On Petition for Review of a Final Order of the District of Columbia Department of Public Works. OAH-PWV105929-05.
The opinion of the court was delivered by: Schwelb, Senior Judge
Before FARRELL, Associate Judge, Retired,*fn1 and NEBEKER and SCHWELB, Senior Judges.
The District of Columbia Department of Public Works (DPW) instituted this proceeding against Angela M. Washington under the Litter Control Act, D.C. Code §§ 8-801 et seq. (2001). The DPW alleged that tall grass and weeds on a lot owned by Ms. Washington constituted a "nuisance" and a violation of 24 DCMR § 1002.1 (1996), which prohibits, inter alia, the deposit of "weeds," "vegetable matter," or "any other solid waste refuse" on a vacant lot in the District of Columbia. The DPW requested that Ms. Washington be fined $300.
Following an evidentiary hearing, an Administrative Law Judge (ALJ) of the Office of Administrative Hearings (OAH) found that "there was no solid waste on or around the lot as charged in the [citation]." On the contrary, according to the ALJ, "the evidence showed only that naturally occurring and planted vegetation in the form of dried wild flowers was on the vacant lot." Accordingly, the ALJ concluded that there was no violation of Section 1002.1, and she dismissed the substantive charge against Ms. Washington.
That, in most instances, would be that, but the ALJ stated that D.C. Code §§ 8-804 (f) and -807 (c)(1) required that a penalty "equal to the proposed fine" be imposed if a respondent fails to answer a citation within the statutory deadline. That deadline is fourteen calendar days, see D.C. Code § 8-804 (f), but five additional days are added if the citation is served by mail. See 1 DCMR § 2811.5 (2004). The DPW claimed, and the ALJ found, that the citation was served by certified mail and by posting on July 28, 2005; that Ms. Washington's response was due no later than August 16, 2005; and that the response was therefore ten days out of time. The ALJ rejected Ms. Washington's assertion that the date of service was August 11, 2005, the day on which she picked up the notice. The ALJ wrote that Ms. Washington's explanation was not "compelling enough to warrant a suspension or reduction of the penalty," and she imposed a late penalty of $300. Ms. Washington asserts, and the District does not deny, that a lien was subsequently placed on the property in the amount of $300.
Ms. Washington has filed a petition for review in this court. She contends (1) that the DPW failed to prove its allegation that her response was untimely; (2) that she was denied the opportunity to present evidence with respect to the issue of timeliness; and (3) that the statute, reasonably construed, does not authorize a civil fine for a late response where the underlying substantive violation has not been established.*fn2 We agree with Ms. Washington's third contention, and we therefore need not and do not reach her other claims.
The statutory scheme on which the civil fine in this case was based is somewhat complex. The "lateness" penalty is addressed in three separate provisions: Sections 8-804, 8-805, and 8-807. To discern the legislative intent, we must consider all three of these sections together. Section 8-804 is titled "Response to notice of violation." Section 8-804 (a) provides that a person to whom a notice of violation has been issued may
(2) admit the violation, but with an explanation, or
Section 8-804 (e) requires that "[a] person admitting the violation with explanation or a person denying the violation shall schedule a hearing within 14 calendar days after the date the Mayor issued the notice." Section 8-804 (f) then provides as follows:
If a person to whom a notice of violation has been issued fails to respond to the notice within 14 calendar days after the date the notice was issued, then the person shall be liable for a penalty equal to the civil fine plus the costs of abating the nuisance or of preventing ...