IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION
__________________________________________
)
ANDRE R. CARLEY, et al., )
)
Plaintiffs, )
) 2010 CA 002262 R(RP)
v. ) Judge Alfred S. Irving, Jr.
) Calendar 8
DISTRICT OF COLUMBIA, )
)
Defendant. )
__________________________________________)

ORDER

This matter is before the Court upon Defendant District of Columbia’s (“the District”)

Motion to Dismiss, filed on October 28, 2010. Plaintiffs opposed the motion on November 11,

2010. Also pending before the Court is First Cash Financial Services, Inc.’s (“First Cash”)

October 13, 2010 Motion to Intervene as of Right as Defendant. Plaintiffs opposed the motion to

intervene. On October 29, 2010, the Court heard oral argument on both motions. The Court

deferred immediate ruling on the motions in order to allow Plaintiffs the opportunity to file an

opposition to the District’s motion to dismiss. With Plaintiffs’ opposition now before the Court,

the Court herein considers both motions and finds that the District’s motion, in particular, must be

granted, thereby rendering First Cash’s motion to intervene moot.

Plaintiffs filed their complaint for injunctive relief on April 7, 2010. The Complaint’s

allegations concern Famous Pawn, Inc.’s application “for permits and/or licenses to open and

operate a pawnshop” at 7301 Georgia Avenue, N.W., Washington, DC. Compl. at ¶ 6. Georgia

Avenue represents the boundary between Advisory Neighborhood Commission (“ANC”) 4A and

ANC 4B. As such, both ANCs possess jurisdiction over the location. Plaintiffs assert three

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separate claims: (1) the District, through the Department of Consumer and Regulatory Affairs

(“DCRA”), failed to “notify ANC 4A and ANC 4B of all applications submitted to it by Famous

Pawn for a permit or license to open and operate a pawnshop . . . as required by D.C. Code § 1-

207.38(d);” (2) the District failed to “notify ANC 4A and ANC 4B of its issuance of any permits

and licenses to Famous Pawn to open and operate a pawnshop . . . as required by D.C. Code § 1-

207.38(d);” and (3) the District failed to “give great weight in accordance with D.C. Code § 1-

309.10(d)(3)(A) to any comments, recommendations, or position presented to it by ANC 4A and

ANC 4B” as to the permit issue. Compl. at ¶ 13, 14, and 15 (emphasis added). After a hearing on

Plaintiffs’ Motion for Temporary Restraining Order, on April 13, 2010, the Hon. Robert S. Tignor

ordered the District to “timely notify ANC 4A and ANC 4B . . . of any future applications

submitted to it by or on behalf of Famous Pawn, Inc., for a permit or license to establish and

operate a pawnshop” at the Georgia Avenue location.

Central to Plaintiffs’ claims is whether issuance of a license or permit to a pawnbroker is

“of significance to neighborhood planning and development” under D.C. Code § 1-207.38(d).

D.C. Code § 1-207.38(d) provides, as follows:

In the manner provided by act of the Council, in addition to any other notice
required by law, timely notice shall be given to each Advisory Neighborhood
Commission of requested or proposed zoning changes, variances, public
improvements, licenses, or permits of significance to neighborhood planning
and development within its neighborhood commission area for its review,
comment, and recommendation.

Subsequent to the filing of Plaintiffs’ suit, on May 19, 2010, the Council of the District of

Columbia (“D.C. Council”) enacted the Predatory Pawnbroker Regulation and Community

Notification Temporary Act of 2010 (“Temporary Pawnbroker Act”). The Temporary

Pawnbroker Act adopts language from D.C. Code § 1-207.38(d) and applies specifically to

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pawnbrokers, providing:

No license shall be issued to any person unless: (1) At least 30 days prior to
the issuance of a [pawnbroker] license, all Advisory Neighborhood
Commissions in the ward where the pawnbroker will be located shall be
provided notice that a pawnbroker license application has been submitted to
the Mayor; and (2) All affected Advisory Commissions have been accorded
great weight during deliberations to approve or deny the license application.

D.C. Act 18-0746, 57 D.C. REG. 4535. The Temporary Pawnbroker Act expires 225 days after

becoming effective. D.C. Council temporary legislation, because it bypasses the committee

assignment and Committee of the Whole processes, is more quickly enacted than permanent

legislation and provides time for the D.C. Council to consider and enact permanent legislation.

The parties represent that the D.C. Council is still in the process of enacting permanent

legislation, although passage of permanent legislation is not guaranteed. See Alternative Money

Lending and Services Reform Amendment Act of 2010, B-18-0715. Importantly, the fact of the

temporary legislation signals to the Court that the D.C. Council is aware of a concern for the

possible need for such legislation and is the appropriate body for making such determinations.

In its Motion to Dismiss, the District argues that the issue raised by Plaintiffs is rendered

moot because ANC 4A and ANC 4B have obtained notice of Famous Pawn’s pawnbroker license

application and have had the opportunity to provide comments on the application to DCRA.

Def.’s Mot. at 6.

A case is deemed moot and nonjusticiable when “there is no reasonable expectation that

the alleged violation will recur . . . and . . . interim relief or events have completely and

irrevocably eradicated the effects of the violation.” Hardesty v. Draper, 687 A.2d 1368, 1371

(D.C. 1997); In re Morris, 482 A.2d 369, 371 (D.C. 1984) (quoting County of Los Angeles v.

Davis, 440 U.S. 625, 631 (1979)). Plaintiff does not dispute that the case is moot as to the issues

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put before the Court, but rather argues that the case should nonetheless proceed under an

exception to the mootness doctrine. Pls.’ Opp. at 3-4.

Specifically, Plaintiffs argue that this case presents issues “of great public importance

which may recur in the future.” Id. at 3. In Plaintiffs’ view, assuming the Temporary

Pawnbroker Act is never made permanent by the D.C. Council, future ANCs will be left to

dispute with DCRA whether D.C. Code § 1-207.38(d) applies to pawnbroker licenses. In support

of the proffered “great public importance” exception to mootness, Plaintiffs cite an Illinois

Supreme Court case, which sets forth the following criteria for application of the exception:

“(1) the question presented is of a public nature; (2) an authoritative resolution of the question is

desirable to guide public officers; and (3) the question is likely to recur.” Cinkus v. Stickney

Mun. Officers Electoral Bd., 228 Ill. 2d 200, 208 (Ill. 2008). While this rule appears to be that

which is followed in Illinois, there is no evidence that the District of Columbia employs such an

exception, and the Court is not inclined to adopt such a rule at this time. Indeed, the Court finds

no support for the “great public importance” exception, though the exception itself is substantially

similar to the recognized “capable-of-repetition, but-evading-review” exception. The Court

nevertheless declines to apply Illinois law in this case.

To be sure, in the District of Columbia, the only relevant exception to mootness is where

“the court may nevertheless consider the case, if the violation is one that is capable of repetition,

yet will evade review.” Hardesty, 687 A.2d at 1371. The Court is not persuaded that the current

situation falls within such exception. Indeed, in order for a legal issue to be of the type that

evades review, it must be the case that “review of that issue will always be defeated if pursued in

the normal course of affairs.” Id. Enactment of emergency or temporary legislation by the D.C.

Council mooting whether D.C. Code § 1-207.38(d) applies to pawnbroker licenses cannot be said
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to occur in the “normal course of affairs.” In this case, even if the D.C. Council fails to enact

permanent legislation, the probability that this violation is subject to being repeated, and once

again rendered moot by the actions of the D.C. Council, appears too remote. Thus, quite simply,

the “capable of repetition, but evading review” exception does not apply. Therefore, Plaintiffs’

claims that D.C. Code § 1-207.38(d) requires notice of applications of pawnbroker licenses and

issuances pawnbroker licenses are dismissed as moot.

Plaintiffs further contend that they have not yet received all of their requested relief

because DCRA has not yet rendered a decision on Famous Pawn’s pawnbroker license

application. In other words, at this time it is still unclear whether the comments provided by the

ANCs will be afforded the great weight required by the Temporary Pawnbroker Act. The Court

finds that whether the ANC comments are afforded great weight by the ANC is not yet ripe for

adjudication, as DCRA has yet to act on Famous Pawn’s pawnbroker license application.

“Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of

premature adjudication, from entangling themselves in abstract disagreements over administrative

policies, and also to protect the agencies from judicial interference until an administrative

decision has been formalized and its effects felt in a concrete way by the challenging parties.”

Local 36 Int’l Ass’n of Firefighters v. Rubin, 999 A.2d 891, 895-896 (D.C. 2010) (quoting

National Park Hospitality Ass’n v. Department of the Interior, 538 U.S. 803, 807-808 (2003))

(internal quotations omitted). The principles of ripeness apply to declaratory relief and may be

raised by the Court sua sponte. Id. (citing McIntosh v. Washington, 395 A.2d 744, 749 (D.C.

1978); Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)). At this juncture, the

Court could, in theory, order DCRA to give great weight to the comments provided by the ANCs.

However, such direction would not be any different from what is already required under the
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Temporary Pawnbroker Act, a valid District of Columbia Law. A Court Order would, therefore,

not alter the duties of DCRA. Moreover, because Famous Pawn’s application for a pawnbroker’s

license is still pending, with no administrative decision yet formalized, any action by this Court

would be impermissibly premature. Therefore, Plaintiffs request for an order directing DCRA to

give the ANC comments great weight shall be dismissed as not yet ripe for judicial review.

Based on the foregoing, the Court hereby grants Defendant District of Columbia’s Motion

to Dismiss. Consequently, First Cash Financial Services, Inc.’s (“First Cash”) Motion to

Intervene as of Right as Defendant is rendered moot.

Accordingly, it is this 22nd day of November 2010, hereby

ORDERED that Defendant District of Columbia’s Motion to Dismiss is GRANTED; and

it is

FURTHER ORDERED that First Cash Financial Services, Inc.’s (“First Cash”) Motion

to Intervene as of Right as Defendant is DENIED AS MOOT; and it is

FURTHER ORDERED that the case is DISMISSED.

So ordered.

___________________
Alfred S. Irving, Jr.
Associate Judge
(Signed in Chambers)
Copies to:

Samuel S. Sharpe, Esq.

Mark G. Chalpin, Esq.

Martha J. Mullen, Esq.

William B. Jaffe, Esq.

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Roderic L. Woodson, Esq.

Drew Shenkman, Esq.