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Miss Utility’s Authority to Assess Violations and Impose Penalties Deemed Constitutional by Maryland’s Highest Court

The highest court in Maryland held that the Maryland Underground Facilities Damage Prevention Authority, also known as Miss Utility (“the Authority” or “Miss Utility”), is empowered to assess civil penalties against any contractor that damages underground pipes or cables.  In Reliable Constr. Co. v. Md. Underground Facilities Damage Prevention Auth., Reliable Contracting Company, Inc. challenged the constitutionality of the law that empowers the Authority to adjudicate violations and assess penalties.  Reliable also challenged the law’s failure to provide adequate guidance to the Authority for assessment of penalties.

The case involved a citation issued by the Authority against Reliable Contracting Company, Inc. for violating the statute, and the imposition of a civil monetary penalty.  Reliable failed to contact Miss Utility before an excavation and, as a result, damaged the Authority’s facilities.  After an investigation, the Authority assessed a penalty for the violation in the amount of $1,000.00.  Reliable requested a hearing, at which time it did not dispute the Authority’s findings, but contested the constitutionality of the Authority’s power to assess the penalty.  The Authority confirmed its earlier findings and imposed the penalties, a ruling that Reliable appealed to the Circuit Court for Anne Arundel County.  The Circuit Court affirmed the Authority’s ruling and Reliable appealed to the Maryland Court of Appeals.

The Maryland Court of Appeals held that the Authority’s ability to adjudicate violations and assess monetary penalties is constitutional under Maryland law.  While the Authority is an administrative agency that exercises quasi-judicial powers, its rulings are subject to judicial review.  Further, all administrative agencies, when assessing civil penalties, must follow the guidelines set forth in the State Government Article of the Maryland Code (Md. Code Ann. SG § 10-1001).  Thus, the Court concluded that, like those of other administrative agencies, the Authority’s powers are constitutional and subject to review.

For more information please contact Michael Siri at 410-583-2400 or siri@bowie-jensen.com.

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