charge themselves, rather than the Commissioners, with failure to act.
Assuming, but not conceding, that the occupancy permits held by plaintiffs did not expire automatically under their terms, or by adoption of the 1961 Building Code, or by reason of the Commissioners' notices of expiration, then the Commissioners had the right, indeed duty, to revoke the existing permits if the actual occupancy did not conform to the building regulations relating to rooming houses,
and the notices sent to the plaintiffs may be deemed notices of revocation.
Plaintiffs' contention that there was no statutory authority for conditioning the notices upon compliance with retroactive provisions of the Building Code has been disposed of by the court's ruling as to the retroactive application of Section 5-317, D.C.Code, supra.
It is argued by the plaintiffs that the notices were vague, uncertain, ambiguous, and could not reasonably be understood by persons of ordinary intelligence. Applying the same criteria as to clarity, certainty, and ability to be understood that were applied to the challenged regulations, the court finds that the notices were not ineffective because of vagueness, uncertainty, ambiguity, or inability to be understood, and further that they were not void because of reference to provisions of the Building Code other than those promulgated under authority of Section 5-317, D.C.Code, supra.
The record showed that the plaintiffs in the two consolidated actions followed different courses of action following receipt of notice of termination of their occupancy permits. Plaintiffs in the Ellen Realty case (C.A. 3318-61) applied for a new permit and received notices informing them that issuance of the new permit requested would be conditioned upon their compliance with certain designated provisions of the Building Code. Plaintiffs in the Jones case (C.A. 3169-61) made no application for a new occupancy permit, and risked criminal prosecution for operating without a valid occupancy permit.
In neither instance did the plaintiffs avail themselves of their administrative remedies, namely, the right to appeal to the Board of Appeals and Review
or the right to apply for the granting of a variance on the ground of undue hardship.
We come then to the argument of plaintiffs Jones (C.A. 3169-61) that the judgments of acquittal in the Municipal Court constitute res judicata as to the issues here raised.
It has been held repeatedly that, though a civil action by the United States is bottomed on the same facts, it is not barred by a judgment of acquittal in a prior federal criminal prosecution. United States v. National Assoc. of Real Estate Boards, 339 U.S. 485, 493-494, 70 S. Ct. 711, 94 L. Ed. 1007 (1950), which affirmed in part and reversed in part 84 F.Supp. 802 (D.C.Cir.1949), and cases there cited. The difference in the degree of the burden of proof in criminal and civil cases has been held to preclude application of the doctrine of res judicata in the civil action.
In United States v. Gramer, 191 F.2d 741, 743, 27 A.L.R.2d 1132 (9th Cir., 1951), it was held that acquittal on a criminal charge of introducing misbranded drugs in interstate commerce was not a bar under the doctrine of res judicata to a subsequent civil proceeding by the government for seizure and condemnation of subsequent shipments of the same kind of drug preparations.
So here, even though many of the same issues of fact and law may have been involved, the unsuccessful attempt to impose criminal penalties upon plaintiffs Jones for the specific violations charged in the Municipal Court prosecutions, does not require that this Court grant the broad declaratory relief sought in the cases at bar, nor does it deprive this Court of its right to determine whether or not its judicial discretion should be exercised to grant the equally broad equitable relief asked by the plaintiffs herein.
This memorandum shall be treated as the court's findings of fact and conclusions of law. The two consolidated cases having been enlarged into class actions, the court's determination applies not only to the named parties in the Ellen Realty Corporation and Jones cases, but to all other persons who may be similarly situated. An order finding for the defendants and granting the motion to dismiss will be issued.