B-124442, JANUARY 10, 1962, 41 COMP. GEN. 450

B-124442, JANUARY 10, 1962, 41 COMP. GEN. 450

DISTRICT OF COLUMBIA - LICENSE, PERMIT, ETC., FEES - FEDERAL AGENCY LIABILITY THE DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY IN ITS OPERATION OF APARTMENT AND TENEMENT HOUSES PENDING EVACUATION AND DEMOLITION INCIDENT TO CONSTRUCTION OF URBAN RENEWAL PROJECTS AUTHORIZED UNDER THE DISTRICT OF COLUMBIA REDEVELOPMENT ACT OF 1945 IS NOT ENGAGED IN THE USUAL BUSINESS OF OPERATING APARTMENT OR TENEMENT HOUSES FOR COMPLIANCE WITH THE LICENSE REQUIREMENTS PRESCRIBED FOR OWNERS OR MANAGERS IN 47 D.C. CODE 2328, AND, THEREFORE, THE JUDICIAL DETERMINATION THAT THE DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY IS A FEDERAL AGENCY AS DISTINGUISHED FROM A DISTRICT OF COLUMBIA AGENCY FOR CERTAIN PURPOSES IS FOR APPLICATION TO THE QUESTION OF COMPLIANCE WITH THE DISTRICT OF COLUMBIA LICENSE LAW AND THE AGENCY IS NOT REQUIRED TO PAY THE APARTMENT AND TENEMENT HOUSE OPERATION LICENSE FEES.

TO THE DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY, JANUARY 10, 1962:

THERE IS CONSIDERED HEREIN THE APPLICABILITY OF THE GENERAL LICENSE LAW OF THE DISTRICT OF COLUMBIA, D.C. CODE, SECTIONS 47-2301 TO 47 2350, TO THE OPERATION BY THE DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY OF APARTMENT AND TENEMENT HOUSES ACQUIRED IN CONNECTION WITH THE URBAN RENEWAL PROGRAM; PARTICULARLY, THE LIABILITY OF THE AGENCY FOR THE LICENSE FEES PRESCRIBED THEREUNDER BY THE DISTRICT OF COLUMBIA COMMISSIONERS FOR PAYMENT BY "OWNERS OR MANAGERS" OF APARTMENT AND TENEMENT HOUSES ( COMMISSIONERS' ORDER NO. 301,260/10, AS AMENDED). THE MATTER WAS THE SUBJECT OF YOUR OFFICE LETTER OF AUGUST 15, 1961, WITH ENCLOSURES, AND THAT OF THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, DATED OCTOBER 26, 1961.

THE GENERAL LICENSE LAW, WHICH ORIGINATED AS SECTION 7 OF THE APPROPRIATION ACT FOR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA FOR THE FISCAL YEAR 1903 (47 D.C. CODE 2301), STATES:

NO PERSON SHALL ENGAGE IN OR CARRY ON ANY BUSINESS, TRADE, PROFESSION, OR CALLING IN THE DISTRICT OF COLUMBIA FOR WHICH A LICENSE FEE OR TAX IS IMPOSED BY THE TERMS OF THIS SECTION WITHOUT HAVING FIRST OBTAINED A LICENSE SO TO DO.

PARAGRAPH 48 OF SECTION 7, AS AMENDED (47 D.C. CODE 2307), PROVIDES:

FOR THE PURPOSES OF THIS SECTION THE WORD "PERSON" SHALL SIGNIFY AND INCLUDE FIRMS, CORPORATIONS, COMPANIES, ASSOCIATIONS, EXECUTORS, ADMINISTRATORS, GUARDIANS, OR TRUSTEES * * *.

OF PARTICULAR SIGNIFICANCE HEREIN IS PARAGRAPH 28 OF SECTION 7, AS AMENDED (47 D.C. CODE 2328), UNDER AUTHORITY OF WHICH THE DISTRICT OF COLUMBIA GOVERNMENT ASSERTS THE RIGHT TO COLLECT FROM THE AGENCY THE PRESCRIBED LICENSE FEES:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE AUTHORIZED AND EMPOWERED TO CLASSIFY, ACCORDING TO USE, METHOD OF OPERATION, AND SIZE, BUILDINGS CONTAINING LIVING OR LODGING QUARTERS OF EVERY DESCRIPTION, TO REQUIRE LICENSES FOR THE BUSINESS OPERATED IN EACH SUCH BUILDING AS IN THEIR JUDGMENT REQUIRES INSPECTION, SUPERVISION OR REGULATION BY ANY MUNICIPAL AGENCY OR AGENCIES, AND TO FIX A SCHEDULE OF LICENSE FEES THEREFOR IN SUCH AMOUNTS AS, IN THEIR JUDGMENT, WILL BE COMMENSURATE WITH THE COST TO THE DISTRICT OF COLUMBIA OF SUCH INSPECTION, SUPERVISION OR REGULATION: PROVIDED, HOWEVER, THAT NO LICENSE SHALL BE REQUIRED FOR SINGLE-FAMILY OR TWO-FAMILY DWELLINGS, NOR FOR A ROOMING HOUSE OFFERING ACCOMMODATIONS FOR NO MORE THAN FOUR ROOMERS.

THE DISTRICT OF COLUMBIA REDEVELOPMENT ACT OF 1945, 60 STAT. 790, D.C. CODE, SECTIONS 5-701 TO 5-719, WHICH ESTABLISHED THE DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY AS A BODY CORPORATE OF PERPETUAL DURATION, DECLARES THAT OWING TO TECHNOLOGICAL AND SOCIOLOGICAL CHANGES, OBSOLETE LAYOUT, AND OTHER FACTORS, CONDITIONS EXISTING IN THE DISTRICT OF COLUMBIA WITH RESPECT TO SUBSTANDARD HOUSING AND BLIGHTED AREAS ARE INJURIOUS TO THE PUBLIC HEALTH, SAFETY, MORALS, AND WELFARE. THE ACT DECLARES THAT IT IS THE POLICY OF THE UNITED STATES TO PROTECT AND PROMOTE THE WELFARE OF THE INHABITANTS OF THE SEAT OF THE GOVERNMENT BY ELIMINATING THE INJURIOUS CONDITIONS. IT STATES THAT AS CONTROL BY REGULATORY PROCESSES HAVE PROVED INADEQUATE AND INSUFFICIENT TO REMEDY THE EVILS, IT IS IN THE JUDGMENT OF CONGRESS NECESSARY TO ACQUIRE PROPERTY IN THE DISTRICT OF COLUMBIA TO EFFECTUATE THE DECLARED POLICY BY THE DISCONTINUANCE OF THE USE FOR HUMAN HABITATION IN THE DISTRICT OF COLUMBIA OF SUBSTANDARD DWELLINGS AND OF BUILDINGS IN ALLEYS AND BLIGHTED AREAS, AND THEREBY TO ELIMINATE THE SUBSTANDARD HOUSING CONDITIONS AND THE COMMUNITIES IN THE INHABITED ALLEYS AND BLIGHTED AREAS IN THE DISTRICT. IT FURTHER DECLARES THE NECESSITY OF MODERNIZING THE PLANNING AND DEVELOPMENT OF SUCH PORTIONS OF THE DISTRICT.

TO PROVIDE FOR THE REPLANNING AND REBUILDING OF BLIGHTED AREAS OF THE NATION'S CAPITAL, THE REDEVELOPMENT ACT ESTABLISHES A LEGISLATIVE SCHEME, IN GENERAL, OF (1) PLANNING BY THE NATIONAL CAPITAL PLANNING COMMISSION, (2) APPROVAL OF THE REDEVELOPMENT PLAN OF THE PROJECT AREA BY THE D.C. COMMISSIONERS, AND (3) THE EXERCISE OF THE POWERS GRANTED TO THE REDEVELOPMENT LAND AGENCY BY THE ACT FOR THE ACQUISITION AND DISPOSITION OF REAL PROPERTY FOR THE REDEVELOPMENT OF A PROJECT AREA. SPECIFICALLY, THE ACT GRANTS THE AGENCY THE POWER TO "ACQUIRE AND ASSEMBLE REAL PROPERTY BY PURCHASE, EXCHANGE, GIFT, DEDICATION, OR EMINENT DOMAIN, AND INCLUDING THE POWER TO RENT, MAINTAIN, MANAGE, OPERATE, REPAIR, CLEAR, TRANSFER, LEASE, AND SELL SUCH REAL PROPERTY * * *.'

IN THE ACQUISITION OF LAND IN PROJECT AREAS, IT APPEARS THE REDEVELOPMENT LAND AGENCY HAS ACQUIRED APARTMENT OR TENEMENT HOUSES WHICH IT OPERATES PENDING THE RELOCATION OF THE OCCUPANTS. THE FUNCTIONS OF RENTING, MANAGING AND OPERATING PROPERTY ARE INTERIM FUNCTIONS AND ARE INCIDENTAL TO THE MORE IMPORTANT SUBSEQUENT ACTIVITIES OF CLEARANCE AND DISPOSITION.

IT IS THE POSITION OF THE D.C. GOVERNMENT THAT THE REDEVELOPMENT AGENCY IN THE OPERATION OF APARTMENT AND TENEMENT HOUSES ACQUIRED IN THE ASSEMBLY OF LAND FOR A REDEVELOPMENT PROJECT IS SUBJECT TO THE LICENSE LAW OF THE DISTRICT OF COLUMBIA. IT IS CONTENDED THAT AS THE LICENSING LAW IS "INEXTRICABLY INTERWOVEN WITH PUBLIC HEALTH AND SAFETY," HAVING FOR ITS PURPOSE THE COMPLIANCE WITH HEALTH AND SAFETY LAWS, IT SHOULD BE CONSIDERED APPLICABLE TO THE AGENCY EVEN THOUGH NOT SPECIFICALLY MENTIONED THEREIN.

HOWEVER, THE DISTRICT OF COLUMBIA REDEVELOPMENT ACT OF 1945, UNDER AUTHORITY OF WHICH THE ACQUIRED APARTMENT AND TENEMENT HOUSES ARE OPERATED ON AN INTERIM BASIS, FROM THE TIME OF ACQUISITION TO DESTRUCTION FOLLOWING VACATING BY OCCUPANTS, ALSO IS CONCERNED WITH PUBLIC HEALTH AND SAFETY. ITS APPROACH TO THE PROBLEM IS RADICALLY DIFFERENT FROM THAT OF LICENSING- -- "CONTROL BY REGULATORY PROCESS HAVING PROVED INADEQUATE AND INSUFFICIENT TO REMEDY THE EVILS.' TO ACHIEVE THE DECLARED POLICY OF THE UNITED STATES, THE ELIMINATION OF BLIGHTED AREAS IN THE DISTRICT OF COLUMBIA, IT ESTABLISHED A NEW AGENCY, THE DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY, WHICH ,IN SPITE OF ITS NAME AND LIMITED AREA OF OPERATION" HAS JUDICIALLY BEEN HELD, FOR THE PURPOSE OF THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 2671, ET SEQ., TO BE A FEDERAL AGENCY AS DISTINGUISHED FROM A DISTRICT OF COLUMBIA AGENCY. GODDARD V. DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY, 287 F.2D 343 (1961). AND AS THE AGENCY WAS ESTABLISHED TO EFFECTUATE A DECLARED POLICY OF THE UNITED STATES, THE REDEVELOPMENT OF BLIGHTED AREAS OF THE NATION'S CAPITAL, WE SEE NO REASON WHY A SIMILAR VIEW OF THE AGENCY'S STATUS SHOULD NOT BE ADOPTED IN THE PRESENT CONTEXT. CF. B-121019, JUNE 7, 1955; B-122095, JUNE 7, 1955.

CONSIDERING THE LEGISLATIVE SCHEME OF THE REDEVELOPMENT ACT, IN WHICH THE FUNCTIONS OF THE DISTRICT OF COLUMBIA ARE PRESCRIBED, WE FIND LITTLE OF PERSUASIVE VALUE WARRANTING THE IMPOSITION BY INTERPRETATION OF THE LICENSING AUTHORITY OF THE DISTRICT OF COLUMBIA UPON THE FUNCTIONS ASSIGNED TO THE REDEVELOPMENT LAND AGENCY. IT IS NOTED THE CONGRESS, WITH REGARD TO THE SOMEWHAT RELATED QUESTION OF THE AGENCY'S EXEMPTION FROM REAL PROPERTY TAXATION, SPECIFICALLY DEALT WITH THE MATTER (SEE SECTION 13 OF THE ACT, D.C. CODE, SECTION 5-712), AND IN THE CASE OF THE NATIONAL CAPITAL HOUSING AUTHORITY PROVIDED THAT CERTAIN DEVELOPMENT FUNCTIONS "SHALL BE DONE AND PERFORMED IN ACCORDANCE WITH THE LAWS AND MUNICIPAL REGULATIONS OF THE DISTRICT OF COLUMBIA APPLICABLE THERETO" ( D.C. CODE 5- 103 (C) ).

MOREOVER, WE ENTERTAIN DOUBT THAT THE D.C. LICENSING ACT CONTEMPLATES THE APARTMENT AND TENEMENT HOUSE OPERATION HERE INVOLVED. PARAGRAPH 28 OF THE ACT, WITH REFERENCE TO BUILDINGS HAVING LIVING OR LODGING QUARTERS, AUTHORIZES THE COMMISSIONERS "TO REQUIRE LICENSES FOR THE BUSINESS OPERATED IN EACH SUCH BUILDING AS IN THEIR JUDGMENT REQUIRES INSPECTION * * *.' ( ITALICS SUPPLIED.) WHILE THE TERM "BUSINESS, AS USED IN THE PARAGRAPH SHOULD BE BROADLY CONSTRUED IN THE LIGHT OF THE PURPOSE OF THE PROVISION, WE CANNOT OVERLOOK THE FACT THAT PARAGRAPH 28 IS PART OF A GENERAL LAW AIMED PRIMARILY AT THE POLICING OF PRIVATE BUSINESSES, TRADES, AND CALLINGS (47 D.C. CODE 2307). UNLIKE THE USUAL BUSINESS OF OPERATING AN APARTMENT OR TENEMENT HOUSE, THE OBJECTIVES OF WHICH ARE MAXIMUM OCCUPANCY, MINIMUM TENANT TURNOVER, AND CONSERVATION OF THE PROPERTY, THE REDEVELOPMENT LAND AGENCY IN ITS OPERATION OF AN APARTMENT OR TENEMENT HOUSE ACQUIRED IN FURTHERING THE STATED NATIONAL POLICY SEEKS EVACUATION OF THE PROPERTY BY THE OCCUPANTS, DOES NOT RERENT VACATED QUARTERS, AND SCHEDULES THE PROPERTY FOR DEMOLITION.

IN VIEW OF THE FOREGOING, WE ARE OF THE OPINION THAT THE GENERAL LICENSE LAW OF THE DISTRICT OF COLUMBIA, PARTICULARLY PARAGRAPH 28 PERTAINING TO THE BUSINESS OF OPERATING APARTMENT OR TENEMENT HOUSES, IS NOT APPLICABLE TO THE REDEVELOPMENT LAND AGENCY AND WE CONCUR IN THE VIEW OF YOUR AGENCY THAT IT IS NOT REQUIRED TO PAY THE LICENSE FEES INVOLVED.