STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 77-2302

) GASPAR NAGYMIHALY, D/B/A BAY ) AIR APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings, at Room 359, State Office Building, 1350 N.W. 12th Avenue, Miami, Florida, at 11:00 a.m., March 21, 1978.

APPEARANCES

For Petitioner: Lawrence D. Winson, Esquire

Department of Business Regulation Johns Building

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: Theresa N. Walsh-Hubbart, Esquire

3115 Brickell Avenue

Miami, Florida 33129 ISSUE

Whether or not the Respondent violated the conditions of Section 83.49(3)(a), Florida Statutes, by failing to refund the security deposit of Bonnie Pestcoe also known as Bonnie Joyner or in the alternative failed to send a certified letter to Bonnie Pestcoe within the prescribed time, which letter set forth the reasons for a claim against the security deposit. This violation was alleged to have occurred at the termination of Bonnie Pestcoe's a/k/a Bonnie Joyner's tenancy with the Respondent.

FINDINGS OF FACT

1. The Respondent, Gaspar Nagymihaly, who does business as Bay Air Apartments, is the holder of license No. 23-12970H-3234, held with the Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants. The location of the Bay Air Apartments is 665 N.E. 83rd Terrace, Miami, Florida. At all times pertinent to the notice to show cause, the Respondent has held such license for doing business as Bay Air Apartments.

2. Bonnie Joyner, formerly known as Bonnie Pestcoe, rented an apartment from the Respondent beginning February 11, 1977. The contact that Mrs. Joyner had with the Respondent was through the intermediary M. Infante. Mr. Infante was the manager and agent for the Respondent in the apartment business known as Bay Air Apartments. There was a discussion between Mrs. Joyner and Infante to the effect that the tenant intended to stay in the aforementioned apartment for a period of one year; however, there was no written or verbal agreement which bound the parties to a lease which would last for a period of one year. In effect, the rent was paid on a monthly basis, thereby creating a tenancy of month to month. The amount of monthly rent was $190 and the parties had agreed to a security deposit of $190.

   
   

3. Mrs. Joyner lived in the apartment for two months and paid the rent for that two-month period. Evidence of the rent payments for the two months and the security deposit may be found as Petitioner's Exhibits 2, 3, and 4 admitted into evidence.

   
   

4. Two weeks before April 11, 1977, Mrs. Joyner contacted Mr. Infante to apprise him of the fact that she intended to vacate the premises. This contact was by an oral communication only. At that time, Infante advised Mrs. Joyner that he could not return the deposit and that he would not tell her who the owner of the apartment was.

   
   

5. Mrs. Joyner then vacated the apartment on April 11, 1977, and sent a request to Mr. Nagymihaly for return of her security deposit. She learned of Mr. Nagymihaly's identity through a search of the tax records. The written request for the return of the security deposit is dated April 11, 1977 and is Respondent's Exhibit No. 1 admitted into evidence.

   
   

6. Mr. Nagymihaly responded to the request by forwarding a $90.00 check to Mrs. Joyner, dated April 12, 1977. This check indicated that the basis of the return of that portion of the security deposit was premised upon the fact that Mrs. Joyner had a nice personality. A copy of the check may be found as Petitioner's Exhibit No. 5 admitted into evidence.

   
   

7. Subsequent to the payment of the $90.00, Nagymihaly wrote a letter of April 14, 1977, addressed to, the then Mrs. Pestcoe in which he stated that the reason for returning only a portion of the security deposit, was due to the failure of Ms. Pestcoe to stay for a year and the necessary cost for preparing the apartment for reinspection, etc. A copy of the letter of April 14, 1977, is Petitioner's Exhibit No. 7 admitted into evidence.

   
   

8. In response to a complaint which Mrs. Pestcoe made with the Petitioner, Mr. Nagymihaly wrote a letter of May 3, 1977, reiterating his comments about the necessity for Ms. Pestcoe, now Mrs. Joyner, to live in the apartment for a year and explaining why no certified letter had been sent to Ms. Pestcoe when the Respondent intended to keep the security deposit. The letter of May 3, 1977, may be found as Petitioner's Exhibit No. 7 admitted into evidence.

   
   

9. It should be noted that in Petitioner's Exhibit 6, which is the April 14, 1977, letter to Mrs. Pestcoe, the monies are referred to as advance rent and not a security deposit. This is in contrast to the terminology used in the May 3, 1977, letter which referred to the money in controversy as being a security deposit. Moreover, the facts in the case demonstrated that the manger for the Respondent had inappropriately kept the security deposit which Mrs. Joyner had paid.

10. The facts in this case are to be looked at in accordance with the provisions of Section 83.49(3)(a). This provision reads as follows:

    
    

    83.49(3)(a) Upon the vacating of the premises for termination of the lease, the landlord shall have 15 days to return said security deposit to- gether with interest or in which to give the tenant written notice by certified mail to the tenant's last known mailing address of his in- tention to impose a claim thereon. The notice shall contain a statement in substantially the following form:

    
    

    This is a notice of my intention to impose a claim for damages in the amount of upon

    your security deposit. It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord's address). . .

    
    

    If the landlord fails to give the required notice within the 15-day period, he forfeits his right to impose a claim upon the security deposit.

    
    

    If this section were read without reference to any other provision within Chapter 83, Florida Statutes, it would appear that the Respondent, Mr.

    Nagymihaly has illegally retained a portion of Mrs. Joyner's security deposit. However, to truly understand the Respondent's obligation in this instance, it is necessary to look to the language of Section 83.49(5), Florida Statutes, which reads as follows:

    
    

    (5) Except when otherwise provided by the terms

    of a written lease, any tenant who vacates or aban- dons the premises prior to the expiration of the terms specified in the written lease, or any tenant who vacates or abandons premises which are subject of a tenancy from week to week, month to month, quarter to quarter, or year to year, shall give at

    least 7 days' notice by certified mail to the landlord prior to vacating or abandoning the the premises.

    Failure to give such notice shall relieve the landlord of the notice requirement of subsection (3)(a).

    
    

    The facts establish that Mrs. Joyner, then Mrs. Pestcoe, failed to make seven days' written notice by certified mail of her vacation and abandonment of the premises, thereby relieving Mr. Nagymihaly of any responsibility to give a written notice of the intent to claim damages against the security deposit and written notice of the rights of the tenant to object in writing to the deduction of the security deposit within 15 days of the receipt of the notice.

    
    

11. Notwithstanding the lack of requirement on the part of the Respondent to notify Mrs. Joyner of his intent to claim against the security deposit, he

    did make such a notification by his comments to her in person on April 11 and by his letter of April 14 to Mrs. Joyner. She in turn made her objection known to the Petitioner. This action taken by Mrs. Joyner and the Respondent to protect their interests has set the stage for possible court action by either of the individuals in a civil proceeding. The sequence of events has not shown that there has been any violation of Section 83.49(3)(a), Florida Statutes, because the Respondent is contesting the return of the security deposit as he is entitled to do and he has been relieved of any necessity for written notice of his intention as required by that provision of the law, because Mrs. Joyner's failure to give 7 days notice by certified mail of her vacation or abandonment of the premises as required by Section 83.49(5), Florida Statutes, removed any obligation of Respondent to give such written notice. Therefore, there is no violation of Section 83.49, Florida Statutes, and there can be no penalties imposed under Section 509.261, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Based upon a consideration of the facts in this matter in view of the requirements of law, it is concluded as a matter of law that the Respondent, Gaspar Nagymihaly, is not in violation of Section 83.49(3)(a), Florida Statutes, and no action may be taken against his license under the provisions of Section 509.261, Florida Statutes.

RECOMMENDATION

It is recommended that the action taken under the notice to show cause against the Respondent, Gaspar Nagymihaly, be dismissed.

DONE and ENTERED this 11th 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 Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Theresa N. Walsh-Hubbart, Esquire 3115 Brickell Avenue

Miami, Florida 33129

Docket for Case No: 77-002302

Orders for Case No: 77-002302