Reliable Contracting Co. v. Maryland Underground Facilities Damage Prevention Authority

114 A.3d 303, 222 Md. App. 683, 2015 Md. App. LEXIS 58
CourtCourt of Special Appeals of Maryland
DecidedApril 30, 2015
Docket0752/14
StatusPublished
Cited by1 cases

This text of 114 A.3d 303 (Reliable Contracting Co. v. Maryland Underground Facilities Damage Prevention Authority) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reliable Contracting Co. v. Maryland Underground Facilities Damage Prevention Authority, 114 A.3d 303, 222 Md. App. 683, 2015 Md. App. LEXIS 58 (Md. Ct. App. 2015).

Opinions

[685]*685GRAEFF, J.

In this appeal, Reliable Contracting Company, Inc. (“Reliable”), appellant, challenges the constitutionality of Md.Code (2010 RepLVol.) § 12-135 of the Public Utilities Article (“PU”). Pursuant to PU § 12-135, the Maryland Underground Facilities Damage Prevention Authority (the “Authority”), appellee, has the power to issue citations and impose penalties for violations of the statutory provisions regarding underground facilities (the “Miss Utility statute”).

The case arises from a citation issued by the Authority to Reliable regarding allegations that Reliable failed, as required by statute, PU § 12-124, to contact the Miss Utility “one-call system” to receive clearance prior to performing an underground excavation. Following a hearing, the Authority assessed a fine of $2,000 for Reliable’s violation of PU § 12-124, and a fine of $1,000 for Reliable’s violation of another statutory provision, the latter of which could be purged if Reliable completed damage prevention training. Reliable sought judicial review in the Circuit Court for Anne Arundel County, which affirmed the Authority’s decision.

On appeal, Reliable raises the following questions for our review:

1. Does [PU] § 12-135 violate Art. IV of the Maryland Constitution and/or Art. 24 of the Maryland Declaration of Rights in vesting plenary judicial power in the [Authority] to issue citations and adjudicate all cases involving violations of the Miss Utility statute? 1*[1]

2. Does [PU] § 12-135 violate Art. IV of the Maryland Constitution and/or Art. 24 of the Maryland Declaration of Rights in vesting the [Authority with] unrestricted, [686]*686unbridled discretion in fixing the amount of penalty, within broad limits, up the $2,000.00 for a first offense and up to $4,000.00 for a subsequent offense, without any legislative safeguards or standards?

For the reasons that follow, we answer these questions in the negative, and therefore, we shall affirm the judgment of the circuit court.

STATUTORY BACKGROUND

The Miss Utility statute, as first enacted in Md.Code (1957) Art. 78 § 28A(b), required that all owners of underground facilities in the state — i.e., public utilities, telecommunications corporations, cable television corporations, political subdivisions, municipal corporations, steam heating companies, and authorities — become “owner-members” of a “one-call” system. See S.B. 911, Fiscal Note (Mar. 10, 2010). To prevent negligent damage to an underground facility, “a person could not begin an excavation or demolition unless all underground facilities in the vicinity of the planned excavation or demolition had been marked or the person had received notice from each owner or the one-call system that marking was unnecessary.” Id. A person was required to “notify the one-call system, by telephone, of a planned excavation or demolition” prior to starting an excavation or demolition. Id.

In 2006, the federal government enacted the Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006 (the “PIPES Act”). 49 U.S.C. § 60134. The PIPES Act gave the U.S. Secretary of Transportation authority to give federal grants to a “State authority” “to assist in improving the overall quality and effectiveness of a damage prevention program.” 49 U.S.C. § 60134(a). A damage prevention program was required to contain several elements, including: (1) “[a] process for resolving disputes that defines the State authority’s role as a partner and facilitator to resolve issues”; and (2) an enforcement process, “including public education, and the use of civil penalties for violations assessable by the appropriate State authority.” 49 U.S.C. § 60134(b)(6), (7).

[687]*687In 2010, the Maryland General Assembly revised the Miss Utility statute to increase the opportunities to obtain grants pursuant to the PIPES Act. 2010 Md. Laws, ch. 635; Letter from Douglas F. Gansler, Attorney General of Maryland, to The Honorable Martin O’Malley, Governor of Maryland (May 12, 2010) (on file at http://perma.cc/SVR7-79ME). The revised Miss Utility statute was codified in PU § 12-101, et seq., and one of the changes was to establish the Authority. The legislative intent was specifically set forth in the statutory scheme:

It is the intent of the General Assembly to protect underground facilities of owners from destruction, damage, or dislocation to prevent:
(1) death or injury to individuals;
(2) property damage to private and public property; and
(3) the loss of services provided to the general public.

PU§ 12-202.

The Miss Utility statute set forth procedures that were required for excavation or demolition. As relevant here, a person intending to perform an excavation or demolition is required to call Miss Utility’s one-call system to indicate the location of the proposed excavation or demolition and the type of work to be performed. PU § 12-124. Excavation or demolition may begin only after notification from the one-call system confirming that all applicable owner-members have marked their underground facilities or reported that they have no underground facilities in the vicinity. PU § 12-127(a)(l)-(3).

PU § 12-135, the statute at issue here, sets forth the potential consequences for a violation of the Miss Utility statute. It provides as follows:

(a) In general. — (1) A person that performs an excavation or demolition without first providing the notice required under § 12-124(a) of this subtitle and damages, dislocates, or disturbs an underground facility is deemed negligent and is subject to a civil penalty assessed by the Authority not exceeding:
[688]*688(1) $2,000 for the first offense; and
(ii) subject to subsection (c) of this section, $4,000 for each subsequent offense.
(2) Instead of or in addition to a civil penalty assessed under this subsection, the Authority may:
(1) require that a person:
1. participate in damage prevention training; or
2. implement procedures to mitigate the likelihood of damage to underground facilities; or
(ii) impose other similar measures.
(3) A person that violates any provision of Part IV of this subtitle is subject to a civil penalty assessed by the Authority not exceeding $2,000.
(b) Action to recover. — (1) This subsection applies if a proceeding has not been initiated before the Authority.
(2) A court of competent jurisdiction may assess a civil penalty of up to 10 times the cost of repairs to the underground facility caused by the damage, dislocation, or disturbance against a person that has committed a subsequent offense under subsection (a)(1) of this section.

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114 A.3d 303, 222 Md. App. 683, 2015 Md. App. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reliable-contracting-co-v-maryland-underground-facilities-damage-mdctspecapp-2015.