WAYNE GARRITY, SR.
MARYLAND STATE BOARD OF PLUMBING
December 4, 2015.
[Copyrighted Material Omitted]
Certiorari to the Court of Specail Appeals (Circuit Court for
Wicomico County) Donald C. Davis JUDGE.
BY Michael A. Davis (of Havertown, PA) on brief FOR
BY Joseph B. Spillman, Assistant Attorney General (Brian E.
Frosh, Attorney General of Maryland of Baltimore, MD) on
brief FOR RESPONDENT
C.J.,[*] Battaglia, Greene, Adkins, McDonald,
Watts, and Rodowsky, Lawrence F. (Retired, Specially
Assigned), JJ. Opinion by Battaglia, J., C.J. Adkins, J.,
concurs. Concurring Opinion by Adkins, J.
Md. 363] Barbera, C.J.
date, Maryland has not adopted formally the doctrine of
offensive non-mutual collateral estoppel. We are asked to
decide in the present case whether the doctrine is
permissible in this State and, further, whether it can be
invoked to grant preclusive effect to an administrative
order. We hold that offensive non-mutual collateral estoppel
was properly applied in this case, and that a Final Order
issued by an administrative body constitutes a " final
judgment" for purposes of granting that order preclusive
effect. We also hold that the civil penalty imposed upon
Petitioner, for the same conduct for which Petitioner was
civilly sanctioned in an earlier proceeding, does not violate
the Double Jeopardy Clause.
February 23, 2012, the Consumer Protection Division of
Maryland's Office of the Attorney General ("
CPD" ) issued a Statement of Charges and Petition for
Hearing against Petitioner, Wayne Garrity,
Sr., and his companies, All State Plumbing, Inc. and All
State Plumbing, Heating & Cooling, Inc. (" All
State" ). The CPD alleged that Petitioner and All State
engaged in unfair and deceptive trade practices in violation
of the Maryland Consumer Protection Act (" CPA" ).
See Md. Code Ann., Com. Law (" CL" )
§ 13-303 Petitioner, through All State, retained
unlicensed plumbers; failed to obtain required permits and
inspections for job sites; misrepresented to consumers that
his employees were licensed and would obtain the requisite
permits and inspections; and charged consumers for services
he did not provide. Also on February 23, 2012, the CPD
entered an Order Granting Hearing and Notification of
Hearing, designating the Office of Administrative Hearings to
conduct the hearing on the Statement of Charges. (2011, 2013
Repl. Vol.). The CPD alleged
that, over a period spanning at [447 Md. 364] least five
years, Petitioner, through All State, retained unlicensed
plumbers; failed to obtain required permits and inspections
for job sites; misrepresented to consumers that his employees
were licensed and would obtain the requisite permits and
inspections; and charged consumers for services he did not
provide. Also on February 23, 2012, the CPD entered an Order
Granting Hearing and Notification of Hearing, designating the
Office of Administrative Hearings to conduct the hearing on
the Statement of Charges.
and Petitioner participated in a hearing on June 5 and 6,
2012, before an Administrative Law Judge (" ALJ" ),
as the designee of the CPD. At the hearing, the CPD
submitted 84 exhibits and called 24 witnesses to testify.
Petitioner submitted only one exhibit and called no witnesses
and, when called upon to testify by the CPD, invoked his
Fifth Amendment right against compelled self-incrimination.
Both parties submitted post-hearing Proposed Findings of Fact
and Conclusions of Law. The ALJ submitted a Proposed Decision
on [447 Md. 365] November 7, 2012, finding that Petitioner
violated the CPA as charged by the CPD. Neither party filed
exceptions to the Proposed Decision.
on January 3, 2013, the final decision maker designated by
the CPD in its quasi-judicial capacity issued written
findings of fact and conclusions of law. The designee found
that Petitioner, through All State, " engaged in a
longstanding and disturbing pattern of conduct involving
deception and deceit." The CPD designee found in
particular that Petitioner employed three plumbers whose
licenses had either expired or been suspended, and who
performed more than 6,000 plumbing jobs without a license.
The CPD further found that Petitioner charged customers
between $95 and $175 for permits for certain plumbing
services, yet regularly failed to obtain the required permits
or schedule the required inspections for water heaters
installed in at least 697 Maryland homes. The CPD designee
concluded by a preponderance of the evidence that Petitioner
committed at least 7,079 violations of the CPA through the
contemporaneously issued a Final Order adopting those
findings and conclusions and issuing sanctions for
violations of the CPA. The CPD ordered Petitioner to cease
and desist engaging in unfair and deceptive trade practices
and pay $250,000 in restitution to the victims. The CPD also
imposed $707,900 in civil penalties and assessed costs in the
amount of $65,129.54. See CL § 13-410(a)
(providing that an individual who violates the CPA " is
subject to a fine of not more than $1,000 for each
violation" ); CL § 13-409 (" In any action
brought by the Attorney General under the provisions of this
title, the Attorney General is entitled to recover the costs
of the action for the use of the State." ). Neither
Petitioner nor the CPD sought judicial review of the
Md. 366] Thereafter, Respondent, the Maryland State Board of
Plumbing (" the Board" ), upon review of the
decision of the CPD, opened a complaint against
Petitioner. Following unsuccessful efforts to
obtain requested information from Petitioner, the Board
issued a Notice of Charges and Order for Hearing ("
Charge Letter" ). The Charge Letter alleged that
Petitioner had violated the Maryland Plumbing Act ("
MPA" ) by providing incompetent or negligent plumbing
services; failing to obtain permits required by local
jurisdictions; engaging in unfair trade practices; knowingly
permitting employees to work outside the scope of their
licenses; and employing unlicensed persons to participate in
the provision of plumbing services. See Md. Code
Ann., Bus. Occ. & Prof. (" BOP" ) § §
12-312(a)(1) and 12-602(a) (2004, 2010 Repl. Vol.). The
Charge Letter incorporated by reference the CPD's Final
Order. At the hearing before the Board, counsel for the Board
moved to admit the CPD's Final Order as evidence in its
case in chief. Although the Board admitted eight exhibits and
called two witnesses--one of whom was Petitioner, who again
refused to testify pursuant to his Fifth Amendment
privilege--the Board's case largely consisted of the
CPD's findings and conclusions.
counsel objected to the introduction of the CPD's Final
Order, arguing that the Board must conduct its own
evidentiary hearing and prove independently the violations of
which Petitioner was charged. Counsel for the Board responded
that Petitioner was collaterally estopped from relitigating
the same facts as were litigated before the CPD and [447 Md.
367] determined finally in the CPD's Final Order. The
Board admitted the CPD's Final Order but did not state
specifically that the Board would give that Final Order
preclusive effect. Petitioner did not seek to postpone the
hearing until the Board ruled on that issue.
Board issued a Final Decision and Order on July 9, 2013. The
Board, by application of the doctrine of collateral estoppel,
adopted the findings of fact made by the CPD and, based upon
those findings, concluded that Petitioner had committed
" pervasive, numerous and egregious" violations of
the MPA as alleged in the Charge Letter. The Board revoked
Petitioner's master plumber license and
imposed a $75,000 civil penalty.
petitioned for judicial review of the Board's decision in
the Circuit Court for Baltimore City, which ruled that the
Board properly invoked collateral estoppel in adopting the
CPD's findings of fact. The Court of Special Appeals
affirmed, Garrity v. Md. State Bd. of Plumbing, 221
Md.App. 678, 681, 110 A.3d 769 (2015), and we granted
Petitioner's petition for a writ of certiorari to answer
two questions, which we have rephrased:
1. Did the Maryland State Board of Plumbing correctly invoke
the doctrine of offensive non-mutual collateral estoppel and
use it to preclusive effect against Petitioner?
2. Were Petitioner's double jeopardy protections violated
when the Maryland State Board of Plumbing and the Consumer
Protection Division both fined him for the same conduct?
answer yes to the first question and no to the second, and
consequently affirm the judgment of the Court of Special
Md. 368] II.
of Collateral Estoppel
review of an administrative action, we look through the
decision of the circuit court and review that agency action
directly. People's Counsel for Balt. Cty. v.
Surina, 400 Md. 662, 681, 929 A.2d 899 (2007). We review
the Board's adjudicatory decision for whether there was
" substantial evidence in the record as a whole to
support the agency's findings and conclusions" and
whether the Board's decision was " premised upon an
erroneous conclusion of law." Md. Aviation Admin. v.
Noland, 386 Md. 556, 571, 873 A.2d 1145 (2005). Whether
it was appropriate to grant preclusive effect to the
CPD's Final Order, however, is a legal conclusion that
this Court reviews de novo. See Spencer v. Md.
State Bd. of Pharmacy, 380 Md. 515, 528, 846 A.2d 341
doctrine of collateral estoppel provides that, " [w]hen
an issue of fact or law is actually litigated and determined
by a valid and final judgment, and the determination is
essential to the judgment, the determination is conclusive in
a subsequent action between the parties, whether on the same
or a different claim." Cosby v. Dep't of Human
Res., 425 Md. 629, 639, 42 A.3d 596 (2012) (alteration
in original) (quoting Murray Int'l Freight Corp. v.
Graham, 315 Md. 543, 547, 555 A.2d 502 (1989)). The
doctrine is based on two principles: judicial economy and
fairness. Treating adjudicated facts as established "
protect[s] litigants from the burden of relitigating an
identical issue with the same party or his privy and . . .
promot[es] judicial economy by preventing needless
litigation." Parklane Hosiery Co. v. Shore, 439
U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). The
collateral estoppel doctrine has several permutations, each
dependent upon the posture of the party attempting to assert
Traditionally, collateral estoppel contemplates a "
mutuality of parties," meaning that an issue that was
litigated and determined in one suit will have preclusive
effect in a second suit when the parties are the same as, or
in privity with, those [447 Md. 369] who participated in the
first litigation. Rourke v. Amchem Prods., Inc., 384
Md. 329, 340-41, 863 A.2d 926 (2004);
Welsh v. Gerber Prods., Inc., 315 Md. 510, 516, 555
A.2d 486 (1989). The mutuality requirement has been relaxed,
however, so long as the other elements of collateral estoppel
are satisfied. See Rourke, 384 Md. at 349.
If either the defendant or the plaintiff in the second
proceeding was not a party to the first proceeding, we refer
to that application of collateral estoppel as "
non-mutual." Id. at 341. Mutual and non-mutual
collateral estoppel are further characterized as either
" defensive" or " offensive: estoppel is
" defensive" if applied by a defendant and "
offensive" if invoked by a plaintiff. See
Shader v. Hampton Improvement Ass'n, 443 Md.
148, 162-63, 115 A.3d 185 (2015). Regardless of the
particular permutation, this Court has required that four
questions be answered affirmatively before collateral
estoppel can be applied:
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?
Colandrea v. Wilde Lake Cmty. Assoc., 361 Md. 371,
391, 761 A.2d 899 (2000) (quoting Washington Suburban
Sanitary Comm'n v. TKU Assocs., 281 Md. 1, 18-19,
376 A.2d 505 (1977)).
issue in the present case is " offensive non-mutual
collateral estoppel," whereby a plaintiff seeks to
establish as undisputed a fact that was previously litigated
adversely to the defendant by another plaintiff.
Shader, 443 Md. at 163. We recently explained the
distinction between ...