WAYNE GARRITY, SR.
MARYLAND STATE BOARD OF PLUMBING
Zarnoch, Reed, Kenney, James A., III (Retired, Specially Assigned), JJ.
In this case of successive administrative enforcement actions brought by State agencies over a plumber's use of unlicensed employees, the appellant, Wayne Garrity, Sr. asks this Court to apply double jeopardy principles to bar imposition of a second civil penalty, but to reject agency resort to the short-cut of collateral estoppel to prevent a second administrative trial. In short, he simultaneously asserts claims of piling on and not piling on enough. Finding no foul, we affirm the Circuit Court for Baltimore City and uphold the enforcement action of the Maryland State Plumbing Board.
FACTS AND PROCEEDINGS
Garrity worked as a plumber in Maryland for thirty-five years. For much of that time, he was a licensed master plumber and the sole manager of All State Plumbing, Inc. and in effective control, through his wife, of All State Plumbing, Heating & Cooling ("All State"). He was licensed by the Maryland State Plumbing Board ("the Plumbing Board"), created pursuant to Md. Code (1989, 2010 Repl. Vol.), Business Occupations and Professions Article (BO&P), §§ 12-301 et seq. (the Maryland Plumbing Act or MPA).
On February 23, 2012, the Consumer Protection Division of the Attorney General's Office (CPD) filed a Statement of Charges alleging that All State and Garrity had violated the Consumer Protection Act (CPA).  Specifically, they were accused of unfair and deceptive trade practices in violation of CL §§ 13-301 through 13-305. During a contested two-day hearing, an Administrative Law Judge considered eighty-four exhibits and heard from over twenty witnesses. Garrity did not testify. On November 7, 2012, the ALJ issued a Proposed Decision finding that Garrity and All State had violated the CPA. No exceptions were taken. As a result, on January 3, 2013, the CPD's designee issued Findings of Fact and Conclusions of Law, noting that between 2005 and 2010, All State had employed two plumbers whose licenses had been revoked by the Board, and that while employed by All State, these plumbers had performed over 6, 000 plumbing jobs while not being licensed. In addition, the CPD found that All State charged consumers between $100 and $175 for permits for certain plumbing services, but routinely failed to obtain required permits or schedule the required inspections of water heaters installed in at least 697 homes in Maryland.
The CPD also issued a Final Order concluding that All State and Garrity had committed at least 7, 079 violations of the CPA by engaging in unfair or deceptive practices related to providing plumbing services. The CPD imposed a $707, 900 civil penalty and assessed $35, 000 for costs incurred in investigating and prosecuting the matter. The CPD also ordered Garrity to cease and desist from acts and omissions that violate the CPA and to pay into a restitution fund to be distributed by the CPD to qualified consumers. No judicial review of this decision was sought.
After reviewing the CPD's Final Order, the Plumbing Board opened a complaint against Garrity. After unsuccessful requests for documentation from Garrity, the Board issued a Charge Letter alleging that Garrity had violated BO&P § 12 3-12(a)(1)(iii) by the provision of incompetent and or negligent plumbing services; § 12 3-12(a)(1)(iv) by his failures to obtain permits required by local jurisdictions; § 12 3-12(a)(1)(vi) by having been found guilty of unfair trade practices; § 12 3-12(a)(1)(xi) by knowingly permitting employees to work outside the scope of their licenses; and § 12 3-12(a)(1)(xii) by employing unlicensed persons to provide or assist in providing plumbing services in violation of § 12-602(a)(1).
On May 16, 2013, the Plumbing Board held an evidentiary hearing on these charges. Garrity was represented by counsel and refused to testify, called no witnesses, and offered no evidentiary exhibits. Instead, his attorney objected to the Board's consideration of the CPD's Findings of Fact and Final Order, insisting that the Board should be required to independently prove the facts alleged in the Charge Letter. The Board's counsel argued that Garrity was collaterally estopped from re-litigating the same facts that had already been determined by the CPD in its Final Order. The Board accepted this order into evidence, but did not rule on whether collateral estoppel applied, and Garrity did not seek postponement of the hearing pending the Board's ruling.
The Board issued a Final Decision and Order on July 9, 2013. Based on the factual findings in the CPD's Final Order and applying collateral estoppel, the Board concluded that Garrity had violated the provisions of the MPA as alleged in the Charge Letter. The Board revoked his master plumbing license and imposed a $75, 000 civil monetary penalty. Garrity filed a Petition for Judicial Review in the Circuit Court for Baltimore City. The circuit court upheld the action of the Plumbing Board and this appeal followed.
1. Did the Final Order of the CPD meet the legal requirement of a "final judgment, " as established in Culver v. Md. Ins. Comm'r, 175 Md.App. 645 (2007), so that the Plumbing Board could properly use it, in lieu of actual evidence to meet its own burden of proof in its later case against Garrity?
2. Did the State of Maryland violate Garrity's double jeopardy protections under the 5th Amendment to the U.S. Constitution, when, for the same alleged conduct, its Plumbing Board punished him a 2nd time with a $75, 000 civil penalty right after its CPD had already punished him a first time with a $707, 900 civil penalty?
I. Standard of Review
In Maryland Aviation Administration v. Noland, 386 Md. 556 (2005), the Court of Appeals explained:
A court's role in reviewing an administrative agency adjudicatory decision is narrow; it is limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.
Id. at 571–72 (Citations and quotations omitted). Garrity does not contest the sufficiency of evidence. Instead, he argues that the Board erred in its legal determination that Garrity was collaterally estopped from calling for the Board to investigate the facts established in the CPD's Final Order.
We typically give "considerable weight" to an agency's interpretation of the statutes it administers. Id. at 572. The application of collateral estoppel, however, is a separate legal question, subject to de novo review. Shader v. Hampton Imp. Ass'n, Inc., 217 Md.App. 581, 605 (2014); see Spencer v. Maryland State Bd. of Pharmacy, 380 Md. 515, 528-29 (2004). The same is true of whether multiple civil penalties violate the Fifth Amendment to the U.S. Constitution. Thus, we must determine whether the Board's conclusions are legally correct, without deference to its actions. Gebhardt & Smith LLP v. Maryland Port Admin., 188 Md.App. 532, 564 (2009).
II. Offensive Nonmutual Collateral Estoppel
Garrity characterizes the Plumbing Board's reliance upon the CPD decision as use of "offensive non-mutual collateral estoppel." This is a version of the doctrine of collateral estoppel that arises when the plaintiff in the second case seeks to foreclose the defendant from re-litigating an issue the defendant has previously litigated unsuccessfully against other plaintiffs. Rourke v. Amchem, 384 Md. 329, 341 (2001). He claims that there is not "one single reported case in Maryland where offensive non-mutual collateral estoppel had actually been upheld, wherein the predicate, fact-finding forum was . . . an administrative agency." In other words, he asserts that an agency may not rely on the facts found by a different agency, even when both adjudications involve the same defendant and the same issue. Garrity argues that the CPD is not "a real court, " and therefore cannot issue a "final judgment." The Board dismisses this as a "largely unsupported and purely semantic argument . . . ignoring clear judicial precedent."
Collateral estoppel may be used offensively or defensively. The Court of Appeals has followed a four-part test that must be satisfied for the doctrine of collateral estoppel to apply:
1. Was the issue decided in the prior adjudication identical with the one presented in the action in question?
2. Was there a final judgment on the merits?
3. Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?
4. Was the party against whom the plea is asserted given a fair opportunity to be heard on the issue?
Burruss v. Bd. of Cnty. Commissioners of Frederick Cnty., 427 Md. 231, 249-50 (2012) (Citation omitted). Garrity does not contest prongs 1 or 4. Garrity's misrepresentations about the qualifications of his plumbers and procurement of permits constituted violations of both the CPA and the MPA; thus, "identical" issues were before the CPD and the Plumbing Board. Further, Garrity was the party charged in both actions, and he was given a fair opportunity to be heard before the CPD and the Board, yet ...