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December 20, 1962

Roscoe L. JONES et al., Plaintiffs,
DISTRICT OF COLUMBIA, a municipal corporation, Defendant. The ELLEN REAL ESTATE CORPORATION et al., Plaintiffs, v. The DISTRICT OF COLUMBIA et al., Defendants

The opinion of the court was delivered by: KEECH

These actions against the District of Columbia and the Commissioners thereof were originally brought by certain named owners and operators of rooming houses in the District of Columbia. Subsequently the cases were enlarged into class actions on behalf of rooming house, apartment house, and tenement owners and operators similarly situated, and were consolidated for trial. The actions challenge the validity of Articles 8 through 8-I of the 1961 District of Columbia Building Code, which are fire regulations promulgated by the Commissioners applicable to buildings existing on the effective date of the 1961 Building Code.

In their complaints, plaintiffs asserted that their premises have been used as rooming houses, apartment houses, or tenements by the plaintiffs themselves, or by prior owners with whom they are in privity, for many years, in most cases more than twenty years; that in many instances the properties were purchased upon a valid belief that the business of a rooming house, apartment house, or tenement could be operated therein, and the plaintiffs and their predecessors in title have paid for their properties at values reflecting those circumstances; that plaintiffs have, through the purchases aforesaid, and through their industry and development of their businesses, obtained a property right, not only in the property itself, but in the rooming house or other business operated on the premises; that all of the plaintiffs were, prior to the acts of the defendants here complained of, the owners and holders of occupancy permits and rooming house or other business licenses.

 At the pretrial hearing, the following facts were stipulated: On December 31, 1960, each of the plaintiffs held some sort of an occupancy permit for a rooming house, apartment house, or tenement house. On September 29, 1960, the Commissioners adopted the 1961 Building Code, which became effective January 1, 1961. After January 1, 1961, certain of the plaintiffs received from the Department of Licenses and Inspections of the District of Columbia a form notice that the occupancy permits held by them were 'no longer valid' and that if they desired to continue to carry on in the premises the businesses theretofore authorized to be conducted, it would be necessary for them to secure a new certificate of occupancy valid under the 1961 Building Code. Thereafter certain of the plaintiffs applied for new occupancy permits. They were subsequently advised by a written communication from the Chief of the Zoning Occupancy Inspection Branch of the D.C. Department of Licenses and Inspections that inspection of their premises had disclosed certain deficiencies existed which must be remedied before issuance of a new certificate would be granted. Enclosed was a form specifying the particular provisions of the 1961 Building Code of which they were alleged to be in violation.

 The plaintiffs in C.A. 3169-61, Roscoe Jones, et al., did not apply for new occupancy permits, and were prosecuted by the District of Columbia in the Municipal Court for the District of Columbia (Mun.Ct.No. DC 27151-61, et seq.) for operation of a rooming house without a certificate of occupancy. On November 20, 1961, a motion for judgment of acquittal was granted in each case.

 Plaintiffs ask judgment declaring invalid Articles 8 through 8-I of the 1961 Building Code, enjoining prosecution of the plaintiffs for failure to comply therewith, or penalizing of plaintiffs otherwise, and declaring the notices directing compliance with said regulations to be inadequate and insufficient to apprise plaintiffs of what is required of them and of such vagueness and ambiguity as to lack due process and to deny equal protection of the law.


 Plaintiffs contend that Articles 8 through 8-I of the 1961 Building Code are invalid on the following grounds: (1) no authority exists in the Commissioners to adopt regulations applicable to existing buildings, except such authority as may be found in the so-called Means of Egress for Buildings Act of December 24, 1942 (D.C.Code § 5-317 et seq.; 56 Stat. 1083, ch. 818), and such Act is not broad enough to authorize the regulations here in issue; (2) the regulations are ambiguous, uncertain, indefinite, and in language not understandable by persons of common intelligence and from which such persons cannot deduce what is required of them, and therefore the regulations are unenforceable; and (3) no public hearing of the type and character required by Section 5-317, D.C.Code (56 Stat. 1083, ch. 818, § 1) was held.

 The Commissioners, on the other hand, contend that the Congress, by Sections 1-226, 1-228, and 5-317, D.C.Code, has vested them with authority to promulgate the challenged regulations; that the regulations are not ambiguous, uncertain, or indefinite; that, even if a rooming house operator may accurately claim (which the Commissioners do not concede) that he cannot understand them, this does not invalidate the regulations; that they are so written that they may be read and understood by an engineer, architect, or artisan with experience in the field of building and fire safety, and that this is the proper criterion for determining whether the regulations are valid in this respect; and that a public hearing was held, of the type and character required, prior to adoption of the challenged regulations.

 The court has for determination, first, whether the Commissioners had authority to promulgate regulations of the type here in issue, which are in terms applicable to existing buildings and are therefore retroactive in effect.

 Preliminary to considering the specific statutory authority claimed by the Commissioners, it should be noted that the Congress had exclusive legislative jurisdiction over the District of Columbia, and that the Commissioners, being mere agents of the Congress, have only such authority to promulgate regulations as the Congress has specifically vested in them in any given field. Patrick v. Smith, 60 App.D.C. 6, 45 F.2d 927 (1930), and cases there cited at 45 F.2d 926.

 The Commissioners rely first on Section 1-226, D.C.Code (Feb. 26, 1892, 27 Stat. 394, Res. No. 4, § 2), as authorizing the regulations in question. That section merely authorizes the promulgation of reasonable and usual police regulations. It is the opinion of this court that the fire regulations in question are not 'reasonable and usual' police regulations, especially since they are retroactive in their application to existing buildings.

 The second statutory authority relied upon by the defendants is Section 1-228, D.C.Code (June 14, 1878, 20 Stat. 131, ch. 194, § 1 in part, § 2), which vests the Commissioners with authority to promulgate building regulations which they deem advisable. This section does not in terms authorize retroactive regulations, and there is no legislative history indicating such intent on the part of the Congress. On the contrary, it would appear that the Congress intended the building regulations to be prospective, rather than retroactive. The authority to make building regulations was attached to legislation relating to the sale of coal in the District of Columbia. Certainly, in dealing with the sale of coal, the Congress was looking to prospective acts. The fact that the authority for promulgating building regulations appears immediately in the wake of such provision, not even as a separate paragraph or sentence, indicates that a similar intent existed as to the building regulations authorized, if any inference is to be had.

 It is true that certain jurisdictions have held that building regulations may be retroactive in the absence of specific authority to make them so. In each such instance, however, the act was that of a true legislative body, as distinguished from a body such as the Commissioners, who are mere agents of the legislature.

 Further, as was well said in the case of City of Seattle v. Hinckley, 40 Wash. 468, 82 P. 747 at page 748, 2 L.R.A.,N.S., 398 (1905):

 '* * * It may be conceded that the fundamental rule of construction of statutes is that they should not be construed to be retrospective unless the retrospective intention is expressed or can be plainly gathered from the provisions of the act. * * *'

 No such intent on the part of the Congress can be gathered from either Section 1-226 or Section 1-228.

 Congress has been jealous of its legislative authority and has retained such authority except where expressly vested in the Commissioners. The courts, recognizing this, have uniformly held authority to exist in the Commissioners only where specifically delegated by the Congress, and delegation to the Commissioners of authority to regulate will not be implied in an area where Congress itself has acted.

 In the case of Coughlin v. District of Columbia, 25 App.D.C. 251 (1905), there was challenged the validity of snow removal regulations promulgated by the Commissioners in reliance upon Section 1-226, D.C.Code, supra. The Congress had previously enacted legislation specifically relating to that subject, which had been held invalid. At page 257, our Court of Appeals stated:

 'These repeated attempts at legislation, however ineffectual in their result, are sufficient to show that Congress reserved this subject (snow removal) for itself, and did not confer upon the commissioners the power to regulate it.'

 For all the foregoing reasons, the court holds that the Congress by enactment of Sections 1-226 and 1-228, supra, did not intend to, and did not in fact, vest the Commissioners with authority to promulgate fire safety regulations of the type here in issue.

 This brings the court to the third statute on which the Commissioners rely for authority to promulgate the challenged regulations, namely, Section 5-317, D.C.Code (Dec. 24, 1942, 56 Stat. 1083, ...

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