Commission on Landlord-Tenant Affairs

The above-captioned case having come before the Commission on Landlord-Tenant Affairs for Montgomery County, Maryland, pursuant to Sections 29-14A, 29-38, and 29-40 of the Montgomery County Code 1994, as amended, and the Commission having considered the testimony and evidence of record, it is, therefore, this 23rd day of May, 1996, found, determined and ordered, as follows:

On December 11, 1995, Newma P. Hawkins, tenant at 8401 Flower Avenue, #6, Takoma Park, Maryland, (hereinafter "Complainant"), filed a formal complaint with the Office of Consumer Affairs in which she alleged that T. Daniel and Yasuko Nainan, owners of 8401 Flower Avenue, #6, Takoma Park, Maryland, (hereinafter the "Respondents"): (1) failed to offer her a written lease agreement, including the offer of a two (2) year term, at the commencement of her tenancy, in violation of Sections 29-26(a) and 29-27(b) of the Montgomery County Code, 1994, as amended; (2) issued her a notice to quit and vacate her apartment in retaliation for making complaints to the Division of Code Enforcement regarding deficiencies in her dwelling unit and for attempting to organize a tenants association, in violation of Section 29-30B (b) of the Montgomery County Code and Section 8-208.1 of the Real Property Article, Annotated Code of Maryland, 1988, as amended; and (3) failed to correct serious housing code violations in her apartment, including a non-working stove for nearly four (4) months.

After determining that the matter was not susceptible to conciliation, the Director duly referred the above-named case to the Commission on Landlord-Tenant Affairs for its review. On March 5, 1996, the Commission determined to hold a public hearing which commenced on April 9, 1996, and concluded on that date.

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

1. Regarding Complainant's allegations that Respondents failed to offer her the option of a two-year lease term at the commencement of her tenancy, in violation of Section 29-26(a) and 29-27(b) of the Montgomery County Code, 1994, as amended, and that Respondents engaged in retaliatory practices against her in violation to Section 29-30B(b) of the Montgomery County Code, the Commission finds that those allegations were previously heard before the Commission at a public hearing on January 25, 1996. The Commission further finds that the Settlement Agreement entered into on the record by the parties at that hearing fully resolves those allegations, and therefore, they will not be considered as part of this Order. (Ref. Commission's Exhibit No. 2).

2. On or about August 1, 1994, the Complainant became a tenant and took possession of 8401 Flower Avenue, #6, Takoma Park, Maryland, a licensed rental facility in Montgomery County, Maryland, owned and operated by the Respondents.

3. On or about August 31, 1995, the Complainant called Inspector Sheila Williams, Department of Housing and Community Development, Code Enforcement Division, with a complaint about roach infestation in her apartment. (Ref. Commission's Exhibit #3)

4. On November 11, 1995, an inspector from the Washington Gas Company inspected the Complainant's apartment and posted a " Danger - Notice of Hazardous Condition" red tag on the gas stove in the Complainant's apartment.

5. On November 12, 1995, at Complainant's request, Steven E. Borkoski, Inspector, Code Enforcement Division, Department of Housing and Community Development, conducted an inspection of the rental facility located at 8401 Flower Avenue, Takoma Park, Maryland. As a result of his inspection, on November 15, 1995, Inspector Borkoski issued Respondents a Notice of Violation detailing thirty-one (31) code violations in and outside of the building. Nine (9) of the violations cited were in the Complainant's apartment including notice to "Repair or replace the red tagged stove according to Washington Gas Regulations and have them inspect the stove after the repairs to ensure proper compliance." The Respondents were ordered to repair all violations by December 11, 1995. ( Ref. Commission Exhibit #3)

6. On December 11, 1995, Inspector Borkoski conducted a re-inspection of the Complainant's apartment during which he determined that none of the violations cited in the November 15, 1995 Notice of Violation had been corrected. On the same date, Mr. Borkoski issued Respondents a second Notice of Violation.

7. On December 11, 1995, Complainant filed a formal complaint with the Montgomery County Office of Consumer Affairs.

8. On December 27, 1995, the Complainant filed a "Complaint in Action of Rent Escrow" in the District Court of Maryland, Case No. CV-28785-96.

10. On February 28, 1996, at trial in the District Court of Maryland, Landlord-Tenant Division, in the matter of Hawkins v. Nainan, Case No. CV-28785-96, "Complaint in Action of Rent Escrow," Judge Woodward found that serious housing code violations (non-working stove, improperly placed smoke detectors, roach infestation) existed in Complainant's apartment from August 1995 and were not corrected until February 21, 1996. Judge Woodward further determined that at no time were Respondents' workmen denied access to Complainant's apartment to make repairs. Judge Woodward ordered the abatement of the full amount of the Complainant's rent for three months (December 1995, January 1996 and February 1996) in the amount of $1,530.00. Judge Woodward also dismissed Respondents' Failure to Pay Rent case and Request for Summary Ejectment filed against the Complainant. (Ref. Commission's Exhibit #3).

11. The Complainant provided testimony and documented evidence to the Commission that, based on the non-use of the gas stove in her apartment, she was required to purchase meals at restaurants and other eateries, at an average cost of $10.00 per day, for the period of time the gas stove in her apartment was inoperable.

12. At no time during the subject tenancy were Respondents ever denied access to Complainant's apartment for the purpose of making repairs to the gas stove. (Ref. Commission's Exhibit #3).

Accordingly, based upon a fair consideration of the testimony and evidence contained in the record, the Commission on Landlord-Tenant Affairs concludes:

1. The Complainant became a tenant at 8401 Flower Avenue, Apartment #6, in August 1994.

2. Respondents were properly informed by the Complainant and the Washington Gas Company of the existence of a defective gas stove in the Complainant's apartment on November 11, 1995.

3. Respondents failed to repair the defective gas stove in the Complainant's apartment for the period of 101 days, November 11, 1995 through February 20, 1996, in violation of Section 29-30(a) and 26-8(I) and (j) of the Montgomery County Code, 1994, as amended.

4. Respondents caused a defective tenancy by failing to make repairs to the defective gas stove in the Complainant's apartment for 101 days, November 11, 1995 through February 20, 1996.

5. Complainant is entitled to actual damages caused by the defective tenancy. Based on her inability to use the gas stove in her apartment to prepare meals, the Complainant demonstrated that she incurred actual expense to purchase meals for 101 days, at an average cost of $10.00 per day.

6. Complainant failed to provide any probative testimony or evidence to support her claim that she lost wages or incurred any other actual expense, other than for meals, as a result of the housing code violations in her apartment.

In view of the foregoing, the Commission on Landlord-Tenant Affairs hereby orders the Respondents to pay the Complainant $1,010.00, which sum represents the actual cost incurred by the Complainant to purchase certain meals for 101 days when her gas stove was not working.

The foregoing was concurred in unanimously by Commissioners Rex Smith, Bettie Powers and William Devany.

Should the Commission determine that the Respondent has not, within fifteen (15) calendar days of receipt of this Decision, made a bona fide effort to comply with the terms of this Decision and Order, it may refer the matter to the County Attorney for enforcement.

The parties are hereby notified that Section 29-44 of the Montgomery County Code 1994, as amended, 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 Montgomery County Code 1994, as amended.

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.

Rex C. Smith, Panel Chairperson

Commission on Landlord-Tenant Affairs