The opinion of the court was delivered by: Ruiz, Associate Judge
On Petition for Review of a decision of the District of Columbia Rental Housing Commission. (TP-27,408).
Before WASHINGTON, Chief Judge,*fn1 RUIZ and REID, Associate Judges.
Petitioner challenges the decision of the District of Columbia Rental Housing Commission ("RHC") affirming a determination by an examiner of the Office of Adjudication of the Department of Consumer and Regulatory Affairs that invalidated petitioner's rent increase for failure to give tenant the statutorily-required notice. The decision ordered a roll-back of the rent increase and imposed a fine of $1000 for an unlawful increase in rent. It also awarded the tenant reimbursement of two days' rent for a period when tenant's apartment had no heat, as well as a fine of $500 for petitioner's failure have given the tenant this statutorily-required reduction in rent.
We agree with petitioner that the decision invalidating the rent increase and imposing a fine was based on an issue the tenant never raised and of which petitioner had no adequate notice. We also agree that required findings were not made to justify imposition of the second fine. Thus, we reverse and remand to the agency for further proceedings.
Hughes Denver Akassy (not a party to this case) was a tenant in a rent-controlled apartment building operated by petitioner.*fn2 The tenant and petitioner had had an adversarial and litigious relationship for some time, characterized by the tenant's chronic failure to pay rent, complaints against petitioner's allegedly poor maintenance of the apartment building, and frequent recourse to Landlord/Tenant Court.*fn3 In this latest round, the tenant filed a petition on January 14, 2002, with the Rental Accommodations and Conversion Division ("RACD") of the Department of Consumer and Regulatory Affairs, alleging that the landlord had imposed a discriminatory and retaliatory rent increase. The RACD uses a form petition on which tenants check off the nature of their complaint. In the section for "Complaints Involving Increases in Rent," the tenant checked off the box stating that "[t]he rent ceiling filed with the Rental Accommodations and Conversion Division for my . . . unit is improper." In the comment area for this section he wrote:
I am a victim of discrimination by my landlord since I kept complaining about the poor condition of my apartment. The rent is more higher [sic] than other tenants on my floor who moved on [sic] after me. My landlord try [sic] to have me evicted by incre[a]sing my rent by more than 20% this month. My ceiling (and my rent) are too high for the poor condition my apartment offer [sic].
In the section for Miscellaneous Complaints, the tenant also checked the box indicating "[r]etaliatory action has been directed against me by my Housing Provider . . . for exercising [my] rights in violation of section 502 of the Rental Housing Emergency Act of 1985." In the comment area for Miscellaneous Complaints, he wrote, "and now [the landlord has] increased my rent from $879 to $1050," and alleged that the rent increase was in retaliation for the tenant's complaints about the condition of his apartment and discriminated against him on the basis of his French African race and ethnicity. In the "Additional Space" section, the tenant complained that his rent was "too high," that it was "improper," "ridiculous," and "a hostile judgment." He reiterated his claim that the rent increase was retaliatory and discriminatory, and that it was simply a means to force his eviction. Finally, in the "Services and/or Facilities" section, he complained that services had been either "permanently eliminated" or "substantially reduced" because he was without heat for two days in December 2001, his windows were broken, his wall paint was peeling, the radiator was loud, and the bathroom sink was broken.
In sum, the substance of the tenant's stated reasons for objecting to the rent increase were that it was (1) in retaliation for complaining about the poor condition of the apartment; (2) motivated by racial and ethnic discrimination; and (3) unjustifiable, given the poor condition of the apartment. Important for this appeal, the tenant did not check the box provided on the form for claiming that "[t]he rent increase was larger than the amount of increase which was allowed by any applicable provision of the Rental Housing Emergency Act of 1985," i.e., higher than the rent ceiling, nor did he check the box claiming that "[a] proper . . . notice of rent increase was not provided" to him by the landlord. Nowhere in the petition did the tenant specifically claim that the rent increase violated the rent control law or that he did not have adequate notice of the increase and the reasons for it.*fn4
An examiner of the Office of Adjudication of the Department of Consumer and Regulatory Affairs held a hearing on July 16, 2002, where the tenant appeared pro se and the landlord appeared with counsel. Consistent with the RACD form petition filed by the tenant, the examiner stated that the issues raised by the tenant's petition were whether the rent ceiling was too high given the poor quality of the facilities, and whether the rent increase was impermissibly retaliatory. In his opening statement, the tenant reiterated his retaliation and discrimination claims, stating that the landlord increased his rent every six months, while he increased the rent for other tenants only annually. He did not claim that his notice of rent increase was deficient, or that the increase was in excess of that authorized by statute. In his case-in-chief, the tenant reiterated the majority of his opening statement and petition. He did not call any witnesses or introduce any documents into evidence. On cross-examination by landlord's counsel, the tenant admitted that many of the problems of which he complained had long since been remedied, prior to the filing of his petition. He denied, however, that the settlement agreement reached in an eviction proceeding required him to pay rent increases. See supra note 3.
In his opening statement, the landlord sought dismissal of the discrimination claim for lack of jurisdiction. Next, the landlord moved to dismiss any challenge to the rent increase on the basis that it was semiannual, because the law permits rent increases within 180 days of each other. The landlord then moved to dismiss the remainder of the tenant's petition on grounds that the settlement agreement to stay the eviction that had been ordered by Superior Court required the tenant to pay all rent increases. The examiner took the motion under advisement, but did not rule on it, and ultimately reached the merits of the petition. On direct examination by his attorney, the landlord stated that he understood that he had the right to increase the tenant's rent on a semi-annual basis, "within certain conditions of the law." He testified that he had brought a number of eviction proceedings against the tenant because he had been chronically late in paying rent and at times did not pay rent at all. On cross-examination by the tenant, the landlord explained that he increased the tenant's rent to offset the costs incurred in having to take legal action so often against the tenant to collect rent. The apartment building's engineer also testified that the heat had been off only once, when the boiler unexpectedly broke down, but that it was fixed within five to six hours.
Based on the hearing testimony, the examiner issued a written Decision and Order on September 23, 2002. On the claims that the tenant raised in his petition, the examiner found mostly for the landlord. The examiner found no factual basis for the tenant's retaliation claim, and held that the RACD Rent Administrator had no jurisdiction to hear his discrimination claim. The examiner found no evidence that the rent ceiling had been unduly increased. The examiner also held that it was lawful for the landlord to impose a rent increase "as long as 180 days have elapsed from the previous rent increase." The examiner did find, however, that there had been no heat in the apartment building for two days in December 2001, as the tenant had claimed, and concluded that this "reduction was substantial."*fn5 As a result, the examiner found that the tenant was entitled to a two-day rebate of rent and imposed a $1000 fine because the landlord had not given tenant this rebate as he was required to do by law.
The examiner went on to find, moreover, that the rent increase was illegal because the notice of the increase given to the tenant was defective. While acknowledging that the tenant "did not check the category under 'Complaints Involving Increase in Rent' relating to a rent increase larger than the amount of increase that is allowed" by statute, the examiner noted that in the comment sections of the petition form, the tenant "did complain about his rent being too high, and that such rent was increased by more than 20%." Thus, the examiner concluded, the landlord was on notice from the petition that the validity of the notice of rent increase was an issue, and it therefore would not be a violation of the landlord's due process rights to reach the issue of the legality of the rent increase. The examiner found that the landlord's notice of the rent increase was insufficient because it failed to state the authorization, or legal basis, for the rent ceiling under which the rent increase was effected, as required by statute.*fn6 See D.C. Code § 42-3502.08 (f) (2001) ("Any notice of an adjustment [i.e., a rent increase under a rent ceiling] . . . shall contain a statement of the current rent, the increased rent, and the utilities covered by the rent which justify the adjustment or other justification for the rent increase."); see also 14 DCMR 4205.4 (a)(4) (the landlord shall provide notice of a ...