STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 78-746

)

1. B. PARTNERS t/a FAIRVIEW ) VILLAS, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 8 August 1978 at Miami, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Dennis LaRosa, Esquire

   Department of Business Regulation The Johns Building

   725 South Bronough Street Tallahassee, Florida 32304

   
   

   For Respondent: Stephen J. Bronis, Esquire

   2000 South Dixie Highway, Suite 209

   Miami, Florida 33133

   
   

   By Notice to Show Cause dated 2/27/78 the Department of Business Regulation, Division of Hotels and Restaurants, Petitioner, seeks to assess a civil penalty against S. B. Partners, Respondent, or revoke or suspend Respondent's Division of Hotels and Restaurants license. As grounds there for it is alleged that Orestes Lopez failed to get a refund of his security deposit of $200 from Respondent and failed to receive a certified letter within 15 days of the termination of his rental agreement making a claim against this deposit. One witness was called by Petitioner, one witness was called by Respondent, 4 exhibits were admitted into evidence, and one additional witness was called by Petitioner in rebuttal.

   
   

   FINDINGS OF FACT

   
   

   1. On 11 July 1977 Orestes Lopez moved into Apartment 102F at Fairview Villas (Fairview). He paid a $200 security deposit and the pro rata portion of the $280 per month rent for the balance of July. He did not sign a lease prior to moving in.

   2. Several attempts were made by Fairview to get Lopez to sign the year lease required from tenants, however he was allowed to remain in occupancy on a month-to-month basis during the months of August, September and October.

      
      

   3. By letter dated November 12, 1977 Lopez was notified by Fairview that he was occupying the apartment illegally without a signed lease that had been ready for his signature since he moved in; and that, unless he signed the lease by November 14, legal proceedings to evict him would be started.

      
      

   4. Lopez did riot sign the lease but no eviction proceedings were commenced.

      
      

   5. Lopez accepted the November 12 letter as notice to quit the apartment at Fairview and found another place in which to live. Without notifying Fairview that he was leaving Lopez moved out on 30 November. He left no forwarding address and turned in no keys.

      
      

   6. After the furniture was removed from the apartment, Mrs. Lopez, assisted by her two grown daughters, cleaned the apartment. Rugs were shampooed and vacuumed, stove was cleaned with oven cleaner, bathrooms were scrubbed, mirrors were cleaned and the icebox was cleaned.

      
      

   7. On 1 December the apartment was inspected by the manager of Fairview and the Move In/Move Out Inspection Checklist was completed. This checklist was introduced into evidence as Exhibit 2. In addition to listing bathrooms as not having been cleaned, range and refrigerator dirty, rugs and counter tops dirty and screen door torn, Exhibit 2 contained the following comments:

      
      

      Would not sign lease gave no notice

      had to file on. Attorney's fees too. No refund due to dirty apartment & no notice given & legal fees.

      
      

   8. In rebuttal Lopez testified that there had not been a screen door on the apartment since he moved in.

      
      

   9. No notice of intent to retain the security deposit was sent to Lopez by Fairview.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case.

       
       

   11. By the landlord's acceptance of rental payments from the tenant monthly and no other agreement existing between the parties, a month-to-month tenancy was here created. Section 83.46(2), Florida Statutes.

       
       

   12. Statutory provisions relating to security deposits are contained in Section 83.49 Florida Statutes which provides in pertinent part:

       
       

       (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 written 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 cer- tified 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).

       
       

   13. Fairview contends that the failure of Lopez to give the 7 days' notice' required by the above quoted provision of the statute relieved Fairview of the obligation to give Lopez notice of intent to retain his deposit. This overlooks the effect of the 12 November letter sent by Fairview to Lopez. This letter constituted the 15-day notice required by section 83.57(3) to terminate a month-to- month tenancy. It can only be interpreted to mean that the landlord was thereby terminating the month-to-month tenancy that had existed since Lopez occupied the apartment.

       
       

   14. Lopez was told to leave at the expiration of the term for which he had paid, to wit: 30 November, or eviction proceedings would be instituted. The only condition under which Lopez could remain a tenant was by executing a year's lease no later than 14 November. Under these conditions the landlord had every right to expect Lopez to vacate the apartment on 30 November and no 7-day notice of intent to leave was required from Lopez.

       
       

   15. No effort was made by Fairview to send the required statutory notice of an intent to impose a claim upon the security deposit obtained from Lopez. Accordingly any claim the landlord may have had upon this security deposit was forfeited and the security deposit is now being wrongfully withheld by the landlord.

       
       

   16. It is also significant that Exhibit 2 contains comments relevant to the failure to refund the security deposit unrelated to damage to the apartment. These were that the tenant would not sign lease, failed to notify the landlord that he was leaving, and the reference to legal fees although the testimony was that no legal proceedings had been commenced.

       
       

   17. Section 83.49(7) authorizes the Petitioner to take disciplinary action against licensees for failure to comply with the provisions of chapter 83.

       
       

   18. From the foregoing it is concluded that Fairview Villas forfeited any claim to the security deposit paid by Lopez by failing to send to Lopez' last known address within 15 days of the termination of the tenancy notice of intent to withhold such security deposit. After receiving the landlord's notice of 12

November terminating the month-to-month tenancy, Lopez was not under any duty to give the landlord 7 days notice that he was leaving the apartment. It is therefore

RECOMMENDED that the Respondent be found guilty of wrongfully withholding a security deposit in violation of section 83.49 Florida Statutes and that a fine in the amount of $300 be assessed against Respondent. It is further

RECOMMENDED that, if the Respondent produces evidence satisfactory to the Petitioner that the security deposit has been refunded to Lopez, the forfeiture of the $300 be stayed for a period of 6 months probation at the expiration of which, if no additional charges have been preferred against Respondent, the forfeiture be set aside and the Respondent restored to good standing without further action by Petitioner.

Done and entered this 17th day of August, 1978.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Dennis LaRosa, Esquire

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Stephen J. Bronis, Esquire 2000 South Dixie Highway Suite 209

Miami, Florida 33133

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF HOTELS AND RESTAURANTS

STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF HOTELS AND RESTAURANTS,

Petitioner,

vs. CASE NO. 78-746

FILE #23-11319H

S. B. PARTNERS t/a FAIRVIEW VILLAS,

Respondent.

/

FINAL ORDER

Upon consideration of the Recommended Order of the Hearing Officer dated August 17, 1978, the same be and is hereby adopted by reference as the agency's Final Order, except as specified below.

It is thereupon ORDERED that the Respondent pay a civil penalty to the Division of Hotels and Restaurants in the amount of $300, or at the election of the Respondent within thirty (30) days hereof. Orestes Lopez be given a refund of his security deposit of $200. A signed receipt by Orestes Lopez received at the Miami District Office within the period specified shall be considered proof of compliance with this Order. The probationary period of six (6) months recommended by the Hearing Officer is not adopted herein.

DONE IN TALLAHASSEE, FLORIDA THIS 5th DAY OF OCTOBER, 1978.

ANTHONY NINOS, DIRECTOR

Division of Hotels & Restaurants (904) 488-1133

Copies furnished to:

Dennis E. LaRosa, Esquire Department of Business Regulation Johns Building

Tallahassee, Florida 32304

Stephen Bronis, Esquire 2000 South Dixie Highway Suite 209

Miami, Florida 33133

K.N. Ayers, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

Docket for Case No: 78-000746

Orders for Case No: 78-000746