Linkus v. Maryland State Board of Heating Ventilation, Air-Conditioning & Refrigeration Contractors

EYLER, Judge. This appeal is by George G. Linkus, Jr., appellant, from a decision of the Circuit Court for Baltimore City affirming the denial by the Maryland State Board of Heating, Ventilation, Air-Conditioning and Refrigeration Contractors (the Board), appellee, of appellant’s application for a master’s license, pursuant to Md.Code Ann., Bus. Reg., § 9A-306 (1992 and 1996 Supp.) Appellant presents one issue for our review: Did the State Board of Heating, Ventilation, Air-Conditioning and Refrigeration Contractors make an error of law in refusing appellant a Master’s license due to his rape conviction six years earlier? Statement of Facts The parties proceeded in circuit court on a statement of facts in lieu of a transcript of the administrative proceedings, pursuant to Rule T — 206(b); they proceed in this Court on the same statement of facts and without a transcript of the argument in the circuit court.

Appellant testified at the hearing before the Board but did not call any other witnesses. The record does not contain a transcript of his testimony or any reference to his testimony other than as referenced herein. Appellant filed an application for a master’s license “qualifying review” with the Board on August 31, 1993. On the application, in response to an inquiry as to whether appellant had ever been convicted of a felony, appellant checked the box, “No.” Upon the Board’s initial review of appellant’s credentials, the Board approved appellant for the issuance of a master’s license.

On or about October 9, 1994, the Board received from the Maryland State Department of Licensing and Regulation appellant’s “Application for Original Li ²⁶⁸ cense/Certificate.” On that form, dated October 9, 1994, appellant indicated “Yes” in response to a question as to whether he had ever been convicted of a felony. Appellant subsequently provided the Board with a statement indicating that he had been convicted of a felony, disclosing that he had been released from probation in March, 1994 without identifying the nature of the offense. Appellant testified that he initially indicated that he had not been convicted of a felony on the advice of an attorney and his belief that his release from probation permitted him to respond in that manner. On January 18,1995, appellant was notified by mail that his application had been denied.

The Board “determined in accordance with § 9A-310(a)” that appellant’s conviction disqualified him for a heating, ventilation, air-conditioning and refrigeration (HVACR) license and informed appellant that he had ten days to request a formal hearing. Appellant did so, and a hearing was held on March 22, 1995, pursuant to Md.Code Ann., Bus. Reg. § 9A-311 1 and COMAR .09.01.02.01 et seq. By written order dated May 10, 1995, the Board affirmed its denial of appellant’s application.

Records from the Circuit Court for Baltimore County, introduced as exhibits in the administrative proceeding, reflect that appellant was convicted in July 1989, of second-degree rape, in violation of Md.Code Ann., art. 27, § 463, and was sentenced to five years incarceration, all but eighteen months suspended, and five years probation. On October 31, 1989, the non-suspended 18-month term was modified and appellant began serving probation on that date. The probationary period originally was to continue through August 15, 1995, but appellant was granted early termination and discharge from probation, terminating on April 26, 1994. In addition, appellant received court-ordered counseling.

The record does not reveal the circumstances surrounding appellant’s conviction except for the statement in the Board’s Order that, while appellant’s conviction “was not an on-the-job ²⁶⁹ occurrence and did not directly involve the provision of HVAC services, his conduct does constitute a personal sexual assault against the victim.” The Board, in its “Findings of Fact,” stated, in part: [Appellant’s] work certification indicates that he has been employed by his father’s company, Linkus Refrigeration Company, Inc., since 1973 as an HVACR Mechanic. Mr. Linkus clarified through testimony, that prior to his incarceration in July, 1989, Mr. Linkus, now 39 years old, had been employed by Linkus Refrigeration Company, Inc. since 1973. Mr. Linkus returned to his employment with Linkus Refrigeration Company, Inc. upon his release in October 1989 and worked there throughout his five-year probation. Mr. Linkus testified that his duties with Linkus Refrigeration Company’s [sic] include work at apartment complexes where Mr. Linkus is authorized to enter residential homes to provide heating, ventilation, air conditioning and refrigeration services.

He is given a passkey, providing him access into individual apartments to conduct his work. Mr. Linkus further testified that Linkus Refrigeration Company permits him to work independently and unsupervised in these homes. In addition to “Findings of Fact,” the Board’s Order contained the subheadings, “Discussion” and “Conclusions of Law.” The latter two sections provide: Discussion Mr. Linkus does not contend that he was not convicted of second-degree rape or that the crime is not a felony. The issue before the Board is whether Mr. Linkus may be granted a master HVAC license.

The stated purpose of the statutory provisions requiring licensure of HVAC contractors is to protect the public. Bus. Reg. Art., Ann.Code of M(L, 9A~102(1).

Mr. Linkus’ attorney argued that Mr. Linkus, who would be working with his father and brother as he did prior to his ²⁷⁰ conviction, feels he can “conduct his duties in a moral manner.” Mr. Linkus testified that he falsely indicated on his initial application that he had not been convicted of a felony because he believed his release from probation permitted him to so state and he did so on the advice of his attorney. The Board considers the crime of second-degree rape a serious one. The Board believes responsibility and dependability are essential for a master HVAC contractor. The public relies on the trustworthiness of contractors who enter their homes.

Therefore, licensure by the Board of an individual convicted of a. crime involving a sexual assault of this nature is especially problematic for the Board. While Mr. Linkus’ offense was not an on-the-job occurrence and did not directly involve the provision of HVAC services, his conduct does constitute a personal sexual assault against the victim. Moreover, that Mr. Linkus initially concealed the fact of his criminal conviction is equally troublesome to the Board as it is suggestive of a violation of Bus. Reg.

Art., Code Ann. of Md., § 9A-310(1) which provides, in part, that the Board may deny or revoke a license to any applicant if the Board finds the individual obtained the license by fraud or fraudulent representation. While the Board finds problematic Mr. Linkus’ explanation for his initial denial of any criminal conviction on his application, the Board acknowledges that Mr. Linkus subsequently accurately indicated his criminal status to the Board. Mr. Linkus argued that the Board cannot deny him a license because the Bus. Reg.

Art., Ann.Code of Md., Title 9A does not specifically provide that conviction of a felony shall be a bar to a license. However, the Attorney General of Maryland has opined that licensing agencies of the Department of Licensing and Regulation [such as the HVAC Board] are empowered, whether by specific statutory enactment or by administrative rule, to rely on an applicant’s criminal record in ²⁷¹ determining whether such person should be issued a license---- 57 Op. Att’y Gen. 335, 340-341 (1972). There, the Attorney General suggested that the licensing agency consider the amount of time which may have elapsed since the conviction, the nature of the offense and whether it has a rational connection with the applicant’s fitness or capacity to perform the occupation.

Id. at 341. At the hearing, Mr. Linkus maintained that his conviction does not bear any connection to HVAC services. Had he been convicted of theft, embezzlement or falsification of records, he argued such offenses would bear a relationship to his fitness to provide HVAC services. That Mr. Linkus’ offense does not involve a crime against property or a crime of moral turpitude, but rather a crime against a person, does not persuade the Board that the nature of the crime at issue is less serious.

Rather, the Board can think of no greater example of when a criminal conviction may be thought to relate to the applicant’s fitness for an occupational license than rape. The master license sought by Mr. Linkus will permit him to enter residential homes to work, unsupervised. The State-issued license carries with it the State’s sanction of Mr. Linkus’ fitness to provide HVAC services, to be relied upon by the citizens of Maryland. The amount of time that has elapsed since Mr. Linkus’ 1989 conviction is just under six (6) years.

The Board believes that it would be inappropriate for it [to] grant Mr. Linkus’ application for a master license at this time, under the circumstances of this case. Conclusions of Law Based on the Findings of Fact, and using the specialized knowledge, training and experience of its several members, the State Board of Heating, Ventilation, Air-conditioning and Refrigeration Contractors reaches the following conclusions as a matter of law: ²⁷² The Applicant, George J. Linkus, Jr. fails to qualify for a master license pursuant to Bus. Reg. Art., Ann.Code of Md., § 9A-308 given the circumstances of his 1989 felony rape conviction.

Appellant filed a petition for judicial review of the Board’s decision in the circuit court. After oral argument on January 17, 1996, the circuit court issued a memorandum and order on March 18, 1996, affirming the Board’s order and accepting the Board’s contention that the enabling statute “authorizes [the Board] to review the background of an individual applying for a license and to deny licenses to those persons whose backgrounds the Board concludes pose a threat to the public at large, under the language of the statute____” Appellant has now filed an appeal to this Court. Standard of Review The Board’s decision is subject to review under the Maryland Administrative Procedure Act, codified at Md.Code Ann., State Gov’t § 10-101 et seq. (1995 & Supp.1996).

Appellant does not challenge the Board’s findings of fact but, instead, argues that the Board acted outside the scope of authoiity conferred upon it by the Legislature, therefore, raising a question of law. The Board’s conclusions of law are not entitled to any deference upon review. Ahalt v. Montgomery County, 113 Md.App. 14, 22 , 686 A.2d 683 (1996). Were this a case dependent upon issues of technical expertise or an interpretation of the Board’s own internal regulations, we would generally defer to the interpretation of the Board.

See Department of Health & Mental Hygiene v. Reeders Memorial Home, Inc., 86 Md.App. 447, 453 , 586 A.2d 1295 (1991). We cannot do so when an agency is deciding an issue of law. Id. at 452 , 586 A.2d 1295 . Analysis The right of an individual to engage in a lawful occupation has long been recognized.

Singer v. State, 72 Md. 464, 465 , 19 A. 1044 (1890). It is also well settled, and acknowledged in Singer , that a person’s right to engage in any ²⁷³ lawful occupation is subservient to the legitimate right and duty of the state to protect the health, safety, and welfare of its citizens, through the valid exercise of its police power. Id. at 466 , 19 A. 1044 . All occupational licensing emanates from this authority.

For the greater good of the public at large, a state, under its police power, is free to place certain restrictions upon those who wish to enter or practice a particular occupation. The broad authority of the state to place restrictions upon those who wish to pursue an occupation is not without limitation, however. In order to prevent arbitrary and capricious use of this power, due process and equal protection require that any regulation of a business must bear a reasonable and rational relationship to the state’s objective. See Massage Parlors, Inc. v. Mayor & City Council of Baltimore, 284 Md. 490 , 398 A.2d 52 (1979).

(citing the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights). While this “rational relationship test,” as it is commonly known, may be a fairly easy burden for the state to meet, these constitutional considerations do not represent the sum and substance of the limitations placed upon an occupational licensing board’s actions, this appeal being a case-in-point. While appellant does not raise a constitutional claim in his challenge of the Board’s authority to withhold a license, he does raise an issue concerning the limitation of the licensing authority with respect to the discretion given to it by the Legislature. The issue before us is solely one of statutory interpretation, ie., was the Board acting within its legislative mandate when it denied appellant a license?

The issue can be stated in two parts: (1) was the Board acting within its express authority, and (2) if not, was the Board acting within its implied authority? A. General Principles of Statutory Construction “The cardinal rule of statutory construction is to ascertain and carry out the actual intent of the Legislature.” Montgomery County v. Buckman, 333 Md. 516, 523 , 636 A.2d 448 (1994). The task of statutory interpretation begins with ²⁷⁴ the ordinary and natural meaning of the words employed. If the language is plain and free from ambiguity and expresses a definite and sensible meaning, there is no need to look elsewhere to ascertain the intent of the legislative body.

Director of Finance v. Charles Towers Partnership, 104 Md.App. 710, 717-18 , 657 A.2d 808 , cert. granted sub nom., Cheaspeake Tel. v. Director of Finance, 340 Md. 268 , 666 A.2d 144 (1995), and aff'd, 343 Md. 567 , 683 A.2d 512 (1996). Although the language of the statute is the primary indicator of legislative intent, we must examine the entire statutory scheme and consider the purpose behind the enactment. Further, we must read all parts of a statute together. Ward v. Dept. of Public Safety, 339 Md. 343, 351-52 , 663 A.2d 66 (1995); Department of Public Safety & Correctional Services v. Howard, 339 Md. 357, 369 , 663 A.2d 74 (1995).

We will consider not only the literal meaning of language, but its meaning and effect in light of its setting and the objectives of the enactment. Prince George’s County v. Brown, 334 Md. 650, 659 , 640 A.2d 1142 (1994). Cognizant that the language of the statute is the foundation from which our inquiry commences, we also will review legislative history and the prior state of law and contemplate the particular evil, abuse, or defect that the Legislature wished to remedy with the enactment of the statute at issue. Lemley v. Lemley, 102 Md.App. 266, 290 , 649 A.2d 1119 (1994).

The legislative history of a statute, including amendments that were considered and/or enacted as the statute passed through the Legislature, and the statute’s relationship to earlier and subsequent legislation are “external manifestations” or “persuasive evidence” of legislative purpose that may be taken into consideration. Rose v. Fox Pool Corp., 335 Md. 351, 360 , 643 A.2d 906 (1994). Moreover, the examination of related statutes is not beyond our reach. GEICO v. Insurance Comm’r, 332 Md. 124, 132 , 630 A.2d 713 (1993). ²⁷⁵ B. Discussion (1) The statute creating, regulating, and empowering the Board can be found within Bus.

Reg. §§ 9A-101 to 9A-602. The Board argues that, under Bus. Reg. § 9A-102(1), it was granted broad discretionary authority to “protect the public” through the licensing of HVACR contractors. Section 9A-102 states in full that: The purpose of this title is to establish a licensing program for individuals who provide or assist in providing heating, ventilation, air-conditioning, and refrigeration services to: (1) protect the public; (2) provide and maintain efficient and safe systems; (3) promote high professional standards; and (4) ensure that qualified individuals carry out subsections (1), (2), and (3) of this section.

This mandate, the Board concludes, allows it to consider evidence of character, e.g., appellant’s rape conviction, as grounds on which to deny a license. The statutory provision applicable to denial of a license appears in Bus. Reg. § 9A-310, which states that: The Board may deny a license to any applicant, reprimand any licensee, or suspend or revoke a license after a public hearing conducted in accordance with the provisions of 9A-311 of this title, if the Board finds that the individual: (1) obtained a license by false or fraudulent representation; (2) transferred the authority granted by the license to another person; (3) willfully or deliberately disregarded and violated the code established by the Board under this title; (4) willfully or deliberately disregarded and violated building codes, electrical codes, or laws of the State or of any municipality, city, or county of the State; ²⁷⁶ (5) aided or abetted a person to evade a provision of this title by allowing a license to be used by an unlicensed person, firm, or corporation; (6) willfully or deliberately disregarded disciplinary action taken by a municipality, city, or county against the individual in connection with providing heating, ventilation, air-conditioning, or refrigeration services; (7) abandoned or failed to perform, without justification, any contract or project to provide heating, ventilation, air-conditioning, or refrigeration services; (8) performed work under a heating, ventilation, air-conditioning, or refrigeration services contract or project that is inádequate or incomplete; (9) directly or indirectly published any advertisement relating to the providing of heating, ventilation, air-conditioning, or refrigeration services that contained an insertion, representation, or statement of fact that is false, deceptive, or misleading; (10) made any material misrepresentation in the procurement of a heating, ventilation, air-conditioning, or refrigeration services contract or project; or (11) failed in any material respect to comply with the provisions of this title. As additional authority to disqualify appellant based on his 1989 rape conviction, the Board focuses upon the language of Bus.

Reg. § 9A-310(4), which allows denial of a license based upon evidence that an applicant “willfully or deliberately disregarded and violated building codes, electrical codes, or laws of the State or of any municipality, city, or county of the State.” (Emphasis added). The crux of the Board’s assertion is that each phrase within “building codes, electrical codes, or laws of the State” is to be read independently, meaning that any willful or deliberate violation of a budding code, an electrical code, or any law of the State is within the scope of the statute. The Board concludes that, due to the mens rea element of rape, appellant’s conviction was a willful violation of Maryland law; hence the strictures of Bus. Reg. § 9A-310(4) are satis ²⁷⁷ fied.

Because of the serious nature of rape, appellant’s license was denied because it would “permit him to enter residential homes to work, unsupervised.” 2 Appellant construes Bus. Reg. § 9A-310(4) differently. Appellant asserts that the terms are to be read interdependently, meaning that the statute should be read to mean any willful or deliberate violation of any building code, any electrical code, or any similar law. Because his rape conviction is unrelated to any building or electrical law of the State, it is therefore outside the scope of the Board’s investigatory consideration and, thus, an impermissible basis upon which to deny his license.

Our discussion begins with an examination of the statute itself. As is true for all administrative agencies, the HVACR Board’s authority to act is defined by what expressly or impliedly has been given to it by the Legislature. See Vest v. Giant Food Stores, Inc., 329 Md. 461, 466 , 620 A.2d 340 (1993); Brzowski v. Md. Home Improvement Comm., 114 Md.App. 615 , 691 A.2d 699 (1997); Northwest Land Corp. v. Maryland Dep’t of Env’t, 104 Md.App. 471, 487-88 , 656 A.2d 804 (1395). As stated above, our goal in interpreting a statute is to discern and effectuate legislative intention.

Various rules of construction have been recognized as aids in that process. If the intended purpose of a statute and its language are clear and consistent, we ordinarily can end our analysis at that point. If the legislative intent is clear, although the language may not plainly state the intent, we construe the language so as to effectuate the intent if it is capable of such construction. In those instances, the rules of construction are useful, but primarily to explain the predetermined goal.

If, as in the case before us, we are uncertain as to the legislative intent, then ²⁷⁸ the rules of construction applied to the language used in the statute lead us to the result. See Taylor v. Friedman, 344 Md. 572 , 689 A.2d 59 (1997). The Legislature is the law-making branch of government. We are not permitted to be concerned with the wisdom, need, or appropriateness of legislation as long as it is within constitutional limitations.

We may not substitute our judgment for that of the Legislature and rewrite legislation even if we disagree with it. Nor are we free to amend a statute under the guise of statutory construction. See Maryland-National Capital Park & Planning Comm’n v. State Dep’t of Assessments & Taxation, 110 Md.App. 677, 700 , 678 A.2d 602 (1996), and Conaway v. State, 108 Md.App. 475 , 672 A.2d 162 (1996). If we believe there is a problem with particular legislation, we are limited to calling the Legislature’s attention to it.

Taken in isolation, the phrase in Bus. Reg. § 9-310(4), on which the Board relies, supports its interpretation. We cannot read “laws of the State” in § 9A-310(4) in isolation, however, but must consider it in the context of the entire statutory scheme, because Title 9A was enacted in its entirety rather than in a piecemeal fashion. See Comptroller of the Treasury v. John C. Louis Co., 285 Md. 527, 538 , 404 A.2d 1045 (1979) (“[I]t is not proper to confíne interpretation to the isolated section to be construed.” Id.).

Considering the language of Bus. Reg. § 9A-310(4) in the context of the entire act, and employing certain well-settled principles of statutory construction, we conclude that appellant’s interpretation of § 9A-310(4) is the correct interpretation. Under the doctrine of ejusdem generis, when general words in a statute follow the designation of particular things, classes, or subjects, the general words will usually be construed to include only those things, classes, or subjects in the same general nature as those specifically mentioned. In re Wallace W., 333 Md. 186, 190 , 634 A.2d 53 (1993) (quoting ²⁷⁹ Giant of Maryland v. State’s Attorney, 274 Md. 158, 167 , 334 A.2d 107 (1975)).

Under the doctrine of reddendo singula singulis, when a sentence in a statute contains several antecedents and several consequents, such as in Bus. Reg. § 9A-310(4), they are to be read together. This doctrine, better known in other jurisdictions as the “last antecedent rule,” see, e.g., Boeing Co. v. State, Dep’t of Licensing, 103 Wash.2d 581 , 693 P.2d 104, 108 (1985), has been applied in Maryland under the more cumbersome name of “the principle of statutory construction ‘that a qualifying clause ordinarily is confined to the immediately preceding words or phrase.’ ” Employment Sec. Admin. v. Weimer, 285 Md. 96, 100 , 400 A.2d 1101 (1979) (quoting Sullivan v. Dixon, 280 Md. 444, 451 , 373 A.2d 1245 (1977)). Applying the principles discussed above, the phrase “laws of the