STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOLLYWOOD MANAGEMENT INC. )

d/b/a 7841 APARTMENTS, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1079

)

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before State Hearing Officer, Delphene C. Strickland, Division of Administrative Hearings, July 25, 1978, beginning at 1:30 p.m. in Room 358, State Office Building, 1350 N.W. 12th Avenue, Miami, Florida.

APPEARANCES

For Petitioner: Francis Bayley, Esquire

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: Myron B. Berman, Esquire

Post Office Box 1113

North Miami Beach, Florida 33160 ISSUES

1. Whether the license of Petitioner, 16-8702H, should be revoked.

   
   

2. Whether a civil penalty should be assessed against Petitioner.

FINDINGS OF FACT

1. A notice to show cause why the Petitioner should not have a civil penalty assessed against it or the license be suspended or revoked, together with a notice of right to hearing was sent to Petitioner by certified mail. A formal administrative hearing was requested by Petitioner.

   
   

2. Respondent contends that petitioner violated Section 83.49, Florida Statutes, by failure to give notice to a tenant of the disposition of her security deposit and later of the claim against it within 15 days. Petitioner contends it received no security deposit and therefore no notice was necessary.

3. On or about August 18, 1977, Hizi Malka, president of the Petitioner corporation, entered into an oral agreement with Denise Lombardo to rent to Lombardo an apartment owned by Petitioner corporation. There had been discussions about the rental of an apartment between Mr. Malka and Lombardo prior to the date of August 18, and Lombardo had moved some of her possessions into the apartment.

   
   

4. Mr. Malka presented an unexecuted lease agreement to Lombardo at the time of the oral agreement to rent with a request that it be executed. Lombardo paid a sum of $200 by check for which she was presented a receipt reflecting a billing of $300 and a payment of $200. She was then given a key to the apartment and took the unexecuted lease with her. Lombardo moved into an apartment of Petitioner and resided there until sometime in December of 1977.

   
   

5. Received into evidence was a receipt dated 8/18 reflecting a billing of

   $300, $200 paid and $100 due; a receipt dated 9/2/77 denoting $150 paid; a receipt dated 10/4/77 denoting $150 paid; a receipt dated 10/30/77 reflecting a billing of $150, $100 paid and a balance due of $50.

   
   

6. Also received into evidence was a letter from Petitioner's attorney to Denise Lombardo dated January 11, 1978.

   
   

7. Also entered into evidence was the unexecuted lease agreement in which the proposed terms were that the monthly rental for the subject apartment would be $150 a month, payable in advance the first of each month with an advance rental payment of $150 and a security payment of $150. The proposed lease was dated September 1, 1977, to September 30, 1977 for the advance rental payment, but the lease itself was to have run for a term of 12 months beginning on the 18th of August, 1977 and ending on the 17th day of August, 1978.

   
   

8. It is uncertain from the testimony at the hearing the exact date when Lombardo vacated the premises although she informed the Petitioner that she intended to vacate the premises at the end of November, 1977. Lombardo surrendered the keys to the premises sometime during the month of December, 1977. Lombardo was unable to state exactly when she surrendered the keys to Mr. Melka, but he stated that she delivered the keys on December 31, 1977.

   
   

9. The Petitioner, through an attorney, Myron B. Berman, by letter dated January 11, 1977, made a demand upon Lombardo to pay an additional sum of money in the amount of seventy five ($75) dollars for rent of the premises rented from the Petitioner corporation and stated that a security deposit in the amount of

   $150 was applied to the arrearages.

   
   

10. There had been no mention of a security deposit on any of the billing statements given to Lombardo. Lombardo paid the total sum of $600 to the Petitioner from August, 1977 to the time the premises were vacated in December, 1977. There was no substantiating evidence of any other payments made although Lombardo said she made additional payments in cash and the Respondent denied receiving any such payments.

    
    

11. The premises were used by Lombardo for storage purposes during the first part of August before she moved into the premises and paid the original

    $200 payment.

    
    

12. The Hearing Officer further finds: the receipts presented show that monies were paid but there is no showing that a security deposit was demanded or paid.

13. All the monies paid by the witness to the Petitioner were assigned to the payment of rent, which at the rate of $150 per month would be the amount of the agreed rental payments for the period from the first of August to the end of November or the middle of August to the middle of December. The premises were not used for living by the witness until August 18, 1977, but the premises were not vacated and the keys returned to the Petitioner until sometime in December, 1977.

    
    

14. The proposed lease agreement was not executed and therefore the findings of fact relative to the renting of the premises by the witness from the Petitioner is largely dependent upon the evidence and testimony received at the hearing.

    
    

15. The letter from the Petitioner's attorney erroneously concluded that the witness had paid a security deposit which could be applied to arrearages in rent.

    
    

16. The proposed recommended orders of the parties were considered in the findings and conclusions of law in this order.

    
    

    CONCLUSIONS OF LAW

    
    

17. Section 509.261, Florida Statutes, authorizes the Division of Hotels and Restaurants to suspend or revoke licenses of public lodging establishments which violate Chapter 509 or the rules or the Division.

    
    

18. In lieu of the suspension or revocation of licenses, Section 509.261(2) authorizes the imposition of fines not to exceed $500 for violations of the statute or the rules of the Division.

    
    

19. Chapter 83, Florida Statutes, Part II is entitled "Landlord and Tenant Residential". Section 83.43(12) defines security deposits as:

    
    

    83.43 Definitions.-

    (12) "Security deposits" means any moneys held by the landlord as security for the performance 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.

    
    

    Section 83.49(7) provides that:

    83.49 Deposit money or advance rent; duty of landlord and tenant.

    (7) Any person licensed under the provisions of s. 509.241, unless excluded by the provisions of this part, who fails to comply with the pro- visions 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 Regulation in the manner provided in s. 509.261.

    
    

20. Rental of apartments are not excluded under Chapter 83 Part II.

Section 83.49(2) provides in part:

83.49 Deposit money or advance rent; duty of landlord and tenant.-

(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 accumulate interest at the rate

of 5 percent per annum, simple interest. However, no interest shall be required 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, within 30 days of receipt of 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 payments to the tenant....

Section 83.49(3)(a) provides in 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....

It is the conclusion of this Hearing Officer that the witness, Denise Lombardo, did not pay a security deposit and that the payments she made were for rent. No notice was required under the foregoing sections and the Petitioner did not violate Section 83.49(2) and (3).

RECOMMENDATION

Dismiss the complaint.

DONE AND ENTERED this 25th day of August, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Francis Bayley, Esquire Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Myron B. Berman, Esquire Post Office Box 1113

North Miami Beach, Florida 33160

Docket for Case No: 78-001079

Orders for Case No: 78-001079