Refs & Annos
West's Annotated Code of MarylandBusiness Regulation
MD Code, Business Regulation, Refs & Annos
Revisor's Note (Acts 1992, c. 4):
REVISOR'S NOTE TO ARTICLE:
The Department of Legislative Reference is charged with revising the law in a clear, concise, and organized manner, without changing the effect of the law.
One precept of revision has been that, once something is said, it should be said in the same way every time. To that end, the language and organization of this article is conformed to the 21 previously enacted articles. Thus, for example, the provisions of this article for regulatory bodies, for licensing, and for prohibited acts have been drafted in accordance with Model Guide for Drafting Governmental Units and Licensing Provisions, developed in conjunction with the revision of the Health Occupations and Business Occupations and Professions Articles.
In this article, as in other revised articles, the term “unit” is substituted for the former references such as “department”, “agency”, “board”, and “commission”, except when a former reference indicated a specific entity. The term “unit” is used as the general term for an organization in a government because the term is broad enough to include all such entities. Throughout this article, references to current units and positions are substituted for obsolete references to entities that have been abolished or otherwise ceased to exist.
In this article, the word “regulation” is substituted for the former references to “rules and regulations” to distinguish, to the extent possible, between regulations of executive units and rules of judicial or legislative units and to establish consistency in the use of these words. This substitution conforms to the practice of the Division of State Documents. See the revisor's note to SG § 10-101(e).
Also throughout this article, to be consistent and to avoid unnecessary confusion, the singular verb “adopt” is used in relation to rules or regulations, and verbs such as “prescribe” and “promulgate” are deleted. Regulations, in any event, are subject to Title 10, Subtitle 1 of the State Government Article.
In each “Membership” section of this article, there is a subsection captioned “Tenure; vacancies”. A standard paragraph included in each of those subsections provided that a “member who is appointed after a term has begun serves only for the rest of the term and until a successor is appointed [and qualifies]”. That paragraph applies: (1) when a successor is appointed to replace a member who has died, resigned, or failed for any other reason to complete a term; (2) when a member is appointed to succeed a member who has “held over” to part of the next term, pending the delayed appointment and qualification of the successor; or (3) when, in any other situation, a member takes office after a term has begun, e.g., when, at the completion of a term, there is a delay in the appointment of a successor, but the member who served the prior term does not “hold over”.
In each “Examinations” section of this article, a standard subsection captioned “Right To Examination” is included. The subsection provides expressly that an applicant who otherwise qualifies for a license is entitled to an opportunity to meet the final requirement for licensing: i.e., the opportunity to take the required examination. Stated from the other perspective, the subsection simply states that a governmental unit may not deny arbitrarily an otherwise qualified applicant an opportunity to take the license examination. This is a requirement of the former law that becomes clearer within the context of the revised form used in the “Examinations” sections of this article. In any event, this provision reflects the requirements of the due process clause under the 14th Amendment of the U.S. Constitution. See Douglas v. Noble, 261 U.S. 165 (1923); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957); and Willner v. Committee on Character and Fitness, 373 U.S. 96 (1963).
The Business Regulation Article Review Committee notes, for consideration by the General Assembly, the addition in several titles of this article of a general delegation of powers and duties section or subsection. This expressly allows the regulatory authority to delegate any responsibilities that normally could be delegated. It also avoids repetition of phrases such as “authorized representative of the Commissioner” and “designated agent of the Commissioner”. In each instance, the Committee was unable to discern any powers or duties that were not delegable. See §§ 3-202, 9-201, 14-105, 14-205, 16-102, and 17-202 of this article.
The Committee also notes that throughout this article subpoena provisions refer generally to issuing subpoenas to produce “evidence”. The general word “evidence” is substituted for former lists of specific types of evidence such as “papers, books, documents, and records” to conform to comparable provisions elsewhere in the Code.
The Committee also added the reference to being “guilty of a misdemeanor” to certain criminal penalty provisions of this article to state expressly that which only was implied in the former law. Since a violation of a licensing law was not a felony at common law and has not been declared a felony by statute, it is considered to be a misdemeanor. See State v. Canova, 278 Md. 483, 490 (1976); Dutton v. State, 123 Md. 373, 378 (1914); and Williams v. State, 4 Md.App. 342, 347 (1968).
Also throughout this article, the Committee deleted former minimum penalties to conform to the statement of legislative policy in Art. 27, § 643 of the Code, which sets forth the general rule that, notwithstanding a statutory minimum penalty, a court may impose a lesser penalty of the same character.
MD Code, Business Regulation, Refs & Annos, MD BUS REG Refs & Annos
Current through legislation effective July 1, 2020, from the 2020 Regular Session of the General Assembly.
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