On Petition for Review of a Decision of the District of Columbia Board of Appeals and Review
Ferren and Farrell, Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: Ferren
F.W. Woolworth Company appeals a decision of the Board of Appeals and Review sustaining the Department of Consumer and Regulatory Affairs' imposition of a civil fine for unlicensed mechanical amusement machines but reducing the fine from $400 to $250. Woolworth contends that (1) in legal effect, Woolworth was licensed because "the unrebutted evidence demonstrated the licenses had been paid for but had not issued by the District of Columbia"; (2) the Board had no authority to modify and uphold a fine that the Department had "cited under incorrect statutory authority and in the wrong amount"; and (3) the fine was wrongly imposed under a criminal, rather than a civil, regulatory provision. Because we perceive Woolworth's third argument as a jurisdictional attack, we consider it first and conclude that the Department had jurisdiction under the District of Columbia Code to impose a civil fine. However, upon consideration of the statutory and regulatory provisions cited by the Department and the Board in connection with Woolworth's second argument, we conclude the Department has not exercised its jurisdiction to prescribe a civil fine for the infraction at issue. For this reason, we must reverse and remand for further proceedings. *fn2
The Department charged Woolworth with operating a vending machine without a license, citing D.C. Code § 47-2819 (1987). (An additional charge was dismissed.) Investigator Wilfred Usher testified at the hearing before the administrative law Judge (ALJ) that on June 20, 1988, he "went into F.W. Woolworth and requested to see . . . all of the applicable licenses. * * * here was no license for . . . vending machines . . . ." According to Usher, "here were four mechanical amusement machines" located in the front of the store. Al Calbreth testified on behalf of Woolworth, stating, "he vending machines are not our vending machines. They are from a company that -- I guess you can say they lease space from us. They have a license and when we contacted them about this they sent us our own license . . . ."
After a short recess, Investigator Usher presented evidence that an old license issued to Woolworth for vending machines had expired on May 31, 1988 and that a new license for two vending machines had been issued to Woolworth on July 1, 1988. According to Galbreth, although the license listed Woolworth as the responsible party, the address listed was that of the leasing company, not Woolworth. Usher then testified that the incorrect address invalidated the license.
The ALJ stated before ending the hearing:
I . . . have a problem with the vending machine situation because first of all this license is only for two and the Inspectors have indicated that there are four and because of the fact by your testimony that the name and address don't match as to who is responsible for the machines and especially if you are saying that F.W. Woolworth doe not own them and there is no other name on there.
In her decision and order, the ALJ found:
There are four Mech amusement machines in store that were not licensed on date of infraction. A license has since been obtained for two machines, al respondent argues they are not responsible for machines even though Resp's name is on license.
The ALJ concluded that "Respondent . . . is liable for violation of D.C. Code § 47-2819 because license was obtained in Respondent's name, mitigated by license being obtained for 2 machines." She fined Woolworth $400 for the violation.
Woolworth appealed this decision to the Board. The Board heard arguments from both parties. Woolworth argued, and the District of Columbia conceded, that the ALJ had cited the wrong statute in her decision and order. *fn3 Woolworth, through counsel, indicated that it realized 19 DCMR § 1400 (1983) contained the provisions "under which licensing guidelines are found for amusement machines." *fn4 Counsel further stated, "The real issue here is the question of whether or not there was a violation in substance of the licensing procedures in the law." Woolworth claimed prejudice from the citation error because Woolworth was fined in excess of the alleged $300 maximum allowed by the applicable regulation, 19 DCMR 1400.7. *fn5 Woolworth also argued the ALJ had determined that a license for two machines had been issued, a fact suggesting that no violation had occurred with respect to those two machines. (Woolworth apparently ignored the ALJ's actual finding that a license for two "ha since been obtained," i.e., ...