STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 79-319

)

ROBERT LOWENTHAL as Trustee ) t/a COTTON APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, in Room 216, Moot Courtroom in Miami, Florida, on September 13, 1979, commencing at 1:00 o'clock p.m.

APPEARANCES

For Petitioner: Mary Jo M. Gallay, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Bernard F. Siegel, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134 ISSUE

Whether a civil penalty should be assessed against the Respondent, or whether the license held by Respondent should be suspended or revoked.

FINDINGS OF FACT

1. The Respondent, Robert Lowenthal as Trustee, trading as Cotton Apartments, is licensed by the Petitioner, the Division of Hotels and Restaurants, Department of Business Regulation, and is in business at 41 East Eighth Street in Hialeah, Florida. Robert Lowenthal is the owner and trustee of said business.

   
   

2. A Notice to Show Cause was issued by Petitioner on September 1, 1978, notifying Respondent that certain evidence, which, if true, is good and sufficient cause pursuant to Section 509.261, Florida Statutes, to assess a civil penalty against the Respondent, or to suspend or revoke the license, for failure to return a security deposit of $215.00 to Juana Abijalil and failure to provide a written notice to tell said tenant how the security deposit was being held. The Notice to Show Cause indicated at that date five (5) percent

   interest, or a total of $44.70, was due. No answer was received by Petitioner, and an Administrative Hearing was requested.

   
   

3. Juana Abijalil rented an apartment at Respondent Cotton Apartments on June 16, 1974, from the then manager of said apartments, Howard Jenkins. She rented apartment #17 and paid a rental of $165.00 for the month of June 16, 1974, to July 16, 1974. At the same time she paid $165.00 on her last month's rent. Ms. Abijalil lived in said apartment until May of 1978, when she moved. Prior to April 16, 1978, she told the then manager of said apartment and his wife, Mr. and Mrs. Blanco, that she intended to move and wanted to use the last month's rent she had previously paid on June 16, 1974, for payment for the month of April 16, 1978, to May 16, 1978. She was assured that there would be no problem with a refund, and she then paid the regular monthly rental on April 16, 1978. Prior to her move, and prior to May 16, 1978, Ms. Abijalil again orally requested to be reimbursed in the amount she had prepaid in 1974. She was not paid, but she moved from the apartment owned by Respondent Lowenthal on May 15, 1978. She has made numerous oral demands upon Respondent to be reimbursed, but she has not been reimbursed for the amount she prepaid. The testimony of the witness as to the foregoing facts was unchallenged.

   
   

4. Submitted into evidence without objection was a receipt for rental payments dated June 16, 1974, on which it was stated "Received from Juana Abijalil $165.00 for rent on last month's rent." Said receipt was signed by Howard Jenkins, who is now dead. It is obvious that said receipt was altered, and "$50.00 security" was written in, hence the demand for $215.00.

   
   

5. The Petitioner Division submitted a memorandum of law. This instrument was considered in the writing of this order. To the extent the proposed memorandum has not been adopted in, or is inconsistent with, factual findings in this order it has been specifically rejected as being irrelevant or not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction in this matter and of the parties thereto pursuant to Section 120.57, Florida Statutes.

   
   

7. Section 83.49 Deposit money or advance rent; duty of landlord and tenant.-- provides:

   
   

   (3)(a) Upon the vacating of the premises for termination of the lease, the landlord shall have 15 days to return said security deposit together with interest or in which to give the tenant written notice by certified mail to the tenant's last known mailing address of his intention to impose a claim thereon ....

   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....

   
   

   (5) Except when otherwise provided by the terms of a written lease, any tenant who vacates or abandons the premises prior to the expiration of the term specified in the writ- ten lease, or any tenant who vacates or

   abandons premises which are the 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 premises. Failure to give such notice shall relieve the landlord of the notice requirement of subsection

   (3)(a) ....

   
   

8. Section 83.50 Disclosure.-- provides:

   
   

   1. The landlord, or a person authorized to enter into a rental agreement on his behalf, shall disclose in writing to the tenant, at or before the commencement of the tenancy,

      the name and address of the landlord or person authorized to receive notices and demands in his behalf. The person so authorized to re- ceive notices and demands retains authority until the tenant is notified otherwise. All notices of such names and addresses or

      changes thereto shall be delivered to the tenant's residence or, if specified in writing by the tenant, to any other address....

      
      

9. Section 83.43 Definitions.-- provides:

   
   

   (9) "Advance rent" means moneys paid to the landlord to be applied to future rent payment periods, but does not include rent paid in advance for a current rent payment period....

   
   

   (12) "Security deposits" means any moneys held by the landlord as security for the per- formance of the rental agreement, including, but not limited to, monetary damage to the landlord caused by the tenant's breach of lease prior to the expiration thereof...

   
   

10. The tenant, Juana Abijalil, rented on a month-to-month basis without written lease. She gave verbal notice of her in- tent to move prior to the payment by her of the last month's rent from April 16 to May 16, 1978. She did not give written notice, but she did give actual verbal notice. She was assured by the manager, the representative of Respondent, that her money would be refunded, but it has not been refunded.

    
    

11. The Respondent has failed to follow the requirements of the foregoing statutes. No copy of the statute was given to the tenant. No written address for himself or his agent was given to the tenant. The tenant was not notified in writing of the location of monies paid to the landlord as security deposit or advance rent, and no statement of the interest due the tenant was furnished.

    
    

12. The Respondent was furnished adequate notice by the tenant of her intention to move and of her request to be reimbursed. The Respondent did not notify the tenant of an intention to retain such money. The last month's rent

of $165.00 can be designated as a security deposit, and interest of five (5) percent thereon plus the deposit is due and owing the tenant.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, Robert Lowenthal, be assessed a fine of $500.00.

DONE and ORDERED this 19th day of December, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Mary Jo M. Gallay, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Bernard F. Siegel, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

Docket for Case No: 79-000319

Orders for Case No: 79-000319