*1 KUFLOM, Petitioner, Abraham OF
DISTRICT COLUMBIA BUREAU SERVICES, OF MOTOR VEHICLE Respondent.
No. 87-211. Appeals. District Columbia Court Argued Jan. April Decided Washington, D.C., Kearney,
Edward F. petitioner. Wilson, Counsel, Corp. Mary L. Asst. Cooke, Jr., Acting Frederick D. whom Corp. at the time the brief was Counsel filed, Reischel, Deputy Charles L. D.C., Counsel, Corp. Washington, were on brief, respondent. FERREN, BELSON Before TERRY, Judges. Associate
FERREN, Judge: a taxi driver Abraham Columbia, from a appeals deci- District the Bureau Motor Vehicle Servic- (BMVS) es to revoke his driver’s because of twelve reverse and remand. record. We I. January September 31 to
From received six tickets for vio- respond Initially, he lations. When, however, BMVS sus- these tickets. *2 341 pended these, however, permit to one hearing and a was 40-615(d)(l) (1981); respond, 18 pending. Sep- The other issued on § (1987), paid 16, DCMR fines in 1987, the operating tember was for after § suspension. full order to lift the Con- suspension. hearing The examiner be- struing payment of the fines as Kuflom’s lieved matter in Superior was tickets, liability admission of on the how- charge Court. Kuflom asserted the ever, BMVS twelve assessed dropped produced had been but no docu- violations, six 18 DCMR and noti- support mentary evidence to his assertion. reason, that, for fied him his driver’s event, In any because Kuflom had not permit subject to revocation. the fines for these tickets otherwise 303.3(b). notice, Upon receipt the Ku- found liable for these infrac- counsel, charges flom retained denied the tions, “points” they did not to add total. tickets, represented by requested the hearing, After the the examiner revoked hearings challenge to them at the D.C. permit six Kuflom’s for months because (BTA), Adjudication Bureau of Traffic “12 points.” hearing The examiner stated charge holding administrative tribunal in that he would consider Kuflom an on, hearings for, determining dispositions occupational permit if Kuflom obtained assessing penalties certain traffic disposition favorable oper- ticket for (1981); infractions. D.C.Code 40-603 ating suspension. following after On the (1987). Despite DCMR 9001 Kuflom’s day, Kuflom had made such a show- liability by paying earlier admission the ing, hearing granted oc- examiner tickets, granted these so called infrac- cupational permit allowing Kuflom to drive tion and scheduled them for Sunday through Friday, cab 7:00 to a.m. 23, March 3 to p.m. appealed 5:00 Kuflom On December three months be- BMVS, to the Director of who affirmed it hearing, fore the first BMVS 19, February on peti- 1987. Kuflom then Gay L. Donovan conduct- tioned this court for review. ed a on the proposed revocation After the infraction in March Kuflom’s driver’s based on 1987, all six tickets were dismissed. Two points. hearing, twelve At this revocation (including badge the one the mistaken Kuflom’s pro- counsel asked to number) dismissed because the issu- ceedings pending the outcome of infrac- ing police officer failed to hearings. argued He hearing. Three were dismissed when paid the tickets not as an admission of officers failed recall circum- merely prevent but present stances or otherwise failed respond. of his license for failure to Coun- one, prima alleging case. The last pointed sel also out one fade of the six illegal U-tum, liability for an was dis- police badge tickets listed a nonexistent presented missed when Kuflom evidence number. This ticket would be dismissed at showing sign no there was forbid- said, because no ding a U-tum. prosecute. officer could be located to implication was without this ticket After dismissal of four of the six accounting for two of the twelve petitioned BMVS for termination suspen- DCMR 303.3 would authorize revocation, of his which BMVS sion, not the 8, date, April 1987. Effective that all ref- Kuflom’s license. erence supposedly revocation deleted from Kuflom’s traffic record. His examiner denied Kuflom’s ap- oral argument counsel asserted at request proceeded for a hearing. peal, that references the revo- The examiner noted cation remain in Kuflom’s files. that Kuflom had accumulated two other Further- more, up record date in tickets violations after the six 8, important respects. By 1987, subjects May violations that Ku- only Kuflom had denied flom’s traffic record showed that four by- infractions, points tickets dismissed the six had been certain entered on March and that the corre- his or her traffic 303.1. An record. sponding eight points eight points justifies had been removed. accumulation sus- license; May pension jus- 8 record continued to show four of one’s points representing tify gener- the other two tickets revocation. 303.3. More regulations March May ally, dismissed on 23 and authorize license also *3 suspension or a revocation when driver has of, civilly been convicted or found liable II. of pattern a traffic offenses that indi- appeals of his li- Kuflom disrespect cates for traffic laws and a dis- cense. BMVS concedes that this issue is regard safety persons of other moot, despite termination of the revoca- property. pay- 302.8. §§ tion, possible conse- because collateral fine a “equivalent ment of a to convic- first, pay- quences. argues, Kuflom that (1987). tion.” 18 DCMR 9901 fine does to a ment of a not amount “con- purposes system; point of the viction” paid Kuflom fines for six his thus, says, justified BMVS in he protest, explanation tickets without re points license as- based on “convictions,” sulting id., giving in rise to Second, paid. for tickets sessed he had points on These twelve his record. argues that Kuflom enough for revocation. denying his discretion in abused payment that 303.3. Kuflom contends revocation infraction when “conviction,” ticket does not constitute Ku- hearings had been scheduled to hear argument persuasive he offers no to but challenges upon flom’s to the tickets which plain language regula of the counter the notice of revocation was payment that “the of a fine ... shall premised. disagree While we with the first to equivalent a conviction.” Id. 9901.1 be record, merit, argument, we find on this in fines, argues paid an He he as Accordingly, the second. we reverse and in order liability, admission to lift remand. suspension of his license failure to argument
answer
tickets. That
is una
vailing. Under the relevant statute and
A.
regulations,
required
Kuflom was
to an
Reg-
Municipal
District of
Columbia
days
pre
each ticket
fifteen
swer
within
point system
establish a
under
ulations
suspension
vent
his license.
for certain traffic offenses
40-615(d); 18
304.1. He failed
DCMR §
that,
in the assessment of
results
paid
to do so and thus
the tickets
resume
collectively,
can result in
or rev-
driving privileges.
could
Upon
of the
license.
ocation
offender’s
paying a
have answered on time without
(“ticket”),
receipt
an
infraction notice
admitting liability.
fine or otherwise
Time
respond
ways,
one must
one of several
liability,
denial of
or admission
ex
on the back
the ticket itself.
as advised
prevented suspen
planation, would have
(c) (1981);
40-614(b) &
D.C.Code §
paying the
just
effectively
as
tick
(1987)(ticket
state
how
DCMR §
cured
was only
ets later
it. Kuflom
re
consequences for
to answer and
when
quired to answer.
answer).
may admit
One
failure
deny
he could
admit it
Kuflom
knew
infraction
altogether.
charged
in ticket and
explanation,
deny it
an
obtain
with an
BTA,
40-615(a)
he
(1981);
just
18 DCMR a walk-in
D.C.Code §
to,
respect
he
formally con-
to a ticket
received on
If one admits
running
of,
red
September
or is
found liable for
victed
otherwise
("A
("Answers
40-615(c) (1981)
accompa-
per-
of ‘Admit’ shall
also D.C.Code
1. See
shall,
admitting
payment
occurred
son
full of the
nied
...
scheduled
answer,
time he
his [or her]
at the same
pay
submits
penalties_”).
fines
fine_”);
DCMR 3006.2
the civil
light
before
months
he received
the fact that an accumulation of
—two
violations,
notice of
proposed revocation based
based on
can result
earlier
six
tickets and retained counsel.
one’s license. Because of the
itself,
it is
information on the back of
ticket
likely
when
moreover,
it is
six
knew he
also reasonable to deem one
he also
could have
payment
aware that
of a ticket
an admis-
hearing.
denied the tickets at a walk-in
charged
supra
sion of the
violation. See
any event,
if we
even
assume Kuflom
Accordingly,
note 2.
fact that Kuflom
actually
simply
know
could have
payment
did not intend for his
of tickets to
prevent suspension
denied the six tickets to
assessment
cause the
does not
answer,
license for
preclude revocation of his license based on
should have known.
tickets them-
infractions.
admitted
timely
selves told him that a
answer was
required
prevent suspension.2
B.
*4
nonetheless,
argues,
that he did not know
paying
Because
the tickets amount
payments
trigger
his
point sys-
liability
ed to
of
admissions
tantamount to
supply
and thus
tem
basis for
convictions,
9901,
18 DCMR
it is not clear
§
subjective
his license. His
state of mind
why
hearings
BTA
fines,
however,
when
cannot
liability
determine
tickets
legal
determine the
effect
payment
of
these,
already
paid.
effect,
had
in
Were
has
prescribed by
when
effect
been
be
on a motion to reconsider?
regulations
statute
and has
well
agency
Where did the
derive
publicized.3
point
Information about the
discretion
already
exercise
as to issues
re
system appears
also,
DCMR but
by
regulations?
solved
its own
Our exami
particular significance here,
of
in at least
statutory
regulatory
nation
by
two leaflets distributed
District
for BTA
framework
reveals no
government.
Department
Columbia
express authority
reopening
the issue
Public
specifically
Works issued one leaflet
after it
by
has been resolved
stating
that accumulation of twelve
payment.
can result
in revocation of a
li-
driver’s
cense. BMVS distributed the other “Traf-
A traffic ticket—notice of infrac
Safety
fic
describing
complaint.
Leaflet”
“the D.C.
tion—is a summons and a
D.C.
System.”
40-614(a).
Point
This
explains
person
leaflet
Code
A
served with
§
more
point
detail the
schedule
con-
and the
such a notice must answer within fifteen
sequences
point
person
un- days.
accumulation.
It
40-615.
Id.
When
de
equivocally
nies,
explanation,
announces that
12
or admits with
infrac
“[w]hen
file,
alleged,
is
accumulated
tion
he or she
entitled to
privilege
3008.1,
of driving
is lost and
at BTA. 18 DCMR
[or her]
§§
operator’s permit
revoked.” It
3008.2. When a
admits an infrac
[or her]
reasonable, therefore,
however,
tion,
gener-
to deem the
he or
she need
it,
public
point
system,
adjudicate
al
aware of the
includ- a
D.C.Code
er,
(D.C.1987),
Although
record
no ticket
entered into the
3014.9. limited may difficult for Kuflom to have been imposed may had where an Although sanctions irreparable injury. show revoca- Explana- answer of ‘Admit’or ‘Admit with him likely to cause substantial hearing.” inconvenience, tion’ was entered it was not clear that such irreparable regulations do because Ku- injury DCMR 3014.7. would be of, occupa- receive an scope procedure flom was told he would address whether the during period of revoca- tional agency appeal same when is the up a seventh tion if he could clear means the answer of “admit” entered irreparable did. harm which he hearing; payment presum- stay. weighed against Virginia factor ably, it is. Jobbers, U.S.App.D.C. at Petroleum right appeal In contrast with the *5 (“The key F.2d at 925 word for infraction to the sanction an admitted irreparable. inju- Mere consideration Review, neither Appeals the Board of and ries, substantial, in terms mon- however regulations explicitly nor the statute the expended energy necessarily ey, time and hearing a examiner to reconsider authorize enough.”) stay, a in the absence of not Kuflom, for the admission itself. Counsel (emphasis original). argu advised the court at oral potential harm to other The elements of (and government ment counsel for the public are incon- parties and to the interest BTA disagree) grants not risking a A could mean dan- stay clusive. as traffic ticket a reconsider admissions least three gerous driver on the road at right. Perhaps if not matter of routine (until infraction more months after the reading generous a finds hand, stay a On the hearings). other (1987).4 any In of 18 DCMR § public in sound promote the interest would event, granting the basis whatever was economy, since the procedure judicial hearings, we conclude Kuflom’s infraction be deferred until revocation issue would these had been once underlying question of the infractions the scheduled, hearing Gay could examiner finally resolved. themselves had stay revo refused to the properly have factors, the three In contrast hearing pending outcome of the cation succeed the likelihood that Kuflom would infraction decisively merits should have been stay, considering In a motion stay. weighed granting in favor hearing consider required examiner was requesting stay, attorney Kuflom’s like whether the movant was four factors: one of the tickets presented evidence that merits, badge to succeed on whether denial an unknown number showed (The irreparable injury, notice of stay cause issued it. of the would officer who had hearing badge had shown harm oth the infraction granting would whether “no such with the annotation public interest number parties, and er whether by any applicable subject to provides: review 18 DCMR 1004.1 statute, or which constitutes "contested hearing right A has to a whenever Adminis- adversely term is defined in the aggrieved affect- case” has been she by act, any act refusal to or the issuance Procedure Act. ed trative Department any order or decision badge.”) issuing required was presented by officer minimum 18 DCMR 303.3. appear hearing because At time how- charge. Kuflom had denied the D.C.Code ever, counsel demonstrated that 40-616(c). certain, virtually there not been assessed either of these tick- fore, that no officer would at the ets. Kuflom had denied one of them and ticket, hearing and that accordingly, was scheduled to attend an infraction hear- Consequently, dismissed.5 even ing operat- it. The other ticket if Kuflom were to lose at each of the other suspension. A conviction of this hearings, five infraction he at most could entry justify alone would receive ten on his record for the six record, on Kuflom’s traffic tickets that had caused issuance 303.1(k), matter, too, id. but that notice of revocation. Ten pending, represent- and counsel justify suspension, while sufficient to does up ed that he believed he could it clear justify operator’s per promptly. hearing agreed examiner mit. 18 DCMR 303.3.6 there “hold abeyance pending decision in [his] fore, demonstrated much more than sub receipt disposition favorable of the stantial likelihood of success a scheduled operating-after-suspension,” current and to hearing; indeed, hearing occupational consider Kuflom an conclusively would have undermined the disposi- license if he obtained a favorable 12-point announced basis for revocation. Accordingly, tion.7 the examiner did not explicitly rely on either of these other two tickets rule by pro- motion for a stay, but operator’s permit Kuflom’s ceeding points.” “12 effectively denied the mo- request Kuflom’s for a of revocation response proffered tion. In defect in ten, twelve, because of an ostensible the one the hearing examiner in- possible points would have lacked force if quired about two in addition to the examiner had considered six, revok- that Kuflom had received for ing Kuflom’s license on the basis of Apparently, violations. the examiner was *6 302.6,8 302.8,9 or thinking that, DCMR which autho- if had been assessed “frequency” “pat- for for rize revocations or those that would more than offenses, nullify impact tern” of respectively. of the defective But those ticket on decision, grounds assuming regulatory revoca- not considered. Thus, upon 12-point tion was be founded based revocation issue represented argu- 5. Counsel for Kuflom at oral cense to Kuflom further that ex- confirms appeal, by ment on coun- operat- contradiction aminer had not relied on the ticket for government, practical sel for the that as a suspension mat- to revoke Kuflom’s license. ter, issuing appear if the officer does not at the charges stated on ticket are provides: 8. 18 DCMR 302.6 dismissed. Dismissal of two of Kuflom's six Having civilly been convicted or found liable tickets on March 18 and because the against frequency with such of offenses officers failed to tends con- regulations of the District of Columbia and firm this statement. disrespect as to indicate a for traf- elsewhere disregard safety other fic laws and a for the (1987) provides: 6. 18 DCMR 303.3 persons property, being or such fact estab- In the event the number of accumulat- point system in sec- lished described by any eight (8) ed reaches a total of grounds suspen- chapter, for tion 303 may suspension the Director order or revocation. his or her license and when total of twelve (12) accumulated, points has been Di- provides: 9. 18 DCMR may rector order revocation the license. Having civilly found liable been convicted or pattern 310.7(c) of traffic offenses or infractions occupa- 7. 18 DCMR forbids period year over a one which indicates "[ajpplicants tional licenses to whose license are disregard persons safety of operating as a revoked result of a conviction for grounds suspension property or revoca- after ing revocation.” die hear- occupational examiner’s issuance of an li- tion. agreed seeks. Once BTA to hold relief he before examiner—twelve —Ku- hearings notwithstanding merely flom demonstrated not substantial- — hold conclusivelythat infrac- lack of virtually its most, process required place first yield, at ten in the —due given procedural protec- points. all the follows that the ab- that In case hearings, to which he was entitled. sent a tions that means he was entitled was an abuse discretion. sought. examiner’s us, grant stay requires III. refusal Judge opin- reasons Ferren’s stated revoca- Accordingly, we must reverse the ion, order to reverse the ante 344-45 operator’s tion of Kuflom’s and re- permit. revoking Mr. Kuflom’s mand to BMVS with instructions to delete any all references to that revocation driving history.10
record of Kuflom’s So ordered.
TERRY, concurring: Judge, join my colleagues
I in their decision to remand, general I am in reverse and agreement Judge opinion for Ferren’s However, Judge I think Ferren court. gentle of Traffic too with the Bureau
Adjudication part opinion. of his II-B Jr., SCOTT, Appellant, Monroe W. stating merely I am content with express authority,” there is "no ante for BTA to hold a on traffic STATES, Appellee. UNITED recipient after the of the ticket has ticket 85-206, 86-423 and F6849-84. Nos. by paying the admitted criminal view, any statu- my the absence fine. Appeals. District of Columbia Court tory regulatory authority for such hear- ings affirmatively requires us to hold 20, 1988. June unauthorized, they and hence unlawful. they fact that have Service, Klein, Public Defender James legitimize going years on for does D.C., Washington, appellant. them; contrary, it demonstrates that *7 Farrell, Atty., Asst. U.S. Michael W. the limits of its BTA either does not know U.S. care powers own or does not about put bluntly, it legality of its actions. To held at all should not be PRYOR, Judge, Chief and Before statutory authorization. express NEWMAN, FERREN, MACK, going on, they stop. they If should still TERRY, 'ROGERS, **BELSON, ' ***SCHWELB, STEADMAN, case, Nevertheless, I of this facts Judges. entitled to the Associate
agree Mr. Kuflom is circumstances, refusing stay had a lesser ordinary re- this record we would 10. Under sanction, sought simply suspension, remand for such as verse denial of the Markovic, proceedings. Stamenich v. further (D.C.1983). grant To A.2d 457 n. now, however, long ** after revocation Judge recused himself BELSON has Associate terminated, elevating imposed from cases. these reversing Kuflom’s form over substance. grant stay, *** participate Judge SCHWELB did not not, course, whether the hear- we do rule on in these cases. his discretion examiner would have abused