eNotes: Liability – December 2023 – Washington, DC

SIGNIFICANT CASE SUMMARIES

Washington, DC Case Summary

Wood v. D.C. Dep’t of Consumer & Regul. Affairs
District of Columbia Court of Appeals
293 A.3d 163

Decided: March 23, 2023

A dated certificate of service, by itself, is not conclusive of proper service when the evidence shows the certificate contains some fault.

Background

The Department of Consumer and Regulatory Affairs (“DCRA”) inspected Petitioner’s row house and found three housing code violations. As a result, it issued a violation instructing her to abate the conditions within thirty days. Wood appealed to the Office of Administrative Hearings (“OAH”). At a status conference, the DCRA stated the violations remained unabated, it would re-inspect Wood’s home, and if the violations were not cured, it would issue a Notice of Infraction (“NOI”) with a hefty fine. Finding the violations had not been cured after re-inspection, the DCRA issued Wood a NOI. Wood challenged the NOI and requested a hearing, which was granted.

The DCRA sought a continuance to September 5, 2019, to which Wood consented. However, the Rescheduling Order set the hearing for August 6, 2019. The certificate of service accompanying the Order indicated it had been sent to Wood by both first class mail and email, and it had been sent to Wood’s correct home and email addresses. However, the Order was sent to an incorrect email address. Wood did not attend the hearing. At the hearing, the ALJ affirmed the NOI and fine and sent notice to Wood via email. Subsequently, Wood sent OAH a “request to change final order,” stating she had not received notice of the August 6 hearing date. The ALJ, construing her filing as a Motion for reconsideration, denied the request, concluding the certificate of service provided required notice. Wood appealed this decision.

Holding

The Court of Appeals found the ALJ’s decision did not address a number of indications that service was not proper. Generally, mailing a notice of a hearing satisfies the notice requirement. However, should a tribunal proceed ex parte, it “has the burden of establishing that it provided the required notice,” which needs to be supported by substantial evidence. The Court found the ALJ treated the certificate of service as conclusive evidence that Wood had been served and did no probing into Wood’s claim of lack of notice. The only evidence showing proper notice was the certificate, which listed an incorrect email address. This fault inferred there may have been other issues with service. Thus, the Court held it is error to solely rely on a certificate of service as evidence of required notice when the certificate shows some fault. Additionally, OAH should have further scrutinized whether service was proper.

Questions about this case can be directed to Madeline Creps at (202) 978-2049 or mcreps@tthlaw.com.