STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF HOTELS ) AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1448

)

LINO SUAREZ, t/a MILI )

APARTMENTS, )

)

Respondent, )

) ROBERTO VAZQUEZ, JR., and MARIA ) VAZQUEZ, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at 359 State Office Building, 1350 N. W. 12th Avenue, Miami, Florida, at 9:30 a.m., March 23, 1978.

APPEARANCES

For Petitioner: Lawrence D. Winson, Esquire

Staff Attorney

Department of Business Regulation 725 South Bronough Street

The Johns Building Tallahassee, Florida 32304

For Respondent: Marcelo M. Agudo, Esquire

1647 Southwest 27th Avenue Miami, Florida 33145

For Intervenors: Peggy Fisher, Esquire

Legal Services of Greater Miami, Inc. 1393 Southwest 1st Street, Suite 300

Miami, Florida 33135

ISSUE

Whether or not the Respondent, Lino Suarez, illegally took possession of the apartment which he had rented to Roberto and Maria Vazquez, thereby violating Section 983.59(3)(c), Florida Statutes.

FINDINGS OF FACT

1. Lino Suarez is the holder of license number 23-12093H. This license is held with the Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants. The purpose of the license is to do business at a location known as the Mili Apartments, 10941 Southwest 7th Street, Miami, Florida.

   
   

2. In late December, 1976, the Respondent rented apartment number 1 in the complex known as the Mili Apartments to Roberto and Maria Vazquez. At the time the apartment was rented by the Vazquezes, they gave Mr. Suarez a check in the amount of two hundred twenty dollars ($220.00) and that check was dated December 18, 1976. The amount of the check was for the payment of the balance of the rent that would be due in the month of December, 1976, at a rate of two hundred dollars ($200.00) a month, together with one hundred fifty dollars ($150.00) as security deposit. That check was written on an account in which there were insufficient funds and the check was returned because of that. Petitioner's exhibit No. 1 admitted into evidence is a copy of the check. Respondent's exhibit No. 2 is a copy of the debit memo from the bank of the Respondent indicating the return of the check written on insufficient funds and Respondent's exhibit No. 4 admitted into evidence is a copy of the bank records of the account of Mr. Vazquez upon which the check was drawn.

   
   

3. Subsequent to the time of the check being written, efforts were made to collect the money and the Vazquezes paid two hundred twenty dollars ($220.00) cash payment to the wife of the Respondent for the amount of the security deposit and rent for December 1976.

   
   

4. The Respondent saw Mr. Vazquez on January 7, 1977, at which time Mr. Vazquez wrote a check in the amount of two hundred five dollars ($205.00) for the payment of the January, 1977, rent to include five dollars ($5.00) late charge. A copy of this check may be found as the Petitioner's exhibit No. 2 and the original of the check may be found as part of the composite exhibit, Respondent's exhibit No. 1. The Respondent's exhibit No. 1 includes the original of the check and a debit memo from the bank of the Respondent showing that the check had been returned for insufficient funds. Further indication of the insufficient funds for the check may be found as Respondent's exhibit No. 3, which is a copy of the bank records upon which the January 7, 1977, check had been drawn. The January rent was never collected from the Vazquezes. The Respondent tried on numerous occasions in January and in February, 1977, to collect the amount of the January rent. During those times, he was unable to contact Mr. Vazquez and all his communications were with Mrs. Vazquez.

   
   

5. In early March, a couple of days before March 4, 1977, Mr. Vazquez left Miami to go to New York. He did not return until March 21 or 22, 1977. On March 4, 1977, Mrs. Vazquez, who was at that time ill, left the apartment to stay with her mother-in-law during the pendency of her illness. She only took a few of her clothes at the time of her departure. When Mr. Vazquez and Mrs. Vazquez left the apartment, they made no effort to contact the landlord and apprise him of their pending absence.

   
   

6. Sometime after the departure of Mrs. Vazquez, between the 18th and 20th of March, tenants in the building called the Respondent to notify him that they felt that the Vazquezes had left the apartment and that the apartment needed to be examined due to the strong odor which was emanating from the apartment. The Respondent went to the apartment between the 10th and 20th of March, 1977, and found the apartment still contained the belongings of the Vazquezes. There was

   garbage in the kitchen and bathroom areas which appeared to be very old and there was a similar amount of garbage in the refrigerator in terms of spoiled food. The food was spoiled in the refrigerator because the power had been cut off. There was nothing in the apartment which would tend to indicate to the Respondent what the Vazquezes' intentions would be about returning.

   Consequently, on March 22, 1977, the apartment after being cleaned up, was rented to another tenant. The Vazquezes returned on March 24, and demanded to reenter the apartment.

   
   

7. In view of the events, as found in the rendition of the evidential facts, the Petitioner has failed to demonstrate that the Respondent has unlawfully recovered possession of the dwelling unit in terms of the statement found in Section 83.59, Florida Statutes. In fact, the Respondent has acted in accordance with the requirements establishing the exception to the rule of nonrecovery. This can be seen by examining the language of Section 83.59(3)(c), Florida Statutes, which states:

   
   

   (3) The landlord shall not recover posses- sion of a dwelling unit except:

   (c) When a tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit even

   if he is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption shall not apply if the rent is current or the tenant has notified the landlord of an intended absence.

   
   

8. The periodic rent was on a thirty-day basis and the evidence which the landlord found at the time of his entering the apartment between March 18 and 20, would show that the dwelling unit had been abandoned and if not abandoned, the apartment was not attempted to be reoccupied until March 24, 1977, which was a time greater than one-half of the time for periodic payments. Moreover, the rent was not current and the tenant had not notified the landlord of his intention to be absent. Consequently the Respondent was entitled to recover possession of the premises.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction in this cause.

   
   

10. Upon an examination of the facts in this cause, it is concluded, as a matter of law, that the Petitioner has failed to demonstrate that the Respondent has violated any of the conditions of Section 83.59, Florida Statutes.

RECOMMENDATION

It is recommended that the action against the Respondent, Lino Suarez, t/a Mili Apartments, be dismissed.

DONE and ENTERED this 12th day of April, 1978, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Lawrence D. Winson, Esquire Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Marcelo M. Agudo, Esquire 1647 South West 27th Avenue Miami, Florida 33145

Peggy Fisher, Esquire

Legal Services of Greater Miami, Inc. 1393 S. W. 1st Street, Suite 300 Miami, Florida 33135

Docket for Case No: 77-001448

Orders for Case No: 77-001448