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04/30/93 JAMES O. MACAULEY v. DISTRICT COLUMBIA

April 30, 1993

JAMES O. MACAULEY, PETITIONER
v.
DISTRICT OF COLUMBIA TAXICAB COMMISSION, RESPONDENT



Before Rogers, Chief Judge, and Steadman and Sullivan, Associate Judges.

The opinion of the court was delivered by: Per Curiam

On Petition for Review of a Decision of the District of Columbia Taxicab Commission

PER CURIAM: Petitioner, a taxicab driver, appeals from a decision imposing a $50 civil fine for "loitering," purportedly rendered pursuant to regulations of the Taxicab Commission. *fn1 Because the procedures followed by the administrative agency do not follow those set forth in its own regulations, we vacate the decision and remand for further proceedings.

A.

Alerted to the necessity of dealing with the issue of a remand, *fn2 the government conceded at oral argument that administrative proceedings for violations such as the one charged to appellant are governed by 31 DCMR ch. 4, entitled "Rearing Procedures Applicable to Notices of Infractions." Briefly, that chapter provides that upon a request for a hearing by a person who wishes to contest the imposition of a civil fine, the following administrative procedures shall be followed. First, the case is assigned to a hearing examiner, who shall hold a hearing. §§ 323.1(d), 400.2. Upon completion of the hearing, the hearing examiner shall issue a "proposed decision." § 402.1. Any party may file written exceptions within ten days, whereupon the chairperson of the Taxicab Commission "shall designate a three member component of the [Panel on Adjudication] to consider the record of the hearing, the proposed decision, and the written exceptions, and to hear any argument to be presented." § 403.3. See also 40 D.C. Code § 40-1709.1(c) (1992 Supp.). An order adopted by a three member component of the panel, unless appealed to the full Panel on Adjudication within ten days, becomes final; when such an appeal is taken, the Panel may issue a final order or adopt the order of the three member component as its final order. §§ 404.2, 404.3. Thereafter an appeal may be taken to this court. § 404.4. See D.C. Code § 1-1510(a) (1992).

B.

Despite the government's arguments to the contrary, we do not find it reasonably possible to square the actual proceedings before the agency with the requirements of the Commission's own procedural regulations. The record before us reveals the following sequence of events. On October 26, 1990, petitioner was sent a notice that a hearing on the ticket he received for a "hacking violation" would be held "per your request on Tuesday, Nov 20, 1990 before a hearing examiner for the Panel on Adjudication." That hearing was held as scheduled, at the Conclusion of which the hearing examiner announced: "Ticket number 891112622, loitering, I'm going to hold you liable and impose a fine of fifty dollars. You have a right to appeal my decision." A "Hearing Record Order" dated that same day was signed by the hearing examiner imposing the $50 fine and written in under a section entitled "Comments: [Include findings of fact and Conclusions of law]" was the following: "IO [Investigating Officer] stated that Resp. was the seventh cab on a five cab stand. Resp. stated that he was cleaning his cab behind the hack stand." At the bottom of the form a printed legend appeared, stating "If you wish to appeal this hearing result, you must file within ten days of the date of this decision to the Panel on Adjudication, D.C. Taxicab Commission. Directions for how to file such an appeal are available in the Commission's offices." *fn3

Presumably in response to this notice, petitioner on the same day as the hearing examiner's decision filed a second "request for hearing" before the Panel on Adjudication "as provided in its rules of organization and procedure." To this form notice, petitioner attached a handwritten note stating: "I am appealing the decision because all over in the District of Columbia, there are limitations on the number of cabs to a hotel stand which number is posted in front of the hotel," but that "at the J.W. Marriott there is no such limitation" and therefore "one has to conclude that there is no such limitation." *fn4

In response to this, petitioner received a letter with a typewritten date of January 29, 1991, and bearing a date stamp of March 5, 1991. The letter stated in its two opening paragraphs:

On 11/20/90 you requested reconsideration of the decision of a Taxicab Commission Hearing Examiner regarding the above listed ticket.

This is to inform you that your request for reconsideration of your hearing decision before the Panel on Adjudication, District of Columbia Taxicab Commission has been denied.

The letter then quotes from 31 DCMR § 354.2, *fn5 which controls the right to a rehearing and states the five grounds which may be invoked. The letter then concludes:

Your request for reconsideration has failed to meet the above requirements and ...


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