Asefu Alemayehu v. District of Columbia Alcoholic Beverage Control Board

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-AA-518

ASEFU ALEMAYEHU, PETITIONER,

V.

DISTRICT OF COLUMBIA

ALCOHOLIC BEVERAGE CONTROL BOARD, RESPONDENT.

On Petition for Review of an Order

of the District of Columbia Alcoholic Beverage Control Board

(CMP00321-11)

(Argued November 13, 2014 Decided December 31, 2014)

Richard J. Bianco for petitioner.

Jason Lederstein, Assistant Attorney General, with whom Irvin B. Nathan,

Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and

Loren L. Alikhan, Deputy Solicitor General, were on the brief, for respondent.

Before THOMPSON and MCLEESE, Associate Judges, and NEWMAN, Senior

Judge.

Opinion for the court by Associate Judge THOMPSON.

Opinion by Associate Judge MCLEESE, concurring in part and dissenting in

part, at page 19.

THOMPSON, Associate Judge: Petitioner Asefu Alemayehu appeals from the

February 27, 2013, decision of the Alcoholic Beverage Control Board revoking her

2

Retailer‘s Class CT license to serve alcoholic beverages, and from the Board‘s

April 17, 2013, order denying Petitioner‘s motion for reconsideration. Petitioner

contends that the Board‘s decision should be vacated (1) because the Board‘s

decision-making was inappropriately tainted after Board members heard her offer

in compromise and (2) after they learned that she also faced a pending

investigation in another matter; (3) because she lacked the English proficiency

required to understand the Board proceeding and to make a knowing waiver of her

rights (the ―language issue‖); and (4) because the penalty of revocation was not

commensurate with the nature of the charged offense. For the reasons discussed

below, we reverse and remand.

I. Background

According to the Notice of Status and Show Cause Hearing issued to

Petitioner on May 9, 2012, an Alcoholic Beverage Regulation Administration

investigator visited Petitioner‘s restaurant at approximately 3:49 am on Tuesday,

July 5, 2011. From outside, the investigator watched someone lock the restaurant‘s

front door and observed several individuals inside holding beer bottles. Upon

entering the restaurant, the investigator witnessed approximately twenty

individuals consuming alcoholic beverages. The investigator approached

3

Petitioner, the owner of the restaurant, who told him that ―she was unaware of the

time.‖ The relevant District of Columbia statute required that, on the weekday in

question, alcohol consumption on the premises stop at 2:00 am. D.C. Code § 25-

723 (b) (2001); see also 23 DCMR § 705.9.

At the first Show Cause Hearing, held on December 12, 2012, Petitioner was

represented by Wendell Robinson. Robinson told the Board that he had just

realized that Petitioner did not speak English well enough to understand his advice

or explanations.1 He said that Petitioner had ―indicated she could understand

[him]‖ during their meetings, and he had taken her at her word, even though she

sometimes displayed a ―look of bewilderment.‖ However, the day before the

hearing, Robinson‘s associate met with Petitioner and, with the aid of an

interpreter, discovered that Petitioner was ―[un]aware that she could lose her

license and not be able to reapply for five years.‖ This result indicated to

Robinson that Petitioner had overstated her ability to understand their previous

conversations. In light of his need to properly prepare and advise his client again,

now with the assistance of an interpreter, Robinson requested a continuance. At no

point during this hearing did Robinson mention the District of Columbia

1

Ms. Alemayehu speaks Amharic.

4

Interpreter Act, D.C. Code § 2-1902 (c) (2001). The Board granted the

continuance request.

At the second Show Cause Hearing, held on January 9, 2013, Petitioner was

represented by Andrew Kline. Kline and Assistant Attorney General Fernando

Rivero presented to the Board an offer in compromise,2 under which Petitioner

would pay a $3,000 fine, be subject to a 10-day suspension of her license, and

submit an application for transfer of her license within 60 days.3 Kline explained

that allowing Petitioner to ―move on from this business‖ through a license transfer

2

See 23 DCMR § 1604.5, which provides that:

The Board may, in its discretion, accept from both (1) the

licensee or permittee and (2) the Office of the

Corporation Counsel or the prosecuting entity an offer in

compromise and settlement to resolve the charges

brought at the show cause hearing by the District of

Columbia against the licensee. An offer in compromise

and settlement may be tendered to the Board at any

time prior to the issuance of a decision by the Board on

the contested matter.

3

See generally D.C. Code §§ 25-405, 25-316 (2001) (governing the process

of voluntary transfer of licensed establishment to a new owner); see also D.C.

Code § 25-405 (e) (2001) (providing that ―[i]f the Board finds that the licensee is

in violation of this title or regulations promulgated under this title, the Board shall

deny the application for transfer‖).

5

was ―a very important component of the offer, given the investigative history‖4 and

―other factors,‖ including the fact that ―[t]here is another investigative matter in the

pipeline[.]‖ Rivero also referred to the ―pipeline‖ matter, explaining that the

pending ―case concern[ed] an incident that took place in July of [2012].‖ At this

point, a Board member interjected, cautioning his colleagues not to consider the

existence of pending cases when ruling on the offer in compromise, as ―the fact

that there is something in the pipeline is irrelevant to this case.‖

Before ruling on the offer in compromise, Board member Jones, sua sponte,

asked Kline whether his client needed an interpreter, recalling that the previous

Show Cause hearing was continued because ―there was a concern about a

translator . . . being necessary or required[,]‖ as ―it wasn‘t clear that the licensee

clearly understood all the nature of the discussions that were being had between

her and her counsel[,]‖ and Petitioner possibly ―wasn‘t in the position to clearly

understand all the discussions that were being had by us as a Board[.]‖ The Board

member sought to ―establish on the record that no translator is necessary[.]‖ The

Board Chair asked Kline to address the issue. Kline responded:

4

Petitioner was appearing before the Board for her fourth primary-tier

offense. Her previous offenses were adjudicated on September 25, 2008, May 6,

2009, and April 14, 2010. The dates of her previous offenses were September 11,

2007, January 18, 2009, and February 7, 2009.

6

The only way that I can address that is I have spent a

great deal of time with Ms. Alemayehu. I‘m satisfied

that she understands the terms of the deal. I‘m happy to

have her answer any questions that the Board may have,

so that the Board might be satisfied. . . . [I]n this case,

given the time that I have spent with her in our review of

the offer and other considerations, I don‘t have a question

in my mind at this point.

Board member Alberti pressed Kline on this point, resulting in the following

exchange:

Member Alberti: But what I‘m not hearing from you is if

we were to not accept this [offer in compromise], the

question is, still in my mind which you haven‘t

addressed, would your client understand English well-

enough to understand the proceedings that we would be

having? Because that‘s the real question here, Mr. Kline.

Mr. Kline: Yes.

...

I beg your indulgence. Ms. Alemayehu is willing to

make a statement that she does understand what is going

on and understands the nature of the proceeding and will

understand what is going on here. . . . I can tell you with

respect to this offer [in compromise] and the discussions

and preparations, I‘m comfortable. . . .

Chairperson Miller: -- would your client be able to

participate in the hearing?

Mr. Kline: Yes.

7

The Board never asked Petitioner to make a statement on the record. After

Board member Alberti expressed satisfaction with Kline‘s assurances, the Board

proceeded to discuss and then reject both the original offer in compromise and an

amended offer in compromise proposed by Kline, in which the fine was increased

to $4,000.

The Show Cause Hearing immediately followed. Kline told the Board in his

opening statement that he would ―stipulate to the facts that are asserted in the

notice,‖ as his client sought only to ―address the appropriate penalty to be served.‖

In light of this stipulation, the government waived opening statements, presented

no evidence, and did not give a closing. In Kline‘s closing, he reminded the Board

that Petitioner intended to transfer her license; observed that it was clear that

Petitioner ―had difficulty running‖ her business; and said that Petitioner ―t[ook]

responsibility for the violation,‖ which was why she did not ―put[] the Government

to its proof.‖

In its February 27, 2013, Findings of Fact, Conclusions of Law, and Order

(―Order‖), the Board found that Petitioner violated D.C. Code § 25-723 (b), which

proscribes serving alcohol after 2:00 am on weekdays. The Board revoked

Petitioner‘s license, explaining that it did so both pursuant to its ―discretionary

8

revocation powers‖5 and as mandated by D.C. Code § 25-830 (c)(3) (2012 Repl.).6

The Board also denied a Motion for Reconsideration filed on Petitioner‘s behalf by

her original attorney, Mr. Robinson, who argued inter alia that, because of the lack

of an Amharic interpreter at the Show Cause Hearing, Petitioner ―was unable to

make a knowing and intelligent agreement to stipulate[] to the charges[.]‖

Petitioner timely appealed.

II. Analysis

5

The Board cited D.C. Code § 25-823 (2012 Repl.) (providing that ―[t]he

Board may fine, as set forth in the schedule of civil penalties established under §

25-830, and suspend, or revoke the license of any licensee during the license

period‖ for violations of law).

6

At the time of the Board‘s Order, then-recently amended D.C. Code § 25-

830 (c)(3) read: ―A licensee found in violation of a primary tier offense for the 4th

time within 4 years shall have the license either revoked or fined no less than

$30,000 and suspended for 30 consecutive days.‖ Omnibus Alcoholic Beverage

Regulation Emergency Amendment Act of 2012, D.C. Law 19-597, 60 D.C. Reg.

1001, 1012 (Feb. 1, 2013) (―Emergency Act‖) (effective January 14, 2013 – April

14, 2013); see also Omnibus Alcoholic Beverage Regulation Amendment Act of

2012, D.C. Law 19-310, 60 D.C. Reg. 3410, 3422 (Mar. 15, 2013) (making

permanent the language passed in the Emergency Act, effective May 1, 2013). In

its Order, the Board quoted the earlier version of the statute, which provided that

―[a] licensee found in violation of a primary tier offense for the fourth time within

4 years shall have the license revoked.‖ D.C. Code § 25-830 (c) (2012 Repl.).

9

We ultimately dispose of this case on the basis of the language issue, but

briefly address the other issues Petitioner has raised, which otherwise could be

issues again on remand.

A. The Board’s Having Heard the Offer in Compromise

Asserting that the Board acted as ―both the mediator and the fact-finder‖

when it heard her offer in compromise, rejected it, and then moved directly on to

the Show Cause Hearing, Petitioner suggests that the Board thereby became a

biased decision-maker. We reject this argument. First, the record does not support

Petitioner‘s assertion that, through the offer in compromise, she ―stipulated to

many facts which she could have disputed‖ in the Show Cause Hearing. In reality,

when proposing the offer in compromise, Petitioner‘s attorney acknowledged

Petitioner‘s history of three previous primary-tier violations, the existence of which

was not in dispute, and mentioned the ―pipeline‖ investigation, but did not stipulate

to the facts of the July 2011 incident until after the Board had denied the offer in

compromise.7 Before moving on to the Show Cause Hearing, the Board heard

7

Moreover, the Board did not act as a mediator. A mediator ―tries to help

disputing parties reach an agreement.‖ Black‘s Law Dictionary 1120 (10th ed.

2014). That was not the Board‘s role; it was presented with an offer in

(continued…)

10

merely that Petitioner sought to settle her case. This desire did not mean that she

admitted guilt, as her actions could have been fueled by any number of motives,

including an intention to quickly sell her business.

Second, the Board‘s ―mixing of [investigatory, prosecutorial, and

adjudicative] functions . . . is a necessary part of the administrative scheme and

does not per se violate due process.‖ James Bakalis & Nickie Bakalis, Inc. v.

Simonson, 434 F.2d 515, 518 (D.C. 1970) (citation omitted). A petitioner

contending that an agency board was inappropriately biased by the exercise of

another function ―must overcome a presumption of honesty and integrity in those

serving as adjudicators[.]‖ Withrow v. Larkin, 421 U.S. 35, 47 (1975). Petitioner

has not carried this burden. Park v. District of Columbia Alcoholic Beverage

Control Bd., 555 A.2d 1029, 1032 (D.C. 1989) (―[I]t is not per se improper for an

official who holds two governmental positions, . . . to become involved in both the

investigation and determination of the same case.‖).8

(…continued)

compromise that has been negotiated between Petitioner‘s attorney and the Office

of Attorney General.

8

Petitioner also contends that her rights were violated when the Board

learned that she faced an additional investigation for an alleged violation that

occurred in July 2012. Her argument boils down to an assertion that the Board

violated the D.C. Administrative Procedure Act — and her procedural rights

(continued…)

11

B. The Language Issue

Petitioner contends that she should have been provided with an interpreter at

the hearing, basing her claim on D.C. Code § 2-1902 (c), which provides that an

agency conducting an administrative proceeding ―shall appoint a qualified

interpreter upon the request of [a] communication-impaired‖ party or witness.

D.C. Code § 2-1902 (c). The record belies Petitioner‘s argument that she

requested an interpreter for the Show Cause Hearing. We therefore reject the

argument that § 2-1902 (c) applied in the way Petitioner has argued.

Section 2-1902 (c) also provides, however, that ―[w]henever a

communication-impaired person is a party or a witness in an administrative

(…continued)

thereunder — by admitting and then considering irrelevant evidence. See D.C.

Code § 2-509 (b) (2001) (providing that agency bodies are instructed to ―exclude

irrelevant . . . evidence‖). We reject this argument as well. An agency does not

admit irrelevant evidence to the record merely by hearing of its existence. Nor

does an adjudicator become impermissibly ―tainted‖ merely by hearing irrelevant

evidence. The burden is on Petitioner to ―overcome the presumption that the

Board members acted fairly‖ in deciding her case. Park, 555 A.2d at 1032.

Petitioner cannot meet that burden as to the January 9, 2013, Show Cause Hearing

because a Board member promptly reminded his colleagues that they should not

consider a future case when ruling upon a current one, and there is no indication

anywhere in the hearing transcript or the Board‘s Order that the Board did anything

other than follow those cautionary words.

12

proceeding . . . ,‖ the agency conducting the proceeding ―may appoint a qualified

interpreter . . . .‖ D.C. Code § 2-1902(c) (emphasis added). It thus vests the Board

with discretion to appoint an interpreter for a communication-impaired party.

Discretionary authority must be reasonably exercised in conformance with the

purpose of the authorizing statute. See In re D.H., 666 A.2d 462, 470 (D.C. 1995).

Because the Council of the District of Columbia (―Council‖) passed the Interpreter

Act ―in order to vindicate the constitutional [due process] rights‖ of individuals

who cannot speak or understand English, Ramirez v. United States, 877 A.2d 1040,

1043 (D.C. 2005), the Board was required to exercise its discretion as to whether to

appoint an interpreter in a way that protected Petitioner‘s due process rights. We

conclude that the Board‘s effort fell short.

To be sure, it is by no means clear from the record that Petitioner was or is a

communication-impaired person within the meaning of the Interpreter Act. We do

not suggest but also cannot discount the possibility of gamesmanship, i.e., that

Petitioner raised the language issue only after seeing the severe penalty the Board

imposed in order to get a second bite at the apple. We also recognize that

Petitioner was not a newcomer to Board processes, having had three earlier

primary-tier offenses adjudicated. But here, Board members themselves, having

been apprised by Petitioner‘s original counsel of her apparent lack of

13

understanding of his advice given in English, expressed concern about whether

Petitioner was able to understand and would be able to participate in the

proceedings if the matter went to hearing. In his detailed answer to the Board‘s

inquiry, Petitioner‘s attorney Kline expressed satisfaction that Petitioner

understood ―the terms of the deal‖ — i.e., the terms of the offer in compromise.

He gave a one-word answer (―Yes‖), however, when a Board member asked

whether Petitioner would be ―able to participate in the hearing‖ if the Board did

not accept the offer in compromise. Then, when the hearing commenced moments

later, Mr. Kline short cut the proceeding by immediately stipulating to the charged

violation. Petitioner did not participate at all, and, not having spoken during the

hearing, said nothing that evidenced her ability to participate and understand.

Moreover, although Kline suggested that Petitioner was willing to make a

statement to the Board ―that she does understand what is going on and understands

the nature of the proceeding and will understand what is going on here[,]‖ the

Board declined the invitation (which would have imposed a very slight burden)

and asked Petitioner no questions. If, as her original counsel suggested, Petitioner

had limited English proficiency and, in fact, could not understand the exchanges

between Kline and the Board, ―then the [hearing], to [her], [was] no more than ‗a

babble of voices.‘‖ Ko v. United States, 722 A.2d 830, 834 (D.C. Cir. 1998)

14

(quoting United States ex rel. Negron v. New York, 434 F.2d 386, 388 (2d Cir.

1970)). Having heard contrary representations from Petitioner‘s different attorneys

and having received a very limited assurance from attorney Kline, the Board

lacked a firm factual foundation on which to determine whether it needed to

exercise its discretion to appoint an interpreter. See Johnson v. United States, 398

A.2d 354, 364 (D.C. 1979) (explaining that determinations committed to the fact-

finder‘s discretion require ―rational acts of decision-making[,]‖ and that ―[a]n

informed choice among the alternatives requires that the [decision-making] be

based upon and drawn from a firm factual foundation‖).

In this circumstance, Petitioner is entitled to a remand for the Board to

determine, first, whether she was communication-impaired at the time of the Show

Cause Hearing and, if the Board determines that she was, to the opportunity for a

new hearing (with an interpreter as necessary).9 We recognize that, to date,

Petitioner has not suggested what defense(s) she might have to the charged

infraction. However, if she was unable to understand the January 9, 2013, hearing,

9

If the Board finds that Petitioner was not communication-impaired at the

time of the January 9, 2013, Show Cause Hearing, it may reinstate its finding that

Petitioner committed the charged infraction.

15

she is at least entitled to put the government to its proof during a Show Cause

Hearing in which she is able to understand the proceedings.

Further, Petitioner may be entitled to an opportunity to persuade the Board to

impose a fine of at least $30,000 and a 30-day suspension, as specifically

authorized by amended § 25-830 (c)(3), rather than revocation.10 We say ―may‖

because, as discussed at oral argument, there is an issue as to whether the Board

had discretion to impose such a fine in lieu of revoking Petitioner‘s license. As

noted supra in note 6, by the time the Board issued its Order in February 2013, §

25-830 (c)(3) had been amended to prescribe such a fine and suspension as an

alternative penalty for a fourth primary-tier offense within four years. However,

without acknowledging or explicitly considering whether it should give effect to

the amended § 25-830 (c)(3), the Board imposed the sole penalty — license

revocation — that was mandated by the superseded § 25-830 (c)(3). While it is

true that the Board also based the revocation penalty on its ―discretionary . . .

powers,‖ if the additional option prescribed by amended § 25-830 (c)(3) was

applicable and the Board did not consider it, it did not properly exercise its

10

At oral argument, modifying the argument made in Petitioner‘s brief that

the revocation penalty was not commensurate with the charged violation,

Petitioner‘s counsel contended that the Board should have considered imposing

this less severe (in Petitioner‘s estimation) penalty.

16

discretion. See Johnson, 398 A.2d at 365 (explaining that to exercise its discretion

in a rational and informed manner, the trier of fact must be aware of the ―range of

permissible alternatives‖).

A variety of considerations are relevant to determining whether amended §

25-830 (c)(3) was applicable. ―[W]here the legislature has determined to give

retroactive effect to a new law that it considers salutary, actions that are still

pending and have not been reduced to judgment raise no concern with applying a

new provision that attaches new legal consequences to events completed before its

enactment.‖ Holzsager v. District of Columbia Alcoholic Beverage Control Bd.,

979 A.2d 52, 57 n.5 (D.C. 2009) (internal quotation marks, bracket, ellipsis, and

citation omitted). But if the Council did not ―expressly prescribe[] the [amended]

statute‘s proper reach,‖ Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994),

resort must be had to other principles that are relevant to whether a statutory

amendment should be applied to a pending case. Holzsager, 979 A.2d at 56-57.

One general rule, ―in matters where one of the parties is a public entity charged

with administering a regulatory program for the benefit of a community‖ and ―the

new legislation is intended to redound to the benefit of all,‖ is that ―the law in

effect shall be given force.‖ Id. at 57 (internal quotation marks omitted). But there

are also ―the canon that ‗[a] statute imposing a new penalty . . . will not be

17

construed as having a retroactive effect;‘ and the countervailing rule that

‗[r]emedial statutes are to be liberally construed and if a retroactive interpretation

will promote the ends of justice, they should receive such construction.‘‖

Landgraf, 511 U.S. at 263 n.16 (citation omitted).

Petitioner appears to regard the 2013 amendment to § 25-830 (c)(3) as

remedial legislation that affords licensees the opportunity for a less severe penalty

for a fourth primary-tier violation. By contrast, the relevant legislative history

suggests that the Council viewed the amendment as ―[e]stablish[ing] a stricter

penalty for a fourth primary tier offense within four years[,]‖11 language that may

support an interpretation that amended § 25-830 (c)(3) created a new penalty that

should not be applied to an infraction that pre-dated it. Respondent‘s brief

suggests that the Board was not bound to apply amended § 25-830 (c)(3) because,

at the time of its Order, the Board had not yet promulgated a conforming

regulation. See Respondent‘s Brief at 21 n.7 (―The prior rule that was operative

for this case only allowed for revocation.‖).12

11

D.C. Council Committee on Human Services, Report on B19-824 at 24

(Nov. 8, 2012).

12

The basis of this argument appears not to be the (wholly) untenable

suggestion that agency regulations can ―trump‖ a statute, but the perhaps less

untenable suggestion that D.C. Code § 25-830 (g) defers the effective date of

(continued…)

18

The Board did not explicitly consider any of the foregoing points. We

conclude that ―[i]n accordance with our usual practice, we [should] not attempt to

[decide the issue of the retroactive effect of amended § 25-830 (c)(3)] before the

agency charged with administering [the statute] has done so[.]‖ Brown v. District

of Columbia Dep’t of Emp’t Servs., 83 A.3d 739, 751-52 (D.C. 2014). ―The

interpretation . . . should be made, in the first instance, by the agency.‖ Id. at 752

(internal quotation marks and citation omitted). We direct that, if the Board‘s

finding that Petitioner violated D.C. Code § 25-723 (b) is reinstated, or, if the

Board finds after a new hearing that she violated § 25-723 (b), then the Board must

determine whether the amended § 25-830 (c)(3) applies to Petitioner‘s case. If the

Board determines that the amended version does apply, then, in fashioning a

sanction, the Board must consider as one option whether it should impose a fine of

at least $30,000 in lieu of revoking Petitioner‘s license.

The matter is remanded for further proceedings consistent with this opinion.

(…continued)

statutorily established fines by providing that ―[t]he schedule [of fines established

by the Council] and any [Board] amendments to the schedule[, which are

authorized by § 25-830 (f),] shall be published in the District of Columbia Register

and promulgated by the procedure adopted under § 25-211 (e).‖ D.C. Code § 25-

830 (g).

19

So ordered.

MCLEESE, Associate Judge, concurring in the judgment in part and

dissenting in part:

I agree with the court that the Board‘s ruling in this case was not tainted by

the Board‘s awareness that petitioner Alemayehu had offered to settle the case and

faced an investigation in another matter. I also agree with the court that the case

should be remanded for the Alcohol Beverage Control Board to determine whether

petitioner Alemayehu is a communication-impaired person within the meaning of

the local statute governing the appointment of interpreters in judicial and

administrative proceedings, D.C. Code § 2-1901 et seq. (2012 Repl.). I write

separately on the latter point to provide a brief explanation of my reasoning. First,

at the December 2012 show-cause hearing before the Board, an interpreter

translated the proceedings for Ms. Alemayehu. At the same hearing, Ms.

Alemayehu‘s attorney represented to the Board that his client did not understand

English well enough to understand his advice and explanations. Taken together,

these circumstances put the Board on notice of substantial grounds for concern that

Ms. Alemayehu was a communication-impaired person. Cf., e.g., United States v.

20

Tapia, 631 F.2d 1207, 1209-10 (5th Cir. 1980) (where defendant had benefit of

interpreter at arraignment, trial court erred by failing to inquire about defendant‘s

need for interpreter in later proceedings). Second, even in the absence of a request,

the Board had discretion to appoint an interpreter for Ms. Alemayehu in connection

with the subsequent proceedings before the Board. D.C. Code § 2-1902 (c). Third,

in light of the grounds for concern, the Board was obliged to inquire into whether

Ms. Alemayehu was a communication-impaired person. Cf., e.g., Luna v. Black,

772 F.2d 448, 451 (8th Cir. 1985) (per curiam) (―When a trial court is put on notice

that there may be some significant language difficulty, the court should determine

whether an interpreter is needed . . . .‖) (internal quotation marks omitted). Fourth,

simply accepting the reassurance given by Ms. Alemayehu‘s new attorney was not

an adequate inquiry, given the prior use of an interpreter and the conflict between

the new attorney‘s reassurance and the representations of previous counsel. At a

minimum, the Board should have inquired directly of Ms. Alemayehu. Cf., e.g.,

Bates v. United States, 834 A.2d 85, 95-96 (D.C. 2003) (trial court abused

discretion by failing to conduct further inquiry on issue of juror bias; given conflict

between testimony of one witness and proffer of counsel as to testimony of another

witness, trial court was required to hear directly from latter witness and to conduct

whatever other inquiry was needed in order to have ―firm factual foundation‖ for

ruling).

21

I respectfully dissent from the court‘s disposition of petitioner‘s belated

contention that, in revoking Ms. Alemayehu‘s license, the Board abused its

discretion by failing to consider the potential applicability of a 2013 amendment to

D.C. Code § 25-830 (c)(3) (in cases involving licensee‘s fourth primary-tier

violation, permitting Board to suspend license and impose substantial fine, rather

than revoking license). Ms. Alemayehu apparently never brought that amendment

to the Board‘s attention. Nor did Ms. Alemayehu rely on that amendment in her

brief in this court, instead simply arguing in a conclusory manner that license

revocation was an unreasonably harsh sanction. The Board did mention the

amendment in its brief in this court, arguing that the amendment was inapplicable.

Ms. Alemayehu did not file a reply brief. It was not until oral argument in this

court that Ms. Alemayehu first contended that the Board erred by failing to

consider the 2013 amendment. Under well settled principles, this court normally

would not consider a claim raised so belatedly. See, e.g., D.C. Library

Renaissance Project/West End Library Advisory Grp. v. District of Columbia

Zoning Comm’n, 73 A.3d 107, 124 n.9 (D.C. 2013). I see no extraordinary

circumstances justifying a departure from these well settled principles. To the

contrary, any assumed error by the Board in failing to consider the 2013

amendment would clearly be harmless, given that the Board expressly concluded,

22

in the exercise of its discretion, that revocation rather than fine or suspension was

the proper sanction. I understand that, at the time the Board reached that

conclusion, the Board may not have been considering the possibility of a fine as

large as would be permissible under the 2013 amendment. But I see no reason to

suppose that the Board would have been inclined in this case to forgo revocation in

favor of suspension and a larger fine. Rather, in revoking Ms. Alemayehu‘s

license, the Board explained that Ms. Alemayehu had ―shown she cannot comply

with the law, and that she has no regard for public safety, or the quality of life of

residents.‖ Under the circumstances, remanding to require the Board to consider

the potential applicability of the 2013 amendments would be unwarranted even if

Ms. Alemayehu had properly presented this issue to the Board and to this court.

Cf., e.g., Le Chic Taxicab Co. v. District of Columbia Taxicab Comm’n, 614 A.2d

943, 945 (D.C. 1992) (per curiam) (remand warranted ―only if substantial doubt

exists whether the agency would have made the same ultimate finding with the

error removed‖) (internal quotation marks omitted).

In sum, I would remand for the Board to determine whether Ms. Alemayehu

is a communication-impaired person. If so, the Board would have to conduct new

proceedings, and in that setting the Board could appropriately consider the

potential applicability of the 2013 amendments. But if Ms. Alemayehu is not a

23

communication-impaired person, then in my view the Board should be permitted to

reinstate the prior order in its entirety.