ORDER
The above
captioned appeal having come before the Commission on Landlord-Tenant
Affairs for Montgomery County, Maryland (the “Commission”), pursuant to
Chapter 29, Sections 29-10(b), 29-14, 29-16, 29-18 through 29-26, and
29-48, of the Montgomery County Code, 2001, as amended (“County Code”),
and the Commission having considered the testimony and evidence of record,
it is therefore, this 5th day of December,
2002, found, determined, and ordered, as follows:
BACKGROUND
On December 21, 2001, the Montgomery County
Department of Housing and Community Affairs (the “Department”), revoked
the Rental Facility Licenses of Chukwujindu Victor Mbakpuo (the
“Appellant”) for 575 Thayer Avenue, #606, Silver Spring, Maryland (“575
Thayer Avenue”), 3301 Hewitt Avenue #407, Silver Spring, Maryland (“3301
Hewitt Avenue”), and 8830 Piney Branch Road, #204, Silver Spring, Maryland
(“8830 Piney Branch Road”), also collectively hereinafter referred to as
the “Properties”. Subsequent to the license revocation, the Appellant
filed an appeal to the Commission seeking the reinstatement of the
licenses, and on January 17, 2002, the Commission heard the appeal. By
Order dated February 25, 2002 (“February 25, 2002 Order”), the Commission
affirmed the Department’s revocation of the Appellant’s Rental Facility
Licenses for the Properties. No appeal was taken from the Commission’s
February 25, 2002 Order.
On or about March 11, 2002, the Appellant
filed with the Department three (3) new Rental Facility License
applications, one for each of the Properties. On March 26, 2002, the
Department notified the Appellant that his applications had been denied
because the Rental Facility Licenses for the Properties had previously
been revoked, and the revocation had been affirmed by the Commission. In
response to the notice of license denial, on April 18, 2002, the Appellant
again filed an appeal to the Commission seeking a reversal of the
Department’s denial of his licenses, and on May 1, 2002, the Commission
heard the appeal. By an Order dated May 8, 2002 (“May 8, 2002 Order”),
the Commission affirmed the Department’s denial of the Appellant’s Rental
Facility License applications for the Properties. Once again, Appellant
did not appeal the Commission’s May 8, 2002 Order.
On July 1, 2002, the Appellant again filed
with the Department three (3) new Rental Facility License applications,
one for each of the Properties. On July 18, 2002, the Department notified
the Appellant that his applications had again been denied.
On July 22, 2002, the Appellant filed a
formal appeal to the Commission of the Department’s July 18, 2002 denial
of Rental Facility License applications, and the Commission subsequently
scheduled a public hearing at 6:30 PM on August 5, 2002, to hear the
appeal. The Appellant failed to appear at the hearing. By a facsimile
transmission dated August 7, 2002, the Appellant notified the Commission
that he attempted to attend the August 5, 2002 public hearing, but arrived
late, at approximately 7:20 PM., due to circumstances beyond his control,
and therefore, was requesting that the hearing be rescheduled. The
Commission granted the Appellant’s request, and by letter dated August 28,
2002, notified him that the hearing on his appeal had been re-scheduled
for September 12, 2002. The hearing in the matter of the appeal filed by
Chukwujindu Victor Mbakpuo regarding the Department’s July 18, 2002 denial
of Rental Facility License applications, commenced on September 12, 2002,
and was continued for a second night on September 17, 2002. The hearings
lasted for a total of approximately nine and one-half hours.
Present on the first night of the hearing
on September 12, 2002, and offering testimony and evidence were the
Appellant, Chukwujindu Victor Mbakpuo, and three (3) witnesses called by
the Commission: Joe Giloley, Chief of the Department’s Division of
Housing and Code Enforcement; Inspector Cecilia Kinna; and Inspector
Wright Jolly, both of the Department’s Division of Housing Code and
Enforcement. Present on the second night of the hearing on September 17,
2002, and offering testimony and evidence were the Appellant, Chukwujindu
Victor Mbakpuo, and three (3) witnesses called by the Commission: Joe
Giloley, Chief of the Department’s Division of Housing and Code
Enforcement; Inspector Wright Jolly and Inspector Kevin Martell, both of
the Department’s Division of Housing Code Enforcement.
At the written request of the Appellant at
the conclusion of the first night of the hearing the Commission also
requested that Elizabeth Davison, Director of the Department, and Linda
Bird, Program Manager of the Department’s Division of Housing and Code
Enforcement, be present to offer testimony and evidence on the continued
hearing date of September 17, 2002, at 6:30 PM. Both Ms. Davison and Ms.
Bird voluntarily complied with the Commission’s request to be present and
appeared at the hearing at 6:30 PM. However, as of 6:55 PM on September
17, 2002, the Appellant had not appeared and the Commission excused both
witnesses and began the hearing. The Appellant arrived at approximately
7:00 PM, after the hearing commenced.
During the
first night of the public hearing, the Commission accepted into the record
the following documents offered by Commission witnesses: (1) noting the
Appellant’s objection,
the case file compiled
by the Department, identified as Commission’s Exhibit No. 1; (2) a letter
dated May 15, 2002, from Inspector Jolly to the Appellant, identified as
Commission’s Exhibit No. 2; and (3) a lease agreement between the
Appellant and Mohamed and Felicia Kuyateh, dated June 29, 2002, for
the rental of 3301 Hewitt Avenue, identified as Commission’s Exhibit No.
3.
The Commission also accepted into evidence,
as Exhibit No. 1 of the Appellant, a list of 44 Housing Code violations at
3301 Hewitt Avenue, dated January 25, 2002, issued by the Department.
During the second night of the hearing on
September 17, 2002, the Commission accepted into evidence the following
documents offered by Commission witnesses: (1) a Failure to Pay Rent –
Landlord’s Complaint for Repossession of Rented Property suit filed by the
Appellant on May 14, 2002, against Christine Clerizier, tenant at 8830
Piney Branch Road, identified as Commission’s Exhibit No. 4; (2) an Order
of Abatement signed by Judge C.J. Vaughey on April 2, 2002, regarding 8830
Piney Branch Road, identified as Commission’s Exhibit No. 5(A); (3) a
Petition for Contempt and Order to Show Cause, concerning civil citations
issued to the Appellant regarding 8830 Piney Branch Road, filed in the
District Court by Assistant County Attorney Franklin M. Johnson, Jr., on
July 17, 2002, identified as Commission’s Exhibit No. 5(B); (4) a Show
Cause Order concerning civil citations issued to the Appellant regarding
8830 Piney Branch Road, filed in the District Court by Assistant County
Attorney Franklin M. Johnson, Jr., on July 17, 2002, identified as
Commission’s Exhibit No. 5(C); and (5) an Order of Abatement signed by
Judge C.J. Vaughey on April 2, 2002, regarding 575 Thayer Avenue,
identified as Commission’s Exhibit No. 6.
The Commission also accepted into evidence
from the Appellant on September 17, 2002, the following documents and
photographs: (1) a letter dated May 6, 2002, from Inspector Kinna to the
Appellant, identified as Appellant’s Exhibit No. 2; (2) a Petition For
Warrant of Restitution, dated June 28, 2002, regarding Christine Clerizier,
identified as Appellant’s Exhibit No. 3; (3) a photograph of an entrance
door, identified as Appellant’s Exhibit No. 4; and (5) a series of four
photographs, identified as Appellant’s Exhibit No. 5A – D.
During the
first night of the hearing the Appellant stated to the Commission that he
would submit to the Commission the notice to vacate that he allegedly
issued to Christine Clerizier, a tenant at 8830 Piney Branch Road, after
the hearing, and during the second night of the hearing he stated he
would submit the notice by the morning following the hearing. Nothing
was submitted on either night of the hearing. By facsimile transmission
on September 25, 2002, eight days after the conclusion of the hearing, the
Appellant submitted to the Department an alleged copy of a notice, dated
March 1, 2002, identified as Appellant’s Exhibit No. 6.
By a letter dated September 24, 2002, the
Commission advised the Appellant that pursuant to the provisions of
Sections 2A-10(d) and 29-25(e) of the County Code it had extended the time
period within which it would decide this matter.
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 Properties.
2. On January 3, 2002, the
Department revoked the Rental Facility Licenses for the Properties.
3. The Appellant filed a formal appeal to the Commission of the
Department’s Revocation of the Rental Facility Licenses for the
Properties, and on January 17, 2002, a Commission panel convened to hear
that appeal.
4.
On February 25, 2002, the Commission issued its Decision and Order which
affirmed the Department’s revocation of the Rental Facility Licenses for
the Properties due to Appellant’s failure to correct, or correct in a
timely manner, numerous Housing Code violations in each of the three
Properties, despite being given multiple Notices of Violation with respect
thereto, and multiple opportunities to comply. The Commission’s Order
also advised the Appellant of his right to file an appeal of the Order to
the Circuit Court for Montgomery County. The Appellant did not appeal the
Commission’s February 25, 2002 Order, and did not request a stay of that
Order.
5. By a letter dated February 25,
2002, which accompanied the Commission’s Order affirming the revocation of
the Rental Facility Licenses for the Properties, the Department informed
the Appellant that to comply with the Order he was to issue a notice to
vacate to any and all tenants in the Properties with an expiration date of
no later than April 30, 2002, and that he was to provide copies of all
such notices to the Department.
6. On or about March 11, 2002, two
weeks after the Commission affirmed the Department’s revocation of the
Rental Licenses for the Properties, the Appellant filed with the
Department three (3) Rental Facility License applications for those same
Properties.
7. By a letter dated March 26,
2002, the Department notified the Appellant that, based on the
Commission’s affirmation of the revocation of his Rental Facility Licenses
for the Properties, his applications for new Rental Facility Licenses were
denied.
8. On April 18, 2002, the Appellant
filed a formal appeal to the Commission of the Department’s denial of his
Rental Facility License applications for the Properties, and on May 1,
2002, a Commission panel, consisting of different Commissioners than the
panel that heard the previous appeal on January 17, 2002, convened to hear
the appeal.
9. On May 8, 2002, the Commission
issued its Decision and Order in the matter of the appeal of the
Department’s denial of the Appellant’s Rental Facility License
applications for the Properties, affirming the Department’s denial of the
Appellant’s Rental Facility License applications for the Properties. The
Commission’s May 8, 2002 Order specifically advised the Appellant,
regarding application for new licenses, as follows:
“That the
Appellant’s Rental Facility Licenses were revoked, and sustained by
another panel of this Commission [on February 25, 2002], does not mean
that he was without a remedy to challenge that revocation. He is
specifically afforded the right of appeal under Section 1-19 of the County
Code, and was so notified in the Commission’s February 25, 2002 Order.
Such an appeal would be to the Circuit Court, however, not to this panel.
The Appellant can, of course, also reapply for Rental Facility Licenses
effective July 1, 2002, at which time the Department would undoubtedly
ascertain whether all Housing Code violations on the subject Properties
had been corrected and whether, in light of the Appellant’s overall
experience as a landlord, new Rental Facility Licenses are to be issued to
him.”
10. On July 1, 2002, the Appellant
filed with the Department three (3) new Rental Facility License
applications, one for each of the Properties.
11. By a letter dated July 18, 2002
(See pages 54 to 60 of Commission’s Exhibit No. 1), the Department advised
the Appellant that his Rental Facility License applications had been
denied based on the Appellant’s numerous and ongoing violations of the
Montgomery County Code and failure to comply with the Commission’s
February 25, 2002 Decision and Order as well as Appellant’s failure to
comply with two Orders of Abatement, one dated April 2, 2002, and the
other dated July 9, 2002, from the District Court for Montgomery County.
In that letter, issued by the Department’s Director, Elizabeth B. Davison,
the Department set forth the specific ongoing violations of the law by the
Appellant, which were:
a. The Appellant failed to comply
with the February 25, 2002 Commission Order by failing to issue the
tenants in the Properties a 60-day notice to quit and vacate;
b. The Appellant, on or about March
7, 2002, after the revocation of the Rental Facility License for 575
Thayer Avenue had been affirmed by the Commission, attempted to re-rent
575 Thayer Avenue, to Patricia and Tricia John;
c. Based on the re-rental of 575
Thayer Avenue, to Patricia John and her daughter, Tricia John, on March 7,
2002, the Department issued the Appellant two (2) Class A civil citations
– one for renting the unit without a Rental Facility License, and the
second for failing to comply with the Commission’s February 25, 2002
Decision and Order;
d. On July 9, 2002, in the District
Court of Maryland, in the matter of the two civil citations issued by the
Department on March 7, 2002, Judge C. J. Vaughey found the Appellant
guilty of operating 575 Thayer Avenue without a Rental Facility License,
and guilty of failing to comply with the February 25, 2002 Commission
Order, and levied fines and court costs against the Appellant. On that
date, Judge C. J. Vaughey also issued an Order of Abatement which ordered
the Appellant to: (1) immediately, and at all times hereafter, refrain
from operating 575 Thayer Avenue without first obtaining the proper rental
license, and (2) immediately, and at all times hereafter, comply with all
valid orders from the Landlord-Tenant Commission, including the
Commission’s February 25, 2002 Decision and Order;
e. On July 9, 2002, the
Department’s Inspector Jolly issued the Appellant three (3) Class A civil
citations for operating 8830 Piney Branch Road without a Rental Facility
License, and one for failing to comply with the Commission’s February 25,
2002 Decision and Order by continuing to rent that unit;
f. On July 9, 2002, the
Department’s Inspector Kinna issued the Appellant two (2) Class A civil
citations for operating 3301 Hewitt Avenue without a Rental Facility
License, and for failing to comply with the Commission’s February 25, 2002
Decision and Order by re-renting that unit to a new tenant on or about
July 5, 2002; and,
g. Appellant’s failure to comply
with an Order of Abatement issued by the District Court on April 2, 2002,
which ordered the Appellant to correct Housing Code violations at 8830
Piney Branch Road which were first cited by the Department on September
20, 2001.
12. On July 22, 2002, the Appellant
appealed the Department’s July 18, 2002 denial of his applications for
Rental Facility Licenses to the Commission.
13. The Commission finds that the
Appellant failed to advise the Department whether or not he had issued
notices to vacate to tenants in the Properties, after the Commission
affirmed the revocation of his Rental Facility Licenses for those
Properties, and the Appellant failed to provide copies of any such notices
to the Department as required by the Department’s February 25, 2002 letter
which accompanied the Commission’s Order.
14. The Commission finds that the
Appellant failed to issue a notice to vacate to Christine Clerizier, the
tenant at 8830 Piney Branch Road at the time the Commission issued its
Decision and Order , to vacate that unit by April 30, 2002, as required
by the Commission’s February 25, 2002 Order. Although at first the
Appellant claimed at the hearing that he had issued a 60-day notice to
vacate to Ms. Clerizier but that she had not vacated, Appellant failed to
bring a copy of the notice to vacate to the hearing, and the Appellant
admitted he never filed a tenant holding over action against Ms. Clerizier
upon the expiration of the alleged notice. At the beginning of the
second night of the hearing, the Appellant claimed again that he had
issued a notice to vacate but had once again failed to bring a copy of
that notice to the hearing. He said that he could fax it either as soon
as he got home from the hearing, or first thing the next morning.
Therefore, the Commission Chair said the record would be left open for
that document. (Transcript at page 329). Then, at the end of the
hearing, Appellant admitted that he had not issued a notice to vacate to
the tenant, and he claimed it was an “oversight” on his part. (Transcript
at page 469). On September 25, 2002, eight (8) days after the conclusion
of the hearing, the Appellant faxed a copy of a notice to vacate to the
Commission. Based on the contradictions in Appellant’s testimony
regarding the notice to vacate, including his admission at the end of the
hearing that he did not send the tenant a notice to vacate, and based on
his failure to file a Tenant Holding Over action against the tenant, or to
bring the notice to either night of the public hearing in this matter, the
Commission does not find credible or reliable the copy of the notice to
vacate forwarded by the Appellant to the Commission on September 25, 2002,
eight (8) days after the conclusion of the hearing. (See Appellant’s
Exhibit No. 6).
15. On May 14, 2002, the Appellant
filed a “Failure To Pay Rent – Landlord’s Complaint For Repossession of
Rented Property,” suit against Christine Clerizier in the District Court
of Maryland for non-payment of May 2002 rent (See Commission’s Exhibit No.
4).
16. The Commission finds that the
Appellant continued to rent 8830 Piney Branch Road to Christine Clerizier
after the Rental Facility License for that unit had been revoked by the
Department and the revocation had been affirmed by the Commission’s
February 25, 2002 Order, until some time in July 2002. This finding is
supported by the credible testimony and evidence provided at the hearing
by Inspector Jolly. Furthermore, the Appellant admitted at the hearing
that Ms. Clerizier lived in the unit until the beginning of July 2002.
(Transcript at pages 420-21).
17.
The Commission finds that the Appellant attempted to rent 575 Thayer
Avenue to Patricia John and her daughter, Tricia John, on March 7, 2002,
after the Rental Facility License for that property had been revoked by
the Department and the revocation had been affirmed by the Commission’s
February 25, 2002 Decision and Order. This finding is supported by the
credible testimony and evidence provided at the hearing by Inspector
Martell, and the fact that the Appellant was found guilty in the District
Court of Maryland on July 9, 2002, of renting 575 Thayer Avenue without a
proper Rental Facility License and guilty of failing to comply with the
Commission’s February 25, 2002 Decision and Order.
18.
The Commission finds the Appellant’s testimony that he did not attempt to
rent 575 Thayer Avenue to Patricia John and her daughter, Tricia John, in
March 2002 and his testimony that Patricia John admitted at the District
Court hearing on July 9, 2002 that he had not tried to rent her 757 Thayer
Avenue, to be completely unbelievable and to reflect extremely poorly on
the overall credibility of all of the Appellant’s testimony, in light of
the District Court’s guilty verdict in that case and the transcript of the
proceedings in that case, of which the Commission takes judicial notice.
The Commission, in reviewing the District Court transcript, finds that
Patricia John specifically testified at that hearing before Judge Vaughy
that, although she never was given a copy of it, she entered into a lease
with the Appellant to rent 575 Thayer Avenue, that she gave the Appellant
money to rent that unit, and that she was preparing to move into that unit
on March 6, 2002.
Furthermore, in reviewing the transcript of
that July 9, 2002 District Court hearing, the Commission is struck by the
Appellant’s testimony at that hearing that at the time he was discussing
renting 575 Thayer Avenue to Patricia John, he had already submitted
applications for new licenses to the Department, and that those
applications were pending. The Commission finds that those statements by
the Appellant under oath at the District Court hearing were untrue, as the
evidence in this case clearly indicates that the Appellant attempted to
rent 575 Thayer Avenue to Patricia John in early March 2002, that Patricia
John was attempting to move into 575 Thayer Avenue on March 6, 2002, and
that the Appellant did not apply for new Rental Facility Licenses until
March 11, 2002.
19. The Commission finds that on July
9, 2002, the District Court, after finding the Appellant guilty of two
violations of County law, issued an Order of Abatement which ordered the
Appellant to: (1) immediately, and at all times hereafter, refrain from
operating 575 Thayer Avenue without first obtaining the proper rental
license, and (2) immediately, and at all times hereafter, comply with all
valid orders from the Landlord-Tenant Commission, including the
Commission’s February 25, 2002 Decision and Order.
20.
The Commission finds that the Appellant attempted to re-rent 3301 Hewitt
Avenue at the end of June 2002 after the Rental Facility License for that
unit had been revoked by the Department and the revocation had been
affirmed by the Commission’s February 25, 2002 Order. This finding is
supported by the credible testimony and evidence provided at the hearing
by Inspector Kinna that the Appellant re-rented 3301 Hewitt Avenue to
Mohamed and Felicia
Kuyateh on June 29,
2002, with a lease commencement date of July 1, 2002 (See Commission’s
Exhibit No. 3).
This finding is also supported by the Appellant’s admission at the
hearing that he did re-rent the property in July 2002 without a Rental
Facility license (See Transcript pages
389 and 397 - 398).
The Commission finds that the Appellant’s explanation that he rented 3301
Hewitt Avenue to Mr. and Mrs. Kuyateh because he had been allegedly told
by Inspector Kinna that the Rental Facility License applications he
submitted would not be approved is a completely unsatisfactory excuse for
knowingly renting the unit without a Rental Facility License, in clear
violation of County law and the Commission’s February 25, 2002 Decision
and Order. In addition, the Commission finds the Appellant’s statement
that Inspector Kinna made such a remark to him not credible. Furthermore,
the Commission finds the Appellant’s explanation is also not credible
because the lease was signed by the parties on June 29, 2002, before the
Appellant had even submitted new Rental Facility License applications to
the Department.
21.
The Commission finds that as of the date of the hearings in this case,
Appellant continued to rent 3301 Hewitt Avenue to Mohammed and Felicia
Kuyateh, even though he still had no Rental Facility License for that
property.
22. The Appellant’s continued rental
and/or re-rental of any of the Properties after
July 9, 2002, not only
constitutes a continuing violation of the Commission’s February 25, 2002
Order, and a continuing violation of Chapter 29 of the County Code, but
also constitutes a violation of the “Order of Abatement” issued by the
District Court of Maryland on July 9, 2002, which ordered him to comply
with all valid orders from the Commission, including the February 25, 2002
Decision and Order.
23. As of July 1, 2002, the date the
Appellant filed applications with the Department for new Rental Facility
licenses, there were outstanding Housing Code violations at 8830 Piney
Branch Road. This finding is supported by the following: (a) the April 2, 2002
Order of Abatement issued by Judge C.J. Vaughey directing the Appellant to
correct multiple violations of the Housing Code at 8830 Piney Branch Road
(See Commission’s Exhibit No. 5A); and (b) the July 17, 2002 Petition for
Contempt and Show Cause Order filed by the County in the District Court of
Maryland alleging that the Appellant had failed to take action to comply
with the District Court’s April 2, 2002 Order of Abatement and failed to
make repairs required by the District Court. (See Commission’s Exhibit
Nos. 5B and 5C). Although based on the testimony at the hearing, the
Commission finds that the Petition for Contempt and Show Cause Order were
dismissed in District Court in September 2002 because Appellant had made
the required repairs, the Commission credits the testimony of Inspector
Jolly that as of August 27, 2002 only some of the repairs had been made,
and that it was not until the beginning of September 2002 that all of the
required repairs had been made.
24. The Commission finds that despite
Appellant’s charges to the contrary at the hearing, there is no evidence
of racial bias or prejudice on the part of the Department regarding any of
the actions taken by Department staff concerning the Appellant. Based on
the testimony of Inspector Kinna, Inspector Jolly, and Inspector Martell,
and based on the objective evidence in the record, including Orders from
the District Court, the Commission finds that the Appellant’s claims that
Inspector Kinna, Inspector Jolly and Inspector Martell are prejudiced
against him, and that the Department’s allegations of violations of County
law and of the Commission’s February 25, 2002 Order that led to the denial
of Appellant’s applications for Rental Facility Licenses were the result
of racial bias are not supported by the evidence in the record and are not
credible. The record contains objective believable evidence that the
Appellant, on an ongoing basis, violated County law and failed to comply
with the Commission’s February 25, 2002 Order and District Court Orders.
In fact, with regard to the Department’s allegations that the Appellant
rented 3301 Hewitt Avenue without a Rental Facility License, in violation
of County law and of the Commission’s February 25, 2002 Order, the
Appellant admitted at the hearing that he did in fact do this, and further
admitted that the Department’s accusations against him with regard to this
alleged violation were true and were not the result of bias or prejudice.
(Transcript at page 389).
CONCLUSIONS OF
LAW
Accordingly, based upon a fair
consideration of the testimony and evidence contained in the record, the
Commission on Landlord-Tenant Affairs concludes:
1. In Montgomery County individuals
are required to obtain Rental Facility Licenses before operating housing
as rental property. This requirement in part ensures that rental
properties and landlords in the County comply with all applicable laws,
including Chapter 29 of the County Code, Chapter 26 of the County Code,
and all Orders of the Commission on Landlord-Tenant Affairs. The issuance
of a 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 Section 29-21(c) of County Code).
Where a landlord refuses to comply with applicable County law in the
operation of rental property, County Law provides the Department with the
authority to deny or revoke that landlord’s licenses, in an effort to
protect the health, safety and well-being of occupants of rental property
in the County, and in an effort to protect the general public and the
quality of housing in the County.
2. Section 29-16 of the County Code
requires the owner of a dwelling unit to obtain a rental facility license
before operating the dwelling unit as a rental facility. An owner
procures a license by submitting an application to the Director of the
Department. Pursuant to Section 29-18 of the County Code, an owner who
operates or attempts to operate a rental facility when a license has been
revoked, suspended or refused, or who does not comply with a Commission
Order, violates County law and subjects himself to fines and criminal
prosecution.
3. The County Code requires that a
landlord comply with all applicable laws in order to operate a dwelling
unit as a rental facility. Pursuant to Section 29-23 of the County Code,
Rental Facility Licenses are issued for a one-year term and are renewable
subject to compliance with all applicable laws. Pursuant to Section
29-22(d) of the County Code, Rental Facilities are subject to inspection
by the County and, if an inspection indicates that any rental housing does
not comply with all applicable laws, the Director may revoke the license
or take other remedial action under Section 29-25 of the County Code.
Pursuant to Section 29-25 of the County Code, a rental license may be
revoked, suspended or denied if an owner, after 10 days written notice,
fails to eliminate or initiate bona fide efforts to eliminate violations
of applicable law.
4. The Commission finds that in
order to comply with the Commission’s February
25, 2002 Decision and
Order, and County law regarding rental facility licenses, the Appellant
was required to issue 60-day notices to vacate to any and all tenants at
any of his Properties at the end of February 2002, and required to stop
operating the Properties as rental facilities as of the expiration of
those notices to vacate.
5.
Appellant’s attempts to rent 575 Thayer Avenue in March 2002, Appellant’s
rental of 3301 Hewitt Avenue on June 29, 2002, and Appellant’s continued
rental of 8830 Piney Branch Road after the time his Rental Facility
Licenses were revoked constitute continuing violations of the Commission’s
February 25, 2002 Decision and Order and County law requiring landlords to
obtain Rental Facility Licenses in order to operate dwelling units as
rental facilities. Therefore, the Commission concludes that the Appellant
was not in compliance with all applicable laws at the time he applied for
Rental Facility Licenses in July 2002, and continued to not be in
compliance with all applicable laws at the time of the hearing and, as a
result, his Rental Facility Licenses were properly denied by the
Department.
6.
Appellant’s rental of his Properties when he had no valid Rental Facility
Licenses for the Properties, violated Chapter 29 of the County Code and
the Commission’s February 25, 2002 Decision and Order, and caused
defective tenancies.
7.
After hearing the Appellant’s appeal in this matter, the Commission
concludes that the evidence in the record supports the Director’s
conclusion that Appellant failed to eliminate or initiate bona fide
efforts to eliminate violations of applicable laws following the issuance
of the Commission’s February 25, 2002 Order. This failure is evidenced by
the following:
a. The Commission’s February 25,
2002 Order, in which it upheld the Department’s revocation of Appellant’s
Rental Facility License for each of the three Properties due to
Appellant’s failure to correct, or correct in a timely manner, numerous
Housing Code violations in each of the three Properties, despite being
given multiple Notices of Violation with respect thereto, and multiple
opportunities to comply.
b. Appellant’s continued renting
and re-renting of 8830 Piney Branch Road and 3301 Hewitt Avenue as rental
units after April 30, 2002, the deadline for compliance with the
Commission’s February 25, 2002 Order, and Appellant’s failure to provide
the tenants in 8830 Piney Branch Road with a Notice to Vacate, despite
express requirement of the County Code and the Department’s letter of
February 25, 2002, notifying Appellant of this requirement. In fact, the
Appellant filed suit against Christine Clerizier, the tenant of 8830 Piney
Branch Road, for non-payment of rent on May 14, 2002, despite representing
to the Commission that he had given her a Notice to Vacate on March 1,
2002, to comply with the legal requirement of Code Section 29-25(b). The
Commission takes judicial notice of the fact that, under Maryland law, a
tenant sued for possession for nonpayment of rent has a right to redeem
the tenancy at any time up until an eviction occurs. (See § 8-401(e) of
the Real Property Article, Annotated Code of Maryland, 1999, as amended).
Thus, had this tenant paid her rent, she could not have been required to
vacate, a requirement of the Commission’s February 25, 2002 Order.
Therefore, Appellant failed to comply with Code Section 29-25(b), which
required a Notice to Vacate by virtue of not having a rental facility
license, from which there is no right of redemption.
c. Appellant’s admission that as
late as July, 2002, he undertook to re-rent 3301 Hewitt Avenue, even
though he did not have the required Rental Facility License for that unit.
d. Appellant’s admission that the
tenant who was renting 8830 Piney Branch Road did not move out of that
unit until the beginning of July 2002.
e. The issuance on July 9, 2002, by
the County of civil citations to Appellant for continuing to operate 8830
Piney Branch Road without a Rental Facility License, and for re-renting
3301 Hewitt Avenue without a Rental Facility License.
f. The issuance by the District
Court of an Order of Abatement on April 2, 2002, directing Appellant to
correct multiple Housing Code violations at 8830 Piney Branch Road.
g. The filing by the County of a
Petition for Contempt and to Show Cause on July 17, 2002, as a consequence
of Appellant’s failure to comply with the Court’s Order of Abatement of
April 2, 2002.
h. The Commission’s finding that as
of August 27, 2002, Appellant still had not made all the repairs required
by the District Court’s April 2, 2002 Order of Abatement.
i. The entry of an Order on July
9, 2002, by the District Court finding Appellant guilty of operating the
575 Thayer Avenue without the required Rental Facility License.
j. The entry by the District Court
on July 9, 2002, of an Order of Abatement directing Appellant to cease
operation of 575 Thayer Avenue without a proper Rental Facility License
and to comply with all valid Orders of the Commission on Landlord-Tenant
Affairs, including its February 25, 2002 Order.
8.
When, as here, a landlord continually, knowingly and willfully fails to
comply with the County Code, Notices of Violation issued by the Department
and Decisions and Orders issued by the Commission, denial of Rental
Facility Licenses to rent housing in the County is especially warranted,
for the protection of tenants, prospective tenants, the housing stock and
the integrity of the licensing process.
ORDER
In view of
the foregoing, the Commission on Landlord-Tenant Affairs hereby orders the
following:
1.
The Department’s denial of the Appellant’s applications for Rental
Facility Licenses for his Properties is hereby AFFIRMED;
2.
Any lease agreement entered into by the Appellant with a tenant or tenants
at 575 Thayer Avenue, #606 Silver Spring, MD, 3301 Hewitt Avenue, #407,
Silver Spring, MD, or
8830 Piney Branch
Road, #204, Silver Spring, MD, at any time after February 25, 2002, is
hereby terminated and declared to be NULL and VOID;
3.
The Appellant must issue proper written notice to any and all tenants
currently occupying 575 Thayer Avenue, #606 Silver Spring, MD, 3301 Hewitt
Avenue, #407, Silver Spring, MD, or 8830 Piney Branch Road, #204, Silver
Spring, MD, that they must vacate the subject property within sixty
calendar (60) days and by no later than February 28, 2003, provide copies
of all such notices to the Commission no later than Monday, December 23,
2002, and if any of the Properties are vacant, provide written notice to
the Department that that is the reason no notice to vacate has been
issued;
4.
The Appellant must refund to the Department, within thirty (30) calendar
days of the date of this Decision and Order, all rent paid by any and all
tenants who currently occupy or have occupied 575 Thayer Avenue, #606
Silver Spring, MD, 3301 Hewitt Avenue, #407, Silver Spring, MD, or 8830
Piney Branch Road, #204, Silver Spring, MD, at any time after April 30,
2002, and the Department must then disburse the returned rent to the
appropriate tenants;
5.
The Appellant must refund to the Department, within thirty (30) calendar
days of the date of this Decision and Order, all security deposits paid by
any and all tenants who have occupied or currently occupy 575 Thayer
Avenue, #606 Silver Spring, MD, 3301 Hewitt Avenue, #407, Silver Spring,
MD, and 8830 Piney Branch Road, #204, Silver Spring, MD, plus accrued
interest, and the Department must then disburse the returned security
deposits to the appropriate tenants;
6.
The Appellant is prohibited from re-renting 575 Thayer Avenue, #606 Silver
Spring, MD, 3301 Hewitt Avenue, #407, Silver Spring, MD, or 8830 Piney
Branch Road, #204, Silver Spring, MD, without first obtaining a valid
Rental Facility License from the Department; and,
7.
The Department is hereby directed not to accept or consider any Rental
Facility License applications from the Appellant for 575 Thayer Avenue,
#606 Silver Spring, MD, 3301 Hewitt Avenue, #407, Silver Spring, MD, and
8830 Piney Branch Road, #204, Silver Spring, MD until, and not before,
July 1, 2003.
8.
The Commission hearing panel in this matter hereby retains jurisdiction of
this case for purposes of ensuring compliance with this Order including
referral to the Office of the County Attorney for additional enforcement,
including, but not limited to, civil and/or criminal prosecution.
The foregoing decision was concurred in
unanimously by Commissioner Mattie Ligon, Commissioner Travis Nelson, and
Commissioner Roger D. Luchs, Panel Chair.
The
Appellant is hereby notified that 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.
_____________________________
Roger Luchs, Panel Chairperson