DISTRICT OF COLUMBIA DEPARTMENT OF THE ENVIRONMENT, PETITIONER,
C & M FRUIT & PRODUCE CO., INC., RESPONDENT
Argued October 16, 2014
On Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings. (DDOE-A500031-12). (Hon. Audrey J. Jenkins, Administrative Law Judge).
Carl J. Schifferle, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia at the time the briefs were filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for petitioner.
David A. Greenbaum, with whom Craig M. Schwartz was on the brief, for respondent.
Before BECKWITH and MCLEESE, Associate Judges, and KING, Senior Judge.
Beckwith, Associate Judge
The District of Columbia Department of the Environment (DDOE) petitions for review of an order finding respondent C & M Fruit and Produce Co., Inc. (C& M) not liable for a civil infraction. DDOE argues that the Administrative Law Judge (ALJ) erred by " sua sponte amend[ing] C& M's answer from 'admit with explanation' to 'deny'" and by finding C& M not liable without giving DDOE an opportunity to present its case. We conclude that the pertinent regulation and statute governing administrative review of civil infractions--specifically, 1 DCMR § 2804.11 (2014) and D.C. Code § 2-1802.03 (c) (2012 Repl.)--not only permitted but required the ALJ to find C& M not liable despite its plea of " admit with explanation" where the ALJ determined that the evidence did not establish an infraction and where the record shows that DDOE received notice and an opportunity to present its case. We affirm the ALJ's order.
On August 9, 2012, the D.C. Department of the Environment cited C & M Fruit & Produce Co. for idling a motor vehicle engine longer than three minutes in violation of 20 DCMR § 900.1 (2010). The vehicle was a refrigerated truck designed to transport food in compliance with federal regulations. C& M uses two types of refrigerated trucks: one in which the engine must be running for the refrigeration unit to run and one in which the refrigeration unit runs independently of the truck. This particular truck had an independent refrigeration unit, so the engine did not
need to idle to keep the refrigerator running.
C& M answered the infraction with a plea of " deny,"  stating in writing that " it was not the enging [sic] that was running, it was the refrigeration unit that was running. . . . It is very understandable that someone would mistake the sound of the refrigeration unit running as the truck engine. However the truck was not idling[; ] it was turned off." C& M's chief executive officer Michael Davis represented his company at a hearing before an ALJ. Although C& M had already pled " deny," the ALJ began by explaining the three plea options to Mr. Davis and asking him whether he would like to change his plea. Mr. Davis responded that he would change his plea to " admit with an explanation, I guess, that option." Mr. Davis testified that he was not present when DDOE issued its citation and had " no way of knowing" if the truck was running, but that the driver " ha[d] sworn" that he removed the keys from the ignition and that the company had a policy requiring drivers to take the keys with them when leaving that type of truck. He also said it is difficult to tell from noise alone " when the truck is running and when it's just the [refrigeration] unit running." But Mr. Davis reiterated that he did not know whether the truck was idling, and closed by asking the ALJ " for a little bit of leniency and understanding."
Neil Williams, the inspector who issued the citation, represented DDOE at the hearing. He testified that he had written " hundreds of citations, undeniably, hundreds of citations where [he had] to observe the [refrigeration unit] to distinguish whether it's the [refrigerator] or the engine" that was running. In this case, he said, he observed the engine running without a driver in the truck. Mr. Williams then " commend[ed] the CEO for . . . admitting with an explanation, since he was not there ...