STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

HOTELS AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2459

)

BYRON R. UNDERWOOD, d/b/a )

PINE MANOR APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was held pursuant to notice before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, on January 28, 1980, in Room 510, Collins Building beginning 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: No appearance

ISSUE

Whether the license #47-00498H, held jointly by Byron R. and Susan R. Underwood, should be suspended or revoked or whether civil penalties should be assessed.

FINDING OF FACT

1. The Respondent, Byron R. Underwood, doing business as Pine Manor Apartments, was at all times pertinent to this cause in possession of a valid license issued February 7, 1979. Said license was Control #47-00498H and licensed Respondent to operate a public lodging establishment.

   
   

2. A Notice to Show Cause and Notice of Hearing was served on Respondent Underwood notifying him that certain evidence had been presented which, if true, was good and sufficient reason to cause his license to be suspended or revoked or to have a fine assessed against him. The Notice stated:

   
   

   It is alleged that on or about October 10, 1979 the above premises were in violation of;

   F. S. 83.49 (3)(a) You failed to refund or notify

   Carolyn J. Hill, with-in 15 days after she vacated apartment # 1 of Pine Manor Apartments, of your intention to impose a claim upon her security deposit.

   
   

3. The Notice indicated that the Respondent could request an informal conference or a formal hearing. Respondent Underwood signed the request for informal conference October 31, 1979, and thereafter signed the request for formal hearing November 8, 1979. A Notice of Informal Conference was scheduled for November 8, 1979 at 9:30 a.m. in the Brock Building, Tallahassee, Florida, was sent by Certified Mail, and was accepted by Susan R. Underwood on November 5, 1979. Respondent Underwood failed to appear at the conference, which was scheduled pursuant to Florida Statutes Section 120.60(4). A formal hearing was scheduled for January 22, 1980 at 10:00 a.m. in Room 106, Collins Building in Tallahassee, Florida, but Respondent Underwood notified the Hearing Officer that he intended to contact Petitioner Division and felt that Petitioner was harassing him. Subsequently, the Notice of Hearing was returned, and inasmuch as insufficient time remained for the scheduled hearing the hearing was rescheduled to be heard January 28, 1980 in Room 510, Collins Building in Tallahassee, Florida. Said hearing was delayed for a short period of time while awaiting the arrival of Respondent, but no appearance was made.

   
   

4. It is found that the address to which the Notice of Hearing was sent was the same address as provided on the existing license held by Respondent and is the same address listed on correspondence with the tenant. Respondent Underwood is under obligation to keep the Petitioner Division advised of his current address to be shown on his official records in the Division of Hotels and Restaurants, Department of Regulation, State of Florida.

   
   

5. Carolyn J. Hill, a witness for petitioner, was a tenant of Pine Manor Apartments Unit #1 from September 1, 1978 to August 31, 1979. As a condition of her tenancy, Ms. Hill paid a security deposit of $100.00 and signed a written lease. Prior to the date of termination of her contract, Ms. Hill notified Respondent Underwood in writing that she did not intend to renew her lease. The notification was by letter dated July 31, 1979 and recited therein that the letter was a follow-up to her telephone conversation with Respondent on July 30, 1979 concerning renewal of the renting, agreement for Pine Manor Apartments.

   She requested that Respondent forward her security deposit to her mailing address and notified Respondent that she would make arrangements for him and the resident manager of Pine Manor Apartments to check out the apartment as to the condition of the apartment on the date of termination of her contract, August 31, 1979.

   
   

6. Admitted into evidence at the hearing was a copy of Ms. Hill's lease; the cancelled check for her security deposit; a checklist signed by the resident manager of Pine Manor Apartments on the date her tenancy terminated; a letter written by Respondent Underwood advising his tenants of the location of their security deposits; the letter written by Ms. Hill notifying Respondent of her intention not to renew her tenancy; and an affidavit executed by Robert P. Donovan, Chief of Hotel and Restaurant Licensing, Division of Hotels and Restaurants, stating that at all times pertinent to this action Respondent was a licensee of the Division of Hotels and Restaurants. The Pine Manor Apartments contained more than five (5) units.

7. Ms. Hill was not notified of an intention by Respondent Underwood to retain the security deposit paid by her, and no copy of Section 83.49, Florida Statutes, was furnished to Ms. Hill. The security deposit paid by Ms. Hill was not returned to her as requested.

   
   

8. The Petitioner Division submitted proposed findings of fact, memorandum of law and proposed recommended order. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings In this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.

CONCLUSIONS OF LAW

9.. The Division of Administrative Hearings has jurisdiction of this cause and the parties there to pursuant to Section 120.57, Florida Statutes.

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

   
   

   (2) Whenever the landlord shall require a security deposit or advance rent which is held in excess of 6 months by the landlord or his agent, it shall accu- mulate interest at the rate of 5 percent per annum, simple interest. However, no interest shall be re- quired to be paid to the tenant when such moneys are held in a separate account for the benefit of the tenants and not commingled with other funds of the landlord. The landlord shall not hypothecate, pledge, or in any other way make use of such moneys until

   such moneys are actually due the landlord. If such commingled funds are deposited in an interest-bearing account, said account shall he in a Florida banking institution, and the landlord shall immediately notify the tenant of the name and address of the banking institution and the amount of his money so deposited, and the tenant shall receive and collect at least 75 percent of the interest payable on such account in lieu of the payment of 5 percent interest by the landlord. The landlord shall, within 30 days, of receipt or advance rent or a security deposit, notify the tenant in writing of the manner in which the landlord is holding the advance rent or security deposit, the rate of interest, if any, which the tenant is to receive, and the time of interest pay- ments to the tenant....

   
   

2. Respondent Underwood has violated the foregoing statute inasmuch as he failed to refund a security deposit held in excess of six (6) months.

   
   

   Section 53.49 further provides:

   (3)(a) Upon the vacating of the premises for termi- nation 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. The notice shall contain a state- ment 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....

   
   

3. Respondent Underwood failed to impose a claim against Carolyn Hill's security deposit after she vacated the premises in August of 1979. He did not return Ms. Hill's security deposit in violation of the foregoing statute.

   
   

   Section 83.49 further provides:

   (7) Any person licensed under the provisions of

   s. 509.241, unless excluded by the provision of this part, who fails to comply with the provisions of this part shall be subject to a fine or to the suspension or revocation of his license by the Division of Hotels and Restaurants of the Department of Business Regula- tion in the manner provided in s. 509.261.

   
   

4. Respondent Underwood is subject to be disciplined under the foregoing statute.

RECOMMENDATION

Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that a civil penalty be assessed in the amount of $250.00 to be imposed upon the Respondent, Byron R. Underwood, doing business as Pine Manor Apartments.

DONE and ORDERED this 28th day of February, 1980, 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

Mr. Byron R. Underwood c/o Pine Manor Apartments 2090 Thomasville Road

Tallahassee, Florida 32312

Docket for Case No: 79-002459

Orders for Case No: 79-002459