Holiday Spas v. Montgomery County Human Relations Commission

³⁹² ELDRIDGE, Judge. Ch. 27, Article I, of the Montgomery County Code creates the Montgomery County Commission on Human Relations and provides for its jurisdiction. Sections 27-1 through 27-7 of Article I deal generally with the administration, duties and procedures of the Commission. The remaining sections of Article I are divided in four divisions, with each division dealing with a different area of discrimination: Places of Public Accommodation, Housing, Employment, and “Racial and Religious Intimidation.” Under § 27-6 of the Montgomery County Code, the Human Relations Commission’s duties include, among other things, the responsibility to receive, investigate and adjudicate complaints of discrimination in violation of Article I. ' Section 27-7 of the Code sets forth the Commission’s procedures.

Essentially, the Executive Director of the Commission investigates each complaint. If there are reasonable grounds to believe a violation of Article I has occurred, the Executive Director attempts to conciliate the matter. If those attempts fail, the Executive Director then refers the complaint to the appropriate commission panel which conducts a hearing to determine whether a violation of Article I has occurred. Should the panel determine that there has been a violation of Article I, § 27-7(f) provides that the panel must issue “a decision and order, accompanied by findings of fact and conclusions of law, requiring the respondent to cease and desist from the unlawful discriminatory practice, and to take affirmative action and prospective relief as is necessary to effectuate the purposes of this chapter or to eliminate the effects of the discriminatory practice and any other relief elsewhere provided in this article.” The “other relief elsewhere provided,” which is to be contained in the § 27-7(f) order, refers to, inter alia, § 27-7(k) which authorizes the panel to award monetary damages in certain enumerated circumstances.

Section 27-7(g) permits ³⁹³ “any person aggrieved by a subsection (f) of section 27-7 decision and order ... [to] appeal to the circuit court for Montgomery County for review of such action pursuant to chapter 1100, subtitle B, of the Maryland Rules of Procedure.” Turning to the case before us, U.S. Health, Inc. operates under various names, all of which include the word “Holiday,” several health and fitness clubs for men and women. U.S. Health and several of the clubs are the petitioners before us, and will collectively be referred to as Holiday. Three male members of one of those clubs attempted to enroll in an aerobic dance class. After being denied admission to the class because it was open only to women, each filed a complaint with the Montgomery County Commission on Human Relations.

The complaints alleged that Holiday violated the sex discrimination provision of the ordinance (§ 27-9) which makes it unlawful “for any owner, lessee, operator, manager, agent, or employee of any place of public accommodation, resort or amusement within the county: a) To make any distinction with respect to any person based on ... sex ... in connection with admission to, service or sales in, or price, quality or use of any facility or service of any place of public accommodation, resort or amusement in the county. b) To ... publicize ... directly or indirectly ... that any facility, service, commodity or activity in such place of public accommodation, resort or amusement will not be made available to any person in full conformity with the requirements of subsection (a) of this section or that the patronage or presence of any person is unwelcome, objectionable, unacceptable or not desired or solicited on account of any person’s ... sex____” After finding reasonable grounds to believe a violation had occurred, but being unable to conciliate the matter, the Executive Director referred the case to the Public Accommodations Panel of the Commission in order to hold a hearing. At some point, the panel decided to bifurcate the ³⁹⁴ matter and to postpone the issue of damages. At the conclusion of its hearing, the panel issued a “Decision and Order” which rejected all of Holiday’s arguments and found unlawful discrimination. 1 The order required Holiday: (1) to post immediately a notice in its facilities stating that it does not discriminate; (2) within 10 days to offer men and women an at least substantially similar opportunity to participate in aerobic dance classes; and (3) within two months to submit a plan detailing its method of compliance to the panel for review. The order also notified Holiday that any request for rehearing or reconsideration had to be filed within ten days from the final decision and that any party aggrieved could appeal the decision to the circuit court.

Holiday thereupon filed the present action in the Circuit Court for Montgomery County seeking review of the Commission’s order. The Commission moved to dismiss on the ground that the administrative decision was not final because the matter of damages had not been decided. The circuit court granted the motion and dismissed the action. At the same time, however, it “[ojrdered that the administrative decision ... be stayed until a decision following a hearing for damages.” Holiday appealed to the Court of Special Appeals.

Holding that the administrative decision was final, the intermediate appellate court vacated the circuit court order and remanded the case. Holiday Spas v. Human Relations Comm’n, 70 Md.App. 344 , 521 A.2d 340 (1987). The Court of Special Appeals reasoned that the order was final because “Holiday’s rights and obligations were indeed deter ³⁹⁵ mined; legal consequences did indeed flow from the” order, 70 Md.App. at 352 , 521 A.2d at 344 . With a concern for judicial economy, the Court of Special Appeals seemed to indicate that the circuit court could, under Maryland Rule B13, decline to review the administrative order despite its finality, stay the order, and remand the case to the administrative agency to determine the damages recoverable by the complainants. 2 70 Md.App. at 353 , 521 A.2d at 345 .

Holiday filed a petition for a writ of certiorari to review the Court of Special Appeals’ decision. Because of the somewhat novel administrative procedure issue presented, we granted the petition. Holiday argues before us that the administrative decision was final and that, therefore, it has the right to obtain judicial review at this time. It contends that a remand to the Commission, without any judicial review of the order, would be improper.

Indeed, it urges that, having issued a final order, the Commission forever lacks authority to decide the damage issue. Although the Commission maintained in the circuit court that the action should be dismissed because the order was not final, it does not reassert that argument in this Court. Rather, the Commission argues that the administrative decision was final but that a remand to the Commission is the appropriate solution. I. As a general rule, an action for judicial review of an administrative order will lie only if the administrative order is final.

Md. Comm'n on Human Rel. v. B. G. & E., 296 Md. 46 , 459 A.2d 205 (1983); Maryland Rule Bla (“This Subtitle shall apply to the review of any final action of an administrative agency by a court”) (emphasis added). Cf., ³⁹⁶ Code (1984), § 10-215(a) of the State Government Article (“a party who is aggrieved by the final decision in a contested case is entitled to judicial review.”) (Emphasis added). As previously indicated, the Court of Special Appeals, relying upon the general principles of finality set forth in Md. Comm’n on Human Rel. v. B. G. & E. Co., supra, held that the administrative order in this case was final. The intermediate appellate court emphasized that the order determined Holiday’s rights and obligations, and that legal consequences flowed from the order.

Although we agree with the Court of Special Appeals that the administrative order in this case should be deemed final for purposes of judicial review, we caution that not every administrative order which determines rights and liabilities, or from which legal consequences flow, is final and thus subject to judicial review. Generally, to be final, an administrative order must also “leave nothing further for the agency to do.” Md. Comm’n on Human Rel. v. B. G. & E. Co., supra, 296 Md. at 56 , 459 A.2d at 211 . That requirement was clearly not met here. The Commission’s order does not resolve the issue of damages.

Indeed, the order informs the parties that “[a] Panel hearing [on that issue] will be held promptly.” Thus, under traditional principles of finality, the order would not be deemed final. Although we have not previously decided this precise question with respect to administrative orders, courts in other jurisdictions have regularly held that, as a general rule, an administrative order that determines liability but does not decide damages is not final. See, e.g., Carter/Mondale Pres. Com. v. Fed. Election Com’n, 711 F.2d 279 , 287 n. 14 (D.C.Cir.1983); Newport News Shipbldg v. Director, Office of Wkrs., 590 F.2d 1267 , 1268 (4th Cir. 1978); United Fruit Co. v. Director, Office of Workers’ Compensation Programs, 546 F.2d 1224, 1225 (5th Cir. 1977); Sun Shipbldg. & Dry Dock Co. v. Benefits Rev. Bd. ³⁹⁷ 535 F.2d 758 , 760-761 (3rd Cir.1976); Connecticut Bank & Trust Co. v. CHRO, 202 Conn. 150, 156 , 520 A.2d 186 (1987).

This view is also in accord with the rule that a judicial order that does not dispose of the entire case is ordinarily not final. See, e.g., Rule 2-602; Kee v. State Highway Admin., 313 Md. 445, 455 , 545 A.2d 1312 (1988); Banegura v. Taylor, 312 Md. 609, 618 , 541 A.2d 969 (1988); State Highway Adm. v. Kee, 309 Md. 523, 529 , 525 A.2d 637 (1987); Blucher v. Ekstrom, 309 Md. 458 , 462 n. 2, 524 A.2d 1235 (1987); East v. Gilchrist, 293 Md. 453, 459 , 445 A.2d 343 (1982). Under Code (1974, 1984 Repl.Vol.), § 12-803 of the Courts and Judicial Proceedings Article, certain non-final orders of a circuit court are immediately appealable. For example, § 12-303(c)(l) allows a party to appeal from an interlocutory order entered by a circuit court granting an injunction.

Thus, if the administrative order in this case had been issued by a circuit court, it would have been immediately appealable under § 12-808. There is, however, no equivalent provision in Maryland law pertaining to administrative orders. Nevertheless, some courts have taken the position that administrative