board Continental (Fla. Fund, 204, 205 Trust 464 So.2d Improvement Internal (“... be penalty is erroneous App.1985) assessment legislatively delegated not been cause the Board has specific ... in the absence of penalties impose authorization”); Dep’t State Florida Environ legislative Inc., Co., v. Oil mental Puckett So.2d Regulation (“... an agency’s law is clear that author (Fla.App.1991) [the] expressly delegated must be ity sanction impose Depart v. Hearings Division Administrative agency”); (Fla.App.1988) 534 So.2d Transportation, ment of adopt rule necessary legislative authority (agency without sanction); People Harter allowing hearing officer to (1958) (“If Co., P.2d Packing Cal.App.2d agency powers gets the act under which the administrative comply, failure to penalties no provides sanctions them.”); by rule Columbus Wine agency may promulgate 64 S.E.2d Sheffield, Ga.App. Co. not, penal something not

(agency regulation, make could itself, only but could enforce penal made under the law license). cancellation of regulation by suspension system government It is of our principle a fundamental itself, the law of men are to be determined rights “the not agencies,” the let or leave administrative by § also Law 108 See Ernst Am.Jur.2d Administrative 185, 213-214, Hochfelder, Ernst 425 U.S. 96 S.Ct. & v. (1976) (“The rulemaking power 47 L.Ed.2d agency to an administrative is make granted Stillman, law”) Discipline on Med. and Commission 759, citing Gino’s v. Baltimore (1968), in which this City, Court stated: administrative delegated

“When offi- legislative power guides constitutionally required adequate cials it is by delegating legislative body standards be established officials, appointed by the execu- so that the administrative tive and not people, elected will not legislate, but will apply find and facts in a in particular case accordance with policy legislative established body.” (Emphasis original.) Therefore, exercise of general “[t]he undefined power legisla- tive character must be denied” to agencies, § Am.Jur.2d Administrative Law statute ... “[a] absolute, which effect reposes an unregulated, and unde- fined discretion an administrative agency arbitrary bestows powers and is an delegation unlawful of legislative powers.” Id.

684 A.2d 823 Labaron STANBERRY Maryland. STATE of Term, Sept. No. 1995. Appeals Maryland. Court of

Nov.

Case Details

Case Name: Lussier v. Maryland Racing Commission

Court Name: Court of Appeals of Maryland

Date Published: Nov 8, 1996

Citation: 684 A.2d 804

Docket Number: 96, Sept. Term, 1994

Court Abbreviation: Md.