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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION
DISTRICT OF COLUMBIA,
Plaintiff,

2016 CA 006471 B

v.
DIGI MEDIA COMMUNICATIONS LLC et al.,
Defendants.

Judge Alfred S. Irving, Jr.

ORDER
This case turns primarily on the proper interpretation of an exemption to the District of
Columbias (the District) sign permit regulations. The District filed a Complaint on
August 31, 2016, contending that Defendant, Digi Media Communications LLC (Digi) is
installing, and plans to install, signs without having obtained proper sign permits from the
Districts Department of Consumer and Regulatory Affairs (DCRA). Digi, for its part,
contends that its sign installations are exempt from the Districts sign permit requirements.
Currently before the Court is the Districts Motion for Preliminary Injunction, which was
filed the same day as its Complaint, along with the Districts Motion for Temporary Restraining
Order. By its Motion, the District seeks an order from this Court, requiring Digi to cease all
construction activities related to certain signs, to remove all signs and brackets that have already
been installed, and to comply with all DCRA orders and permitting requirements.
The Parties appeared for a hearing on the Districts Motion for Temporary Restraining
Order on September 8, 2016, at the conclusion of which Digi stipulated that it would cease all
sign-related work until the Court resolved the Districts Motion for Preliminary Injunction.
Subsequently, the Court held hearings over four days on the Districts Motion, during which the
Parties presented oral arguments and the Court heard testimony from witnesses. Upon review of
all of the Parties submissions, their arguments, the witnesses testimony, and the entire record
herein, the Court will grant the Districts Motion for Preliminary Injunction and order Digi to
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cease sign-related work as to all signs that Digi has planned for the exterior of certain buildings.
The Court will also order Digi to cease sign-related work as to all signs Digi has planned to
install on the inside of buildings set back at least 18 inches from a window or entrance. The
Court will also deny the Districts Motion for Temporary Restraining Order as moot. However,
the Court will not order Digi to remove any signs or brackets that it has already installed. Such
relief may only be appropriate if the District were to ultimately prevail on the merits of its claim
for injunctive relief.
I. BACKGROUND
A. The Districts Construction Codes and Sign Regulations
The Districts Construction Codes are designed to ensure that property owners abide by
standards that protect public safety and control a wide-range of matters that . . . concern the
construction, reconstruction, alteration, addition, repair, removal, demolition, use, location,
occupancy, and maintenance of all buildings, structures, signs, advertising devices, and premises
in the District . . . . District of Columbia v. Economides, 968 A.2d 1032, 1036 (D.C. 2009)
(quoting D.C. Code 6-1403(a)(1)). Construction work often requires a permit, but the
Districts Construction Codes contain numerous exemptions from permit requirements.
Appendix N of the Districts Building Code governs the erection, hanging, placing,
painting, display, and maintenance of outdoor display signs and other forms of exterior
advertising. D.C. Mun. Regs. tit. 12A, N101.1. No sign . . . that exceeds 1 square foot . . . in
area . . . shall be erected, made part of a building, painted, repainted, placed, replaced, hung, rehung, altered, repaired structurally, changed in color, made to flash, or maintained, without a
permit . . . . issued by DCRA. Id. N101.3.
A DCRA permit is an authorization to proceed with the work for which the permit was
issued and shall not be construed as authority to violate, cancel or set aside any provisions of the

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Construction Codes. D.C. Mun. Regs. tit. 12A, 105.4. DCRA may revoke a permit [w]here
there is a false statement or misrepresentation of fact, or other significant inaccuracy, in the
application or on the plans on which a permit or approval was based, that substantively affected
the approval . . . . 105.6.1. DCRA is empowered to issue a stop work order if DCRA finds
that any work on any premises, including any building or other structure is being performed
contrary to the provisions of the Construction Codes . . . . D.C. Mun. Regs. tit. 12A, 114.1. A
stop work order requires the cessation of any and all work at the premises or portion thereof,
regardless of whether the work is subject to building permit requirements. 114.6. Continuing
work in violation of a posted stop work order is unlawful, and the violator is thereby subject to
certain penalties. 114.10. DCRA is also authorized to issue a correction order for violations of
the Construction Codes, and such an order shall direct the discontinuance of the illegal action or
condition and/or the abatement of the violation. 113.2.
The District has endeavored, in recent years, to overhaul its Construction Codes,
including its sign regulations. In 2009, the Mayor established the Construction Codes
Coordinating Board (CCCB), delegating his authority to issue rules to amend the
Construction Codes and to adopt new supplements and editions of the Model Codes. In
addition, in 2011, the Mayor created a working group to specifically review the Districts sign
regulations. In 2015, the Mayors Office released comprehensive new sign regulations, although
the proposals were not ultimately adopted.
B. The Exemption for Signs Within a Building
Section N101.3.5.3 provides an exemption from the sign permit requirements for signs
installed within a building, specifically [a]ny sign located within a building, not attached
directly or painted on a window, and not located within 18 inches . . . of a window or entrance.
D.C. Mun. Regs. tit. 12A, N101.3.5.3.

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In recent years, two attempts have been made to amend the exemption. First, on
March 25, 2011, the CCCB and DCRA promulgated an emergency rule to protect the public
safety and welfare from the proliferation of commercial signs advertising products, services, and
goods that are not sold on-site and that are currently exempt from existing permit requirements.
58 D.C. Reg. 004042 (May 6, 2011). The D.C. Council did not act upon the emergency rule,
thereby allowing it to expire. The 2011 Emergency Rule exempted from the sign permit
requirements [a]ny sign located within the interior envelope of a building, including any atrium,
foyer, or lobby, not attached directly or painted on a window, and not located within eighteen
inches (18 in.) . . . of a window or entrance. Id. The 2011 Emergency Rule also included a list
of signs that were not exempt: 1. A commercial sign for a product that is not sold on the
premises of the building; 2. A commercial sign using video, electrical, or other digital displays of
any sort; or 3. A commercial sign that exceeds twenty percent (20%) of the area of any window
in which it is displayed or viewed from the public space. 58 D.C. Reg. 004043.
Second, on July 12, 2016, the City Administrator promulgated an emergency rule again
to amend the exemption to ensure that unpermitted, quasi-exterior signage does not proliferate
across the District. 63 D.C. Reg. 011000 (August 26, 2016). The 2016 Emergency Rule
provides an exemption for
Any sign located entirely inside a building, unless the sign: (1) is attached
directly or painted on a window; (2) is located within 18 inches (457 mm) of a
window or entrance; or (3) contains writing that is legible, or an image that is
clearly discernible, from a property other than the property on which the sign is
located. A sign inside a building that (1) is attached directly or painted on a
window; (2) is located within 18 inches (457 mm) of a window or entrance; or
(3) contains writing that is legible, or an image that is clearly discernible, from a
property other than the property on which the sign is located shall require a permit
and shall be regulated as a sign under this Appendix N.
Id. On August 26, 2016, the City Administrator published the 2016 Emergency Rule in the
District of Columbia Register, over one month after the Rules adoption. On November 4, 2016,

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the City Administrator published a new emergency rule, extending the 2016 Emergency Rule
until March 4, 2017 to allow the Council to complete its consideration of the proposed rules.
63 D.C. Reg. 013718 (November 4, 2016).
C. Digis Sign Installations
Digi is a boutique media company with plans to install a network of large format digital
signs across the District. In all, Digi plans to install 52 such signs at 20 different locations.
Before commencing work, Digi consulted with Armando Lourenco concerning the permits that
Digi would need to obtain to effectuate its intent. Mr. Lourenco currently works as a
construction code consultant, and his third-party inspection agency, Lourenco Consultants,
advises clients on compliance issues with the Districts Construction Codes. Prior to his current
consulting work, Mr. Lourenco twice worked for DCRA. Between 1986 and 1993, Mr.
Lourenco served as a plans reviewer and was ultimately promoted to Chief of DCRAs Permit
Processing Division, where he was responsible for determining which permits, including sign
permits, were required for certain projects. Between 1998 and 2000, Mr. Lourenco worked as
the Administrator of the Building and Land Regulation Administration within DCRA. Although
he no longer works for DCRA, Mr. Lourenco regularly interacts with DCRA and has maintained
his familiarity with DCRAs enforcement of the Building Code.
Digis proposed installations fall into four general categories: 1) signs located at least 18
inches behind glass; 2) signs set back at least 18 inches underneath a buildings overhang;
3) signs recessed within a buildings exterior wall; and 4) signs set back at least 18 inches on a
buildings roof. Based on his review of Digis proposals and the relevant provisions of the Code,
Mr. Lourenco advised Digi that its installations would not require sign permits because they all
fell under the within a building exemption. Mr. Lourenco did, however, advise Digi that it
would still be required to apply for permits for support brackets and electrical work. In addition

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to consulting with Mr. Lourenco, Digi also inventoried existing sign installations throughout the
District, which Digi believed its competitors had installed without sign permits in reliance upon
the within a building exemption. Finally, Digi entered into agreements with a number of
property owners to display its signs.
Digi contracted with Radius Displays Asia to design each sign installation. Digi also
obtained permits for support brackets and electrical work. DCRA issued permits for Digi to
install brackets on the interior of the buildings at the following locations: 111 Massachusetts
Avenue, NW; 1 Thomas Circle, NW; 1701 Vermont Avenue, NW; 1200 New Hampshire
Avenue, NW; 1350 Connecticut Avenue, NW; 2100 M Street, NW; and 5335 Wisconsin
Avenue, NW. In addition, Digi obtained a permit for replacement in kind of existing roof
display support for the property located at 2850 New York Avenue, NE.
Digi subsequently began sign installation work at a number of properties. On
July 8, 2016, a Digi employee received an email from Jennifer Barbour, a DCRA attorney,
regarding Digis proposed installations. Digi purportedly attempted to arrange a meeting with
Ms. Barbour, but its efforts were not successful. On July 19, 2016, Ms. Barbour sent an email to
one of the property owners, informing him of the July 12, 2016 Emergency Rulemaking.
Ms. Barbour apparently sent a similar email to other property owners, although not to Digi itself.
On July 21, 2016, news of Ms. Barbours emails reached Donald MacCord, Digis founder and
one of its principals. On August 24, 2016, Digi representatives met with the City Administrator
where they specifically discussed the July 12, 2016 Emergency Rule.
On July 18, 2016, DCRA revoked multiple permits that it had issued to Digi. On July 29,
2016, Digi appealed to the Office of Administrative Hearings (OAH) the revocations of
permits for 2100 M Street, NW; 1350 Connecticut Avenue, NW; 1101 Vermont Avenue, NW;
and 2850 New York Avenue, NE. On August 19, 2016, Digi also appealed DCRAs revocation

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of a permit for 111 Massachusetts Avenue, NW. Judge Paul B. Handy of OAH issued an order
consolidating all of Digis appeals into a single case. The matter is still pending before OAH.
Subsequently, DCRA issued stop work orders and correction orders for the
aforementioned properties.1 The orders cited varying violations of the Construction Codes,
including installing signs without a sign permit and providing false or material misstatements in
applications for building permits. The correction orders required Digi to remove the signs and
accompanying brackets. On August 19 and 24, 2016, after DCRA had posted a stop work order
at the property, Clarence Whitescarver of DCRA, observed workers nevertheless continuing to
perform work at 111 Massachusetts Avenue, NW.
In addition to the aforementioned properties, Digis plans also call for sign installations at
the following properties: 950 LEnfant Plaza, SW; 64 New York Avenue, NE; 700 H Street,
NE; 801 N. Capitol Street, NE; 1850 New York Avenue, NE; 1020 G Street, NE; 601 13th Street,
NE; 1901 L Street, NW; 250 E Street, SW; 4301 Connecticut Avenue, NW; 805 21st Street, NW;
and 1401 New York Avenue, NW.
On August 25, 2016, Digi appealed the stop work orders and correction orders to OAH.
Those appeals are also pending.
On September 3, 2016, after the District had filed its Complaint and the instant Motion, a
DCRA inspector, Gregory Watkins, observed workers installing brackets at a Digi location at
700 H Street, NE, despite the fact that DCRA had earlier posted a stop work order at the
property.
D. Procedural History
The District filed its Complaint for injunctive relief on August 31, 2016. The District
also named as defendants the following property owners with which Digi had entered into
1

For the property located at 1101 Vermont Avenue, NW, DCRA only issued a stop work order. In addition, DCRA
issued neither a stop work order nor a correction order for the property located at 1200 New Hampshire Avenue,
NW.
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agreements: Jemals Darth Vader LLC, Douglas Development Corp., Thomas Circle CF LLC,
UBS Real Estate Investments, Inc., NH Street Partners Holdings LLC, 2100 M Street LP,
Western Washington DC Corporate Center LLC, and Defendant CLPF-CC Pavilion LP.
Defendant Thomas Circle CF LLC was subsequently dismissed from the case. On August 31,
the District also filed a Motion for Temporary Restraining Order and a Motion for Preliminary
Injunction. In its Complaint, the District is seeking injunctive relief pursuant to D.C. Code 61407, which provides, as follows:
Whenever it appears that any person, association, or business entity has engaged,
is engaged, or is about to engage in acts or practices constituting a violation or
infraction of any provision or orders issued under the Construction Codes, the
Office of the Attorney General for the District of Columbia may bring an action in
the Superior Court of the District of Columbia for injunctive relief. Injunctive
relief shall be granted on a showing that it will prevent illegal construction
activity in the District of Columbia.
D.C. Code 6-1407(a). Under the statute, the injunctive relief shall include
(1) [o]rdering the sealing of structures and locations at which construction activity
has occurred or is occurring in violation of the Construction Codes;
(2) [o]rdering the cessation of all construction and remodeling activity at locations
in which, or in structures where, construction activity has occurred or is occurring
in violation of the Construction Codes;
(3) [o]rdering the removal or correction to structures built or altered in violation
of the Construction Codes; or
(4) [a]ny other equitable relief that prevents illegal construction activity in the
District of Columbia.
Id. 6-1407(b).
On September 8, 2016, the Parties appeared for a hearing on the Districts Motion for
Temporary Restraining Order before Retired Judge Rufus G. King III. At the conclusion of the
afternoon hearing, the Parties stipulated that Digi would not conduct any further sign-related
work at any of the designated locations until the next hearing date. Judge King, however,
allowed work unrelated to Digis sign installations to continue. With no definitive ruling on the

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Districts Motion for Temporary Restraining Order, that Motion was ultimately collapsed into
the preliminary injunction hearing.
The Parties appeared for a preliminary injunction hearing before this Court that spanned
four days on September 19, 26, and 28, and on October 13, 2016. Each side presented oral
argument and testimonial and documentary evidence. For the District, the Court heard testimony
from Clarence Whitescarver, a DCRA Program Manager for District Construction Inspections
and Enforcement. For Digi, the Court heard testimony from Mr. Lourenco, some of whose
credentials were previously discussed. Throughout the preliminary injunction hearing, the
Parties agreed that the stipulation would remain in place and that Digi would conduct no signrelated work at any of the designated properties.
II. STANDARD OF REVIEW
A court may not grant a preliminary injunction unless the moving party has clearly
demonstrated (1) that there is a substantial likelihood that [it] will prevail on the merits; (2) that
[it] is in danger of suffering irreparable harm during the pendency of the action; (3) that more
harm will result to [it] from the denial of the injunction than will result to the defendant from its
grant; and, in appropriate cases, (4) that the public interest will not be disserved by the issuance
of the requested order. District of Columbia v. E. Trans-Waste of Md., Inc., 758 A.2d 1, 14
(D.C. 2000) (citing Wieck v. Sterenbuch, 350 A.2d 384, 387 (D.C. 1976). [T]he most important
inquiry is that concerning irreparable injury . . . because the primary justification for the issuance
of a preliminary injunction is always to prevent irreparable injury so as to preserve the courts
ability to render a meaningful decision on the merits. Id. (quoting Wieck, 350 A.2d at 387-88).
The Court reviews the instant Motion under a modified version of the familiar four-part
standard because the District filed its Complaint for statutory injunctive relief under D.C. Code

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6-1407. That provision dictates that a plaintiff shall not be required to prove irreparable harm
to obtain a preliminary injunction. D.C. Code 6-1407(a).
III. ANALYSIS
A. Likelihood of Success on the Merits
D.C. Code 6-1407 empowers the Districts Office of the Attorney General to seek
injunctive relief in the Superior Court to prevent illegal construction activity in the District of
Columbia. D.C. Code 6-1407(a). To obtain such relief in this case, the District must
ultimately prove that Digi has engaged in illegal construction or will engage in illegal
construction. Here, the District must prove that it is substantially likely to succeed in proving
that Digis sign installations are not exempt from the Districts sign permit requirements. The
Court must evaluate the Districts likelihood of success on the merits under the within a
building exemption both before and after adoption of the 2016 Emergency Rulemaking.
1. Section N101.3.5.3 Before the 2016 Emergency Rulemaking
Arguments before the Court largely concerned the proper interpretation of the within a
building exemption prior to the 2016 Emergency Rulemaking. Mr. Whitescarver testified in
support of the Districts position, and Mr. Lourenco testified in support of Digis. Having
carefully considered the record before the Court and the applicable law, the Court finds that the
District is substantially likely to succeed on the merits of its claim that Digi has engaged in
illegal construction under the language of Section N101.3.5.3 prior to the adoption of the 2016
Emergency Rule.
The District argues that the within a building exemption is meant to exempt signs
located indoors or inside a building. For support, the District relies on the plain language,
context, and purpose of the sign regulations. The Building Code defines building as [a]ny
structure used or intended for supporting or sheltering any use or occupancy. D.C. Mun. Regs.

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tit. 12, 202. The Building Code does not define within or within a building. Where terms
are undefined, the Building Code instructs that such terms shall have ordinarily accepted
meanings such as the context implies. D.C. Mun. Regs. tit. 12A, 201.4. The District argues
that the ordinary meaning of within a building is indoors or inside. By way of further
explanation and support, the District directs the Courts attention to the words surrounding the
phrase within a building, namely, not attached directly or painted on a window and not
located within 18 inches . . . of a window or entrance. The District argues that such words
reflect an intent to exempt only those signs that are inward-facing and directed toward an interior
viewing audience. Finally, because the sign regulations in Appendix N govern outdoor display
signs and exterior advertising, the District contends that it would frustrate the purpose of the sign
regulations if Digi were allowed to erect display and advertising signs on the exterior of
buildings without sign permits.
Mr. Whitescarver testified that the DCRA Code Officials position mirrors the Districts
position in this case. According to Mr. Whitescarver, the within a building exemption dates
back to 1972, and in his enforcement and inspection experience with DCRA, he was unaware of
anyone ever trying to erect signs in reliance on the within a building exemption when the
intent was to install such signs on the exterior of a building underneath the buildings overhang.
To further buttress his contention, Mr. Whitescarver identified and presented images of signs
installed in locations similar to where Digi plans to install its signs. For each image, Mr.
Whitescarver testified that the owner of the particular property had obtained a sign permit.
Through Mr. Whitescarvers testimony, and in reliance on its interpretation of the within
a building exemption, the District identified eight locations in the District at which Digi had
violated DCRA stop work orders for installing signs without a sign permit and/or for installing
exterior brackets where permits had been issued for installing interior brackets:

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111 Massachusetts Avenue, NW; 2850 New York Avenue, NE; 1 Thomas Circle, NW; 1101
Vermont Avenue, NW; 1200 New Hampshire Avenue, NW; 1350 Connecticut Avenue, NW;
2100 M Street, NW; and 5335 Wisconsin Avenue, NW.
Contrary to the Districts interpretation, Digi argues that the exemptions plain meaning,
and DCRAs longstanding interpretation of the exemption, supports its position that Digis signs
are indeed exempt. Digi cites to the same definition of building from the Building Code, but
argues that Digis signs are within a building because they are located within the buildings
structural support elements, such as columns. Moreover, Mr. Lourenco testified that DCRAs
longstanding interpretation of the exemption was to exempt signs similar to Digis that are
attached to the exterior of a building but located under the buildings overhang. According to
Mr. Lourenco, the definition of building must be read in conjunction with other Building Code
definitions, such as building area, which is defined as [t]he area included within surrounding
exterior walls (or exterior walls and fire walls) exclusive of vent shafts and courts. Areas of the
building not provided with surrounding walls shall be included in the building area if such areas
are included within the horizontal projection of the roof or floor above. D.C. Mun. Regs. tit.
12A, 202. As such, Digi argues that its signs are exempt because they are all located within the
horizontal projection of the buildings roofs or floors above.
Digi also points to the Districts prior attempts to amend the within a building
exemption through either comprehensive new sign regulations or through emergency rulemaking
as further evidence that DCRAs longstanding interpretation exempted signs similar to Digis, or
at the very least acknowledged that there was some perceived ambiguity. Specifically, Digi
argues that the 2011 Emergency Rule, which the Council allowed to expire, and minutes from
CCCB meetings indicate that the District had previously conceded and accepted that exterior,
outward-facing signs like those Digi intends to install were considered exempt.

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This Court will defer to an agencys interpretation of its own regulations unless that
interpretation is plainly wrong or inconsistent with the regulations or with the statute under
which the [agency] acts. D.C. Library Renaissance Project/West End Library Advisory Grp. v.
District of Columbia, 73 A.3d 107, 120 (D.C. 2013) (quoting Hotel Tabard Inn v. D.C. Dept of
Consumer & Regulatory Affairs, 747 A.2d 1168, 1178 (D.C. 2000)). Furthermore, [w]hen the
construction of an administrative regulation rather than a statute is at issue, deference is even
more clearly in order. 1330 Conn. Ave. v. D.C. Zoning Commn, 669 A.2d 708, 714-15 (D.C.
1995). While an agency is entitled to change its interpretation if it believes a different
interpretation is more consistent with the statutory language and legislative intent, it is obligated
to provide an explanation of the change. Hensley v. D.C. Dept of Empl. Servs., 49 A.3d 1195,
1204-05 (D.C. 2012).
Here, the Court finds that the District is substantially likely to succeed on the merits of its
claim based on DCRAs interpretation of the within a building exemption. While both Parties
have presented compelling arguments as to the proper interpretation of the exemption, the Court
will defer to DCRAs interpretation of its own regulations. See D.C. Library Renaissance
Project, 73 A.3d at 120; 1330 Conn. Ave., 669 A.2d at 714-15. Digis argument based on the
plain language of the exemption and the definition of building is a plausible interpretation of
the regulation, but DCRAs interpretation is neither plainly wrong nor inconsistent with the
regulations. See id. To be sure, Appendix N governs outdoor display signs and other forms of
exterior advertising, and DCRAs interpretation does not exempt Digis proposed signs located
on the exterior of buildings. Furthermore, the words following within a building, not
attached directly or painted on a window and not located within 18 inches of a window or
entrance, add further context and indicate that the exemption is meant to apply to indoor signs.
Mr. Whitescarver also testified persuasively that the reference to 18 inches in the regulation is

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measured from a window inward toward the face of a sign, which further supports the position
that the exemption captures indoor signs.
Moreover, although Digi claims the definition of building area is relevant to defining
the exemption, the exemption is for signs within a building not signs within a building area. If
the intention was to exempt signs within a building area, the drafters could have used the phrase
building area. Furthermore, Mr. Whitescarver testified that building area is not relevant to
the sign regulations in Appendix N. Rather, the term building area is used to calculate the size
and occupancy of a building.
In addition, although an agency like DCRA cannot alter its interpretation of a regulatory
provision without first providing an explanation, the District argues that DCRAs interpretation
of the exemption has remained unchanged. Mr. Whitescarver testified that the DCRA Code
Officials interpretation is that the exemption applies to indoor signs, and he further testified that
he was unaware of anyone trying to install signs similar to Digis in reliance upon the exemption.
In further support, Mr. Whitescarver identified other signs installed in locations similar to Digis
where the building owner obtained sign permits, and Mr. Whitescarver testified, in response to a
question from Digi, that DCRA does not typically issue a sign permit where one is not required.
While Mr. Lourenco testified that DCRAs longstanding interpretation of the exemption supports
Digis position, at this stage the Court must side with DCRA. Mr. Lourencos credentials and
experience at DCRA are indeed impressive, but Mr. Lourenco has not worked at DCRA since
2000 and cannot speak for DCRA. And, although he has maintained close relations with DCRA,
Mr. Lourenco only provided Digi with informal advice and admitted that he would have made
inquiries with DCRA directly had Digi been a formal client.
As for the signs that Digi inventoried that it claims its competitors installed without sign
permits, Mr. Whitescarver testified that he was unaware whether those signs had permits, but

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now with the alert, he has assigned a DCRA inspector to research the question. The results of
the research have not been communicated to the Court. To the extent that it is revealed that
Digis competitors installed signs without permits, that fact would be of no moment. Indeed, the
Court finds it conceivable that there are instances or examples throughout the District where
work requiring a permit has been performed without a permit. The Court is impressed, however,
that there are examples of similar types of signs installed in the District where Mr. Whitescarver
was able to find permits associated with the installation of such signs. This fact lends credence
to DCRAs interpretation of the exemption.
Turning to Digis arguments regarding the inferences to be drawn from the Districts
prior attempt to amend the exemption, the Court must be cautious in making such inferences.
Failure to act on proposed legislation is inconclusive evidence of legislative intent, especially
when it is unexplained. Riggs Natl Bank v. District of Columbia, 581 A.2d 1229, 1256 n.36
(D.C. 1990). Legislative inaction might be due to the belief that the point was already covered
by existing law. Id. (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 114 (1989)).
In this case, therefore, in failing to make changes to the within a building exemption, the
Council may have concluded that signs like Digis were already excluded from the exemption.
In addition, in its review of the emergency rulemakings and the CCCB minutes, the Court finds
support for the Districts argument that the loophole that DCRA was trying to close in the
within a building exemption was for signs located indoors and set back at least 18 inches but
still visible from another property. For example, at the December 17, 2015 CCCB meeting, Jill
Stern stated that no one wants to see the proliferation of signs in lobbies of office buildings or
inside ground level businesses that can be seen from the street or sidewalk . . . (emphasis
added). Under such an interpretation, three categories of Digis signs were already excluded
from the exemption and required sign permits: signs underneath a buildings overhang, signs

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recessed on a buildings roof, and signs recessed into a buildings exterior wall. The attempted
amendments, therefore, were only to target signs installed behind glass on the interior of a
building.
In sum, the Court finds that the District is substantially likely to prevail on the merits of
its claim for injunctive relief as to three categories of Digis signs: those erected underneath a
building overhang, those recessed on a buildings roof, and those recessed into a buildings
exterior wall.
2. Section N101.3.5.3 After the 2016 Emergency Rulemaking
Digi concedes that none of its signs would be exempt if the Court finds the 2016
Emergency Rulemaking to be valid. The 2016 Emergency Rule requires a sign permit for any
sign that contains writing that is legible, or an image that is clearly discernible, from property
other than the property on which the sign is located. Digi, however, contends that the
Emergency Rulemaking is invalid because the District failed to comply with the Districts
Administrative Procedure Act (APA) in promulgating the Emergency Rule. In its review of
the applicable law, the Court finds that the District is substantially likely to prevail on the merits
of its claim under the 2016 Emergency Rulemaking.
Under the Districts APA, before an agency may adopt a regulation, it must publish in
the District of Columbia Register (unless all persons subject thereto are named and either
personally served or otherwise have actual notice thereof in accordance with law) notice of the
intended action so as to afford interested persons opportunity to submit data and views either
orally or in writing . . . . D.C. Code 2-505(a). An agency, however, may bypass the normal
procedure if, in an emergency, as determined by the Mayor or an independent agency, the
adoption of the rule is necessary for the immediate preservation of the public peace, health,

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safety, welfare, or morals . . . . 2-505(c). Any such emergency rule shall forthwith be
published and filed in the District of Columbia Register. Id.
Digi first argues that the 2016 Emergency Rulemaking is invalid because there was no
true emergency requiring immediate action. Digi cites to a number of cases, none of which carry
precedential value in this jurisdiction, for the proposition that the District failed to adequately
identify an emergency requiring immediate action. See, e.g., Wheelchair Carriers Assn v.
District of Columbia, No. 00-1586, 2002 U.S. Dist. LEXIS 4617, at *12-13. For instance, in
Wheelchair Carriers, the United States District Court for the District of Columbia invalidated an
emergency rule because the Court held that a five-month gap between the agencys identification
of the emergency and the promulgation of the emergency rule belied the existence of a true
emergency requiring immediate action. See id. at *7. Digi argues, therefore, that the sevenmonth gap between the CCCB discussing the interior sign issue in December 2015 and the City
Administrator promulgating the Emergency Rule in July 2016 belies the existence of an
emergency.
In the few cases where the District of Columbia Court of Appeals has considered the
validity of an emergency rule promulgated under the Districts APA, the Court has upheld the
rule where the record contained substantial evidence that an emergency existed. See, e.g.,
Hobson v. District of Columbia, 304 A.2d 637, 640 (D.C. 1973). In Hobson, the Court of
Appeals upheld an emergency rule that the Council had approved, imposing criminal penalties
on passengers who did not pay the established bus fare. Id. The Council had promulgated the
emergency rule after the Court, in an unrelated case, held that the Districts transit commission
lacked authority to promulgate a rule requiring passengers to pay their fare. Id. at 638. In
upholding the rule, the Court relied on a record that included oral and written testimony from a
special meeting before the Council that took place the day after the Courts decision invalidating

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the transit commissions rule. Id. at 638-40. At the meeting, the transit commission chairman,
the deputy mayor, and the corporation counsel all expressed fears that, without the emergency
rule, the fiscal integrity of the transit system was at risk and that there was an increased risk of
violence between bus drivers and passengers. See id. at 638-40.
In this case, although the record is certainly less developed than the record in Hobson, at
this stage, the Court finds that there is substantial evidence that an emergency existed to justify
an emergency rulemaking. The minutes from the CCCBs December 17, 2015 meeting indicate
that the CCCB was advised that then-Councilmember Vincent Orange had introduced an
emergency amendment to Appendix N to address the interior sign issue. The minutes also
provide that there was discussion of a possible proliferation of large-format digital screens on the
lobby level of office buildings under the existing regulations. Moreover, when the City
Administrator promulgated the Emergency Rule in July, the stated purpose was to ensure that
unpermitted, quasi-exterior signage does not proliferate across the District. While the seven
months that elapsed between the December 17, 2015 CCCB meeting and the July 12, 2016
Emergency Rule may belie the existence of an emergency under the District Courts reasoning in
Wheelchair Carriers, the District of Columbia Court of Appeals has not opined on the temporal
relation between when an emergency is identified and when an emergency rule must be
promulgated. This Court, therefore, will decline to infer that the passage of time in this instance
eliminated the existence of an emergency. Indeed, the Court is privy to no information regarding
deliberations that may have occurred between December 2015 and July 2016 that led to the July
12, 2016 Emergency Rulemaking. The government should be allowed the latitude to address
matters without the Court opining upon the appropriate speed with which it has addressed a
particular issue confronting it.

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Digi also argues that the 2016 Emergency Rule is invalid because the District failed to
comply with the APA requirement that an emergency rule be published forthwith in the
District of Columbia Register. Blacks Law Dictionary defines forthwith as immediately;
without delay . . . [d]irectly; promptly; within a reasonable time under the circumstances.
Blacks Law Dictionary 664 (7th ed. 1999). Digi argues that the six weeks between the City
Administrators promulgating the Emergency Rule on July 12, 2016, and the Rules publication
on August 26, 2016, cannot possibly satisfy the forthwith requirement. However, Digi cites to
no authority, and the Court is aware of none, where the Court of Appeals has opined on what
satisfies the forthwith requirement under the Districts APA. The Court, therefore, must
decline to find that publishing the Emergency Rule six weeks after it was promulgated was not
within a reasonable time under the circumstances.
Furthermore, the general purpose of requiring agencies to publish notice of proposed
rules in the District of Columbia Register is to afford interested persons the opportunity to be
heard on the proposed rule. See Wash. Gas Energy Servs. v. District of Columbia, 893 A.2d 981,
987-98 (D.C. 2006). The agency need not publish notice of the proposed rule if all persons
subject thereto are named and either personally served or otherwise have actual notice . . . . Id.
at 987 (quoting D.C. Code 2-505(a)). In light of the purpose of publication, the fact that Digi
and the other defendants had notice of the 2016 Emergency Rulemaking well before the Rules
August 26, 2016 publication somewhat diminishes Digis argument that the six-week lapse failed
to satisfy the forthwith requirement. On July 19, 2016, Ms. Barbour of DCRA sent an email to
one of the Defendant property owners informing him of the Emergency Rule, and Ms. Barbour
apparently sent similar emails to other Defendants. Digi itself learned of the Emergency Rule on
July 21, 2016, when news of the emails reached Mr. MacCord, Digis founder and one of its

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principals. Moreover, during the August 24, 2016 meeting with the City Administrator, Digis
representatives discussed the Emergency Rule.
Because the Court can find no glaring flaw with the 2016 Emergency Rulemaking, the
Court finds that the District is substantially likely to prevail on its claim for injunctive relief in
reliance on the Emergency Rule. The District is, therefore, substantially likely to prevail in
proving that all categories of Digis signs do not fall under the within a building exemption.
B. Irreparable Harm and Balance of Harms
Although the District is not required to prove irreparable harm to obtain a preliminary
injunction under D.C. Code 6-1407(a), the Court will nevertheless address it briefly. In its
Motion for Temporary Restraining Order, the District explained that it would be irreparably
harmed because Digis unpermitted signs pose a substantial public safety risk. Digi countered
that all of its signs are safe and that DCRA had refused to review the reams of structural
drawings that Digi submitted to address DCRAs safety concerns. At the preliminary injunction
hearings before the Court, the District made no arguments about safety. Indeed,
Mr. Whitescarver testified that he had reviewed Digis design drawings and concluded that there
was no imminent danger to public safety. The District, however, persuasively argued that it is
harmed when the Districts Construction Codes and DCRA orders are not honored.
Digi, for its part, claims that it has invested tens of millions of dollars in planning,
designing, and commencing work on its sign network, and that it will suffer an immense
financial burden if it is forced to remove the signs and brackets that it has already installed. The
Court appreciates the financial burden that Digi will suffer because of the delay that these
proceedings have caused. However, because, at this preliminary injunction stage, the Court is
not ordering Digi to remove any signs or brackets, Digi will suffer less of a financial burden.
Furthermore, the Court finds that Digis financial burden does not outweigh the harm that the

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District suffers when entities do not abide by the Construction Codes and DCRA orders. Indeed,
the Court has already found that Digi violated DCRA stop work orders and that the District is
substantially likely to succeed in proving on the merits that Digis exterior signs do not fall under
the within a building exemption.
C. Public Interest
Finally, the public interest weighs in favor of this Court granting the Districts Motion.
DCRA is an important agency in the District, charged with protecting the health, safety,
economic interests, and quality of life of District residents. The public interest is served by
upholding DCRAs enforcement and regulatory authority and in ensuring that entities like Digi
operating in the District comply fully with the Districts Construction Codes and DCRA orders.
Like any resident of the District wishing to engage in construction work, the onus was on Digi to
communicate with DCRA directly regarding DCRAs permitting requirements. Digi failed to do
so, possibly at its peril.
ACCORDINGLY, it is this 10th day of November, 2016, hereby
ORDERED that the Motion is GRANTED; and it is further
ORDERED that Digi and other Defendants are enjoined from conducting any signrelated work on exterior signs until the resolution of this litigation or subsequent order of this
Court; and it is further
ORDERED that Digi and other Defendants are enjoined from conducting any signrelated work at locations where Digi plans to install signs inside the building at least 18 inches
behind glass until the resolution of this litigation or subsequent order of this Court; and it is
further
ORDERED that the Districts Motion for Temporary Restraining Order is DENIED AS
MOOT.

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_____________________
Alfred S. Irving, Jr.
Associate Judge
(Signed in Chambers)

Copies to:
Esther Yong McGraw
Eric Glover
Toni Jackson
Counsel for Plaintiff
Deborah Baum
Jeetander Dulani
Counsel for Defendants Digi Media Communications LLC, Douglas Development Corp.,
Jamals Darth Vader LLC, NH Street Partners Holdings LLC, Western Washington DC, 1350
Connecticut Avenue Limited Partnership
Chad Kurtz
Counsel for Defendant 2100 M Street LP
Philip Evans
Rachel Mueller
Jessica Farmer
Counsel for Defendant CLPF-CC Pavilion

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