Commission on Landlord-Tenant Affairs
for Montgomery County, Maryland
|In the Matter of the Appeal filed by
G. Gregory Russell, Owner
8813 Glenville Road Silver Spring, MD 20901
Rental Facility License No. 017329
The above captioned appeal having come before the Commission on Landlord-Tenant Affairs for Montgomery County, Maryland (the"Commission"), pursuant to Sections 29-14A, 29-17, 29-18, 29-21, and 29-24 of the Montgomery County Code 1994, as amended ("County Code"), and the Commission having considered the testimony and evidence of record, it is therefore, this 14th day of September, 1998, found, determined, and ordered, as follows:
On August 4, 1998, the Department of Housing and Community Affairs (the"Department") issued notice to G. Gregory Russell (the "Appellant"), owner of 8813 Glenville Road, Silver Spring, Maryland (the "Property"), a licensed multi-family rental facility in Montgomery County, MD, that the Rental Facility License for the Property, License No. 017329, issued annually by the Department, had been revoked as a result of his failure to correct 31 housing code violations at the Property. In response to the revocation notice, on August 12, 1998, the Appellant filed a formal appeal to the Commission.
The Appellant is seeking an order from the Commission reversing the Department's revocation of Rental Facility License No. 017329 for 8813 Glenville Road, Silver Spring, Maryland.
Pursuant to the procedures set forth in Section 29-24 of the County Code, the Commission convened a public hearing which began and ended on August 20, 1998. Present at the hearing and offering testimony and evidence were the Appellant and one Commission witness, Kevin Martell, Inspector, Department of Housing and Community Affairs, Division of Housing and Code Enforcement. Without objection from the Appellant, the Commission entered into the record of the hearing the case file for the Property compiled by the Department, identified as Commission's Exhibit No. 1.
FINDINGS OF FACT
Based on the testimony and evidence of record, the Commission makes the following findings of fact:
1. The Appellant is the owner of the Property, an eight (8) unit, garden-style apartment complex in Silver Spring, Maryland.
2. On May 28, 1998, the Department issued the Appellant a Notice of Violation citing 31 violations of Chapter 26,"Housing and Building Maintenance Standards," of the County Code ("Housing Code"), noted as a result of an inspection conducted on May 18, 1998, and ordered the Appellant to abate the violations within 30 to 45 days.
3. A reinspection of the Property was scheduled by the Department for Wednesday, July 8, 1998, to determine if the outstanding housing code violations had been corrected. However, by facsimile transmission dated July 7, 1998, the Appellant notified the Department that he was canceling the reinspection, and he requested an extension of time to complete the repairs and submitted a timetable for correction of all housing code violations. (see pages 4-6 of Commission's Exhibit No. 1).
4. In response to the Appellant's July 7th notification, by a letter dated July 17, 1998, sent to and received by the Appellant, the Department's Acting Director, Joe Giloley, notified the Appellant that: (a) his request for an extension of time to make the repairs was denied; (b) a reinspection of the Property was scheduled for July 31, 1998; (c) he had the right to file an appeal of the Notice of Violation with the Montgomery County Board of Appeals within 15 days; and (d) failure to correct all of the violations, with the exception of violation No. 1 (re-paving the parking lot) by July 31, 1998, would result in the revocation of his Rental Facility License. (see pages 14-16 of Commission's Exhibit No. 1).
5. By a letter dated August 4, 1998, sent to and received by the Appellant, Acting Director Giloley informed the Appellant that a reinspection of the Property on July 31, 1998,A...revealed that all of the violations about which you were put on notice are still outstanding." and, "As a result of your failure to correct the housing code violations identified in my letters of May 28, 1998 and July 17, 1998, this letter serves as written notice that, effective August 15, 1998, your license to operate the above-referenced rental facility is revoked." Mr. Giloley's letter also advised the Appellant, pursuant to Section 29-24 of the County Code, of his right to appeal the license revocation to the Commission. (see pages 14-16 of Commission's Exhibit No. 1). On August 12, 1998, the Appellant filed an appeal to the Commission, which is the subject of this hearing.
6. The Commission finds credible and factual the testimony of Inspector Martell that: (a) he inspected the Property on May 18, 1998; (b) his inspection resulted in a Notice of Violation, citing 31 violations of the Housing Code, being issued to the Appellant on May 28, 1998; and (c) he reinspected the Property on July 31, 1998, and found that none of the 31 code violations had been corrected.
7. In response to a summons issued by the Commission for this hearing, Inspector Martell provided 13 photographs, entered into the record without objection from the Appellant as Commission's Exhibit No. 2, that he personally took at the Property during his July 31st reinspection of the Property. The Commission finds that the photographs fairly and accurately depict the condition of the Property on July 31, 1998.
8. The Appellant testified at the hearing that: (a) he received the May 28th Notice of Violation; (b) the conditions described in that notice existed at the time of the inspection; (c) most of the violations had been repaired or corrected as of the date of this hearing; and (d) none of the violations pose a threat to the health and safety of the tenants. The Appellant also testified that he is a licensed general contractor and he manages and maintains the Property himself.
9. The Commission credits the testimony of Inspector Martell that he re-inspected the Property on August 20, 1998, the date of this hearing, and based on his testimony, the Commission finds that as of the date of this hearing, one code violation had been waived (re-paving), 13 code violations had been corrected, and the remaining 17 code violations had not been corrected.
10. The Appellant also testified that he had ordered wooden kitchen cabinets from a contractor in North Carolina to replace existing metal cabinets in three (3) apartments at the Property, and that installation of the new cabinets should be completed by August 31, 1998. The Appellant further testified that all of the housing code violations in apartment #6 (Violation Nos. 20-27) would be corrected as soon as the tenants vacated that unit, and if they failed to vacate voluntarily he would issue them a quit and vacate notice by September 1, 1998.
11. The Commission finds that apartment #6 at the Property is overcrowded and that the overcrowding constitutes a threat to life, health and safety.
12. The Appellant was given proper written notice of the housing code violations by the Department and ample opportunity to make repairs. As of July 31, 1998, the Appellant failed to correct the 31 housing code violations cited by the Department, and the Property was in violation of the Housing Code and Chapter 29,"Landlord-Tenant Relations," of the County Code due to the outstanding code violations and lack of maintenance and needed repairs.
13. The Appellant failed to make any substantial effort to correct the housing code violations noted in the May 28th Notice of Violations until after he received the August 4th notice from the Department that his Rental Facility License had been revoked.
14. Based on the photographic evidence and testimony of Inspector Martell, the Commission finds that the Appellant has failed to provide regular maintenance to the exterior window frames of the Property (see Commission's Exhibit Nos. 2-3, 2-4 and 2-5) and certain attempted repairs, such as plastering and painting of interior wall and ceiling surfaces and repair of an electrical outlet, have been done in an unworkmanlike1 manner (see Commission's Exhibit Nos. 2-12 and 2-13).
CONCLUSIONS OF LAW
The Commission makes the following conclusions of law based upon consideration of the testimony and evidence contained in the record:
1. The County has established the Housing Code to safeguard the health and safety of occupants of occupied dwellings and the general public which sets forth the minimum standards for the maintenance, repair and upkeep to those dwellings. The County is also authorized to inspect the condition of dwellings, nonresidential structures, and premises located in the County and conducts periodic inspections of those dwellings to determine if minimum standards are being maintained. (See Sec. 26-4 of Mont. Co. Code).
2. The County requires that landlords obtain a license to operate a Rental Facility in the County. The issuance of the Rental Facility License is conditioned, in part, on the property being in compliance with all applicable laws, including the Housing Code, and,"If an inspection indicates that a rental facility is not in compliance with all applicable laws, the Director may revoke the license or take other remedial action." (See Sec. 29-21(c) of Mont. Co. Code).
3. The Department properly notified the Appellant of the existence of 31 housing code violations and gave him reasonable opportunity to abate those violations.
4. As a result of the existence of the 31 housing code violations cited by the Department on May 28, 1998, the Property was not in compliance with applicable County laws.
5. The Appellant's failure to make necessary repairs to the Property in a timely and workmanlike manner and to abate all of the housing code violations after repeated notice from the Department, constitutes a significant and substantial violation of Chapters 26 and 29 of the County Code, which is grounds for the revocation of the Rental Facility License for the Property.
In view of the foregoing, the Commission on Landlord-Tenant Affairs hereby orders that:
1. The Department's revocation of Rental Facility License No. 017329 for 8813 Glenville Road, Silver Spring, Maryland, is hereby MODIFIED.
2. Rental Facility License No. 017329 is hereby temporarily reinstated conditioned on the following:
a). Correction of all 16 remaining housing code violations (violation No. 1, parking lot re-paving, having been waived), cited by the Department in the Notice of Violation dated May 28, 1998. With respect to Violation Nos. 20 - 27 in apartment #6 at the Property, they must be corrected within 30 days after the current tenants vacate, and all other code violations must be corrected by September 30, 1998.
b). The Appellant providing the Department, within 10 days of the date of Order, a copy of the quit and vacate notice he testified he would issue to this the tenants in Apartment #6 at the Property, and taking all ppropriate action to affect repossession of the apartment. After the current tenants vacate Apartment # 6 at the Property, it must not be re-occupied until all of the housing code violations have been abated in accordance with (a) above, and it has been re-inspected by the Department and determined to be suitable for re-occupancy.
c). Commencing with the month of October 1998, and continuing for 12 calendar months thereafter, the Property, including all common areas, are subject to bi-monthly inspections by the Department. The Appellant must contact the Department to schedule such inspections, which are to be conducted within the first 10 days of the month in which the inspection is to occur.
d). If any housing code violations are discovered as the result of required bi-monthly inspections, they must be corrected in accordance with the time-frames and instructions set forth by the Department. Failure to complete any repairs within time-frames set by the Department constitutes non-compliance with this Order and is grounds for immediate revocation of the temporary reinstatement and the affirmation of the revocation of the license by the Commission.
3. Copies of all bi-monthly inspection reports, and any other inspection reports which may be generated by complaints from tenants at the Property or by community residents, are to be submitted to the Commission by the Department at the first meeting of the Commission after any inspection, together with a statement as to whether or not the Appellant has complied with the conditions set forth in this Order.
4. If the Appellant remains in compliance with this Order up to and including the final bi-monthly inspection of the Property, Rental Facility License No. 017329 for 8813 Glenville Road, will be fully reinstated.
5. The Commission hereby retains jurisdiction over the status of the Appellant's Rental Facility License for the Property until such time as it is fully reinstated or until such time as the Revocation is affirmed.
6. Appellant's failure to comply with any provision contained in this Order constitutes non-compliance with this Order, and is grounds for immediate affirmation by the Commission of the Department's revocation of the Rental Facility License No. 017329 for 8813 Glenville Road, Silver Spring, Maryland, which would be in addition to, and not in substitution for, such other penalties which may be provided for by Chapters 26 and 29 of the County Code.
7. This Order is subject to change by the Commission.
The foregoing decision was concurred in unanimously by Panel Chairperson Greg Smith and Commissioners Gary Everngam and Martin Schnider.
The Appellant is hereby notified that Section 29-44 of the County Code declares that failure to comply with this Decision and Order shall be punishable by a civil fine Class A violation as set forth in Section 1-19 of the County Code, and is in addition to, and not in substitution for, such other penalties which may be provided for by Chapters 26 and 29 of the County Code.
The Appellant is also hereby notified that should the Commission henceforth AFFIRM the Revocation of Rental Facility License No. 017329 for 8813 Glenville Road, Silver Spring, MD, based on non-compliance with this Order, that:
1. Pursuant to Section 29-18(a) of the County Code, it is a violation of the County Code to conduct or operate a rental facility without a valid Rental Facility license;
2. Pursuant to Section 29-17(a) of the County Code,"Any person who conducts or operates, attempts to conduct or operate, or permits the conduct or operation of a rental facility owned by him...after a license has been revoked...shall be subject to punishment for a class A violation as set forth in section 1-19 of chapter 1 of the County Code" and, "Each day that a person conducts or operates, attempts to conduct or operate or permits the conduct or operation of a rental facility owned by him in violation of this chapter, or fails to comply with any commission order...shall constitute a separate offense;"
3. Pursuant to Section 29-17(b) of the County Code,"In addition to any criminal or other penalty herein provided, injunctive or other appropriate action or proceeding to correct any violation of this article may be instituted by the county attorney's office pursuant to the provisions of section 29-8, and any court of competent jurisdiction may issue restraining orders, temporary or permanent injunctions or other appropriate forms of relief." However, "...where any person chooses to cease the conduction or operation of a rental facility, no penalty will lie during the sixty-day period that tenants have to vacate the facility as specified in section 29-24;" and,
4. Pursuant to Section 29-24(b) of the County Code,"In the event that a license...is revoked ...and the landlord of the premises for which the license had been issued...chooses to cease renting the facility regulated hereunder, he shall give any tenants occupying the premises in question sixty (60) days' written notice to vacate the premises, said period to begin on the first day of the month following service of said notice. In addition, a copy of said notice must be delivered to the director."
Any party aggrieved by the action of the Commission may file an administrative appeal to the Circuit Court of Montgomery County, Maryland, within thirty (30) days from the date of this Order, pursuant to the Maryland Rules governing administrative appeals.
Greg Smith, Panel Chairperson
Commission on Landlord-Tenant Affairs
1The BOCA (Building Officials & Code Administrators International, Inc.) National Property Maintenance Code is regarding by housing officials nationwide as the industry standard. Section PM-101.6 of the BOCA Code states, regarding workmanship, that "All repairs, maintenance work, alterations or installations which are caused directly or indirectly by the enforcement of this code shall be executed in a workmanlike manner,""and Section PM-202.0 defines workmanlike as, "Executed in a skilled manner; e.g. generally plumb, level, square, in line, undamaged, and without marring adjacent work."