date of filing. It usually meets that time limitation. If, of course, agents from many divisions must inspect the premises, and the Metropolitan Police must evaluate lengthy police records, the time limitation may not be met. If no inspector files a negative report, an application is automatically granted and a license issued. If one or more inspectors files a negative report and the inspector's superiors concur in that report, a deficiency notice is issued against the applicant. If more than one alleged deficiency is involved, a composite deficiency notice is issued, affording the applicant in one notification a full statement of objections. This work is handled by the Licenses and Permits Division of LICENSES AND INSPECTIONS. The Licenses and Permits Division is the collating agency and the action agency. Departmental personnel are generally available, and Reorganization Plan #55 requires them to be available," to assist the applicant in advising him just how he might correct indicated deficiencies. If in due course the applicant has not fulfilled the inspector's demands, the applicant has the right to a hearing before a hearing officer, who is usually the Assistant Superintendent, Licenses and Permits Division, LICENSES AND INSPECTIONS. That official, or in his absence, another employee of the Licenses and Permits Division, holds an informal off-therecord hearing. There are no rules. The applicant may be represented by counsel, may produce witnesses, affidavits or other modes of proof, and may with few, if any, inhibitions attempt to "sell" the hearing officer. In a sense, the hearing officer is both prosecutor and judge, for there is no prosecutor, and the hearing officer is an employee and subordinate of the official who will ultimately make the final decision. In short, the atmosphere is paternalistic.' 12 The hearing officer's decision, if unfavorable to the applicant, is set down in the form of a letter of charges, with specific " §IIIE2 thereof. "The word "paternalistic" is intended in its pure semantic sense. Whether a paternalistic atmosphere is helpful or harmful is debatable. It is important to consider, however, that many hearings involve low income applicants who, left to the pitfalls of the adversary system of adjudication, would likely fare worse than they now fare. allegations of deficiency and without elaborating opinion. That letter is reviewed by the Superintendent of the Licenses and Permits Division, who from time to time reverses the hearing officer's decision. Although there is no specific limitation upon the Superintendent's authority, he views his role as that of one reviewing the letter of charges on behalf of the applicant, so that he may sustain or reverse the decision, or reduce the number of charges against the applicant, but he does not add new charges. The hearing officer averages about 14 hearings weekly, a rather inconsequential number in comparison with the large volume of licenses outstanding and the variety of possible deficiencies regarding any one license. This figure is also low in view of the fact that some licenses, as for example, for vendors, are rejected on the grounds that the vendor lacks good moral character, a singularly amorphous concept. III. ADMINISTRATIVE APPEAL: THE BOARD OF APPEALS AND REVIEW Appeal from a final disallowance of a license by LICENSES AND INSPECTIONS lies to the Board of Appeals and Review, initially created in 1955 by Organization Order #112, since amended.' 13 Since 1960, the Board has been established in substantially its present form. Its decision is the final administrative remedy in those cases assigned to it. Its membership consists of the Chairman and 21 members. Of these 21 members, seven are full-time District Government employees graded GS-13 or higher, provided they are not employees of LICENSES AND INSPECTIONS or of the Office of the Corporation Counsel. Seven members are chosen from the District of Columbia Bar. Seven members are, to quote the intriguing language of Order #60-1537, which reorganized the Board in 1960, "persons who possess, to the extent that the Commissioners may deem it necessary or desirable, insight and perspectives in the field of architecture, construction, finance, public health, and social service, and with respect to whom the Commissioners shall "Vol. 1, D.C. Code, page 140 et seq. take into account their qualifications, experience and community interests . . .” 14 A case is assigned to a hearing committee of the Board by the Chairman, who is the full-time administrator of the Board. A hearing committee consists of three members, one of whom must be from the attorney panel, and it is he who acts as hearing committee chairman. The Chairman of the Board may sit as a member, act as an alternate (except to the attorney member) or serve ex officio as a fourth non-voting member. The present Chairman pursues the latter policy. If either party requests an oral hearing, the hearing committee conducts such a hearing. If the applicant appears with counsel, an Assistant Corporation Counsel,15 represents LICENSES AND INSPECTIONS. Otherwise, no counsel appear before the hearing committee. A verbatim transcript of the hearing is taken and a copy thereof is furnished to the applicant at cost. The Board has subpoena power in the name of the Chief Judge of the District Court for the District of Columbia and witnesses are entitled to the usual witness fees. Subpoenas are enforceable as in the District Court. Witnesses before the hearing committee are examined orally under oath or affirmation. Evidence is generally excluded if the hearing committee considers it to be repetitious, redundant, immaterial, irrelevant or of no probative value. Strict rules of evidence are not followed. Prior to the hearing, the hearing committee is furnished a record from LICENSES AND INSPECTIONS. That record must include the decision from which the appeal was taken, all documents relied on in reaching that decision, and a summary or transcript of the testimony. However, LICENSES AND INSPECTIONS does not forward to the Board "confidential intradepartmental or interdepartmental correspondence or documents or information of a confidential nature ..." but forwards those separately to the Assistant Corporation Counsel who 14 §IB3 (b) thereof. 15 §4-603, D.C. Code. The Corporation Counsel has a considerable role in appellate procedures and promulgation of rules. See §1-301, D.C. Code, and Reorganization Order #50 (1953), vol. I, D.C. Code, p. 114 et seq. epresents LICENSES AND INSPECTIONS in the case. Only he Board of Commissioners has authority to require the Assistint Corporation Counsel to release such information to the 'pplicant or to the Board.16 The applicant has 7 days from the date LICENSES AND INSPECTIONS denies his application to file his appeal. It is the policy to notify the applicant immediately of his rights and to show him physically the room where the appeal form, which is handed to him at the time of denial, should be filed. Whether upon a new application or a revocation of an existing license, the status quo is preserved pending the appeal. A majority of the hearing committee is all that is required to render a decision. An estimated 95% of the hearing committee decisions are unanimous. It is the policy of the hearing committee to attempt to compromise differences when compromise appears possible. There is no right to review by the full Board. IV. JUDICIAL REVIEW: REVIEW ON THE RECORD Since the Board of Appeals and Review was organized in its `present form in 1960, it has handled approximately 600 cases, about 6 of which have been appealed to the District Court for the District of Columbia. With the exception of the case of Harris et al v. Tobriner, 17 the issues raised before the Court have generally related either to procedure before the Board or to the question of the moral character of the appellant. In the Harris case, ". . . without filing a record or summary of the proceedings before the Board, the defendants moved for summary judgment. The District Court granted this motion." The Court of Appeals held that the District of Columbia was required to present an administrative record to the District Court. The Court of Appeals characterized the Board as having a "quasi-judicial" status. It remanded the case to the District Court for consideration of the record made before the Board "Query: Could the Board order judgment for the applicant on the Assistant Corporation Counsel's refusal to release confidential information? The problem has apparently never arisen. "304 F 2d 377, 113 App DC 10 (1962). of Appeals and Review. Thus, review is not de novo, but is limited to the administrative record made before the Board of Appeals and Review. Two cases are now pending in the Court of Appeals. There is thought that the number of appeals coming to the District Court from the Board of Appeals and Review will increase in future years. V. A POTPOURRI OF PROCEDURES: THE DEPARTMENT OF OCCUPATIONS AND PROFESSIONS OCCUPATIONS AND PROFESSIONS in its present form was created by Reorganization Order #59 (1953), since amended,18 and it is an interesting and varied collection of committees, commissions and boards, with varying procedures, published and unpublished, and existing pursuant to various statutes and regulations. This variety stems partially from the collection of statutory enactments, seemingly created almost willy-nilly by Congress, and partly from the fact that the various committees, commissions and boards do not appear to correlate their activities or unduly to be aware of the existence of each other. 19 The various bodies within OCCUPATIONS AND PROFESSIONS now consist of the Board of Accountancy, the Board of Barber Examiners for the District of Columbia,20 the Board of Dental Examiners," the Board of Examiners and Registrars of Architects,22 the Board of Examiners of Veterinary Medicine, 28 the Board of Optometry," the Board of Pharmacy, the Board of Podiatry Examiners,26 the Commission on Licensure to Practice the Healing Art in the District of Columbia." the District of Columbia Board of Cosmetology,28 the District of Columbia Board of Registration of Professional Engineers, 18 Vol. 1, D.C. Code, page 129 et seq. 1 §2-903, D.C. Code. §2-1103, D.C. Code. §2-301, D.C. Code. §2-1001, D.C. Code. §2-103, D.C. Code. The Commission §§2-106, 2-111, 2-113, D.C. Code. §2-1302, D.C. Code. * §2-801, D.C. Code. 25 29 has several boards of examiners. 29 §2-1805, D.C. Code. |