THOMAS K. STEPHENSON, PETITIONER,
DISTRICT OF COLUMBIA DEPARTMENT OF PUBLIC WORKS, RESPONDENT
Submitted June 12, 2014
On Petition for Review from an Order of the Office of Administrative Hearings. (DPWK-505545-12).
Thomas K. Stephenson, Pro se.
Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Gregory M. Cumming, Assistant Attorney General, were on the brief for respondent.
Before BECKWITH and EASTERLY, Associate Judges, and NEBEKER, Senior Judge.
Beckwith, Associate Judge :
The District of Columbia Department of Public Works (DPW) issued petitioner Thomas K. Stephenson a Notice of Violation (NOV) for violating 21 DCMR § 700.3 (1995), which requires 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 nuisance or fire hazard." After Mr. Stephenson failed to respond during the required period, an administrative law judge (ALJ) from the Office of Administrative Hearings (OAH) found Mr. Stephenson liable for the charge contained in the NOV and imposed an additional penalty for being in default. The ALJ denied Mr. Stephenson's motion for reconsideration, finding that Mr. Stephenson had failed to make out any of the grounds for reconsideration provided in 1 DCMR § 2828.5 (2011). In particular, the ALJ applied 1 DCMR § 2828.5 (b), pursuant to which reconsideration can be granted only where the party that " did not file a required answer to a Notice of Violation . . . has a good reason for not doing so, and states an
adequate claim or defense." We reverse and remand for a hearing.
On February 28, 2012, a DPW inspector observed improper storage of solid waste and signs of a rat infestation on Mr. Stephenson's property. On April 12, 2012, the government mailed an NOV to Mr. Stephenson by first class mail, return receipt requested. The letter was returned as undeliverable. Following the return of the certified mailing, the DPW posted the NOV on the front door of Mr. Stephenson's property, providing him with an additional fourteen days in which to respond. Mr. Stephenson again failed to respond to the NOV. On September 12, 2012, the ALJ issued his final order, which held Mr. Stephenson liable for the violation. The order imposed a fine of $1,000, and added an additional fine of $1,000 for the failure to respond. See D.C. Code § 8-807 (c)(1) (2001) (authorizing OAH to impose a " penalty equal to the amount of the civil fine" for the failure to respond to an NOV). This time Mr. Stephenson responded, writing a letter dated September 21, 2012, which the ALJ construed as a motion for reconsideration under 1 DCMR § 2828.5.
Mr. Stephenson's letter advanced three main arguments. First, Mr. Stephenson claimed that he was not responsible for the violation because the trash had been illegally dumped on his property, without his knowledge or consent, in June of 2011. Second, Mr. Stephenson claimed that Investigator Anita Chavis of the Environmental Crimes Division had visited his property and instructed him not to remove the trash until the Environmental Crimes Division had completed its investigation. Third, Mr. Stephenson claimed he did not have notice of the NOV until he received the final order. Mr. Stephenson claimed not to have known about the certified mailing and, while he acknowledged that a tenant had told him about some papers posted on his apartment door, said he was unable to locate the documents.
This court reviews OAH decisions to determine if they are " [a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." D.C. Code § 2-510 (a)(3)(A) (2001). The 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 flow rationally from its findings of fact." District of Columbia Dep't of Emp't Servs v. Vilche, 934 ...