Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings. (No. I-04-73477) (Hon. Janet James Mahon, Administrative Law Judge).
The opinion of the court was delivered by: Washington, Chief Judge
Before WASHINGTON, Chief Judge, and SCHWELB and RUIZ, Associate Judges.
Petitioner Gary Investment Corporation petitions this court to reverse the Office of Administrative Hearings' imposition of a $1,125 fine for failure to properly containerize solid waste in violation of 21 DCMR § 700.3. Petitioner argues that the existence of two separate regulations imposing fines for violation of the same act or omission is contrary to the Due Process requirements of notice, and is also void-for-vagueness.*fn1 Petitioner also argues that imposition of a $1,125 fine on the basis of strict liability is improper. We disagree and affirm.
Petitioner Gary Investment Corporation is the owner of a twelve-unit residential apartment building in the District of Columbia. On January 30, 2004, Norris Goins, an inspector for the District of Columbia Department of Health (DOH), issued a notice of infraction to Petitioner for "failure to properly containerize solid waste" in violation of 21 DCMR § 700.3. This was petitioner's first violation for failing to containerize solid waste. At the time of the violation, D.C. regulations contained two different schedules of fines for a commercial violation of 21 DCMR § 700.3. One schedule, 24 DCMR § 1380.2, provided a maximum fine of seventy-five dollars for the first offense. The second, 16 DCMR § 3216.1, provided a maximum fine of $1,300 for a first violation.*fn2 Petitioner was fined $1,300 pursuant to 16 DCMR § 3216.1.
Petitioner appealed and requested a hearing, which was held on April 7, 2004. At the hearing, Inspector Goins testified that at 1:15 p.m. on Friday, January 30, 2004, he took six photographs of Petitioner's property showing uncontainerized solid waste near and around the dumpster. The photographs were admitted without objection.
The property manager, Mr. Afable, testified that trash is picked up every Monday, Wednesday, and Friday by the Goode Trash Company, and that the Goode Trash Company collected the garbage on the day in question. Mr. Afable also testified that he was present at the property on the day of the violation at approximately the same time as Inspector Goins. Mr. Afable personally observed the uncontainerized waste documented in Inspector Goins' photographs and informed the part-time resident caretaker of the situation. The caretaker promptly and properly containerized the mislaid trash that same day.
At the hearing, despite finding that Petitioner made good faith efforts to comply with District regulations, the Administrative Law Judge (ALJ) found that Petitioner violated 21 DCMR § 700.3 on the basis of "strict liability." Taking into account Petitioner's history of compliance with D.C. health regulations, the ALJ reduced the ticket from the proposed $1,300 to $1,125.
Petitioner's argument that its Due Process right to notice was violated by the dual schedules for civil fines for violations of the same act is meritless. "[T]he availability of two different [criminal] penalties . . . in no way violates the notice requirement of the Due Process Clause." Gonzales v. United States, 498 A.2d 1172, 1177 (D.C. 1985). While "'vague sentencing provisions may pose constitutional questions[,]' where sentencing provisions at issue 'unambiguously specify the activity proscribed and the penalties available upon conviction,' the fact that particular conduct may violate both statutes 'does not detract from the notice afforded by each.'" Id. (citing United States v. Batchelder, 442 U.S. 114, 123 (1979)). Two different statutes or regulations that provide alternate punishment for the same violative act creates no more uncertainty than a "single statute [or regulation] authorizing various alternative punishments." Id.; accord Caldwell v. United States, 595 A.2d 961, 965 (D.C. 1991) ("When two statutes allow different penalties for the same act, the prosecutor has discretion in selecting which of the two statutes to apply . . . .") (citing Evans v. United States, 417 A.2d 963, 965 (D.C. 1980)).*fn3
Petitioner was on notice, constructive if not actual, of the existence of both schedules of fines and the underlying act that triggers their imposition. The existence of an alternate penalty scheme does not vitiate ...