Petition for Review of an Order of the Office of Administrative Hearings (PWVK-161105-09) (Hon. Claudia A. Crichlow, Administrative Law Judge)
The opinion of the court was delivered by: Ferren, Senior Judge
Before EASTERLY and MCLEESE, Associate Judges,and FERREN, Senior Judge.
Petitioner seeks review of a decision by the Office of Administrative Hearings (OAH) imposing fines totaling $5,000 for four violations of the Litter Control Administration Act (the Act)*fn1 and applicable regulations, plus mandatory penalties totaling $2,500 for failure to file timely responses to notices of the first two violations. Petitioner alleges a number of procedural defects and contends that the fines and penalties are not supported by substantial evidence of record. Because one of the fines is excessive, and, further, because it is unclear whether mandatory penalties are warranted (or, if they are, what the total should be), we reverse in part and remand the case for further proceedings.
On April 10, 2009, a Department of Public Works (DPW) inspector served
petitioner with two notices*fn2 alleging violations on
April 6, 2009, of regulations governing the storage and disposal of
solid wastes at 2209 M Street, N.E.*fn3 The first
notice, K161105, specified a violation of "21 DCMR 700.3,"*fn4
designating it as a "same violation within 60 days."*fn5 The notice
described the violation as "[u]ncontainerized solid waste providing
food and/or breeding places for rodents or causing a potential fire
hazard." It assessed a $2,000 civil fine (because of two identical
violations within a sixty-day time frame)*fn6 and
required abatement within 72 hours. The notice advised petitioner to
"[p]rovide a licensed trash collection on a regular basis to [his]
tenants. Keep [his] property clean at all times. Bait for rodents.
Don't feed rodents." In addition, the notice instructed petitioner to
"SIGN and RETURN this form WITHIN 14 DAYS of the date of service" and,
in doing so, to "ADMIT, ADMIT WITH EXPLANATION[,] or DENY" the charged
The second notice served the same day, K161106, was on the same form as notice K161105 but charged a violation of "21 DCMR 705.1"*fn8 and assessed a $500 fine. The notice faulted petitioner for having "[n]o licensed solid waste collector" and also indicated that it was a "same violation within 60 days."*fn9
On April 27, 2009, the same inspector served petitioner with notices for two more violations on the same premises, committed on April 17, 2009.*fn10 Notice K161638 was similar to the first notice of a solid waste violation (K161105) and cited petitioner for another violation of "21 DCMR 700.3." It also assessed a $2,000 fine, classified as a "same violation within 60 days."*fn11 Notice K161639, in turn, was similar to the first notice of the failure to have a licensed solid waste collector (K161106) and, again, assessed a $500 fine for violating "21 DCMR 705.1." It was designated as another "same violation within 60 days."*fn12
Petitioner signed answers to all four notices on May 2 (received by OAH on May 5), in each case checking the box "ADMIT WITH EXPLANATION (Hearing by Mail)."He explained in writing that the apartment building was undergoing renovations and had been "continuously unoccupied since July 1998," without need of a licensed trash collector. Petitioner acknowledged that the trash around the building contained construction materials, but he denied that it contained food wastes "hence, no food for rodents." Petitioner assured OAH that once the building was ready for occupancy, a licensed trash collector would be retained. According to each notice, by pleading and signing "Admit with Explanation," petitioner was admitting liability and seeking only a "reduction or suspension of the fine" by whatever "written explanation, affidavits, or other evidence explaining the circumstances surrounding the violation" he wished to submit.
The notices and responses were forwarded directly to an administrative law judge (ALJ),*fn13 who signed an order on December 17, 2009, holding petitioner liable for the noticed violations and ordering him to pay fines and penalties totaling $7,500. The ALJ found that petitioner had admitted that:
uncontainerized waste was stored on the Property for collection[,] including discarded appliances, numerous large plastic bags on the ground and on top of solid waste containers[,] and several white plastic bottles and other containers strewn over the Property. The solid waste provided food, harborage, or breeding places for insects or rodents, and created a nuisance or fire hazard.
She also noted that petitioner had admitted that the property "did not have a licensed trash collection service." The ALJ concluded that petitioner's admissions satisfactorily established that he had committed the violations.*fn14 The $7,500 in fines and penalties included "$2,000 in K161105, $500 in K161106, $2,000 in K161638 and $500 in K161639," as well as "a statutory penalty of $2,000 in K161105 and $500 in K161106" for petitioner's failure to file timely answers to the first (April 10) notices.
On January 22, 2010, petitioner timely filed both a petition for this court's review of the ALJ's order*fn15 and a motion for a stay of that order by the ALJ. On February 24, the ALJ denied the stay motion. On March 30, petitioner filed a motion for reconsideration of that denial -- a motion which had not been decided at the time the record was transmitted to this court.*fn16
"'This court must affirm an OAH decision when (1) OAH made findings of fact on each materially contested issue of fact, (2) substantial evidence supports each finding, and (3) OAH's conclusions ...