Spencer v. Board of Pharmacy

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Circuit Co urt for Baltim ore City Case No. 24-C-01-001405 IN THE COURT OF APPEALS OF MARYLAND No. 36 September Term, 2003 LINDA ANN SPENCER v. MARYLAND STATE BOARD OF PHARMACY Bell, C.J. Raker Wilner Cathell Battaglia Rodowsky, Lawrence F. (retired, specially assigned) Bloom, Theodore G. (retired, specially assigned), JJ. Opinion by Raker, J. Bell , C.J., con curs in the jud gme nt on ly Filed: March 11, 2004 This case arises o ut of a dec ision by the M aryland State Board of Pharmacy, an administrative agency. The decision was reviewed first by the Circuit Court for Baltimore City and then by the Court of Special Appeals, 150 Md.A pp. 138 , 819 A.2d 38 3 (2003). Petitioner sought review of the decision by the Court of Special Appeals because the remedy that court fash ioned, she c ontends, ex ceeded its a uthority and vio lated the Maryland Constitution and Administrative Procedure Act, Md. Code (1984, 1999 Repl. Vol., 2003 Cum. Supp .) §§ 10-101 to 10-30 5 of the State Gov ernment Article [herein after APA]. 1 Whether a court has exceeded its statutory and judicial authority over an administrative agency is a question that involves the constitutional balance of power between the judiciary and executive administrative agencies. That balance of power is governed by an established area of administrative law dealing with the scope of judicial review over the various types of administrative agency decisions. In this case , we consider w hether the Court of Special App eals exercised the proper stan dard of judicial review over an administrative agency decision in a matter that is committed, ultimately, to the agency s discretion. I. Linda Ann Spencer, a pharmacist, continued to practice pharmacy after her license expired on July 1, 1999. On August 16, 199 9, Spencer s supervisor , having co nfirmed w ith the Maryland State Board of Pharmacy ( the Board ) the expiration and non-renewal of 1 Except where o therwise in dicated, all fu ture statutory refe rences sha ll be to provisions in the Administrative Procedure Act, Md. Code (1984, 1999 Repl. Vol., 2003 Cum. Supp.) §§ 10-101 to 10-305 of the State Government Article. Spencer s pharmacy license, instructed Spencer to cease practicing pharmacy, which she did. Spencer then contacted the B oard to inquire why her license had not been renewed, asserting that she had timely submitted the required renewal application. An internal review of the Board s office records, however, indicated that no application or accompanying fee was received. Spencer surmised that her application had been lost in the m ail and therefore submitted a renewal application to the Board on August 30, 1999. Although her application included certification that she had acquired the requisite number of continuing education credits, the majority of those credits were obtained after her license had expired in June. Nevertheless, the Board granted Spencer s renewal application on September 14, 1999, after whi ch S pencer resum ed her practic e of p harm acy. The Court of Specia l Appeals described the remaining events that led to this appeal as follows (referring to the B oard as appellant and to Spencer as app ellee ): Appellant issued charges against appellee on February 16, 2000, alleging that she had practiced p harmacy w ithout a license for a period of six weeks and that she had failed to maintain records of required continuing education credits. Appellant scheduled a case resolution conference (CRC ) to attempt to resolve the matter without the necessity of a hea ring. Mr. Stanton Ades and Ms. Laura Schneider, two members of the Board, represented appellant at the CRC. The settlement negotiations were unsuccessful. Both Mr. Ades and M s. Schneider sat on the panel of Board members who e ventually heard this con tested ca se. On ma ny occasions , beginning in July 2000, appellee sent letters to counsel for appellant, seeking to have the matter referred to the Office of Administrative Hearings (OAH). Appellee believed appellant incapable of giving her a fair and impartial hearing because appellant had been intimately involved in s ettlement ne gotiations w ith 2 appellee and may have prejudged the case. Appellant repeatedly denied appellee s requests to move the case to OAH, stating that appellant s knowledge of settlement negotiations did not disqualify it from hearing evidence. In further justification for refusing to move the case, appellant stated that appellee failed to assign any specific facts indicating the Board would not be an impartial arbiter, and also noted that the Board ha[d] never delega ted a m atter to th e Off ice of A dminis trative H earings . Fin ally, on Aug ust 14, 200 0, appellee filed a motion to refer the case to the Office of Administrative Hearings or, in the alternative, to recuse members of the Board. Appellant denied that motion on September 15, 2000. Appellant held a hearing on the matter on September 20, 2000, and resumed the hearing on January 8, 2001. Counsel for appellant had given books containing exhibits to the members of the Board on the morning of the hearing. When counsel for appellee arrived for the hearing, he noticed that at least one member of the Board was reviewing evidence before the start of the hearing . Counsel for appellee complained about the member reviewing documents that were not in evidence, and asked that member to recuse himself. This request was denied. He then renewed the motion to move the case to OAH and appellant denied that mo tion also . Fina lly, counsel for appellee asked that the two mem bers who were inv olved in settlement negotiations recuse themselves, and that request was also denied. Appellee did not dispute that she had practiced pharmacy without a license for a period of six weeks. Her counsel argued, however, that her prac tice of pha rmacy without a license was authorized under Md. Code (1984, 1999 Repl. Vol.), § 10-226(b) of the State Government Article, because she had submitted a timely renewal application. Appellee did not present any evidence, other than her testim ony, that she had filed a renewal a pplication prior to the expiration of her license on July 1, 1999 . Appellant s records did not reveal any application, check, or money order from appellee prior to July 1, 1999. Appellant determined that appellee's testimony on the matter lacked credibility and found that she had not filed a timely 3 renewal application. During the hearing, counsel for appellee accused members of the Board of prejudging the case, of sleeping during the hearing, and of not paying attention to testimony. After the accusation about sleeping, the hearing deteriorated to the p oint where several membe rs of the B oard eng aged in a heated conversation with counsel for appellee involving demands for apologies and chastiseme nts about finger pointing from cou nsel and mem bers of the Board. Finally, one of the Board members asked counsel for appellee to leave the room, but he remained and continued arguing. Eventually, counsel was asked if he would act appropriately, and he said he would, so the hearing continued. Later, counsel for appellee objected to the entry of a mail log, and argued that it does not go to [appellee s] credibility. Ms. Hawkins, one of the Board m embe rs, stated sure it d oes. When counsel then said to the Board, Ms. Hawkins already said out loud it went to credibility, Ms. Hawkins denied saying it and then adde d, I did not [s ay that], and you're a b old-faced liar. Counsel for appellee objected to being called a liar during the proceeding and attempted to have Ms. Hawkins removed from hearing the case, but that request was denied. On February 21, 2001, appellant issued its Final Decision and Order, finding that appellee had violated Md. Code (1981, 2000 Repl. Vol.), §§ 12-301, 12-701, 12-707(e), and 12-313(b)(24) of the Health Occupations Article. Appellant placed appellee on probat ion, imp osed a f ine, and reprim anded her. 150 Md.A pp. at 142-46, 819 A .2d at 385-87 (footno tes omitted). Spencer then filed a Petition for Judicial Review in the Circuit Court for B altimore City, alleging , inter alia, that she had been deprived of procedural due process because M r. Ades and Ms. Schneider participated both as representatives of the Board in settlement negotiations and as memb ers of the panel adjudica ting her case. Agreeing with Spencer s 4 arguments, the Circuit Court vacated and reversed the B oard s Final Decision a nd Order. The Circuit Court ruled that there w as not subs tantial eviden ce in the reco rd to support the Board s decision; that the Board s renewal of Spencer s license pending the outcome of the investigation operated as a waiver of the violations subsequently found by the Board; and that Spencer had been deprived of due process as a result of the arguments that took place at the Board hearing between her attorney and two Board members. The Board appealed the Circuit Court s ruling to the Court of Special Appeals. The Court of Special Appeals agreed with the Circuit Cou rt that Spenc er was de nied her righ t to a fair and unbiased hearing, focusing on Ms. Hawkins accusation that Spencer s counsel was a bold-faced liar. The intermediate appellate court reversed the Circuit Court s ruling that the Board s renew al of Spencer s license h ad foreclosed the B oard from taking disciplinary action against her. Consequently, it remanded the case to the Circuit Court with instructions to remand the case to the Board, directing [the Board] to delegate the authority to conduct the contested case hearing and to issue the final administrative decision in this case to the OAH. 150 Md.App. at 155, 819 A.2d at 393. Spencer then filed a petition for writ of ce rtiorari in this Court. 376 Md. 49, 827 A.2d 112 (2003). Although petitioner has phrased the first question for our review as whether the Court of Special Appeals, by its order to the administrative agency to refer the case to the OAH, violated Article 8 of the Declarati on of Rights and § 10-205 of the A PA, a more accurate way of formulating the question, as we explain infra, is whether the Court of Special 5 Appea ls afforded the administrative agency the proper level of deference in a matter committed to the agen cy s discretion. P etitioner s seco nd questio n is whether the order to remand the matter to the OAH contravened either res judicata or double jeopardy principles as applied to administrative proceedings. Petitioner argues that th e Court of Special A ppeals exc eeded its jud icial authority when it fashioned a remedy that interfered with the Board s discretion to determine whether her case should be remanded to the OAH. She contends that the Co urt of Spe cial Appe als violated Article 8 of the Declaration of Rights in ordering the Board to send the case to the OAH, because in so doing , that court performed a non-judicial function, violating the constitutional mandate that the power of the three branches of government in Maryland be forever separate and distinct. See Dep t of Nat. Res. v. Linchester, 274 Md. 211, 334 A.2d 514 (1975). Petitioner also argues that because § 10-205 of the APA does not explicitly authorize the courts to delegate matters to the OAH, the Court of Special Appeals did not have authority to do so. Although the Board, as respondent, initially opposed these argumen ts in its Answ er to Petition f or Writ of C ertiorari, in its brief, respondent reversed course and now ag rees with petitioner that the Court of Special Appeals performed a nonjudicial f unction in violat ion of A rticle 8. This Court, of course, is not bound by the concessions made by the parties on issues of law, which we may inde pende ntly review . See In re Heather B., 369 Md. 257, 266 n.9, 799 A.2d 397, 402 n.9 (2002). But w e agree with both p arties that the Court of Special 6 Appea ls exceeded its authority when it compelled the Board to exercise discretion the Legislature explicitly g ranted to the adm inistrativ e agen cy. We therefore will reverse in part the intermediate appellate court s judgment and remand the matter to the Board.2 II. We address first the procedural and analytical posture of this case as it com es before this Court. W hen this C ourt sits in review of an adm inistrative agency decision, we reevaluate the decision of the agency under the same statutory standards as would the circuit court; we do not employ those standards to reevaluate the decision of the circuit or intermediate appellate co urt. See Divisio n of Labo r v. Triangle , 366 Md. 407, 416, 784 A.2d 534, 539 (200 1); Dept. of Health v. Campbell, 364 Md. 108, 123, 771 A.2d 1051, 1060 (2001) (noting that it is the final decision at the administrative level, not the decision of the reviewing court, which is the focus of each level of judicial review). Thus, as to the merits of such a matter, ordinarily and primarily, the inquiry is not whether the Court of Special Appeals erred, but whether the administrative agency erred. In the present case, in what w ay might the B oard hav e erred? T he answ er to this question lies with the two disputed a dministrative actions taken by the B oard that were 2 Because of the reasoning of our opinion, we will decline to address the constitutional argumen ts posed by the parties, for this Court regularly has adhered to the principle that we will not reach a constitutiona l issue when a case can be disposed of properly on a non-constitutional ground. Piscatelli v. Liquor Board, 378 Md. 623, 629-30, 837 A.2d 931, 935 (2003). 7 reversed by the Court of Special Appeals. Petitioner s original motion to the Board requested either (a) that her case be referred to the Office of Administrative Hearings or, in the alternative, (b) that the Board members who participated in the settlement negotiations recuse themselves. Petitioner asked the Circuit Court to review both the denial of the recusal motion and the denial of the motion to remove to the OAH. These two denials by the Board constitute the two administrative decisions which petitioner asked the Circuit Court and the Court o f Spec ial App eals to re view. The Court of Special Appeals, disagreeing with the Board s denial of both of those requests, held as follows: In light of the actions by the Board that caused an appearance of impropriety in the proceedings in this case before the Board, this Court holds that the circuit court did not err by finding that appellee was denied d ue proce ss in that h earin g. Co nseq uently, we remand this case to the Circuit Co urt for Baltim ore City with instructions to remand the case to the Board, directing appellant to delegate the authority to conduct the contested case hearing and to issue the final administrative decision in this case to the OAH . 150 Md.App. at 155, 819 A.2d at 393. Critical to understanding this case is the observation that the intermed iate appellate c ourt s analysis am ounted to a simultaneous review of two separate administrative actions: (1) the Board s failure to recuse certain members of the panel and (2) the Board s failure to refer the case to the OAH. Although the Court of Special Appea ls apparently considered th e agency s fa ilure to recuse the biased p anel mem bers to go hand-in-hand with the failure to refer the case to the OAH, we think it clear that the 8 determination that the actions of the Bo ard members created an appearan ce of imp ropriety and unfairness is separate and distinct from the determination that the case must be retried before [the OA H]. For e ven if the Board was required to recuse the biased members from the adjudicating panel, it was not logically bound to refer the case to the OAH . The Board could have easily complied with the court s judgment by replacing the biased members, yet persisted in its decision to forgo the OAH. Thus, those determinations were two distinct decisions by the agency, both of which were reviewed by the Court of Special Appeals. With respect to the agency decision denying the recusal motion, the Court of Special Appea ls held that the actions by the Board that caused an appearance of impropriety in the proceedings in this case before the Bo ard . . . denied [petitioner] due proces s in that h earing. Id.; cf. Maryland State Police v. Zeigler, 330 Md. 540, 559, 625 A.2d 914, 923 (1993) (stating that [p]rocedural due process, guaranteed to persons in this State by Article 24 of the Maryland Declaration of Rights, requires that administrative agencies performing adjudicatory or quasi-judicial functions observe basic principles of fairness as to parties appearing before them ). Petitioner, of course, is satisfied with that ruling and did not raise that issue in the petition for certiorari, and neither did respondent cross-petition on that issue. Acc ordingly, we do not review that ruling b y the Cou rt of Sp ecial A ppeals . See Mehrling v. Nationwide, 371 Md. 40, 44 n.3, 806 A.2d 662, 665 n.3 (2002) (noting that the Court of Appeals will not norm ally address a qu estion not pr esented in p etition for certio rari), and upon remand, the Board must adhere to the court s ruling as it bears on th e defects in 9 procedural due process at petitioner s hearing. It is the second administrative decision taken by the Board, and its review by the Court of Special Appeals, that concerns us in the case sub judice. By this we mean the Court of Special Appeals s holding directing [the Board] to delegate the authority to conduct the contested case hearing an d to issue the final ad ministra tive dec ision in th is case to the OA H. The key point here is that the Court of Special Appeals judicially reviewed the Board s decision to deny the m otion to refe r the case to the OA H, and it found that decision to be wanting. The court s reasoning behind its determination is made in a footnote to its opinion: We recognize that under the APA, the delegation of matters to the OAH is not a man datory functio n but a function within the discretion of the administrative agen cy. [Regan v. Board of Chiropra ctic, 120 Md.App. 494, 513, 707 A.2d 891, 900 (1998 ).] In light of the facts of this p articular case, h oweve r, it would not be appro priate to remand the case to the same tribunal that heard the case originally. * * * In this case, we have held that the actions of the Boa rd members created an appearance of impropriety and unfairness, and for that reason, the case must be retried b efore a differe nt tribun al. 150 Md.App. at 156 n.14, 819 A.2d at 393 n.14. W e do not think it so obvious that this case must be retried before the OA H, and th e Court of Special Appeals did not discuss the appropriate standard of judicial review of the Board s decision not to refer. Because the Court of Special Appeals did not consider the appropriate standard of judicial review and whether, under that standard, the agency s decision must be overturned, that task is now before this Court, as we sit in review of the agency s action and not so much the decision by the intermediate appellate court. Therefore, this case requires us (1) to determine the proper 10 standard of review to apply to the Board s decision not to refer the case to the OAH and (2) applying that stan dard, to determ ine wh ether the Board s decisi on sho uld be u pheld. III. Whether the administrative agency s refusal to delegate to the OAH was improper requires us to determine the standard o f review for such an agency decision. The standard of review for an agency decision, in turn, will depend upon the level of discretion delegated to the admin istrative agen cy with respect to such decisio ns. See MTA v. King, 369 Md. 274, 293-94, 799 A.2d 1246, 1257 (20 02) (Wilner, J., concurring); Hecht v. Crook, 184 Md. 271, 280-81, 40 A.2d 673, 677 (1945); see gener ally A. Ro chvarg , Maryland Administrative Law, §§ 4.29 4 .38 (20 01); E. T omlins on, The Maryland Administrative Procedure Act, 56 Md. L. Rev . 196 (1 997). To discover the proper stand ard of judicial review, we begin with the APA. Becau se this case involves an agency acting in a quasi-ju dicial capacity, adjudicating the personal rights of petitioner, judicial review is governed by § 10-222, which is applicable to final decisions in contested cases. See § 10-222 (a). Were w e reviewin g the agen cy acting in its policymaking or quasi-legislative capacity, a wholly different analysis governs the decision. See § 10-125 ; Fogle v. H & G Restaurant, Inc., 337 Md. 441 , 654 A.2d 449 (1995). Section 10-222(h) governs the scope of judicial review of final administrative agency decisions in contested c ases as follo ws: 11 (h) Decision. In a proceeding un der this section, the court may: (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitu tional; (ii) exceeds th e statutory autho rity or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is un supp orted by competent, material, and substa ntial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious. Section 10-222(h)(3)(i) (vi) provides a statutory framework for understanding the scope of judicial review of agency decisions and is of particular interest to the case sub judice. Section 10-222(h)(3)(i) (iv) deals with judicial review of agency conclusions of law. Section 10-222(h)(3)(v) deals with judicial review of agency factual determinations. Section 10222(h)(3)( vi) deals with judicial review of any other agency determination for instance, as in the case sub judice, determinations over matters committed to the agency s discretion. Our jurisprudence has expanded on the meaning of these statutory provisions and provided guidance for their application by the courts. When an agency makes conclusions of law in a contested case, the court, on judicial 12 review, decides the correctness of the agency s conclusions and m ay substitute the court s judgment for that of the a gency s. Total AV v. Dept. of Labor, 360 Md. 387, 394, 758 A.2d 124, 127-28 (2 000) (notin g that questio ns of law addressed by administrative agency are complete ly subject to review by courts, although agency s interpretation of a statute may be entitled to some deference). This established principle of administrative law is exemplified in § 10-222(h)(3)(i) (iv), which permits judicial modification or reversal of agency action that (i) is unconstitu tional; (ii) exceeds the agency s jurisdiction; (iii) results from unlawful procedure; or (iv) is a ffecte d by any o ther er ror of la w. See Tomlinson, supra, at 215 n.131 ( Questio ns of law encomp ass the first fo ur ground s listed in the judicial review provision of the APA ). Section 10-222(h)(3)(iv), by authorizing correction of any other error of law, implicitly indicates (a) that courts retain a uthority to correc t all ( any ) errors of law and (b) an understanding that agency errors based upon the previous three provisions are also considered to be legal errors ( a ny other error of law ).3 In contrast, when an agency is not interpreting law but instead makes a finding of fact, we have applied substa ntial evid ence review . Substantial evidence review of agency factual findings is e mbodied in § 10-22 2(h)(3)(v). T hat provisio n grants a co urt authority 3 Even in the case of an agency interpreting law, our jurisprudence has shown a level of deferenc e to an agency s interpretation of law, provided the agency is interpreting its own regulations, MTA v. King 369 Md. 27 4, 288-89, 799 A .2d 1246, 1254 (2 002), or is interpreting the statu te it adm inisters, Jordan v . Hebbville , 369 Md. 439, 450, 800 A.2d 768, 775 (2002). Nevertheless, erroneous interpretations of law are never binding upon the courts. State Ethics v. Antonetti, 365 Md. 428 , 447, 780 A.2d 1 154, 1166 (200 1). 13 to overrule an agency s fac tual finding only when the finding is unsupp orted by com petent, material, and substa ntial evidenc e in light of the entire record as submitted . Accord ing to this more deferential standard of review, judicial review of agency factual findings is limited to ascertainin g wheth er a reason ing mind c ould have reached the same factual conclusions reached by the ag ency on t he reco rd befo re it. See Stansbury v. Jones, 372 Md. 172, 182-185, 812 A.2d 312, 318-320 (2002) (dis cussing su bstantial evid ence revie w in Maryland). Fina lly, there are circumstances when an agency acts neither as a finder of fact nor as an interpreter of law but rather in a dis cretiona ry capac ity. See, e.g., Maryland State Police v. Zeigler, 330 Md. 5 40, 625 A.2d 9 14. Logically, the courts owe a higher level of deference to functions specifically comm itted to the agency s discretion than they do to an a gency s legal conclusions or fa ctua l find ings . The refo re, th e discreti onary functions of the agency must be reviewed under a standard more deferential than either the de novo review afforded an agency s legal conclusions or the substantial evidence review afforded an agency s factual findings. In this regard, the standard set forth in § 1 0-222(h)(3)(vi), review of arbitrary or capricious agency actions, provides guidance for the courts as they seek to apply the correct standard of re view to discretionary fu nctio ns of the a gency. 4 4 Although a few of our cases a ppear to co nflate subs tantial eviden ce review with arbitrary or capric ious rev iew, see, e.g., Insurance Comm r v. Nat l Bureau, 248 Md. 292, 300-01, 236 A.2d 282, 286 (1967), it does not follow that they are one and the same. The substantial evidence test applies to agency findings of fact, as indicated by the very language of § 10-222(h)(3)(v) ( evidence supported by the whole record ). Arbitrary and capricious 14 This Court recently applied the arbitrary or capricious stand ard of review to discretionary functions of the agency in a case closely analogous to this one. Maryla nd State Police v. Zeigler involved a n administra tive agency s d ecision to reopen a hearing after it had already begun deliberations on the matter. In that case, we first determined that the decision to reopen a hearing for add itional ev idence was co mmitte d to the a gency s d iscretion . 330 Md. at 557-58, 625 A.2d at 922. As a discretionary function of the agency, the decision to reopen the hearing , we said, w as subject to ju dicial review , but only unde r the arbitrary or capricious s tandard. Jud ge Eldridg e, writing fo r the Cour t, observed: [A]s long as an administrative agency s exercise of discretion does not violate regulations, statutes, common law principles, due process an d other con stitutional requ irements, it is ordinarily unreviewable by the co urts. It is only when an agency s exercise of discretion, in an adjudicatory proceeding, review, on the other hand, could conceivably apply to any action of the agency not covered by the other provisions of § 10 -222(h)(3). We do not encoun ter, or decide, this issue of whethe r the arbitrary and capricious standard in § 10-222(h)(3)(vi) w ill govern every type of agency action not encompassed by § 10-22 2(h)(3) (i) (v). See Maryland State Police v. Zeigler, 330 Md. 540, 569-570, 625 A.2d 9 14, 928 (1993 ) (Bell, J., d issentin g); A. R ochva rg, Maryland Administrative Law, § 4.38 (2001). It is notable, however, that in contrast to the first five grounds for judicial review in § 10-222(h)(3)(i) (v), § 10-222(h)(3)(vi) does not delineate the type of agency decision to whic h it appli es, cf. § 10-222 (h)(3)(i)-(iv) (imp licitly and necessarily involving legal determinations by the agen cy); § 10-2 22(h )(3)( vi) (e xplicitly applying to evid entia ry, factual finding s), and could conceivably be a catch-all standard of review for any other agency action. And even in the absence of an applicable statutory scheme providing for judicial review, we have held an implied limitation upon an administrative agency s authority is that its decisions be not arbitrary or capricious. Bucktail v. Talbot County , 352 Md. 530, 550, 723 A.2d 440, 449 (1999); see also our line of cases explaining mandamus actions as they apply to ministerial or non-discretionary functions of administrative agencies, discussed in Crimina l Inj. Comp . Bd. v. Gou ld, 273 Md. 486 , 500-504, 331 A .2d 55, 65-66 (197 5). 15 is arbitrary or capr icious that co urts are authorize d to intervene [citing the provision now codified as 10-222(h)(vi), the arbitrary and capricious standard of review]. Id. (citation s omitte d). Similarly, in MTA v. King, we held that an agency s discretion to determine the magnitude of a sanction could only be review ed purs uant to § 10-22 2(h)(3) (vi), i.e., for arbitrariness or capriciousness. 369 Md. at 291, 799 A.2d at 1255-56. Even if the court felt the punishm ent to be d isproportion ate to the violation, the agency s determination of the amount or level of sanction could not be second-guessed, unless the sanction was so extreme and egregious that the reviewing court can properly deem the decision to be arbitrar y or capric ious, a s set for th in § 1 0-222 (h)(3)(v i). Id. The case sub judice does not differ significantly from Zeigler or King in that the decision being reviewed is also one committed to the agency s discretion and is to be reviewed under the same arbitrary or capricious standard set forth in 10-2 22(h)(3)(vi). Whether an action is in fact deeme d arbitrary or capricious will vary depending upon the amount of disc retion g ranted a n agen cy, a matte r of sub stantive law, see King, 369 M d. at 293-94, 799 A.2d at 1257 (Wilner, J., concurring); thus, the level of discretion afforded an agency s decision to re open a he aring, as in Zeigler, may differ from the discretion afforded an agency s decision to forgo the OAH, as in the instant case. Arbitrary and capricious review will apply to both types of decisions, but whether the agency s decision in each case is actually arbitrary or ca pricious w ill correspond to the discretio n afforde d it 16 Applying the legal principles outlined above, we hold that (1) the determination by an agency to refer a case to the OAH is a matter committed to its discretion and that (2) the Board did not abuse that discretion under the arbitrary or capricious standard. First, it is clear that the Board s refusal to refer the case to the OAH was not a legal conclusion or a factual finding but rather a f unction of the Bo ard s discretion. The discretion is granted to the Board in § 10-205(b)5 which declares an age ncy may delegate to the Office [of Administrative Hearings] the auth ority (emphasis added) to hear the case.6 The word ma y connotes a permissive, discretionary function of the agency when it delegates a case to the OA H. See Brodsky v. Brodsky, 319 Md. 92, 98, 570 A.2d 1235, 1237 (1990); Planning Comm. v. Silkor Corp., 246 Md. 516, 522, 229 A.2d 135, 139 (1967) (construing the word may to signa l the ordinary meaning of permission unless the context or the 5 Section 10-205(b) provides for the delegation of a contested case to the OAH: (b) Scope of authority delegated. An agency ma y delegate to the Office [of Administrative Hearings] the authority to issue: (1) propos ed or final f indings of fact; (2) proposed or final conclusions of law; (3) proposed or final findings of fact and conclusions of law; (4) proposed or final orders or orders under Article 49B of the Code; or (5) the final administrative decision of an agency in a contested case. 6 Although it is our understanding that, as a matter of practice, most state agencies subject to the APA exercise their authority to delegate duties to the OAH by regulation or administrative order and usually in broad categories of case types, there appe ars no reason why an agency may not do so on an ad hoc basis in a given case. We do not here address whether an agency s viola tion of its own established protocol with regard to OAH delegation may somehow amount to arbitrary or capricious agency action. 17 purpose of the statute show s that it is meant to be imperative); see also Regan, 120 Md.App. at 513, 707 A.2d at 900 (noting that under the APA, the delegation of matters to the OAH is not a man datory functio n but a fun ction within the discretion of the administrative agen cy). Nor was the Board required to send the case to the OAH, because logically there existed other options to the Board, such as rec using the offending members and replac ing them w ith different members, or, pursuant to § 10-20 5(b), referring to the OAH the authority to make a proposed decision bu t retaining fo r itself the ultimate auth ority to decide the case. In fac t, the Board may very well decide to send the case to the OAH; but if it does so, it shall not be under the aus pice s or c omp ulsio n of the ju dicia ry. Second, it is clear that the Board s decision to forgo the OAH was not arbitrary or capricious. An age ncy s preroga tive with respect to case referra l to the OA H is similar in scope to that of the agency s prerogative in determining the severity of sanctio ns, see King, 369 Md. at 291, 799 A.2d at 1255-56; Resetar v. State Bd. of Education, 284 Md. 537, 562, 399 A.2d 225, 238 (1979) ( It is impossible to catalogue just what would or would not constitute arbitrary action on the part of an administrative agency . . . in imposing sanctions ), or to that of forgoing prosecution of a particu lar individua l. In such cas es, it is most difficult to apply or even articulate a judicial standard b y which the agency s discretionary decision might be deemed arbitrary or capricio us, cf. Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (holding that the FDA s decision not to take enforcement actions was not subject to judicial review under the federal APA because 18 such enforcement decisions are comm itted to agenc y discretion by law and do n ot supply the courts w ith law to apply, that is, a legal standard to which the agency can be held). The reviewing court, absent some sho wing of fraud or egregious behavior on behalf of the agen cy, will be hard pressed to articulate a reason why the agency acted arbitrarily or capriciously when it did not send the case to the OAH. This is true for the case before us toda y. Even conceding the error of the Board s failure to recuse certain members from the panel, that alone does not suffice to render arbitrary or capricious the Board s decision not to refer to the OAH. The Court of Special Appeals erred when it reviewed this discretionary function and found the a gency wanting and incapable of cond ucting a fair hearing and render ing a fa ir decisio n. To be sure, because of the nature of th e Board m embers p articipating, it was improper for those members who participated in the settlement negotiations to remain as panel members adjudicating petitioner s case, and tho se members may not constitute a part of the panel if or when petitioner s case is reheard.7 But that did not by itself require referral to the 7 We do not adopt a per se rule of recu sal, nor do w e intend ou r holding o r comme nts to imply that recusal is mandatory when a trial judge participates in settlement negotiations. See Maryland Rule 16-813, Maryland Code of Judicial Conduct, Canon 3 (setting forth the situations requiring m andatory recu sal); see also Anno t., Judge s C omme nts U rging Settlement, 6 A.L.R.3d 1457 (1966). In the instant c ase, as the C ourt of Sp ecial App eals aptly noted, two of the Board members participated in settlement discussions with S pencer. 150 Md.A pp. 138, 150, 819 A.2d 383, 390 (2003). The Board considered the settlement negotiations in rendering its final decision, noting in the Order that [a]lthough the Respondent agreed to a proposal at the conference, she later rejected it. It is the overall appearan ce of imp ropriety in this case that requires re cusal. 19 OAH, as any number of other options lay open to the Board. The proper course, in view of the Board s d iscretion to ref er, was to remand th e case to the Board w ith instructions to cure the defects the reviewing court found at the original hearing, bu t without a mandate requiring referral of the case to the OAH. That is what we shall do, and the lower court s direction regarding referral of the case to the OAH is reversed. IV. Petitioner s final argum ent, that a rem and will create issues of res judicata or double jeop ardy, is witho ut merit a nd friv olous. The Board s enforcement of its licensing and disciplinary requirements serve pu rposes essential to the protection of th e public, which are deemed remedial, rather than punitive, and therefore are not subject to double jeopardy principles. See State v. Jones, 340 Md. 23 5, 666 A.2d 12 8 (1995); Ward v. D ept. of Pub . Saf. & Cor. S ervices , 339 Md. 343, 350, 663 A.2d 66, 69 (1995) (holding that where the purpose of the penalty is remedial, it is not punishment for doub le jeopardy purp oses); McDonnell v. Comm n on Medical Discipline, 301 Md. 426, 436, 483 A.2d 76, 81 (1984) (noting that the purpose of disciplinary proceedings against licensed professionals is not to punish the offender but rather as a catharsis for the profes sion and a prophylactic for the public ). Even if double jeopardy was applicable, which it is not, the rehearing would not be precluded, as a new trial (or rehearing) ordinarily is not precluded by double jeopardy principles when a conviction is reversed on grounds other th an suf ficienc y of the ev idence . Huffington v. State, 20 302 Md. 184, 189, 486 A.2d 200, 203 (1985). The remand was not based on insufficiency of evidence but on defects in procedure. Neither is res judicata applicable in this case because there is no final judgment the case is still on appellate review and because issue and claim preclusion require a subsequent cause of action in w hich those d octrines ma y take effect; this appeal is no t a subsequent cause of actio n but all p art of th e same case. See Murray International v. Graham, 315 Md. 543, 547, 555 A.2d 502, 504 (1989) (noting that res judicata principles preserve the conclusive effect of judgments, except on appeal or other direct review, and quoting Restatement (Second) of Judgments § 27 (1982) that [w]hen an issue of fact or law is actually litigated and determined by a valid and final judgmen t, and the dete rmination is essential to the judgm ent, the determination is conclusive in a subsequent action between the parties, whether on the sam e or a different claim ). JUDGMENT OF THE COURT OF SPECIAL APPEA LS REV ERSED IN PART. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE JUDGMENT OF THE CIRCU IT COURT FOR BALTIMORE CITY AND TO REMAND THE CASE TO THE CIRCUIT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE STATE BOARD OF PHARMACY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE EVENLY DIV IDED BETWEE N 21 PETITIONER AND STATE BOARD OF PHARMACY. Chief Ju dge Bell concurs in the jud gme nt on ly. 22

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