Smith v. D.C. Rental Accommodations Com'n, 13875.
| Decision Date | 09 January 1980 |
| Docket Number | No. 13875.,13875. |
| Parties | Kirk Callan SMITH, et ux., Petitioners, v. D.C. RENTAL ACCOMMODATIONS COMMISSION, Respondent. |
| Court | D.C. Court of Appeals |
Kirk Callan Smith, pro se.
Charles W. Hanke, Asst. Corp. Counsel, Washington, D.C., with whom Louis P. Robbins, Acting Corp. Counsel, Washington, D.C., at the time the case was argued, and John C. Salyer and Michael A. Cain, Asst. Corp. Counsel, Washington, D.C., were on brief, for respondent.
Before KELLY, NEBEKER and HARRIS, Associate Judges.
The petitioner, Mr. Smith, filed a petition with the Rental Accommodations Office on August 1, 1977, in his own behalf and that of his wife, co-tenant, Maria Dela Torres [hereinafter tenants], under the provisions of the Rental Accommodations Act of 1975.1 This appeal involves review of a final decision and order of the District of Columbia Rental Accommodations Commission [hereinafter Commission].
The tenants assert various errors in the administrative proceedings: First, they complain that the Commission violated its statutory authority when it considered the landlord's cross-appeal; second, the Commission failed to "treble the amount by which the rent exceeded" the amount allowed by statute, as required by D.C.Code 1978 Supp., § 45-1655(a); and finally, the Rent Administrator and the Commission erred in their findings and review of issues concerning the discontinuance of intercom service, landlord retaliatory action, the adequacy of the notice of the rent increase and the sufficiency of the rent registration statement.
We hold the following: (1) the landlord's cross-appeal was untimely and should not have been considered by the Commission; (2) the Commission's computation of the rent for purposes of treble damages was contrary to law; (3) the Commission erred in concluding that the imposition of a penalty is the sole remedy for retaliatory action and that it had no statutory authority to enforce its orders; (4) the Administrator erred in failing to rule on the factual issues concerning landlord retaliatory action, the sufficiency of the rent registration statement, and the adequacy of the notice of the step three rent increase; and (5) the Commission exceeded its jurisdiction by making findings of fact.2 We reverse and remand for further proceedings consistent with this opinion.
The facts of this case, simply stated, involve tenants' complaints of lack of heat which were ultimately communicated to the District housing inspectors. It was alleged that after the rental agent learned that the tenants made the housing code complaints, she directed them to move. Subsequently, a notice was posted in the building informing all of the tenants that their rents would be raised on August 1. Mr. Smith, upon inquiry, learned that the present rent charged was higher than the base rent reported by the landlord in his registration statement filed with the Commission. See D.C.Code 1978 Supp., § 45-1642(b). The tenants petitioned the Rent Administrator for an adjustment in the rent alleging various violations of the Rental Accommodations Act of 1975.
A hearing on the tenants' complaint was held by a Rental Accommodations Office Hearing Examiner on September 27, 1977. Neither the landlord nor his representative attended the hearing despite proper notice. The tenants requested a default judgment which was granted in part and denied in part in a decision issued by the Rent Administrator. The tenants appealed the administrator's decision to the Rental Accommodations Commission in a timely and proper fashion. The landlord, through his counsel, filed a late cross-appeal. A decision of the Commission was issued on the basis of both appeals and it is from that decision that the tenants seek review.
The first issue we address is whether the Commission erred in its consideration of the landlord's cross-appeal of the Rent Administrator's decision. Under the relevant statutory provision, D.C.Code 1978 Supp., § 45-1652(g), an appeal from the Rent Administrator's decision "may be taken by the aggrieved party to the Commission within ten days after the decision . . . ." Admittedly, the landlord's cross-appeal was not taken within the prescribed statutory time period. The tenants moved for dismissal of the cross-appeal citing its tardiness and lack of specificity required by "fundamental due process" and the Commission regulations.3 The Commission concluded that it could waive the ten-day limit for good cause and denied the motion to dismiss. In its brief, the Commission contends that its construction of the statute is reasonable in light of its statutory authority to "review a decision of the Rent Administrator . . . on its own initiative." D.C.Code 1978 Supp., § 45-1652(g). Thus, the Commission explains:
It is true that, in deciding to accept the late-filed appeal, the RAC did not say that it was exercising its own initiative, but its failure to characterize its action in language which precisely tracks the language of the act on which its authority rests should not be permitted to obscure the substance of the action.
However, the record demonstrates that the Commission did not purport to review on its own initiative, but intended to allow the landlord to file a late appeal.
A second fatal flaw in the Commission's rationale for consideration of the cross-appeal is its untimely vote to review the decision. Under the Commission's regulations, there must be a two-thirds vote within five days of the expiration of the ten-day period for an appeal. See Regulations of the District of Columbia Rental Accommodations Commission, DCRR § 5.31 (spec. ed. Feb. 1977). According to the record the ten-day period expired February 8, 1978; however, the earliest vote to accommodate the late appeal was not taken until March 14, 1978. This vote was clearly not within the self-imposed five-day period. The Commission improperly entertained the landlord's appeal. See generally Gaskins v. District Unemployment Compensation Board, D.C.App., 315 A.2d 567 (1974) (). As the landlord's cross-appeal was ultimately the Commission's action on that appeal must be vacated.4
The second issue involves the Commission's computation of the amount of damages that can be awarded under D.C. Code 1978 Supp., § 45-1655(a). At the time of the Commission's order, § 45-1655(a) provided:
shall be held liable by the Rent Administrator for treble the amount by which the rent exceeded the applicable rent ceiling or for $50, whichever is greater.
In its order, the Commission concluded that this section "only requires treble the first month's overcharge or $50, whichever is greater," rather than applying the penalty to the full amount of the overcharge. To support its departure from the plain wording and apparent thrust of the section, the Commission cites a subsequent amendment to the section that allows "for a roll back of the rent to such amount as the Rent Administrator or Commission shall determine" in lieu of imposing treble damages. See District of Columbia Rental Housing Act of 1977, § 901 (effective March 16, 1978), D.C. Code 1979 Supp., § 45-1689(a)(2). We interpret the amendment as a substantive change in the law. Contrary to the Commission's contention that "the earlier act [gave] it discretion to award treble damages or to withhold such an award," the language of D.C.Code 1978 Supp., § 45-1655(a) is couched in mandatory rather than permissive terms; e. g., the violator "shall be held liable." (Emphasis added.) Not only was the imposition of treble damages statutorily mandated, it indisputably applies to all months during which the overcharge was collected. Our conclusion is supported by the definition of "rent" found in D.C. Code 1978 Supp., § 45-1641(l) which reads:
The term "rent" means the entire amount of money, money's worth, benefit, bonus, or gratuity demanded, received, or charged by a landlord as a condition of occupancy or use of a rental unit, its related services, and its related facilities.
"Rent", as used in D.C.Code 1978 Supp., § 45-1655(a), encompasses more than the "first month's" rent. Accordingly, the Commission's computation of the treble damages was contrary to law.
We now turn to the Commission's failure to review the issue of the landlord's retaliatory action and the Commission's conclusion that the sole remedy for a violation of the prohibition against landlord retaliatory action,5 is the imposition of a penalty upon conviction after a trial de novo of the law and the facts pertaining to the offense. The Commission's regulations provide two remedies upon a finding that the landlord has engaged in retaliatory action:
Remedies of Retaliatory Action
Where the Administrator determines that a landlord has taken retaliatory action, as defined in Section 1.10(cc) of the Act, against a tenant, the Administrator may:
(a) Order the landlord to refrain from taking or continuing such retaliatory action provided, however, that nothing herein shall be construed to require any landlord or tenant in any action for eviction in the Superior Court to adjudicate the issue of retaliation before the Administrator instead of before such court; and
(b) Refer the matter to the Corporation Counsel for prosecution under Section 215(b) of the Act.
[Regulations of the District of Columbia Rental Accommodations Commission, DCRR § 10.10 (spec. ed. Feb. 1977).]
This Regulation gives the Rent Administrator the power to order the landlord to cease any...
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