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Felicity's, Inc. v. District of Columbia Department of Consumer and Regulatory Affairs

February 27, 2003

FELICITY'S, INC., PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS, RESPONDENT.



Petitions for Review of Decisions of the District of Columbia Board of Appeals and Review (DKT5784-02)

Before Steadman, Schwelb, and Glickman, Associate Judges

The opinion of the court was delivered by: Schwelb, Associate Judge

Submitted January 3, 2003

In these consolidated appeals, Felicity's, Inc., trading as Felicity's Cultural Center, appeals from two separate rulings of the District of Columbia Board of Appeals and Review (the Board). In No. 02-AA-369 (Appeal No. 1), Felicity's challenges the Board's ruling that Felicity's received sufficient notice in a matter in which a default was entered against it. Because we conclude that the notice provided to Felicity's was sufficient, we affirm. In No. 02-AA-370 (Appeal No. 2), Felicity's claims that a civil fine levied against it was improperly predicated on an admission made by one of its officers at a hearing at which counsel was not present. We vacate the Board's ruling in Appeal No. 2 on jurisdictional grounds, order the dismissal of Felicity's appeal to the Board without prejudice, and do not reach Felicity's substantive claims.

I.

THE ADMINISTRATIVE PROCEEDINGS

A. Appeal No. 1.

In 1997, Felicity's was granted a certificate of occupancy and license to operate as a public hall by the District of Columbia Department of Consumer and Regulatory Affairs (DCRA). In August 2000, however, the DCRA did not renew Felicity's certificate and license. On January 18, 2001, and again on March 14, 2001, the DCRA issued notices of infraction in which it alleged that, in October and November of 2000, Felicity's had continued to operate as a public hall after its certificate and license had expired. Felicity's was also charged with having permitted the consumption of alcohol on its premises without a license during these time periods.

Originally, two hearing dates were set - one for May 29, 2001 and one for June 5, 2001. Aaron Adade, a principal officer of Felicity's, sent a letter to DCRA's Office of Adjudication (OAD) requesting that these hearings be postponed until September in order to accommodate the schedule of Felicity's attorney. The OAD denied this request and scheduled the hearing for June 5, 2001. The hearing was duly convened on that date. No one appeared on behalf of Felicity's, and the Administrative Law Judge (ALJ) entered a default. The default was vacated, however, when Mr. Adade sent a letter to the OAD explaining that he had been unexpectedly hospitalized on June 5, 2001. The ALJ rescheduled the hearing for July 19, 2001. The ALJ's order contained a signed certificate of service reflecting that a copy had been mailed to Mr. Adade and to his wife, Felicia D. Buadoo-Adade, the principal officers of Felicity's.

On July 19, 2001, a second hearing was held. Once again, there was no appearance on behalf of Felicity's. The ALJ reinstated the default, and he imposed fines and penalties totaling $8,240.00.

Felicity's appealed to the Board, asserting that it had never received written notice of the second hearing. The Board concluded that proper written notice was given to Felicity's in the June 28, 2001 order, in which the original default was vacated and a new hearing date was set. The Board therefore affirmed the fines and penalties entered by the ALJ in light of Felicity's default. Felicity's then filed Appeal No. 1.

B. Appeal No. 2.

On December 13, 2000, the DCRA issued a notice of infraction charging Felicity's *fn1 with two violations of the District's zoning regulations. Specifically, Felicity's was alleged to have violated 11 DCMR § 2116.3, a regulation governing the location of parking spaces, and 11 DCMR § 2117.3, which regulates parking lot marking and maintenance. In March 2001, the parties submitted a proposed consent decree to an ALJ; however, the ALJ never signed the proposed decree, as certain matters were still unresolved. When several reinspections allegedly revealed that Felicity's had not cured the violations, the DCRA asked for a hearing on the original notice of infraction.

On September 7, 2001, the ALJ scheduled a hearing for September 26, 2001. On September 24, 2001, Felicity's requested a continuance. The ALJ denied this request because it was untimely, and because a reference by Felicity's attorney, in his moving papers, to an obligation to attend another proceeding was not detailed enough to provide good cause for granting the requested postponement. On September 26, 2001, a hearing was convened. Present at the ...


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