March 23, 2006
GARY INVESTMENT CORPORATION, PETITIONER,
DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH, RESPONDENT.
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
Argued January 5, 2006
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 the notice that a violator may be subject to either fine.
Petitioner's argument that dual penalty provisions are impermissibly vague also fails. The "void-for-vagueness" doctrine requires only that statutes and regulations be sufficiently definite so that ordinary people can understand what conduct is prohibited. Kolender v. Lawson, 461 U.S. 352, 357 (1983) (emphasis added); see also McNeely v. United States, 874 A.2d 371, 381-82 (D.C. 2005). "Sufficient definiteness" is an elastic concept. McNeely, supra, 874 A.2d at 382. Where criminal penalties are at issue, the constitutional requirements of clarity mandate a strict application of the vagueness test. Id. Where civil penalties are at issue, such as here, however, the courts show more tolerance in finding clarity in the statute or regulation. See Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982). The greater tolerance stems from the fact that civil penalties are relatively less severe than criminal ones. Id. Whatever the level of scrutiny requires, a statute or regulation will not be void-for-vagueness if it requires a person's conduct to conform to comprehensible standards. McNeely, supra, 874 A.2d at 382. A law is only unconstitutionally vague if "no standard of conduct is specified at all." Id. (internal quotation marks omitted) (quoting Tuck v. United States, 467 A.2d 727, 731 (D.C. 1983)); see also Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971).
21 DCMR § 700.3 unambiguously provides that "all solid wastes shall be stored and containerized for collection in a manner that will not provide food, harborage, or breeding places for insects or rodents, or create a nuisance or fire hazard." This regulation is sufficiently clear to put an ordinary person on notice of what is and is not permitted in the District. Furthermore, Mr. Afable, the property manager, testified that he had actual knowledge of the regulation. The void-for-vagueness doctrine is not triggered by the dual penalty provisions because the proscribed conduct -- failing to containerize solid waste -- is clearly described.
Petitioner's final argument is that strict liability is inappropriate when civil fines of $1,000 or more are involved. Specifically, Petitioner argues that when fines are not modest in amount the government cannot impose civil liability on the basis of strict liability, but must instead first establish some form of scienter.*fn4 This position is without support. There is no constitutional bar to strict liability regulatory offenses. Morissette v. United States, 342 U.S. 246, 250-60 (1952). Scienter is eliminated as a requirement for certain regulatory offenses because "whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity." Id. at 256.
"[C]ivil fines may lawfully penalize regulatory infractions on the basis of strict liability, particularly if the fines are modest." Bruno v. District of Columbia Bd. of Appeals & Review, 665 A.2d 202, 204 (D.C. 1995) (upholding the imposition of a fifty dollar fine, based on strict liability, for a violation of the same regulation at issue in this case). The phrase, "particularly if the fines are modest," id., is not dispositive to the holding in Bruno, and is but a mere comment on the unique facts of that particular case. Bruno does not hold that had the fine been greater this court would have required a showing of scienter before imposing liability. In other words,our decision in Bruno does not stand for the proposition that strict liability is constitutional only where the fines are modest in amount. We are not aware of any authority, in our jurisdiction or others, that holds that the constitutionality of a strict liability statute depends on the amount of the fine imposed. Based on a review of cases, including criminal ones allowing the imposition of $10,000 fines on the basis of strict liability, we cannot hold that the civil fine imposed on the basis of strict liability in the instant case was unconstitutional. See United States v. Freed, 401 U.S. 601, 607-10 (1971) (affirming the constitutionality of a strict liability offense that subjected defendant to fines of up to $10,000 and/or imprisonment up to ten years); United States v. Dotterweich, 320 U.S. 277, 279-85 (1943) (upholding the constitutionality of a strict liability crime that subjected defendant to a misdemeanor offense calling for a fine of $1,000 and/or imprisonment up to one year). Strict liability is not improper and due process is not offended by a $1,300 fine for failing to containerize solid waste.
Furthermore, the fine imposed on property owners for failing to containerize solid waste is not a set, static amount. Property owners are free to present, and the ALJ free to consider at the close of evidence, mitigating factors that may reduce the imposed fine.*fn5 In certain circumstances, mitigating factors may substantially reduce the fine to levels that even Petitioner would find modest. Under this system, however, the amount of the fine would not be known until the conclusion of the hearing. Thus, Petitioner's suggestion of predicating an element of liability -- scienter -- on a factor not known until the conclusion of the hearing is an unworkable proposition that is inconsistent with our jurisdiction's general jurisprudence in civil cases.
For the foregoing reasons, the judgment of the Office of Administrative Hearings is Affirmed.