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No. 96, September Term, 1994 Frank P. Lussier v. Maryland Racing Commission [Concerns The Validity, As Applied To A Racehorse Owner, Of A Maryland Racing Commission Regulation Which Authorizes The

Commission To Impose A Monetary Penalty Not Exceeding $5,000 Upon A Person Subject To Its Jurisdiction Who, inter alia, Violates The Commission's Regulations]

IN THE COURT OF APPEALS OF MARYLAND

No. 96 September Term, 1994 ________________________________________

FRANK P. LUSSIER

v.

MARYLAND RACING COMMISSION _______________________________________

Eldridge Rodowsky Chasanow Karwacki Bell Raker McAuliffe, John F. (Retired, specially assigned), JJ. ________________________________________ Opinion by Eldridge, J. Bell, J., dissents. ________________________________________ Filed: November 8, 1996

The

single

issue before

us

in

this

case

concerns

the

validity, as applied to a racehorse owner, of a Maryland Racing Commission regulation which authorizes the Commission to impose a monetary penalty not exceeding $5,000 upon a person subject to its jurisdiction who, inter alia, violates the Commission's regulations.1

1

COMAR 09.10.04.03D provides as follows: "D. Denials of Licenses and Sanctions. (1) The Commission may refuse to issue or renew a license, or may suspend or revoke a license issued by it, if it finds that the applicant or licensee: (a) Has engaged in unethical or criminal conduct; (b) Is associating or consorting with an individual who has been convicted of a crime in any jurisdiction; (c) Is consorting or associating with, or has consorted with, a bookmaker, tout, or individual of similar pursuits; (d) Is, or has been, operating as a bookmaker, tout, or a similar pursuit; (e) Is not financially responsible; (f) Has been engaged in, or attempted to engage in, any fraud or misrepresentation in connection with the racing or breeding of a horse; (g) Assaults, or threatens to do bodily injury to, a member of the Commission or any of its employees or representatives or (continued...)

- 2 I. The petitioner, Frank P. Lussier, is a Vermont resident who purchased three thoroughbred racehorses in the spring of 1991. Later in 1991, the three horses were shipped to Maryland where they raced at the Laurel Race Course in three races on November 26, 1991, December 29, 1991, and December 31, 1991. Lussier was

licensed by the Maryland Racing Commission as an owner of racehorses, and his license expired at the end of 1991. Lussier did not

1

(...continued) a member or employee of an association; (h) Has engaged in conduct detrimental to racing; or (i) Has violated, or attempted to violate: (i) A law or regulation in any jurisdiction, including this State, or (ii) A condition imposed by the Commission. (2) Instead of, or in addition to, suspending a license, the Commission may impose a fine not exceeding $5,000. (3) In determining the penalty to be imposed, the Commission shall consider the: (a) Seriousness of the violation; (b) Harm caused by the violation; (c) Good faith or lack of good faith of the licensee; and (d) Licensing history of the licensee."

Other regulations authorize fines or monetary penalties in various amounts, but not exceeding $5,000, for certain specific types of misconduct. See, e.g., COMAR 09.10.03.02. Although there has been no substantial change in the regulations pertinent to this case since 1992, the numbering of the regulations has changed. Except for quotations, we shall in this opinion use the current numbering of the regulations.

- 3 renew his Maryland license for 1992 or thereafter.2 In February 1992, the Maryland Racing Commission and the Thoroughbred Racing Protective Bureau commenced an investigation with regard to the races on November 26, December 29, and December 31, to determine whether the true owner or trainer of the three horses had been concealed and whether falsified workout reports for the three horses had been published. Upon the completion of the investigation, and after a hearing before the Commission on July 1, 1992, the Commission acts in found that to Lussier in had participated of in

"improper

relation

racing

violation

COMAR

09.10.01.11(A)(3);" that Lussier transferred two of his horses "from himself to the name of another person for a purpose other than the legitimate sale of the horses in violation of COMAR 09.10.01.11(A)(14);" and that Lussier perpetrated "dishonest acts in connection with his activities, responsibilities and duties on the race track, and has engaged in conduct detrimental to racing in violation of COMAR 09.10.01.25(B)(8)." In an order issued on July 24, 1992, the Commission imposed a $5,000 fine upon Lussier.3 Under COMAR 09.10.01.25 and 09.10.01.28, an owner of a racehorse is not allowed to start the horse in a race subject to the Maryland Racing Commission's jurisdiction unless that owner is licensed by the Commission. The license is issued on an annual basis, and expires on December 31st of each year. In light of the limited issue before this Court, we have no occasion to set forth the evidence presented at the administrative hearing regarding Lussier's misconduct. A detailed review of the evidence is contained in the comprehensive opinion of the Court of Special Appeals. See Lussier v. Maryland Racing Comm'n, 100 Md. (continued...)
3 2

- 4 Lussier filed an action in the Circuit Court for Baltimore County for judicial review of the Commission's decision, challenging the administrative decision on several grounds. After a

hearing, the circuit court upheld the Commission's order imposing a $5,000 fine upon Lussier. Lussier appealed to the Court of The intermediate contentions and

Special Appeals, again raising numerous issues. appellate affirmed. court rejected each of Lussier's

Lussier v. Maryland Racing Comm'n, 100 Md. App. 190, 640 Lussier then filed in this Court a petition for

A.2d 259 (1994).

a writ of certiorari, presenting all of the issues which he had raised in both courts below. This Court granted the petition

limited to a single question, namely whether the Commission could, in accordance with its regulation, impose a fine as a sanction for misconduct absent a statutory provision expressly authorizing the imposition of a fine. II. Lussier argues that it is an "elementary" principle of Maryland law that administrative agencies lack the authority to fix "penalties in the absence of specific statutory authorization from the Legislature," and that "it has always been the Legislature's exclusive province to fix penalties . . . for transgressions of the law, either directly or via specific delegation." (Petitioner's

(...continued) App. 190, 640 A.2d 259 (1994).

3

- 5 brief at 10, 17). Lussier cites three cases which he claims

support this alleged principle of Maryland administrative law. They are Holy Cross Hosp. v. Health Services, 283 Md. 677, 393 A.2d 181 (1978); Gutwein v. Easton Publishing Co., 272 Md. 563, 325 A.2d 740 (1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 673 (1975); and County Council v. Investors Funding, 270 Md. 403, 312 A.2d 225 (1973). According to Lussier, since the General

Assembly did not explicitly authorize the Commission to impose a fine upon a racehorse owner, the Commission's order in this case "is a nullity" (Petitioner's brief at 10). Lussier asserts that

the Commission's regulation authorizing the imposition of a fine, COMAR 09.10.04.03D, is invalid except as applied to those licensed racetrack operators who have been awarded racing dates. er's brief at 16-18). (Petition-

See Maryland Code (1992, 1995 Supp.),

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