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Reliable Contracting Company, Inc. v. Maryland Underground Facilities Damage Prevention Authority

Court of Special Appeals of Maryland

April 30, 2015

RELIABLE CONTRACTING COMPANY, INC.
v.
MARYLAND UNDERGROUND FACILITIES DAMAGE PREVENTION AUTHORITY

Graeff, Arthur, Leahy, JJ.

Meredith, J. and Friedman, J. did not participate in the argument or the decision in this case.

OPINION

Graeff, J.

In this appeal, Reliable Contracting Company, Inc. ("Reliable"), appellant, challenges the constitutionality of Md. Code (2010 Repl. Vol.) § 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]
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, unbridled 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).

In 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)(1)-(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:
(i) $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:
(i) 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 ...

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