McCULLOCH v. RENTAL HOUSING COM'N, 89-1341

• Decision Date: 09 January 1991
• Docket Number: No. 89-1341,89-1341
• Citation: 584 A.2d 1244
• Parties: Robert F. McCULLOCH, Petitioner, v. DISTRICT OF COLUMBIA RENTAL HOUSING COMMISSION, Respondent.
• Court: D.C. Court of Appeals

584 A.2d 1244

Robert F. McCULLOCH, Petitioner, v. DISTRICT OF COLUMBIA RENTAL HOUSINGCOMMISSION, Respondent.

No. 89-1341.

District of Columbia Court of Appeals.

Argued November 20, 1990.

Decided January 9, 1991.

Appeal from the Rental Housing Commission.

Robert F. McCulloch pro se.

Lutz Alexander Prager, Asst. Deputy Corp. Counsel, Herbert O. Reid, Sr., Corp. Counsel at the time the Memorandum in Lieu of Brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, filed aMemorandum in Lieu of Brief for respondent District of Columbia Rental Housing Com'n.

Karen A. Newton, Neighborhood Legal Services Program, with whom Michael O. DeMouy, Neighborhood Legal Services Program, was on the brief, for intervenors/tenants.

Before ROGERS, Chief Judge, and FERREN and FARRELL, Associate Judges.

FERREN, Associate Judge:

In this case in its second decade, with its third appearance in this court,¹ we must review the Rental Housing Commission's decision holding Robert McCulloch liable for treble damages for raising rent, based on a hardship petition, when the rental unit was not in substantial compliance with the housing code. Finding no error, we affirm.

I.

On March 18, 1980, McCulloch filed a hardship petition² for authority to increase the monthly rent of his tenants at 1428-30 A Street, S.E., Mr. & Mrs. William Hawkins, Jr., from $66.50 to $206.00. In May 1980, as part of the petition process, an official inspection resulted in a housing violation notice, # 871562, for noncompliance with code provisions. On August 19, 1980, the Rent Administrator granted McCulloch a provisional rent increase which McCulloch could not implement until he cured all code violations and filed an appropriate abatement notice with the Rental Accommodations Office. On August 28, 1980, McCulloch notified the tenants of a rent increase effective October 1, 1980. He filed the required abatement notice on September 30. On October 1, 1980, a housing inspector found additional code violations and served notice # 764210 on McCulloch to correct them. (The October 1 violations are not a focus of this dispute.)

On February 13, 1981, the tenants asked the Rental Housing Commission for a show cause order, alleging that McCulloch had implemented the rent increase while substantial housing code violations persisted. In particular, the tenants stated that although, according to McCulloch's abatement report, forty violations specified in notice # 871562 had been abated, several "substantial" violations remained and, therefore, no rent increase could be implemented. Specifically, the tenants complained about three violations enumerated in notice # 871562:

39. Cooking Room — Window does not fit reasonably well in frame.

40. Cooking Room — Window sash has defective part(s).

43. Rear Porch Roof has leak(s).

At a show cause hearing before a hearing examiner from the Rental Accommodations Office on March 17, 1981 (at which the tenants were denied full participation), Inspector/Supervisor Williams testified that all housing code violations had been abated before December 9, 1980. He further testified that, although the three violations cited by the tenants remained after McCulloch had filed his September 30 abatement notice, those violations were minor and did not impair the health, safety, or welfare of the tenants. On August 28, 1981, the hearing examiner dismissed the show cause order and ruled on behalf of the Rent Administrator that McCulloch had complied with the August 19, 1980 order authorizing the hardship increase. The examiner premised her decision on the finding that McCulloch had abated "all substantial violations" (emphasis in original), relying on Williams' confirmation that the three violations existingafter McCulloch had filed his abatement notice were minor and that, in any event, all violations, "substantial and minor," had been abated by December 9, 1980.

The tenants appealed the Rent Administrator's ruling to the Rental Housing Commission and also requested a stay from the Commission. After a hearing on April 1, 1982, the Commission ruled on December 3, 1982 that the examiner had not abused her discretion in limiting the tenants' participation at the March 17, 1981 hearing and that McCulloch had properly implemented the hardship increase because the statute required only "substantial compliance" with the housing regulations.

The tenants then appealed to this court. On October 17, 1983, in a brief per curiam order, we concluded that "1) petitioners-tenants were erroneously denied the right to be heard as parties at the show cause hearing and 2) no record of that hearing is available." We therefore reversed and remanded the Commission's decision, ordering the hearing reopened for "evidence on the existence and abatement of any housing code violations" relevant to McCulloch's hardship petition.³ After the hearing on remand, the hearing examiner ruled on behalf of the Rent Administrator on April 23, 1984 that the three violations from notice # 871562 unabated as of September 30, 1980, as well as those listed in notice # 764210, were not "substantial housing violations" and that the rental unit had been in "substantial compliance" with the housing regulations when the rent increase was implemented on October 1, 1980.

The tenants appealed, once again, to the Commission. After a hearing in October 1984, the Commission issued a decision on March 25, 1985 reversing the Rent Administrator's ruling. The Commission held, as a matter of law, that the three violations cited by the tenants from notice # 871562, unabated as of September 30, 1980, "have been regarded as substantial through the Rental Housing Act[s] of 1977 and 1980." The Commission remanded the case to the Rent Administrator "for assessment of the refund and/or rollback due the tenants."⁴

For a third time a hearing examiner heard this case. On October 29, 1987, the examiner ordered McCulloch to pay the tenants treble damages totalling $3,166. McCulloch appealed. On October 25, 1989, the Rental Housing Commission affirmed that award. McCulloch now appeals both the Commission's March 25, 1985 order that the specified housing code violations were "substantial" and the October 25, 1989 decision affirming the award of treble damages.

II.

McCulloch initially questions his liability for damages attributable to non-compliance with the housing regulations after September 30, 1980, during the period he implemented the hardship rental increase. Before evaluating this argument, we outline the statutory scheme governing this appeal, as well as our standard of review.

A.

Under the Rental Housing Act of 1977,⁵ a landlord was not entitled to a hardship rent increase unless the rental unit was in "substantial compliance" with the housing code. See D.C.Code § 45-1689(a)(1) (Supp. VII 1980) (expired 1981). Substantial compliance was defined as the absence of substantial code violations. See id. § 45-1689(b)(1). "Substantial violation" was defined as:

the presence of any housing condition, the existence of which, violates the District of Columbia Housing Regulations, or any other statute or regulation relative to the condition of residential premises and may endanger or materially impairpair the health and safety of any tenant or person occupying the property.

D.C.Code § 45-1681(bb) (Supp. VII 1980) (expired 1981).

Similarly, the Rental Housing Act of 1980⁶ also forbade hardship rent increases unless the rental unit was in substantial compliance with the housing code, as evidenced by the absence of substantial violations. See D.C.Code §§ 45-1519(a)(1)(A), -(a)(2), -(b)(1) (1981) (expired 1985). The 1980 Act defined "substantial violation" in a manner similar to the definition under the 1977 Act. See D.C.Code § 45-1503(29) (1981) (expired 1985).⁷ Under both the 1977 and 1980 Acts, therefore, a landlord could not implement a hardship increase if the rental unit had substantial violations of the housing code.

In 1983, the Rental Housing Commission issued regulations under the 1980 Act. 14 DCMR § 3000 et seq. (1985). These regulations provided that a hardship petition could be granted only if the housing unit was in "substantial compliance" with the housing code. 14 DCMR § 3504.1 (1985).⁸ The regulations defined substantial compliance as "the absence of any substantial housing violations" and, for the first time, enumerated the kinds of violations that would be disqualifying, such as ill-fitting windows.⁹

The 1977 and 1980 Acts guide this case because the relevant time period was from March 18, 1980 (when the landlord filed the hardship petition) until September 30, 1982 (when the tenants moved from the disputed apartment). The 1977 Act was in force until April 30, 1981; the 1980 Act took effect on May 1, 1981 and expired in 1985.¹⁰ Thus, the period in dispute is covered by both Acts. The Rental Housing Commission, in its March 25, 1985 ruling, did not distinguish between the 1977 and 1980 Acts, apparently because there is no salient difference between them for purposes of evaluating the impact of code violations on a hardship petition. The parties do not suggest any relevant differences between these Acts for purposes of this appeal, and we make no judgment concerning any possible differences, however subtle, between the Acts in the present context.

Before applying the regulatory scheme to this dispute we note that our review, necessarily, is deferential, see Boer v. District of Columbia Rental Hous. Comm'n, 564 A.2d 54, 57-58 (D.C. 1989); we must defer to an agency's interpretation of the statute it administers, as long as that interpretation is reasonable and not plainly wrong or inconsistent with its legislative purpose. See Hija Lee Yu v. District of Columbia Rental Hous. Comm'n, 505 A.2d 1310, 1312 (D.C. 1986); Remin v. District of Columbia Rental Hous.Comm'n, 471 A.2d 275, 279 (D.C. 1984). Similarly, we defer to the agency's interpretation of its own rules absent a showing...