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Law Digest — Maryland Court of Appeals — Jan. 31, 2019

Court of Appeals

Administrative Law, Quasi-judicial act: Because a city council’s decision denying a developer’s application to amend the General Development Plan for an area located within the city was reached on individual grounds involving one parcel of land through a deliberative fact-finding process involving testimony and the weighing of evidence, the decision was not a legislative act but a quasi-judicial act, and thus was subject to judicial review to determine whether the city council’s findings and conclusions were supported by substantial evidence in the record as a whole; therefore, because the city council’s denial of the application was supported by substantial evidence in the record as a whole, the circuit court judgment affirming the city council’s decision was affirmed by the Court of Appeals. WV DIA Westminster, LLC v. Mayor & Common Council of Westminster, No. 22, Sept. Term, 2016.

Criminal Procedure, Jury instructions: The trial court’s error of supplying the jury with an instruction on the sole charge against the defendant of first-degree child abuse, which was an incorrect statement of law and was later acknowledged by the court, the prosecution, and the defense to have erroneously omitted an element of the offense, was not harmless, and, therefore, the appropriate remedy was reversal of the conviction and remand for a new trial. Williams v. State, No. 13, Sept. Term, 2016.

Administrative Law, Final judgment: Because the Housing Choice Voucher Program (“HCVP”), which is administered under the Hartford County Housing Agency (“HCHA”), operated in only one county rather than statewide, it was not an “agency” for the purposes of the Maryland Administrative Procedure Act, and, therefore, where an HCVP participant’s housing voucher was terminated for failure to abide by HCVP guidelines due to, among other things, her conviction of two counts of second-degree assault, the participant was not entitled to a contested case hearing but only to due process, which she was accorded by the HCHA through an informal hearing and written decision. McDonell v. Hartford County Housing Agency, No. 16, Sept. Term, 2018.

Administrative Law, Substantial evidence: Court of Special Appeals erred in reversing the judgment of the Commissioner of Labor and Industry because there was substantial evidence before the Commissioner to conclude that contractor’s failure to install braces and use of an undersized beams during construction constituted recognized hazards in violation of the Labor and Employment Article, §5-104(a). Commissioner of Labor and Industry v. The Whiting-Turner Contracting Company, No. 30, Sept. Term 2018.

 

Administrative Law

Quasi-judicial act

 BOTTOM LINE: Because a city council’s decision denying a developer’s application to amend the General Development Plan for an area located within the city was reached on individual grounds involving one parcel of land through a deliberative fact-finding process involving testimony and the weighing of evidence, the decision was not a legislative act but a quasi-judicial act, and thus was subject to judicial review to determine whether the city council’s findings and conclusions were supported by substantial evidence in the record as a whole; therefore, because the city council’s denial of the application was supported by substantial evidence in the record as a whole, the circuit court judgment affirming the city council’s decision was affirmed by the Court of Appeals.

CASE: WV DIA Westminster, LLC v. Mayor & Common Council of Westminster, No. 22, Sept. Term, 2016 (filed Jan. 18, 2019) (Judges Barbera, Greene, Adkins, McDonald, WATTS, Hotten & Battaglia (Senior Judge, Specially Assigned)).

FACTS: In July 2016, a developer, WV DIA Westminster, LLC, filed an application to amend the General Development Plan (“GDP”) for Wakefield Valley, located in Westminster, Maryland, to permit construction of 53 homes on what was designated as “Parcel W” of a former golf course. In December 2016, the Mayor and Common Council of Westminster held a public hearing on the application. Another public hearing was held in January 2017. At the conclusion of the hearing, the Council voted to deny the application, and the president of the Council directed staff to prepare a written decision to that effect.

In February 2017, the developer filed a petition for judicial review in the circuit court. In March 2017, the Council adopted Ordinance No. 876, denying the application and incorporating an attached written decision, which set forth its findings. The developer then filed an amended petition for judicial review. Following a hearing, the circuit court issued a memorandum opinion and order, affirming the Council’s decision as set forth in Ordinance No. 876.

The developer filed a notice of appeal in the Court of Special Appeals. While the case was pending in the Court of Special Appeals, the developer filed a petition for a writ of certiorari in the Court of Appeals, which was granted. The Court of Appeals subsequently affirmed the decision of the Council denying the developer’s application.

LAW: WV DIA Westminster argued that the Council’s decision denying its application was a quasi-judicial decision, not a legislative act. The developer contended that quasi-judicial review requires examination of a parcel on individual grounds, utilizing a deliberative and testimonial fact-finding process. The developer maintained that, by casting its decision as an exercise of legislative judgment, the Council applied an erroneous standard and, thus, legally erred.

Land use decisions by a local governmental body are categorized as either legislative or quasi-judicial in nature. See Md. Overpak Corp. v. Mayor and City Council of Balt., 395 Md. 16, 32-33 (2006). Whether a governmental action is legislative or quasi-judicial in nature is significant because it dictates the scope of judicial review. See id. at 33. Legislative actions are subjected to a more limited review by the courts than are quasi-judicial actions. Id. at 33. Judicial scrutiny of legislative action under the court’s ordinary jurisdiction is limited to assessing whether a government body was acting within its legal boundaries. Kenwood Gardens Condos., Inc. v. Whalen Props., LLC, 449 Md. 313, 338 (2016). By contrast, quasi-judicial actions are reviewed to determine whether there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine whether the administrative decision is premised upon an erroneous conclusion of law. Id. at 325, 344.

The outcome of the analysis of whether a given act is quasi-judicial in nature is guided by two criteria: (1) the act or decision is reached on individual, as opposed to general, grounds, and scrutinizes a single property; and (2) there is a deliberative fact-finding process with testimony and the weighing of evidence. Id. at 332. With respect to the first factor, ordinarily, proceedings or acts that scrutinize individual parcels or assemblages for the consideration of property-specific proposed uses, at the owner’s or developer’s initiative, suggest a quasi-judicial process or act. Id. at 332. These types of individualized determinations are distinguishable from acts that primarily have broader, community-wide implications, which encompass considerations affecting the entire planning or zoning district. Id. at 332-33.

As to the second factor, the second element of the test ordinarily involves the holding of a hearing, the receipt of factual and opinion testimony and forms of documentary evidence, and a particularized conclusion as to the development proposal for the parcel in question. Id. at 332. Thus, site-specific findings of fact are necessary not only to inform properly the interested parties of the grounds for the body’s decision, but also to provide a basis upon which judicial review may be rendered. Id. at 332. The most weighty criterion is the fact-finding. Id. at 332.

The Court of Appeals has consistently stated that comprehensive zoning is a legislative act. See, e.g., Anne Arundel Cty. v. Bell, 442 Md. 539, 553 (2015). As comprehensive zoning encompasses a large geographical area, the process is initiated generally by a local government, rather than by a property owner or owners. Id. By contrast, piecemeal zoning is a quasi-judicial action. See id. at 555. Notably, the act or decision reached through this quasi-judicial process is on individual, as opposed to general, grounds, and scrutinizes a single property.

Thus, the piecemeal zoning process is decidedly un-legislative in nature, except at the end: it includes typically a deliberative fact-finding process, which entails the holding of at least one evidentiary hearing, factual and opinion testimony, documentary evidence, cross-examination of the witnesses, and objections to the weighing of evidence. Id. This process results in a particularized set of written findings of fact and conclusions of law as to the zoning proposal for the parcel or assemblage in question. Id. Succinctly stated, original and comprehensive zoning are accomplished solely through legislative processes culminating in legislative acts, while piecemeal rezoning is achieved through a quasi-judicial process leading to a technical legislative act. Id.

Thus, the developer correctly contended that the Council’s decision denying the application was quasi-judicial in nature, and, as such, was subject to judicial review to determine whether substantial evidence in the record as a whole supported the Council’s findings and conclusions and to determine whether the Council’s decision is premised upon an error of law. See Kenwood, 449 Md. at 325. The Council’s decision in denying the application satisfied the two-part test for determining whether a given action was quasi-judicial in nature because it was reached on individual, as opposed to general, grounds, involving one parcel (Parcel W) and the decision was reached through a deliberative fact-finding process involving testimony and the weighing of evidence. See id. at 332. Specifically, contrary to the Council’s contention, the Council reached its decision based on an examination of Parcel W on individual grounds, and its decision was more akin to piecemeal rezoning than comprehensive rezoning.

In this case, the Council did not initiate the amendment process; rather, the developer initiated the process by filing the application seeking to amend the Wakefield Valley GDP. Moreover, the developer’s application sought to amend the Wakefield Valley GDP only with respect to Parcel W, which comprised only 38 acres of the approximately 734 acres making up the Wakefield Valley GDP area. In other words, the application did not encompass a large geographic area, let alone the majority or entirety of the Wakefield Valley GDP area. Moreover, the process utilized by the Council in considering the application certainly included all of the hallmarks of a deliberative fact-finding process, such as the holding of an evidentiary hearing and the receipt of factual and opinion testimony, as well as documentary evidence. See Kenwood, 449 Md. at 332. In sum, the process by which the application was filed and considered strongly suggested a quasi-judicial process because it involved scrutiny of one particular parcel (Parcel W) for consideration of property-specific uses (the addition of 53 new homes on Parcel W), at the developer’s initiative.

In considering the application, the Council used a deliberative and testimonial fact-finding process. Importantly, the specific findings required by Westminster Code §164-188J were precisely the types of findings that a governmental body must make during a quasi-judicial decision-making process involving proposed development on a particular property. And, notably, throughout the process, both the developer and the Council treated the process as quasi-judicial in nature. See Overpak, 395 Md. at 22-23, 44. For these reasons, the Council’s decision in denying the Application was quasi-judicial, not legislative, in nature, and there was no error of law in that regard.

As such, the Council’s decision, like any other quasi-judicial decision, was subject to judicial review to determine whether substantial evidence in the record as a whole supported the Council’s findings and conclusions and to determine whether the Council’s decision was premised upon an error of law. See Kenwood, 449 Md. at 325, 344. However, because the Council’s decision was supported by substantial evidence, the circuit court did not err in affirming the Council’s decision. Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: The developer contended that, under the Council’s factual findings, its application satisfied Westminster Code §164-188J. The developer pointed out that the Council found that all relevant considerations of Westminster Code §164-188J(2) through (5) were satisfied, and that (6) was not relevant, thus binding the Council as to those matters. As such, the developer argued that the Council’s rejection of the application was legal error, and there was not substantial evidence to support it.

In relevant part, Westminster Code §164-188J(1) provides that the Council must make the specific finding, in addition to any other findings which may be found to be necessary and appropriate to the evaluation of the proposed reclassification, that the zone applied for is in substantial compliance with the use and density indicated by the Master Plan or sector plan and that it does not conflict with the general plan, the City’s capital improvements program or other applicable City plans and policies. Here, the record provided substantial evidence supporting the Council’s findings with respect to open space and the trajectory of the Wakefield Valley GDP area to decrease density and increase open space. Moreover, the same evidence demonstrated that the Wakefield Valley GDP had historically been an area of low-density residential use and a generous open space requirement. Thus, substantial evidence in the record as a whole supported the Council’s findings and its determination that the application did not substantially comply with the use and density indicated by the Wakefield Valley GDP.

Criminal Procedure

Jury instructions

BOTTOM LINE: The trial court’s error of supplying the jury with an instruction on the sole charge against the defendant of first-degree child abuse, which was an incorrect statement of law and was later acknowledged by the court, the prosecution, and the defense to have erroneously omitted an element of the offense, was not harmless, and, therefore, the appropriate remedy was reversal of the conviction and remand for a new trial.

CASE: Williams v. State, No. 13, Sept. Term, 2016 (filed Jan. 18, 2019) (Judges Barbera, GREENE, Adkins, McDonald & Hotten) (Judges Watts & Getty, dissent).

FACTS: Craig Williams was the father of I.W., who was born on March 3, 2008. Breana Mapp was I.W.’s biological mother. Williams married Nicole Williams, his current wife, after the birth of I.W. Williams and his wife had three sons together. Williams, in addition to I.W., had another son from a previous relationship. Nicole Williams had two children from a previous relationship. Thus, altogether, the couple had seven children between them.

For the first four years of the Williams’ marriage, all children except for I.W. lived with them. In 2012, the circuit court granted Williams sole physical and legal custody of I.W. because that court found that Mapp had sexually and physically abused I.W. Upon moving in with Craig and Nicole Williams, I.W.’s behavior showed signs of the sexual trauma and abuse he had suffered at the hands of his mother. For example, I.W. threw tantrums, hit himself and sexually attacked his siblings.

Christopher Cofone, a social worker, began working with I.W. in May of 2014. Monica Reaves, a social worker with Child Protective Services, investigated the report that I.W. had sexually abused his younger half-siblings, but she never considered removing I.W. from the family home. On November 19, 2015, Cofone determined that he could no longer help I.W. and recommended that I.W. see a psychiatrist. An appointment was scheduled for December 4, 2015, but I.W.’s inappropriate behavior continued.

According to Craig Williams, on November 29, 2015, he first wrapped I.W. in plastic wrap at night in an effort to stop I.W. from hurting himself and the other children. The following night, on November 30, 2015, Williams again wrapped I.W. in plastic wrap from his shoulder to the knee, but also secured I.W.’s hands with zip ties.

The following morning, I.W.’s wrists were chaffed and by the evening, I.W. had “puffy wrists, was drooling, and was not talking.” Williams took I.W. to Shady Grove Hospital, where I.W. was subsequently transferred to the Children’s Hospital within Shady Grove. There, doctors diagnosed I.W. with compartment syndrome and performed surgery on I.W.’s wrists.

On January 7, 2016, a grand jury indicted Craig Williams on one count of first-degree child abuse. Under Maryland Code Ann., Criminal Law Article §3-601(b)(1)(ii) (2002, 2012 Repl. Vol., 2018 Supp.) (“Crim. Law Art.”), to obtain a conviction on a charge of first-degree child abuse, the State was required to prove beyond a reasonable doubt that Williams abused I.W. and that the abuse resulted in “severe physical injury.” “Severe physical injury” is defined under Crim. Law Art. §3-601(a)(5)(iii).as a physical injury that creates a substantial risk of death or causes permanent or protracted serious disfigurement, loss of the function of any bodily member or organ, or impairment of the function of any bodily member or organ.

For the jury instructions, at the request of both parties, the trial court instructed the jury using the Maryland Criminal Pattern Jury Instructions (“MPJI-CR”). The MPJI-CR defined “severe physical injury” in pertinent part as “physical injury that (a) causes a substantial risk of death, (b) permanent or protracted serious disfigurement, or (c) causes loss or impairment of a member or organ of the body or its ability to function properly.” After the jury found Williams guilty, Williams’ counsel concluded that the pattern instruction was incorrect because it did not make clear that the terms “permanent or protracted” applied to both loss of function and impairment as well as disfigurement.

This error was confirmed by the Honorable Michael Mason, who was not the presiding judge but at the time served as the Chair of the Maryland State Bar Association’s Criminal Subcommittee of the Maryland Pattern Jury Instructions Standing Committee. In an email exchange between Williams’ counsel and Judge Mason, Judge Mason explained that the Criminal Subcommittee remedied the error by changing the pattern instruction on “severe physical injury.” On December 1, 2016, Williams filed a motion for new trial and referenced the email exchange between his counsel and Judge Mason.

At the close of that hearing, the trial judge denied the motion for new trial. On February 17, 2017, Williams noted an appeal to the Court of Special Appeals, which affirmed the trial court’s decision. Williams then appealed to the Court of Appeals, which reversed the judgment of the Court of Special Appeals and remanded the case for a new trial.

LAW: Williams sought a reversal of the judgment of the Court of Special Appeals, arguing that the erroneous jury instruction was prejudicial error and warranted a new trial. Williams moved for a new trial under Maryland Rule 4-331(a), which states that the court may, on motion filed by the defendant within ten days after the verdict, order a new trial if it finds that a new trial would be in the interest of justice. In his motion, Williams asserted that the faulty jury instruction warranted the granting of a new trial because the instruction with regard to “severe physical injury” was unclear and, thus, lowered the standard under which the jury could convict Williams. Specifically, according to Williams, the jury instruction did not make clear the definition of “severe physical injury” as defined in Crim. Law Art. §3-601.

Pursuant to Rule 4-331(a), a trial judge may order a new trial if the court finds it is in the interest of justice to do so. This decision is ordinarily reviewed under the abuse of discretion standard. Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 57 (1992). To reverse the denial of a new trial on appeal, when utilizing the abuse of discretion standard, the reviewing court must find that the degree of probable prejudice was so great that it was an abuse of discretion to deny a new trial. Merritt v. State, 367 Md. 17, 29 (2001). Abuse occurs when a trial judge exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of law. Campbell v. State, 373 Md. 637, 666 (2003).

In Merritt, however, the Court of Appeals made an exception to the general rule that a trial court’s decision on a motion for new trial is reviewed for an abuse of discretion. Merritt, 367 Md. at 30-31. Under Merritt, when an alleged error is committed during the trial, when the losing party or that party’s counsel, without fault, does not discover the alleged error during the trial, and when the issue is then raised by a motion for a new trial, the denial of the motion for the new trial motion is reviewed under a standard of whether the denial was erroneous, and in criminal cases where it is concluded that error did occur, the matter of prejudice is reviewed under the harmless error standard of review. Id. at 31. The Merritt Court recognized the limitation of an abuse of discretion standard, such as in the situation where an error occurred at trial and was not discovered by either party until after the trial, neither party was at fault for not discovering the error, and the error was raised by a motion for new trial, and ultimately concluded that the result would be the same regardless of whether the denial of the motion for a new trial was reviewed under an abuse of discretion standard or under an error standard. Id. at 31-32. Due to the high burden set by Merritt, Maryland appellate courts have generally reviewed the trial court’s decision for an abuse of discretion. See id.

In the present case, it was undisputed that an error, the delivery of the faulty jury instruction, occurred during the trial. The State and Williams agreed that based on the MPJI-CR jury instruction that was given, the jury could convict Williams of first-degree child abuse as long as he caused loss or impairment of a member or organ of the body or its ability to function properly. The instruction did not make clear that the loss or impairment must be either “permanent or protracted serious” as required by Crim. Law Art. §3-601(b)(1)(ii). Thus, the trial court committed error when it gave the jury an instruction that effectively lowered the State’s burden for establishing William’s guilt beyond a reasonable doubt.

This error was not properly attributed to either Williams or the State, but was the trial court’s responsibility to avoid. Brady v. State, 393 Md. 502, 507-08 (2006). Therefore, under Merritt, the circuit court’s denial of the motion for a new trial was subject to the harmless error standard. Because it could not be said beyond a reasonable doubt that Williams was not harmed by this error, reversal was required.

Accordingly, the judgments of the Court of Special Appeals and the circuit court were reversed, and the case was remanded to the circuit court for a new trial.

COMMENTARY: The only crime with which Williams was charged was first-degree child abuse. As such, it was the only crime on which the jury received instruction. According to the jury instruction that was given, it was unclear if “permanent or protracted serious” applied to both disfigurement and loss or impairment of the function of an organ of the body. The lack of clarity in the instruction clearly prejudiced Williams and lowered the State’s burden to establish Williams’s guilt. The prejudice to Williams was that the State pursued only the charge of first-degree child abuse as opposed to charges of first and second-degree child abuse.

DISSENT: The appropriate standard of review for the circuit court’s denial of the motion for a new trial was abuse of discretion rather than harmless error. Moreover, the evidence demonstrated beyond a reasonable doubt that I.W.’s injuries were serious and either permanent or protracted and that the giving of the incorrect pattern jury instruction did not affect the verdict. Therefore, regardless of the standard of review, the judgment of the Court of Special Appeals should have been affirmed because even assuming, arguendo, that the standard of review was harmless error, the record established beyond a reasonable doubt that the incorrect jury instruction did not affect the verdict.

PRACTICE TIPS: The Maryland Court of Appeals and Court of Special Appeals have been steadfast in encouraging that trial counsel and trial courts rely on the pattern jury instructions. Thus, the courts have a significant role in giving proper jury instructions, and an appellate court, on its own initiative or on the suggestion of a party, may take cognizance of any plain error in the jury instructions, material to the rights of the defendant, despite a failure to object.

Administrative Law

Final judgment

BOTTOM LINE: Because the Housing Choice Voucher Program (“HCVP”), which is administered under the Hartford County Housing Agency (“HCHA”), operated in only one county rather than statewide, it was not an “agency” for the purposes of the Maryland Administrative Procedure Act, and, therefore, where an HCVP participant’s housing voucher was terminated for failure to abide by HCVP guidelines due to, among other things, her conviction of two counts of second-degree assault, the participant was not entitled to a contested case hearing but only to due process, which she was accorded by the HCHA through an informal hearing and written decision.

CASE: McDonell v. Hartford County Housing Agency, No. 16, Sept. Term, 2018 (filed Jan. 22, 2019) (Judges Barbera, Greene, ADKINS, McDonald, Watts, Hotten & Getty). RecordFax No. 19-0122- , pages.

FACTS: On November 4, 2011, Karen McDonell was enrolled in the Housing Choice Voucher Program (“HCVP” or “Voucher Program” or “Section 8”), a federally-funded housing assistance program administered by the Hartford County Housing Agency (“HCHA”) in Harford County, Maryland. Families enrolled in the HCVP are required to abide by a set of guidelines, or they risk termination of their monthly rental assistance. McDonell participated in the Voucher Program without issue for more than three years.

In February 2015, she fell behind on her obligation to reimburse the HCHA for an overpayment and entered into a Restitution Agreement. Under the agreement, she was required to make monthly payments of $42. The amount of the payments was ultimately lowered because McDonell struggled to afford the first-prescribed amount. Even so, she failed to make payments in August and September of 2015.

In June 2015, McDonell was involved in an altercation involving her sister, a neighbor, and the neighbor’s daughter. She was found guilty on two counts of second-degree assault and was incarcerated at the Harford County Detention Center. While McDonell was incarcerated, her mother twice informed the HCHA that McDonell and her family were not residing in the home. During her incarceration, McDonell was allegedly denied access to her medication, and consequently, fell into a diabetic coma and was taken to Upper Chesapeake Medical Center. The HCHA was made aware of this situation.

McDonell was released from jail on October 15, 2015. Days later, her unit failed a Housing Quality Inspection due to a rodent infestation. She was ordered to make repairs by November 10, 2015. On that date, McDonell was not present at the home for the reinspection.

On November 30, 2015, the HCHA sent McDonell a letter notifying her that her Housing Voucher was being terminated for a number of reasons: failure to provide access to her unit for the required Housing Quality Standard (“HQS”) Inspection scheduled for November 10, 2015; failure to notify the Housing Agency that her family was not residing in the assisted unit; conviction of two counts of second-degree assault; and failure to pay restitution to the Housing Agency in accordance with the restitution agreement signed on February 5, 2015. The letter also advised McDonell that her housing assistance would terminate December 31, 2015 and that she had the right to request an informal hearing within 14 days. McDonell requested an informal hearing, which was held on December 21, 2015. Following the hearing, the hearing officer issued a decision upholding the termination.

McDonell sought judicial review in the circuit court, which upheld the termination on all four grounds listed in the notice. The Court of Special Appeals affirmed the decision of both the circuit court and the hearing officer. McDonell then appealed to the Court of Appeals, which affirmed the judgment of the Court of Special Appeals.

LAW: On appeal, McDonell argued that the HCHA erred in terminating a voucher without affording procedural due process guaranteed under federal and Maryland administrative common law. Specifically, she contended that she should have received a contested case hearing under the Maryland Administrative Procedure Act. In addition, McDonell asserted that even if she was not entitled to such a hearing, her due process rights were nonetheless violated because she was deprived of adequately protective procedures.

The Maryland Administrative Procedure Act contested case procedures, codified at Md. Code (1984, 2014 Repl. Vol.), §§10-201–226 of the State Government Article (“State Gov’t”), was enacted for the sometimes-competing purposes of ensuring the right of all persons to be treated in a fair and unbiased manner and promoting prompt, effective, and efficient government. Id. §10-201(1)–(2). The Maryland APA provides more rigorous procedural safeguards than either the United States Department of Housing and Urban Development regulations or the HCHA Administrative Plan. Individuals involved in administrative hearings under the scope of the Maryland APA are entitled to contested case hearings. Significantly, these hearings provide the following protections: (1) each party may produce evidence and present and cross-examine witnesses; (2) the agency must transcribe the hearing upon request; (3) the presiding officer must maintain a comprehensive record of the proceedings; and (4) the presiding officer must compose an adequate final decision that includes a notification of right to judicial review.

McDonell argued that she was entitled to a contested case hearing under the Maryland APA. The crux of her argument was that because the Court of Appeals in Walker v. Department of Housing and Community Development, 422 Md. 80 (2011), held that that voucher recipients in State-administered programs must receive contested case hearings, recipients in locally-administered programs should likewise receive these hearings. She also argued that failure to provide her with a contested case hearing would produce an absurd result, because those in State-administered programs would receive greater protections than those in locally-administered programs.

State Gov’t §10-203 provides a list of “general exclusions” from the contested case hearing procedures. One of the enumerated exceptions includes: an officer or unit not part of a principal department of State government that is created by or pursuant to the Maryland Constitution or general or local law, operates in only one county, and is subject to the control of a local government or is funded wholly or partly from local funds. Id. § 10-203(a)(4). Clearly, as a county governmental unit, the HCHA is not “part of a principal department of State government.” Moreover, it was created pursuant to local law, Harford Cty., operates only in Harford County, and is subject to the control of the County Executive. Consequently, the HCHA, and organizations like it, are excluded from the contested case hearing requirements under the terms of the Maryland APA.

Likewise, the HCHA falls outside the definition of “agency.” Under the statute, a “contested case” means a proceeding before an agency to determine a right, duty, statutory entitlement, or privilege of a person that, under the Constitution, can only be “determined” once given the opportunity for a hearing. State Gov’t §10-202(d)(1). The term “agency” means a unit that: (i) is created by general law; (ii) operates in at least two counties; and (iii) is authorized by law to adjudicate contested cases. Id. §10-202(b)(2).

As discussed, the HCHA only operates in one county: Harford County. The Administrative Plan specifically states that the HCHA’s jurisdiction includes Harford County, Maryland, and no other location. Thus, the HCHA is not an “agency” under the statute, and a contested case hearing could never come before it. In this way, McDonell’s case markedly differed from Walker, in which the parties stipulated that the Department of Housing and Community Development was a State agency to which the Maryland APA applied. Walker, 422 Md. at 92. And, while McDonell called the dichotomy between the MD APA covering some housing voucher recipients, but not others, “absurd,” she offered no plausible legal rationale for finding that arrangement was unlawful.

The General Assembly apparently chose to impose the more formal APA requirements on larger, state-wide agencies, but not on local ones. This choice arguably reflected a legislative concern that the more formal procedures required by the Maryland APA were too costly and inefficient for a local government to bear, and was certainly not an absurd rationale. The General Assembly has often demonstrated caution and restraint when imposing mandates on local government, especially those involving additional costs that are not funded by the State. For these reasons, recipients in locally-administered housing voucher programs, like the one in this case, are not entitled to contested case hearings under the Maryland APA.

While there might be insufficient basis for upholding the hearing officer’s decision if the lack of notice of McDonell’s absence from the unit were the only grounds for termination, the hearing officer also grounded his decision on evidence that McDonell was convicted of assault. Evidently, the hearing officer was persuaded that McDonell committed the acts underlying the criminal conviction. Therefore, the hearing officer’s written decision was adequate, and due process did not require a recording or transcript of the informal hearing.

Both parties recognized that criminal activity, generally, is an acceptable ground upon which the HCHA may terminate assistance. In the present case, the record contained substantial evidence for the HCHA to determine, by a preponderance of the evidence, that McDonell’s alleged conduct was violent or threatening to health, safety, or peaceful enjoyment. The assault charges stemmed from an incident involving McDonell, her sister, a neighbor, and the neighbor’s daughter. A reasoning mind could have reached the factual conclusion the agency reached: that McDonell attacked or threatened the health, safety, or peace of the neighbor and her daughter.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: As a preliminary matter, HCHA contended that McDonell did not preserve her due process challenge. However, given that McDonell filed a pro se memorandum in the circuit court, stating among her reasons for appealing her voucher termination that she “was given an unfair hearing,” she arguably preserved a due process claim. See Mathews v. Eldridge, 424 U.S. 319, 343, 349 (1976). In light of the considerable importance of the issue, and considering that McDonell argued “fairness,” a basic tenet of procedural due process, McDonell’s due process claim was adequately preserved for appellate review.

PRACTICE TIPS: Pursuant to the United States Constitution, any person deprived of life, liberty, or property must be afforded procedural due process. Housing vouchers are a property interest. Therefore, housing voucher recipients must receive notice, a hearing, and an adequate decision before their vouchers are terminated.

Administrative Law

Substantial evidence

BOTTOM LINE: Court of Special Appeals erred in reversing the judgment of the Commissioner of Labor and Industry because there was substantial evidence before the Commissioner to conclude that contractor’s failure to install braces and use of an undersized beams during construction constituted recognized hazards in violation of the Labor and Employment Article, §5-104(a).

CASE: Commissioner of Labor and Industry v. The Whiting-Turner Contracting Company, No. 30, Sept. Term 2018 (filed Jan. 23, 2019) (Judges Barbera, Greene, McDonald, Watts & Hotten) (Judges Getty & Adkins (Senior Judge, Specially Assigned), dissent)). RecordFax No. 19-0123- , pages.

FACTS: Whiting-Turner Contracting Company undertook a construction project in the parking garage in Bethesda. Part of this construction involved removing and relocating portions of the parking deck, known as double-tees, in order to make room for a crane tower that would be used to construct new floors on top of the existing garage structure. Because Whiting-Turner intended on reusing the double-tees, a Whiting-Turner engineer developed a system whereby workers would raise the double-tees using a hydraulic jack. In order for the process to be conducted safely, the engineer required the placement of four shoring/safety towers, one under each corner of the double-tee. Once the double-tees were lifted to a certain height, rail assemblies were to be installed beneath it so that the double-tee could slide onto the adjacent parking deck. This created an opening in the parking deck for the crane tower while still preserving the double-tees for future use.

Whiting-Turner assembled the shoring towers using materials from Safway Services, a construction company. Safway provided Whiting-Turner with a manual for the assembly of the shoring towers. Among their instructions, the assembly manual provided that “[t]he positioning of the gooser braces start when the extension frame is put at a [two inch] or more extension. As the extension frames are extended, the diagonal gooser braces are connected to the various horizontals of the base frame and the extension frame.” Despite the assembly manual’s instructions, the braces provided by Safway were never installed or utilized.

On May 21, 2013, the construction crew successfully raised and relocated one of the double-tees using the process detailed above. On May 23, 2013, the construction crew began to remove a second double-tee, using the same process. After the workers had returned from lunch and continued raising the double-tee, one of the employees observed that a steel support beam under a steel spacer beam had bent and twisted at the southeast corner of the shoring tower. The foreman determined that the beam needed to be replaced before proceeding. To replace the support beam, the employees were instructed to jack up the southeast corner of the double-tee in order for the beam to be detached from the shoring tower and replaced. Before the support beam could be replaced, the double-tee and shoring towers collapsed, resulting in the death of one employee.

The Maryland Occupational Safety and Health Unit (“MOSH”), with assistance from Dr. J. Scott Jin, a civil engineer in the Federal Occupational Safety and Health Administration (“OSHA”) investigated the accident. Whiting-Turner also retained KCE Structural Engineers, P.C. (“KCE”) to determine the cause. Dr. Jin and KCE concluded that Whiting-Turner should have installed gooser braces in the shoring towers and that their failure to do so contributed to the accident. Dr. Jin also concluded that Whiting-Turner’s use of an eight-inch high spacer beam between the double-tee stem and the upper beam weakened the stability of the system and rendered the shoring tower unable to support the actual load of the double-tee.

MOSH ultimately issued two citations to Whiting-Turner. First, Whiting-Turner was charged with violating 29 C.F.R. §1926.305(d)(1)(i), due to their failure to secure the double-tee after it was raised by the hydraulic jack. Second, Whiting-Turner was charged with violating Maryland Code, Lab. & Empl. Article, §5-104(a), also known as the General Duty Clause, due to their failure to “furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees[.]” MOSH based this second violation on three factors: 1) Whiting-Turner’s failure to install gooser braces on the shoring towers; 2) WhitingTurner’s use of an undersized spacer beam, an eight-inch high spacer beam, between the double-tee stem and the upper beam; and 3) the single jacking of the southeast shoring tower.

An Administrative Law Judge (ALJ) heard testimony from Dr. Jin, David Latham, a compliance specialist with MOSH, Patrick Bruns, an ironworker employed by Whiting-Turner, and two project managers for Whiting-Turner. With regard to violating §1926.305(d)(1)(i), the ALJ concluded that Whiting-Turner failed “to crib, block, or otherwise secure a load at once after the load was raised[,]” and recommended that the penalty of $5,325 be affirmed.

Whiting-Turner filed for a review of the ALJ’s proposed findings and decision before the Commissioner of Labor and Industry, which affirmed. Whiting-Turner petitioned for judicial review and the Circuit Court for Baltimore County affirmed the Commissioner’s decision, concluding that it was legally correct and supported by substantial evidence in the record. The Court of Special Appeals reversed the Commissioner’s decision on the ground that the decision lacked substantial evidence to support the conclusion that the hazards were “recognized.”

The Commissioner appealed to the Court of Appeals, which reversed the judgment of the Court of Special Appeals.

LAW: The issue was whether the Commissioner correctly determined that Whiting-Turner’s failure to follow the shoring-tower manufacturer’s instructions to use gooser braces in assembling the shoring tower supporting a concrete slab, which resulted in serious injury and death, constituted a recognized hazard within the meaning of §5-104(a) of the Labor & Employment Article (Lab. & Empl.).

The General Duty Clause of the Maryland Occupational Safety and Health Act (“MOSHA”), set forth in §5-104(a) of the Labor and Employment Article, provides: “Each employer shall provide each employee of the employer with employment and a place of employment that are: (1) safe and healthful; and (2) free from each recognized hazard that is causing or likely to cause death or serious physical harm to the employee.” Because MOSHA is modeled after the Federal Occupational Safety and Health Act, Maryland courts frequently turn to Federal decisions for guidance in interpreting MOSHA. Md. Comm’r of Labor & Indus. v. Cole Roofing Co., 368 Md. 459 (2002).

In order to establish a violation of the General Duty Clause, MOSH must prove: 1) some condition or activity in the workplace presented a hazard; 2) the hazard was “recognized”; 3) the hazard was likely to cause death or serious physical harm; and 4) “feasible means to eliminate or materially reduce the hazard existed.” Sea World of Florida, LLC v. Perez, 748 F.3d 1202, 1207 (D.C. Cir. 2014). A failure to prove at least one of the above elements results in a lack of substantial evidence to support a violation of MOSHA. “Establishing that a hazard was recognized requires proof that the employer had actual knowledge that the condition was hazardous or proof that the condition is generally known to be hazardous in the industry.” Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 321 (5th Cir. 1984). In Comm’r of Labor & Indus. v. Bethlehem Steel Corp., the Court considered whether the presence of a deteriorating toaster oven for use in an employee lunch room, which resulted in the electrocution of an employee, constituted a recognized hazard in violation of 29 C.F.R. §1910.303(b)(1). In concluding that such action was a recognized hazard, it was explained that “either actual or constructive [knowledge] is the gravamen of employer responsibility under the Act[.]” Id. at 25. This interpretation instructs the Court to conclude that a hazard is “recognized” under Lab. & Empl. §5-104(a) when the employer has actual or constructive knowledge of the hazard.

Because this case focused on the presence of substantial evidence to support the Commissioner’s findings, it was concluded that there was substantial evidence to prove that Whiting-Turner’s failure to use gooser braces and use of an undersized spacer beam both constituted recognized hazards in violation of the General Duty Clause.

It was clear from the assembly manual that gooser braces are called for when the extension frame is extended to two feet or higher. It was also undisputed that the extension frames here were extended to a height greater than two feet at the time of the accident. Therefore, the gooser braces should have been installed on the tower. As the Commissioner properly noted, “[t]he hazard associated with not following Safway’s recommendation to utilize the gooser braces when the extension frames were added is that as the shoring tower is extended higher, it becomes more flexible and less stable, creating the potential for the load to shift or fall.”

In F & H Coatings, LLC v. Acosta, the Tenth Circuit considered whether placement of a vessel on pipe racks constituted a recognized hazard. 900 F.3d 1214, 1225 (2018). Concluding that such an action was a recognized hazard, the Tenth Circuit observed that, “[a]t its most basic, the condition involved elevating an incredibly heavy object, placing it on a set of racks, [and] allowing work to be performed on it without securing it against unexpected movement.” Id. (quotations omitted).

Similarly here, the act of raising a 42,800 pound concrete double-tee without installing gooser braces for stability and safety is clearly a hazard to those working underneath and in the proximity of the raised object. Dr. Jin determined that the “[l]ack of the diagonal gooser braces on the extended frames decreased the rigidity of the shoring/skating tower in the north-south direction . . . . Without the diagonal gooser braces, the shoring/skating towers became more flexible and less stable, contributing to the collapse.”

The Commissioner was presented with an assembly manual from Safway providing for the installation of gooser braces on the shoring towers, plans from Whiting-Turner’s own engineers calling for the use of proper cribbing and support beams, as well as the expert opinion of Dr. J. Scott Jin and investigation reports from MOSH and KCE Structural Engineers identifying Whiting-Turner’s alleged violations as contributing to the accident. The record clearly included “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[]” that Whiting-Turner violated §5-104(a) of the Labor and Employment Article by failing to install gooser braces and using an undersized spacer beam. Bulluck v. Pelham Wood Apartments, 283 Md. 505, 512 (1978).

Accordingly, the judgment of the Court of Special Appeals was reversed.

COMMENTARY: Whiting-Turner contended that because there were no explicit warnings regarding the danger of failing to use gooser braces when the extension frames have reached a height of two feet or more, there lacked substantial evidence to conclude the presence of a recognized hazard.

In Secretary of Labor v. K.E.R. Enterprises, Inc., three employees of an underground utility contractor were injured while performing a pressure test on a pipe that exploded after the employees tightened the bolts in order to repair a small leak without first depressurizing the pipe. The Review Commission vacated a citation against K.E.R. that alleged a failure to follow the manufacturer’s instructions and industry standards regarding the proper response to a pipe leak. Id. at *5. The Review Commission first noted that the conditions did not pose a hazard to the employees, then went on to comment that even if there were a hazard, it was not recognized because the installation instructions did not “contain a safety warning or suggest a link between noncompliance and a safety hazard.” Id. at *3-4. The instructions were, generally, to “[t]ighten the bolts to the normal range[,]” but did not specify a specific range, tool, or warning for repairing the leak. Id. at *4. Additionally, the Review Commission concluded that K.E.R. did in fact comply with both the manufacturer’s specifications and the industry standards for dealing with the type of leak observed. Id.

Conversely, here Whiting-Turner did not comply with either the manufacturer’s instructions or industry standards. The reports and testimony submitted by Dr. Jin, KCE, and MOSH’s compliance analyst, Mr. Latham, explained that the installation of gooser braces is required and recommended by the manufacturer of the equipment, Safway, making the hazard known under industry standards. Additionally, the Safway assembly manual clearly provided the material and instructions for installing the gooser braces, providing Whiting-Turner with actual knowledge that they should have been installed. Although the instructions lacked an explicit warning, it was inherently obvious that all of the materials provided by Safway were necessary to build a stable tower. Under these circumstances, substantial evidence existed for the Commissioner to conclude that Whiting-Turner’s failure to install gooser braces on the shoring towers constituted a recognized hazard in violation of the General Duty Clause.

PRACTICE TIPS: Generally, “a court reviewing a final decision of an administrative agency shall determine (1) the legality of the decision and (2) whether there was substantial evidence from the record as a whole to support the decision.” Baltimore Lutheran High Sch., v. Employment Sec. Admin., 302 Md. 649, 662 (1985). In this context, “substantial evidence” is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[.]” Bulluck v. Pelham Wood Apartments, 283 Md. 505, 512 (1978).