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Okoro v. Maryland Department of Environment

Court of Special Appeals of Maryland

May 28, 2015

CHUKUEMEKA OKORO
v.
MARYLAND DEPARTMENT OF THE ENVIRONMENT

Woodward, Hotten, Salmon, James P. (Retired, Specially Assigned), JJ.

OPINION

Woodward, J.

Appellee, the Maryland Department of the Environment ("the Department"), initiated enforcement proceedings against appellant, Chukuemeka Okoro, after discovering violations of the Reduction of Lead Risk in Housing Act ("the Act") in two of Okoro's rental properties in Baltimore City. Okoro was granted a hearing before an Administrative Law Judge ("ALJ"), who found that Okoro had violated the Act, that his violations were willful and had the potential for harm to human safety, and that the Department's penalty of $37, 500 was appropriate. Okoro petitioned for judicial review in the Circuit Court for Baltimore City, which reversed and remanded the ALJ's decision with instructions for the parties to argue the appropriate penalties without considering the violations' potential for harm to human safety.

On remand, the ALJ refused to allow Okoro to present additional evidence, and heard argument only on whether Okoro's violations were willful. The ALJ issued a revised decision, finding that Okoro's violations were willful, and assessing a penalty of $25, 650. Okoro filed a second petition for judicial review in the circuit court, which affirmed the revised decision.

Okoro presents three questions for our review, which we have rephrased as follows:

1. Do substantial evidence and applicable law support the ALJ's finding that Okoro's violations were willful?
2. Did the ALJ err by refusing to allow Okoro to argue the issue of willfulness at the remand hearing?
3. Did the ALJ err by excluding the additional testimony proffered by Okoro regarding the lead risk reduction certificate for the Park Avenue property at the remand hearing?

We answer the first question in the affirmative and the second and third questions in the negative. Accordingly, we affirm the judgment of the circuit court.

BACKGROUND

Okoro is the owner of two residential rental properties in Baltimore, Maryland: (1) 105 West Saratoga Street, Unit 2 ("the Saratoga Street property"), and (2) 1408 Park Avenue, Unit 1 ("the Park Avenue property"). Both properties were constructed before 1950, and thus are considered "affected properties" subject to the registration and lead risk reduction certification requirements under the Act. See Md. Code (1996, 2013), §§ 6-801, -811, -812, -815 of Environment Article ("Env't")

In May of 2010, Kurt Kroncke moved into the Saratoga Street property. The Saratoga Street property was not registered as an "affected property, " nor was a lead risk reduction certificate ("certificate") submitted to the Department upon the change of occupancy, as required by the Act. On August 10, 2011, Whitney Blomquist moved into the Park Avenue property. The Park Avenue property was initially registered as an "affected property" on May 2, 2004, but the registration had not been renewed as of Blomquist's move-in, nor was a certificate submitted to the Department upon the change of occupancy, as required by the Act.

On August 15, 2011, Blomquist reported to the Department that the Park Avenue property did not have a valid certificate, and the Department opened an investigation into all of Okoro's rental properties. After Okoro was informed of Blomquist's complaint in August 2011, he arranged for both properties to be inspected on October 31, 2011. Okoro filed a certificate for the Saratoga Street property on October 31, 2011, but the Park Avenue property needed remedial work before a certificate could be issued.

On March 15, 2012, the Department filed an Administrative Complaint, Order and Penalty ("Administrative Complaint") against Okoro for various violations of the Act. The Administrative Complaint alleged that Okoro (1) failed to register or renew the registration of the Park Avenue and Saratoga Street properties; (2) failed to bring both properties into compliance with the lead risk reduction standard; and (3) failed to obtain certificates for both properties. The Administrative Complaint ordered Okoro to bring all of his properties into compliance with the Act, and sought a $2, 500 penalty for the registration violations, and a $35, 000 penalty for the risk reduction violations.

On March 29, 2012, Okoro requested a hearing before the Office of Administrative Hearings (OAH) to contest the Administrative Complaint. Okoro registered the Park Avenue property and the Saratoga Street property as "affected properties" on April 8, 2012.

On June 12, 2012, a hearing was held before an ALJ, at which Okoro appeared pro se. At the outset of the hearing, Okoro moved to dismiss the Administrative Complaint on the grounds that he was in compliance with the Act. The Department conceded that the Saratoga Street property was "brought into compliance" with the risk reduction requirements as of the date of the filing of the Administrative Complaint, but alleged that "there was a significant period of time that that property was in violation." In addition, the Department stated that the Park Avenue property remained in violation of the risk reduction requirements as of the date of the hearing, because there was no valid certificate on file with the Department. The ALJ denied the motion to dismiss, and both sides called witnesses and presented evidence on the merits.

In a decision issued on September 7, 2012, the ALJ determined: (1) Okoro violated the Act's registration and risk reduction certification requirements for both properties; (2) Okoro violated the Act's 100% compliance requirement; and (3) the Department's $37, 500 penalty was reasonable and within its statutory authority. To decide whether the Department's penalty was appropriate, the ALJ considered eight factors, as required by the Act, and found that two factors were present: (1) Okoro's violations were willful, because he failed to exercise reasonable care in remedying the certification violation for the Park Avenue property, and provided no explanation for the other violations; and (2) Okoro's violations had the potential for harm to human safety, because Blomquist was a woman of child-bearing age. The ALJ ordered Okoro to pay the $37, 500 penalty requested by the Department and bring the Park Avenue property into compliance with the Act's lead risk reduction requirements within thirty days.

On September 21, 2012, Okoro, now represented by counsel, filed a petition for judicial review in the Circuit Court for Baltimore City. In his memorandum filed on December 18, 2012, Okoro challenged (1) the ALJ's findings that Okoro had violated the Act's registration and certification requirements, that Okoro's violations were "willful, " and that the violations had the potential for harm to human safety, (2) the ALJ's impartiality, and (3) the ALJ's characterization of the Park Avenue property's certificate as "undated." The Department filed an Answering Memorandum on January 18, 2013.

On March 25, 2013, the circuit court held a hearing and issued an order holding that the Department failed to establish that Blomquist was a "person at risk" as defined by the Act, because the Department never proved that Blomquist was pregnant and spent at least twenty-four hours per week in the Park Avenue property. The court (1) reversed and remanded the agency's decision "insofar as it assesses penalties against [Okoro], " (2) ordered that the parties be "granted an opportunity to argue the issue of imposition of penalties without considering the 'potential for harm to human health or safety' factor, " and (3) ordered the ALJ to make a determination of the imposition of penalties without considering the "potential for harm to human health or safety" factor.

On October 9, 2013, the ALJ held a remand hearing "to give the parties an opportunity to argue the issue of imposition of penalties." At the outset of the hearing, the ALJ heard argument on the Department's motion to quash Okoro's request for a subpoena of a Department employee ("Okoro's witness") to rebut the Department's testimony at the June 12, 2012 hearing regarding the status of Okoro's certificates on file with the Department. The ALJ granted the Department's motion to quash on the grounds that the circuit court's remand order did not provide that additional evidence could be taken at the remand hearing.

On the merits, the Department argued that the ALJ should uphold its original penalty of $37, 500, because Okoro's violations were willful. Okoro responded that his violations were not willful under Maryland law, because "he did not know of the violations" and he "had taken reasonable efforts" to remedy the violations as soon as he was made aware of them. Okoro reiterated his argument that the Department misled the ALJ at the previous hearing regarding the status of Okoro's certificates.

Two days after the hearing, Okoro filed a motion for mistrial on the ground, among others, that the ALJ erred in failing to allow Okoro's witness to testify at ...


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