Commission on Landlord-Tenant Affairs

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 18th day of September, 1998, found, determined, and ordered, as follows:

On August 5, 1998, the Department of Housing and Community Affairs (the "Department") issued notice to David and Ching-mei Tsai (the "Appellants"), owners of 8809 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County, MD, that the Rental Facility License for the Property, issued by the Department, License No. 017790, had been revoked as a result of their failure to correct 41 of 67 housing code violations at the Property. In response to the revocation notice, on August 12, 1998, the Appellants filed a formal appeal to the Commission.

The Appellants are seeking an order from the Commission reversing the Department's revocation of Rental Facility License No. 017790 for 8809 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 24, 1998. Present at the hearing and offering testimony and evidence were Ching-mei Tsai on behalf of herself and David Tsai and one Commission witness, Kevin Martell, Inspector, Department of Housing and Community Affairs, Division of Housing and Code Enforcement. Without objection from the Appellants, 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.

Furthermore, the Commission extended the time period within which it would decide this matter pursuant to Sections 2A-10(d) and 29-24 of the County Code and Section 7.1 of Appendix L, "Regulations on Commission on Landlord-Tenant Affairs" of Chapter 29 of the County Code, and hereby decides as follows:

Based on the testimony and evidence of record, the Commission makes the following findings of fact:

1. David and Ching-mei Tsai are the owners of the Property, a four (4) unit, garden-style apartment complex in Silver Spring, Maryland.

2. On May 28, 1998, the Department issued the Appellants a Notice of Violation citing 67 violations of Chapter 26, Housing and Building Maintenance Standards, of the County Code ("Housing Code"), noted as a result of an inspection conducted by Inspector Kevin Martell on May 18, 1998, and ordered the Appellants to abate the violations within 30 to 45 days.

3. By a letter dated July 6, 1998, the Appellants requested an extension of two months to complete the repairs, and submitted the names of two contractors, PHI Engineering Company and Bill Guzman, who would be doing the repair work (see page 18 of Commission's Exhibit No. 1).

4. In response to the Appellants' July 6th request, by a letter dated July 17, 1998, received by the Appellants, Joe Giloley, Chief, Division of Housing and Code Enforcement, notified the Appellants that: (a) their 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) they 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 their Rental Facility License. (see pages 15-17 of Commission's Exhibit No. 1).

5. Inspector Martell testified that he conducted a reinspection of the Property on July 31, 1998, to determine if the housing code violations cited on May 28th had been corrected, and found that 41 of the 66 code violations (violation No. 1 having been waived) had not been corrected.

6. By a letter dated August 5, 1998, received by the Appellants, the Department's Acting Director Mr. Giloley informed the Appellants that a reinspection of the Property on July 31, 1998, "...revealed that of the 67 violations about which you were placed on notice, 41 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 Appellants, pursuant to Section 29-24 of the County Code, of their right to appeal the license revocation to the Commission. (see pages 11-14 of Commission's Exhibit No. 1). On August 12, 1998, the Appellants filed an appeal to the Commission, which is the subject of this hearing.

7. In response to a summons issued by the Commission for this hearing, Inspector Martell provided 14 photographs, entered into the record without objection from the Appellants 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 Commission credits the testimony of Inspector Martell that: (a) he inspected the Property on May 18, 1998, and as a result of that inspection, on May 28, 1998, the Department issued a Notice of Violation, citing 67 violations of the Housing Code, to the Appellants; (b) he reinspected the Property on July 31, 1998, and found that 41 of the 67 code violations had not been corrected; and (c) he reinspected the Property on August 24, 1998, the date of this hearing, and found that most of the major violations had been corrected.

9. The Commission also credits Inspector Martell's testimony that of the remaining, uncorrected violations as of August 24, 1998, (a) some are cosmetic in nature; (b) some, such as repairs to the concrete walkways, had not been corrected in an workmanlike manner and are therefore unacceptable; and (c) none constitute a serious danger to the life, health or safety of the occupants.

10. Appellant Ching-mei Tsai testified at the hearing that: (a) most of the violations cited in the May 28th Notice of Violation had been repaired or corrected as of the date of this hearing; (b) she has hired a new property manager for the Property; and (c) she has hired several contractors to complete repair work on the remaining code violations which should be finished within two weeks.

11. In support of her testimony, Ms. Tsai entered into evidence at the hearing three documents: (a) a letter dated June 8, 1998 to all tenants at 8806 and 8809 Glenville Road advising them that treatment for pest extermination was scheduled for June 9, 1998 (see Appellants' Exhibit No. 1); (b) a report from PHI Engineering Company, dated August 21, 1998, listing work completed on several of the code violations (see Appellants' Exhibit No. 2); and (c) a spreadsheet listing employee names, dates and number of hours worked and amount paid for services (see Appellants' Exhibit No. 3).

12. The Appellants were given proper written notice of the housing code violations by the Department and ample opportunity to make repairs. As of July 31, 1998, the Appellants failed to correct 41 of the 67 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 Appellants failed to make any substantial effort to correct the majority of the referenced 67 code violations until after they received notice from the Department that their Rental Facility License had been revoked.

14. Based on the photographic evidence and testimony of Inspector Martell, the Commission finds that the Appellants have failed to provide regular maintenance to the exterior concrete walkways of the Property (See Commission's Exhibit Nos. 2-5 to 2-7) and certain attempted repairs, such as bathroom caulking (see Commission's Exhibit No. 2-16), plastering and painting of interior walls and trim surfaces (see Commission's Exhibit Nos. 2-10, 2-13 and 2-15), and skim coating of the concrete walkways, have been done in an unworkmanlike¹ manner.

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 Appellants on May 28, 1998, of the existence of 67 housing code violations, and gave them reasonable opportunity to abate those violations.

4. Due to the existence of the 67 housing code violations cited by the Department on May 28, 1998, the Property was not in compliance with applicable County laws.

5. The Appellants' 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.

ORDER

In view of the foregoing, the Commission on Landlord-Tenant Affairs hereby orders that:

1. The Department's revocation of Rental Facility License No. 017790 for 8809 Glenville Road, Silver Spring, Maryland, is hereby MODIFIED.

2. Rental Facility License No. 017790 is hereby TEMPORARILY REINSTATED conditioned on the following:

a). Correction of all 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, by September 30, 1998.

b). 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.

c). 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 the time-frames set by the Department constitutes non-compliance with this Order and is grounds for the Commission to immediately revoke the temporary reinstatement and to affirm the Department's revocation of the Rental Facility License.

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 Appellants have complied with the conditions set forth in this Order.

4. If the Appellants remain in compliance with this Order up to and including the final bi-monthly inspection of the Property, Rental Facility License No. 017790 for 8809 Glenville Road, will be fully reinstated.

5. The Commission hereby retains jurisdiction over the status of the Appellants' Rental Facility License for the Property until such time as it is fully reinstated or until such time as the Revocation is affirmed.

The foregoing decision was concurred in unanimously by Panel Chairperson Gary Everngam and Commissioners John Peterson and Martin Schnider.

The Appellants are hereby notified that Section 29-44 of the County Code declares that failure to comply with this Order is punishable by a civil fine Class A violation as set forth in Section 1-19 of the County Code.

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.

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Gary Everngam, Panel Chairperson

Commission on Landlord-Tenant Affairs