Howard v. England

QUINN, Associate Judge. This is an appeal from an order of the Director of Motor Vehicles suspending petitioner’s operator’s permit. The primary contention is that petitioner was denied a fair hearing in accordance with established administrative procedure. On January 16, 1964, petitioner, while driving a taxicab, struck and seriously injured two pedestrians. On the same day he was served with a notice requiring him to show cause why his operator’s permit should not be suspended. A hearing was scheduled for January 30, 1964, at 8:30 a. m. and petitioner was so informed. On that date petitioner failed to appear at the time specified. After waiting until 8:52 a. m. the hearing officer opened the proceedings by calling the arresting officer, the only witness. After his brief testimony, the hearing was concluded at 9:00 a. m. The hear [781] ing officer announced that he was suspending petitioner’s permit for the reason that he “did operate a motor vehicle in such a manner as to show a flagrant disregard for the safety of persons and property. To wit, * * * [he] did fail to give full time and attention to the operation of a motor vehicle, resulting in bodily injury to pedestrians in a crosswalk.” 1 Shortly after 9:00 a. m. it is alleged petitioner appeared at the hearing room carrying a letter from his attorney requesting that the hearing be continued for several days.2 The hearing officer did not open the letter, nor was petitioner given an opportunity to make a statement. On February 25, 1964, the Director affirmed the hearing officer’s finding. Respondent contends that petitioner’s failure to appear at the appointed hour justified the ex parte nature of the proceeding, tie relies on Section 5(b) of the regulations which provides in part: “The operator’s permit or privilege of a person served with the aforesaid notice shall, if he fails to appear for the required hearing within the prescribed period, stand suspended or revoked after the expiration of such period, until such time as his permit or privilege may be restored by the Director of Motor Vehicles.”3 We find Section 5(b) inapplicable here for it refers to a person who fails to appear for the required hearing. In the case at bar petitioner’s tardiness was excusable. Under the circumstances there was no valid basis for denying him the opportunity to be heard. We rule, therefore, that petitioner did not receive the fair hearing required by due process. See Ritch v. Director of Vehicles & Traffic of District of Columbia, D.C.Mun.App., 124 A.2d 301 (1956).4 Accordingly, the order is Reversed and remanded for proceedings not inconsistent with this opinion. Footnotes [1] The official order of suspension provided : “Suspended pending appearance to offer testimony as directed, final disposition of charges pending in court and final decision of the Department of Motor Vehicles.” [2] Counsel was ill and unable to find an attorney who would appear in his behalf. The letter indicated that the Department of Motor Vehicles had been so advised the previous day. [3] Part V of the Traffic and Motor Vehicle Regulations of the District of Columbia. [4] Respondent apparently contemplated some remedial action for the final order of suspension was conditioned upon petitioner’s “appearance to offer testimony as directed.” The record, however, fails to disclose any attempt to schedule a second hearing.