If a DC property owner is cited for a housing-code violation, can the owner appeal straight to the Board of Appeals and Review?

Plain-English summary

Before 1985, DC enforced its housing code mostly through criminal prosecutions. That was slow, expensive, and produced few results. The Council enacted the Civil Infractions Act of 1985 to switch most housing code violations to civil enforcement: an inspector writes a citation, you either pay a pre-set collateral fine or request a hearing within 15 days, a DCRA hearing examiner adjudicates, and the hearing examiner's order becomes the final decision of DCRA. From there, an aggrieved party can appeal to the Board of Appeals and Review (BAR). The whole point was a uniform, fast administrative system.

The 1985 Act made some technical amendments to the existing housing regulations. Among them, § 489(a) amended Housing Regulations § 1302.1 (now codified at 14 DCMR § 107.1) to read that "any owner, licensee, or operator of any premises ... adversely affected by a determination made pursuant to these regulations or titles I-III of the [Civil Infractions Act] may file an appeal in writing with the Board of Appeals and Review." Some property owners spotted that text and argued it gave them a direct right of appeal to BAR, skipping the DCRA hearing examiner.

DCRA Director Donald Murray asked Corporation Counsel Herbert Reid whether the direct-appeal reading was correct. Reid said no.

Reading § 489(a) in isolation might suggest a direct appeal. But reading it together with § 489(b)(1) (which says "Adjudication of any infraction of this Code shall be pursuant to titles I-III" of the Civil Infractions Act), § 101 (uniform administrative adjudication purpose), § 301 (BAR's appellate jurisdiction is over "final orders issued by hearing examiners pursuant to this act"), and the Mayor's transmittal letter (which described the bill's purpose as routing housing-code complaints through hearing examiners), the answer is clear. § 489(a) does not give a direct-appeal shortcut. It refers to the limited class of DCRA determinations where there is no provision for administrative adjudication, like a variance under 14 DCMR § 109.

The opinion's administrative path was citation, hearing examiner, then BAR review of a final hearing-examiner order. It applied the exhaustion-of-remedies doctrine to reject a direct BAR appeal from a citation. It did not establish a later court-review path.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: How long do I have to request a hearing? A: The Mayor's transmittal letter quoted in the opinion described a proposed process under which a cited person could forfeit collateral or appear before a hearing examiner within 15 calendar days. The opinion did not analyze default orders or current deadlines.

Q: What does the hearing examiner do? A: Considers the citation, hears your defense and any evidence, and issues an order finding either a violation occurred or it did not. The order is the final decision of DCRA on the citation.

Q: How long do I have to appeal to BAR? A: The opinion quoted the Civil Infractions Act provision allowing BAR to hear timely appeals from final hearing-examiner orders. It did not specify an appeal period.

Q: What if I think the citation is just plain wrong? A: Tell the hearing examiner. Bring evidence. The hearing examiner can dismiss the citation if it is unfounded.

Q: Can I take it to court?
A: The opinion addressed the administrative route to BAR. It did not analyze judicial review after BAR.

Q: Does the opinion establish today's housing-code appeal route? A: No. It interpreted the Civil Infractions Act and Housing Regulations as they stood in 1990. It did not address later changes to the agencies or appeal procedures.

Background and statutory framework

Before 1985, DC's housing code violations were prosecuted criminally in DC Superior Court. The system was administratively heavy, prosecutorial resources were stretched thin, and code enforcement was uneven. Council Chairman David Clarke introduced Bill 6-187 at Mayor Marion Barry's request in 1985 to switch most housing code enforcement to civil administrative adjudication. The Mayor's transmittal letter identified housing code enforcement as one of the major problems the bill was designed to address.

The bill became the Civil Infractions Act of 1985 (D.C. Law 6-42, effective October 5, 1985, codified at D.C. Code § 6-2701 et seq.). § 101 (D.C. Code § 6-2701) declared the Act's purpose to be establishing "a uniform . . . system of administrative adjudication with respect to the infractions" for which civil sanctions could be imposed.

§ 301 (D.C. Code § 6-2721) defined the Board of Appeals and Review's appellate jurisdiction in civil infractions cases as jurisdiction to "entertain and determine appeals timely filed by persons aggrieved by final orders issued by hearing examiners pursuant to this act."

Section 489 of the Act made conforming amendments to the Housing Regulations. Subsection (a) amended Housing Regulations § 1302.1 (now 14 DCMR § 107.1). Subsection (b)(1) amended Housing Regulations § 2104 (now 14 DCMR § 102.4) to require: "Adjudication of any infraction of this Code shall be pursuant to titles I-III of the [Civil Infractions Act]."

The interpretive question came from § 489(a)'s text: "Any owner, licensee, or operator . . . adversely affected by a determination made pursuant to these regulations or titles I-III of the [Civil Infractions Act] may file an appeal in writing with the Board of Appeals and Review." Read literally, this seemed to give a direct appeal to BAR for any adverse housing-code determination, including a citation.

The Corporation Counsel resolved the ambiguity using:

1. The harmonious-whole canon. Under Matter of T.L.J., 413 A.2d 154, 158 (D.C. 1980), and United States v. Firestone Tire and Rubber Co., 455 F. Supp. 1072, 1079 (D.D.C. 1978), "whenever possible, a statute should be interpreted as a harmonious whole." Reading § 489(a) to allow direct BAR appeal would conflict with § 489(b)(1)'s mandatory adjudication-by-Civil-Infractions-Act language. Avoiding the conflict requires reading § 489(a)'s "determination made pursuant to these regulations" as the limited class of DCRA decisions outside the civil-infraction adjudication framework, like variance determinations under 14 DCMR § 109.

2. The exhaustion-of-remedies doctrine. Under Whitney Bank v. New Orleans Bank, 379 U.S. 411, 422 (1965), when Congress (or a legislature) has "enacted a specific statutory scheme for obtaining review. . . the doctrine of exhaustion of administrative remedies comes into play and requires that the statutory mode of review be adhered to notwithstanding the absence of an express statutory command of exclusiveness." DC adopted the same rule in Smith v. Murphy, 294 A.2d 357, 359 (D.C. 1972).

3. The legislative history. The Mayor's transmittal letter explicitly described the hearing-examiner process: "designated personnel to issue 'citations' to violators who must either forfeit a pre-determined collateral fine or appear before a hearing examiner within fifteen (15) calendar days. After consideration of the evidence and arguments, the hearing examiner would determine whether or not a violation has occurred and enter an appropriate order. The order is considered the 'final decision' of the Director, DCRA."

The conclusion: housing-code citations must go through the DCRA hearing examiner first. BAR has no jurisdiction over a direct appeal from a citation. The 14 DCMR § 107.1 language refers only to the limited class of DCRA non-citation determinations.

Citations and references

Statutes and regulations:

• Civil Infractions Act of 1985, D.C. Law 6-42, D.C. Code § 6-2701 et seq.
• Civil Infractions Act §§ 101 (D.C. Code § 6-2701), 301 (D.C. Code § 6-2721), 489
• 14 DCMR §§ 107.1 (housing regulations appeal), 102.4 (alternative civil sanctions), 109 (variance procedures), 1302.1 (housing regulations appeal)

Cases:

• Matter of T.L.J., 413 A.2d 154 (D.C. 1980), harmonious-whole canon
• United States v. Firestone Tire and Rubber Co., 455 F. Supp. 1072 (D.D.C. 1978), same
• Whitney Bank v. New Orleans Bank, 379 U.S. 411 (1965), specific statutory scheme triggers exhaustion
• Smith v. Murphy, 294 A.2d 357 (D.C. 1972), DC adoption of same exhaustion rule

License

This opinion is published by the Office of the Attorney General for the District of Columbia. Per the DC.gov terms of use, content is licensed under Creative Commons Attribution 3.0, which permits commercial use, redistribution, and modification with attribution.

Source

• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Housing-Regulations-Violation-Appeal.pdf

Original opinion text

,.
<&nn~ruttt~nt nf t4~ mtntrtrt nf illnlumhta OF:FICE OF THE CORPORATION COUNSEL DISTRICT BUILDING WASHINGTON.

D. C.

20004

IN REPLY REFER TO:

Iro:Im:lng
(90-87) (UD-S019)
May 31, 1990

OPINION OF THE CORPORATION COUNSEL
SUBJECT: Maya person who is cited for
violating the Housing Regulations appeal that citation directly to the Board of Appeals and Review?

Donald G. Murray
Director
Department of Consumer and Regulatory Affairs 614 H street. N.W. Suite 1120 Washington. D.C. 20001 Dear Mr. Murray: This is in response to your May 24. 1990 request for an opinion concerning whether a person who receives a Housing Regulations violation citation may appeal that citation directly to the Board of Appeals and Review ("BAR") under 14 DCMR § 107.1. For the following reasons. it is my opinion that 14 DCMR § 107.1 does not confer such a right. Title 14 DCMR § 107.1 is the DCMR codification of § 489(a) of the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985. effective October 5, 1985, D.C. Law 642, D.C. Code § 6-2701 et seq. (l989) ("Civil Infractions Act"). Section 489(a) amended the first sentence of § 1302.1 of the Housing Regulations to read as follows: Any owner, licensee, or operator of any premises subject to the provisions of these regulations adversely affected by a determination made pursuant to these regulations or titles I-III of the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985 may file an appeal in writing with the Board of Appeals and Review.

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Section 489(b)(1) of the Civil Infractions Act amended
§ 2104 of the Housing Regulations by adding the following language (codified at 14 DCMR § 102.4):

Civil fines, penalties, and fees may be imposed as alternative sanctions for any infraction of the provisions of this Code, or any rules or regulations issued under the authority of this Code, pursuant to titles I-III of the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985. Adjudication of any infraction of this Code shall be pursuant to titles I-III of the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985.
[Emphasis added.]
If § 489(a) were interpreted to confer upon a person cited for a violation of the Housing Regulations the right to bypass the hearing procedures established by the Civil Infractions Act and appeal that citation directly to the BAR, such an interpretation of § 489(a) would contradict the underscored language of
§ 489(b)(I).
Such an interpretation of § 489(a) should be avoided because it would be contrary to the principle of statutory interpretation that "whenever possible, a statute should be interpreted as a harmonious whole." Matter of T.L.J., 413 A.2d

154. 158 (D.C. 1980), quoting United states v. Firestone Tire
     and Rubber Co., 455 F. Supp. 1072, 1079 (D.D.C. 1978). See generally. 2A Sutherland, Statutory Construction § 46.05 (4th ed. 1984). Sections 489(a) and 489(b)(1) are in harmony if the phrase "determination made pursuant to these regulations" in
     § 489(a) is interpreted to refer to that limited class of Department of Consumer and Regulatory Affairs ("DCRA") final determinations in matters where there is not provision for administrative adjudication of the imposition of civil fines. penalties, and fees for violations of the Housing Regulations. An example of such a OCRA determination is a determination on a request for a variance from the strict application of the Housing Regulations. See 14 DCMR § 109. Moreover. the conclusion that § 489(a) of the Civil Infractions Act was not intended to give a person the right to appeal directly to the BAR from a Housing Regulations violation citation is strongly buttressed by other provisions of the Civil Infractions Act and by its legislative history. The language of § 489(a) is based on § 517 of Bill 6-187. the bill which became the Civil Infractions Act. Bill 6-187 was introduced by Council Chairman Clarke at the request of the Mayor. At page 2 of his transmittal letter, the Mayor stated that one of the major problems that Bill 6-187 was intended to address was the problem of "[hlousing code enforcement." The Mayor went on to state in his transmittal letter (at p. 2):

"

,
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As a partial solution, I am proposing adoption of this bill. If adopted. the act would authorize designated personnel to issue "citations" to violators who must either forfeit a pre-determined collateral fine or appear before a hearing examiner within fifteen (15) calendar days. After consideration of the evidence and arguments. the hearing examiner would determine whether or not a violation has occurred and enter an appropriate order. The order is considered the "final decision" of the Director, DCRA.
[Emphasis added.]
Further. as is stated in § 101 of the Civil Infractions Act. D.C. Code § 6-2701 (1989). one of the primary purposes of the Civil Infractions Act was to provide for "a uniform ... system of administrative adjudication with respect to the infractions" for which civil sanctions could be imposed. (Emphasis added.) Thus. an interpretation of § 489(a) that would give an alleged Housing Regulations violator the choice of either requesting a hearing before a DCRA hearing examiner or bypassing that remedy and appealing directly to the BAR would be at odds with the Council's pUrpose of establishing a "uniform" system of administrative adjudication of civil infractions. such as violations of the Housing Regulations. Most importantly. § 301 of the Civil Infractions Act. D.C. Code § 6-2721 (1989), provides that the civil infractions appeal jurisdiction of the BAR is jurisdiction to "entertain and determine appeals timely filed by persons aggrieved by final orders issued by hearing examiners pursuant to this act .... " (Emphasis added. ) Based on the foregoing, I am of the opinion that § 489(a) of the Civil Infractions Act, 14 DCMR § 107~1. can not reasonably be interpreted to confer upon a person cited for a violation of the Housing Regulations the right to appeal that citation directly to the BAR. Such person must first exhaust his right to a hearing before a DCRA hearing examiner pursuant to the Civil Infractions 1 Act. Stated otherwise, the BAR has no jurisdiction to entertain and determine an appeal taken directly from a citation for a violation of the Housing RegUlations. The BAR's review jurisdiction in this regard is limited to reviewing final orders of DCRA 1 Compare Whitney Bank v. New Orleans Bank. 379 U.S. 411. 422 (1965) (where Congress "has enacted a specific statuto~y scheme for obtaining review •... the doctrine of exhaustion of administrative remedies comes into play and requires that the statutory mode of review be adhered to notWithstanding the absence of an express statutory command of exclusiveness"). Accord: Smith v. Murphy, 294 A.2d 357, 359 (D.C. 1972).

..
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hearing examiners issued pursuant to the provisions of the Civil Infractions Act. Sincerely,

d~~~C

Herbert o. Reid, Sr.
Corporation Counsel, D.C.

cc:

Irena I. Karpinski, Esq.
Chairperson
Board of Appeals and Review