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Felicity's, Inc. v. District of Columbia Board of Appeals and Review

June 17, 2004

FELICITY'S, INC., D/B/A FELICITY'S CULTURAL CENTER, PETITIONER
v.
DISTRICT OF COLUMBIA BOARD OF APPEALS AND REVIEW, RESPONDENT



Petition for Review of a Decision of the Board of Appeals and Review (LR-5609-00).

Before Terry, Steadman, and Farrell, Associate Judges.

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

Submitted March 18, 2003

Felicity's Cultural Center ("Felicity") seeks review of an order of the Board of Appeals and Review ("the Board") dismissing Felicity's*fn1 administrative appeal because of counsel's failure to file a brief. Felicity contends that the dismissal of its appeal was an abuse of discretion. We affirm.

I.

Since 1995 Felicity has operated a public hall on Chillum Place, N.W., which has served as a venue for dances, concerts, and other social events. In early 2000 Felicity applied to the Department of Consumer and Regulatory Affairs ("DCRA") for renewal of its public hall license. On August 18, 2000, after a three-day hearing, the DCRA's Office of Adjudication ("OAD") denied the application because "the continued operation of the public hall would most likely cause persistent noise, litter/trash, boisterous and unruly behavior and parking problems for the [surrounding] community . . . and, more specifically, the residents who reside within 600 feet of the boundary lines of the Felicity's Cultural Center." Felicity filed a timely administrative appeal and, on September 5, filed a motion to stay the OAD's order. That motion was denied.

On September 29, 2000, Felicity's counsel wrote to the Board requesting clarification on how to order a transcript of the hearing. In that letter, counsel acknowledged receipt of a previous letter from the Board explaining that Felicity would have to order and pay for its own transcript because the case involved a "violation and/or civil infraction." Apparently the Board confused the instant case with another of Felicity's appeals, involving a fine for a civil infraction, which was also pending before the Board at that time. Felicity's letter corrected this mistake*fn2 and inquired "whether or not the petitioner is still responsible for ordering and paying for a transcript," since the appeal involved the denial of a license renewal rather than a civil infraction. In response, the Board issued an order on November 30, 2000, stating, "If a party intends to dispute findings of fact based on evidence at a hearing below, a transcript ordinarily will need to be produced." The order further asked Felicity to respond to the following question: "Have you submitted to the Board the documents on which you intend to rely, which may include a hearing transcript?"

Unsatisfied with the Board's response, counsel wrote another letter to the Board, dated November 30, 2000, which reiterated that the appeal concerned the denial of Felicity's license renewal application rather than a civil infraction and, once again, requested that the Board "inform us as to whether or not petitioner is still responsible for ordering and paying for a transcript . . . ."

On December 8, 2000, DCRA filed the administrative record with the Board, with no transcript included.

On May 10, 2001, the Board issued another order. Unlike the earlier order of November 30, this order specifically responded to Felicity's inquiry about the transcript:

[W]ith respect to petitioner's inquiry, there is no pre-condition . . . that petitioner provide a transcript. At the same time . . . petitioner will be seriously handicapped without a transcript insofar as the appeal rests on the allegation that the DCRA decision is not supported by substantial evidence. . . . DCRA rules require transcripts to be provided by an appellant, unless waived. Board rules state that we accept transcripts as part of the record and the record is to be submitted by DCRA. Note our rules in 1 DCMR Sec. 505. [Emphasis added.]

More importantly for purposes of this litigation, the May 10 order also stated that Felicity "shall file a brief with the Board covering all the issues raised in its appeal" within forty-five days from the date of the order.

On May 25 Felicity's counsel filed a response to the Board's May 10 order, attaching a "copy of transcription tapes 8, 9, and 10 which petitioner will utilize in presenting his appeal." The transcript to which counsel was referring was prepared by The Language Doctors, Inc., a translation service. Counsel also stated that he was "in possession of all the other transcription tapes" and requested direction as to "the procedure to be used to forward all these other tapes to the Board in the event the testimony contained therein is utilized in the petitioner's appeal."

The Board responded on June 21 by issuing an order informing Felicity that the transcripts it had provided had not been certified as a true copy of the audiotapes and had not been first submitted to DCRA, which "has the exclusive responsibility of submitting to the Board the official record on appeal." The order further reminded Felicity that "[a]s stated in our previous order . . . all transcripts ordered by a ...


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