STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 79-324

)

CAROLINA ROSENBERG, t/a )

EASTVIEW 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 3:00 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: Ms. Carolina Rosenberg, pro se

c/o Eastview Apartments 1530 Washington Avenue Miami Beach, Florida

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, Carolina Rosenberg, trading as Eastview Apartments, is licensed by the Petitioner, the Division of Hotels and Restaurants, Department of Business Regulation, and is in business at 1530 Washington Avenue in Miami Beach, Florida.

   
   

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 her License #23- 5830H for failure to return a security deposit of $175.00 to Paul C. Kent and failure to provide a written notice making a claim against said security deposit.

3. Paul C. Kent was a tenant in Eastview Apartments, Unit #518, from September of 1977, through June, 1978. As a condition of renting such unit, Mr. Kent was required to and did pay a security deposit in the amount of $175.00. Mr. Kent was not required to and did not sign a written lease, and at no time during his tenancy was he furnished with a copy of Section 83.49, Florida Statutes. He was not furnished with any specific address for Respondent Rosenberg, the owner, or for a person authorized to receive written notices on her behalf.

   
   

4. Mr. Kent said that he gave the manager of Eastview Apartments thirty

   (30) days' oral notice of his intent to terminate his tenancy. Respondent Rosenberg was notified personally of his intention to terminate his tenancy two

   (2) weeks before the end of the last month for which he paid rent.

   
   

5. No written notice was furnished to Mr. Kent of the Respondent's intention to impose a claim upon his security deposit, and such monies were not returned to him.

   
   

6. Respondent Rosenberg testified that the tenant, Mr. Kent, had moved out in the middle of the month, that she felt she had the right to retain the security deposit for the expense of getting the apartment ready to lease again, and that Mr. Kent never came back to ask for the security deposit.

   
   

7. Submitted into evidence without objection was a receipt for rental payments dated August 30, 1977, on which it was stated "Received from Paul C. Kent $50.00 for security deposit on 518," and "Balance due $125.00." Said receipt was signed by Kay Kukla, who was the manager of Eastview Apartments at that time. A receipt for $25.00, signed by said manager, was marked "Balance of security paid in full."

   
   

8. 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

   
   

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

   
   

10. 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 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 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)

    
    

    Section 83.43 Definitions.-- provides:

    
    

    (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. ...

    
    

11. The tenant, Paul C. Kent, rented on a month-to-month basis without written lease. He gave verbal notice of his intent to move prior to the end of the last month for which he paid rent. He did not give written notice, but he did give actual verbal notice.

    
    

12. The Respondent has failed to follow the requirements of the foregoing statutes. The tenant was not refunded his security deposit, no copy of the statute was given to the tenant, and no written address for Respondent or her 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.

    
    

13. The Respondent was furnished adequate notice by the tenant of his intention to move. She did not-notify the tenant of an intention to retain his security deposit. The security deposit and interest of five (5) percent since date of payment 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, Carolina Rosenberg, be assessed a fine of $200.00.

DONE and ORDERED this 21st 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 oil Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Ms. Carolina Rosenberg c/o Eastview Apartments

1530 East Washington Avenue Miami Beach, Florida

Docket for Case No: 79-000324

Orders for Case No: 79-000324