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Walsh v. District of Columbia Board of Appeals and Review

June 12, 2003

THOMAS M. WALSH, PETITIONER,
v.
DISTRICT OF COLUMBIA BOARD OF APPEALS AND REVIEW, RESPONDENT. *FN1



Petition for Review of a Decision of the District of Columbia Board of Appeals and Review

Before Terry, Farrell, and Washington, Associate Judges.

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

Argued March 18, 2003

Petitioner Walsh seeks review of a decision of the District of Columbia Board of Appeals and Review (the BAR or the Board) rejecting his appeal from fines imposed by an Administrative Law Judge (ALJ) of the District of Columbia Department of Consumer and Regulatory Affairs (the DCRA). Walsh was held to have violated D.C. Code § 47-2828 (a) (2001) by failing to obtain a housing business license and 11 DCMR § 3203 et seq. (2003) by failing to obtain and post a certificate of occupancy for a house he had rented to students.

We hold first that the BAR lacked subject matter jurisdiction to consider the fines related to a certificate of occupancy. The applicable regulations, 11 DCMR § 3203.1 and § 3203.3, are part of the Zoning Regulations of the District of Columbia, see 11 DCMR § 100.5, and fall within the jurisdiction of the Board of Zoning Adjustment, not the BAR. See D.C. Code § 2-1803.01 (2001) ("[A]ppeals involving infractions of . . . the District of Columbia Zoning Regulations shall be entertained and determined by the District of Columbia Board of Zoning Adjustment"). The BAR therefore should have dismissed Walsh's appeal from the ALJ's ruling with respect to the certificate of occupancy. See Felicity's, Inc. v. District of Columbia Dep't of Consumer & Regulatory Affairs, 817 A.2d 825, 829 (D.C. 2003). *fn2

The sole remaining issue is whether Walsh was required to obtain a housing business license under D.C. Code § 47-2828 (a). We hold that the findings of the BAR on this point were based on a misunderstanding of law, namely an erroneous determination that Walsh's property was being rented as a "multiple dwelling residence." In this court, the DCRA's counsel does not defend that rationale, but argues that a housing business license was still required because the entire residence constituted "one . . . dwelling unit[]" within the meaning of § 47-2828 (a). For the reasons stated below, we remand the case to the BAR for consideration of that argument.

I.

In the fall of 1999, Walsh owned a ten-bedroom house located at 1232 Newton Street, N.E., which he rented to a group of eight to ten students from Catholic University. Each student signed the master lease, individually accepting liability for the residence as a whole. The lease did not assign specific bedrooms to the individual renters; such arrangements were left to the occupants. *fn3 Each student paid Walsh a portion of the monthly rent individually (rather than submitting a single check covering the full amount), but in all other ways the students appear to have acted collectively in dealing with the owner.

On September 23, 1999, a housing inspector for the DCRA visited Walsh's house and subsequently filed a Housing Violation Notice alleging three civil infractions: (1) failure to obtain a housing business license as required by D.C. Code § 47-2828 (a); (2) failure to obtain a certificate of occupancy under 11 DCMR § 3203.1; and (3) failure to post a certificate of occupancy under 11 DCMR § 3203.3. The Housing Violation Notice was not sent to Walsh, but a Notice of Infraction based on the violation notice was sent to him on October 6, 1999. The Notice of Infraction charged the same three violations, cited the appropriate regulations, and listed the amounts of the fines. Walsh responded to the notice on October 15, 1999, denying the violations and requesting a hearing. *fn4

At a hearing before an ALJ on November 17, 1999, the DCRA inspector testified that he considered Walsh's dwelling to be a "rooming house," and that he had issued the citations based on that understanding. Walsh countered chiefly that his property was not a rooming house (the DCRA now concedes the property did not meet the definition of a rooming house, see 14 DCMR § 199.1 (1991)), and further that he did not need a housing business license because he was leasing the entire property as a "single family home" and not as "separate dwelling units." In an order dated December 14, 1999, the ALJ found Walsh in violation of D.C. Code § 47-2828 (a) and the occupancy permit regulations, and imposed fines and court costs in the amount of $1040.00. *fn5 In doing so, the ALJ classified Walsh's residence as a "rental property with multiple dwelling units."

Walsh appealed the rulings on all three infractions to the BAR, re-asserting his original defenses and also arguing that the ALJ had "improperly served as [an] advocate for [the] DCRA" in the hearing below. *fn6 In a Decision and Order dated July 13, 2001, the BAR ruled as follows:

We find no error in the decision . . . . [O]wners of residential

buildings who rent one or more dwelling units must be licensed [see D.C. Code ยง 47-2828 (a)]; a dwelling unit is, inter alia, unsurprisingly, a room used for sleeping; and when the Newton Street house was converted to a multiple dwelling residence, a certificate of occupancy was mandatory. Walsh therefore, used his ...


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