• Decision and Order
• Background
• Prehearing Order
• Hearing
• Amended Complaints
• Motions
• I    Johnson v. Winarsky et al., Case No. T-12787
•        Findings of Fact
•        Conclusions of Law
• II   Farr/Volante v. Winarsky, Case No. T-12823
•        Findings of Fact
•        Conclusions of Law
• III  Jamilla v. Winarsky, Case No. T-12825
•        Findings of Fact
•        Conclusions of Law
• IV  Collins v. Winarsky, Case No. 131
•        Findings of Fact
•        Conclusions of Law
• V    Floyd v. Winarsky, Vase No. 2912
•         Findings of Fact
•         Conclusions of Law
• VI   D. Roberts v. Winarsky, Case No. 3310
•         Findings of Fact
•         Conclusions of Law
• VII   Shawn Brown and Michelle Roberts v. Winarsky, Case No. 3098
•         Background
•         Findings of Fact
•         Conclusions of Law
•         Order  
  
  
  The following decision was appealed to the Circuit Court and thereafter was subject to a settlement agreement whereby the Decision was agreed to be of no further force or effect.  The Landlord in its appeal claims that the Commission acted illegally, that the Decision was not supported by any substantial evidence and was completely arbitrary, that the Commission did not follow applicable rules of procedure, that the Decision had other numerous defects and that the Decision was void.  The County and the Tenants maintained that the Decision was valid and that the Commission acted properly.  A copy of the Landlord's Memorandum on Appeal and Complaint for Declaratory Judgment further explaining these points follows the Comission's Decision below.  The parties settled the case on appeal and provided that the settlement was not any admission by the Landlord of any violation of law or regulation whatsoever nor any acknowledgment by the Tenants that their respective complaints were anything but bonified.

The above captioned cases having come before the Commission on Landlord-Tenant Affairs for Montgomery County, Maryland (the "Commission"), pursuant to Sections 29-14A, 29-38, and 29-40 of the Montgomery County Code, 1994, as amended (the "County Code"), and the Commission having considered the testimony and evidence of record, it is therefore, this 3rd day of August, 1999, found, determined, and ordered, as follows:

This proceeding concerns a series of complaints brought before this Commission by nine (9) tenants of residential rental properties owned and controlled by Lewis I. and Susan L. Winarsky through Plymouth Muse Limited Liability Company, Garland Mews Limited Liability Company and Sky Properties, Inc. (hereinafter collectively referred to as "Respondents"). After determining that the matters raised in the complaints brought by each of the Complainants were not susceptible to conciliation, the Office of Landlord-Tenant Affairs, within the Department of Housing and Community Affairs (the "Department") duly referred the above-named cases to the Commission for review. On July 1, 1997, the Commission voted to accept jurisdiction of the complaints, and determined to hold a joint public hearing which commenced on November 10, 1997, and concluded approximately five months later, on April 14, 1998, after eight (8) nights of testimony by the parties, their witnesses, and the Commission's witnesses on November 10, 12, 17 and 19, 1997, February 17 and 19, March 9, and April 14, 1998.

Pre-hearing Order

Prior to the commencement of the hearings, on October 29, 1997, the Commission determined in the interest of an orderly presentation of all relevant evidence in the instant proceedings to conduct the hearing in accordance with a Pre-Hearing Order (See pages 141 and 142 of Commission's Exhibit No. 7). That Pre-Hearing Order established certain procedures and guidelines for the hearing.

The Commission gave the parties proper notice of the hearing dates, continuance dates and times. Present at one or more of the eight (8) nights of the public hearing were Complainants, Jim Johnson, Nick Jamilla, Kimberly Collins, Michelle Roberts and Shawn Brown, and Densil Roberts. Present at each night of the hearing and offering testimony and evidence were the Respondents, Lewis I. and Susan L. Winarsky, who were represented at one or more of the eight nights of the hearing by their attorneys Robert A. Plumb, Jr. and Clyde "Rocky" Sorrell. Complainants Heather Farr and Kenneth Volante (Case No. T-12823), and Complainant Michael Floyd (Case No. 2912) requested, pursuant to Section 29-40 of the Montgomery County Code, Landlord-Tenant Relations, 1994, as amended, to be represented at the hearing by Co-Complainant Jim Johnson; the Commission granted the request and noted the Respondents' objection for the record. (See "Motions" Section below).

Also present at one or more of the eight (8) nights of the public hearing and offering testimony and evidence under oath were six witnesses called by the Commission: Joe Giloley, Chief of the Department's Division of Housing and Code Enforcement; Cecilia Kinna, Housing Inspector from the Department’s Division of Housing and Code Enforcement; Michael Denney, Investigator, from the Department's Office of Landlord-Tenant Affairs; George Mader, the Respondents' maintenance man; Herb Pinkney, Appliance Service Technician, Washington Gas Light Company; Philip Peluso, Supervisor, Appliance Service Technician, Washington Gas Light Company; Scott Kaufman, professional engineer; and Joseph "Skip" Walker, residential construction expert, Claxton Walker & Associates.

During the first night of hearing, Respondents' counsel argued that his client had not been afforded adequate notice of the housing code violations alleged by the Complainants. As a result, the Commission postponed this part of the hearing so that the Respondents would have an opportunity to review the housing code files. Complainants would have an opportunity to amend their original and/or supplemental complaints regarding alleged housing code violations and the specific relief they were seeking. The Respondents would have an opportunity to respond to any amended complaints.

On February 19, 1998, the fifth night of the hearing, the Commission entered into the record of the hearing the Housing Code Enforcement case file for 8716 Plymouth Street, Silver Spring, MD, 8800 Plymouth Street, Silver Spring, MD, and 8311 Garland Avenue, Silver Spring, MD, compiled by the Department and identified as Commission’s Exhibits No. 12 and 13, respectively. Respondent objected to the introduction of these exhibits into evidence.

The Commission left the record open for thirty (30) days after the final night of the public hearing on April 14, 1998, to allow the Respondents to submit certain repair and maintenance records into the record, which they did on May 7, 1998, and the record of this hearing closed on May 14, 1998.

Furthermore, the Commission extended the time period within which it would decide this matter pursuant to Section 29-40 of the Code and Section 7.1 , "Regulations on Commission on Landlord-Tenant Affairs" (Appendix L of the Code).

During the course of the eight (8) nights of public hearing, the Commission was asked to make several rulings on Motions filed by the Complainants and the Respondents regarding both procedural matters and the admissibility of certain evidence and testimony. The Commission made some of the rulings on the record during the hearing, but reserved the right to make certain of those rulings as a part of this Order. The Commission disposes of these motions as follows:

1. MOTION: Complainant Johnson moved to be allowed to represent Michael Floyd (Case No. 2912), and Heather Farr and Kenneth Volante (Case No. T-12823) as their duly authorized representative before the Commission.

RULING: The Respondents objected to Mr. Johnson’s motion on grounds that his representation of other persons constituted the unauthorized practice of law in violation of Section 10-601 of the Business Occupations and Professions Article of the Annotated Code of Maryland. Section 10-601 of the Business Occupations and Professions Article provides that "[e]xcept as otherwise provided by law, a person may not practice law in the State [of Maryland] unless admitted to the Bar."

The Commission is loathe to rule on whether the specific activities undertaken by Mr. Johnson constitute the unauthorized practice of law. That is a judgment reserved to the judiciary and this Commission, while exercising quasi-judicial functions, is not part of the judiciary.

Nonetheless, the Commission is charged with assuring that the procedures which it implements comport with the laws of Maryland. For that reason, the Commission must examine the question of whether Mr. Johnson’s representation of other tenants was unlawful.

The facts are not in dispute. Mr. Johnson, not a member of the Bar of Maryland, was permitted to represent himself and two other tenant-complainants, Farr and Volante, in this proceeding. Mr. Johnson never claimed to be a licensed attorney and was candid to admit his status in this regard. However, Mr. Johnson produced a letter from Farr and Volante authorizing his representation of them and the Commission permitted the hearing to proceed with Mr. Johnson acting in a representative capacity. On the other hand, the Commission rejected a request for like representation by another tenant complainant, Susan Cairnes, where there was no letter authorizing the same and, in light of Cairnes’ failure to submit such a letter or to personally appear at the hearing, that complaint was dismissed.

A review of these facts indicates that Mr. Johnson’s actions might well be found by the judiciary to constitute the practice of law. Even assuming that is true (but without so finding), the Commission concludes that the laws of this State permit his representation of other tenants in matters before this Commission. As noted above, the statutory provision making the practice of law unlawful unless done by a member of the Bar begins with the phrase, "[e]xcept as otherwise provided by law...." That phrase establishes a condition which has been met by the Montgomery County Code. Section 29-40 of the County Code provides that: "The complaining party or parties and the respondent may, at their option, appear before the Commission [on Landlord Tenant Affairs] in person or by duly authorized representative(s) and may have the assistance of an attorney" (emphasis added). The language of Section 29-40 clearly meets the "except as otherwise provided by law" condition of Section 10-601. Therefore, the action by Mr. Johnson in representing Farr and Volante was lawful.

Respondents also contend that the Administrative Procedures Act of the Montgomery County Code (APA) requires that only a member of the Bar may act in a representative capacity before this Commission and that the APA controls where there is a conflict between the two in matters relating to hearing procedures. Specifically, Section 2A-8 of the Administrative Procedures Act of the Montgomery County Code (APA) provides that "[i]n any case governed by the procedures established in this chapter, the parties have the right to be represented by themselves or by legal counsel of their choice." In addition, Section 2A-3(d) of the APA provides that where there is a conflict between the APA and "any agency rule of procedure", the APA will govern.

After reviewing the applicable provisions of the APA and Section 29-40 of the County Code, the Commission holds that the APA does not require the disqualification of Mr. Johnson. First, it is not at all clear that the APA prohibits persons who are not members of the Bar from acting in a representative capacity. Section 2A-8 gives persons the right to have members of the Bar represent them; it does not prohibit non-members from acting in a representative capacity. Second, the same section of the APA also states that "[n]o action taken hereunder shall be declared invalid on the basis of procedural irregularities absent a finding of a denial of substantive due process. The Commission has made no such finding and, indeed, finds that substantive due process has been provided to all parties to this proceeding. Third, and perhaps most important, even assuming that the intent of Section 2A-8 is to prohibit persons other than members of the Bar from acting in a representative capacity before this Commission, the provisions of the APA concerning conflicts of law in Section 2A-3 require that the substantive provisions of Section 29-40 prevail over any conflicting APA provision. Section 2A-3(a) states that "[w]here any provision of this article conflicts with a substantive provision of an act pertaining to a particular agency, the latter shall prevail. In this case, the substantive provision of Section 29-40 permits non-members of the Bar to act in a representative capacity.

Accordingly, the motion by Mr. Johnson is GRANTED.

2. MOTION: Complainant Johnson moved that Respondent be ordered to produce his rental account history.

RULING: The Subpoena issued by the Commission to Respondents on October 30, 1997, required the Respondents to produce "[a] complete and accurate chronological billing history, any and all complaints filed in the District Court, and any and all notices of past-due rent, for all current and former tenants at any and all licensed rental facilities located in Montgomery County owned, operated or managed by the Respondents for the period January 1995 through October 1997." In the course of the hearing, the Respondents duly provided the requested documents. Therefore, Complainant’s motion for the production of documents is moot, and it is hereby DENIED.

3. MOTION: Complainant Johnson moved that the Commission subpoena two (2) witnesses: the Respondents’ agent, John Kincaid, and the Respondents’ accountant, Ms. Vanderhorst.

RULING: At the hearing on March 9, 1998, Mr. Johnson withdrew his motion to request that subpoenas be issued to Mr. Kincaid and Ms. Vanderhorst. Having been withdrawn, the motion is moot, and is hereby DENIED.

4. MOTION: The Respondents moved to quash certain summonses issued by the Commission in this proceeding.

RULING: Pursuant to Section 29-40 of the County Code, "[t]he commission shall have the power to summon all witnesses it deems necessary" and "...shall require the attendance of named persons and the production of relevant documents and records. Failure to comply with a summons shall constitute a violation of this chapter." The Commission has determined that the documents and records it requested are relevant to this proceeding and necessary for the evaluation of the issues before it. Accordingly, Respondents’ motion is hereby DENIED.

5. MOTION: The Respondents moved to dismiss all allegations regarding housing code violations.

RULING: Pursuant to Section 29-38 of the County Code, the Commission is authorized to conduct a public hearing, "...to determine whether a violation of this chapter has occurred or a defective tenancy exists." Section 29-1 of the County Code defines a defective tenancy as "[a]ny condition in a rental facility which violates the terms of the lease, this Chapter, or any other law, regulation or code."; Section 29-26(d) of the County Code states that all leases must "[c]ontain a provision acknowledging the landlord's responsibility for maintenance of the rental facility and incorporating by reference chapter 8, titled "Buildings," chapter 22, titled "Fire Safety Code," chapter 26, titled "Housing Standards," and chapter 59, titled "Zoning," of this Code, as amended, as an express warranty of habitability and covenant to repair."; and, Section 29-30(a)(1) to (3) states, "(a) The landlord must reasonably provide for the maintenance of the health, safety and welfare of all tenants and of all individuals properly on the premises of a rental facility. This obligation includes:

(1) complying with all applicable provisions of any federal, state or county statute, code, regulation or ordinance governing the maintenance, construction, use or appearance of the dwelling unit and rental facility;

(2) keeping all areas of the building, grounds, facilities and appurtenances in a clean, sanitary and safe condition; and,

(3) making all repairs and arrangements necessary to put and keep the dwelling unit and the appurtenances thereto in as good a condition as they were, or ought by law or agreement to have been, at the commencement of tenancy.

Furthermore, obtaining and keeping a Rental Facility License is conditioned on the Rental Facility being maintained at all times in compliance with the County’s Housing Code, and tenants have the right to file complaints alleging the landlord’s failure to do so and to request appropriate relief.

The housing code violations alleged in the complaints in this matter raise issues clearly within the Commission’s jurisdiction within the foregoing cited provisions of law. The Respondents were given adequate notice of all such violations and of the Commission’s authority to investigate these violations insofar as the Commission’s authority was implicated. Therefore, Respondent’s motion to dismiss all allegations regarding housing code violations is hereby DENIED.

6. MOTION: The Respondents moved to dismiss any complaints filed by a person who did not appear at the hearing in person or who was not represented at the hearing by an attorney.

RULING: For the reasons cited in response to Mr. Johnson’s motion No. 1 above, this motion is DENIED.

7. MOTION: The Respondents moved to confine all evidence at the hearing to issues raised by the charging documents.

RULING: In the course of this proceeding, the Commission was careful to afford the Complainants a reasonable opportunity to amend their complaints and to afford the Respondents full notice of the issues raised by the Complainants, and an opportunity to respond thereto. The hearing considered evidence relating to those charging documents as amended. Most significantly, the Commission’s determinations in this matter are limited to issues raised within the charging documents. Accordingly, Respondents’ motion is moot and is DENIED.

8. MOTION: The Respondents’ moved to keep certain records confidential.

BACKGROUND: The Summons issued by the Commission to the Respondents on October 30, 1997 (See pages 143 to 154 of Commission's Exhibit No. 7), required them to produce certain documents, notices, correspondence, account histories, bills, receipts, etc., relating to allegations in the complaints. At the public hearing on November 19, 1997, the Commission requested that the Respondents comply with the Commission’s request, and the Respondents agreed. On December 29, 1997, the Commission received documents from the Respondents, marked as Respondents’ Exhibit No. 15, with a cover letter from Respondents' counsel, Mr. Plumb, that stated, in pertinent part: "It is expressly acknowledged that said documents are to be produced for use only by the three Commissioners hearing this case. These documents and the contents thereof shall not be shared with the Complainants or any third party."

RULING: In addition to seeking to restrict the use made of documents contained in Respondents’ Exhibit No. 15 by the above quoted language, the Respondents further moved at the hearing for a ruling that the Commission is not authorized to require the production of the following types of documents:

(1) rent payment records which are required by State Code to be kept by landlords

(2) written lease agreements which are required by County Code; and,

(3) correspondence between the Respondents and the Complainants.

The Commission rejects counsel’s argument. These documents and records do not include sensitive business records such as Respondents’ income tax returns or bank records. The documents and records requested are non-confidential landlord-tenant business records and are relevant to the disposition of the Complainants’ allegations, not privileged or competitively sensitive business records. The Commission has the statutory authority to compel production of these documents and records at hearing pursuant to Section 29-40 of the County Code, which states: "The commission shall have the power to summon all witnesses it deems necessary." and, "...shall require the attendance of named persons and the production of relevant documents and records. Failure to comply with a summons shall constitute a violation of this chapter." The attempt by the Respondents in the quoted December 29, 1997 letter to restrict the use of the summoned documents by preventing the Complainants from reviewing said documents would negate the right of the Complainants to a full accounting by the Respondents of monies paid, as provided by §8-208.3 of the State Code, and must be rejected. There is moreover, no demonstrated interest on the part of the Respondents, or in this case, for protecting the confidentiality of Complainant correspondence or the terms of the lease agreements. Accordingly, Respondents’ motion to keep such relevant documents and records confidential is hereby DENIED.

9. MOTION: The Respondents moved to strike testimony and to bar the introduction of documentary evidence related to the licensing of the rental properties.

RULING: Pursuant to Section 29-16 of the County Code, all owners of rental property in Montgomery County are required to submit an application and obtain a Rental Facility License from the Department prior to offering the property for rent. Pursuant to Section 29-20 of the County Code, the owner of a multi-family apartment complex is also required to conspicuously post the Rental Facility License at the property or at a business office in the county. The Rental Facility License application and the Rental Facility License are public records maintained by the Department and are available for review by landlords, tenants and members of the general public; they are not privileged or confidential documents. Accordingly, Respondents’ motion to strike testimony and to bar the introduction of documentary evidence regarding the licensing of the properties is hereby DENIED.

On July 23, 1996, Jim Johnson ("Johnson"), current tenant at apartment #2 (the "Apartment") at 8716 Plymouth Street, Silver Spring, Maryland, (the "Property"), a licensed, multi-family rental facility in Montgomery County, MD, filed a formal complaint with the Office of Landlord-Tenant Affairs (See pages 1-8 of Commission's Exhibit No. 7) within the then Division of Consumer Affairs, now the Department of Housing and Community Affairs (the "Department"), in which he alleged that Lewis I. and Susan L. Winarsky, Plymouth Muse Limited Liability Company, and Sky Properties, Inc., owners of the Property (collectively referred to as the "Respondents"):

1. failed to provide him with a 60-day notice of utility conversion, in violation of Section 29-30D(b)(1), Landlord-Tenant Relations, of the Montgomery County Code, 1994, as amended ("County Code");

2. failed to offer him a sufficient rent reduction as part of the proposed utility conversion, in violation of Section 29-30D(b)(2) of the County Code;

3. issued him a notice to vacate in retaliation for complaints filed with the Division of Code Enforcement and other government agencies, in violation of Section 29-30B of the County Code;

4. failed to make needed and necessary repairs to the Apartment in a timely and workmanlike manner, in violation of Chapter 26, Housing and Building Maintenance Standards, of the County Code ("Housing Code"), after being notified by him and after being put on written notice by the Division of Code Enforcement, which has reduced the value of the leasehold;

5. failed to post a notice in the building containing the name and telephone number of a responsible representative who can be reached in case of an emergency, in violation of Section 29-30A of the County Code; and,

6. failed to post or display a copy of the Rental Facility License, in violation of Section 29-20 of the County Code; and

In addition to the above asserted complaints, Johnson also alleged that the original lease agreement executed with the former owners of the Apartment complex, Art-Lee Corporation, Arthur and Lea Turner, in April 1995, failed to offer him the option of a two-year lease term in violation of Section 29-26(a) of the County Code.

Johnson is seeking an Order from the Commission for the Respondents to:

1. expeditiously repair all housing code violations in his Apartment and the common areas of the Property, including proper installation and piping of the individual gas furnaces;

2. not issue him a notice to quit and vacate for the foreseeable future, and not issue any rent increases that exceeds the recommended County guideline for such increases;

3. refund to him all utility payments made to Washington Gas and Pepco "until such time as the furnace plumbing issue is resolved and valid billing can be established;"

4. display the Rental Facility License in the lobby of the Property;

5. provide him with a "credible explanation of how accounts with Washington Gas and Pepco were set up in [his] name without [his] consent or authorization...";

6. refund $254.00 per month from August 1996 to the present based on his inability to enjoy full use and benefit of the leasehold due to the existence of housing code violations in his Apartment and the common areas of the Property;

7. pay him an additional lump sum of $1,000.00 to compensate him for the time, effort and inconvenience he has experienced; and

8. re-calculate the average utility costs for each apartment in the Property as the basis for a valid utility conversion.

Original Complaint - Respondents' Position

Regarding the above asserted complaint, the Respondents contend that: (1) the lease agreement with Johnson was executed by the previous owners, Arthur and Lea Turner, Art-Lee Corporation, on April 1, 1995, and although a two-year lease term was not offered at that time, Complainant Johnson has since remained a tenant at the Property for more than 2 years and, therefore, the issue is moot; (2) the notice to quit and vacate issued to Johnson was not retaliatory and repossession of the Apartment was never pursued and, therefore, this issue is also moot; (3) Johnson was given sufficient notice of the utility conversion, the amount of the rent reduction offered as part of the conversion was proper and approved by the Department; and, (4) they entered into a Consent Agreement with the Department regarding housing code violations at the Property that included a schedule of repairs which provided for a timetable for the repairs requested by Johnson.

On November 17, 1996, Johnson filed a supplementary complaint with the Department (See pages 9-16 of Commission's Exhibit No. 7) in which he alleged, in addition to his previous complaints, that Respondent Lewis Winarsky "used his position of prominence as a staff attorney for Washington Gas to create this unauthorized [utility] account in my name," and, "that this is an irregular practice allowed by Washington Gas and its officers which merits the attention of authorities and remediation."

Regarding the allegation in the supplemental complaint, the Respondents contend that Johnson's account with Washington Gas was set up in the normal course of business by the Respondents when the Property was converted from master metering to individual metering and therefore, no violation of any applicable statute, code or regulation occurred.

Based on an objection raised by Respondents' counsel during the first night of the hearing, November 14, 1997, regarding prior notification of housing code violations and the specific relief sought by Johnson with respect to housing code violations, the Commission determined to postpone accepting testimony and evidence on this issue until a later date to allow the Respondents further opportunity to review housing code files, an opportunity previously afforded them, and further determined to allow Johnson to amend his original/supplemental complaint regarding alleged housing code violations and the specific relief he was seeking, and to allow the Respondents an adequate opportunity to respond to any such amended complaints. On December 9, 1997, Johnson submitted to the Commission an "Amendment of Complaint Based on Division of Code Enforcement Case File, Case No. T-12787," in which he alleged, in addition to complaints previously asserted, that the Respondents failed to correct numerous housing code violations in his Apartment after being put on notice by him and by the Department.

Johnson referenced his original complaint (See pages 1-16 of Commission's Exhibit No. 1) which alleged the existence of five housing code violations, as well as subsequent reinspections and notices of violation issued by the Department (See pages 1471-1473 of Commission's Exhibit No. 1) citing 22 additional housing code violations and civil citations issued to the Respondents by the Department for non-compliance with notices of violation.

1. In addition to previously requested relief, Johnson is seeking an Order from the Commission that: 1. pursuant to Section 29-43 of the County Code, the Respondent created a defective tenancy;

2. pursuant to Section 29-43(b)(1) of the County Code, the Respondents must refund to him all rent money he paid to the Respondents for the rental of his Apartment for the period July 23, 1996, to the date of this Order. The Complainant cites the Commission Order in the matter of Brooks, et al. v. Blair Park Partnership, and notes that Order was upheld on appeal, Civil Case No. 154045, in the Circuit Court of Montgomery County;

3. his tenancy "be preserved in order for me to enjoy a legally compliant situation that has been brought about by my complaint and by the Commission's Orders;" and

4. pursuant to Section 29-43(b) of the County Code, "these remedies be offered to all affected tenants, not just me"

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

1. On April 1, 1995, the Complainant signed and entered into a one-year lease agreement (the "Lease") with Art-Lee Corporation, Arthur Turner, President, the former owner of 8716 Plymouth Street, Silver Spring, MD, for the rental of Apartment #2. The lease term commenced on April 1, 1995, and expired on March 31, 1996. (See pages 1493-1494 of Commission's Exhibit No. 7). Since the expiration of the original lease agreement, the Complainant has remained a tenant in the Apartment on a month-to-month basis.

2. The Respondents, Lewis I. and Susan L. Winarsky, own and control Plymouth Muse limited Liability Company, and they are the current owners of 8716 Plymouth Street, Silver Spring, MD, a licensed multi-family Rental Facility in Montgomery County, MD, which they have owned continuously since they purchased the property from Art-Lee Corporation in July 1995.

3. At the time the Complainant signed and entered into the Lease, April 1995, the Respondents did not own the Property, and after the Respondents purchased the Property the Complainant's Lease was transferred to them. There is no evidence in the record and no testimony from the Complainant that he raised the issue of a 2-year lease offer with his former landlord, Art-Lea Corporation, prior to signing the Lease or that he requested a two-year lease from the Respondents immediately after they purchased the Property.

4. As of the date of the final night of this hearing, April 14, 1998, the Complainant has been a tenant in his Apartment for more than three (3) years. The monthly rent was $560 per month, April 1995 through August 1996, and $527 per month, September 1996 to the present, based on the utility conversion and rent reduction offer made by the Respondents. (See: "Notice of Utility Conversion - Offer of Rent Reduction" Section below).

5. By a letter dated July 9, 1996, Respondents' attorney, Robert A. Plumb, Jr., issued Johnson, then a month-to-month tenant at the Property, a notice to quit and vacate "by midnight September 30, 1996." The Commission credits the testimony of Respondent Lewis Winarsky that he issued the quit and vacate notice because he and the Complainant were unable to agree on the terms for renewal of the Lease, specifically the provision requiring Johnson to pay for gas and electric utilities. The Commission credits the testimony of both the Complainant and Respondent Lewis Winarsky that no attempt was made to enforce this notice, and Johnson has since remained a tenant on the Property (See Findings of Fact No. 4 above). The Commission finds that the Respondent issued the notice to vacate because Johnson refused to accept certain terms and conditions of a renewal lease offered by the Respondents, not because he had filed complaints with the Department or any other agency, and therefore the notice to vacate was not retaliatory.

6. The Commission credits the testimony of Investigator Denney that the Respondents purchased the Property on or about July 27, 1995, and did not submit a completed Rental Facility License Application to the Department together with all required fees, until July 25, 1996, nearly one year later (See Complainant's Exhibit No. 47). At the hearing on April 14, 1998, Respondents' attorney, Mr. Sorrell, offered the following proffer regarding the display of the Rental Facility License #017953 for the Property: "That the license for the property was not posted at all times, but it has been posted as of this date." The Commission finds, based on Respondents' proffer, that the Rental Facility License for the Property, License #017953, was not posted at all times. However, Johnson provided no testimony or evidence that he was in any way damaged by the Respondents' failure to display the required Rental Facility License.

7. The Complainant did not offer any probative testimony or evidence regarding this allegation, and no testimony or evidence that he was in any way damaged by the Respondents' failure to post such a telephone number. There is abundant testimony and evidence in the record that the Complainant communicated on a regular basis with the Respondent and Respondents' maintenance man, George Mader. The Commission credits the testimony of Respondent Lewis Winarsky that at the time he purchased the Property in July 1995, he notified the Complainant, as well as other tenants in the Property, of the change in ownership and provided as part of that notification a telephone number to call in the case of an emergency. The Commission notes that such a notice was sent to tenants at 8311 Garland Avenue, another nearby apartment building owned by the Respondents. (See page 57 of Commission's Exhibit No. 7).

8. The Commission credits the testimony of Respondent Lewis Winarsky, who is an attorney for Washington Gas, that when the utility account at an apartment complex is converted from master metering to individual metering, either the tenant or the landlord can contact Washington Gas to establish the new account in the individual tenant's name. In support of his testimony, Mr. Winarsky referenced a letter dated April 8, 1997 (See Commission's Exhibit No. 8), from Beverly J. Burke, an attorney for Washington Gas, in which she advised the Department regarding the establishment of individual accounts for tenants in multi-family apartment complexes that:

Regarding the establishment of Johnson’ account with Washington Gas, Ms. Burke further stated:

9. No evidence was offered by Johnson or any of his witnesses to support his allegation that the procedure used by Washington Gas to establish new accounts, including his account, is a violation of any applicable statute, code or regulation.

10. The gas utility at the Property was converted from master metering to individual metering by Washington Gas on February 1, 1996 (See Commission's Exhibit No. 10).

11. The Commission credits the testimony of Johnson that prior to receiving the notice of the utility conversion, he and Respondent Lewis Winarsky had discussed the issue on the telephone earlier in the summer and that, "in principle" it seemed like a good idea. He further testified that he was aware of the Respondents' intention to convert the gas and electric utilities from master to individual tenant meters and that this conversion would result in a reduction in the monthly rent, but that no amount was ever discussed.

12. By an undated letter (See Complainant’s Exhibit No. C-8) , Respondent Lewis Winarsky issued notice to the Complainant that beginning with his rent payment due on August 1, 1996, his monthly rent was being reduced by $30.00 "...in exchange for which you would assume responsibility for the costs of the gas and electric service provided to your apartment." The Commission credits the testimony of the Complainant that the subject notice was mailed by the Respondent on June 27, 1996, and that he received it several days later. In support of his testimony, the Complainant introduced into evidence (See page 2 of Complainant’s Exhibit No. C-8) a copy of the envelope in which the notice was delivered, which has the postmark of June 27, 1996.

13. By a letter dated July 1, 1996 (See Complainant’s Exhibit No. C-51), Johnson responded to the Respondents’ notice of utility conversion and rent reduction offer and stated, "I agree that such an arrangement is potentially reasonable, but the amount you propose in rent reduction is insufficient and unacceptable." Johnson’s letter went on to suggest he would accept one of three alternative options: (a) base rent of $560.00 per month from which he would deduct his actual utility costs; (b) a rent reduction of $60.00 per month rather than the $30.00 offered by the Respondents; or, (c) no change in the rental arrangement, i.e. the Respondents would continue to pay the utility costs and the rent would not be reduced.

14. The Respondents established an account in Johnson’s name with Washington Gas effective September 1, 1996, more than two months after they issued notice of the conversion to Johnson (June 27, 1996), and Johnson received regular bills from Washington Gas from that date, which he has paid on a regular basis. (See Complainant's Exhibit No. C-11 with attached billing statements).

15. By a letter dated October 3, 1996 (See pages 94-97 of Commission's Exhibit No. 7 and Complainant's Exhibit No. C-10), the Department advised the Respondents regarding the utility conversion and the $30.00 per month rent-reduction offer made to affected tenants at the Property, including Johnson, that: (a) based on an analysis of the Property's past utility bills, the amount of the rent reduction offer should be $13.00 for gas and $20.19 for electric; (b) "...it is the opinion of the [Department] that a rent reduction of 33.00 to all affected tenants is in compliance with Section 29-30D of the Montgomery County Code...; (c) the written notice previously sent to affected tenants regarding utility conversion substantially complies with your obligation under Section 29-30D(b)(1) of the Code;" and (d) "...any and all rent increases issued to current tenants at 8716 and 8800 Plymouth Street, Silver Spring, MD, for the next twelve months must not...exceed the current Voluntary Rent Guideline of 2.5%."

16. The Respondent agreed to accept the Department's findings regarding the amount of the appropriate rent reduction offer and increased the offer to Johnson from $30.00 a month to $33.00 a month ($13.00 gas and $20.00 electric) effective September 1, 1996.

17. Although the Respondents reduced Johnson’s rent from $560.00 to $527.00 per month commencing September 1, 1996, pursuant to the utility conversion, Johnson refused to accept the offer and he continued to pay the Respondent the previous contract rent of $560.00 per month from September 1, 1996, up to and including the final night of this hearing, April 14, 1998. (See Complainant's Exhibit No. C-33 with canceled rent checks).

18. The Commission credits the testimony of Respondent Lewis Winarsky that he has continued to accept Johnson’s monthly rent at $560.00 per month, and that each month he credits Johnson’s rental account with $33.00, the difference between the pre-utility conversion and post-utility conversion rent.

19. By a letter dated April 14, 1997 (See Pages 87-88 of Commission's Exhibit No. 7), the Department's Mr. Giloley advised the Respondents that, "based on the inspection of the individual gas-fired boilers at 8716 and 8800 Plymouth Street conducted by Joseph ‘Skip’ Walker, Claxton Walker & Associates, on March 12, 1997...the conversion of the gas and rent reduction at 8716 and 8800 Plymouth Street is hereby disapproved. The approval of the electric utility conversion is not affected." Mr. Giloley's letter further advised the Respondents that, "[U]ntil such time as the circulating pumps and the ignition switches are interlocked on each boiler, if the gas were turned off to one boiler, either manually or by malfunction, the tenant in that unit would draw water from the main riser which is water heated by other units. Presently, there is no guarantee that tenants are paying solely to heat water they use to heat their apartment." (Note: See "Installation and Operation of Individual Gas Boilers" below).

20. The Commission credits the testimony of Mr. Giloley regarding the approval and subsequent disapproval of the Respondents' utility conversion and rent reduction scheme, and that it is customary for landlords to seek guidance and prior approval of such conversions from the Department to assure compliance with Section 29-30D of the County Code. Regarding the timeliness of the Respondents' notification to Johnson of the proposed conversion, Mr. Giloley acknowledged the Department's position that the Respondent had substantially complied with the requirements of Section 29-30D of the County Code.

21. The Commission finds that the revised amount of the rent reduction offered to Johnson by the Respondents as part of the proposed utility conversion, $33.00 a month for 12 months, including $13.00 per month for gas conversion and $20.00 per month for electric conversion, is an amount commensurate with the actual utility consumption experienced by the Respondents and the previous landlords for the Property during the 24 months prior to the conversion.

22. Johnson submitted into evidence at the hearing (See Complainant’s Exhibit No. C-11) a "Cash Application History" from Washington Gas, Acct. No. 2497.056214 for his Apartment, #2 at 8716 Plymouth Street, Silver Spring, MD, from the commencement of the account, September 1, 1996, to October 7, 1997. The total amount paid to Washington Gas by the Complainant for gas service during that 14 month period is $509.20 (This figure does not include an $85.00 deposit or an $8.07 overpayment/credit).

23. In January 1996 DiBattista Plumbing & Heating Company removed the single boiler serving all six apartments at the Property and installed six individual gas-fired boilers, one to serve each of the six individual apartments. Proper permits for the installation were obtained from the appropriate government and regulatory agencies. (See Commission's Exhibit No. 4).

24. Based on a complaint filed with Washington Gas by Johnson, on February 7, 1997, Washington Gas Appliance Service Technician Herb Pinkney inspected the boilers at the Property and found that: (a) a couple of the gas meters to individual apartments were off; (b) the trunk lines from all six boilers were hot; and (c) all six boilers were tied together by one main trunk line. The Commission credits the testimony of Mr. Pinkney, a Commission witness who testified on November 12, 1997, that based on his inspection, he determined that if the Complainant were the only one home in the building and heating his apartment, he would be heating the apartments where the gas meters were turned off.

25. On February 7, 1996, Mr. Pinkney placed a Red Tag "Notice of Hazardous Condition" on the gas boiler serving Johnson’s apartment (See Respondents’ Exhibit No. 2) which stated, "[A]ll boilers are tied together at the outlet water lines. Cust[omer] in #2 home all the time takes care of heat for everybody. Outlet water lines must be separated." The Commission credits the testimony of Mr. Pinkney that the condition described on the Red Tag was not hazardous and did not pose a threat to the health or safety of the Complainant or any other occupant in the building.

26. By letters dated February 12, 1997 and March 13, 1997 (See pages 72-77 of Commission’s Exhibit No. 7), the Department notified the Respondents, directly and through their attorney Mr. Plumb, of Mr. Pinkney’s observations and action to "red tag" the boilers at the Property. The referenced letters also requested that the Respondents provide within ten (10) calendar days, in addition to other items, "a written report from a licensed plumber explaining what actions are required to abate the [Washington Gas] notice of violation and [to] bring the boilers into compliance with all applicable codes and regulations."

27. In a letter dated February 21, 1997 (See Commission’s Exhibit No. 3), addressed to "Whom It May Concern," Nick DiBattista, President, DiBattista Plumbing & Heating Company, Inc., the company that installed the boilers at the Property, stated the following:

28. On March 18, 1997, the heating system (including boilers, piping, thermostats, valves and other mechanical and electrical equipment) at the Property was inspected by Scott Kaufman, a registered professional engineer, Joseph "Skip" Walker, Claxton Walker & Associates, a certified building inspector, and Philip Peluso, Supervisor, Appliance Service Technician, Washington Gas Company. Also present for the inspection were the Department's Joe Giloley, Chief, Division of Housing and Code Enforcement, and Michael Denney, Investigator, Office of Landlord-Tenant Affairs, and Respondents' attorney Robert Plumb.

29. On April 1, 1997, Mr. Walker produced a written report of his observations and findings (See pages 89-93 of Commission's Exhibit No. 7) which was sent to the Respondents on April 14, 1997 (See pages 87-88 of Commission's Exhibit No. 7).

30. The Commission credits the testimony of Mr. Kaufman, a Commission witness who testified on November 12, 1997, that: (a) he designed similar heating/boiler systems for the Respondents for other apartment buildings they own; and (b) based on his inspection of the boilers, he concluded that the scenario described by Mr. Pinkney, i.e. that the gas service to one apartment could be shut off and that unit could still receive hot water heated by other boilers, was possible, but it could be easily corrected with the installation of "aquastat" controls on each boiler to prevent the circulating pump from coming on if there were no gas service.

31. The Commission credits the testimony of Mr. Peluso, a Commission witness called to testify on November 17, 1997, that based on his inspection of the boilers: (a) no safety problems were present; and (b) the only problem he observed concerned the circulating pump, i.e. that the circulating pump on a particular individual boiler could be turned on even if the customer’s gas service were cut off, and that person would receive hot water in their radiators heated by one or more of the other boilers. Mr. Peluso further testified that installing "aquastat" controls on each boiler would solve the problem.

32. The Commission credits the testimony of Mr. Walker, a Commission witness called to testify on November 17, 1997, that based on his inspection of the boilers, it was possible for one of the six boilers at the Property not to have gas service and that tenant to engage the thermostat in his/her apartment and receive heat generated by the other five boilers. Mr. Walker testified that "we found that that could happen...You could turn your gas off and use your circulator to circulate the heat from the other people's boilers." He further testified that the installation of an "aquastat" control on each boiler to prevent it from circulating if the boiler was not fired would solve the problem.

33. Respondent Lewis Winarsky testified at the hearing on November 17, 1998, that he received the written report produced by Mr. Walker, dated April 1, 1997 (See pages 89-93 of Commission's Exhibit No. 7), and until that time, he was unaware that a potential problem existed with the subject boilers. He further testified that he intended to have the recommended "aquastat" controls installed on all of the boilers at the Property by the end of July 1997, but his contractor, DiBattista Plumbing & Heating Company, "kept putting me off." Mr. Winarsky also testified that he had accepted several bids from other contractors to install the "aquastat" controls and they would be installed within two to four weeks, "depending on the contractor." At the request of the Commission, Mr. Winarsky testified that within one week he would submit a copy of the one bid he received; but he failed to do so.

34. The Commission credits the testimony of Respondent Lewis Winarsky on February 17, 1998, that the recommended "aquastat" controls were installed on the boilers at the Property in late December 1997 or early January 1998. In support of his testimony, Mr. Winarsky submitted into the record a paid receipt from Adams Heating and A/C Company (See Respondents’ Exhibit No. 5) indicating that the following work had been performed: (a) a Honeywell C645C-1020 gas pressure switch was installed on each gas boiler gas line, and (b) the existing electric shut off valves were re-wired through the pressure switches to close the valve in a loss of gas pressure situation. With the valve closed, no water can circulate through the system.

35. Prior to the installation of the "aquastat" controls, the individual gas-fired boilers were improperly installed at the Property in such a way that if gas service were disconnected to one or more boilers, or a boiler malfunctioned, tenants in those units could draw hot water heated and paid for by other tenants in the Property. The Commission finds, based on the testimony of Mr. Pinkney, that such a problem existed at the Property in February 1996.

36. The Respondents failed to correct the problem with the subject boilers by installing the recommended "aquastat" controls until on or about January 1, 1998, nearly 2 years after Mr. Pinkney's inspection and the attachment of Red Tags, and approximately 9 months after the issuance of Mr. Walker's report, findings, and recommendations.

37. On November 10, 1997, Respondents' counsel, Clyde "Rocky" Sorrell, filed with the Commission a "Motion For Appropriate Relief," in which he requested, in addition to other relief sought (which is addressed in the "Motions" section of this Order), that the Commission, "[D]ismiss all allegations pertaining to Housing Code Violations set to be heard before the Commission on November 10, 1997." The Respondents' request for dismissal of the Housing Code Violations portion of the complaint was denied for the reasons given in the discussion of motion No. 5 above, and that portion of the hearing was postponed until February 19, 1998. In addition, the Respondents were given copies of the files and documents compiled by the County's Division of Housing and Code Enforcement and afforded the opportunity to review those and any other departmental records prior to February 19th; and, Johnson was given the opportunity to amend his complaint regarding housing code violations, which he did on December 9, 1997, when he submitted to the Commission an "Amendment of Complaint Based on Division of Code Enforcement Case File, Case No. T-12787," in which he alleged, in addition to complaints previously asserted, that the Respondents failed to correct numerous housing code violations in his Apartment after being put on notice by him and by the Department.

38. At the public hearing on February 19, 1998, the Commission entered into the record of the hearing, as Commission’s Exhibit No. 12, the case file, notices of violation, history of inspections and reinspections, photographs, etc., compiled by the Department’s Division of Housing and Code Enforcement (See pages 192-1599 of the record), and as Commission’s Exhibit No. 13, the reinspection logs compiled by the Department’s Division of Housing and Code Enforcement (See pages 1600-1653 of the record).

39. The Commission credits the testimony of Respondent Lewis Winarsky that at the time he and his wife purchased 8716 Plymouth Street in July 1995, the building and the six (6) apartments in it were in deplorable, sub-standard condition, "both mechanically and physically," and that an audit of the building conducted at the time of purchase revealed, "leaking faucets, leaking pipes, defective appliances, fixtures, that sort of thing." Mr. Winarsky further testified that although he did not have a "formal business plan" other than his own experience as a landlord, it was his intention to upgrade the apartment building, primarily when apartment units turned-over, or within "eighteen months."

40. There were two types of housing code inspections conducted by the Department relative to 8716 Plymouth Street in the summer of 1996: (a) a Complaint Inspection initiated by Johnson through his complaint to the Department filed on July 23, 1996, regarding specific alleged housing code violations in his apartment, and (b) a required Triennial License Inspection initiated by the Department during the normal course of business in August 1996. The Commission credits the testimony of Mr. Giloley that Triennial License Inspections are routinely conducted by the Department to ensure that individual apartments and all public areas of apartment buildings in Montgomery County are being maintained by landlords in compliance with the Housing Code.

Complainant Inspection

41. On July 14, 1996, Johnson sent a copy of his Original Complaint with attachments to the Respondent (See pages 1-8 of Commission's Exhibit No. 7), in which he asserted, at #4 on page 3:

42. Based on the Respondents' failure to respond to the complaint and to investigate and repair the walls and ceiling, identified above, in his apartment, Johnson filed his complaint with the Department on July 23, 1996.

43. On August 19, 1996, Housing Code Enforcement Inspectors Ronald Feaster and Mark Hinton conducted an inspection of the Complainant’s Apartment, and on August 23, 1996, Inspector Feaster issued a Notice of Violation to the Respondents (See pages 1474-1476 of Commission’s Exhibit No. 12) in which he cited 21 violations of the Housing Code and ordered the Respondents to correct the violations by September 25, 1996. Inspector Feaster identified the "room ...under the entrance structure of the building" referenced in the Complainant's Original Complaint, as the "Pantry," and Violation No. 17 of the Notice of Violation states:

44. The Respondents failed to repair or correct 20 of the 21 violations ordered by the Department, including Violation No. 17, by September 25, 1996.

45. By a letter dated October 15, 1996, Inspector Feaster advised the Respondents that he reinspected Johnson’s Apartment on October 3, 1996, and found that only 1 of the 21 housing code violations cited on August 23, 1996, had been corrected. (See pages 1469-1473 of Commission’s Exhibit No. 12). The reinspection notice also contains handwritten notations by Inspector Feaster that two violations, Nos. 3 and 8, dealing with scraping and repainting of window frames, were the result of "poor workmanship." The reinspection notice also notes that violation No. 17, concerning the infiltration of water through the walls and ceiling of the Pantry, was continuing in nature: "Water is still leaking through the pantry walls in several spots." The reinspection notice also contained an attachment, identified as "Addendum B," advising the Respondents of their right to appeal the Notice of Violation to the Montgomery County Board of Appeals within fifteen (15) days. The Respondents did not file such an appeal with the Montgomery County Board of Appeals, and they failed to correct 20 of the 21 housing code violations by October 3, 1996.

46. The Commission credits the testimony of Inspector Kinna that Inspector Feaster conducted a second reinspection of Johnson’ apartment on November 30, 1996, two and one-half months after the original inspection, at which time he determined that 16 code violations from the original list of 21 had been corrected and that 5 remained uncorrected, including violation #17, the problem of water infiltration through the walls and ceiling of the Pantry.

47. On August 9, 1996, Linda Bird, Program Manager, Division of Code Enforcement, notified the Respondents that the Department would be conducting a "triennial inspection" of "all public areas and a selected sample of dwelling units" at 8716 Plymouth Street and that the inspection would be conducted "within the next four weeks." The Commission credits the testimony of Inspector Kinna that she completed the scheduled "triennial inspection" of the Property on or about September 19, 1996.

48. On September 26, 1996, the Department’s Mr. Giloley issued the Respondents a second Notice of Violation (See pages 1363 to 1371 of Commission's Exhibit No. 12) in which he cited 62 additional violations of the housing code—36 relating to the interior and exterior common areas of 8716 Plymouth Street and the remaining 26 relating to Apartment # 6 (not the Complainant's apartment)—discovered as a result of the triennial inspection, and he ordered the Respondents to correct the violations by October 28, 1996, the date of a scheduled reinspection. The common area violations included: cracked sidewalk, deteriorated porch columns, loose plaster and flaking and peeling paint, deteriorated gutter and downspouts, cracked glass, and deteriorated widow putty and glazing. In addition to the referenced common area violations, violation No. 7 directly related to the problem of water infiltration into the Pantry room of Complainant's apartment, and stated:

49. The Commission credits the testimony of Mr. Giloley that subsequent to the issuance of the above-referenced Notices of Violation to the Respondents, a series of meetings took place between himself and Respondent Lewis Winarsky regarding a time-table for completion of all of the repairs previously ordered by the Department.

50. On March 5, 1997, the Department and the Respondents entered into a "Settlement Agreement" (See pages 65-70 of Commission's Exhibit No. 7) regarding the disposition of all outstanding Housing Code violations at apartment complexes owned by the Respondents in Montgomery County, MD, for the purpose of prioritizing and scheduling repairs for the abatement of all housing code violations. The Settlement Agreement combined the two (2) outstanding violation notices—the one from the Complaint Inspection (August 23, 1996) and the one from the Triennial License Inspection (September 26, 1996)—and set a timetable for the abatement of all repairs of between 30 to 90 days for most violations. In addition to other elements contained in it, the Settlement Agreement required the Respondents to make repairs as follows:

51. The Commission credits the testimony of Inspector Kinna that based on the time-table contained in the Settlement Agreement, she conducted a third reinspection of Johnson’s Apartment on June 5, 1997, ninety-two (92) days after the Settlement Agreement was executed, at which time she observed that violation #17 from the August 23, 1996 Notice of Violation, water infiltration into the Pantry of the Complainant’s Apartment, had not been corrected. In support of her testimony, Inspector Kinna referenced 2 photographs contained in the record that she personally took of the Pantry during her June 5th reinspection (See page 1463 of Commission's Exhibit No. 12). The Commission finds that the photographs fairly and accurately depict the condition of the Pantry on June 5, 1997.

52. The Commission credits the testimony of Commission's witness, George Mader, that he has been the Respondents' general maintenance man since 1991, and that after the Respondents received housing code violation notices from the Department, they hired him to make repairs to Johnson’s Apartment as well as repairs to other apartments and the general common areas at 8716 Plymouth Street. Regarding the water leak and defective walls and ceiling in the Pantry of Johnson’s apartment, the Commission further credits Mr. Mader's testimony that: (a) water was leaking through the interior walls and ceiling and the condition had been on-going for "at least eight years," (b) the walls were rotted from behind, (c) there was "severe mold" at the base of the wall, and (d) the repair was completed in late September or early October 1997. Mr. Mader also testified that the Respondents had hired an engineer to evaluate the problem, had re-graded the exterior and installed drain pipes throughout. However, Mr. Mader did not provide any details or dates regarding when these activities occurred.

53. The on-going problem of water infiltration through the walls and ceiling of the Pantry in the Complainant's apartment, and the existence of "severe mold" on the Pantry walls constituted a serious threat to the health and safety of Johnson.

54. The Commission finds that as of June 5, 1997, the water infiltration problem and defective walls and ceiling in the Pantry room in Johnson’s Apartment, first cited by the Department on August 23, 1996, had not been corrected. The Commission is not persuaded by Mr. Mader's testimony that several attempts were made to correct the problem between August 1996 and June 1997, and if such repairs were attempted, they were inadequate.

55. The Commission credits the testimony of Mr. Giloley regarding Respondent Lewis Winarsky's compliance with the March 5th Settlement Agreement, that, "... his lack of cooperation was quite apparent."

56. On July 11, 1997, Inspector Kinna issued Respondent Lewis Winarsky, through his attorney, Mr. Plumb, eighteen (18) Civil Citations Class A violations (See pages 1383 to 1418 of Commission's Exhibit No. 12) for failing to make repairs in apartment units at 8716 Plymouth Street. Civil Citation No. 1Z33282705 (See page 1391 of Commission's Exhibit No. 12) is a Class A violation $200.00 fine for failure "...to repair the deteriorated pantry walls to be in good repair," in violation of Section 26-8(a) of the Montgomery County Code.

57. On November 7, 1997, the Respondents, through their attorney Mr. Sorrell, and the County Attorney, Charles W. Thompson, Jr., on behalf of Montgomery County, entered into a "Settlement of Pending Code Violation Notices" (See Commission's Exhibit No. 14) as an alternative to enforcement of civil citations issued to the Respondents for non-compliance with the March 5, 1997 Settlement Agreement and the schedule of abatement of outstanding housing code violations, including the code violations in Johnson’s Apartment and the common areas at 8716 Plymouth Street.

58. The Commission credits the undisputed testimony of Johnson that the repairs to the Pantry in his Apartment were not completed until August 25, 1997, thirteen (13) months after the Respondents were first put on notice of the problem by Johnson, and twelve (12) months after being put on notice by the Department. The Commission finds therefore, that Johnson did not have use of the Pantry from July 1996 until August 25, 1997, and as a result, the value of his leasehold was reduced.

59. The Commission credits the testimony of Inspector Cecilia Kinna that the 57 housing code violations (21 in Johnson's Apartment and 36 in the interior and exterior common areas of 8716 Plymouth Street) were not fully repaired or corrected until on or about December 9, 1997, 16 months after they were first cited by the Department (August 23, 1996, and September 26, 1996). The Commission finds that based on the Respondents' failure to make these repairs in a timely manner, the value of Johnson’s leasehold tenancy was reduced during that period of time.

60. Regarding Johnson's claim for "...$1,000.00 to compensate him for the time, effort and inconvenience he has experienced," the Commission finds that there was insufficient testimony and no evidence presented by Johnson to support such a finding.

Based upon a preponderance of the evidence contained in the record, the Commission on Landlord-Tenant Affairs concludes:

1. Section 29-26(a) of the County Code requires that a landlord offer a prospective tenant an initial lease term of two (2) years and the tenant can either accept or reject such an offer. It is clear that no such offer was made to Johnson at the time of the initial lease (April 1995). However, the Respondents did not own the Property at that time and, therefore, they were not in a position to make such an offer. Furthermore, based on the fact that as of the date of the final night of this hearing, April 14, 1998, Johnson had been a tenant in his Apartment for more than three (3) years, the alleged violation of Section 29-26(a) of the County Code is not sustained and is a moot issue.

2. Based on the Commission's finding that the Respondents' July 9, 1996, notice to vacate to Johnson was issued after the expiration of the initial lease term, the fact that the notice was issued because Johnson refused to accept certain terms and conditions of a renewal lease offered by the Respondents, not because he had filed complaints with the Department or any other agency, and the fact that the Respondents did not attempt to enforce the notice, the Commission concludes that the issue of a violation of Section 29-30B, "Prohibited retaliatory practices," of the County Code is not sustained and is moot.

3. Section 29-20, "Display of license," of the County Code requires that a landlord, display the Rental Facility License issued by the Department, "...in the lobby, vestibule, rental office or other prominent public place on the premises during the entire period it is effective." The Respondents, by their own admission, have failed to comply with this provision of the County Code.

4. Based on the Commission's finding that Johnson received from the Respondents at the time they purchased the Property in July 1995, a telephone number to call in case of an emergency, and the fact that Johnson testified that he had the telephone number for the Respondents' maintenance man, George Mader, and regularly communicated with both the Respondents and Mr. Mader, the Commission concludes that any alleged violation of Section 29-30A(a), "Landlord notice requirements," of the County Code, is moot.

5. Pursuant to §54G (g) of the Maryland Public Service Commission Law, the County’s Landlord-Tenant Commission has the authority to review complaints regarding disputes between landlords and tenants that involve the establishment of gas and electric utility accounts. Upon review of the evidence contained in the record, the Commission finds no such violations as set forth in the foregoing section regarding the procedures used by the Respondents to establish accounts in Johnson’s name with Washington Gas and PEPCO, because those accounts were established in accordance with accepted industry procedures and because Johnson was not prejudiced by the manner in which the accounts were established.

Pursuant to Section 29-30D(b)(1) and (2) of the County Code, when a landlord desires to transfer the responsibility for payment of utilities from the landlord to the tenant he has two primary responsibilities: (1) issue notice of the proposed conversion to the affected tenant at least two (2) months prior to the effective date of the conversion, and (2) offer to reduce the affected tenant's rent in an amount commensurate with the actual utility consumption experienced by the landlord during the previous twenty-four (24) months.

The transfer of responsibility for utility payments represents an actual cost savings for the landlord as he no longer has to pay for those utilities, and an actual increase in the costs a tenant pays to occupy an apartment. The purpose of this provision of the County Code is to insure that once a tenant has received a rent increase, which remains in effect for one full year pursuant to Section 29-30C(e) of the County Code, no additional contractual charges are added. In other words, once the rental amount is set for the year, the cost savings experienced by the landlord as the result of a utility conversion must be passed on to the affected tenant in the form of a rent reduction. Thus, in theory, the rent reduction plus the utility costs balance out, and the tenant’s monthly expenses remain essentially the same for the balance of the year

6. Although the Respondents' written notice to Johnson of their intention to convert gas and electric utilities from master metering to individual metering was undated, in violation of Section 29-30D(b)(1) of the County Code, the Commission concludes, based on the testimony at the hearing, that constructive notice was given to Johnson and Johnson had such notice at least 60 days prior to the scheduled conversion; therefore, no violation of Section 29-30D(b)(1) of the County Code has occurred. Furthermore, the amount of the rent reduction offered to Johnson, based on utility consumption and common area usage at the Property during the previous 24 months, and approved by the Department on October 3, 1996 ($13.00 for gas and $20.00 for electric) was accurate and in compliance with Section 29-30D(b)(2) of the County Code, and therefore, no violation of Section 29-30D(b)(2) of the County Code regarding the proposed amount of the rent reduction has occurred.

7. The six (6) individual gas-fired boilers installed by the Respondents at 8716 Plymouth Street, including the boiler servicing Johnson’s Apartment, were improperly installed and maintained in violation of Section 29-30(a)(4) of the Montgomery County Code, and as a result, gas service to one apartment could be shut off and that unit could still receive hot water heated and paid for by other tenants in the building. The Commission concludes, based on the testimony of Mr. Pinkney, that such a problem existed at the Property in February 1996, and this condition caused a defective tenancy. The Commission is not swayed by Respondent

Lewis Winarsky's testimony that he was unaware of the problem until April 1996, when the Claxton Walker & Associates report was issued. Washington Gas issued "red tags" on the boilers on February 7, 1996, and Respondent Lewis Winarsky was notified of the problem by the Department on February 12, 1996. Furthermore, although Respondent Lewis Winarsky testified at the hearing that he intended to correct the problem by installing the recommended "aquastat" controls on the boilers by the end of July 1997, he failed to install "aquastat" controls on the boilers for five (5) more months, until such installation occurred on or about January 1, 1998.

8. The Commission concludes that the improper installation and operation of the gas fired boilers at 8716 Plymouth Street, including Johnson’s Apartment, and the Respondents' failure to correct the problem until on or about January 1, 1998, constitutes a violation of 29-30D(b)(6) of the County Code and has created a defective tenancy. The gas utility conversion cannot be given economic effect for the period that the Respondents failed to correct the improper installation. The gas bills received and paid by Johnson are unreliable and therefore, the Commission holds that: (a) Johnson is not liable for any gas utility charges for the period September 1996 through December 1997; (b) Johnson is not entitled to the $13.00 rent reduction provided by the Respondents as part of the utility conversion for that period of time; and (c) the electric utility conversion and $20.00 rent credit related thereto is not affected.

9. Although Respondents' counsel argued at the hearing that the Housing Code violations cited by the Department in July/August 1996 were never proven, the Commission concludes that the Respondents were given proper notice of the violations and were properly advised that if they disagreed or disputed any of the violations cited, they could appeal the notice to the Montgomery County Board of Appeals for review. Given the absence of such an appeal, the violations stand as issued by the Department.

10. The Respondents' failure to repair and correct the water infiltration and "severe mold" problem in the Pantry of Johnson’s Apartment until August 27, 1997, 13 months after being put on notice by Johnson (July 14, 1996) and 12 months after being put on notice by the Department (August 23, 1996): (a) constitutes a violation of Chapter 26, "Housing and Building Maintenance Standards," of the County Code; (b) constitutes a violation of Section 29-30(a)(1), (2) and (3) of the County Code; (c) posed an on-going threat to the health and safety of Johnson; and (d) caused a defective tenancy.

11. The Respondents' failure to fully correct other housing code violations in Johnson’s Apartment and the interior and exterior common areas of the Property until on or about December 9, 1997, approximately 17 months after being put on notice by Johnson (July 14, 1996) and approximately 16 months after being put on notice by the Department (August 23, 1996), even though they were given ample opportunity to make repairs, including extensions of compliance deadlines and a Settlement Agreement that both prioritized the violations and set a reasonable timetable for their abatement, constitutes a violation of Chapter 26, "Housing and Building Maintenance Standards," of the County Code, Section 29-30(a)(1), (2) and (3) of the County Code, a violation of the terms and conditions of the Settlement Agreement the Respondents entered into with the Department on March 5, 1997, and a defective tenancy.

12. Based on the Respondents' failure to correct the water infiltration and "severe mold" problem in the Pantry of Johnson’s Apartment until August 27, 1997, and their failure to fully correct other housing code violations in his Apartment and the interior and exterior common areas of the Property until on or about December 9, 1997, Johnson was denied full use and enjoyment of his Apartment for a period of approximately 17 months. During this 17 month period, Johnson paid rent in full for use and enjoyment of that space. Given this reduction in the use of rentable space and the diminution of Johnson’s enjoyment of his Apartment, the Commission concludes that the value of Johnson’s leasehold tenancy was reduced for 17 months, July 1996 through December 1997.

13. Pursuant to Sections 29-26(d) of the County Code, all landlords in the County are required to maintain the rental facility in accordance with chapter 8, titled "Buildings," chapter 22, titled "Fire Safety Code," chapter 26, titled "Housing Standards," and chapter 59, titled "Zoning"...as an express warranty of habitability and covenant to repair." (Emphasis added).

Furthermore, pursuant to Section 29-30 of the County Code, landlords are specifically obligated to, "...reasonably provide for the maintenance of the health, safety and welfare of all tenants and of all individuals properly on the premises of a rental facility," including: (1) complying with all applicable provisions of any federal, state or county statute, code, regulation or ordinance governing the maintenance, construction, use or appearance of the dwelling unit and rental facility; (2) keeping all areas of the building, grounds, facilities and appurtenances in a clean, sanitary and safe condition; (3) making all repairs and arrangements necessary to put and keep the dwelling unit and the appurtenances thereto in as good a condition as they were, or ought by law or agreement to have been, at the commencement of tenancy; and (4) maintaining all electrical, plumbing and other facilities and conveniences supplied by the landlord in good working order.

By a residential lease agreement, the tenant agrees to pay a pre-determined amount of rent each month for the use and enjoyment of the leased premises, and has the expectation that the leased premises will be delivered to them in complete compliance with all applicable laws, including the Housing Code, free of defects, and without housing code violations, and that the landlord will provide regular maintenance to the property and make repairs to keep the leased premises in good condition during the tenancy. In other words, the tenant expects to receive full value for their rent. The tenant’s obligations include keeping the unit clean and sanitary, disposing of garbage and refuse, and properly using the fixtures and appliances.

Should a landlord fail to voluntarily comply with his maintenance and repair obligations in a timely manner after being put on notice by the tenant and/or the County’s Housing Code Enforcement Office, the tenant’s use and enjoyment of the leased premises may be diminished and the value of the leasehold may be reduced; in that case, the tenant is no longer receiving full value for the rent paid.

Furthermore, pursuant to Section 29-43(b)(1) of the County Code, if the Commission finds that a landlord has caused a defective tenancy by failing to make repairs, "...all affected tenants may be entitled to one or more or all or part of the following remedies...return of...all rental monies already paid to the landlord from the period the landlord was notified of the condition..." Although Johnson has requested a 100% refund of all rent paid to the Respondents during the period of time housing code violations existed in the Apartment, as was ordered in a similar Commission case, Brooks, et al. v. Blair Park Partnership, it is up to this Hearing Panel to determine if the circumstances of this case warrant such an abatement of rent.

In this case, the Respondents, who have been apartment landlords in the County for at least 14 years, demonstrated a callous disregard towards Johnson by: (1) failing to maintain and make needed and necessary repairs to the Apartment and common areas of 8800 Plymouth Street, after being put on notice by Johnson, in violation of Section 29-30 of the County Code; (2) failing to maintain and make needed and necessary repairs to the Apartment and common areas of 8716 Plymouth Street, after being put on notice by the Department, in violation of Chapter 26, "Housing and Building Maintenance Standards" of the County Code; and (3) violating the Settlement they entered with the Department for the repair of all outstanding Housing Code violations, including a schedule of repairs, and failing to make those repairs within the agreed upon time-frames which resulted in the issuance of Class A civil citations.

Based on the above, the Commission holds that Johnson’s use and enjoyment of his Apartment and common areas of 8716 Plymouth Street were diminished and the value of the leasehold was reduced by 25% from August 1996 through December 1997. The determination to abate the rent by 25% is based on the Commission’s review of all the facts and circumstances of this case. In the Brooks, et al. v. Blair Park Partnership case, cited by Johnson and other complainants in these proceedings, the Commission, on June 17, 1996, provided for rent abatement of 100% of the rent paid. However, in that case, unlike the instant case, the landlords, Blair Park Partnership, permitted both serious Fire Safety Code violations, as well as numerous Housing Code violations to continue uncorrected for 141 days.

In the instant proceedings, the Housing Code violations of which the Respondents had notice and which they failed to correct in a timely manner include certain health and safety violations but do not include Fire Safety Code violations. Accordingly, in the absence of Fire Safety Code violations, the Commission holds that the circumstances of this case do not warrant a 100% refund of rent, but rather, based on the existence of the numerous uncorrected Housing Code violations, including certain health and safety violations, the rent refund ordered by the Commission in this case shall be 25% of the rent paid during the period of time the Housing Code violations existed.

14. The Commission holds that the execution of the November 17, 1997 "Settlement of Pending Code Violation Notices" in no way relieved the Respondents of their legal obligations under the County Code to make needed and necessary repairs to Johnson’s Apartment in a timely and workmanlike manner; and further, that the said Settlement was entered into by the Respondents solely as an alternative to paying fines levied by the County for non-compliance with the Housing Code, and did not excuse them from their obligations to their tenants.

15. The Respondents caused a defective tenancy by failing to properly install gas-fired boilers in the Property, including the boiler servicing Johnson’s Apartment, and by failing to make required and necessary repairs to the Property and to Johnson’s Apartment, in violation of applicable provisions of the Montgomery County Code.

On August 19, 1996, Heather Farr and Kenneth Volante ("Farr and Volante"), former tenants at apartment #3 (the "Apartment") at 8716 Plymouth Street, Silver Spring, Maryland, (the "Property"), the same Property where Complainant Johnson is a tenant, filed a formal complaint with the "Department (See pages 19-27 of Commission's Exhibit No. 7), in which they alleged that the Respondents:

1. failed to provide them with a 60-day notice of utility conversion, in violation of Section 29-30D(b)(1), Landlord-Tenant Relations, of the County Code;

2. failed to offer them a sufficient rent reduction as part of the proposed utility conversion, in violation of Section 29-30D(b)(2) of the County Code;

3. failed to make needed and necessary repairs to the Apartment in a timely and workmanlike manner, in violation of Chapter 26, Housing and Building

Maintenance Standards, of the County Code, including a non-working smoke detector, a defective oven and stove, a defective entrance door, and a defective refrigerator.

4. failed to post a notice in the building containing the name and telephone number of a responsible representative who can be reached in case of an emergency, in violation of Section 29-30A of the County Code;

5. removed the washer and dryer from their building which required them to do laundry in an adjacent apartment building also owned by the Respondents; and

6. entered their apartment without prior notice and without their consent, in violation of Section 29-26(q) of the County Code.

Farr and Volante are seeking an Order from the Commission for the following relief:

1. "...address and remedy the aforementioned violations in compliance with the Montgomery County Code of Landlord Tenant Relations."

2. "...have an inspection by the [Department's] Director in accordance with section 29-21 [of the County Code].

3. "that our rent as agreed to in our lease is sustained or that we receive documentation of 'the actual utility consumption experienced by the landlord during the previous twenty four months at the utility rate in effect at the time of conversion' and work out a suitable compromise based on these figures and with specific attention paid to the energy efficiency of the apartment, i.e. the drafty windows."

4. "...be monitored by the Montgomery County [Department] of Consumer Affairs for a period of five years."

5. not to take any retaliatory action against the Complainants pursuant to Section 29-30B(b) of the County Code.

Original Complaint - Respondents' Position

The Respondents contend that: (1) Farr and Volante were given sufficient notice of the utility conversion, the amount of the rent reduction was proper, and the conversion was subsequently approved by the County; and (2) they entered into a Consent Agreement with the County regarding housing code violations at the Property that included a schedule for repairs. The Respondents failed to address the other allegations made in the original complaint filed by Farr and Volante.

On February 4, 1997, Farr and Volante filed a supplemental complaint in which they alleged, in addition to allegations previously asserted, that the Respondents had billed them for legal fees, in violation of Section 29-26(o) of the County Code. Farr and Volante are seeking an Order from the Commission for the Respondents to remove such fees from their account and to cease all future attempts to collect such improper legal fees.

The Respondents contend that Farr and Volante were advised that "...the accounting entry for legal fees should not have appeared on the tenants’ copy of the statement and that he and Ms. Farr should disregard it."

On December 11, 1997, Farr and Volante submitted to the Commission an "Amendment of Complaint, Case Number T-12823," in which they alleged, in addition to complaints previously asserted, that the Respondents failed to correct numerous housing code violations in their Apartment after being put on notice by them and the Department.

Specifically, Farr and Volante asserted in their Amended Complaint that, "[O]ur original complaint (dated August 9, 1996, pages 1590-1597 of 'packet') alleged the existence of five code violations. Later inspection of our apartment nineteen days later (August 28, 1996) by Inspector Kinna showed the existence of thirty-two violations (see pages 1568-69). As of March 3, 1997, fifteen violations remained (see page 1570). By July 10, four violations remained unrepaired. Upon leaving the residence on August 30, 1997, these four violations remained."

In addition to the previously requested relief, Farr and Volante are seeking an Order from the Commission for the following additional relief:

1. "[O]ur tenancy be found 'defective' per Section 29-43 of the Montgomery County Code. 'Defective tenancy' is defined in Section 29-1 as 'any condition in a rental facility which constitutes a violation of the terms of the lease or any provision of this chapter, or constitutes a violation of any law, regulation, or code.' We regard the violations to be in the form of housing code violations from Chapter 26 of the Montgomery County Code.

2. "Pursuant to Section 29-43(b) the second remedy we request is that the Commission Panel order all rent monies paid by us from August 9, 1996 to August 31, 1997 to be refunded in full." Section 29-43(b) provides remedies available to the Commission which can order one, some, part, or all of them, not only to complainants but to 'all affected tenants.' Among the remedies specified in Section 29-43(b)(1) is 'return...all rental monies already paid to the landlord from the period the landlord was notified of the conditions...' This section is the statutory basis for the remedy we request. In addition, this particular remedy was one ordered by the Commission Panel in [Complainant] v. Blair Park Partnership (and all affected tenants who subsequently made complaints). The decision of that was upheld in the Circuit Court of Maryland."

3. "We finally request that, pursuant to Section 29-43(b), these remedies be offered to all affected tenants."

FINDINGS OF FACT

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

1. On May 1, 1995, Farr and Volante signed and entered into a one-year lease agreement (the "Lease") with Art-Lee Corporation, Arthur Turner, President, the former owners of 8716 Plymouth Street, Silver Spring, MD, for the rental of Apartment #3 which commenced on April 1, 1995, and expired on March 31, 1996. (See pages 000101-000102 of Respondents' Exhibit No. 15). After the expiration of the original lease term, Farr and Volante remained as tenants in the Apartment on a month-to-month basis.

3. At the time Farr and Volante signed and entered into the Lease, April 1995, the Respondents did not own 8716 Plymouth Street, and after the Respondents purchased the Property (See Finding of Fact Nos. 2 and 3 at page 10 supra) Farr and Volante’s Lease transferred to them.

4. The Commission credits the testimony of Investigator Denney that the Respondents purchased the Property on or about July 27, 1995, and did not submit a completed Rental Facility License Application to the Department together with all required fees, until July 25, 1996, nearly one-year later (See Complainant's Exhibit No. C-47). At the hearing on April 14, 1998, Respondents' attorney, Mr. Sorrell, made the following proffer regarding the display of the Rental Facility License #017953 for the Property: that the license for the property was not posted at all times, but it was posted as of April 14, 1998. The Commission finds therefore, based on Respondents' proffer, that the Rental Facility License for the Property, License #017953, was not posted at all times. No testimony or evidence was provided by Farr and Volante that they were in any way damaged by the Respondents' failure to display the required Rental Facility License.

5. Farr and Volante’s representative, Complainant Johnson, did not offer any probative evidence with respect to Farr and Volante’s complaint regarding this allegation, and no evidence that they were in any way damaged by the Respondents' failure to post a telephone number. Again, the Commission credits the testimony of Respondent Lewis Winarsky that at the time he purchased the Property (July 1995), he notified Farr and Volante, as well as other tenants in the Property, of the change in ownership and provided as part of that notification a telephone number to call in the case of an emergency.

6. Although Farr and Volante asserted in their complaint that the Respondents assessed legal fees against them in the amount of $81.84 (See page 27 of Commission's Exhibit No. 1) no evidence was presented that these fees were ever paid by the them. Furthermore, by correspondence dated February 10, 1997 (See Respondents' Exhibit No. R-12), Respondents' attorney Mr. Plumb advised the Department that Respondent Lewis Winarsky had, "...advised Mr. Volarte [sic] that "...the accounting entry for legal fees should not have appeared on the tenants' copy of the statement and that he [Mr. Volante] and Ms. Farr should disregard it." Mr. Plumb's letter further stated that "[Farr and Volante] have not paid this amount nor has there been any demand for payment by Mr. Winarsky."

7. The gas utility at the Property was converted from master metering to individual metering by Washington Gas on February 1, 1996 (See Commission's Exhibit No. 10).

8. By an undated letter (See Commission's Exhibit No. 8) , Respondent Lewis Winarsky issued notice to the tenants at the Property, including Farr and Volante, that beginning with their rent payment due on August 1, 1996, their monthly rent was being reduced by $30.00 "...in exchange for which you would assume responsibility for the costs of the gas and electric service provided to your apartment."

9. There is no evidence in the record of these proceedings regarding the establishment of an account in Farr and Volante’s names with either Washington Gas or the Potomac Electric & Power Company ("Pepco"). However, Farr and Volante’s rent was reduced by the Respondents from $565.00 a month to $532.00 a month beginning September 1, 1996 (See pages 000113 to 000117 of Respondents' Exhibit No. R-15).

10. By a letter dated October 3, 1996 (See pages 94-97 of Commission's Exhibit No. 7 and Complainant's Exhibit No. C-10), the Department advised the Respondents regarding the utility conversion and the $30.00 per month rent-reduction offer made to affected tenants at the Property, including Farr and Volante, that: (a) based on an analysis of the Property's past utility bills, the amount of the rent reduction offer should be $13.00 for gas and $20.19 for electric; (b) "...it is the opinion of the [Department] that a rent reduction of 33.00 to all affected tenants is in compliance with Section 29-30D of the Montgomery County Code...; (c) the written notice previously sent to affected tenants regarding utility conversion substantially complies with your obligation under Section 29-30D(b)(1) of the Code;" and (d) "...any and all rent increases issued to current tenants at 8716 and 8800 Plymouth Street, Silver Spring, MD, for the next twelve months must not...exceed the current Voluntary Rent Guideline of 2.5%."

11. The Respondents agreed to accept the Department's findings regarding the amount of the appropriate rent reduction offer and increased the offer to Farr and Volante from $30.00 a month to $33.00 a month ($13.00 gas and $20.00 electric) effective September 1, 1996. The Commission finds that the revised amount of the rent reduction offered to the Complainants by the Respondents as part of the proposed utility conversion, $33.00 a month for 12 months, $13.00 per month for gas conversion and $20.00 per month for electric conversion, is an amount commensurate with the actual utility consumption experienced by the Respondents and the previous landlords for the Property during the 24 months prior to the conversion.

12. The Respondents reduced Farr and Volante’s rent from $565.00 to $532.00 per month commencing September 1, 1996 (See pages 000113 and 000114 of Respondents' Exhibit No. R-15), which is the amount of the rent reduction ($33.00) recommended by the Department on October 3, 1996.

13. By a letter dated April 14, 1997 (See Pages 87-88 of Commission's Exhibit No. 7), the Department's Mr. Giloley advised the Respondents that, "based on the inspection of the individual gas-fired boilers at 8716 and 8800 Plymouth Street conducted by Joseph "Skip" Walker, Claxton Walker & Associates, on March 12, 1997...the conversion of the gas and rent reduction at 8716 and 8800 Plymouth Street is hereby disapproved. The approval of the electric utility conversion is not affected." Mr. Giloley's letter further advised the Respondents that, "Until such time as the circulating pumps and the ignition switches are interlocked on each boiler, if the gas were turned off to one boiler, either manually or by malfunction, the tenant in that unit would draw water from the main riser which is water heated by other units. Presently, there is no guarantee that tenants are paying solely to heat water they use to heat their apartment." (Note: See Installation and Operation of Individual Gas Boilers below).

14. The Commission credits the testimony of Mr. Giloley regarding the approval and subsequent disapproval of the Respondents' utility conversion and rent reduction scheme, that it is customary for landlords to seek guidance and prior approval of such conversions from the Department to assure compliance with Section 29-30D of the County Code. Regarding the timeliness of the Respondents' notification to Farr and Volante of the proposed conversion, Mr. Giloley acknowledged the Department's position that the Respondent had substantially complied with the requirements of Section 29-30D of the County Code.

15. Farr and Volante and/or their duly authorized representative, Mr. Jim Johnson, did not submit into evidence at the hearing any bills or payment information they received from Washington Gas during their tenancy.

16. As found above, six individual gas-fired boilers were installed at the Property in January 1996 by DiBattista Plumbing & Heating Company, and proper permits for the installation were obtained from the appropriate government and regulatory agencies. (See Commission's Exhibit No. 4).

17. Based on a complaint filed with Washington Gas by Farr and Volante’s neighbor, Jim Johnson, on February 7, 1997, Washington Gas Appliance Service Technician Herb Pinkney inspected the boilers at the Property and found that: (a) a couple of the gas meters to individual apartments were off; (b) the trunk lines from all six boilers were hot; and (c) all six boilers were tied together by one main trunk line. The Commission credits the testimony of Mr. Pinkney, a Commission witness who testified on November 12, 1997, that based on his inspection he determined that if a tenant were the only one home in the building and heating his/her apartment, he/she would be heating the apartments where the gas meters were turned off.

18. On February 7, 1997, Mr. Pinkney placed a Red Tag "Notice of Hazardous Condition" on the gas boiler servicing Farr and Volante’s Apartment (See Respondents’ Exhibit No. 2) which stated, "All boilers are tied together at the outlet water lines. Cust[omer] in #2 home all the time takes care of heat for everybody. Outlet water lines must be separated." The Commission credits the testimony of Mr. Pinkney that the condition described on the Red Tag was not hazardous and did not pose a threat to the health or safety of Farr and Volante or any other occupant in the building.

19. By letters dated February 12, 1997 and March 13, 1997 (See pages 72-77 of Commission’s Exhibit No. 7), the Department notified the Respondents, directly and through their attorney Mr. Plumb, of Mr. Pinkney’s observations and action to "red tag" the boilers at the Property. The referenced letters also requested that the Respondents provide within ten (10) calendar days, in addition to other items, "a written report from a licensed plumber explaining what actions are required to abate the [Washington Gas] notice of violation and bring the boilers into compliance with all applicable codes and regulations."

20. By a letter dated February 21, 1997 (See Commission’s Exhibit No. 3), addressed to "Whom It May Concern," Nick DiBattista, President, DiBattista Plumbing & Heating Company, Inc., the company that installed the subject boilers at the Property, stated the following:

21. On March 18, 1997, the heating system (including boilers, piping, thermostats, valves and other mechanical and electrical equipment) at the Property was inspected by Scott Kaufman, a registered professional engineer, Joseph "Skip" Walker, Claxton Walker & Associates, a certified building inspector, and Philip Peluso, Supervisor, Appliance Service Technician, Washington Gas Company. Also present for the inspection were the Department's Joe Giloley and Michael Denney, and Respondents' attorney Robert Plumb.

22. On April 1, 1997, Mr. Walker produced a written report of his observations and findings (See pages 89-93 of Commission's Exhibit No. 7) which was sent to the Respondents on April 14, 1997 (See pages 87-88 of Commission's Exhibit No. 7).

23. The Commission credits the testimony of Mr. Kaufman, a Commission witness who testified on November 12, 1997, that: (a) he designed similar heating/boiler systems for the Respondents for other apartment buildings they own; and (b) based on his inspection of the subject boilers, he concluded that the scenario described by Mr. Pinkney, i.e. that the gas service to one apartment could be shut off and that unit could still receive hot water heated by other boilers, was possible, but it could be easily corrected with the installation of "aquastat" controls on each boiler to prevent the circulating pump from coming on if there were no gas service.

24. The Commission credits the testimony of Mr. Peluso, a Commission witness called to testify on November 17, 1997, that based on his inspection of the subject boilers: (a) no safety problems were present; and (b) the only problem he observed concerned the circulating pump, i.e. that the circulating pump on a particular individual boiler could be turned on even if the customers gas service were cut off, and that person would receive hot water in their radiators heated by one or more of the other boilers. Mr. Peluso further testified that installing "aquastat" controls on each boiler would solve the problem.

25. The Commission credits the testimony of Mr. Walker, a Commission witness called to testify on November 17, 1997, that based on his inspection of the subject boilers, it was possible for one of the six boilers at the Property not to have gas service and for that tenant to engage the thermostat in his/her apartment and receive heat generated by the other five boilers.

Mr. Walker testified that "we found that that could happen...You could turn your gas off and use your circulator to circulate the heat from the other people's boilers." He further testified that the installation of an "aquastat" control on each boiler to prevent it from circulating if the boiler was not fired would solve the problem.

26. Respondent Lewis Winarsky testified at the hearing on November 17, 1998, that he received the written report produced by Mr. Walker, dated April 1, 1997 (See pages 89-93 of Commission's Exhibit No. 7), and until that time, he was unaware that a potential problem existed with the subject boilers. He further testified that he intended to have the recommended "aquastat" controls installed on all of the boilers at the Property by the end of July 1997, but his contractor, DiBattista Plumbing & Heating Company, "kept putting me off." Mr. Winarsky also testified that he had accepted several bids from other contractors to install the "aquastat" controls and they would be installed within two to four weeks, "depending on the contractor." At the request of the Commission, Mr. Winarsky testified that within one week he would submit a copy of the one bid he received; he failed to submit a copy of the bid to the Commission.

27. The Commission credits the testimony of Respondent Lewis Winarsky on February 17, 1998, that the recommended "aquastat" controls were installed on the boilers at the Property in late December 1997 or early January 1998. In support of his testimony, Mr. Winarsky submitted into the record a paid receipt from Adams Heating and A/C Company (See Respondents’ Exhibit No. 5) indicating that the following work had been performed: (a) a Honeywell C645C-1020 gas pressure switch was installed on each gas boiler gas line, and (b) the existing electric shut off valves were re-wired through the pressure switches to close the valve in a loss of gas pressure situation, with the valve closed no water can circulate through the system.

28. The individual gas-fired boilers were improperly installed at the Property in such a way that if gas service were disconnected to one or more boilers, or a boiler malfunctioned, tenants in those units could draw hot water heated and paid for by other tenants in the Property. The Commission finds, based on the testimony of Mr. Pinkney, that such a problem existed at the Property in February 1996.

29. The Respondents failed to correct the problem with the subject boilers by installing the recommended "aquastat" controls until on or about January 1, 1998, nearly 2 years after Mr. Pinkney's inspection and the attachment of Red Tags, and approximately 9 months after the issuance of Mr. Walker's report, findings and recommendations.

30. On November 10, 1997, Respondents' counsel, Clyde "Rocky" Sorrell, filed with the Commission a "Motion For Appropriate Relief," in which he requested, in addition to other relief sought which is addressed in the Conclusions of Law section of this Order, that the Commission, "Dismiss all allegations pertaining to Housing Code Violations set to be heard before the Commission on November 10, 1997." The Respondents' request for dismissal of the Housing Code Violations portion of the complaint was denied, and that portion of the hearing was postponed until February 19, 1998. In addition, the Respondents were given copies of the files and documents compiled by the County's Division of Housing and Code Enforcement and afforded the opportunity to review those and any other departmental records prior to February 19th; and, Farr and Volante were given the opportunity to amend their complaint regarding housing code violations, which they did on December 11, 1997, when they submitted to the Commission an "Amendment of Complaint, Case Number T-12823," in which they alleged, in addition to complaints previously asserted, that the Respondents failed to correct numerous housing code violations in their Apartment after being put on notice by them and by the Department.

31. At the public hearing on February 19, 1998, the Commission entered into the record of the hearing, as Commission’s Exhibit No. 12, the case file, notices of violation, history of inspections and reinspections, photographs, etc., compiled by the Department’s Division of Housing and Code Enforcement (See pages 192-1599 of the record), and as Commission’s Exhibit No. 13, the reinspection logs compiled by the Department’s Division of Housing and Code Enforcement (See pages 1600-1653 of the record).

32. The Commission credits the testimony of Respondent Lewis Winarsky that at the time he and his wife purchased 8716 Plymouth Street in July 1995, the building and the six (6) apartments in it were in deplorable, sub-standard condition, "both mechanically and physically," and that an audit of the building conducted at the time of purchase revealed, "leaking faucets, leaking pipes, defective appliances, fixtures, that sort of thing." Mr. Winarsky further testified that although he did not have a "formal business plan" other than his own experience as a landlord, it was his intention to upgrade the apartment building, primarily when apartment units turned-over, or within "eighteen months."

33. As with Complainant Johnson, there were two types of housing code inspections conducted by the Department relative to 8716 Plymouth Street in the summer of 1996: (a) a Complaint Inspection initiated by Complainants Farr and Volante through their complaint to the Department filed on August 19, 1996, regarding specific alleged housing code violations in their Apartment, and (b) the required Triennial License Inspection initiated by the Department during the normal course of business in August 1996.

Complainant Inspection

34. On August 9, 1996, Farr and Volante sent a copy of their Original Complaint with attachments to the Respondents (See pages 19-25 of Commission's Exhibit No. 7), in which they advised the Respondents of the following conditions in their Apartment: (a) a defective, inoperable smoke detector, (b) a defective, inoperable oven and stove burners; (c) a defective view finder in entrance door; (d) an entrance door that swells in humid months and cannot be easily opened in case of an emergency; (e) a defective entrance door lock; and (f) a defective refrigerator.

35. Based on the Respondents' failure to respond to their complaint and to make needed and necessary repairs in the Apartment, on August 19, 1996, Farr and Volante filed their complaint with the Department, which is the subject of this hearing.

36. On August 28, 1996, Housing Code Enforcement Inspector Cecilia Kinna conducted an inspection of Farr and Volante’s Apartment, and on that date she issued an Emergency Field Notice (See page 1588 of Commission's Exhibit No. 12) to Respondent Lewis Winarsky to, "...replace the inoperable smoke detector protecting the sleeping areas...by 5:00 p.m." Inspector Kinna's handwritten notes on the Notice indicate that the smoke detector was repaired and the violation was abated as of 3:30 p.m. on August 28, 1996.

37. As a result of the referenced August 28, 1996 inspection, on August 29, 1996, Inspector Kinna also issued a Notice of Violation to the Respondents (See pages 1581-1584 of Commission’s Exhibit No. 12) in which she cited the following 32 violations of the Housing Code and ordered the Respondents to correct the violations by September 30, 1996:

Entrance Door:

38. By a letter dated October 24, 1996, Inspector Kinna advised the Respondents that she reinspected Farr and Volante’s Apartment on October 15, 1996, and found that only 10 of the 32 Housing Code violations cited on August 29, 1996 had been corrected. (See pages 1575-1578 of Commission’s Exhibit No. 12). The Commission finds that the Respondents failed to repair or correct 22 of the 32 violations (Nos. 1, 4, 5, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 31 and 32) as ordered by the Department.

39. The Commission credits the testimony of Inspector Kinna that she conducted a second reinspection of Farr and Volante’s Apartment on March 3, 1997, more than six (6) months after the original inspection, at which time she determined that eight (8) additional Housing Code violations from the original list of 32 had been corrected (Nos. 4, 5, 11, 14, 15, 16, 17, 18, 20, 24, 26, 27, 28 and 31), and 14 Housing Code violations remained uncorrected.

40. On August 9, 1996, Linda Bird, Investigator, Division of Code Enforcement, notified the Respondents that the Department would be conducting the "triennial inspection" of "all public areas and a selected sample of dwelling units" at 8716 Plymouth Street would be inspected "within the next four weeks." The Commission credits the testimony of Inspector Kinna that she completed the scheduled "triennial inspection" of the Property on or about September 19, 1996.

41. On September 26, 1996, Joe Giloley, then Acting Chief, Division of Code Enforcement, issued the Respondents a second Notice of Violation (See pages 1363 to 1371 of Commission's Exhibit No. 12) in which he cited 62 additional violations of the Housing Code—36 relating to the interior and exterior common areas of 8716 Plymouth Street and the remaining 26 relating to Apartment #6 (not Farr and Volante’s Apartment)—and ordered the Respondents to correct the violations by October 28, 1996, the date of a scheduled reinspection. The common area violations included: cracked sidewalk, deteriorated porch columns, loose plaster and flaking and peeling paint, deteriorated gutter and downspouts, cracked glass, and deteriorated window putty and glazing.

42. The Commission credits the testimony of Mr. Giloley that subsequent to the issuance of the above-referenced Notices of Violation to the Respondents, a series of meetings took place between himself and Respondent Lewis Winarsky regarding a time-table for completion of all of the repairs previously ordered by the Department.

43. On March 5, 1997, the Department and the Respondents entered into a "Settlement Agreement" (See pages 65-70 of Commission's Exhibit No. 7) regarding the disposition of all outstanding Housing Code violations at apartment complexes owned by the Respondents in Montgomery County, MD, for the purpose of prioritizing and scheduling repairs for the abatement of all housing code violations. The Settlement Agreement combined the two (2) outstanding violation notices—the one from the Complainant Inspection (August 29, 1996) and the one from the Triennial License Inspection (September 26, 1996)—and set a timetable for the abatement of all repairs of between 30 to 90 days for most violations. In addition to other elements contained in it, the Settlement Agreement required the Respondents to make repairs as follows:

44. The Commission credits the testimony of Inspector Kinna that based on the time-table contained in the Settlement Agreement, she conducted several reinspections of the Complainants' Apartment and the interior and exterior common areas of the Property between March 1997 and July 1997, to determine if the timetable set in the above-referenced "Settlement Agreement" had been met and whether or not the Housing Code violations had been corrected.

45. The Commission credits the testimony of Administrator Giloley regarding Respondent Lewis Winarsky's compliance with the March 5th Settlement Agreement, that, "... his lack of cooperation was quite apparent."

46. The Commission finds that as of July 10, 1997, 11 months after being put on notice by the Complainants and 10 months after being cited by the Department, the Respondents had failed to repair or correct the following Housing Code violations in Farr and Volante’s Apartment:

a. Violation No. 15 - Repair or replace defective doorknob and door in bedroom;

b. Violation No. 16 - Remove peeling paint and re-paint bedroom door;

c. Violation No. 18 - The plaster and repaint work on walls and ceilings is unacceptable; refinish, sand and re-paint; and,

d. Violation Nos. 20 and 31 (combined) - Remove rust, corrosion, peeling paint and, re-paint window casings, sills, and frames in bedroom and bathroom.

47. On July 10, 1997, Inspector Kinna reinspected Farr and Volante’s Apartment at which time she observed that five (5) of the housing code violations first cited on August 29, 1996, Nos. 14 and 17, had not been corrected. As a result, on July 11, 1997, Inspector Kinna issued Respondent Lewis Winarsky, through his attorney, Mr. Plumb, the following three (3) Civil Citations, Class A violations, and fines:

A. Civil Citation No. 0Z33282732 (See page 1393 of Commission's Exhibit No. 12) is a Class A violation and $200.00 fine for failure "to restore the deteriorated walls and ceiling in the kitchen to provide surface in good repair," a violation of Section 26-8(a) of the County Code;

B. Civil Citation No. 1Z33282733 (See page 1395 of Commission's Exhibit No. 12) is a Class A violation and $500.00 fine for failure "to maintain the bedroom closet door in a satisfactory working condition," a violation of Section 26-8(i) of the County Code; and,

C. Civil Citation No. 2Z33282734 (See page 1397 of Commission's Exhibit No. 12), a Class A violation and $200.00 fine for failure "to remove the rust and corrosion on the metal window trim and restore the surface finishes in the bedroom and bathroom," a violation of Section 26-8(b) of the County Code;

48. The Commission credits the testimony of Inspector Kinna that the above referenced Housing Code violations posed a threat to the safety and well being of the Complainants during their tenancy.

49. The Complainants vacated the Apartment on or about August 30, 1997.

50. On November 7, 1997, the Respondents, through their attorney Mr. Sorrell, and the County Attorney, Charles W. Thompson, Jr., on behalf of Montgomery County, entered into a "Settlement of Pending Code Violation Notices" (See Commission's Exhibit No. 14) as an alternative to enforcement of civil citations issued to the Respondents for non-compliance with the March 5, 1997 Settlement Agreement and the schedule of abatement of outstanding housing code violations, including the code violations in Farr and Volante’s Apartment and the common areas at 8716 Plymouth Street.

51. The Commission credits the testimony of Inspector Kinna that violation Nos. 15, 16, 18, 20 and 31, were observed to be corrected on February 17, 1998, 17 months after the Respondents were first put on notice by the Department and ordered to make the repairs. The Commission finds therefore, that Farr and Volante did not have full use and enjoyment of their Apartment from August 1996 through the termination of their tenancy on August 31, 1997, and as a result, the value of their leasehold was reduced.

52. The Commission credits the testimony of Inspector Cecilia Kinna that the 36 housing code violations in the interior and exterior common areas of the Property were not fully repaired or corrected until on or about December 9, 1997, 16 months after they were first cited by the Department on August 29, 1996. The Commission finds that, based on the Respondents' failure to make these repairs in a timely manner, the value of Farr and Volante’s leasehold tenancy was reduced during that period of time.

Accordingly, based upon a preponderance of the evidence contained in the record, the Commission on Landlord-Tenant Affairs concludes:

1. The Respondents' failure to display the Rental Facility License in the lobby, vestibule, rental office or other prominent public place on the premises during the entire period it is effective, constitutes a violation of Section 29-20 of the County Code.

2. Based on the Commission's finding that Farr and Volante received from the Respondents at the time they purchased the Property in July 1995, a telephone number to call in case of an emergency, the Commission concludes that no violation of Section 29-30A(a), "Landlord Notice Requirements," of the County Code has occurred.

3. Based on the Commission's finding that Farr and Volante never paid any legal fees to the Respondents, and that the Respondents never proceeded to collect any such fees, the Commission concludes that no violation of Section 29-26(o) of the County Code has occurred.

4. Pursuant to Section 29-30D(b)(1) and (2) of the County Code, when a landlord desires to transfer the responsibility for payment of utilities from the landlord to the tenant he has two primary responsibilities: (1) issue notice of the proposed conversion to the affected tenant at least two (2) months prior to the effective date of the conversion, and (2) offer to reduce the affected tenant's rent in an amount commensurate with the actual utility consumption experienced by the landlord during the previous twenty-four (24) months.

The transfer of responsibility for utility payments represents an actual cost savings for the landlord as he no longer has to pay for those utilities, and an actual increase in the costs a tenant pays to occupy an apartment. The purpose of this provision of the County Code is to insure that once a tenant has received a rent increase, which remains in effect for one full year pursuant to Section 29-30C(e) of the County Code, no additional contractual charges are added. In other words, once the rental amount is set for the year, the cost savings experienced by the landlord as the result of a utility conversion must be passed on to the affected tenant in the form of a rent reduction. Thus, in theory, the rent reduction plus the utility costs balance out, and the tenant’s monthly expenses remain essentially the same for the balance of the year.

5. Although the Respondents' written notice to Farr and Volante of their intention to convert gas and electric utilities from master metering to individual metering was undated, in violation of Section 29-30D(b)(1) of the County Code, the Commission concludes, based on the testimony at the hearing, that constructive notice was given to Farr and they had such notice at least 60 days prior to the scheduled conversion; therefore, no violation of Section 29-30D(b)(1) of the County Code has occurred. Furthermore, the amount of the rent reduction offered to Farr and Volante, based on utility consumption and common area usage at the Property during the previous 24 months, and approved by the Department on October 3, 1996 ($13.00 for gas and $20.00 for electric) was accurate and in compliance with Section 29-30D(b)(2) of the County Code, and therefore, no violation of Section 29-30D(b)(2) of the County Code, regarding the proposed amount of the rent reduction, has occurred.

6. The six (6) individual gas-fired boilers installed by the Respondents at 8716 Plymouth Street, including the boiler servicing Farr and Volante’s Apartment, were improperly installed and maintained in violation of Section 29-30(a)(4) of the Montgomery County Code, and as a result, gas service to one apartment could be shut off and that unit could still receive hot water heated and paid for by other tenants in the building. The Commission concludes, based on the testimony of Mr. Pinkney, that such a problem existed at the Property in February 1996, and this condition caused a defective tenancy. The Commission is not swayed by Respondent Lewis Winarsky's testimony that he was unaware of the problem until April 1996, when the Claxton Walker & Associates report was issued. Washington Gas, his employer, issued "red tags" on the boilers on February 7, 1996, and he was notified of the problem by the Department on February 12, 1996. Furthermore, although Respondent Lewis Winarsky testified at the hearing that he intended to correct the problem by installing the recommended "aquastat" controls on the boilers by the end of July 1997, he failed to install "aquastat" controls on the boilers for five (5) more months, until on or about January 1, 1998, four (4) months after Farr and Volante vacated the Apartment.

7. The Commission concludes that the improper installation and operation of the gas fired boilers at 8716 Plymouth Street, including Farr and Volante’s Apartment, and the Respondents' failure to correct the problem until on or about January 1, 1998, constitutes a violation of 29-30D(b)(6) of the County Code and has created a defective tenancy. The gas utility conversion cannot be given economic effect for the period that the Respondent failed to correct the improper installation. The gas bills received and paid by Farr and Volante are unreliable and therefore, the Commission holds that Farr and Volante are not liable for any gas utility charges for the period September 1996 through August 1997. However, based on the fact that Farr and Volante failed to submit into evidence at the hearing any such paid gas bills, they are only entitled to reimbursement for the gas portion of the utility conversion ($13.00 a month) for the period they were paying for gas service — September 1996 through August 1997. The electric utility conversion and $20.00 rent credit is not affected.

8. Although Respondents' counsel argued at the hearing that the Housing Code violations cited by the Department in July/August 1996 were never proven, the Commission concludes that the Respondents were given proper notice of the violations and were properly advised that if they disagreed or disputed any of the violations cited, they could appeal the notice to the Montgomery County Board of Appeals for review. In the absence of such an appeal, the violations stand as issued by the Department.

9. The Respondents' failure to repair and to correct the numerous Housing Code violations in Farr and Volante’s Apartment and in the common areas of the Property during their tenancy, after being put on notice by Farr and Volante (August 19, 1996) and by the Department (August 29, 1996) and after being given ample opportunity to make repairs: (a) constitutes a violation of Chapter 26, "Housing and Building Maintenance Standards," of the County Code; (b) constitutes a violation of Section 29-30(a)(1), (2) and (3) of the County Code; (c) posed an on-going threat to the health and safety of Farr and Volante; and (d) has caused a defective tenancy.

10. Based on the Respondents' failure to fully repair or correct the deficiencies in Farr and Volante's Apartment and the interior and exterior common areas of the Property until after Farr and Volante vacated, the Commission concludes that Farr and Volante were denied full use and enjoyment of their Apartment and the common areas of the Property for 13 months (August 1996 through August 1997), even though they were paying rent in full for such use and enjoyment. The Commission concludes that the Respondents' failure to repair or to correct the referenced Housing Code violations reduced the value of Farr and Volante’s leasehold tenancy for 13 months, August 1996 through August 1997.

11. The Respondents' failure to fully correct other Housing Code violations in Farr and Volante's Apartment and the interior and exterior common areas of the Property until after they vacated on August 30, 1997, 13 months after being first put on notice by them (August 19, 1996) and 12 months after being put on notice by the Department (August 29, 1996), and after being given ample opportunity to make repairs, including extensions of compliance deadlines and a Settlement Agreement that both prioritized the violations and set a reasonable timetable for their abatement, constitutes a violation of Chapter 26, "Housing and Building Maintenance Standards," of the County Code, Section 29-30(a)(1), (2) and (3) of the County Code, and the terms and conditions of the Settlement Agreement they entered into with the Department on March 5, 1997, and resulted in a defective tenancy.

12. Pursuant to Sections 29-26(d) of the County Code, all landlords in the County are required to maintain the rental facility in accordance with chapter 8, titled "Buildings," chapter 22, titled "Fire Safety Code," chapter 26, titled "Housing Standards," and chapter 59, titled "Zoning"...as an express warranty of habitability and covenant to repair." (Emphasis added).

Furthermore, pursuant to Section 29-30 of the County Code, landlords are specifically obligated to, "...reasonably provide for the maintenance of the health, safety and welfare of all tenants and of all individuals properly on the premises of a rental facility," including: (1) complying with all applicable provisions of any federal, state or county statute, code, regulation or ordinance governing the maintenance, construction, use or appearance of the dwelling unit and rental facility; (2) keeping all areas of the building, grounds, facilities and appurtenances in a clean, sanitary and safe condition; (3) making all repairs and arrangements necessary to put and keep the dwelling unit and the appurtenances thereto in as good a condition as they were, or ought by law or agreement to have been, at the commencement of tenancy; and (4) maintaining all electrical, plumbing and other facilities and conveniences supplied by the landlord in good working order.

By a residential lease agreement, the tenant agrees to pay a pre-determined amount of rent each month for the use and enjoyment of the leased premises, and has the expectation that the leased premises will be delivered to them in complete compliance with all applicable laws, including the Housing Code, free of defects, and without housing code violations, and that the landlord will provide regular maintenance to the property and make repairs to keep the leased premises in good condition during the tenancy. In other words, the tenant expects to receive full value for their rent. The tenant’s obligations include keeping the unit clean and sanitary, disposing of garbage and refuse, and properly using the fixtures and appliances.

Should a landlord fail to voluntarily comply with his maintenance and repair obligations in a timely manner after being put on notice by the tenant and/or the County’s Housing Code Enforcement Office, the tenant’s use and enjoyment of the leased premises may be diminished and the value of the leasehold may be reduced; in that case, the tenant is no longer receiving full value for the rent paid.

Furthermore, pursuant to Section 29-43(b)(1) of the County Code, if the Commission finds that a landlord has caused a defective tenancy by failing to make repairs, "...all affected tenants may be entitled to one or more or all or part of the following remedies...return of...all rental monies already paid to the landlord from the period the landlord was notified of the condition..." Although Farr and Volante have requested a 100% refund of all rent paid to the Respondents during the period of time Housing Code violations existed in the Apartment, as was ordered in a similar Commission case, Brooks, et al. v. Blair Park Partnership, it is up to this Hearing Panel to determine if the circumstances of this case warrant such an abatement of rent.

In this case, the Respondents, who have been apartment landlords in the County for at least 14 years, demonstrated a callous disregard towards Farr and Volante by: (1) failing to maintain and make needed and necessary repairs to the Apartment and common areas of 8716 Plymouth Street, after being put on notice by Farr and Volante, in violation of Section 29-30 of the County Code; (2) failing to maintain and make needed and necessary repairs to the Apartment and common areas of 8716 Plymouth Street, after being put on notice by the Department, in violation of Chapter 26, "Housing and Building Maintenance Standards" of the County Code; and (3) violating the Settlement they entered with the Department for the repair of all outstanding Housing Code violations, including a schedule of repairs, and failing to make those repairs within the agreed upon time-frames which resulted in the issuance of Class A civil citations.

Based on the above, the Commission holds that Farr and Volante’s use and enjoyment of their Apartment and common areas of 8716 Plymouth Street were diminished and the value of the leasehold was reduced by 25% from August 1996 through August 1997. The determination to abate the rent by 25% is based on the Commission’s review of all the facts and circumstances of this case. In the Brooks, et al. v. Blair Park Partnership case, cited by Farr and Volante and other Complainants in these proceedings, the Commission provided for rent abatement of 100% of the rent paid. However, in that case, unlike the instant case, the landlords, Blair Park Partnership, permitted both serious Fire Safety Code violations, as well as numerous Housing Code violations to continue uncorrected for 141 days.

In the instant proceedings, the Housing Code violations of which the Respondents had notice and which they failed to correct in a timely manner include certain health and safety violations but do not include Fire Safety Code violations. Accordingly, in the absence of Fire Safety Code violations, the Commission holds that the circumstances of this case do not warrant a 100% refund of rent, but rather, based on the existence of the numerous uncorrected Housing Code violations, including certain health and safety violations, the rent refund ordered by the Commission in this case shall be 25% of the rent paid during the period of time the Housing Code violations existed.

13. The Respondents caused a defective tenancy by failing to properly install gas-fired boilers in the Property, including the boiler servicing Farr and Volante’s Apartment, and by failing to make required and necessary repairs to the Property and to Farr and Volante's Apartment, in violation of applicable provisions of the Montgomery County Code.

14. The Commission holds that the execution of the November 17, 1997 "Settlement of Pending Code Violation Notices" in no way relieved the Respondents of their legal obligations under the County Code to make needed and necessary repairs to Johnson’s Apartment in a timely and workmanlike manner; and further, that the said Settlement was entered into by the Respondents solely as an alternative to paying fines levied by the County for non-compliance with the Housing Code, and did not excuse them from their obligations to their tenants.

On August 20, 1996, Nick Jamilla ("Jamilla"), tenant at apartment #1 (the "Apartment") 8800 Plymouth Street, Silver Spring, MD, (the "Property"), a licensed multi-family rental facility in Montgomery County, MD, filed a formal complaint with the Department, in which he alleged that the Respondents:

1. failed to provide him with a 60-day notice of utility conversion, in violation of Section 29-30D(b)(1) of the County Code;

2. failed to offer him a sufficient rent reduction as part of the proposed utility conversion, in violation of Section 29-30D(b)(2) of the County Code;

3. failed to make needed and necessary repairs in his Apartment, arising from a rotting storage room and flooding in the kitchen, after being notified by the Complainant and after being put on written notice by the Division of Code Enforcement, which has reduced the value of his leasehold tenancy;

5. set up an unauthorized account in the Complainant’s name with Washington Gas, without his prior knowledge or consent.

Jamilla is seeking an order from the Commission for the Respondents to:

1. "Regrade the plaster, put drainage around the storage [room], replace linoleum, [and] install a fan for ventilation. And in accordance with Section 29-30 of the Montgomery County Code, a refund totaling a percentage of two months rent equal to the percentage of space the storage room takes in my apartment due [to] its unusability."

2. "Replace window, reinstall fan for ventilation, regrade ground outside my window, redo the entire wall surrounding my window, replace the rotting boards in the sink fixture located next to the window."

3. "Pay laundry expenses, as is due me under Section 29-30 of the Montgomery County Code entitled, 'Reduction in Service or Equipment,' for lack of a laundry facility."

4. "Since the [gas] account was improperly established in my name and not by my own act, [the Respondents] should assume and pay for all charges on bills set up under my name."

Original Complaint - Respondents' Position

The Respondents contend that: (1) the Complainant was given sufficient notice of the utility conversion, the amount of the rent reduction was proper, and the conversion was subsequently approved by the County; (2) they entered into a Consent Agreement with the County regarding Housing Code violations at the Property, which includes a schedule for repairs; and (3) the account with Washington Gas was set up in the normal course of business when an apartment building is converted from master to individual metering.

On February 26, 1997 (See page 38 of Commission's Exhibit No. 7), Jamilla filed a supplemental complaint in which he alleged, in addition to allegations previously asserted, that the Respondents had improperly installed gas-fired boilers at the Property during his tenancy which resulted in improper billing for utilities. Jamilla is seeking an order from the Commission for the Respondents to reimburse him for all payments made to Washington Gas after the boilers were installed.

The Respondents contend that the gas-fired boilers were properly installed by a licensed plumber and operated properly during Jamilla’s tenancy and, therefore, that Jamilla is not entitled to any reimbursement.

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

1. The Respondents are the owners of 8800 Plymouth Street, a licensed multi-family Rental Facility in Montgomery County, MD, and they were the owners of the Property on October 16, 1995.

2. On October 16, 1995, Jamilla signed and entered into a one-year lease agreement (the "Lease") with the Respondents for the rental of the Apartment which commenced on November 1, 1995, and expired on October 31, 1996. (See Complainant's Exhibit No. C-18). The monthly rent for the Apartment was $525.00 a month plus $30.00 for utilities.

3. Jamilla took possession of the Apartment on October 21, 1995, and paid the Respondents pro rata rent in the amount of $196.00 for the period October 21-31, 1995.

4. The Lease contained an "Addendum to Lease Agreement," initialed by both the Complainant and Respondent Lewis Winarsky which provided that after the Respondents converted the gas and electric utilities from master to individual metering and those utilities were established in Jamilla’s name, he would no longer be obligated to pay the Respondents the required $30.00 a month for utilities, and his monthly rent would revert to $525.00 a month. (See "Notice of Utility Conversion - Offer of Rent Reduction," below).

5. Jamilla paid the Respondent a security deposit in the amount of $530.00. The security deposit was paid in three (3) installments: $208.00 on October 16, 1995, $161.00 on November 1, 1995, and $161.00 on December 1, 1995.

6. By correspondence dated September 26, 1996 (See page 000050 of Respondents' Exhibit No. 15), Jamilla advised the Respondents of his intention to vacate the Apartment as of October 31, 1996.

7. The Commission credits the testimony of Jamilla that he vacated the Apartment as of October 31, 1996, and that he did not pay the Respondents the last month's rent (October 1996), in the amount of $525.00.

8. The last page of the Lease, entitled, "Addendum to Lease Agreement," states, in pertinent part regarding the payment of utilities by Jamilla, that:

9. Jamilla was notified by the Respondent at the time he signed the Lease and initialed the "Addendum to Lease Agreement," (October 16, 1995) that the responsibility for payment of gas and electric utilities would be transferred to him after the installation of individual gas and electric meters was completed, at which time his rent would be reduced from $555.00 ($525.00 rent plus $30.00 utilities) to $525.00; and, he would be required to establish accounts in his name and, pursuant to Paragraph No. 2(b) of the Lease, would be required to, "...pay the gas and electric utility bills as they become due."

10. The gas utility at the Property was converted from master metering to individual metering by Washington Gas on January 27, 1996 (See Commission's Exhibit No. 10). The notification by the Respondents of their intention to transfer the responsibility for payment of gas and electric utilities to Jamilla is contained in the Addendum to Lease, and provided Jamilla with more than two (2) months notice prior to the date the utilities were converted from master to individual metering.

11. On or about February 2, 1996, account No. 2497.058103 was established in Jamilla's name with Washington Gas (See Complainant's Exhibit No. C-5), and Jamilla established an account in his name with Pepco in early February 1996 (See Complainant's Exhibit No. C-5). By a letter dated April 8, 1997 (See Commission's Exhibit No. 8), Beverly J. Burke, Attorney for Washington Gas, advised the Department that Jamilla’s account was established based on information "...supplied by Metro Gas, the contractor who installed the meter for Washington Gas."

12. Jamilla entered into the record of these proceedings (See Complainant's Exhibit No. C-5) photocopies of Washington Gas bills he received for the period February 2, 1996, through October 29, 1996, in the total amount of $257.68, and photocopies of four (4) checks payable to Washington Gas in the total amount of $267.88. The Commission notes that of the $257.68 billed by Washington Gas, $0.58 represents a late charge. The Commission finds that the Complainant paid Washington Gas the sum of $257.10 for gas service for the period of February 2, 1996 through October 29, 1996.

13. Although the Lease provided that Jamilla’s rent would be reduced from $555.00 a month to $525.00 a month once he established utility accounts in his name, the Respondent continued to assess Jamilla rent at the rate of $555.00 per month for three (3) additional months, February, March and April 1996 (See Respondents' Exhibit No. R-14), after Jamilla began paying for his own utilities. Thus, Jamilla overpaid the Respondents $90.00 rent during his tenancy ($30.00 a month rent x three (3) months).

14. By correspondence dated October 3, 1996 (See pages 94-97 of Commission's Exhibit No. 7), the Department advised the Respondents regarding the utility conversion and the $30.00 per month rent-reduction offer made to affected tenants at the Property, including Jamilla, that: (a) based on an analysis of the Property's past utility bills, the amount of the rent reduction offer should be $13.00 for gas and $20.19 for electric; (b) "...it is the opinion of the [Department] that a rent reduction of $33.00 to all affected tenants is in compliance with Section 29-30D of the Montgomery County Code...; (c) the written notice previously sent to affected tenants regarding utility conversion substantially complies with your obligation under Section 29-30D(b)(1) of the Code;" and (d) "...any and all rent increases issued to current tenants at 8716 and 8800 Plymouth Street, Silver Spring, MD, for the next twelve months must not...exceed the current Voluntary Rent Guideline of 2.5%."

15. The Commission finds that the revised amount of the rent reduction offered to Jamilla by the Respondents as part of the proposed utility conversion, $33.00 a month for 12 months, $13.00 per month for gas conversion and $20.00 per month for electric conversion, is an amount commensurate with the utility consumption experienced by the Respondents and the previous landlords for the Property during the 24 months prior to the conversion.

16. The Respondent testified that he subsequently agreed to accept the Department's findings regarding the amount of the appropriate rent reduction, $33.00 ($13.00 gas and $20.00 electric) instead of the $30.00 he originally offered to Jamilla ($10.00 gas and $20.00 electric), and to apply that amount to all affected tenants, including Jamilla. The Commission credits the testimony of Respondent Lewis Winarsky that the formula he used to determine the appropriate amount of the rent reduction applied to all tenants. However, Jamilla’s account history provided by the Respondents (Respondents' Exhibit No. R-13) reveals that the Complainant's pre-conversion rent was $555.00 a month ($525.00 apartment rent plus $30.00 for utilities) from October 1995 through April 1996, and his post-conversion rent was $525.00 from May 1996 through October 1996. The Commission finds that the Respondents reduced Jamilla’s rent in the amount $30.00 instead of $33.00, the amount commensurate with their actual cost savings, during the entire 12 and 1/2 months of his tenancy. Therefore, the Respondents are liable to Jamilla for an additional $3.00 a month in rent reduction.

17. The Commission finds that based on Jamilla’s failure to pay his last month's rent to the Respondents (See Findings of Fact No. 7 above), the Respondents are only liable to Jamilla for the sum of $34.00 ($3.00 a month x 11 months - November 1995 through September 1996, plus $1.00 for the pro rata period of October 21, 1995 through October 31, 1995).

18. By a letter dated April 14, 1997 (See Pages 87-88 of Commission's Exhibit No. 7), the Department's Mr. Giloley advised the Respondents that, "based on the inspection of the individual gas-fired boilers at 8716 and 8800 Plymouth Street conducted by Joseph "Skip" Walker, Claxton Walker & Associates, on March 12, 1997...the conversion of the gas and rent reduction at 8716 and 8800 Plymouth Street is hereby disapproved. The approval of the electric utility conversion is not affected." Mr. Giloley's letter further advised the Respondents that, "[U]ntil such time as the circulating pumps and the ignition switches are interlocked on each boiler, if the gas were turned off to one boiler, either manually or by malfunction, the tenant in that unit would draw water from the main riser which is water heated by other units. Presently, there is no guarantee that tenants are paying solely to heat water they use to heat their apartment." (Note: See Installation and Operation of Individual Gas Boilers below).

19. The Commission credits the testimony of Mr. Giloley regarding the approval and subsequent disapproval of the Respondents' utility conversion and rent reduction scheme, that it is customary for landlords to seek guidance and prior approval of such conversions from the Department to assure compliance with Section 29-30D of the County Code. Regarding the timeliness of the Respondents' notification to Farr and Volante of the proposed conversion, Mr. Giloley acknowledged the Department's position that the Respondent had substantially complied with the requirements of Section 29-30D of the County Code.

20. The Commission credits the testimony of Respondent Lewis Winarsky, who is an attorney for Washington Gas, that when the utility account at an apartment complex is converted from master metering to individual metering, either the tenant or the landlord can contact Washington Gas to establish the new accounts in the individual tenant's name. In support of his testimony, Mr. Winarsky referenced a letter dated April 8, 1997 (See Commission's Exhibit No. 8), from Beverly J. Burke, an attorney for Washington Gas, in which she advised the Department regarding the establishment of individual accounts for tenants in multi-family apartment complexes that:

21. By the same April 8, 1997 letter, Ms. Burke also advised the Department that Jamilla's account was established based on information "...supplied by Metro Gas, the contractor who installed the meter for Washington Gas." Attached to the letter is a Washington Gas, Gas Service Application, in the Complainant's name, date stamped January 31, 1996, with the notation, "Executed by Metro -1."

22. No evidence was offered by Jamilla or any of his witnesses that the procedure used by Washington Gas to establish new accounts, including his account, is a violation of any applicable statute, code or regulation, and the Commission finds therefore, that no violation regarding the establishment of his gas account occurred.

23. Six individual gas-fired boilers were installed at the Property in January 1996 by DiBattista Plumbing & Heating Company, and proper permits for the installation were obtained from the appropriate government and regulatory agencies. (See Commission's Exhibit No. 4).

24. Based on the complaint filed with Washington Gas by his former neighbor, Jim Johnson (See Commission Case No. T-12787), on February 7, 1997, Washington Gas Appliance Service Technician Herb Pinkney inspected the six individual boilers at 8716 Plymouth Street, the apartment building next to 8800 Plymouth Street also owned by the Respondents, and found that: (a) a couple of the gas meters to individual apartments were turned off; (b) the trunk lines from all six boilers were hot; and (c) all six boilers were tied together by one main trunk line. The Commission credits the testimony of Mr. Pinkney, a Commission witness who testified on November 12, 1997, that based on his inspection he determined that if a tenant were the only one home in the building and heating his/her apartment, he/she would be heating the apartments where the gas meters were turned off.

25. On February 20, 1997, Mr. Pinkney "red tagged" the gas-fired boilers in Jamilla’s Property at the 8800 Plymouth Street with a "Notice of Potentially Hazardous Condition" (See page 52 of Commission Exhibit No. 7) that stated: "Found six heating unit[s] tied together by one water trunkline what [sic] every unit is on. The most [sic] heats all six unit[s]. In this case, #1 is heating the building. Repairs must be made by plumber. Refer to Landlord." The Commission credits the testimony of Mr. Pinkney that the condition described on the Red Tag was not hazardous and did not pose a threat to the health or safety of the Complainant or any other occupant in the building.

26. By letters dated February 12, 1997 and March 13, 1997 (See pages 72-77 of Commission’s Exhibit No. 7), the Department notified the Respondents, directly and through their attorney Mr. Plumb, of Mr. Pinkney’s observations and action to "red tag" the boilers at the Property. The referenced letters also requested that the Respondents provide within ten (10) calendar days, in addition to other items, "a written report from a licensed plumber explaining what actions are required to abate the [Washington Gas] notice of violation and bring the boilers into compliance with all applicable codes and regulations."

27. By a letter dated February 21, 1997 (See Commission’s Exhibit No. 3), addressed to "Whom It May Concern," Nick DiBattista, President, DiBattista Plumbing & Heating Company, Inc., the company that installed the subject boilers at the Property, stated the following:

28. On March 18, 1997, the heating system, including boilers, piping, thermostats, valves and other mechanical and electrical equipment, at the Property was inspected by Scott Kaufman, a registered professional engineer, Joseph "Skip" Walker, Claxton Walker & Associates, a certified building inspector, and Philip Peluso, Supervisor, Appliance Service

Technician, Washington Gas Company. Also present for the inspection were the Department's Joe Giloley and Michael Denney, and Respondents' attorney Robert Plumb.

29. On April 1, 1997, Mr. Walker produced a written report of his observations and findings (See pages 89-93 of Commission's Exhibit No. 7) which was sent to the Respondents on April 14, 1997 (See pages 87-88 of Commission's Exhibit No. 7).

30. The Commission credits the testimony of Mr. Kaufman, a Commission witness who testified on November 12, 1997, that: (a) he designed similar heating/boiler systems for the Respondents for other apartment buildings they own; and (b) based on his inspection of the subject boilers, he concluded that the scenario described by Mr. Pinkney, i.e. that the gas service to one apartment could be shut off and that unit could still receive hot water heated by other boilers, was possible, but it could be easily corrected with the installation of "aquastat" controls on each boiler to prevent the circulating pump from coming on if there were no gas service.

31. The Commission credits the testimony of Mr. Peluso, a Commission witness called to testify on November 17, 1997, that based on his inspection of the subject boilers: (a) no safety problems were present; and (b) the only problem he observed concerned the circulating pump, i.e. that the circulating pump on a particular individual boiler could be turned on even if the customer’s gas service were cut off, and that person would receive hot water in their radiators heated by one or more of the other boilers. Mr. Peluso further testified that installing "aquastat" controls on each boiler would solve the problem.

32. The Commission credits the testimony of Mr. Walker, a Commission witness called to testify on November 17, 1997, that based on his inspection of the subject boilers, it was possible for one of the six boilers at the Property not to have gas service and for that tenant to engage the thermostat in his/her apartment and to receive heat generated by the other five boilers. Mr. Walker testified that "we found that that could happen...You could turn your gas off and use your circulator to circulate the heat from the other people's boilers." He further testified that the installation of an "aquastat" control on each boiler to prevent it from circulating if the boiler was not fired would solve the problem.

33. Respondent Lewis Winarsky testified at the hearing on November 17, 1998, that he received the written report produced by Mr. Walker, dated April 1, 1997 (See pages 89-93 of Commission's Exhibit No. 7), and until that time, he was unaware that a potential problem existed with the subject boilers. He further testified that he intended to have the recommended "aquastat" controls installed on all of the boilers at the Property by the end of July 1997, but his contractor, DiBattista Plumbing & Heating Company, "kept putting me off." Mr. Winarsky also testified that he had accepted several bids from other contractors to install the "aquastat" controls and they would be installed within two to four weeks, "depending on the contractor." At the request of the Commission, Mr. Winarsky testified that within one week he would submit a copy of the one bid he received; he did not submit a copy of the bid to the Commission.

34. The Commission credits the testimony of Respondent Lewis Winarsky on February 17, 1998, that the recommended "aquastat" controls were installed on the boilers at the Property in late December 1997 or early January 1998. In support of his testimony, Mr. Winarsky submitted into the record a paid receipt from Adams Heating and A/C Company (See Respondents’ Exhibit No. 5) indicating that the following work had been performed: (a) a Honeywell C645C-1020 gas pressure switch was installed on each gas boiler gas line; and (b) the existing electric shut off valves were re-wired through the pressure switches to close the valve in a loss of gas pressure situation, with the valve closed no water can circulate through the system.

35. The Commission finds that the individual gas-fired boilers were improperly installed at the Property in such a way that if gas service were disconnected to one or more boilers, or a boiler malfunctioned, tenants in those units could draw hot water heated and paid for by other tenants in the Property. The Commission finds, based on the testimony of Mr. Pinkney, that such a problem existed at the Property in February 1996, the month Jamilla began paying Washington Gas for gas service.

36. The Respondents failed to correct the problem with the subject boilers by installing the recommended "aquastat" controls until on or about January 1, 1998, nearly 2 years after Mr. Pinkney's inspection and the attachment of Red Tags, and approximately 9 months after the issuance of Mr. Walker's report, findings, and recommendations. Therefore, the Commission finds that the Respondents failed to correct the problem with the subject boilers by installing the recommended "aquastat" controls at any time during Jamilla’s tenancy.

37. On November 10, 1997, Respondents' counsel, Clyde "Rocky" Sorrell, filed with the Commission a "Motion For Appropriate Relief," in which he requested, in addition to other relief sought (which is addressed in the Conclusions of Law section of this Order), that the Commission, "[D]ismiss all allegations pertaining to Housing Code Violations set to be heard before the Commission on November 10, 1997." The Respondents' request for dismissal of the Housing Code Violations portion of the complaint was denied, for the reasons given in the discussion of Motion No. 5 above, and that portion of the hearing was postponed until February 19, 1998. In addition, the Respondents were given copies of the files and documents compiled by the County's Division of Housing and Code Enforcement and afforded the opportunity to review those and any other departmental records prior to February 19th. Jamilla was given the opportunity to amend his complaint regarding housing code violations. Jamilla did not amend his complaint regarding housing code violations.

38. At the public hearing on February 19, 1998, the Commission entered into the record of the hearing, as Commission’s Exhibit No. 12, the case file, notices of violation, history of inspections and reinspections, photographs, etc., compiled by the Department’s Division of Housing and Code Enforcement (See pages 192-1599 of the record).

39. The Commission credits the testimony of Respondent Lewis Winarsky that at the time he and his wife purchased 8800 Plymouth Street in July 1995, the building and the six (6) apartments in it were in deplorable, sub-standard condition, "both mechanically and physically," and that an audit of the building conducted at the time of purchase revealed, "leaking faucets,

leaking pipes, defective appliances, fixtures, that sort of thing." Mr. Winarsky further testified that although he did not have a "formal business plan" other than his own experience as a landlord, it was his intention to upgrade the apartment building, primarily when apartment units turned-over, or within "eighteen months." (Emphasis added).

40. The Commission credits the testimony of Commission's witness, George Mader, that at the time the Respondents purchased the Property, July 1995, that it and the adjacent apartment building at 8716 Plymouth Street also purchased by the Respondents in July 1995, "...were the biggest slums on that street. I mean, they were horrible. Everything was falling apart," (See Commission's Hearing Transcript of March 9, 1998, at page 52, lines 22-24). The Commission also credits Mr. Mader's testimony that maintenance to the referenced apartment buildings prior to July 1995 had been inadequate.

41. There were two types of housing code inspections conducted by the Department relative to the Complainant's Apartment and 8800 Plymouth Street in the summer of 1996: (a) a Complaint Inspection initiated by the Complainant on August 15, 1996 (See pages 28 to 38 of Commission's Exhibit No. 7), regarding specific alleged housing code violations in the Apartment; and (b) a required Triennial License Inspection initiated by the Department during the normal course of business in August/September 1996. The Commission credits the testimony of Mr. Giloley that Triennial License Inspections are routinely conducted by the Department to ensure that individual apartments and all public areas of apartment buildings in Montgomery County are being maintained by landlords in compliance with the Housing Code.

Complaint Inspection

42. By a letter dated July 15, 1996 (See page 5 of Complainant's Exhibit No. C-19), the Complainant informed the Respondents that there was "...flooding in the kitchen and the storage room." of his Apartment, and he requested that the Respondents, "... have someone come in and look at it as soon as possible..."

43. Based on the Respondents' failure to respond to his notification of "flooding" and failure to investigate and to correct the problem, on or about August 15, 1996, Jamilla sent a copy of his Original Complaint with attachments to the Respondents (See pages 28 to 38 of Commission's Exhibit No. 7), in which he asserted, in addition to other complaints, that due to improper drainage and cracked exterior front steps, rain water was seeping into the storage room and kitchen in his Apartment which caused plaster to cake up and fall off, paneling to begin to rot, and the space to become a breeding area for insects.

44. Based on the Respondents' failure to respond to his complaint and to investigate the reported water leak/flooding and repair the damaged walls and ceiling of the storage room and kitchen of the Apartment, Jamilla filed his complaint with the Department on August 20, 1996.

45. In response to his complaint, on August 28, 1996, the Department's Housing Code Enforcement Inspector Cecilia Kinna conducted an inspection of Jamilla’s Apartment on that date, and on August 29, 1996, she issued a Notice of Violation to the Respondents (See pages 1552-1555 of Commission’s Exhibit No. 12) in which she cited 31 violations of the Housing Code observed in the living room, kitchen, storage room, bedroom and bathroom in the Apartment, and ordered the Respondents to correct the following Housing Code violations by September 30, 1996:

17. Investigate and correct the cause of water infiltration. Repair damaged walls/ceilings

46. The Commission credits the testimony of Jamilla that on or about August 26, 1996, the ceiling in the kitchen collapsed due to the unrepaired water leak. In support of his testimony, Jamilla entered into the record 13 photographs (Complainant's Exhibit Nos. 34 to 46) which he took in the Apartment after the ceiling collapsed. The Commission finds that the photographs fairly and accurately depict the condition of the kitchen and adjacent areas of the Apartment on or about August 26, 1996.

47. The Commission credits the testimony of Inspector Kinna that at the time she first inspected Jamilla’s Apartment, August 28, 1996, the conditions depicted in the photographs (Complainant's Exhibit Nos. 34 to 46) were present.

48. On October 30, 1996, one day before Jamilla vacated the Apartment, Inspector Kinna conducted a reinspection of his Apartment and found that only 2 of the 31 housing code violations cited on August 28, 1996 (Violation Nos. 13 and 15) had been corrected. (See pages 1546-1550 of Commission’s Exhibit No. 12).

49. The Commission finds that there were numerous housing code violations in Jamilla's Apartment, the most serious being the water leak in the kitchen ceiling which eventually caused the ceiling to collapse. The Commission finds further that Jamilla properly reported these conditions to the Respondents on July 15, 1996, as required by Paragraph 10(a) of the Lease, and that the Respondents failed to respond or make the needed and necessary repairs prior to the termination of Jamilla's tenancy on October 31, 1996.

50. On August 9, 1996, Linda Bird, Division of Code Enforcement, notified the Respondents that the Department would be conducting its "triennial inspection" of "all public areas and a selected sample of dwelling units" at 8800 Plymouth Street would be inspected "within the next four weeks." (See page 1092 of Commission's Exhibit No. 12).

51. The Commission credits the testimony of Inspector Kinna that as part of the scheduled Triennial License Inspection, she inspected the interior and exterior common areas of the Property and other apartment units at the Property, not Jamilla's Apartment, on about September 19, 1996.

52. On September 26, 1996, Mr. Giloley issued the Respondents a Notice of Violation (See pages 1073 to 1078 of Commission's Exhibit No. 12) in which he cited 40 violations of the County's housing code—32 violations relating to the interior and exterior common areas of 8800 Plymouth Street ("Entire Complex"), two (2) violations pertaining to all apartment units ("All Units"), and the remaining six (6) violations relating to Apartment #3, the apartment of Kimberly Collins (See Commission's Case No. 131)—and ordered the Respondents to correct the violations by October 28, 1996, the date of a scheduled reinspection.

53. The 34 Housing Code violations cited in the Department's September 26, 1998 Notice of Violation (See pages 1073 to 1078 of Commission Exhibit No. 12) were:

Entire Complex

54. By a letter dated November 22, 1996, Inspector Kinna advised the Respondents that she completed a reinspection of the Property on November 18, 1996, and found that only 1 of the 32 "Entire Complex" housing code violations (Violation No. 9), cited on September 26, 1996, had been corrected. (See pages 1067-1072 of Commission’s Exhibit No. 12), and neither of the two "All Units" violations had been corrected. The Commission finds that the Respondents failed to repair or correct 33 of the 34 common area housing code violations cited during the Triennial License Inspection by the week of October 28, 1996, the deadline set by the Department, which was several days before Jamilla moved out on October 31, 1996.

55. The Commission finds that in June/July 1996 a water leak appeared in the kitchen of Jamilla’s Apartment and he reported the leak verbally and in writing to the Respondents. However, the Respondents failed to repair the water leak which caused the ceiling in the kitchen to collapse on August 26, 1996. The Commission finds therefore, that due to the water leak and eventual collapse of the ceiling, Jamilla was without full use and enjoyment of the kitchen in his Apartment, including the stove, from July 1996 through the end of his tenancy on October 31, 1996, which reduced the value of his leasehold tenancy.

56. Although Respondent Lewis Winarsky testified that his intention was to upgrade the Property, primarily when apartment units turned over (See Findings of Fact at No. 38 above), based on the testimony and evidence presented by Commission witnesses Inspector Kinna and Mr. Mader, the Commission finds that the interior and exterior common areas of the Property were not upgraded between the time the Respondents purchased the Property (July 1995) and the time the Complainant moved in (October 21, 1995). The Commission finds therefore that the Respondents failed to deliver the common areas of the Property to Jamilla at the commencement of his lease term, October 21, 1995, in a clean, safe and sanitary condition, and in complete compliance with all applicable laws, which also reduced the value of his leasehold tenancy.

Removal of Laundry Facilities

57. The Commission credits the undisputed testimony of Jamilla that in November 1995, approximately one month after he moved into the Apartment, the Respondents removed the washer and dryer, which are common area amenities, from the common laundry room. (See Commission's March 9, 1998 Transcript, page 67 lines 20 through 25, and Page 68 lines 1 and 2). Also undisputed is the assertion in Jamilla’s Original Complaint that a washer and dryer were re-installed in the laundry room in late July 1996. (See page 30 of Commission's Exhibit No. 7).

58. The Lease signed by Jamilla and the Respondents on October 16, 1995, does not contain any provision regarding a washer and dryer or laundry facilities. Although these amenities were removed from the Property by the Respondents in November 1995, and not restored until the end of July 1996, Jamilla failed to produce any probative evidence or testimony that he was damaged by the Respondents' action or that he incurred any actual additional expense to do laundry elsewhere.

Accordingly, based upon a preponderance of the evidence contained in the record, the Commission on Landlord-Tenant Affairs concludes:

1. Pursuant to Section 29-30D(b)(1) and (2) of the County Code, when a landlord desires to transfer the responsibility for payment of utilities from the landlord to the tenant he has two primary responsibilities: (1) issue notice of the proposed conversion to the affected tenant at least two (2) months prior to the effective date of the conversion, and (2) offer to reduce the affected tenant's rent in an amount commensurate with the actual utility consumption experienced by the landlord during the previous twenty-four (24) months.

The transfer of responsibility for utility payments represents an actual cost savings for the landlord as he no longer has to pay for those utilities, and an actual increase in the costs a tenant pays to occupy an apartment. The purpose of this provision of the County Code is to insure that once a tenant has received a rent increase, which remains in effect for one full year pursuant to Section 29-30C(e) of the County Code, no additional contractual charges are added. In other words, once the rental amount is set for the year, the cost savings experienced by the landlord as the result of a utility conversion must be passed on to the affected tenant in the form of a rent reduction. Thus, in theory, the rent reduction plus the utility costs balance out, and the tenant’s monthly expenses remain essentially the same for the balance of the year.

2. On October 16, 1995, the Respondents and Jamilla signed and entered into a one-year and one-third month Lease for the rental of the Apartment which commenced on October 21, 1995. Pursuant to the terms and conditions of the Lease, Jamilla was required to pay $555.00 a month rent and, after the installation of individual gas and electric meters, to establish accounts with Washington Gas and Pepco for the payment of gas and electric utilities. The Respondents' written notice to Jamilla of their intention to convert gas and electric utilities from master metering to individual metering is contained in the "Addendum to Lease Agreement," executed by Jamilla on October 16, 1995. Therefore, Jamilla had such notice at least 60 days prior to the scheduled conversion which took place four (4) months later in February 1996. Therefore, no violation of Section 29-30D(b)(1) of the County Code has occurred regarding timeliness of the notice of the conversion.

3. The amount of the rent reduction ($30.00) offered to Jamilla at the time he executed the Lease did not accurately reflect an amount commensurate with the utility consumption experienced by the Respondents during the twenty-four (24) months prior to the conversion, in violation of Section 29-30D(b)(2) of the County Code. Based on utility consumption and common area usage at the Property during the 24 months prior to the conversion, and approved by the Department on October 3, 1996, the correct amount of the rent reduction should have been $33.00 a month ($13.00 for gas and $20.00 for electric). Although Respondent Lewis Winarsky testified at the hearing that he agreed with the Department's findings, he failed to make such an offer to Jamilla at any time during his tenancy. The Respondents' failure to provide Jamilla with a rent reduction in the amount of $33.00 a month constitutes a violation of Section 29-30D(b)(2) of the County Code, and has caused a defective tenancy. Therefore, the Respondents are liable to Jamilla for the sum of $24.00 ($3.00 a month x 8 months - November 1995 through September 1996).

4. Pursuant to the "Addendum to Lease Agreement," executed by the Respondents and Jamilla on October 21, 1995, Jamilla was required to pay $555.00 a month rent until the time of the utility conversion after which his rent would be $525.00 per month. The utilities at the Property were converted in February 1996, and accounts were established in Jamilla's name with both Washington Gas and Pepco in February 1996. Therefore, Jamilla's rent became $525.00 a month beginning in February 1996. However, the Respondent continued to assess Jamilla’s monthly rent at the rate of $555.00 for three additional months — February, March and April 1996, in violation of the Lease. The Respondents' improper assessment of $90.00 rent (3 months @ $30.00 a month) against Jamilla constitutes a violation of the Lease and has caused a defective tenancy. Therefore, the Respondents are liable to Jamilla for the sum of $90.00.

5. Pursuant to §54G(g) of the Maryland Public Service Commission Law, the County's Landlord-Tenant Commission has the authority to review complaints regarding disputes between landlords and tenants that involve the establishment of gas and electric accounts. Upon such review of the evidence contained in the record, the Commission finds no such violations as set forth in the foregoing section regarding the procedures used by the Respondents to establish accounts in Jamilla's name with Washington Gas and Pepco, because those accounts were established in accord with those procedures in the normal course of business.

6. The six (6) individual gas-fired boilers installed by the Respondents at 8800 Plymouth Street, including the boiler servicing Jamilla's apartment were improperly installed during Jamilla's tenancy, in January 1996, in violation of Section 29-30(a)(4) of the Montgomery County Code, and as a result, gas service to one apartment could be shut off and that unit could still receive hot water heated and paid for by other tenants in the building. The Commission concludes, based on the testimony of Commission's witnesses that such a problem existed at the Property in February 1997, this problem existed from the time the boilers were installed (January 1996), and this condition caused a defective tenancy.

7. The Commission concludes that the improper installation and operation of the gas fired boilers at 8800 Plymouth Street, including Jamilla's Apartment, and the Respondents' failure to correct the problem at any time during his tenancy constitutes a violation of 29-30D(b)(6) of the County Code and has created a defective tenancy. The gas utility conversion cannot be given economic effect for the period that the Respondents failed to correct the improper installation. The gas bills received and paid by Jamilla ($257.10) for the period of February 2, 1996, through October 29, 1996 (See Findings of Fact at No. 12 above), were unreliable and therefore, the Commission holds that: (a) Jamilla is not liable for any gas utility charges for the period February 1996 through October 1996; (b) Jamilla is not entitled to the $10.00 rent reduction provided by the Respondents as part of the utility conversion for that period; and (c) the electric utility conversion and $20.00 rent credit is not affected.

8. The Commission concludes that the washer and dryer in the laundry room of the Property were provided to Jamilla by the Respondents at the commencement of his tenancy. Although these facilities are not required to be provided, the Respondents chose to provide them to Jamilla as part of the common area amenities, and Jamilla had every reason to expect that he would have full use and enjoyment of them from November 1995 through July 1996. Therefore, the Respondents' elimination of those facilities constitutes a breach of lease, a reduction in equipment as defined by Section 29-30D(a) of the County Code, and has caused a defective tenancy. However, Jamilla failed to demonstrate that he incurred any actual expense or that he was in any way damaged as a result of the Respondents' removal of the washer and dryer, and therefore, he is not entitled to unspecified compensation.

9. Although Respondents' counsel argued at the hearing that the Housing Code violations cited by the Department in July/August 1996 were never proven, the Commission concludes that the Respondents were given proper notice of the violations and were properly advised that if they disagreed or disputed any of the violations cited, they could appeal the notice to the Montgomery County Board of Appeals for review. In the absence of such an appeal, the violations stand as issued by the Department.

10. The Respondents' failure to deliver the interior and exterior common areas of the Property to Jamilla at the commencement of his tenancy, October 21, 1995, in a clean, safe and sanitary condition, and in complete compliance with all applicable laws, constitutes a violation of Section 29-26(n) of the Montgomery County Code, and has caused a defective tenancy.

11. The Respondents' failure to repair and correct the numerous housing code violations in Jamilla's Apartment, especially the water leak that resulted in the collapse of the kitchen ceiling on August 26, 1996, and the interior and exterior common areas of the Property at any time during his tenancy, after being put on notice by him (July 15, 1996) and by the Department (August 29, 1996), and given ample opportunity to make repairs: (a) constitutes a violation of Chapter 26, "Housing and Building Maintenance Standards," of the County Code; (b) constitutes a violation of Section 29-26(d) of the County Code; (c) constitutes a violation of Section 29-30(a)(1), (2) and (3) of the County Code; (d) posed an on-going threat to the health and safety of Jamilla; (e) constitutes a violation of Paragraph 21 of the Lease; and (f) caused a defective tenancy.

Pursuant to Sections 29-26(d) and (n) of the County Code, all landlords in the County are required to deliver to the tenant at the commencement of his/her tenancy the leased premises and all common areas in a clean, safe and sanitary condition, free of rodents and vermin, and in complete compliance with all applicable laws; and they are responsible to maintain the rental facility in accordance with chapter 8, titled "Buildings," chapter 22, titled "Fire Safety Code," chapter 26, titled "Housing Standards," and chapter 59, titled "Zoning"...as an express warranty of habitability and covenant to repair." (Emphasis added).

Furthermore, pursuant to Section 29-30 of the County Code, landlords "must reasonably provide for the maintenance of the health, safety and welfare of all tenants and of all individuals properly on the premises of a rental facility," including: (1) complying with all applicable provisions of any federal, state or county statute, code, regulation or ordinance governing the maintenance, construction, use or appearance of the dwelling unit and rental facility; (2) keeping all areas of the building, grounds, facilities and appurtenances in a clean, sanitary and safe condition; (3) making all repairs and arrangements necessary to put and keep the dwelling unit and the appurtenances thereto in as good a condition as they were, or ought by law or agreement to have been, at the commencement of tenancy; and (4) maintaining all electrical, plumbing and other facilities and conveniences supplied by the landlord in good working order.

By a residential lease agreement, the tenant agrees to pay a pre-determined amount of rent each month for the use and enjoyment of the leased premises, and has the expectation that the leased premises will be delivered to them in complete compliance with all applicable laws, including the Housing Code, free of defects, and without housing code violations, and that the landlord will provide regular maintenance to the property and make repairs to keep the leased premises in good condition during the tenancy. In other words, the tenant expects to receive full value for their rent. The tenant’s obligations include keeping the unit clean and sanitary, disposing of garbage and refuse, and properly using the fixtures and appliances.

Should a landlord fail to voluntarily comply with his maintenance and repair obligations in a timely manner after being put on notice by the tenant and/or the County’s Housing Code Enforcement Office, the tenant’s use and enjoyment of the leased premises may be diminished and the value of the leasehold may be reduced; in that case, the tenant is no longer receiving full value for the rent paid.

Furthermore, pursuant to Section 29-43(b)(1) of the County Code, if the Commission finds that a landlord has caused a defective tenancy by failing to make repairs, "...all affected tenants may be entitled to one or more or all or part of the following remedies...return of...all rental monies already paid to the landlord from the period the landlord was notified of the condition..." Although Jamilla has requested "a refund totaling a percentage of two months rent," it is up to this Hearing Panel to determine if the circumstances of this case warrant such an abatement of rent.

In this case, the Respondents, who have been apartment landlords in the County for at least 14 years, demonstrated a callous disregard towards Jamilla by: (1) failing to deliver the Apartment and the common areas of 8800 Plymouth Street to him at the commencement of his tenancy in a clean, safe and sanitary condition, and in complete compliance with all applicable laws, in violation of Section 29-26(n) of the County Code; (2) failing to maintain and make needed and necessary repairs to the Apartment and common areas of 8800 Plymouth Street, after being put on notice by Jamilla, in violation of Section 29-30 of the County Code; (3) failing to maintain and make needed and necessary repairs to the Apartment and common areas of 8800 Plymouth Street, after being put on notice by the Department, in violation of Chapter 26, "Housing and Building Maintenance Standards" of the County Code; (4) violating the Settlement they entered with the Department for the repair of all outstanding Housing Code violations, including a schedule of repairs, and failing to make those repairs within the agreed upon time-frames which resulted in the issuance of Class A civil citations.

Based on the above, the Commission holds that Jamilla’s use and enjoyment of his Apartment and common areas of 8800 Plymouth Street were diminished and the value of the leasehold was reduced by 25% for the entire time he was a tenant. The determination to abate the rent by 25% is based on the Commission’s review of all the facts and circumstances of this case. In the Brooks, et al. v. Blair Park Partnership case, the Commission provided for rent abatement of 100% of the rent paid. However, in that case, unlike the instant case, the landlords, Blair Park Partnership, permitted both serious Fire Safety Code violations, as well as numerous Housing Code violations to continue uncorrected for 141 days.

In the instant proceedings, the Housing Code violations of which the Respondents had notice and which they failed to correct in a timely manner include certain health and safety violations but do not include Fire Safety Code violations. Accordingly, in the absence of Fire Safety Code violations, the Commission holds that the circumstances of this case do not warrant a 100% refund of rent, but rather, based on the existence of the numerous uncorrected Housing Code violations, including certain health and safety violations, the rent refund ordered by the Commission in this case shall be 25% of the rent paid during the period of time the Housing Code violations existed.

12. Based on the Respondents' failure to repair or correct any of the deficiencies in Jamilla's Apartment and all but several minor interior and exterior common areas of the Property until after Jamilla vacated, the Commission concludes that Jamilla was denied full use and enjoyment of his Apartment and the common areas of the Property from the commencement of his tenancy, October 21, 1995, until the date he vacated the Property, October 31, 1996, even though he was paying rent in full for their use and enjoyment. The Commission further concludes that the Respondents' failure to deliver the common areas of the Property to the Complainant at the commencement of his tenancy and their failure to repair or to correct any of those referenced Housing Code violations also reduced the value of Jamilla’s leasehold tenancy. Based on the above, the Commission concludes that the value of Jamilla’s leasehold tenancy was reduced by 25% a month for the twelve (12) months of his tenancy, October 21, 1995, to October 31, 1996.

13. The Respondents caused a defective tenancy by failing to properly install gas-fired boilers in the Property, including the boiler servicing Jamilla's Apartment, by failing to deliver the interior and exterior common areas to Jamilla at the commencement of his tenancy, and by failing to make required and necessary repairs to Jamilla's Apartment and the common area of the Property during his tenancy, in violation of applicable provisions of the County Code.

On August 30, 1996, Kimberly Collins ("Collins"), tenant at apartment #3 (the "Apartment") at 8800 Plymouth Street, filed a formal complaint with the Department (See pages 28-38 of Commission’s Exhibit No. 7), in which she alleged that the Respondents:

1. failed to provide her with a 60-day notice of utility conversion, in violation of Section 29-30D(b)(1) of the County Code;

2. failed to offer her a sufficient rent reduction as part of the proposed utility conversion, in violation of Section 29-30D(b)(2) of the County Code;

3. failed to refurbish and repaint the exterior of the Property, hallways, and front porch as promised at the time the lease was signed;

4. were "negligent" and "unresponsive" by failing to repair the following conditions identified at the initial walk-through inspection of the Apartment: inoperable electric outlets, defective window screens, missing window hardware, inoperable oven door and defective kitchen cabinet doors;

5. removed the washer and dryer from her building thus denying her laundry facilities; and

6. failed to make needed and necessary repairs in her apartment in a timely manner, caused by defective electrical wiring and a hole in the wall after being notified by the Complainant and after being put on written notice by the Division of Code Enforcement, which reduced the value of the leasehold.

Collins is seeking an Order from the Commission for the Respondents to:

1. make all needed and necessary repairs in her apartment in a timely and workmanlike manner;

2. waive payment of September 1996 rent and "zero-out" her account; and

3. accept rent payments of $540.00 per month less utility payments.

Original Complaint - Respondents' Position

The Respondents contend that: (1) Collins was given notice of the utility conversion at the time she signed the Lease; (2) the amount of the rent reduction was proper and the conversion was subsequently approved by the County; and (3) they entered into a Consent Agreement with the County regarding Housing Code violations at 8800 Plymouth Street which includes a schedule for repairs.

On September 12, 1996, Collins filed a supplemental complaint in which she alleged, in addition to allegations previously asserted, that the Respondents had: (1) failed to provide adequate maintenance to her Apartment, (2) misrepresented to her the cost of monthly gas and electric utilities, and (3) assessed improper and unsubstantiated charges against her. Collins also advised the Respondent that she intended to vacate the Apartment "on or before September 30."

The Respondents contend that no improper fees were assessed against Collins and that her security deposit was forfeited for non-payment of September 1996 rent.

Amended Complaint - Relief Sought

On December 15, 1997, Collins submitted to the Commission an Amendment to her original complainant, in which she alleged, in addition to complaints previously asserted, that:

1. "There were a total of 7 housing code violations during the entire time of my tenancy."

2. "The common areas of the building were not clean, cleared of snow, debris or trash. Rats were quite common in the back yard area. [Respondent] Mr. Winarsky assured me at the time of my move in that these areas would be repaired and cleaned...No work was ever done during my tenancy. (Paragraph 21 of Lease) Landlord agrees to maintain the common areas in a clean, safe and sanitary condition, and otherwise to comply with applicable laws and codes."

3. "[Respondent] Mr. Winarsky informed me that an air conditioner would be installed in the apartment prior to my move-in date. After repeated requests, the air conditioner was not installed until one month before I moved out. However, I was not able to run it because of the cross circuitry of the apartment."

4. "A list of items, including kitchen cabinets, the oven door, lack of screen[s], lack of apparatus [sic] to open and close windows, lack of grounded outlets, etc. was provided to [Respondent] Mr. Winarsky during the first week of my tenancy. [Respondent] Mr. Winarsky assured me that they would be taken care of. At no time did he repair any of these items."

5. "I do not feel that [Respondent] Mr. Winarsky lived up to the terms of the lease. He has admitted before the Montgomery County Commission that when he purchased the building at 8800 Plymouth Street [it] was 'functionally obsolete' and that he did not expect the heating system to last throughout the winter. However, within less than a month of the date of the purchase, [Respondent] Mr. Winarsky rented me an apartment in this 'functionally obsolete building'. No work had been done to make the building livable, or to ensure an alternative form of heat. In short, I feel that [Respondent] Mr. Winarsky consistently failed to respect the terms of the lease or the laws of Montgomery County."

In addition to relief sought regarding the allegations raised in her original and supplemental complaints, Collins is seeking an order from the Commission that her tenancy is defective and that the Respondents be ordered to refund part, if not all, of the rent she paid to the Respondents during her entire tenancy.

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

1. The Respondents are the current owners of 8800 Plymouth Street and they were the owners of the Property on August 25, 1995.

2. On August 25, 1995, Collins signed and entered into a one-year lease agreement (the "Lease") with the Respondents for the rental of the Apartment which commenced on September 1, 1995, and expired on August 31, 1996. The monthly rent for the Apartment was $540.00 a month plus $30.00 for utilities. (See Complainant's Exhibit No. C-6).

3. The Lease contained an "Addendum to Lease Agreement," initialed by both Collins and the Respondents, which provided that after the Respondents converted the gas and electric utilities from master to individual metering and after those utilities were established in Collins' name, she would no longer be obligated to pay the Respondents the required $30.00 a month for utilities and her monthly rent would revert to $540.00 a month. (See "Notice of Utility Conversion - Offer of Rent Reduction," below).

4. By a letter dated September 12, 1996, Collins advised the Respondents that, "I will vacate the premises of 8800 Plymouth Street, #3 on or before September 30." Collins’ notice also informed the Respondents that, "The security deposit in the amount of $540 which is currently held by you will be forfeited by me in lieu of rent for the month of September." Collins vacated the Apartment as of September 30, 1996, and did not pay the September 1996 rent in the amount of $540.00 to the Respondents.

5. Although Collins raised the issue of the Respondents’ handling and disposition of her security deposit at the hearing, the Commission finds that she failed to file such a complaint with the Respondents or the Commission prior to the hearing, or avail herself of the opportunity to amend her original complaint to include any allegations regarding alleged violations of the State security deposit law by the Respondents. Therefore, the Commission chooses not to consider any evidence or testimony or make any findings regarding the disposition of Collins’ security deposit as part of these proceedings.

6. The last page of the Lease, entitled, "Addendum to Lease Agreement," states that:

7. Collins was notified by the Respondents at the time she signed the Lease and initialed the "Addendum to Lease Agreement," that the responsibility for payment of gas and electric utilities would be transferred to her after the installation of individual gas and electric meters was completed, at which time her rent would be reduced from $570.00 ($540.00 rent plus $30.00 utilities) to $540.00, and that she would be required to establish accounts in her name and, pursuant to Paragraph No. 2(b) of the Lease, would be required to, "...pay the gas and electric utility bills as they become due."

8. The gas utility at the Property was converted from master metering to individual metering by Washington Gas on January 27, 1996 (See Commission's Exhibit No. 10). No evidence or testimony was presented at the hearing by Collins regarding the date of electric utility (Pepco) conversion. The notification by the Respondents of their intention to transfer the responsibility for payment of gas and electric utilities to Collins is contained in the Lease, and provided to her more than two (2) months’ prior to the date of conversion from master to individual metering by Washington Gas and Pepco.

9. The Commission credits the undisputed testimony of Collins that she established accounts with both Washington Gas and Pepco and began paying regular monthly bills as of February 1996.

10. Although the Lease provided that Collins’ rent would be reduced from $570.00 a month to $540.00 a month once she established such accounts, the Respondent continued to assess Collins rent at the rate of $570.00 per month for three (3) additional months, February, March, and April 1996 (See Respondents' Exhibit No. R-13), after she began paying for her own utilities. The Commission notes that the record also contains another summary of Collins’ account submitted by her (Complainant's Exhibit No. C-15), which is a series of monthly billing statements provided to her by the Respondents during her tenancy, that indicate that she began paying the reduced amount of rent as of April 1996. Both Exhibits are chronological billing histories of Collins’ account provided by the Respondents. The Commission finds that these two Exhibits conflict as to the date that Collins’ rent was reduced from $570.00 to $540.00 a month. Regarding the submission of Respondents' Exhibit No. R-13, Respondents' counsel Mr. Sorrell stated for the record that, "This document that I prepared for Ms. Collins was prepared partly because of her concerns regarding her lack of ability to understand other documents that have been given to her. I did take great pains to put down each transaction so that it would be clear to her." (See Commission's Public Hearing transcript of April 14, 1998 at page 144, lines 11-15). The Commission therefore credits the accuracy of Respondents' Exhibit No. R-13 which indicates that Collins paid $570.00 rent for three (3) months after the utilities were converted. Thus, Collins overpaid the Respondent $30.00 a month rent for those three (3) months.

11. On or about August 13, 1996, the Respondents issued a "utility credit" to Collins in the amount of $45.00. This entry appears at page 7 on the billing statement dated August 21, 1996 (See Complainant's Exhibit No. C-15), and reads as follows, "8/13/96, Credit 861, Utility Credit $45.00." However, no such entry appears on the final billing history provided to the Commission by the Respondents as part of Respondents' Exhibit No. R-13. Based on the Commission's reliance on the accuracy of Respondents' Exhibit No. R-13, the Commission finds that no "utility credit" in the amount of $45.00 was issued to Collins.

12. By a letter dated October 3, 1996 (See pages 94-97 of Commission's Exhibit No. 7 and Complainant's Exhibit No. C-10), the Department advised the Respondents regarding the utility conversion and the $30.00 per month rent-reduction offer made to affected tenants at the Property, including Collins, that: (a) based on an analysis of the Property's past utility bills, the amount of the rent reduction offer should be $13.00 for gas and $20.19 for electric; (b) "...it is the opinion of the [Department] that a rent reduction of $33.00 to all affected tenants is in compliance with Section 29-30D of the Montgomery County Code...; (c) the written notice previously sent to affected tenants regarding utility conversion substantially complies with your obligation under Section 29-30D(b)(1) of the Code;" and (d) "...any and all rent increases issued to current tenants at 8716 and 8800 Plymouth Street, Silver Spring, MD, for the next twelve months must not...exceed the current Voluntary Rent Guideline of 2.5%."

13. The Commission finds that the revised amount of the rent reduction offered to Collins by the Respondents as part of the proposed utility conversion, $33.00 a month for 12 months, $13.00 per month for gas conversion and $20.00 per month for electric conversion, is an amount commensurate with the utility consumption experienced by the Respondents and the previous landlords (Art-Lee Corp.) for the Property during the 24 months prior to the conversion.

14. The Respondent subsequently agreed to accept the Department's findings regarding the amount of the appropriate rent reduction, $33.00 ($13.00 gas and $20.00 electric) instead of the $30.00 he originally offered to Collins, and to apply that amount to all affected tenants, including Collins. The Commission credits the testimony of Respondent Lewis Winarsky that the formula he used to determine the appropriate amount of the rent reduction applied to all tenants. However, the account histories provided by Collins (Complainant's Exhibit No. C-15) and the Respondents (Respondents' Exhibit No. R-13) reveal that Collins’ pre-conversion rent was $570.00 a month ($540.00 apartment rent plus $30.00 for utilities) from September 1995 through April 1996, and her post-conversion rent was $540.00 from May 1996 through September 1996. The Commission finds that the Respondents reduced Collins’ rent in the amount of $30.00 instead of $33.00, the amount commensurate with their actual cost savings, during the entire 13 months of her tenancy. Therefore, the Respondents are liable to Collins for an additional $3.00 a month in rent reduction. Based on the fact that Collins failed to pay her last month's rent to the Respondents (See No. 4 above), the Respondents are only liable to Collins for the sum of $36.00 ($3.00 a month x 12 months - September 1995 through August 1996).

15. By a letter dated April 14, 1997 (See Pages 87-88 of Commission's Exhibit No. 7), the Department's Mr. Giloley advised the Respondents that, "based on the inspection of the individual gas-fired boilers at 8716 and 8800 Plymouth Street conducted by Joseph "Skip" Walker, Claxton Walker & Associates, on March 12, 1997...the conversion of the gas and rent reduction at 8716 and 8800 Plymouth Street is hereby disapproved. The approval of the electric utility conversion is not affected." Mr. Giloley's letter further advised the Respondents that, "Until such time as the circulating pumps and the ignition switches are interlocked on each boiler, if the gas were turned off to one boiler, either manually or by malfunction, the tenant in that unit would draw water from the main riser which is water heated by other units. Presently, there is no guarantee that tenants are paying solely to heat water they use to heat their apartment." (Note: See Installation and Operation of Individual Gas Boilers below).

16. The Commission credits the testimony of Mr. Giloley regarding the approval and subsequent disapproval of the Respondents' utility conversion and rent reduction scheme, that it is customary for landlords to seek guidance and prior approval of such conversions from the Department to assure compliance with Section 29-30D of the County Code. Regarding the timeliness of the Respondents' notification to Farr and Volante of the proposed conversion, Mr. Giloley acknowledged the Department's position that the Respondent had substantially complied with the requirements of Section 29-30D of the County Code.

17. Six individual gas-fired boilers were installed at the Property in January 1996 by DiBattista Plumbing & Heating Company, and proper permits for the installation were obtained from the appropriate government and regulatory agencies. (See Commission's Exhibit No. 4).

18. Based on the complaint filed with Washington Gas by Jim Johnson (See Commission Case No. T-12787), on February 7, 1997, Washington Gas Appliance Service Technician Herb Pinkney inspected the six individual boilers at 8716 Plymouth Street, which is located next door to 8800 Plymouth Street, Pinkney found that: (a) a couple of the gas meters to individual apartments were off; (b) the trunk lines from all six boilers were hot; and (c) all six boilers were tied together by one main trunk line. The Commission credits the testimony of Mr. Pinkney, a Commission witness who testified on November 12, 1997, that based on his inspection he determined that if a were the only one home in the building and heating his/her apartment, he/she would be heating the apartments where the gas meters were turned off.

19. On February 20, 1997, Mr. Pinkney "red tagged" the gas-fired boilers at 8800 Plymouth Street, the apartment building where Collins lived, with a "Notice of Potentially Hazardous Condition" (See page 52 of Commission Exhibit No. 7) that stated: "Found six heating unit[s] tied together by one water trunkline what [sic] every unit is on. The most heats all six unit[s]. In this case, #1 is heating the building. Repairs must be made by plumber. Refer to Landlord." The Commission credits the testimony of Mr. Pinkney that the condition described on the Red Tag was not hazardous and did not pose a threat to the health or safety of the Complainant or any other occupant in the building.

20. By letters dated February 12, 1997, and March 13, 1997 (See pages 72-77 of Commission’s Exhibit No. 7), the Department notified the Respondents, directly and through their attorney Mr. Plumb, of Mr. Pinkney’s observations and action to "red tag" the boilers at the Property. The referenced letters also requested that the Respondents provide within ten (10) calendar days, in addition to other items, "a written report from a licensed plumber explaining what actions are required to abate the [Washington Gas] notice of violation and bring the boilers into compliance with all applicable codes and regulations."

21. By a letter dated February 21, 1997 (See Commission’s Exhibit No. 3), addressed to "Whom It May Concern," Nick DiBattista, President, DiBattista Plumbing & Heating Company, Inc., the company that installed the subject boilers at the Property, stated the following:

22. On March 18, 1997, the heating system (including boilers, piping, thermostats, valves and other mechanical and electrical equipment) at the Property was inspected by Scott Kaufman, a registered professional engineer, Joseph "Skip" Walker, Claxton Walker & Associates, a certified building inspector, and Philip Peluso, Supervisor, Appliance Service Technician, Washington Gas Company. Also present for the inspection were the Department's Joe Giloley and Michael Denney, and Respondents' attorney Robert Plumb.

23. On April 1, 1997, Mr. Walker produced a written report of his observations and findings (See pages 89-93 of Commission's Exhibit No. 7) which was sent to the Respondents on April 14, 1997 (See pages 87-88 of Commission's Exhibit No. 7).

24. The Commission credits the testimony of Mr. Kaufman, a Commission witness who testified on November 12, 1997, that: (a) he designed similar heating/boiler systems for the Respondents for other apartment buildings they own; and (b) based on his inspection of the subject boilers, he concluded that the scenario described by Mr. Pinkney, i.e. that the gas service to one apartment could be shut off and that unit could still receive hot water heated by other boilers, was possible, but it could be easily corrected with the installation of "aquastat" controls on each boiler to prevent the circulating pump from coming on if there were no gas service.

25. The Commission credits the testimony of Mr. Peluso, a Commission witness called to testify on November 17, 1997, that based on his inspection of the subject boilers: (a) no safety problems were present; and (b) the only problem he observed concerned the circulating pump, i.e. that the circulating pump on a particular individual boiler could be turned on even if the customers gas service were cut off, and that person would receive hot water in their radiators heated by one or more of the other boilers. Mr. Peluso further testified that installing "aquastat" controls on each boiler would solve the problem.

26. The Commission credits the testimony of Mr. Walker, a Commission witness called to testify on November 17, 1997, that based on his inspection of the subject boilers, it was possible for one of the six boilers at the Property not to have gas service and for that tenant to engage the thermostat in his/her apartment and receive heat generated by the other five boilers. Mr. Walker testified that "we found that that could happen...You could turn your gas off and use your circulator to circulate the heat from the other people's boilers." He further testified that the installation of an "aquastat" control on each boiler to prevent it from circulating if the boiler was not fired would solve the problem.

27. Respondent Lewis Winarsky testified at the hearing on November 17, 1998, that he received the written report produced by Mr. Walker, dated April 1, 1997 (See pages 89-93 of Commission's Exhibit No. 7), and until that time, he was unaware that a potential problem existed with the subject boilers. He further testified that he intended to have the recommended "aquastat" controls installed on all of the boilers at the Property by the end of July 1997, but his contractor, DiBattista Plumbing & Heating Company, "kept putting me off." Mr. Winarsky also testified that he had accepted several bids from other contractors to install the "aquastat" controls and they would be installed within two to four weeks, "depending on the contractor." At the request of the Commission, Mr. Winarsky testified that within one week he would submit a copy of the one bid he received; he failed to submit a copy of the bid to the Commission.

28. The Commission credits the testimony of Respondent Lewis Winarsky on February 17, 1998, that the recommended "aquastat" controls were installed on the boilers at the Property in late December 1997 or early January 1998. In support of his testimony, Mr. Winarsky submitted into the record a paid receipt from Adams Heating and A/C Company (See Respondents’ Exhibit No. 5) indicating that the following work had been performed: (a) a Honeywell C645C-1020 gas pressure switch was installed on each gas boiler gas line, and (b) the existing electric shut off valves were re-wired through the pressure switches to close the valve in a loss of gas pressure situation, with the valve closed no water can circulate through the system.

29. Prior to the installation of the "aquastat" controls, the individual gas-fired boilers were improperly installed at the Property in such a way that if gas service were disconnected to one or more boilers, or a boiler malfunctioned, tenants in those units could draw hot water heated and paid for by other tenants in the Property. The Commission finds, based on the testimony of Mr. Pinkney, that such a problem existed at the Property in February 1996, the month that Collins began paying for the gas utility.

30. The Respondents failed to correct the problem with the subject boilers by not installing the recommended "aquastat" controls until on or about January 1, 1998, nearly 2 years after Mr. Pinkney's inspection and the attachment of Red Tags, and approximately 9 months after the issuance of Mr. Walker's report, findings, and recommendations.

31. On November 10, 1997, Respondents' counsel, Mr. Sorrell, filed with the Commission a "Motion For Appropriate Relief," in which he requested, in addition to other relief sought which is addressed in the "Motions" section of this Order, that the Commission, "[D]ismiss all allegations pertaining to Housing Code Violations set to be heard before the Commission on November 10, 1997." The Respondents' request for dismissal of the Housing Code Violations portion of the complaint was denied for the reasons given in the discussion of Motion No. 5 above, and that portion of the hearing was postponed until February 19, 1998. In addition, the Respondents were given copies of the files and documents compiled by the County's Division of Housing and Code Enforcement and afforded the opportunity to review those and any other departmental records prior to February 19th. Collins was given the opportunity to amend her complaint regarding housing code violations, which she did on December 15, 1997, when she submitted to Commission an "Amendment of Complaint," in which she alleged, in addition to complaints previously asserted, that the Respondents failed to correct numerous housing code violations in her Apartment after being put on notice by her and by the Department.

32. At the public hearing on February 19, 1998, the Commission entered into the record of the hearing, as Commission’s Exhibit No. 12, the case file, notices of violation, history of inspections and reinspections, photographs, etc., compiled by the Department’s Division of Housing and Code Enforcement (See pages 192-1599 of the record), and as Commission’s Exhibit No. 13, the reinspection logs compiled by the Department’s Division of Housing and Code Enforcement (See pages 1600-1653 of the record).

33. The Commission credits the testimony of Respondent Lewis Winarsky that at the time he and his wife purchased 8800 Plymouth Street in July 1995, the building and the six (6) apartments in it were in deplorable, sub-standard condition, "both mechanically and physically," and that an audit of the building conducted at the time of purchase revealed, "leaking faucets, leaking pipes, defective appliances, fixtures, that sort of thing." Mr. Winarsky further testified that although he did not have a "formal business plan" other than his own experience as a landlord, it was his intention to upgrade the apartment building, primarily when apartment units turned-over, or within "eighteen months."

34. The Commission finds, based on the testimony and evidence submitted by Collins, that at the time she took possession of the Apartment, on or about September 1, 1995, the following deficiencies existed in her Apartment and the common areas of the Property: rat infestation and trash and debris in the back yard area, inoperable electric outlets, defective window screens, missing window hardware, inoperable oven door, defective kitchen cabinet doors, and flaking and peeling paint on the exterior of the Property, hallways and front porch. The Commission finds further that Collins verbally reported these problems to the Respondents on or about September 1, 1995.

35. The Commission credits the testimony of Respondents' witness, George Mader, that at the time the Respondents purchased the Property, July 1995, two months before Collins moved in, that they, "...were the biggest slums on that street. I mean, they were horrible. Everything was falling apart." (See Commission's Public Hearing transcript of March 9, 1998, at page 52, lines 22-24). Regarding Collins’ allegation, "The common areas of the building were not clean, cleared of snow, debris or trash. Rats were quite common in the back yard area." (See Complainant's Amended Complaint above). The Commission credits the testimony of Mr. Mader that he, "...did all of the snow removal every time it snowed," and, "Around the back when [Respondent Lewis Winarsky] first got [the Property] there was a real rat problem that he was working on and he paid me many times to bait for the rats...a lot of times I charge[d] him to pick up dead rats because the baiting was working." (See Commission's Public Hearing transcript of March 9, 1998 at page 32, lines 10 and 11 and lines 19-24).

36. As found above, on August 9, 1996, the Department’s Linda Bird notified the Respondents that the Department would be conducting a "triennial inspection" of "all public areas and a selected sample of dwelling units" at 8800 Plymouth Street would be inspected "within the next four weeks." (See page 1092 of Commission's Exhibit No. 12).

37. The Commission credits the testimony of Department's Inspector Cecilia Kinna that she inspected Collins’ Apartment on or about September 19, 1996. On September 26, 1996, the Department’s Joe Giloley issued the Respondents a Notice of Violation (See pages 1073 to 1078 of Commission's Exhibit No. 12) in which he cited 40 violations of the housing code—32 relating to the interior and exterior common areas of 8800 Plymouth Street, two (2) pertaining to all apartment units ("All Units"), and the remaining 6 relating to Apartment #3, Collins’ Apartment—and ordered the Respondents to correct the violations by October 28, 1996, the date of a scheduled reinspection.

38. The 32 common area housing code violations cited in the Department's September 26, 1998, Notice of Violation included: missing roof shingles and defective flashing; hole in a brick wall; deteriorated and cracked sidewalk and steps; flaking paint on porch columns, porch and steps, gutters and handrail; rotted wood at base on porch columns; cracked parking lot surface; inadequate window well depth; leaves in gutters; missing downspout elbow and splash block; defective front door hinge, jamb and closure mechanism; missing handrail; cracked and deteriorated retaining wall; poorly fitting door to laundry room; broken window glass; damaged hallway ceiling and wall; broken ladder springs on pull down attic stairs; deteriorated gutter boards; and trash and debris in the attic. The two (2) general violations cited were: (1) Violation #33. All Units - Make windows weather tight, free from leaks and drafts, and (2) Violation #36. Entire Complex - Install 20 amp circuits for each new electrical outlet which has a window air conditioner installed.

39. The six (6) housing code violations cited in the Complainant's Apartment cited in the Department's September 26, 1996, Notice of Violation were:

Violation #34. Living Room Replace the wall outlet located to the right of the entrance door. Mount the outlet box to the wall studs,

Violation #40. Living Room Replace the two missing turn styles [sic] to operate window to open and close.

40. The Commission finds, based on the testimony and evidence provided by Collins, Respondent Lewis Winarsky, and Respondents' witness, Mr. Mader, that at the time Collins moved into her Apartment, on or about September 1, 1995, the following conditions, which were violations of the County's Housing Code, existed, and that she verbally reported them to the Respondents: rat infestation and trash and debris in the back yard area, inoperable electric outlets, defective window screens, missing window hardware, inoperable oven door, defective kitchen cabinet doors, and flaking and peeling paint on the exterior of the Property, hallways and front porch.

41. The Commission finds based on the testimony and evidence provided by Commission's witness, Inspector Kinna, including the Department's Notice of Violation dated September 26, 1996 (See Commission Exhibit No. 12), that the deficiencies reported to the Respondents by Collins on or about September 1, 1995, were not repaired or corrected by the Respondents as of September 26, 1996, more than one (1) year later; and therefore, these conditions existed in Collins’ Apartment and the common areas of the Property the entire time she was a tenant (September 1, 1995 through September 30, 1996).

42. Although Respondent Lewis Winarsky testified that his intention was to upgrade the Property, primarily when apartment units turned-over (See Findings of Fact at No. 37 above), the Commission finds that the Collins’ Apartment was not upgraded by the Respondents between the time the Respondents purchased the Property (July 1995) and the time Collins took possession (September 1, 1995). The Commission finds further that the Respondents failed to deliver the Apartment and all common areas of the Property to Collins at the commencement of her lease term, September 1, 1995, in a clean, safe and sanitary condition, free of rodents and vermin, and in complete compliance with all applicable laws.

43. The Commission finds that Collins verbally notified the Respondents of the referenced Housing Code violations at the time she moved in, and the Department notified the Respondents of these same and other housing code violations on September 26, 1996, four (4) days before Collins moved out. The Respondents failed to make any needed and necessary repairs to abate any of the violations cited by Collins or the Department as of September 30, 1996.

Accordingly, based upon a preponderance of the evidence contained in the record, the Commission on Landlord-Tenant Affairs concludes:

1. Pursuant to Section 29-30D(b)(1) and (2) of the County Code, when a landlord desires to transfer the responsibility for payment of utilities from the landlord to the tenant he has two primary responsibilities: (1) issue notice of the proposed conversion to the affected tenant at least two (2) months prior to the effective date of the conversion, and (2) offer to reduce the affected tenant's rent in an amount commensurate with the actual utility consumption experienced by the landlord during the previous twenty-four (24) months.

The transfer of responsibility for utility payments represents an actual cost savings for the landlord as he no longer has to pay for those utilities, and an actual increase in the costs a tenant pays to occupy an apartment. The purpose of this provision of the County Code is to insure that once a tenant has received a rent increase, which remains in effect for one full year pursuant to Section 29-30C(e) of the County Code, no additional contractual charges are added. In other words, once the rental amount is set for the year, the cost savings experienced by the landlord as the result of a utility conversion must be passed on to the affected tenant in the form of a rent reduction. Thus, in theory, the rent reduction plus the utility costs balance out, and the tenant’s monthly expenses remain essentially the same for the balance of the year.

2. The Respondents' written notice to Collins of their intention to convert gas and electric utilities from master metering to individual metering is contained in the "Addendum to Lease Agreement," executed by Collins on August 25, 1995. Therefore, Collins had such notice at least 60 days prior to the scheduled conversion which took place five (5) months later in February 1996. Therefore, no violation of Section 29-30D(b)(1) of the County Code has occurred regarding timeliness of the notice of the conversion.

3. The amount of the rent reduction ($30.00) offered to Collins at the time she executed the Lease did not accurately reflect an amount commensurate with the utility consumption experienced by the Respondents during the twenty-four (24) months prior to the conversion, in violation of Section 29-30D(b)(2) of the County Code. Based on utility consumption and common area usage at the Property during the 24 months prior to the conversion, approved by the Department on October 3, 1996, the correct amount of the rent reduction should have been $33.00 a month ($13.00 for gas and $20.00 for electric). Although Respondent Lewis Winarsky testified at the hearing that he agreed with the Department's findings, he failed to make such an offer to Collins at any time during her tenancy. The Respondents' failure to provide Collins with a rent reduction in the amount of $33.00 a month constitutes a violation of Section 29-30D(b)(2) of the County Code, and has caused a defective tenancy. Therefore, the Respondents are liable to Collins for the sum of $36.00 ($3.00 a month x 12 months).

4. Pursuant to the "Addendum to Lease Agreement," executed by the Respondents and Collins on August 25, 1995, Collins was required to pay $570.00 a month rent until the time of the utility conversion after which her rent would be $540.00 per month. The utilities at the Property were converted in January 1996, and Collins established accounts in her name with both Washington Gas and Pepco in February 1996. Therefore, Collins’ rent became $540.00 a month beginning in February 1996. However, the Respondent continued to assess Collins monthly rent at the rate of $570.00 for three additional months — February, March and April 1996, in violation of the Lease. The Respondents' improper assessment of $90.00 rent (3 months @ $30.00 a month) against Collins constitutes a violation of the Lease and has caused a defective tenancy. Therefore, the Respondents are liable to Collins for the sum of $90.00 ($30.00 a month x 3 months).

5. The six (6) individual gas-fired boilers installed by the Respondents at 8800 Plymouth Street, including the boiler servicing Collins’ Apartment were improperly installed during Collins’ tenancy, in January 1996, in violation of Section 26-30(a)(4) of the Montgomery County Code, and as a result, gas service to one apartment could be shut off and that unit could still receive hot water heated and paid for by other tenants in the building. The Commission concludes, based on the testimony of the hearing witnesses, that such a problem existed at the Property in February 1997, that this problem existed from the time the boilers were installed (January 1996), and this condition has caused a defective tenancy.

6. The Commission concludes that the improper installation and operation of the gas fired boilers at 8800 Plymouth Street, including Collins’ Apartment, and the Respondents' failure to correct the problem until on or about January 1, 1998, constitutes a violation of 29-30D(b)(6) of the County Code and has created a defective tenancy. The gas utility conversion cannot be given economic effect for the period that the Respondents failed to correct the improper installation. The gas bills received and paid by Collins were unreliable and therefore, the Commission holds that Collins is not liable for any gas utility charges for the period February 1996 through September 1996. However, based on the fact that Collins failed to submit into evidence at the hearing any such paid gas bills, she is only entitled to reimbursement for the gas portion of the utility conversion ($13.00 a month) for the period she was paying for gas service - February 1996 through September 1996. The electric utility conversion and $20.00 rent credit is not affected.

7. Although Respondents' counsel argued at the hearing that the Housing Code violations cited by the Department in July/August 1996 were never proven, the Commission concludes that the Respondents were given proper notice of the violations and were properly advised that if they disagreed or disputed any of the violations cited, they could appeal the notice to the Montgomery County Board of Appeals for review. In the absence of such an appeal, the violations stand as issued by the Department.

8. The Respondents' failure to repair and correct the numerous housing code violations in Collins’ Apartment and the common areas of the Property (inoperable electric outlets, defective window screens, missing window hardware, inoperable oven door, defective kitchen cabinet doors, flaking and peeling paint on the exterior of the Property, hallways and front porch, and trash and debris and rat infestation in the rear yard area), at any time during her tenancy, after being put on notice by her (September 1995) and after being given ample opportunity to make repairs: (a) constitutes a violation of Chapter 26, "Housing and Building Maintenance Standards," of the County Code; (b) constitutes a violation of Section 29-30(a)(1), (2) and (3) of the County Code; (c) posed an on-going threat to the health and safety to Collins; (d) constitutes a violation of Paragraph 21 of the lease; and (e) caused a defective tenancy. The Commission further finds that the existence of these violations was confirmed by the Department’s inspection on or about September 19, 1996.

9. Based on the Respondents' failure to repair or correct any of the deficiencies in Collins’ Apartment and the interior and exterior common areas of the Property until after she vacated, including rat infestation in the rear yard area of the Property, the Commission concludes that Collins was denied full use and enjoyment of her Apartment and the common areas of the Property for the entire 13 months of her tenancy, even though she paid rent in full for all but one (1) month for their use and enjoyment. The Commission concludes that the Respondents' failure to repair or correct the referenced housing code violations reduced the value of Collins’ leasehold tenancy for 13 months, September 1995 through September 1996.

10. Pursuant to Sections 29-26(d) and (n) of the County Code, all landlords in the County are required to deliver to the tenant at the commencement of his/her tenancy the leased premises and all common areas in a clean, safe and sanitary condition, free of rodents and vermin, and in complete compliance with all applicable laws; and they are responsible to maintain the rental facility in accordance with chapter 8, titled "Buildings," chapter 22, titled "Fire Safety Code," chapter 26, titled "Housing Standards," and chapter 59, titled "Zoning"...as an express warranty of habitability and covenant to repair." (Emphasis added).

Furthermore, pursuant to Section 29-30 of the County Code, landlords are specifically obligated to, "...reasonably provide for the maintenance of the health, safety and welfare of all tenants and of all individuals properly on the premises of a rental facility," including: (1) complying with all applicable provisions of any federal, state or county statute, code, regulation or ordinance governing the maintenance, construction, use or appearance of the dwelling unit and rental facility; (2) keeping all areas of the building, grounds, facilities and appurtenances in a clean, sanitary and safe condition; (3) making all repairs and arrangements necessary to put and keep the dwelling unit and the appurtenances thereto in as good a condition as they were, or ought by law or agreement to have been, at the commencement of tenancy; and (4) maintaining all electrical, plumbing and other facilities and conveniences supplied by the landlord in good working order.

By a residential lease agreement, the tenant agrees to pay a pre-determined amount of rent each month for the use and enjoyment of the leased premises, and has the expectation that the leased premises will be delivered to them in complete compliance with all applicable laws, including the Housing Code, free of defects, and without housing code violations, and that the landlord will provide regular maintenance to the property and make repairs to keep the leased premises in good condition during the tenancy. In other words, the tenant expects to receive full value for their rent. The tenant’s obligations include keeping the unit clean and sanitary, disposing of garbage and refuse, and properly using the fixtures and appliances.

Should a landlord fail to voluntarily comply with his maintenance and repair obligations in a timely manner after being put on notice by the tenant and/or the County’s Housing Code Enforcement Office, the tenant’s use and enjoyment of the leased premises may be diminished and the value of the leasehold may be reduced; in that case, the tenant is no longer receiving full value for the rent paid.

Furthermore, pursuant to Section 29-43(b)(1) of the County Code, if the Commission finds that a landlord has caused a defective tenancy by failing to make repairs, "...all affected tenants may be entitled to one or more or all or part of the following remedies...return of...all rental monies already paid to the landlord from the period the landlord was notified of the condition..." Although Collins requested a refund "of part, if not all, of the rent she paid to the respondents during her tenancy," it is up to this Hearing Panel to determine if the circumstances of this case warrant such an abatement of rent.

In this case, the Respondents, who have been apartment landlords in the County for at least 14 years, demonstrated a callous disregard towards Collins by: (1) failing to deliver the Apartment and the common areas of 8800 Plymouth Street to her at the commencement of her tenancy in a clean, safe and sanitary condition, and in complete compliance with all applicable laws, in violation of Section 29-26(n) of the County Code; (2) failing to maintain and make needed and necessary repairs to the Apartment and common areas of 8800 Plymouth Street, after being put on notice by Collins, in violation of Section 29-30 of the County Code; (3) failing to maintain and make needed and necessary repairs to the Apartment and common areas of 8800 Plymouth Street, after being put on notice by the Department, in violation of Chapter 26, "Housing and Building Maintenance Standards" of the County Code; and (4) violating the Settlement they entered with the Department for the repair of all outstanding Housing Code violations, including a schedule of repairs, and failing to make those repairs within the agreed upon time-frames which resulted in the issuance of Class A civil citations.

Based on the above, the Commission holds that Collins’ use and enjoyment of her Apartment and common areas of 8800 Plymouth Street were diminished and the value of the leasehold was reduced by 25% for the entire time she was a tenant. The determination to abate the rent by 25% is based on the Commission’s review of all the facts and circumstances of this case. In the Brooks, et al. v. Blair Park Partnership case, cited by other Complainants in these proceedings, the Commission provided for rent abatement of 100% of the rent paid. However, in that case, unlike the instant case, the landlords, Blair Park Partnership, permitted both serious Fire Safety Code violations, as well as numerous Housing Code violations to continue uncorrected for 141 days.

In the instant proceedings, the Housing Code violations of which the Respondents had notice and which they failed to correct in a timely manner include certain health and safety violations but do not include Fire Safety Code violations. Accordingly, in the absence of Fire Safety Code violations, the Commission holds that the circumstances of this case do not warrant a 100% refund of rent, but rather, based on the existence of the numerous uncorrected Housing Code violations, including certain health and safety violations, the rent refund ordered by the Commission in this case shall be 25% of the rent paid during the period of time the Housing Code violations existed.

10. The Respondents caused a defective tenancy by failing to properly install gas-fired boilers in the Property, including the boiler servicing Collins’ Apartment, and by failing to make required and necessary repairs to Collins’ Apartment and the common area of the Property, in violation of applicable provisions of the Montgomery County Code.

On March 3, 1997, Michael Floyd ("Floyd"), tenant in apartment #1 (the "Apartment") at 8800 Plymouth Street, Silver Spring, MD, (the "Property"), filed a formal complaint with the Department (See pages 50-52 of Commission's Exhibit No. 7) in which he alleged that the Respondents:

1. misrepresented the average monthly cost of gas and electric utilities at the Property to be an average of $30.00 per month at the time the lease agreement was negotiated. "However, the actual utility costs have been extraordinary for an apartment this size, totaling $120 for electricity and $160 for heat [gas] over a 3 1/2 month period;"

2. on February 20, 1997, Washington Gas "red tagged" the gas-fired boilers at the Property with a "Notice of Potentially Hazardous Condition" that stated: "Found six heating unit[s] tied together by one water trunkline what [sic] every unit is on. The most heats all six unit[s]. In this case, #1 is heating the building. Repairs must be made by plumber. Refer to Landlord;"

3. "As the [warning] notice indicates, the outlet pipes from the six individually metered hydroponic boilers all empty into a single truck line which then supplies hot water to radiators in all the apartments. With such a setup we are all heating each other’s apartments, and some are heating more than others. It is logical for me to think that, with my gas bills being so high, I am providing heat at my expense to other apartments. The billing system is invalid;" and,

4. "...the average electric cost, all by itself, is near or exceeds the $30/month Mr. Winarsky represented as the total average utility cost for this apartment."

Floyd is seeking an Order from the Commission for the Respondents to:

1. "Refund the total amount I have paid Washington Gas."

2. "Reversion of the account name to [Respondent] Mr. Winarsky and Sky Properties until the heating system is refitted, so the gas use can be validly billed.

3. A $30 reduction in monthly rent to reflect more accurately the actual costs of supplying heat and electricity to this unit."

4. "...a rent credit of $530/month (or pro-rated amount thereof) until the matter is resolved.

Original Complaint - Respondents' Position

The Respondents contend that: (1) Floyd’s Lease requires that he establish an account with Washington Gas for gas service and with Potomac Electric Power Company ("Pepco") for electric service, which he did; and (2) the gas-fired boilers were installed under permit by a licensed plumber.

On December 11, 1997, Floyd submitted to the Commission an "Amendment of Complaint Based on Division of Code Enforcement Case File, Case No. 2912, Michael Floyd v. Plymouth Muse L.L.C. and Lewis I. and Susan L. Winarsky" in which he alleged, in addition to complaints previously asserted, that the Respondents rented him the Apartment with numerous Housing Code violations present and without first receiving approval from the Department, and failed to correct numerous Housing Code violations in his Apartment during his tenancy after being put on notice by him and the Department.

Specifically, Floyd asserts in his Amended Complaint that:

1. "Pages 1546-1547 of the 'packet' [Hearing Record] contains a November 14,1996 letter from Inspector Cece Kinna to Respondents. At the end of the letter is a section called Inspector's Notes (October 30, 1996): 'This Office has been informed [that] the current occupant is vacating the property on or about October 31, 1996. Prior to any re-occupancy of this unit, all violations must be corrected, and approved as being corrected by a Department of Housing and Community Affairs, Housing Code Enforcement Inspector.' Mr. Jamilla, another complainant [see Commission's Case No. T-12825], was the previous tenant."

2. "My tenancy began in November of 1996."

3. A reinspection check sheet contained in the packet [Hearing Record] (pages 1528-1529) shows that 19 violations were unrepaired as of March 3, 1997. An inspector's note on page 1529 states: '4/11/97 unit vacant & under repairs'. By April 11, 1997, I had moved out."

4. These violations existed throughout my entire tenancy, and the apartment was rented to me with Respondents' full knowledge of their existence and knowledge that they had been told by the Code Enforcement Division that they could not rent the unit until all the violations had been repaired."

In addition to previously requested relief, Floyd is seeking an Order from the Commission that:

1. Pursuant to Section 29-43 of the County Code, his tenancy be found defective;

2. Pursuant to Section 29-43(b) of the County Code, the Respondents must refund his security deposit and all rent money he paid to the Respondents from the beginning of his tenancy until the date he vacated, including the judgment for non-payment of rent the Respondents obtained in the District Court of Maryland (Case No. 10847). The Complainant cites the Commission Order in the matter of Complainants v. Blair Park Partnership, and notes that Order was upheld on appeal in the Circuit Court of Montgomery County; and

3. Pursuant to Section 29-43(b) of the County Code, "these remedies be offered to all affected tenants, not just me"

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

1. The Respondents are the current owners of the Apartment and the Property, a licensed multi-family Rental Facility in Montgomery County, MD, and they were the owners of the Property on October 16, 1996.

2. On October 16, 1996, Floyd signed and entered into a one-year lease agreement ("Lease") with the Respondents for the rental of the Apartment which commenced on November 1, 1996, and expired on October 31, 1997. (See pages 000010 to 000014 of Respondents' Exhibit No. 15). The amount of the rent was $530.00 per month.

3. Floyd paid the Respondents a security deposit in the amount of $528.00. The security deposit was paid in four (4) installments: $300.00 on October 17, 1996, $76.00 on November 17, 1996, $76.00 on December 17, 1996, and $76.00 on January 17, 1997.

4. On or about November 4, 1996, the Respondents issued Floyd a rent credit in the amount of $50.00 for cleaning (See page 000032 of Respondents' Exhibit No. 15).

5. Paragraph 2(b) of the subject Lease states: "Tenant will pay the gas and electric utility bills as they become due."

6. The gas and electric utilities at the Property were converted from master metering to individual metering by Washington Gas and Potomac Electric Power Company ("Pepco") prior to the execution of the Lease by the Complainant and the Respondents.

7. By a memorandum to the Commission dated December 17, 1997 (See Complainant's Exhibit No. C-55), Floyd entered into the record of these proceedings the following documents: (a) a two page account history from Washington Gas, account No. 2497 058111, and (b) a three page account history from Pepco, Account No. 2020-7505-1-5.

8. The Commission finds that Floyd established accounts with both Washington Gas and Pepco on or about the time he took possession of the Apartment, November 1, 1996, and began paying regular monthly bills for gas and electric utilities thereafter. The Washington Gas account was "turned on" as of November 1, 1996, and it was terminated as of March 31, 1997. The billing period for the Pepco account is November 11, 1996 through April 1, 1997.

9. Floyd paid Washington Gas $408.16 for gas service for the period November 1, 1996 through March 31, 1997, and he paid Pepco $99.31 for electric service for the period November 1996 through April 1, 1997. (See Complainant's Exhibit No. C-55).

10. In January 1996, nine (9) months before Floyd moved into his Apartment, the Respondents’ contractor, DiBattista Plumbing & Heating Company, installed six individual gas-fired boilers at the Property, one boiler to serve each of the six individual apartments. Proper permits for the installation were obtained from the appropriate government and regulatory agencies. (See Commission's Exhibit No. 4).

11. Based on the complaint filed with Washington Gas by his then neighbor, Jim Johnson (See Commission Case No. T-12787), on February 7, 1997, Washington Gas Appliance Service Technician Herb Pinkney inspected the boilers at both 8716 and 8800 Plymouth Street and found that: (a) a couple of the gas meters to individual apartments were off; (b) the trunk lines from all six boilers were hot; and (c) all six boilers were tied together by one main trunk line. The Commission credits the testimony of Mr. Pinkney, a Commission witness who testified on November 12, 1997, that based on his inspection he determined that if a tenant were the only one home in the building and heating his/her apartment, he/she would be heating the apartments where the gas meters were turned off.

12. On February 20, 1997, Washington Gas "red tagged" the gas-fired boilers at 8800 Plymouth Street, with a "Notice of Potentially Hazardous Condition," which was signed for and accepted by Floyd as "Tenant" (See page 52 of Commission Exhibit No. 7). The Notice stated that: "Found six heating unit[s] tied together by one water trunkline what [sic] every unit is on. The most heats all six unit[s]. In this case, #1 is heating the building. Repairs must be made by plumber. Refer to Landlord." The Commission credits the testimony of Mr. Pinkney that the condition described on the Red Tag was not hazardous and did not pose a threat to the health or safety of Floyd or any other occupant in the building.

13. By letters dated February 12, 1997, and March 13, 1997 (See pages 72-77 of Commission’s Exhibit No. 7), the Department notified the Respondents, directly and through their attorney Mr. Plumb, of Mr. Pinkney’s observations and action to "red tag" the boilers at the Property. The referenced letters also requested that the Respondents provide the Department within ten (10) calendar days, in addition to other items, "a written report from a licensed plumber explaining what actions are required to abate the [Washington Gas] notice of violation and bring the boilers into compliance with all applicable codes and regulations."

14. By a letter dated February 21, 1997 (See Commission’s Exhibit No. 3), addressed to "Whom It May Concern," Nick DiBattista, President, DiBattista Plumbing & Heating Company, Inc., the company that installed the subject boilers at the Property, stated the following:

15. On March 18, 1997, the heating system (including boilers, piping, thermostats, valves and other mechanical and electrical equipment) at the Property was inspected by Scott Kaufman, a registered professional engineer, Joseph "Skip" Walker, Claxton Walker & Associates, a certified building inspector, and Philip Peluso, Supervisor, Appliance Service Technician, Washington Gas Company. Also present for the inspection were the Department's Joe Giloley and Michael Denney, and Respondents' attorney Robert Plumb.

16. On April 1, 1997, Mr. Walker produced a written report of his observations and findings (See pages 89-93 of Commission's Exhibit No. 7) which was sent to the Respondents on April 14, 1997 (See pages 87-88 of Commission's Exhibit No. 7).

17. The Commission credits the testimony of Mr. Kaufman, a Commission witness who testified on November 12, 1997, that: (a) he designed similar heating/boiler systems for the Respondents for other apartment buildings they own; and (b) based on his inspection of the subject boilers, he concluded that the scenario described by Mr. Pinkney, i.e. that the gas service to one apartment could be shut off and that a unit could still receive hot water heated by other boilers, was possible, but it could be easily corrected with the installation of "aquastat" controls on each boiler to prevent the circulating pump from coming on if there were no gas service.

18. The Commission credits the testimony of Mr. Peluso, a Commission witness called to testify on November 17, 1997, that based on his inspection of the subject boilers: (a) no safety problems were present; and (b) the only problem he observed concerned the circulating pump, i.e. that the circulating pump on a particular individual boiler could be turned on even if the customer’s gas service were cut off, and that person would receive hot water in their radiators heated by one or more of the other boilers. Mr. Peluso further testified that installing "aquastat" controls on each boiler would solve the problem.

19. The Commission credits the testimony of Mr. Walker, a Commission witness called to testify on November 17, 1997, that based on his inspection of the subject boilers, it was possible for one of the six boilers at the Property not to have gas service and for that tenant to engage the thermostat in his/her apartment and receive heat generated by the other five boilers. Mr. Walker testified that "we found that that could happen...You could turn your gas off and use your circulator to circulate the heat from the other people's boilers." He further testified that the installation of an "aquastat" control on each boiler to prevent it from circulating if the boiler was not fired would solve the problem.

20. Respondent Lewis Winarsky testified at the hearing on November 17, 1998, that he received the written report produced by Mr. Walker, dated April 1, 1997 (See pages 89-93 of Commission's Exhibit No. 7), and until that time, he was unaware that a potential problem existed with the subject boilers. He further testified that he intended to have the recommended

"aquastat" controls installed on all of the boilers at the Property by the end of July 1997, but his contractor, DiBattista Plumbing & Heating Company, "kept putting me off." Mr. Winarsky also testified that he had accepted several bids from other contractors to install the "aquastat" controls and they would be installed within two to four weeks, "depending on the contractor." At the request of the Commission, Mr. Winarsky testified that within one week, by November 24, 1998, he would submit a copy of the one bid he received. The Respondents failed to submit a copy of the referenced bid to the Commission within one week.

21. The Commission credits the testimony of Respondent Lewis Winarsky on February 17, 1998, that the recommended "aquastat" controls were installed on the boilers at the Property in late December 1997 or early January 1998. In support of his testimony, Mr. Winarsky submitted into the record a paid receipt from Adams Heating and A/C Company (See Respondents’ Exhibit No. R-5) indicating that the following work had been performed: (a) a Honeywell C645C-1020 gas pressure switch was installed on each gas boiler gas line, and (b) the existing electric shut off valves were re-wired through the pressure switches to close the valve in a loss of gas pressure situation, with the valve closed no water can circulate through the system.

22. Prior to the installation of the "aquastat" controls, the individual gas-fired boilers were improperly installed at the Property in such a way that if gas service were disconnected to one or more boilers, or a boiler malfunctioned, tenants in those units could draw hot water heated and paid for by other tenants in the Property. The Commission finds, based on the testimony of Mr. Pinkney, that such a problem existed at the Property in February 1996, nine (9) months before Floyd moved in (November 1, 1996) and began paying for the gas utility.

23. The Respondents failed to correct the problem with the subject boilers by installing the recommended "aquastat" controls until on or about January 1, 1998, nearly 2 years after Mr. Pinkney's inspection and the attachment of Red Tags, and approximately 9 months after the issuance of Mr. Walker's report, findings and recommendations. Therefore, the Commission finds that the Respondents failed to correct the problem with the subject boilers by installing the recommended "aquastat" controls at any time during Floyd’s tenancy.

24. On November 10, 1997, Respondents' counsel, Clyde "Rocky" Sorrell, filed with the Commission a "Motion For Appropriate Relief," in which he requested, in addition to other relief sought (which is addressed in the "Motions" section of this Order), that the Commission, "[D]ismiss all allegations pertaining to Housing Code Violations set to be heard before the Commission on November 10, 1997." The Respondents' request for dismissal of the Housing Code Violations portion of the complaint was denied for the reasons given in the discussion of Motion No. 5 above, and that portion of the hearing was postponed until February 19, 1998. In addition, the Respondents were given copies of the files and documents compiled by the County's Division of Housing and Code Enforcement and afforded the opportunity to review those and any other departmental records prior to February 19th. Floyd was given the opportunity to amend his complaint regarding housing code violations, which he did on December 11, 1997, when he submitted to the Commission an "Amendment of Complaint Based on Division of Code Enforcement Case File, Case No. 2912," in which he alleged, in addition to complaints previously asserted, that the Respondents failed to correct numerous housing code violations in his Apartment after being put on notice by him and by the Department.

25. At the public hearing on February 19, 1998, the Commission entered into the record of the hearing, as Commission’s Exhibit No. 12, the case file, notices of violation, history of inspections and reinspections, photographs, etc., compiled by the Department’s Division of Housing and Code Enforcement (See pages 192-1599 of the record), and as Commission’s Exhibit No. 13, the reinspection logs compiled by the Department’s Division of Housing and Code Enforcement (See pages 1600-1653 of the record).

26. The Commission credits the testimony of Respondent Lewis Winarsky that at the time he and his wife purchased 8800 Plymouth Street in July 1995, the building and the six (6) apartments in it were in deplorable, sub-standard condition, "both mechanically and physically," and that an audit of the building conducted at the time of purchase revealed, "leaking faucets, leaking pipes, defective appliances, fixtures, that sort of thing." Mr. Winarsky further testified that although he did not have a "formal business plan" other than his own experience as a landlord, it was his intention to upgrade the apartment building, primarily when apartment units turned-over, or within "eighteen months." (Emphasis added).

27. The Commission credits the testimony of Respondents' witness, George Mader, that at the time the Respondents purchased the Property, July 1995, that they, "...were the biggest slums on that street. I mean, they were horrible. Everything was falling apart. (See Commission's Public Hearing transcript of March 9, 1998, at page 52, lines 22-24).

28. There were two types of housing code inspections conducted by the Department relative to the Apartment and 8800 Plymouth Street prior to Floyd’s tenancy in the summer of 1996: (a) a Complaint Inspection initiated by Complainant Nick Jamilla (See Commission's Case No. T-12825) the tenant who occupied the Apartment immediately prior to Floyd, through his complaint to the Department filed on August 15, 1996 (See pages 28 to 38 of Commission's Exhibit No. 7), regarding specific alleged housing code violations in the Apartment; and (b) a required Triennial License Inspection initiated by the Department during the normal course of business in August/September 1996.

Complainant Inspection

29. On or about August 15, 1996, former tenant Mr. Jamilla sent a copy of his Original Complaint with attachments to the Respondents (See pages 28 to 38 of Commission's Exhibit No. 7), in which he asserted, in addition to other complaints, that due to improper drainage and cracked exterior front steps, rain water was seeping into the storage room and kitchen in his apartment which caused plaster to cake up and fall off, paneling to begin to rot, and the space to become a breeding area for insects.

30. Based on the Respondents' failure to respond to Mr. Jamilla's complaint and to investigate and to repair the walls and ceiling of the storage room and kitchen of the Apartment, Mr. Jamilla filed his complaint with the Department on August 20, 1996.

31. On August 28, 1996, the Department's Housing Code Enforcement Inspector Cecilia Kinna conducted an inspection of the Apartment, and on August 29, 1996, she issued a Notice of Violation to the Respondents (See pages 1552-1555 of Commission’s Exhibit No. 12) in which she cited 31 violations of the Housing Code observed in the living room, kitchen, storage room, bedroom and bathroom in the Apartment, and ordered the Respondents to correct the following Housing Code violations by September 30, 1996:

Living Room:

32. By a letter dated November 14, 1996, Inspector Kinna advised the Respondents that she reinspected the Apartment on October 30, 1996, and found that only 2 of the 31 housing code violations cited on August 28, 1996 (Violation Nos. 13 and 15) had been corrected. (See pages 1546-1550 of Commission’s Exhibit No. 12). The Commission finds that the Respondents failed to repair or correct 29 of the 31 violations ordered by the Department by October 30, 1996, two (2) days before Floyd's tenancy began (November 1, 1996).

33. The November 14, 1996, reinspection notice also contained notice to the Respondents advising them of their right to appeal the Notice of Violation to the Montgomery County Board of Appeals within fifteen (15) days. The Respondents did not file any such appeal with the Montgomery County Board of Appeals.

34. The Commission finds that as of November 1, 1996, the date Floyd rented the Apartment, 29 violations of the Housing Code existed in the Apartment, and therefore, the Respondents failed to deliver the Apartment to Floyd at the beginning of his lease term, November 1, 1996, in a clean, safe and sanitary condition, free of rodents and vermin, and in complete compliance with all applicable laws.

35. On August 9, 1996, the Department’s Linda Bird notified the Respondents that the Department would be conducting its "triennial inspection" of "all public areas and a selected sample of dwelling units" at 8800 Plymouth Street would be inspected "within the next four weeks." (See page 1092 of Commission's Exhibit No. 12).

36. The Commission credits the testimony of Inspector Kinna that as part of the scheduled Triennial License Inspection, she inspected the interior and exterior common areas of the Property and other apartment units at the Property, not Floyd's Apartment, on about September 19, 1996.

37. On September 26, 1996, the Department’s Joe Giloley issued the Respondents a Notice of Violation (See pages 1073 to 1078 of Commission's Exhibit No. 12) in which he cited 40 violations of the housing code—32 violations relating to the interior and exterior common areas of 8800 Plymouth Street ("Entire Complex"), two (2) violations pertaining to all apartment units ("All Units"), and the remaining six (6) violations relating to Apartment #3, the apartment of Kimberly Collins (See Commission's Case No. 131)—and ordered the Respondents to correct the violations by October 28, 1996, the date of a scheduled reinspection.

38. The 32 "Entire Complex" and the two (2) "All Units" housing code violations cited in the Department's September 26, 1998, Notice of Violation (See pages 1073 to 1078 of Commission Exhibit No. 12) were:

39. By a letter dated November 22, 1996, Inspector Kinna advised the Respondents that she completed a reinspection of the Property on November 18, 1996, and found that only 1 of the 32 "Entire Complex" housing code violations (Violation No. 9, clean leaves out of the gutter), cited on September 26, 1996, had been corrected. (See pages 1067-1072 of Commission’s Exhibit No. 12), and neither of the (2) two "All Units" had been corrected. The Commission finds that the Respondents failed to repair or correct 33 of the 34 "Entire Complex" housing code violations cited during the Triennial License Inspection by the week of October 28, 1996, the deadline set by the Department, which was several days before Floyd's tenancy began on November 1, 1996.

40. The Commission finds, based on the testimony and evidence provided by Inspector Kinna, that the Respondents rented the Apartment, including the interior and exterior common areas of the Property, to Floyd on November 1, 1996, at which time 62 violations of the Housing Code existed: 31 violations in the Apartment, and 31 violations in the common areas of the Property (See Findings of Fact Nos. 31 and 38 above).

41. The Commission finds further that the Respondents failed to deliver the Apartment and all interior and exterior common areas of the Property to Floyd at the commencement of his tenancy, November 1, 1996, in a clean, safe and sanitary condition and in complete compliance with all applicable laws.

42. On March 3, 1997, more than six (6) months after the original inspection, Inspector Kinna conducted a second reinspection of Floyd’s Apartment at which time she determined that 10 more code violations (Nos. 4, 5, 6, 7, 14, 16, 25, 26, 28 and 30) from the original list of 31 had been corrected and 19 remained uncorrected.

43. The Commission credits the testimony of Mr. Giloley that subsequent to the issuance of the above-referenced Notices of Violation to the Respondents, a series of meetings took place between himself and Respondent Lewis Winarsky regarding a time-table for completion of all of the repairs previously ordered by the Department.

44. On March 5, 1997, the Department and the Respondents entered into a "Settlement Agreement" (See pages 65-70 of Commission's Exhibit No. 7) regarding the disposition of all outstanding Housing Code violations at apartment complexes owned by the Respondents in Montgomery County, MD, for the purpose of prioritizing and scheduling repairs for the abatement of all housing code violations. The Settlement Agreement combined the two (2) outstanding violation notices—the one from the Complainant Inspection (August 29, 1996) and the one from the Triennial License Inspection (September 26, 1996)—and set a timetable for the abatement of all violations of between 30 to 90 days for most violations. The Settlement Agreement required the Respondents to make repairs as follows:

45. On March 28, 1997, Inspector Kinna conducted a third reinspection of the Complainant's Apartment, at which time she determined that violation No. 8 from the original list of 31 violations cited on August 29, 1996, had been corrected and 18 remained uncorrected.

46. On or about April 1, 1997, Floyd vacated the Apartment.

47. On April 11, 1997, after Floyd vacated the Apartment, Inspector Kinna conducted a fourth reinspection of the Apartment at which time she determined that six (6) more housing code violations (Nos. 2, 11, 17, 22, 27, and 31) from the original list of 31 had been corrected and 12 remained uncorrected.

48. The Commission finds that the following Housing Code violations existed in the Floyd's Apartment from the commencement of his tenancy (November 1, 1996) until the date he vacated the Apartment (on or about April 1, 1996):

49. The Commission finds that the following interior and exterior common area Housing Code violations existed in the Property from the commencement of Floyd's tenancy (November 1, 1996) until the date he vacated (on or about April 1, 1997):

Violation No. 1 - missing roof shingles and defective flashing

50. Although Respondent Lewis Winarsky testified that his intention was to upgrade the Property, primarily when apartment units turned over (See Findings of Fact at No. 26 above), the Commission finds that the Complainant's Apartment was not upgraded and needed and necessary repairs were not made by the Respondents between the time Complainant Jamilla vacated, on or about October 31, 1996, and the time Complainant Floyd took possession on November 1, 1996.

51. The Commission finds that the Respondents failed to deliver the Apartment and all common areas of the Property to Floyd at the beginning of his lease term, November 1, 1996, in a clean, safe and sanitary condition, and in complete compliance with all applicable laws.

52. The Commission finds that the existence of 62 Housing Code violations in Floyd’s Apartment and common areas of the Property at the time it was rented to him by the Respondents, and the Respondents' failure to correct all but several minor violations during the five (5) months of his tenancy, significantly and substantially reduced the value of Floyd’s leasehold tenancy.

53. At the time Floyd vacated the Apartment, on or about April 1, 1997, he had paid rent to the Respondents for the period November 1996 through February 1997 (See Pages 143 to 145 of Respondents' Exhibit No. 15). The Commission finds that Floyd did not pay rent, in the amount due of $530.00 a month, to the Respondents for the months of February, March and April 1996.

54. Based on Floyd’s account history provided by the Respondents (See Respondents’ Exhibit No. R-15), the Respondents applied Floyd’s $528.00 security deposit to the balance due for unpaid rent.

55. Floyd paid the Respondent a security deposit in the amount of $528.00 (See Findings of Fact at No. 3 above), the receipt of which is contained at Paragraph 6 of the Lease.

56. Neither the receipt for the payment of the Floyd’s security deposit, nor the Lease, contains language informing Floyd of his right to receive from the Respondents a written list of all existing damages or the procedure for requesting such a list, as required by § 8-203(c)(3) of the Real Property Article, Annotated Code of Maryland, 1996, as amended ("State Code").

57. Neither the receipt for the payment of Floyd’s security deposit, nor the Lease, contains language advising Floyd of his right to be present for a final walkthrough inspection of the Apartment or the procedure for making such a request, as required by § 8-203 (g)(1) of the State Code.

58. Floyd prematurely, without a demonstrated reasonable cause beyond his control, and without the Respondents’ consent or agreement, vacated the Apartment on or about April 1, 1996.

Based upon a preponderance of the testimony and evidence contained in the record, the Commission on Landlord-Tenant Affairs concludes:

1. On October 16, 1996, the Respondents and Floyd signed and entered into a one-year Lease for the rental of the Apartment, and pursuant to the terms and conditions of the Lease, Floyd was required to pay $530.00 a month rent and to establish accounts with Washington Gas and Pepco for the payment of gas and electric utilities.

Installation and Operation of Individual Gas Boilers

2. The six (6) individual gas-fired boilers installed by the Respondents at 8800 Plymouth Street in January 1996, including the boiler serving Floyd’s Apartment prior to his tenancy, were improperly installed and maintained in violation of Section 26-30(a)(4) of the County Code, and as a result, gas service to one apartment could be shut off and that unit could still receive hot water heated and paid for by other tenants in the building. The Commission concludes, based on the testimony of Mr. Pinkney, that such a problem existed at the Property in February 1997, during Floyd's tenancy, and was not corrected by the installation of recommended "aquastat" controls on the boilers until on or about December 31, 1997, approximately nine (9) months after Floyd vacated. The failure of the Respondents to properly install the individual gas-fired boilers at the Property has caused a defective tenancy.

3. The Commission concludes that the improper installation and operation of the gas fired boilers at 8800 Plymouth Street, including Floyd’s Apartment, and the Respondents' failure to correct the problem until on or about December 31, 1997, after Floyd vacated, constitutes a violation of 29-30D(b)(6) of the County Code, and has created a defective tenancy. The gas utility conversion cannot be given economic effect for the period that the Respondents failed to correct the improper installation. The gas bills received and paid by Floyd were unreliable and therefore, the Commission holds that Floyd is not liable for any gas utility charges for the period November 1996 through March 1997, and pursuant to Section 29-43(b)(2) of the County Code, the Respondents are liable to Floyd for all payments he made to Washington Gas during his tenancy.

4. The Respondents caused a defective tenancy by failing to properly install gas-fired boilers in the Property, including the boiler servicing Floyd's Apartment, by failing to deliver the Apartment and all common areas to Floyd at the commencement of his tenancy, and by failing to make required and necessary repairs to Floyd's Apartment and the common area of the Property during his tenancy, in violation of applicable provisions of the Montgomery County Code.

5. Although Respondents' counsel argued at the hearing the Housing Code violations cited by the Department in July/August 1996 were never proven, the Commission concludes that the Respondents were given proper notice of the violations and were properly advised that if they disagreed or disputed any of the violations cited, they could appeal the notice to the Montgomery County Board of Appeals for review. In the absence of such an appeal, the violations stand as issued by the Department.

6. The Respondents' failure to deliver the Apartment and all interior and exterior common areas of the Property to Floyd at the commencement of his tenancy, November 1, 1996, in a clean, safe and sanitary condition, and in complete compliance with all applicable laws, constitutes a violation of Section 29-26(n) of the Montgomery County Code, and caused a defective tenancy.

7. The Respondents' failure to repair and correct the numerous housing code violations in Floyd's Apartment and the interior and exterior common areas of the Property at any time during his tenancy, after being put on notice by the Department (August 29, 1996), and given ample opportunity to make repairs: (a) constitutes a violation of Chapter 26, "Housing and Building Maintenance Standards," of the County Code; (b) constitutes a violation of Section 29-26(d) of the County Code; (c) constitutes a violation of Section 29-30(a)(1), (2) and (3) of the County Code; (d) posed an on-going threat to the health and safety of Floyd; (e) constitutes a violation of Paragraph 21 of the lease; and (f) caused a defective tenancy.

8. Based on the Respondents' failure to repair or correct any of the deficiencies in Floyd's Apartment and all but several minor interior and exterior common areas of the Property until after he vacated, the Commission concludes that Floyd was denied full use and enjoyment of his Apartment and the common areas of the Property for the entire five (5) months of his tenancy, even though he was paying rent in full for their use and enjoyment. The Commission concludes that the Respondents' failure to deliver the Apartment and common areas of the Property to Floyd at the commencement of his tenancy and the Respondents’ failure repair or correct any of the referenced housing code violations reduced the value of Floyd's leasehold tenancy for the entire five (5) months of his tenancy, November 1996 through March 1997.

Pursuant to Sections 29-26(d) and (n) of the County Code, all landlords in the County are required to deliver to the tenant at the commencement of his/her tenancy the leased premises and all common areas in a clean, safe and sanitary condition, free of rodents and vermin, and in complete compliance with all applicable laws; and they are responsible to maintain the rental facility in accordance with chapter 8, titled "Buildings," chapter 22, titled "Fire Safety Code," chapter 26, titled "Housing Standards," and chapter 59, titled "Zoning"...as an express warranty of habitability and covenant to repair." (Emphasis added).

Furthermore, pursuant to Section 29-30 of the County Code, landlords are specifically obligated to, "...reasonably provide for the maintenance of the health, safety and welfare of all tenants and of all individuals properly on the premises of a rental facility," including: (1) complying with all applicable provisions of any federal, state or county statute, code, regulation or ordinance governing the maintenance, construction, use or appearance of the dwelling unit and rental facility; (2) keeping all areas of the building, grounds, facilities and appurtenances in a clean, sanitary and safe condition; (3) making all repairs and arrangements necessary to put and keep the dwelling unit and the appurtenances thereto in as good a condition as they were, or ought by law or agreement to have been, at the commencement of tenancy; and (4) maintaining all electrical, plumbing and other facilities and conveniences supplied by the landlord in good working order.

By a residential lease agreement, the tenant agrees to pay a pre-determined amount of rent each month for the use and enjoyment of the leased premises, and has the expectation that the leased premises will be delivered to them in complete compliance with all applicable laws, including the Housing Code, free of defects, and without housing code violations, and that the landlord will provide regular maintenance to the property and make repairs to keep the leased premises in good condition during the tenancy. In other words, the tenant expects to receive full value for their rent. The tenant’s obligations include keeping the unit clean and sanitary, disposing of garbage and refuse, and properly using the fixtures and appliances.

Should a landlord fail to voluntarily comply with his maintenance and repair obligations in a timely manner after being put on notice by the tenant and/or the County’s Housing Code Enforcement Office, the tenant’s use and enjoyment of the leased premises may be diminished and the value of the leasehold may be reduced; in that case, the tenant is no longer receiving full value for the rent paid.

Furthermore, pursuant to Section 29-43(b)(1) of the County Code, if the Commission finds that a landlord has caused a defective tenancy by failing to make repairs, "...all affected tenants may be entitled to one or more or all or part of the following remedies...return of...all rental monies already paid to the landlord from the period the landlord was notified of the condition..." Although Jamilla has requested "a refund totaling a percentage of two months rent," it is up to this Hearing Panel to determine if the circumstances of this case warrant such an abatement of rent.

In this case, the Respondents, who have been apartment landlords in the County for at least 14 years, demonstrated a callous disregard towards Floyd by: (1) failing to deliver the Apartment and the common areas of 8800 Plymouth Street to him at the commencement of his tenancy in a clean, safe and sanitary condition, and in complete compliance with all applicable laws, in violation of Section 29-26(n) of the County Code; (2) failing to maintain and make needed and necessary repairs to the Apartment and common areas of 8800 Plymouth Street, after being put on notice by Floyd, in violation of Section 29-30 of the County Code; (3) failing to maintain and make needed and necessary repairs to the Apartment and common areas of 8800 Plymouth Street, after being put on notice by the Department, in violation of Chapter 26, "Housing and Building Maintenance Standards" of the County Code; (4) violating the Settlement they entered with the Department for the repair of all outstanding Housing Code violations, including a schedule of repairs, and failing to make those repairs within the agreed upon time-frames which resulted in the issuance of Class A civil citations.

Based on the above, the Commission holds that Floyd’s use and enjoyment of his Apartment and common areas of 8800 Plymouth Street were diminished and the value of the leasehold was reduced by 25% for the entire time he was a tenant. The determination to abate the rent by 25% is based on the Commission’s review of all the facts and circumstances of this case. In the Brooks, et al. v. Blair Park Partnership case, cited by Floyd and other Complainants in these proceedings, the Commission provided for rent abatement of 100% of the rent paid. However, in that case, unlike the instant case, the landlords, Blair Park Partnership, permitted both serious Fire Safety Code violations, as well as numerous Housing Code violations to continue uncorrected for 141 days.

In the instant proceedings, the Housing Code violations of which the Respondents had notice and which they failed to correct in a timely manner include certain health and safety violations but do not include Fire Safety Code violations. Accordingly, in the absence of Fire Safety Code violations, the Commission holds that the circumstances of this case do not warrant a 100% refund of rent, but rather, based on the existence of the numerous uncorrected Housing Code violations, including certain health and safety violations, the rent refund ordered by the Commission in this case shall be 25% of the rent paid during the period of time the Housing Code violations existed.

9. Regarding Floyd’s request for a refund of rent relative to the "judgment for non-payment of rent the Respondents obtained in the District Court of Maryland (Case No. 10847)," the Commission finds no evidence or testimony in the record regarding this allegation

or any evidence that Floyd paid any additional rent to the Respondents beyond March 1997. Pursuant to Section 29-43(b)(1) of the County Code, the Commission's authority regarding such a refund of rent is limited to "...rental monies already paid to the landlord." Therefore, the Commission can make no findings regarding this allegation.

10. Floyd breached his Lease with the Respondents by withholding three (3) months rent ($1,590.00), and by vacating the Apartment prematurely on or about April 1, 1996.

11. The Respondents’ failure to provide Floyd with a written receipt for his payment of the security deposit that contained language informing him of his right to receive from the Respondents a written list of all existing damages and the procedure for requesting such a list, violated § 8-203(c)(3) of the State Code, and has caused a defective tenancy. While § 8-203 (d)(2) of the State Code imposes a penalty upon the Respondents of threefold the amount of the security deposit ($1,590.00) for violations thereof, the Commission concludes that such penalty is offset in full by the three (3) months rent ($1,590.00) which Floyd withheld.

12. Furthermore, the Respondent’s failure to provide Floyd with a receipt for his payment of the security deposit that advised him of his right to request to be present for a final walk-through inspection of the Apartment to determine if any damage beyond normal wear and tear had been caused, or the procedure for requesting such an inspection, violated § 8-203 (g)(1) of the State Code, and also caused a defective tenancy. Therefore, pursuant to § 8-203 (g)(1) of the State Code, the Respondent forfeited his right to withhold any part of Floyd’s security deposit for damages. However, the Respondents did not withhold any portion of Floyd’s security deposit for damages, only unpaid rent, which they are authorized to do. The Commission concludes that although the Respondents violated the State security deposit law by failing to advise Floyd of his right to be present for a final walk-through inspection of the Apartment to determine if any damage beyond normal wear and tear had been caused, or the procedure for requesting such an inspection, Floyd is not entitled to the refund of any portion of his security deposit.

On April 1, 1997, Densil Roberts ("Roberts"), tenant in apartment #5 (the "Apartment") at 8311 Garland Avenue, Silver Spring, MD, (the "Property"), filed a formal complaint with the Department (See pages 55-61 of Commission's Exhibit No. 7), in which he alleged that Garland Mews Limited liability Company and Lewis I. and Susan L. Winarsky, owners of the Property (collectively referred to as the "Respondents"):

1. issued him an improper, undated notice increasing his monthly rent from $480.00 a month to $510.00 a month, effective July 1, 1996, in violation of Section 29-30C(e) of the Montgomery County Code, 1994, as amended ("County Code");

2. in August/September 1996 improperly transferred to him the responsibility of utility payments without proper notice and without offering him a rent reduction commensurate with the actual cost savings accruable to the landlord, in violation of Section 29-30D(b) of the County Code;

3. entered his apartment without prior notice or consent, in violation of Section 29-26(q) of the County Code;

4. failed to make needed and necessary repairs in his apartment, including the repair of a defective refrigerator, in a timely and workmanlike manner, in violation of Chapter 26, Housing and Building Standards, of the County Code, which caused him to dispose of food which had spoiled and reduced the value of the leasehold; and,

5. assessed improper finance charges, late fees, penalties and other charges against him in violation of Section 29-26(o) of the County Code.

Roberts is seeking an Order from the Commission for the Respondents to:

1. immediately repair all of the housing code violations in his Apartment and common areas of the Property in a professional and workmanlike manner;

2. cease entering his Apartment without prior notice and consent;

3. refund to him all utility payments made since August/September 1996;

4. rollback the monthly rental rate to $480.00 a month;

5. compensate him for food lost because of a defective refrigerator; and,

6. permanently remove from his account all improper charges, fees and penalties.

Original Complaint - Respondents' Position

The Respondents contend that: (1) Roberts was given sufficient notice of the utility conversion, the amount of the rent reduction was proper, and the conversion was subsequently approved by the Department; (2) they entered into a Consent Agreement with the County regarding housing code violations at the Property that included a schedule for repairs; (3) the notice of rent increase issued to Roberts was proper; and (4) Roberts has denied access to Respondents' workmen who were attempting to make repairs to the Apartment. The Respondents failed to address the other allegations made by Roberts.

On April 2, 1997, Roberts filed a supplemental complaint in which he alleged that a portion of gas service at the Property had been discontinued based on the Respondents' non-payment of a past-due gas bill in the amount of $363.25, which resulted in the tenants in the building being without hot water and caused the issuance by the Department of an "Emergency Field Notice" to the Respondents to restore the gas service within 48 hours, which they did.

The Respondents contend that the gas service was temporarily discontinued due to a clerical billing error by Washington Gas and the problem was corrected immediately.

On December 9, 1997, Roberts submitted to the Commission an "Amendment of Complaint Based on Division of Code Enforcement Case File, Case No. 3310, Densil Roberts v. Garland Mews Limited Liability Company and Lewis I. and Susan L. Winarsky" in which he alleged, in addition to complaints previously asserted, that the Respondents failed to make needed and necessary repairs to correct numerous housing code violations in his Apartment during his tenancy after being put on notice by him and the Department.

Specifically, the Complainant asserts in his Amended Complaint that:

1. On October 10, 1996, an initial inspection of my apartment by Inspector Cecilia Kinna showed the existence of 31 code violations (pages 618, 626-629 of 'packet' [Hearing Record]). When these violations were not repaired in [a] timely manner, I filed my complaint with what was then the Office of Consumer Affairs, Division of Landlord-Tenant Affairs. One aspect of the complaint dealt with the unrepaired violations, including the major complaint, holes in the walls.

2. A January 6, 1997, notice to Respondents (page 604 of 'packet' [Hearing Record]) showed two additional violations.

3. In July 1997, [Civil] citations were issued [to Respondents] for non-abatement of seven violations (pages 427, 429, 431, 433, 435, 437, 439 [sic] of 'packet').

4. As of the date of this submission, three violations that were the subject of these citations are unabated, as are three other violations. A reinspection of this unit will be requested in order to facilitate the final repairs of these remaining violations.

In addition to previously requested relief, Roberts is seeking an Order from the Commission that:

1. Pursuant to Section 29-43 of the County Code, his tenancy be found defective;

2. Pursuant to Section 29-43(b) of the County Code, the Respondents must refund all rent money he paid to the Respondents from October 10, 1996, to the date of the issuance of the Panel's decision, to be refunded in full in a single payment. The Complainant cites the Commission's Order in the matter of Brooks, et al. v. Blair Park Partnership, and notes that the referenced Order was upheld on appeal in the Circuit Court of Montgomery County;

3. His "...tenancy be preserved in order for me to enjoy a legally compliant situation that has been brought about by my complaint and by the Commission's Orders;" and,

4. Pursuant to Section 29-43(b) of the County Code, "...these remedies be offered to all affected tenants, not just me."

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

1. Roberts moved into the Apartment at the Property on or about October 20, 1994. (See Commission public hearing transcript February 17, 1998, at page 24, lines 1-4), before the Respondents owned the Property.

2. Respondents Winarskys own and control Garland Mews Limited Liability Company and are the current owners of apartment #5 (the "Apartment") at 8311 Garland Avenue, Silver Spring, MD (the "Property"), a licensed multi-family Rental Facility in Montgomery County, MD, which they purchased in, and have continuously owned since, December 1995. At the time the Respondents purchased the Property, Roberts was already a tenant in the Apartment under a month-to-month lease and was paying $480.00 per month rent, utilities included (See Complainant's Exhibit No. C-49).

3. Although the summons issued to the Respondents relative to these proceedings required that they produce a copy of Roberts’ lease agreement, they failed to provide the Commission or submit into evidence at the hearing a copy of Roberts’ lease.

4. By an undated letter, the Respondents notified Roberts that, "Effective July 1, 1996, your new rent will be $510.00 per month, this represents an increase of approximately 6% over your current rent levels." (See Complainant's Exhibit No. C-29).

5. Respondent Lewis Winarsky testified at the hearing that he sent the undated notice of rent increase and notice of the proposed gas utility conversion to Roberts and all other tenants at the Property in April 1996 with an effective date of rent increase of July 1, 1996. However, the Respondents failed to provide any probative evidence regarding delivery of the notice to Roberts, such as a Certificate of Mailing or signed receipt.

6. The Commission credits the testimony of Roberts that it had been more than 12 months since the last rent increase, and that he began paying monthly rent at the rate of $510.00 per month as of July 1, 1996, and continued to pay that amount each month up to and including the last night of the public hearing (April 14, 1998.)

7. By the same undated letter sent to Roberts some time prior to July 1, 1996 (See Complainant's Exhibit No. C-29), the Respondents notified him that, "...when the necessary changes are made to the building, you will also be responsible for paying the cost of the gas service provided to your apartment, this includes heat and cooking. I expect the changes will be made during the Summer. My experience with other buildings and with the very efficient system which will be installed, suggests that these costs, on year round average basis, will be in the range of approximately $20 to $25 per month."

8. The Commission credits the testimony of Roberts that: (a) he received no further notification from the Respondents regarding the date the gas utility conversion would take effect, and (b) someone other than the Complainant established an account in his name with Washington Gas, account No. 2443.150517 (See Complainant's Exhibit No. C-21), on or about September 2, 1996, and (c) on October 2, 1996, he began receiving regular monthly bills which he paid thereafter.

9. By correspondence dated March 31, 1997 (See pages 78-84 of Commission's Exhibit No. 7), the Department's Investigator Michael Denney advised the Respondents' attorney, Mr. Plumb, that, "I have been informed by a tenant at 8311 Garland Avenue that when your Clients converted the utilities at that location (August/September 1996) instead of offering

tenants a rent reduction, they transferred utility costs and issued them a rent increase, without proper notice, at the same time. If substantiated, these allegations would not only contradict the statement made by [Respondent] Mr. Winarsky that no other utility conversions occurred at any other properties he owns in the County, but would also constitute serious violations of the County's landlord-tenant law and the State's Public Service Commission law."

10. The Commission credits the testimony of Mr. Giloley at the hearing on November 19, 1997, regarding the gas utility conversion at 8311 Garland Avenue, that:

(a) other complaints had been filed with the Department by tenants at 8716 Plymouth Street and 8800 Plymouth Street (See Commission Case Nos. T-12787 - Johnson; T-12823 - Farr/Volante; T-12825 - Jamilla; 131 - Collins; 2912 - Floyd; and, 3098 - Roberts/ Brown), other multi-family apartment complexes owned by the Respondents in Montgomery County, regarding the conversion of gas and electric utilities from master to individual metering in August/September 1996;

(b) Respondent Lewis Winarsky informed him that no other utility conversions had occurred at any other multi-family apartment complex he owned, operated or managed in the County during that time; and

(c) contrary to Mr. Winarsky's assertion, the Department subsequently learned that a gas utility conversion from master to individual metering took place during the same time-frame of August/September 1996 at 8311 Garland Avenue.

11. Roberts entered into the record of these proceedings (See Complainant's Exhibit Nos. C-20 to C-28) nine (9) original bills he received from Washington Gas for the period October 2, 1996, through October 1, 1997, in the total amount of $633.37. The Commission notes that of the $633.37 billed by Washington Gas, $10.11 are late charges. The Commission finds that Roberts paid Washington Gas the sum of $623.26 for gas service for the period of October 2, 1996 through October 1, 1997, as follows:

October 2, 1996 - October 30, 1996                      $ 19.54

October 30, 1996 - December 3, 1996                      83.29 $ .29 late fee

December 3, 1996 - January 3, 1997                        118.90 1.25 late fee

January 3, 1997 - February 4, 1997                          126.16 1.78 late fee

February 4, 1997 - March 6, 1997                             99.25 2.95 late fee

March 6, 1997 - April 4, 1997                                   86.29

April 4, 1997 - May 5, 1997                                      54.74 1.29 late fee

May 5, 1997 - July 2, 1997                                        24.09 2.55 late fee

September 2, 1997 - October 1, 1997                         11.00

Total paid to Washington Gas                                  $ 623.26 $ 10.11 total late fees

12. The average monthly gas bill for Roberts’ Apartment for the period October 2, 1996, through October 1, 1997, was $51.93, which is more than twice the "$20 to $25 per month" amount estimated by the Respondents in their undated utility conversion notice to Roberts (See Findings of Fact at No. 7 above).

13. Respondent Lewis Winarsky testified at the hearing on February 17, 1998, that when he purchased the Property in December 1995, oil was being used to heat the building that had been purchased from various contractors by the former owner and therefore, "...it was not possible to construct the oil consumption for [the] building in the same way that it was possible to construct or reconstruct consumption for these two other buildings [8716 and 8800 Plymouth Street]. And so in the case of [8311 Garland Avenue], I used the same kind of estimating factors that I would have used for other similar buildings."

14. Respondent Lewis Winarsky also testified at the hearing on February 17, 1998, that the reason he did not offer a rent reduction to Roberts as part of the proposed utility conversion was because "...the rents were substantially below market" at the time of the conversion.

15. The Commission finds that the notice of utility conversion issued to Roberts by Respondents did not contain an offer to reduce Roberts’ monthly rent, then $510.00 per month, in an amount commensurate with the actual utility consumption experienced by the landlord during the previous 24 months, as required by Section 29-30(d) of the County Code.

16. On November 10, 1997, Respondents' counsel, Clyde "Rocky" Sorrell, filed with the Commission a "Motion For Appropriate Relief," in which he requested, in addition to other relief sought (which is addressed in the "Motions" section of this Order), that the Commission, "[D]ismiss all allegations pertaining to Housing Code Violations set to be heard before the Commission on November 10, 1997." The Respondents' request for dismissal of the Housing Code Violations portion of the complaint was denied for the reasons given in the discussion of Motion No. 5 above, and that portion of the hearing was postponed until February 19, 1998. In addition, the Respondents were given copies of the files and documents compiled by the County's Division of Housing and Code Enforcement and afforded the opportunity to review those and any other departmental records prior to February 19th. Roberts was given the opportunity to amend his complaint regarding housing code violations. On December 9, 1997, Roberts submitted to the Commission an "Amendment of Complaint Based on Division of Code Enforcement Case File, Case No. 3310," in which he alleged, in addition to complaints previously asserted, that the Respondents failed to correct numerous housing code violations in his Apartment after being put on notice by him and by the Department.

17. In mid-December 1995, the Respondents sent notice to Roberts and other tenants at the Property (See page 57 of Commission's Exhibit No. 7) that the ownership and management of the Property had changed. In addition, the notice also requested that Roberts "...prepare a list or repairs which you believe should be made to your apartment and over time we will attempt to make them." In response to the Respondents' request, on or about December 29, 1995, Roberts

sent to the Respondents, together with his January 1996 rental payment in the amount of $480.00, the following list of nine (9) repairs needed in his Apartment: (a) broken refrigerator; (b) insufficient heat; (c) broken cupboard door over stove; (d) no control over hot water coming through the shower "I have been burnt on many occasions, complained and nothing has been done to improve the situation;" (e) kitchen blind needs to be replaced; (f) three outlets need to be repaired; (g) screens missing from two windows; (h) faucet head in bathroom defective; and (i) bathroom ceiling needs to be repaired.

18. On or about March 1, 1996, Roberts sent to the Respondents, together with his March 1996 rental payment in the amount of $480.00, notice that, "My fridge still needs to be replaced. I have to throw out food every week. Please see to this as soon as possible." (See page 59 of Commission's Exhibit No. 7).

19. The Commission credits the undisputed testimony of Roberts that in May 1996 he again notified the Respondents that the refrigerator had not been repaired, and that the Respondents sent two workmen to investigate the problem; the workmen inspected the refrigerator and informed Roberts that the compressor was defective and the refrigerator needed to be replaced.

20. At the public hearing on February 19, 1998, the Commission entered into the record of the hearing, as Commission’s Exhibit No. 12, the case file, notices of violation, history of inspections and reinspections, photographs, etc., compiled by the Department’s Division of Housing and Code Enforcement (See pages 192-1599 of the record), and as Commission’s Exhibit No. 13, the reinspection logs compiled by the Department’s Division of Housing and Code Enforcement (See pages 1600-1653 of the record).

21. On August 9, 1996, the Department’s Linda Bird notified the Respondents that the Department would be conducting a "triennial inspection" of "all public areas and a selected sample of dwelling units" at 8311 Garland Avenue would be inspected "within the next four weeks." (See page 646 of Commission's Exhibit No. 12).

22. The Commission credits the testimony of Inspector Kinna that as part of the scheduled Triennial License Inspection, she began inspecting the interior and exterior common areas of the Property and the individual apartment units, including Roberts’ Apartment, on about October 10, 1996.

23. On November 13, 1996, the Department’s Joe Giloley issued the Respondents a Notice of Violation (See pages 619 to 629 of Commission's Exhibit No. 12) in which he cited 95 violations of the County's Housing Code—30 violations in Roberts’ Apartment, 18 violations in other apartments, and 47 violations relating to the interior and exterior common areas of 8311 Garland Avenue—and ordered the Respondents to correct the violations by the week of December 9, 1996.

24. The Commission finds that of the 95 Housing Code violations cited by the Department on November 13, 1996, in Roberts’ Apartment and the interior and exterior common areas of the Property, the following 25 violations posed a threat to the health and safety of Roberts and other tenants on the Property:

25. Several of the Housing Code violations cited by the Department on November 13, 1996, (including defective refrigerator, defective electrical outlets and defective bathroom ceiling) had been previously reported to the Respondents in writing by Roberts 11½ months earlier, on or about December 29, 1995 (See Complainant's Exhibit No. C-49).

26. By a letter dated January 6, 1997 (See pages 603 - 614 of Commission's Exhibit No. 12), Inspector Kinna advised the Respondents that she had completed a reinspection of the Property and had determined that 77 of the 95 Housing Code violations cited on November 13, 1996, had not been corrected, and only 6 of the serious violations (No. 10 - cracked sidewalk, No. 20 - sidewalk settlement, No. 39 - improperly installed exit sign, No. 41 - fire alarm instructions, No. 78 - defective refrigerator, and No. 95 - infestation of mice) had been corrected. Therefore, as of January 6, 1996, 19 serious code violations had not been corrected.

27. The January 6, 1996, reinspection notice also identified seven (7) additional Housing Code violations of which two (2) were in the common areas of the Property and two (2) were in Roberts’ Apartment (See page 604 of Commission's Exhibit No. 12).

28. The Commission credits the testimony of Mr. Giloley that subsequent to the issuance of the above-referenced Notices of Violation to the Respondents, a series of meetings took place between himself and Respondent Lewis Winarsky regarding a time-table for completion of all of the repairs previously ordered by the Department.

29. On March 5, 1997, the Department and the Respondents entered into a "Settlement Agreement" (See pages 65-70 of Commission's Exhibit No. 7) regarding the disposition of all outstanding Housing Code violations at apartment complexes owned by the Respondents in Montgomery County, MD, including 8311 Garland Avenue, for the purpose of prioritizing and scheduling repairs for the abatement of all housing code violations, and set a timetable for the abatement of all repairs of between 30 to 90 days for most violations. In addition to other elements contained in it, the Settlement Agreement required the Respondents to make repairs as follows:

30. The Commission credits the testimony of Mr. Giloley regarding Respondent Lewis Winarsky's compliance with the March 5th Settlement Agreement, that, "... his lack of cooperation was quite apparent."

31. Based on the time-table contained in the Settlement Agreement, on July 16, 1997, approximately 133 days after the Settlement Agreement was executed, Inspector Kinna conducted a reinspection of Roberts’ Apartment and the common areas of the Property (See pages 462 to 464 of Commission's Exhibit No. 12) at which time she observed that 13 Housing Code violations originally cited on November 13, 1996, had not been corrected.

32. On July 18, 1997, Inspector Kinna issued Respondent Lewis Winarsky, through his attorney, Mr. Plumb, twelve (12) Civil Citations Class A violations (See pages 417 to 440 of Commission's Exhibit No. 12) and fines for failing to make repairs in Roberts’ Apartment and the interior and exterior common areas at 8311 Garland Avenue. The following civil citations relate to seven (7) uncorrected and/or un-repaired Housing Code violations in Roberts’ Apartment:

A. Civil Citation No. 6Z33282692 (See page 427 of Commission's Exhibit No. 12) is a Class A violation and $200.00 fine for failure "...to make repairs to the windows in the unit to restore proper operation," in violation of Section 26-8(b) of the Montgomery County Code.

B. Civil Citation No. 0Z33282683 (See page 429 of Commission's Exhibit No. 12) is a Class A violation and $500.00 fine for failure "...to repair the kitchen door to provide a facility that functions safely and effectively," in violation of Section 26-8(i) of the Montgomery County Code.

C. Civil Citation No. 1Z33282684 (See page 431 of Commission's Exhibit No. 12) is a Class A violation and $500.00 fine for failure "...to repair the living room closet door to provide a facility that functions safely and effectively," in violation of Section 26-8(i) of the Montgomery County Code.

D. Civil Citation No. 2Z33282685 (See page 433 of Commission's Exhibit No. 12) is a Class A violation and $500.00 fine for failure "...to repair the bedroom door to provide a facility that functions safely and effectively," in violation of Section 26-8(i) of the Montgomery County Code.

E. Civil Citation No. 3Z33282686 (See page 435 of Commission's Exhibit No. 12) is a Class A violation and $500.00 fine for failure "...to repair the bedroom closet door to provide a facility that functions safely and effectively," in violation of Section 26-8(i) of the Montgomery County Code.

F. Civil Citation No. 4Z33282687 (See page 437 of Commission's Exhibit No. 12) is a Class A violation and $500.00 fine for failure "...to repair the bathroom door to provide a facility that functions safely and effectively," in violation of Section 26-8(i) of the Montgomery County Code.

G. Civil Citation No. 5Z33282688 (See page 439 of Commission's Exhibit No. 12) is a Class A violation and $200.00 fine for failure "...to repair the walls around plumbing lines in the kitchen," in violation of Section 26-8(a) of the Montgomery County Code.

The following civil citations relate to the three (3) uncorrected and/or un-repaired Housing Code violations in the interior and exterior common areas of the Property:

A. Civil Citation No. 3Z33282679 (See page 421 of Commission's Exhibit No. 12) is a Class A violation and $250.00 fine for failure "...to repair the driveway retaining wall to provide an accessory structure that is structurally sound and maintained in good repair," in violation of Section 26-10(j) of the Montgomery County Code.

B. Civil Citation No. 4Z33282680 (See page 423 of Commission's Exhibit No. 12) is a Class A violation and $250.00 fine for failure "...to scrape and repaint exterior wood surfaces to protect against water seepage and decay," in violation of Section 26-8(g) of the Montgomery County Code.

C. Civil Citation No. 5Z33282681 (See page 425 of Commission's Exhibit No. 12) is a Class A violation and $200.00 fine for failure "...to provide the required guardrails and handrail for the front stairs and stoop," in violation of Section 26-8(c) of the Montgomery County Code.

33. On August 25, 1997, Inspector Kinna conducted another reinspection of the Complainant's Apartment and the common areas of the Property (See page 447 of Commission's Exhibit No. 13) at which time she observed that the following four (4) Housing Code violations, originally cited on November 13, 1996, had still not been corrected:

(a) failed to provide the required guardrails and handrail for the front steps and stoop

"no handrail installed on right side of front steps-guardrails have been installed on stoop, however, the balusters have been placed between 5" and 6" apart, not acceptable since the code requires the widest distance to be no more than 4""

(b) failure to scrape and repaint exterior wood surfaces

"some painting done, peeling paint still observed"

(c) failure to make repairs to the windows in unit to restore proper operation

"broken sash cords in living room and bedroom - windows cannot stay open without being propped"

(d) failure to repair the bedroom door to provide a facility that functions effectively

"doesn't latch shut"

34. On November 7, 1997, the Respondents, through their attorney Mr. Sorrell, and the County Attorney, Charles W. Thompson, Jr., on behalf of Montgomery County, entered into a "Settlement of Pending Code Violation Notices" (See Commission's Exhibit No. 14) as an alternative to enforcement of civil citations issued to the Respondents for non-compliance with the March 5, 1997, Settlement Agreement and the schedule of abatement of outstanding housing code violations, including the code violations in Roberts’ Apartment and the common areas at 8311 Garland Avenue.

35. The Commission finds that the refrigerator in Roberts’ Apartment was not functioning properly and not keeping perishable food at a cold enough temperature at the time the Respondents purchased the Property in December 1995. The Commission finds further that this problem was first reported to the Respondents by Roberts on or about December 29, 1995 (See Complainant's Exhibit No. C-49), and it was cited as a violation of the Housing Code by Inspector Kinna 11 months later in the Notice of Violation (Violation No. 78) dated November 13, 1996 (See page 627 of Commission's Exhibit No. 12). The Commission finds, based on the reinspection conducted by Inspector Kinna, that the improperly functioning refrigerator in Roberts’ Apartment was not repaired or replaced until on or about December 30, 1996, and therefore, Roberts was without the full use of a properly functioning refrigerator for one full year (January 1996 through December 1996).

36. Although Roberts testified that the failure of the refrigerator to properly cool caused him to dispose of spoiled food, he failed to introduce into evidence at the hearing any probative evidence, such as receipts for meals or replacement food.

37. The Commission credits the testimony of Roberts that when the Respondents' workmen attempted repairs of the plumbing pipes in the Property in the Spring of 1996, including his Apartment, they cut holes in the walls in the living room, kitchen and bathroom of his Apartment which they failed to repair. In support of his testimony, Roberts entered into the record of these proceedings two (2) photographs, identified as Complainant's Exhibits C-30 and C-31, dated March 31, 1997, showing the holes in the walls. The Commission finds that the photographs fairly and accurately depict the condition of the walls in Roberts’ Apartment on

March 31, 1997. The Commission further finds that the holes in the walls were cited by Inspector Kinna, in the Department's Notice of Violation dated November 13, 1996 (Violation No. 76), and the holes were not repaired as of July 18, 1997, the date Inspector Kinna issued Civil citation No. 5Z33282688 (See Findings of Fact at No. 33 above).

38. The Commission credits the testimony of Inspector Kinna that she observed both building-wide roach infestation and vermin (mice) infestation in the Property during her initial inspection of the Property in October 1996, and that the vermin infestation was not noted as abated until April 21, 1997. The Commission credits the testimony of Roberts that the problem of roach infestation persisted in his Apartment and the common areas of the Property from the Spring of 1996 up to and including the hearing date of March 9, 1998, and that scheduled extermination, such as the one scheduled for October 27, 1997 (See Complainant's Exhibit No. C-50), never occurred. The Commission finds therefore, that in addition to other violations cited by the Department, roach infestation existed in Roberts’ Apartment and the common areas of the Property for at least two years (March 1996 to March 1998).

39. The Commission finds that there were numerous Housing Code violations in Roberts’ Apartment and the interior and exterior common areas of the Property from the time the Respondents purchased the Property until at least August 1997, and at least 25 of those violations constituted a threat to the health and safety of Roberts (See Findings of Fact at No. 25 above). The Commission finds further that Roberts properly reported many of these conditions to the Respondents on or about December 29, 1995, and that the Respondents failed to respond or make the needed and necessary repairs in a timely manner which reduced the value of Roberts’ leasehold tenancy.

40. The Commission also finds that the Respondents were properly notified by the Department on November 13, 1996, of the existence of 95 Housing Code violations in the apartment units, including Roberts’ Apartment, and the interior and exterior common areas of the Property, and that the Respondents were given ample opportunity, including various extensions of compliance deadlines and the execution of the "Settlement Agreement," to make the repairs. The Commission further finds that the Respondents failed to make the required repairs and to fully abate all of the violations until on or about August 25, 1997, 20 months after first being put on notice by Roberts and 9 months after being put on notice by the Department. As a result of the failure of the Respondents to make needed and necessary repairs in Roberts’ Apartment and the interior and exterior common areas of the Property, many of which posed a threat to the health and safety of Roberts, substantially reduced the value of his leasehold tenancy for the period January 1996 through August 1997.

41. On or about March 25, 1996, the Respondents sent Roberts an account statement that listed, in addition to rent paid, a $20.00 fee dated February 29, 1996, for "Service Call - Denied Access." (See pages 000138 to 000142 of Respondents' Exhibit No. 15). Roberts testified several times during the hearing that at no time did he ever deny access to the Apartment to the Respondents' agents or workmen. There is no evidence in the record that the Respondents proceeded with collection efforts against Roberts or that Roberts ever paid the $20.00 fee to the Respondents.

42. Respondent Lewis Winarsky testified at the hearing that the $20.00 fee was based on Roberts’ refusal to allow his maintenance man, Mr. Mader, to enter the Apartment to make repairs and that the $20.00 was the actual cost he incurred for the service call. The Respondents failed to enter into evidence at the hearing any probative evidence, such as a paid bill for receipt for the subject service call. The Commission credits the testimony at the hearing on March 9, 1998, of Commission's witness, George Mader, who is the Respondents' maintenance man, that Roberts’ never denied him access to the Apartment at any time to make repairs. The Commission is not swayed by Respondent Lewis Winarsky's testimony that Mr. Mader's testimony was wrong. The Commission finds, therefore, that at no time during his tenancy did Roberts deny access to the Apartment to the Respondents, their agents or workmen and therefore, the $20.00 service call charge is disallowed.

43. The Commission credits the testimony of Roberts that on at least one occasion Respondents' agents/workmen entered his apartment without his prior knowledge or consent to make repairs, and that they failed to clean up after themselves before leaving. Roberts’ failed to provide any probative evidence or testimony, such as a cleaning bill, to demonstrate that he was in any way damaged as the result of the improper entry into his Apartment.

44. As of the date of the final night of this hearing, April 14, 1998, Roberts has been a tenant in his Apartment for more than three (3) years. The monthly rent was $480.00 per month, January 1996 through June 1996, and $510.00 per month, July 1996 through April 1998.

Based upon a preponderance of the evidence contained in the record, the Commission on Landlord-Tenant Affairs concludes:

1. Pursuant to Section 29-30C(e) of the County Code the Respondent was required to give Roberts notice of the rent increase "at least sixty (60) days prior to the effective date of such increase" and no "more than one (1) rent increase within twelve (12) months from the date of the last increase." Based on Roberts’ testimony that it had been more than a year since the last rent increase from the previous owner, the Respondents were within their right to increase his rent. Although the Respondent's notice of rent increase was not dated, Roberts did not dispute that he received the notice at least sixty (60) days prior to the effective date of the increase, July 1, 1996, and that he began paying the new rent as of that date. The Commission concludes therefore that no violation of applicable County law has occurred regarding the notice of rent increase.

2. Pursuant to Section 29-30D(b)(1) and (2) of the County Code, when a landlord desires to transfer the responsibility for payment of utilities from the landlord to the tenant he has two primary responsibilities: (1) issue notice of the proposed conversion to the affected tenant at least two (2) months prior to the effective date of the conversion, and (2) offer to reduce the affected tenant's rent in an amount commensurate with the actual utility consumption experienced by the landlord during the previous twenty-four (24) months.

The responsibility for payment of the gas utility transferred from the Respondent to Roberts as of September 2, 1996. Although the Respondent's notice of gas utility conversion was not dated, Roberts did not dispute that he received the notice, which also contained the notice of rent increase, at least sixty (60) days before July 1, 1996. The Commission concludes therefore, that the notice of the proposed gas utility conversion was received by Roberts at least two (2) months prior to the effective date of the conversion.

The transfer of responsibility for utility payments represents an actual cost savings for the landlord as he no longer has to pay for those utilities, and an actual increase in the costs a tenant pays to occupy an apartment. The purpose of this provision of the County Code is to insure that once a tenant has received a rent increase, which remains in effect for one full year pursuant to Section 29-30C(e) of the County Code, no additional contractual charges are added. In other words, once the rental amount is set for the year, the cost savings experienced by the landlord as the result of a utility conversion must be passed on to the affected tenant in the form of a rent reduction. Thus, in theory, the rent reduction plus the utility costs balance out, and the tenant’s monthly expenses remain essentially the same for the balance of the year.

In this case, the Respondents issued Roberts a $30.00 per month rent increase (6.25%) effective July 1, 1996. Then two (2) months later, in September 1996, the Respondents transferred responsibility for payment of the gas utility to Roberts which reduced the Respondents’ operating expenses and increased Roberts’ monthly expenses by approximately $52.00 (See Findings of Fact at No. 12 above). Furthermore, the Respondents failed to offer Roberts a rent reduction at the time of the conversion, in violation of Section 29-30D(b)(1) and (2) of the County Code, although they provided similarly situated tenants at nearby apartment complexes they own (See Case Nos. T-12787, Johnson v. Winarsky; T-12823, Farr/Volante v. Winarsky; T-12825, Jamilla v. Winarsky; and, 131, Collins v. Winarsky) with an offer of rent reduction during the same period of time. The Respondents’ explanation for not offering a similar rent reduction to Roberts— that Roberts’ rent was below market rate—is not persuasive and not statutorily supported. Furthermore, the Respondents had just two months before they raised Roberts’ rent from $480.00 to $510.00 a month, and based on Respondent Lewis Winarsky’s testimony, he was aware that he could have raised Roberts’ rent to whatever amount he wanted, presumably to an amount he considered to be market rent; but he did not.

3. The Respondents' notice of gas utility conversion did not contain an offer to reduce Roberts’ rent in an amount commensurate with the utility consumption experienced by the landlord during the previous twenty-four (24) months, in violation of Section 29-30D(b)(2) of the County Code. Although Respondent Lewis Winarsky speculated, based on his experience, that Roberts’ average monthly cost for gas service based on year-round use would be between $20.00 and $25.00, that proved to be grossly inaccurate. The average monthly cost experienced by Roberts’ was $51.93, not including the months of July and August 1996. In the absence of any utility consumption data from the Respondents for the prior twenty-four (24) months, the Commission must rely on the utility cost experienced by Roberts which the Commission determines to be $52.00 per month. The failure of the Respondents to issue Roberts a notice of utility conversion that contained an offer of rent reduction constitutes a violation of Section 29-30D of the County Code, and has caused a defective tenancy.

4. Although Respondents' counsel argued at the hearing the Housing Code violations cited by the Department in November 1996 were never proven, the Commission concludes that all of the deficiencies cited by the Department were violations of the County's Housing Code, and the Respondents were given proper notice of the violations and ample opportunity to make repairs.

5. The Respondents' failure to repair and to correct the 95 Housing Code violations in Roberts’ Apartment and the interior and exterior common areas of the Property, including many which posed a threat to the health and safety of Roberts’ (malfunctioning refrigerator for 11 months, roach infestation for 20 months, vermin infestation for 6 months, missing handrails and guardrails for 20 months, large holes in bathroom and kitchen walls for 16 months, etc.), even though they were given ample opportunity to make repairs, including extensions of compliance deadlines and a Settlement Agreement that both prioritized the violations and set a reasonable timetable for their abatement: (a) constitutes a violation of Chapter 26, "Housing and Building Maintenance Standards," of the County Code; (b) constitutes a violation of Section 29-30(a)(1), (2) and (3) of the County Code; (c) posed an on-going threat to Roberts’ health and safety; and (d) caused a defective tenancy.

6. The Respondents' failure to fully correct the Housing Code violations in Roberts’ Apartment and the interior and exterior common areas of the Property until on or about August 25, 1997, 20 months after first being put on notice by Roberts (December 29, 1995) and nine (9) months after being put on notice by the Department (November 13, 1996), denied Roberts full use and enjoyment of his apartment and the common areas of the Property for a period of 20 months (January 1996 through August 1997) and substantially reduced the value of his leasehold tenancy, even though he was paying rent in full during that period of time. Based on the above, the Commission concludes that the value of Roberts’ leasehold was reduced for 20 months of his tenancy, January 1996 through August 1997.

7. Pursuant to Sections 29-26(d) of the County Code, all landlords in the County are required to maintain the rental facility in accordance with chapter 8, titled "Buildings," chapter 22, titled "Fire Safety Code," chapter 26, titled "Housing Standards," and chapter 59, titled "Zoning"...as an express warranty of habitability and covenant to repair." (Emphasis added).

Furthermore, pursuant to Section 29-30 of the County Code, landlords are specifically obligated to, "...reasonably provide for the maintenance of the health, safety and welfare of all tenants and of all individuals properly on the premises of a rental facility," including: (1) complying with all applicable provisions of any federal, state or county statute, code, regulation or ordinance governing the maintenance, construction, use or appearance of the dwelling unit and rental facility; (2) keeping all areas of the building, grounds, facilities and appurtenances in a clean, sanitary and safe condition; (3) making all repairs and arrangements necessary to put and keep the dwelling unit and the appurtenances thereto in as good a condition as they were, or ought by law or agreement to have been, at the commencement of tenancy; and (4) maintaining all electrical, plumbing and other facilities and conveniences supplied by the landlord in good working order.

By a residential lease agreement, the tenant agrees to pay a pre-determined amount of rent each month for the use and enjoyment of the leased premises, and has the expectation that the leased premises will be delivered to them in complete compliance with all applicable laws, including the Housing Code, free of defects, and without housing code violations, and that the landlord will provide regular maintenance to the property and make repairs to keep the leased premises in good condition during the tenancy. In other words, the tenant expects to receive full value for their rent. The tenant’s obligations include keeping the unit clean and sanitary, disposing of garbage and refuse, and properly using the fixtures and appliances.

Should a landlord fail to voluntarily comply with his maintenance and repair obligations in a timely manner after being put on notice by the tenant and/or the County’s Housing Code Enforcement Office, the tenant’s use and enjoyment of the leased premises may be diminished and the value of the leasehold may be reduced; in that case, the tenant is no longer receiving full value for the rent paid.

Furthermore, pursuant to Section 29-43(b)(1) of the County Code, if the Commission finds that a landlord has caused a defective tenancy by failing to make repairs, "...all affected tenants may be entitled to one or more or all or part of the following remedies...return of...all rental monies already paid to the landlord from the period the landlord was notified of the condition..." Although Roberts has requested a 100% refund of all rent paid to the Respondents during the period of time housing code violations existed in the Apartment, as was ordered in a similar Commission case, Brooks, et al. v. Blair Park Partnership, it is up to this Hearing Panel to determine if the circumstances of this case warrant such an abatement of rent.

In this case, the Respondents, who have been apartment landlords in the County for at least 14 years, demonstrated a callous disregard towards Roberts by: (1) failing to maintain and make needed and necessary repairs to the Apartment and common areas of 8311 Garland Avenue, after being put on notice by Roberts, in violation of Section 29-30 of the County Code; (2) failing to maintain and make needed and necessary repairs to the Apartment and common areas of 8311 Garland Avenue, after being put on notice by the Department, in violation of Chapter 26, "Housing and Building Maintenance Standards" of the County Code; and (3) violating the Settlement they entered with the Department for the repair of all outstanding Housing Code violations, including a schedule of repairs, and failing to make those repairs within the agreed upon time-frames which resulted in the issuance of Class A civil citations.

Based on the above, the Commission holds that Roberts’ use and enjoyment of his Apartment and common areas of 8311 Garland Avenue were diminished and the value of the leasehold was reduced by 25% for the period of 20 months, January 1996 through August 1997. The determination to abate the rent by 25% is based on the Commission’s review of all the facts and circumstances of this case. In the Brooks, et al. v. Blair Park Partnership case, cited by Roberts and other Complainants in these proceedings, the Commission provided for rent abatement of 100% of the rent paid. However, in that case, unlike the instant case, the landlords, Blair Park Partnership, permitted both serious Fire Safety Code violations, as well as numerous Housing Code violations to continue uncorrected for 141 days.

In the instant proceedings, the Housing Code violations of which the Respondents had notice and which they failed to correct in a timely manner include certain health and safety violations but do not include Fire Safety Code violations. Accordingly, in the absence of Fire Safety Code violations, the Commission holds that the circumstances of this case do not warrant a 100% refund of rent, but rather, based on the existence of the numerous uncorrected Housing Code violations, including certain health and safety violations, the rent refund ordered by the Commission in this case shall be 25% of the rent paid during the period of time the Housing Code violations existed.

8. The Commission holds that the execution of the November 17, 1997, "Settlement of Pending Code Violation Notices" in no way relieved the Respondents of their legal obligations under the County Code to make needed and necessary repairs to Roberts’ Apartment in a timely and workmanlike manner; and further, that the said Settlement was entered into by the Respondents solely as an alternative to paying fines levied by the County for non-compliance with the Housing Code, and did not excuse them from their obligations to their tenants.

9. Based on the Commission's finding that "...at no time during his tenancy did Roberts deny access to the Apartment to the Respondents, their agents or workmen..." the assessment of the $20.00 service call fee is disallowed. Furthermore, in the absence of a written lease between Roberts and the Respondent, there is no evidence in the record obligating Roberts to pay such a fee, and no authority for the Respondent to assess such a fee.

10. Pursuant to Section 29-26(q) of the County Code, the Respondents and/or their agents and workmen have the right "to access to any dwelling unit, after due notice to the tenant, and without objection from the tenant, in order to make necessary repairs" In the matter of Brooks, et al. v. Blair Park Partnership, the Commission determined that "due notice to the tenant" means at least 24 hours prior notice. The Commission concludes that on at least one occasion the Respondents workmen entered Roberts’ Apartment without giving him at least 24 hours prior notice in violation of Section 29-26(q) of the County Code.

8. Although Roberts raised this issue in the Supplemental Complaint he filed with the Commission on April 2, 1997, he failed to provide any probative evidence or testimony that he was in any way damaged by less than 24 hour interruption of gas service to the Property. Therefore, this portion of the Complaint is dismissed.

On March 14, 1997, Shawn Brown and Michelle Roberts ("Brown and Roberts"), tenants in apartment #6 (the "Apartment") at 8716 Plymouth Street, Silver Spring, MD, the same apartment building where Complainants Johnson and Farr and Volante resided, filed a formal complaint with the Department (See pages 53-54 of Commission's Exhibit No. 7) in which they alleged that the Respondents:

1. improperly hooked up the utilities at the Property which has caused them to receive high utility bills, even during periods when the thermostat is turned off, which was confirmed by Mr. Pinkney, a technician from Washington Gas; and,

2. set up the utility accounts in their names and they were charged an improper set-up fee by Washington Gas.

Brown and Roberts are seeking an Order from the Commission for the Respondents to reimburse them for all utility costs they incurred since June 15, 1996, the date they took possession of the Apartment.

The Respondents contend that: (1) Brown and Roberts’ accounts with Pepco and Washington Gas were set up in the normal course of business when the Property’s utilities were converted from master metering to individual metering; and (2) the gas-fired boilers were properly installed under permit by a licensed plumber.

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

1. As determined above, the Respondents are the current owners of Apartment #6 at 8716 Plymouth Street, Silver Spring, MD, a licensed multi-family Rental Facility in Montgomery County, MD, which they purchased in July 1995.

2. On May 18, 1996, Brown and Roberts signed and entered into a one-year lease agreement (the "Lease") with the Respondents for the rental of the Apartment which commenced on June 15, 1996, and expired on May 31, 1997. (See pages 000014 to 000018 of Respondents' Exhibit No. 15).

3. The gas and electric utilities at the Property were converted from master metering to individual metering by Washington Gas and Potomac Electric Power Company ("Pepco") prior to the execution of the Lease.

4. Paragraph 2(b) of the subject Lease states: "Tenant will pay the gas and electric utility bills as they become due."

5. Brown and Roberts submitted, as part of their Original Complaint, copies of gas bills from Washington Gas, Acct. No. 2497.056610, for their Apartment, #6 at 8716 Plymouth Street, Silver Spring, MD, from the commencement of the account, June 15, 1996, through March 6, 1997, itemized as follows:

June 15, 1996 - November 19, 1996 157 billing days          $ 41.80

November 19, 1996 - December 3, 1996 14 billing days        29.24

December 3, 1996 - January 3, 1997 31 billing days              97.22

January 3, 1997 - February 4, 1997 32 billing days                31.65

February 4, 1997 - March 6, 1997 30 billing days                   8.25

Total:                                                                                $208.16

The Commission finds that the total amount paid to Washington Gas by Brown and Roberts for gas service during the 8 month period covered July 1996 to February 1997 is $208.16 (Note: this figure does not include a $40.00 "Service Initiation Charge."

6. In January 1996, five (5) months before Brown and Roberts moved into the Apartment at the Property, the Respondents’ contractor, DiBattista Plumbing & Heating Company, installed six individual gas-fired boilers at the Property, one boiler to serve each of the six individual apartments. Proper permits for the installation were obtained from the appropriate government and regulatory agencies. (See Commission's Exhibit No. 4).

7. Based on a complaint filed with Washington Gas by Brown and Roberts’ neighbor, Jim Johnson (See Commission’s Case No. Case No. T-12787), on February 7, 1997, Washington Gas Appliance Service Technician Herb Pinkney inspected the boilers at the Property and found that: (a) a couple of the gas meters to individual apartments were off; (b) the trunk lines from all six boilers were hot; and (c) all six boilers were tied together by one main trunk line. The Commission credits the testimony of Mr. Pinkney, a Commission witness who testified on November 12, 1997, that based on his inspection he determined that if a tenant were the only one home in the building and heating his/her apartment, he/she would be heating the apartments where the gas meters were turned off.

8. On February 7, 1997, Mr. Pinkney placed a Red Tag "Notice of Hazardous Condition" on the gas boiler serving Brown and Roberts’ Apartment (See Respondents’ Exhibit No. 2) which stated, "[A]ll boilers are tied together at the outlet water lines. Cust[omer] in #2 home all the time takes care of heat for everybody. Outlet water lines must be separated." The Commission credits the testimony of Mr. Pinkney that the condition described on the Red Tag was not hazardous and did not pose a threat to the health or safety of Brown and Roberts or any other occupant in the building.

9. By letters dated February 12, 1997, and March 13, 1997 (See pages 72-77 of Commission’s Exhibit No. 7), the Department notified the Respondents, directly and through their attorney Mr. Plumb, of Mr. Pinkney’s observations and action to "red tag" the boilers at he Property. The referenced letters also requested that the Respondents provide the Department within ten (10) calendar days, in addition to other items, "a written report from a licensed plumber explaining what actions are required to abate the [Washington Gas] notice of violation and [to] bring the boilers into compliance with all applicable codes and regulations."

10. By a letter dated February 21, 1997 (See Commission’s Exhibit No. 3), addressed to "Whom It May Concern," Nick DiBattista, President, DiBattista Plumbing & Heating Company, Inc., the company that installed the subject boilers at the Property, stated the following:

11. On March 18, 1997, the heating system (including boilers, piping, thermostats, valves and other mechanical and electrical equipment) at the Property was inspected by Scott Kaufman, a registered professional engineer, Joseph "Skip" Walker, Claxton Walker & Associates, a certified building inspector, and Philip Peluso, Supervisor, Appliance Service Technician, Washington Gas Company. Also present for the inspection were the Department's Joe Giloley and Michael Denney, and Respondents' attorney Robert Plumb.

12. On April 1, 1997, Mr. Walker produced a written report of his observations and findings (See pages 89-93 of Commission's Exhibit No. 7) which was sent to the Respondents on April 14, 1997 (See pages 87-88 of Commission's Exhibit No. 7).

13. The Commission credits the testimony of Mr. Kaufman, a Commission witness who testified on November 12, 1997, that: (a) he designed similar heating/boiler systems for the Respondents for other apartment buildings they own; and (b) based on his inspection of the subject boilers, he concluded that the scenario described by Mr. Pinkney, i.e. that the gas service to one apartment could be shut off and that unit could still receive hot water heated by other boilers, was possible, but it could be easily corrected with the installation of "aquastat" controls on each boiler to prevent the circulating pump from coming on if there were no gas service.

14. The Commission credits the testimony of Mr. Peluso, a Commission witness called to testify on November 17, 1997, that based on his inspection of the subject boilers: (a) no safety problems were present; and (b) the only problem he observed concerned the circulating pump, i.e. that the circulating pump on a particular individual boiler could be turned on even if the customer’s gas service were cut off, and that person would receive hot water in their radiators heated by one or more of the other boilers. Mr. Peluso further testified that installing "aquastat" controls on each boiler would solve the problem.

15. The Commission credits the testimony of Mr. Walker, a Commission witness called to testify on November 17, 1997, that based on his inspection of the subject boilers, it was possible for one of the six boilers at the Property not to have gas service and for that tenant to engage the thermostat in his/her apartment and receive heat generated by the other five boilers. Mr. Walker testified that "we found that that could happen...You could turn your gas off and use your circulator to circulate the heat from the other people's boilers." He further testified that the installation of an "aquastat" control on each boiler to prevent it from circulating if the boiler was not fired would solve the problem.

16. Respondent Lewis Winarsky testified at the hearing on November 17, 1998, that he received the written report produced by Mr. Walker, dated April 1, 1997 (See pages 89-93 of Commission's Exhibit No. 7), and until that time, he was unaware that a potential problem existed with the subject boilers. He further testified that he intended to have the recommended "aquastat" controls installed on all of the boilers at the Property by the end of July 1997, but his contractor, DiBattista Plumbing & Heating Company, "kept putting me off." Mr. Winarsky also testified that he had accepted several bids from other contractors to install the "aquastat" controls and they would be installed within two to four weeks, "depending on the contractor." At the request of the Commission, Mr. Winarsky testified that within one week he would submit a copy of the one bid he received; he failed to submit a copy of the bid to the Commission.

17. The Commission credits the testimony of Respondent Lewis Winarsky on February 17, 1998, that the recommended "aquastat" controls were installed on the boilers at the Property in late December 1997 or early January 1998. In support of his testimony, Mr. Winarsky submitted into the record a paid receipt from Adams Heating and A/C Company (See Respondents’ Exhibit No. R-5) indicating that the following work had been performed: (a) a Honeywell C645C-1020 gas pressure switch on each gas boiler gas line, and (b) the existing electric shut off valves were re-wired through the pressure switches to close the valve in a loss of gas pressure situation. With the valve closed, no water can circulate through the system.

18. Prior to the installation of the "aquastat" controls, the individual gas-fired boilers were improperly installed at the Property in such a way that if gas service were disconnected to one or more boilers, or a boiler malfunctioned, tenants in those units could draw hot water heated and paid for by other tenants in the Property. The Commission finds, based on the testimony of Mr. Pinkney, that such a problem existed at the Property in February 1996.

19. The Respondents failed to correct the problem with the subject boilers by installing the recommended "aquastat" controls until on or about January 1, 1998, nearly 2 years after Mr. Pinkney's inspection and the attachment of Red Tags, and approximately 9 months after the issuance of Mr. Walker's report, findings, and recommendations. The Commission finds that during the entire time Brown and Roberts paid for gas service (July 1996 through February 1997) "aquastat" controls were not installed on the boilers at the Property.

20. Brown and Roberts failed to produce any probative evidence or testimony regarding this allegation. The Commission finds that there is insufficient evidence in the record of these proceedings to make any findings regarding this allegation and therefore, it is dismissed.

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

1. On May 18, 1996, Brown and Roberts signed and entered into a one-year Lease with the Respondents for the rental of the Apartment, and pursuant to the terms and conditions of the Lease, Brown and Roberts were required to pay $540.00 a month rent and establish accounts with Washington Gas and Pepco for the payment of gas and electric utilities.

2. The six (6) individual gas-fired boilers installed by the Respondents at 8716 Plymouth Street prior to the commencement of Brown and Roberts’ tenancy, including the boiler servicing their Apartment, were improperly installed and maintained in violation of Section 26-30(a)(4) of the Montgomery County Code, and as a result, gas service to one apartment could be shut off and that unit could still receive hot water heated and paid for by other tenants in the building. The Commission concludes, based on the testimony of Mr. Pinkney, that such a problem existed at the Property in February 1996, and this condition caused a defective tenancy. The Commission is not swayed by Respondent Lewis Winarsky's testimony that he was unaware of the problem until April 1996, when the Claxton Walker & Associates report was issued. Washington Gas issued "red tags" on the boilers on February 7, 1996, and Respondent Lewis Winarsky was notified of the problem by the Department on February 12, 1996. The Commission finds that the Respondents were aware of the malfunctioning boilers at the Property in April 1996, the month before they entered into the Lease with Brown and Roberts, and two (2) months before the commencement of Brown and Roberts’ tenancy on July 1, 1996; the Respondents failed to disclose the problem to Brown and Roberts at the time they signed the Lease.

Furthermore, although Respondent Lewis Winarsky testified at the hearing that he intended to correct the problem by installing the recommended "aquastat" controls on the boilers by the end of July 1997, he failed to install "aquastat" controls on the boilers for five (5) more months, until on or about January 1, 1998.

3. The Commission concludes that the improper installation and operation of the gas fired boilers at 8716 Plymouth Street, including Brown and Roberts’ Apartment, and the Respondents' failure to correct the problem until on or about January 1, 1998, constitutes a violation of 29-30D(b)(6) of the County Code and has created a defective tenancy. The gas utility conversion cannot be given economic effect for the period that the Respondents failed to correct the improper installation. The gas bills received and paid by Brown and Roberts are unreliable and therefore, the Commission holds that Brown and Roberts are not liable for any gas utility charges for the period July 1996 through February 1997, and pursuant to Section 29-43 (b)(2) of the County Code, the Respondents are liable to Brown and Roberts for all payments they made to Washington Gas during their tenancy.

4. The Respondents caused a defective tenancy by failing to properly install gas-fired boilers in the Property, including the boiler servicing Brown and Roberts’ Apartment, in violation of applicable provisions of the Montgomery County Code.

ORDER

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

A. A refund of 25% of all rent payments made to the Respondents by Johnson for the period August 1996, the date Respondents were first put on written notice of housing code violations by the Department, through December 1997, the date the violations were fully corrected. This award is based on the Respondents’ failure to make needed and necessary repairs in Johnson's Apartment and the common areas of 8716 Plymouth Street which denied Johnson full use and enjoyment of his apartment and the common areas during the 17 months the housing code violations existed. The Commission calculates the rent refund as follows:

August 1996: 1 month @ $560.00 =                                         $ 560.00

September 1996 - December 1997: 16 months @ $527.00 = 8, 432.00

Total Rent Paid:                                                                     $ 8,992.00

                                                                                                    x .25

Total Rent Refund:                                                                $ 2,248.00

B. Reimbursement of all gas utility payments made by Johnson to Washington Gas for the 16 month period September 1996, the date of the gas utility conversion, through December 1997, the date the "aquastat" controls were installed on the gas-fired boilers at the Property. The award is offset by the $13.00 per month rent reduction instituted by the Respondents as part of the utility conversion during that same 16 month period. The Commission calculates the gas utility reimbursement based on the paid bills submitted by Johnson for the period September 1996 through October 1997 (14 months), as follows:

Paid gas bills September 1996 - October 1997 $ 509.20

$13.00 per month rent reduction (14 months)     -182.00

Total Gas Utility Reimbursement                       $ 327.20

C. The electric utility conversion and the related $20.00 per month rent reduction is not affected by this Order.

A. A refund of 25% of all rent payments made to the Respondents for the period August 1996 through August 1997, based on Farr and Volante’s inability to fully use and enjoy their Apartment during that period of time that Housing Code violations existed. The Commission calculates the rent refund as follows:

(i) the date Respondents were first put on written notice of housing code violations by the Department (August 1996) until the date Farr and Volante vacated the Apartment (August 30, 1997), for a total of 13 months, multiplied by

(ii) the amount of the monthly rent due and owing by Farr and Volante during that period (August 1996 @ $565.00 and September 1996 to August 1997 @ $532.00 per month based on the utility conversion and rent reduction offer effective September 1, 1996.)

August 1996: 1 month @ $565.00 =                                   $ 565.00

September 1996 - August 1997: 12 months @ $532.00 = 6,384.00

Total Rent Paid:                                                               $ 6,949.00

                                                                                               x .25

Total Rent Refund:                                                          $ 1,737.25

B. A refund of $156.00 in gas utility payments ($13.00 a month for each month the Complainants were required to pay for gas - 12 months (September 1996 through August 1996) - based on the improper installation of the gas-fired boilers at the Property.

C. The electric utility conversion and $20.00 per month rent reduction is not affected by this Order.

III. Pay Nick Jamilla $1,724.85 which sum represents:

A. Refund of 25% of all rent payments Jamilla made to the Respondents for the period November 1, 1995, based on the Respondents failure to deliver the Apartment and the interior and exterior common areas of 8800 Plymouth Street to Jamilla at the commencement of his tenancy, October 21, 1995, in a clean, safe and sanitary condition, and in complete compliance with all applicable laws, and their failure to make needed and necessary repairs to correct Housing Code violations in Jamilla’s Apartment and the interior and exterior common areas of 8800 Plymouth Street at any time during Jamilla’s tenancy, which denied him full use and enjoyment of his Apartment and the common areas of 8800 Plymouth Street during his entire tenancy, through October 1996.

The Commission calculates the rent refund as follows the amount of the base monthly rent due and owing by Jamilla during that period, which was $525.00 per month ($525.00 x .25 % = $131.25 x 11 months = $1,443.75);

B. A rent refund of $90.00 based on Jamilla’s overpayment of rent for three (3) months, February, March and April 1996, after the utility conversion occurred ($30.00 a month x 3 months). C. Reimbursement of all gas utility payments made by Jamilla to Washington Gas for the period February 1996 through October 1996, offset by the $10.00 per month rent reduction instituted by the Respondents as part of the utility conversion for that period of time. The Commission calculates the gas utility reimbursement as follows:

Monthly gas bills February 1996 through October 1996 ($257.10 ), less $90.00 ($10.00 per month gas utility rent reduction for 9 months) = $167.10; and

D. A refund of $24.00 ($3.00 a month x 8 months - November 1995 through September 1996, based on the Respondents' failure to offer the Complainant a rent reduction commensurate with their actual cost savings at the time the utilities were converted from master to individual metering.

E. The electric utility conversion and $20.00 per month rent reduction is not affected by this Order.

A. A refund of 25% of all rent payments made to the Respondents for the period September 1995 through August 1996, based on Collins’ inability to fully use and enjoy her Apartment and common areas of the Property during that period of time because Housing Code violations existed. The Commission calculates the rent refund as follows:

B. A rent refund of $90.00 based on the Complainant’s overpayment of rent for three (3) months, February, March and April 1996, after the utility conversion occurred ($30.00 a month x 3 months).

C. A refund of $104.00 in gas utility payments ($13.00 a month for each month the Complainant was required to pay for gas - February through September 1996), based on the improper installation of the gas-fired boilers at the Property.

D. A refund of $36.00 ($3.00 a month x 12 months - September 1995 through August 1996), based on the Respondents' failure to offer the Complainant a rent reduction commensurate with their actual cost savings at the time the utilities were converted from master to individual metering.

E. The electric utility conversion and $20.00 per month rent reduction is not affected by this Order.

A. The refund of $662.50 rent, which sum represents 25% of all rent payments made to the Respondents by Floyd for the period November 1996 through March 1997, based on the Respondents’ failure to deliver the Apartment and all common areas of 8800 Plymouth Street to Floyd at the commencement of his tenancy, and Floyd’s inability to fully use and enjoy his Apartment and common areas of the Property at any time during that period of time because housing code violations existed. The Commission calculates the refund as follows:

(i) the date Respondents were first put on notice of housing code violations by the Department, August 29, 1996, through March 1997, the last month Floyd paid rent, for a total or 5 months; and,

(ii) the amount of the base monthly rent paid by Floyd during that period was $530.00 per month ($530 x .25 % = $132.50 x 5 months = $662.50);

B. A refund of all gas utility payments Floyd was required to pay Washington Gas for gas service for the period November 1996 through the termination of his tenancy, March 31, 1997, in the amount of $408.16, based on the improper installation of the gas- fired boilers at the Property.

A. The refund of $2,505.00 rent, which sum represents 25% of all rent payments made by Roberts to the Respondents for the period January 1996, the date Roberts first put the Respondents on written notice of Housing Code deficiencies in his Apartment, through August 1997, the date the Housing Code violations were fully corrected, based on Roberts’ inability to fully use and enjoy his Apartment and common areas of the Property during that period of time because Housing Code violations existed.

The Commission calculates the rent refund as follows:

January 1996 - June 1996: 6 months @ $480.00 = $ 2,880.00

July 1996 - August 1997: 14 months @ $510.00 =   7,140.00

Total Rent Paid:                                                     $10,020.00

                                                                                      x .25

Total Rent Refund:                                                 $ 2,505.00

B. Payment of $624.00, which sum represents $52.00 a month for 12 months (September 1996 through September 1997), based on the Respondents' failure to offer the Complainant a rent reduction at the time the gas utility was converted from master to individual metering.

VII. Pay Shawn Brown and Michelle Roberts $208.16, which sum represents:

To comply with this Order, the Respondents must forward to the Office of Landlord-Tenant Affairs, 100 Maryland Avenue, 4th Floor, Rockville, MD 20850, within fifteen (15) calendar days of receipt of this Decision and Order, checks payable to the following:

                              Shawn Brown and Michelle Roberts, in the full amount of $208.16.

The Respondents are hereby notified that Section 29-44 of the County Code declares that failure to comply with this Decision and Order is punishable by a $500.00 civil fine Class A violation as set forth in Section 1-19 of the County Code. This civil fine may, at the discretion of the Commission, be imposed on a daily basis until the Respondents comply with this Order.

In addition to the issuance of a $500.00 civil fine Class A violation, should the Commission determine that the Respondents have not, within fifteen (15) calendar days of receipt of this Decision and Order, made a bona fide effort to comply with the terms of this Decision and Order, it may also refer the matter to the County Attorney for additional legal enforcement.

The foregoing was concurred in unanimously by the following panel members: Commissioners Jonathan Smith and William Devany and constitutes a voting majority of the panel.

Any party aggrieved by this action of the Commission may file an administrative appeal to the Circuit Court for Montgomery County, Maryland within thirty (30) days from the date of this Order, pursuant to the Maryland Rules governing administrative appeals.

_________________________________ _________________________________

Jonathan Smith                                              William Devany

Commission on Landlord-Tenant Affairs Commission on Landlord-Tenant Affairs

Complaint for Declaratory Judgment and Injunctive Relief

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND


Plymouth Muse L.L.C.,    *

Garland Mews L.L.C., and    *

Sky Properties L.L.C.    *

c/o Lewis I. Winarsky,    *

Managing Partner    *

1212 Woodside Parkway    *

Silver Spring, Maryland 20910    *

*   
Lewis I. Winarsky and Susan L. Winarsky, *

1212 Woodside Parkway    *

Silver Spring, Maryland 20910    *

*
*
Plaintiffs    *
*
v.    *   
                                                                                                CIVIL ACTION NO. ___
*
Montgomery County, Maryland    *

101 Monroe Street    *

Rockville, Maryland 20850,    *
Serve:    *

Charles W. Thompson, Jr.    *

County Attorney for    *

Montgomery County, MD    *

101 Monroe Street    *

3rd Floor    *

Rockville, MD 20850    *
*   
Jim Johnson,    *

8716 Plymouth Street, #2    *

Silver Spring, Maryland     *
*   
Heather Farr,    *

Kenneth Volante,    *   

Nick Jamilla,    *

Kimberly Collins,    *

Michael Floyd,    *

Densil Roberts,    *

Shawn Brown and    *

Michelle Roberts    *


Addresses and Whereabouts    *

Presently Unknown—Former Tenants    *   

*
c/o Commission on Landlord-    *
Tenant Affairs    *
100 Maryland Avenue, 4th Floor    *
Rockville, Maryland 20850    *
*
Defendants    *
*
*
*   
SERVE ALSO:    *

J. Joseph Curran, Jr.    *
Attorney General    *
7 North Calvert Street    *
Baltimore, MD 21202    *



Plaintiffs Plymouth Muse L.L.C., Garland Mews L.L.C., Sky Properties L.L.C., Lewis I. Winarsky, and Susan L. Winarsky, (collectively "Plaintiffs" unless otherwise identified individually), by and through their attorneys, Clyde H. Sorrell and Hogan & Hartson, L.L.P., file this action for Declaratory Judgment and Injunctive Relief against Defendant Montgomery County, Maryland, and as interested individual party defendants Jim Johnson, Heather Farr, Kenneth Volante, Nick Jamilla, Kimberly Collins, Michael Floyd, Densil Roberts, Shawn Brown and Michelle Roberts, in connection with a proceeding held by the Landlord-Tenant Commission of Montgomery County (the "Commission") (an agency of Montgomery County, Maryland, Defendant) in order to uphold the effect of the decision of the Commission in favor of the Plaintiffs by operation of law, on or about or by June 29, 1998, and to challenge the validity of the invalid and ultra vires actions and order of the Commission (in effect, an improper reconsideration of the prior June 1998 Decision) issued on or about August 3, 1999 (the "August 1999 Decision and Order"), and for reasons state:

INTRODUCTION

1. This is an action for a Declaratory Judgment, pursuant to the provisions of Sections 3-401, et seq., Courts and Judicial Proceedings Art., Annotated Code of Maryland, for the purpose of determining a question of actual controversy of a real and justicable nature between the parties concerning the validity of a decision of the Landlord-Tenant Commission of Montgomery County issued by operation of law on or about June 29,1998, and the validity of a later "Order and Decision" and associated attempt to extend time for the Order, dated August 3, 1999, and June 28, 1999, respectively; this action also raises the question of the authority of the Commission to decide issues of contract law between private parties and impose liabilities beyond privity of contract (as opposed to exercising the police power), given the Due Process, contract requirements and other provisions of the United States and Maryland Constitutions, the issue of the ability of the Commission to permit unauthorized practice of law before it, and the limits on the powers conferred on home rule counties under Article XIA, Maryland Constitution, and Article 25A, Annotated Code of Maryland. The authority and other associated issues relating to the Commission need not be addressed if the August 3, 1999, Decision and Order is ruled to be untimely and invalid as set forth in Count I which follows.

2. This also is an action for Permanent Injunctive Relief to enjoin the Defendants from taking any enforcement actions, including collection of judgments, imposition of additional civil penalties and fines, and other actions, unless consistent with valid and final decisions of the Commission. It is the contention of the Plaintiffs that the only valid decision of the Commission in this case was the decision in the Plaintiffs’ favor, effective on or by June 29, 1998; further, the Defendants should be enjoined from taking any action whatsoever as to the individual Plaintiffs (Lewis I. Winarsky and Susan L. Winarsky), where neither of them were in privity to the lease or contract with the individual Tenants and otherwise have no legal relationship with the Tenants.

PARTIES

3. Plaintiffs were party Respondents in the administrative proceedings before a panel of the Commission underlying the June 1998 Decision and the August 1999 Decision and Order. Hereinafter, the Plaintiffs may be referred to as "Respondent/Plaintiffs" in recognition of their status as the "charged party" in the proceedings below before the Commission.

4.    The individual "interested party defendants" were tenant "Complainants" in the administrative proceedings before a panel of the Commission underlying the June 1998 Decision and the August 1999 Decision and Order.

5.    Montgomery County, Maryland ("County"), is a body politic and corporate, of which the Commission is a part; the powers of the County are derived from the State, and are conveyed by operation of Article XI-A, Constitution of Maryland, and Article 25A, Annotated Code of Maryland, limited by the Maryland Constitution and Declaration of Rights and other superior laws.

BACKGROUND FACTS COMMON TO ALL COUNTS

6. The hearings in the administrative proceedings concerned tenancies created by leases executed by and between the "interested party defendants"—the "Tenants"—and certain of the Plaintiffs, either directly or by assignment as explained below. Neither of the individual Plaintiffs, Lewis I. Winarsky nor Susan L. Winarsky, were parties at any time to any of the leases as a Landlord or had any other lease or contractual privity to the individual "interested party defendants" Tenants. Plaintiff Sky Properties L.L.C. is the operating company which executes leases with the Tenants on behalf of Plymouth Muse L.L.C. and Garland Mews L.L.C.; Sky Properties L.L.C.    is the "Landlord" of the properties. Until May 1999, when Sky Properties L.L.C. became a "limited liability company" (with the associated "L.L.C." at the end of its name), it was known simply as Sky Properties, an unincorporated entity for doing business purposes for Plymouth Muse L.L.C. and Garland Mews L.L.C. Mr. Lewis I. Winarsky is the Managing Partner for each of these entities. For the leases with the Tenants in this proceeding, all were signed by Sky Properties as Landlord on behalf of either Plymouth Muse L.L.C. or Garland Mews L.L.C. (because they pre-dated May 1999), except for old leases with former third party owners of the buildings    who assigned lease interests to either Plymouth Muse L.L.C. or Garland Mews L.L.C. (e.g., the Johnson, Farr and Volante and Densil Roberts leases). In summary, the specific "Landlord" of the various leases with the Defendant Tenants is as follows:
Tenant:                             Landlord:
Densil Roberts----------Assigned by former owner to Garland Mews L.L.C.
Johnson---------------- Assigned by former owner to Plymouth Muse L.L.C.
Farr/Volante----------- Assigned by former owner to Plymouth Muse L.L.C.
Jamilla----------------- Signed by Sky Properties for Plymouth Muse L.L.C.
Collins------ ---------- Signed by Sky Properties for Plymouth Muse L.L.C.
Floyd------------------Signed by Sky Properties for Plymouth Muse L.L.C.
S.Brown/M Roberts---Signed by Sky Properties for Plymouth Muse L.L.C.

7.    The hearings in the administrative proceedings before the Commission were conducted over eight nights of hearings from November 10, 1997, to April 14, 1998, with the record officially "closing" in all of the cases on April 14, 1998 (except for the case brought by Densil Roberts—extended 30 additional days after April 15, 1998—to May 15, 1998—see pages 214-215, April 14, 1998 transcript; see also page two, August 1999 Decision and Order).

8.    The Administrative Procedure Act (Chapter 2A, Montgomery County Code), is specifically applicable to these administrative proceedings before the Commission pursuant to Sec. 2A-2(b), Montgomery County Code. Sections 2A-10 (c) and (d) state, with emphasis added, that: (1) "Failure to achieve the necessary affirmative votes shall act as a denial of the relief requested by the charging party by operation of law. No written opinion in this instance shall be required….", and; (2) all decisions of the hearing authority must be rendered within forty-five (45) days after the closing of the record. In our cases, as noted above, all hearing records were closed by May 15, 1998. Therefore, a decision in favor of the Respondents (Plaintiffs herein) denying the relief requested by the Complainants (Defendants herein) occurred by June 30, 1998, by operation of law, for all of the cases. There was no extension of any deadline before the close of the record or the required due date of the decision; accordingly, the decision must have been rendered by the end of June 1998. The fact that there was no written decision whatsoever by this date further supports and requires a decision in favor of the Respondent/Plaintiffs by operation of law by June 28, 1998.

9. However, on or about August 5, 1999, the Commission attempted to issue a new written "Decision and Order," more than one year after the earlier Decision in favor of the Respondents/Plaintiffs and even longer after the hearing record was closed. This "Decision and Order" was directed against all Respondents/Plaintiffs (even the individual Respondents who were not on any of the leases!). See a copy of the "Decision and Order," dated August 3, 1999, attached as Exhibit A.

10. The August 1999 Decision and Order sought to improperly reconsider and overturn the earlier June 1998 decision in favor of all Plaintiffs, and followed on the heels of a late attempt to "extend the record," dated June 28, 1999 (a copy of which is attached as Exhibit B); this improper attempt to reconsider the earlier Opinion in favor of the Plaintiffs and to bootstrap an extension to the mandatory time for issuing the opinion a year after the expiration of time for such an extension engendered a response from Counsel for the Plaintiffs, pointing out the errors of this clearly improper attempt to extend the record long after its closure and to extend the time for issuance of an Opinion. See Attached Exhibit C.   

11.    The August 1999 Decision and Order purports to award damages under the leases payable to the individual Tenants in amounts greater than one thousand dollars (except two cases) against both the Landlords (Plymouth Muse L. L. C. and Garland Mews L. L. C., with Sky Properties) on the Leases as well as the individual Plaintiffs (who as stated above are not in privity of lease or contract with the "interested party defendant" Tenants); the Decision and Order further threatens, at the last page of the Order, " … that Section 29-44 of the County Code declares that failure to comply with this Decision and Order is punishable by a $500 civil fine Class A violation as set forth in section 1-19 of the County Code. This civil fine may, at the discretion of the Commission, be imposed on a daily basis until the Respondents comply…."

COUNT I: THE AUGUST 3, 1999, DECISION AND ORDER IS INVALID AS AN UNTIMELY AND IMPROPER ATTEMPT TO RECOINSIDER AND/OR REOPEN A DECISION OF THE COMMISSION MADE BY OPERATION OF LAW.


12.    Plaintiffs reallege and incorporate by reference the allegations of numbered paragraphs 1-11 of the Complaint.

13.    The Administrative Procedure Act, enacted as Chapter 2A of the Montgomery County Code, was passed to assure orderly and timely decisions, to in part "protect …legal rights afforded to affected parties who are …subject to the administrative hearing processes established by the laws…of the County." (Sec. 2A-1). These rights include the rights of charged parties (such as the Plaintiffs herein) to a swift determination of the charges to avoid the prejudices that often accompany delay.

14.    The complaints filed against Plaintiffs in the cases filed before the Commission clearly involve proceedings covered by the Administrative Procedure Act ("APA"); Montgomery County now admits the applicability of the APA (see, e.g., p. 5, "Decision and Order") , although throughout the proceedings, the Commission violated APA’s requirements, including the requirements of initial notice and conduct of proceedings thereafter.

15.    Pursuant to Sec.2A-3(c), Montgomery County Code, the provisions of the APA prevail and control over "…any agency rule of procedure and in the event of conflict, the latter [the agency rule] shall be amended to conform with this Article [the APA]." This subsection and the succeeding subsection go on to provide that an agency may promulgate "additional" rules of procedure to "implement this Article [e.g., the APA]" and "substantive provisions under which it operates" "…so long as they [both the rules of procedure and the substantive provisions] are not in conflict with this Article [the APA]." (Emphasis added).

16.    Pursuant to subsection (a), Sec. 2A-10, the APA requires that all decisions of the hearing body (the panel of the Commission in this case) be in writing with findings of fact and conclusions of law.

17.    Pursuant to subsection (c), Sec. 2A-10, the APA requires that any decision of the hearing body must have a concurrence of at least a majority of the voting members—in the present case, two of the three members of the Commission panel. This subsection (c) goes on to provide:

"Failure to achieve the necessary affirmative votes shall act as a denial of the relief requested by the charging party by operation of law. No written opinion in this instance shall be required…." (Emphasis added).

18.    Inherent in the language of subsection (c) cited above is a specified time-limit for decision, or there would never come a time when the actual "failure to achieve" the majority vote could be determined—instead, the hearing body would go on forever, deadlocked in minority positions for and against sustaining the charges! Obviously, this was not the intent of the APA and it provides for specific time limits for decisions in the following subsection (d).

19.    Pursuant to subsection (d), Sec. 2A-10, the APA requires that all decisions of the hearing authority be rendered within forty-five (45) days after the closing of the record (in our cases, as noted above, the record was closed for all cases by May 15, 1998). Thus, without any prior extension of time for the record, the decision must have been rendered by the end of June 1998--this clearly did not occur, nor was any written decision rendered as was required for a decision sustaining the charges within this time limit (or even within a year thereafter!).

20.    The legislative history of these sections of the Administrative Procedure Act is clear that these requirements for timely decisions, and in the absence of a written decision in favor of the Complainant—a decision by default in favor of the "Charged Party" Respondent, is mandatory and not merely directory.

21.    Accordingly, the failure to achieve the necessary two out of three votes on a charge against the Respondent/Plaintiffs with issuance of a written opinion supporting that majority vote on a charge within the specified time limits (e.g., by no later than end of June 1998) is sufficient to "act as denial of the relief requested by the charging party by operation of law", or, in other words, acts as a ruling without need for anything more (e.g., a written opinion) in favor of the charged party—in our case, the Plaintiffs herein.

22.    Although Defendants would admit that there were no extensions of time before the June 29, 1998, date (nor even during 1998 at any time!), Defendants would contend that the attempted extension of time by letter dated June 28, 1999 (Exhibit B) was sufficient to extend the time for the Decision and Order issued August 3, 1999; this contention fails on two critical points: a) issued nearly a year after the absolute "due date," this letter can only be characterized as an extension of time for reconsideration of a decision rendered as of June 29, 1998 by "operation of law"—however, Sec. 2A-10 (f) specifically requires that any such attempt to request a rehearing or reconsideration must "…be filed within ten (10) days from a final decision." Further, it would make no sense to legislate such a ten day rule for reconsideration if this rule could be easily avoided by an agency by merely extending the time for consideration after the passing of the deadline (and in our case, the actual decision). Accordingly, the common law of Maryland administrative law requires that any extension of a deadline be requested before the expiration of the deadline in order to be effective, and; b) even if the June 28, 1999, letter effected a valid extension to July 31, 1999 (a proposition with which Plaintiffs strongly disagree), the Decision and Order was issued after the expiration of the extension, on August 3, 1999.

23.    The County Council was clear in enacting the APA that the deadlines for decision were mandatory and not directory, and were meant to be followed to assure protection for the affected parties subject to the government’s administrative hearing processes, as stated at Sec. 2A-1, Montgomery County Code. These rights include the rights of charged parties (such as the Plaintiffs herein) to a swift determination of the charges to avoid the prejudices that often accompany delay. The plea of the very agency in this case (Landlord-Tenant Commission) during the worksessions before the APA was passed for its own set of procedures outside of the APA was rejected by the County Council, and a specific mechanism requiring a written decision, with a majority vote within a specific time limit was put in place to assure timely justice against complaints of unfair delay and backlogs. The fact that the Commission attempted (much too late) to extend the time limits demonstrates that the Commission itself recognized that these provisions were not merely directory, but actually have teeth, especially in the situation where more than an entire year passes before the required written order surfaces.

24.    In addition, there is great prejudice to the Plaintiffs from the passage of time after the complete closing of the record and the due date for the decision at the end of June 1998. Mr. Plumb who was the main counsel handling a majority of the witnesses in hearings before the Commission in this case, and the Plaintiffs’ general counsel for all business/tenant matters, and who had the majority of the files, has relocated out of the State (I believe to North or South Carolina) and is not available for assistance in any further proceedings. Further, most of the Tenants (except Johnson) have moved out of the buildings and do not have the continued interest in this matter, including certain tenants that moved owing the Plaintiff landlords money.

WHEREFORE, Plaintiffs pray this Court issue a Declaratory Judgment in favor of the Plaintiffs that a decision by the Commission in these proceedings in favor of the Plaintiffs occurred and was made by operation of law on or by June 28, 1998, and that the subsequent "Decision and Order" of the Commission, dated August 3, 1999, on these matters is null, void and of no effect; in the event that the Court finds in favor of the Plaintiffs as to Count 1 and makes a declaration consistent with this prayer for relief, the Plaintiffs further pray that the remaining counts of this action be voluntarily dismissed. The Plaintiffs further pray the Court award costs and attorney fees in favor of the Plaintiffs, and pray for such other and further relief as the Court may deem just.

COUNT II: THE AUGUST 3, 1999, DECISION AND ORDER IS INVALID AS
TO THE INDIVIDUAL RESPONDENT/PLAINTIFFS BECAUSE NEITHER OF THEM HAVE ANY LEGAL OBLIGATION TO THE INDIVIDUAL TENANTS/DEFENDANTS
IN WHOSE FAVOR THE ORDER ATTEMPTS TO AWARD DAMAGES.

25.    Plaintiffs reallege and incorporate by reference the allegations of numbered paragraphs 1-24 of the Complaint.

26. The proceedings brought against all Plaintiffs herein, culminating in the "Decision and Order" dated August 3, 1999 (Exhibit A), made findings and ordered the payment of monetary "damages" by each and all of the Respondents, even the individual Respondents, Lewis I. Winarsky and Susan L. Winarsky, to the complaining Tenants. The Decision and Order completely disregarded any requirements of privity of contract or of "piercing the corporate vale" or any similar requirements of law. Instead, stating that the rental properties involved were "owned and controlled" by the individual Respondents "through" the various entities (e.g., the limited liability companies, etc.), the Decision and Order merely treats the entities and the individuals as one, "hereinafter collectively referred to as ‘Respondents.’" See page 2 of the "Decision and Order," Exhibit A.

27.    In the record of the proceedings, there is absolutely no record of any of the leases being entered into by either Mr. Winarsky or Mrs. Winarsky, as individuals. Furthermore, there was absolutely no evidence of actions by the individual Respondents in the record that would have given any basis whatsoever for "piercing" the limited liability status of the entities that were the owning entities or signatories so as to impose liability on the individuals. Further, the actions of Sky Properties, before becoming an L.L.C., were all on behalf of either Plymouth Muse L.L.C. or Garland Mews L.L.C. There is absolutely no basis for imposing individual liability on either of the individual Plaintiffs, nor does the Decision and Order even claim to be based on any such evidence to support such individual liability.

28.    This is not a police power action based on the police power of the County in enforcing housing code violations, citations or anything of the sort—in fact, such an action was specifically contemplated and resolved by settlement by and between the County (through its County Attorney) and the Respondent/Plaintiffs, separate and apart from the proceeding before the Commission which resulted in this action. In the separate police power action by the County, the County agreed to completely settle the matter if the landlord accomplished certain improvements to the property—without any admission of guilt or culpability by the Landlord. These improvements were accomplished and the settlement was ratified with dismissal of all pending matters.

29.    Instead, the present action before the Court was initiated by the new staff of the Commission (Mr. Joe Giloley and Mr. Michael Denny) who under a recent County reorganization were moved from Consumer Affairs matters to Landlord-Tenant. With the same zeal previously used in representing consumers, the staff supported the complaints of the Tenants and presented the individual tenant requests for damages before the Commission in the present action. Thus, the underlying causes of action in this case are civil, private claims for damages, under civil contract/lease law. It is clear that the applicable law requires privity of contract/lease relationship as a pre-condition for liability, or at least the piercing of the entity limitation of liability (where the entity is the landlord), in order to reach and impose any liability on the individual Respondents in this case; however, as stated above, there was absolutely no evidence presented in the record or otherwise that would have supported such individual
liability as was ordered in the Decision and Order (Exhibit A).

WHEREFORE, Plaintiffs pray this Court issue a Declaratory Judgment in favor of the individual Plaintiffs, Lewis I. Winarsky and Susan L. Winarsky, that the decision by the Commission contained in its "Decision and Order" dated August 3, 1999 is null, void, ultra vires and of no effect as to the individual Respondents, Lewis I. Winarsky and Susan L. Winarsky, award costs and attorney fees in favor of the Plaintiffs, and pray for such other and further relief as the Court may deem just.
.
COUNT III: THE AUGUST 3, 1999, DECISION AND ORDER IS INVALID BECAUSE IT IS BEYOND THE AUTHORITY OF THE LANDLORD-TENANT COMMISSION TO AWARD SUCH DAMAGE RELIEF AGAINST THE RESPONDENT/PLAINTIFFS.

30.    Plaintiffs reallege and incorporate by reference the allegations of numbered paragraphs 1-29 of the Complaint.

31.    Montgomery County, and thus the Commission operating under its authority, is limited in authority to powers granted to it by the Maryland Constitution and the General Assembly. The majority of these powers are defined in Article XI-A of the Maryland Constitution and Article 25A, Annotated Code of Maryland; of course, the County is further subject to other constitutional limitations in the United States and Maryland Constitutions, such as the Fourteenth Amendment to the United States Constitution and Article 23 of the Declaration of Rights of the Maryland Constitution and the general laws with respect to the exercise of the judicial power of the State, as permitted in Article IV, Section 1, of the Maryland Constitution and Article 8 of the Declaration of Rights.

32.    The Commission is also limited by the law enacted by the County through which it derives any authority, contained in Chapter 29 of the Montgomery County Code, including but not limited to Section 29–43(b)(2) (which permits the Commission, upon a finding of defective tenancy, to award only "actual damages" to Tenants, and then limited to no more than "…($2,000.00) per affected dwelling unit.").

The "Decision and Order" (Exhibit A) of the Commission is null, void, ultra vires and invalid because it violates and is beyond the authority that could be or is validly granted to the Commission for the following reasons, among others:
The decision on its face attempts to award "damages" to two of the Tenants (Roberts and Johnson) in excess of the $2,000.00 per dwelling unit limit imposed by the County;

Contrary to the requirements of the County law limiting the authority of the Commission to awarding "actual damages," the "damages" awarded to all of the Tenants are not actual damages, supported by specific evidence related to each Tenant and unit, but instead are based on general percentages (i.e., 25%) applied to all units and Tenants, regardless of any specific damage shown (or in our case, not shown) in each individual unit, without any explanation of specific basis as required by the County law; Related to "B." above, the Commission in awarding the damages to each Tenant apart from any actual damages based on competent evidence actually awarded penalties rather than compensatory damages. In so doing, the Commission exceeded its authority not only under the County law (Chapter 29) which does not give the Commission such authority, but also under Article 25A, Section 5(A)(2), which limits the authority of the County to imposition of fines to $1,000.00 (except in cases not applicable here). Thus, in all but one case, the fines ordered paid by the Commission exceeded any authority of the Commission or the County to impose;

The Commission, clearly exercising only civil, quasi-judicial power (with all "police power" issues with the County having already been settled), deciding contract/lease rights of private parties and awarding damages, exceeded its "incidental authority" (if any), and attempted to exercise judicial authority contrary to the provisions of Article IV, Section 1, Maryland Constitution, which vests all of the judicial power, exclusively, in the judiciary, and Article 8, Declaration of Rights, that prohibits the exercise of powers of the judiciary by the executive or legislative branches of government. Even if there exists an "incidental exercise" exception, the Commission was not engaged in such an incidental exercise of judicial powers in this case;

The Commission exceeded its authority in permitting a non-attorney to represent certain Tenants in the proceedings, and in so doing, permitted them to proceed even though absent (Farr and Volante) and granted them relief when the Commission appropriately dismissed another absent Tenant (Cairnes—see p. 4, Decision and Order) who did not authorize the non-lawyer to represent her; all Tenants not present to present their case, and not otherwise represented by an authorized person, should have been dismissed from the case. In failing to do so, and permitting a non-lawyer to represent the Tenants contrary to State law (including 10-601, Business Occupations Article, Annotated Code of Maryland), the Commission exceeded its authority; its misreading of Section 29-40, rendering the words "assistance of an attorney" surplusage does not save this ultra vires act based on a tortured construction of "duly authorized representative," originally meant only to permit corporate entities (usually landlords) to be represented by "duly authorized" representatives, per the Corporation laws of the State. See pages 3-5, "Decision and Order" (Exhibit A).

34.    The unauthorized and ultra vires acts of the Commission renders the Decision and Order null and void.
WHEREFORE, Plaintiffs pray this Court issue a Declaratory Judgment in favor of the Plaintiffs that the decision by the Commission contained in its "Decision and Order" dated August 3, 1999 is null, void, ultra vires and of no effect, award costs and attorney fees in favor of the Plaintiffs, and pray for such other and further relief as the Court may deem just.
.
COUNT IV: THE AUGUST 3, 1999, DECISION AND ORDER IS INVALID BECAUSE IT VIOLATES THE DUE PROCESS AND OTHER CONSTITUTIONAL AND STATUTORY RIGHTS OF THE REPONDENT/PLAINTIFFS, INCLUDING THE RIGHT TO TRIAL BY JURY AND RIGHTS TO CONTRACT.

35.    Plaintiffs reallege and incorporate by reference the allegations of numbered paragraphs 1-34 of the Complaint.

36.    The actions and procedures followed by the Commission, and the decision of the Commission, violate the Constitutional and statutory rights of the Respondent/Plaintiffs, including but not limited to the Constitutional rights to Due Process under the Fourteenth Amendment to the United States Constitution and the Declaration of Rights, Constitution of Maryland, the right to trial by jury under the United States Constitution and the Maryland Constitution, the right to contract without abridgment guaranteed by the United States Constitution and the Maryland Constitution, and the procedural rights afforded by the Montgomery County Administrative Procedure Act, Chapter 2A, Montgomery County Code, including rights to timely notice of charges, witnesses and contentions, and rights to a timely written decision.

WHEREFORE, Plaintiffs pray this Court issue a Declaratory Judgment in favor of the Plaintiffs that the decision by the Commission contained in its "Decision and Order" dated August 3, 1999 is null, void, illegal and of no effect, award costs and attorney fees in favor of the Plaintiffs, and pray for such other and further relief as the Court may deem just.

COUNT V: INJUNCTIVE RELIEF

37.    Plaintiffs reallege and incorporate by reference the allegations of numbered paragraphs 1-36 of the Complaint.

38.    Plaintiffs will be irreparably harmed unless an injunction is issued by the Court enjoining the County from enforcing the "Decision and Order" (Exhibit A), denying the Plaintiffs constitutionally protected rights as stated above; further, the County must be enjoined from taking the actions threatened at page126 of the Order, which threats include the imposition of fines of $500.00 each day and other legal action (such as revocation of Plaintiffs’ license to engage in their rental business, etc.). In addition, the Commission must be enjoined to follow its own Rules of Procedure, including the Administrative Procedure Act. Finally, an injunction should issue to stop the Commission from violating the law of this State by the Commission permitting and sanctioning the unauthorized practice of law in representation of any party (Landlords or Tenants) in proceedings before the Commission. Such conduct is contrary to the public policy of the State and can result in a disservice to those represented.

39.    Plaintiffs do not have adequate remedies at law as an alternative to the issuance of the injunctions prayed for herein.

40.    There is no harm to the Defendants that would be addressed by a bond, particularly given the Plaintiffs’ interest in the improved land which is the rental property involved in this case and the injunction prayed for protects important constitutional rights, preserves the status quo and supports public policy with respect to unauthorized practice of law.

WHEREFORE, Plaintiffs pray this Court issue an Injunction against the Landlord-Tenant Commission of Montgomery County to enjoin this agency of the County from enforcing or taking any other action in connection with the "Decision and Order" dated August 3, 1999, preliminarily and permanently, and to enjoin the Commission from violating its own Rules of Procedure, including the Administrative Procedure Act, and further, pray this Court to issue a permanent injunction against the Landlord-Tenant Commission of Montgomery County to prohibit the Commission from permitting the unauthorized practice of law and representation of parties in proceedings before the Commission; and pray for such other and further relief as the Court may deem just.

Respectfully submitted,
HOGAN & HARTSON LLP


By:______________________________
Clyde "Rocky" Sorrell
HOGAN & HARTSON LLP
600 Jefferson Plaza, Suite 203
Rockville, MD 20852
(301) 315-8029
Attorneys for Plaintiffs
Note: For copies of Exhibits B & C, contact Mr. Sorrell at (301) 315-8029

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

PETITION OF *

LEWIS I. AND SUSAN L. WINARSKY, *

PLYMOUTH MUSE L.L.C., and *

GARLAND MEWS L.L.C. *
                                                                                                * Civil No. 202609V
FOR JUDICIAL REVIEW OF THE *

DECISION OF THE COMMISSION *

ON LANDLORD-TENANT AFFAIRS *

FOR MONTGOMERY COUNTY, *

MARYLAND *
*
IN CASE NOS: *

T-12787, T-12823, T-12825 *

131, 2012, 3310, 3098 *


PETITIONERS' MEMORANDUM ON APPEAL

Petitioners Lewis I. Winarsky, et al., by and through their undersigned counsel, hereby submit this memorandum on appeal to demonstrate to the Court why the decision and order of the Montgomery County Commission on Landlord-Tenant Affairs (the "Commission") issued August 3, 1999 (hereinafter referenced as "Order"), should be overturned, reversed, vacated and otherwise rendered null and void because it is illegal, unconstitutional, unauthorized, not supported by any substantial evidence, and is contrary to applicable rules of procedure and the landlord-tenant laws of Montgomery County.

FACTUAL BACKGROUND

Mr. and Mrs. Winarsky are a mature married couple, both of whom work full time in jobs unrelated to operation of rental properties. Mr. Winarsky is an in-house attorney employee with Washington Gas Light Company. The Winarskys had commenced investing in rental properties before buying the several separate rental facilities at issue in this case. After investing, the Winarskys would aggressively address deferred maintenance problems and bring their buildings up to modern, efficient standards. Mel Tull, a County employee who at the time was a supervisor of code enforcement activities, observed the practices of the Winarskys and brought to their attention several problem buildings he was dealing with in the Silver Spring area. At Mel Tull’s urging, the Winarskys invested their retirement savings in several of these old low-rise apartment buildings (the buildings involved in this appeal) in the Silver Spring area. Mr. Tull knew that these buildings were in sore need of rehabilitation, with the former landlords doing nothing or little as possible to maintain them, and he felt that the Winarskys would make good landlords who would care about their property and gradually bring these properties up to a good level of upkeep.
At the time of the purchase of the buildings by the Winarskys, and for years before, the County, through the Office of Landlord-Tenant Affairs, followed a policy of encouraging investment in these buildings and others like them in the Silver Spring-Takoma Park area with block grant incentives and a cooperative relationship with landlords. Code enforcement activities proceeded on a tenant complaint basis, with Landlords given liberal timeframes for compliance. The problem was that certain landlords, including the landlords who were predecessors to the Winarskys, often took undue advantage of the situation and did nothing but collect rents and let their buildings run down.

The Winarskys owned and operated their rental properties through limited liability companies (such companies own the properties, sign the leases, etc.) and these companies utilized, by contract, a handyman (George Mader), a bookkeeper and an attorney (Mr. Plumb), all directed by Mr. Winarsky as managing partner, to accomplish the day-to-day operations of the rental facilities. / Once the Winarskys purchased the buildings in Silver Spring, they immediately engaged in an ambitious multi-year plan to bring the buildings back to good condition, limited of course to the funds available to them.

Among the first problems to be addressed in these buildings were heating plants that did not provide reliable heat and utility systems that were decades old and literally falling apart (e.g., plumbing systems that were reliable only in the sense that you could count on frequent leaks that would damage a wall or ceiling). Using designs prepared by professional engineers, the Winarskys made large capital investments to replace heating and other utility systems, and converted them (pursuant to law) to individual tenant metering to encourage responsible conservation of energy, giving tenants adjustments to rent based on past costs formulae in accordance with the code. See Section 29-30D, Montgomery County Code. The rehabilitation of the buildings proceeded in accordance with the plan (and the Winarskys’ resources) until a stunning change of policy occurred in the Office of Landlord-Tenant Affairs. Although this policy change was to some extent "earned" by other long-term recalcitrant landlords, and was needed to deal with them, the new policy could not have been more unfairly or untimely applied to the Winarskys and their rental facilities.

The genesis of this new policy started with the reorganization of the Office of Consumer Affairs, inspired partly with the retirement of Barbara Gregg, and the assignment of Landlord-Tenant Affairs to that office. In concrete terms, the reorganization placed landlord-tenant responsibilities under long time consumer advocates, Joe Giloley and Michael Denny. Attacking the problem of run-down rental buildings in Silver Spring with the same zeal as going after big business on behalf of consumers, this reconstituted office encouraged and solicited tenant complaints and directed a new strict enforcement/strict compliance policy in which they sent out code inspectors to scrupulously inspect rental buildings in the Silver Spring area. In the case of buildings owned by the Winarskys alone, these inspectors issued literally hundreds of code violations, with every loose quarter round mounding and ill-fitting door, every rust spot on a shower window sill and every tear in a screen, and every spot in a porcelain tub or missing antique thumb screw, receiving separate code violations. / Each of these violation notices required full compliance within strict fixed timeframes. Although for one or two violations alone these timeframes were reasonable, when multiplied into the hundreds and complicated by needing to find, order or fabricate replacement parts for decades-old fixtures, and schedule each repair at each tenant’s convenience (with a handyman they knew and trusted), compliance was impossible. For the Winarskys, it also meant exhausting their limited means, throwing the buildings into a sea of red ink, and borrowing to their ability (and beyond).

In response, the Winarskys exhausted all of their personal resources, spending in excess of $145,000. for upgrades and repairs. The Winarskys fixed first the most serious of the violations, particularly anything remotely associated with the life-safety code (e.g., replace and recharge fire extinguishers, fire detectors, etc., items not yet fixed in the course of their initial and regular maintenance). Thereafter, using the services of a handyman known to the tenants (and therefore, permitted in their units), George Mader, the Winarskys contracted with him to the extent of his availability, having him work long hours, including many weekends and holidays. Yet, even with this large expenditure of money, accomplishment of all major repairs immediately, and other work proceeding on fixing the remaining violation items as quickly as possible under the circumstances, compliance with all violation notices was not sufficiently timely for the tenant-consumer advocates at the Office of Landlord-Tenant Affairs. They demanded full compliance within strict time limits, and when it became apparent that this was impossible, the Landlord-Tenant Affairs Office unilaterally imposed a new schedule for completion, styled a "Settlement Agreement." Although the Winarskys reluctantly signed this "Settlement Agreement" when the only alternative offered was immediate court action, the Agreement continued the mistake of requiring that remaining code violations be fully corrected within dates unilaterally specified by the former Office of Consumer Affairs, not dates indicated as possible by the Winarskys under the circumstances. Although the Winarskys made a good faith effort to fix all of the code items, they were not fixed in accordance with the imposed schedule and these violations were referred to the Office of County Attorney for prosecution.

In the meantime, as the code violations were issued, the revamped Consumer Affairs Office, working as "advocates" for the tenants/consumers in the Winarskys’ buildings, formulated tenant complaints based primarily on the tenants’ dissatisfaction with having to pay their own heating bills and the complaint that sufficient rent credit was not given./ The Landlord-Tenant Affairs Office hired an expert engineer (one that had been used on the Consumer Affairs side for single family construction complaints and was well respected), Joseph "Skip" Walker, to investigate the design of Winarskys’ heating systems to determine whether these systems improperly billed tenants for heat the tenants did not use, or had any other defects.

Summary of Argument

The decision issued by the Commission in the case is fatally flawed in many respects. These flaws include the lack of any evidentiary basis on which the rulings were made, the lack of authority of the Landlord-Tenant Commission to order the relief, including constitutional limitations on authority, the failure of the Commission to follow requirements of Montgomery County Code, Chapter 29, with respect to conversion of utilities and other matters therein, the failure of the Commission to follow applicable rules of procedure, particularly the Administrative Procedure Act found in Chapter 2A, Montgomery County Code, the lack of jurisdiction of the Commission to order relief as to certain of the Petitioners who were not in privity with the tenants in this case and other numerous shortcomings. In order to be as brief as possible, this memorandum on appeal will outline the bases of the various arguments and, in many cases, incorporate by reference materials already filed and part of the record in this case.

Arguments

A. Failure To Base Decisions On Any Substantial Evidence In The Record.

1. Decision as to "damages" to tenants for failure to install electrical interlock for specific period of time after "conversion" of utilities by landlord.

As part of the "remedies" ordered to be paid by the landlord to the tenants as "damages", the Commission ordered the petitioners to pay to each of the tenants amounts based on actual gas bill payments less reductions to rent in the conversion process, for the period of time that the Commission found that the individual boilers may not have been "installed properly" because of the failure to install an electrical interlock switch. See pages 121-125 of the Order, and individual portions of the Order for each Tenant. In effect, in this part of the opinion as to each of the tenants, the Commission ordered a "delay" in the implementation of the conversation calculation, although the conversion itself was found to be in accordance with law. The total amount awarded to all of the tenants by reason of this portion of the order was $1,370.62.

The order of the Commission with respect to this aspect of the case suffers from at least two fatal flaws. They are (1) the fact that the conversion of the utilities had taken place and was completed in accordance with law and therefore there could not be any "delay" in the implementation of the conversion calculation such as that ordered by the Commission, and; (2) if, instead, the amount ordered was "damages" suffered by tenants by reason of the so-called defective installation of the heating system, then there was no substantial evidence whatsoever to support any finding of "damages" other than that which was offered by the County’s heating expert, Joseph Walker, in his report and in his testimony (confirmed by the only other expert, Scott Kaufman – see Transcript of Proceedings, 11/12/97, p. 70-73, 74, 75) that not more than 1.2 cents per day could be involved as a damage, and therefore the total damages to all of the tenants could not exceed a few dollars (assuming the timeframes found by the Commission were correct). See Report of Joseph Walker, dated April 1, 1997, attached as Exhibit 2, pp. 1-3, and specifically Section C, pp. 2-3.

In fact, the Commission specifically found that the Landlord had complied with the various requirements for proper conversion to individual metering pursuant to the requirements of Section 29-30D, Montgomery County Code, and specifically Subsection (b) thereof. This section requires the Landlord in such conversion to: (i) give notice of the proposed conversion at least two months prior to the effective date of the conversion and (ii) offer to reduce the effective Tenants’ rent in the amount pursuant to a formula set forth in the code. See Exhibit 3, a copy of that portion of the Code.

In the Commission’s Opinion, it specifically found that the Landlord had complied with these requirements of the Code.

 It should be noted that several of the Tenants moved in after the conversion, and therefore were not subject to the so-called "reduction in service requirements" of this section of the Code. These Tenants, including Floyd, Brown, and Roberts, agreed to specific provisions in their lease agreements that they would pay utilities, separate and in addition to rent; nevertheless, completely oblivious to the distinction and in violation of these lease agreements, the Commission ordered relief of repayment of their gas charges for so-called defective installation. See discussions of the Commission in their Order at pages 81, et seq. and pages 116, et seq.

Further, and more importantly, there was no actual citation to any provision of law or code that indicated that the boilers were installed improperly. In fact, quite to the contrary, Mr. Walker in his report (Exhibit 2) confirmed that the boilers were installed in an appropriate way and did not suffer from any crossover or other effects that would cause a problem with the heating bills. Further, it was agreed by everyone, including Mr. Pinkney who had placed a note on a red colored tag that the so-called "red tag" was not an indication of any safety problem, and that in fact, there was no safety problems whatsoever in the installation of the boilers. See Transcript of Proceedings, 11/12///97, page 21, line 10.

Thus, reasonably, the Court must decide what was the basis, if any, of awarding damages to the tenants’ for the so-called improper installation of boilers. This is particularly problematic where there is absolutely no evidence whatsoever, by qualified experts, that there was any actual observed problem with the system, only the potential that was not actually observed to be the case. 

On the other hand, the County’s own expert at page 2 of his report (Exhibit 2) and in his testimony indicated that there was no problem caused by the common riser (which was the so-called "tied together problem" seen by Pinkney, but not otherwise investigated). Instead, the expert concluded that the actual cause of the heating costs problem was other issues for which the Landlord was not responsible legally (such as age of the building, orientation of the units to the sun, practices of the occupants in leaving windows open, etc.). See the third section of the Walker report, Exhibit 2, at pages 3-4.

Specifically, in the middle of page two of his report (Exhibit 2), the County’s expert observes, the following:

"1. The first goal of our testing was to determine effects of using a common main supply riser. The following questions were posed and investigated:

a. If the gas were turned off on one boiler either manually or by malfunction would the thermostat trigger the circulation of water heated by another boiler to flow through the apartment? Answer: All experts present agreed that by virtue of the common riser the circulator would draw from the main riser which is water heated by other units. This was not currently happening in any of these units, it was only a potential and therefore it was not considered to be the cause for the disparity in the gas bills.

Conclusion: It was agreed that the circulator should be wired so they could not operate if the gas burners were not operating." (Emphasis added.)

Thus, there was observed absolutely no actual problem (only a potential problem that was not existing as a matter of fact) that exhibited an improper installation or had an improper effect or damage to the tenants.

Later in the report, at Section C, at the top of page three, this expert calculated the maximum damage caused by this common riser hook up was 1.2 cents per day difference. However, the expert concluded that "this is clearly not the cause for the disparity in the heating bills." See page 3, Exhibit 2.

Of course, if roll back of the conversion were actually the solution intended by the Commission, then tenants who moved in after the conversion and had agreed to pay the utility bills (e.g., Floyd, Brown and Roberts) would not be entitled to any "damage award" by the Commission. However, they too were given awards in the amount of their gas bills during a specified period of time. This confirms the conclusion that the Commission basically blessed the so-called heating conversion itself, under the Code, but felt that a "defective tenancy" had somehow occurred and that by reason of this defective tenancy, damages should be awarded. However, in order for these damages to be actual damages, there must be some basis in fact and evidence for them. As discussed above, there is absolutely no evidence of any actual problem being observed and, even if there were, as the expert for the County indicated (and this is the only evidence whatsoever of a cost quantity associated with the damage), each tenant would be entitled to, at most, 1.2 cents per day for damages.

Clearly, this element of damage finding by the Commission is wholly without any support either in law or in fact before the Commission and is entirely contrary to the direct testimony of the experts, particularly the County’s own expert, Joseph Walker. The so-called measure of damages of past gas bills is completely irrational in as much as it had nothing to do with the actual damage that could have been experienced, but instead was merely a convenient number to "latch onto" without any basis in law or fact. 

2. Decision to grant each and every tenant a 25% reduction to rent for a specified period of time due to housing violations.
The decision of the Commission to grant a total of $10,216.50 as damages to tenants for housing violations was completely without any substantial evidence supporting it, is arbitrary on its face and rather than a determination of damages, is clearly a penalty which is beyond the authority of the Commission to grant; further, in several cases, the amount granted to certain tenants exceeds the authority of the Landlord-Tenant Commission under Chapter 29A, Montgomery County Code and fails to correspond with required "actual loss." 

On the face of the decision rendered on August 3, 1999, the Commission granted to each and every tenant a damage "rebate" from the landlord of 25% during the time that the Commission found the housing code violations to be existing. These tenants lived in different apartment buildings as well as, of course, different apartment units, and each had different and unique circumstances pertaining to whether or not the housing code violations affected them and their individual units. On its face, the opinion of the Commission failed to find actual damages caused to each tenant and each tenant’s leasehold interest. Instead, this Order was clearly a penalty unconnected with any actual damage caused to the Tenants. Of course, this is violative of the limits on authority of the Commission found in Section 29-43(b)(2).

In fact, there was absolutely no evidence produced whatsoever of the actual damage these housing code violations caused to any particular leasehold interest of any one of the tenants in the record. Thus, a ruling of the Commission attempting to find actual damages would have been void because it was not based on any substantial evidence of the record. Nevertheless, this lack of evidence does not justify any authority of the Commission to arbitrarily set a 25% rebate amount to be paid by the Landlord to every one of the tenants, regardless of their circumstances.

Clearly, on its face, such a 25% award for every tenant, regardless of their circumstances and relation to any of the pending code violations (if they existed at all), is a penalty not a finding of actual damages. Such a penalty is clearly beyond the authority of the Landlord-Tenant Commission. Not only is this authority beyond that which is granted by Section 29-43(b)(2), Montgomery County Code, but it is also directly violative of the prohibition on giving such an administrative body penalty authority as discussed in the Investors Funding case. See County Council for Montgomery County v. Investors Funding Corp., 270 Md. 403, 312 A.2d 225, 246-247 (1973). In Investors Funding, the Court of Appeals specifically ruled illegal the power given to the Landlord-Tenant Commission of Montgomery County to "impose a civil penalty not exceeding $1,000.00 for violation of any provision of the chapter". The present provisions of Section 29-43(b) were written specifically to address the concerns of the court and to limit the authority of the Commission to award only "actual damages or loss". Clearly, this authority has been exceeded in the across the board penalty award of the 25% rent rebate in this case.

Of course, as noted above, there is absolutely no substantial evidence in the record that would justify such a reduction of 25% because there is no testimony as to actual damage to each of the various tenants and their leasehold interests. In order for there to be a proper damage finding, specific evidence of monetary damage must exist in the record as to each and every tenant in accordance with their individual circumstances -- this is not the case in this proceeding. Further, it is nothing short of incredible to assert that there is any evidence that could possibly exist in the record of this case that could possibly justify an across the board award of 25% rebate to the tenants against the Landlord, regardless of which unit and which building the tenants occupied and whether or not there were any code violations in the unit or even around the unit that could have possibly affected that tenant’s leasehold possession or use.

Of course, citations within the Order to a trial court level decision (Brooks et al v. Blair Park Partnership -- e.g., page 65 of the Order) is irrelevant and inappropriate for several reasons. These reasons include the fact that such a decision is not binding precedent and the fact that the Blair Park case involved reduction of 100% of the rent (total inability to utilize the premises) for serious violations of life safety codes requiring revocation of occupancy permits; there is no question that such serious life safety code violations were not at issue in this case! See, e.g., p. 29 of the Opinion, discussing Blair Park and admitting the differences in this case. Thus, the Commission reliance on this case is entirely misplaced and their lack of any substantial evidence to support the bizarre 25% across the board rebate award is nothing short of outrageous and certainly fits well within the definition of arbitrary and capricious and without legal effect. This award is tantamount to the imposition of a penalty, without standards, declared illegal under Investors Funding.

3. The rent refund of $90.00 each to tenants Jamilla and Collins for rent overpaid during the conversion process is contrary to the direct documentary evidence and testimony submitted in this case, and is unsupported by any substantial evidence in the record.

4. The order of the Commission is internally inconsistent and improper.

The Order improperly awards double damages against the Landlord in favor of the tenants by first awarding to tenants certain reductions in rent by reasons of housing code violations, and then, in effect, awarding additional reductions to rent by reason of the conversion "rebate" ordered by the Commission, together with additional refunds to Jamilla and Collins. The Order, within itself, double counts and awards double damages against the Landlord in favor of the tenants in certain of these overlapping calculations. Further, the Commission’s awards of gas bill damages to Floyd, Brown and Roberts, by reason of the conversion to individual heating/meters is entirely irrational because they all moved into their rental units after the conversion, with express agreements to pay their respective utility bills separate from and in addition to their rent. The Commission, in awarding full refunds of their gas bills during specified periods, acted arbitrary, and unconstitutionally violated and abridged the Landlord’s contract rights.

B. The Commission Wrongfully Ordered Relief Against All Petitioners, Including the Individuals, Lewis I. Winarsky and Susan L. Winarsky.

There is absolutely no evidence in the record that either Lewis I. Winarsky or Susan L. Winarsky, as individuals, have any contractual or leasehold privy with any of the tenants giving rise to the liability sought to be imposed by the Commission. Further, as to the various entities involved, there is no attempt to separate or determine which of its entities entered into the specific leasehold agreements with particular tenants. Instead, there is a general heaping together hodgepodge of findings which requires all of the petitioners (even the individuals!) to be responsible for each and every one of the awards to each and every one of the tenants. This new concept of arbitrary joint and several liability is completely unsupported by any evidence in the record and is contrary to law. For this reason, it is respectfully submitted that the order and decision as to Susan I. Winarsky and Lewis L. Winarsky be dismissed; and that all liability against the entity petitioners be dismissed unless there can be some demonstration, from the record, that a particular entity is responsible and is in privy with the tenant for which a specific award is being made. The Order as rendered is not proper nor legally defensible -- this sloppy "lumping together" of liability and exposure to damages is beyond the authority of the Commission.

C. The Commission Acted Beyond Its Authority in Issuing the Order of August 3, 1999.

1. The Commission may not exercise judicial authority in awarding damages to individual tenants pursuant to the laws of the State of Maryland and the due process clause of the United States Constitution.

It is respectfully submitted that the awarding of money damages by the Commission against the landlords in favor of the tenants in this case and under the purported authority of Chapter 29 of the Montgomery County Code is an unconstitutional exercise of authority, contrary to the Maryland Constitution and the due process clause of the United States Constitution. The Maryland Constitution Article IV, Section 1, reserves judicial functions exclusively to the courts and does not permit judicial awards of damages in private civil actions between landlords and tenant to be made by an administrative body such as the Montgomery County Landlord-Tenant Commission.

As set forth in County Council for Montgomery County v. Investors Funding Corp., 270 Md. 403, 412 A.2d 225 (1973), any awards by administrative body with the possible exception of awards based on actual, measurable "liquidated" damages (that are, in effect, ministerially determined), are beyond the authority of an administrative body unless there are strict standards and guidelines delegated along to that authority. The only standards and guidelines contained with respect to the exercise of such authority by the Commission is contained at Section 29-43(b)(2). This section permits an award of damages so long as the damages are determined as "the actual damage or loss" and so long as the damage amount does not exceed $2,000.00. The Commission, in the Order that it rendered in this case, directly violated the principals set forth in Investors Funding, and attempted to exercise judicial authority in rendering "damages" that were neither liquidated, nor certain, nor actual nor supported by any direct evidence whatsoever in the record. In effect, by determining the entire amount of gas bills paid would be the measure of damages even though acknowledging that the conversion met all the requirements of the Code with respect to conversion to the individual heating/meters, the Commission strayed into the realm of judicial authority which cannot be delegated to such an administrative body. Further, when the Commission ordered an across the board 25% rent rebate to the tenants by reason of the existence of minor housing code violations, particularly in the face of the complete lack of evidence of an actual, liquidated amount damage for each tenant (or expert testimony with respect to actual damage), the Commission exercised judicial authority beyond the proper limits of its delegated authority under Section 29-43(b)(2), Montgomery County Code.

Therefore, the Commission in rendering its so-called "damage" decisions without regard to actual, quantifiable, and specific damages experienced, in fact, by each tenant, violated the restrictions of the Maryland Constitution and the fundamental due process requirements applicable under the 14th Amendment of the United States Constitution.

2. The Commission failed to follow the requirements of procedural due process in accordance with the requirements of the Administrative Procedure Act, Section 2A, Montgomery County Code. 

The proceedings of the Commission in this case were amongst the sloppiest ever observed in Montgomery County. Literally, it was the gang who could not shoot straight. Proper notice of charges as required by 2A-5, / Montgomery County Code, was not given. / The Commission failed to follow 2A-7 requirements of pre-hearing submissions -- although Petitioners complied, neither the County nor the tenants followed the requirements. / Further, the burdens of proof requirements of 2A-8(d) and 2A-10(b) were not followed in as much as the rulings were not based on any substantial evidence, and finally, mandatory requirements for time within which a decision must be rendered was also violated. See 2A-10, and the Memorandum previously filed.

Numerous motions were filed for appropriate relief, and those motions are hereby incorporated herein as basis for reversal of the Order and a finding in favor of your petitioners herein. See Exhibits 3 and 4 to the previously filed Memorandum, hereby incorporated herein.

Further, the position of the Commission that the tenants were complainants, but the County was not, was ludicrous on its face as demonstrated by the transcripts. The County and the Commission again and again called their own witnesses, submitted evidence, and basically orchestrated the conduct of the case against your petitioners. Clearly, under the Administrative Procedures Act, the County was required to give pre-hearing notice to the petitioners of the various contentions, witnesses, documents, etc. Further, the quality of this notice was to be specific and not general.

Instead, the Commission presumed a fantasy posture of maintaining that the County was not the complaining party and, further, contended that notice of specifics was met by presentation of boxes of code enforcement materials, without any further specificity whatsoever. Such conduct not only violated the specific requirements of notice in section 2A-5 and 2A-7, Montgomery County Code, but also violated the rudimentary requirements of due process under the United States Constitution and the laws of the State of Maryland.

Further complicating matters was the ruling that certain absent tenants could be represented by one of the tenants, Mr. Johnson. Although tenants who are not similarly represented, and were absent, were properly dismissed from the action (Cairnes), the other absent tenants were permitted to proceed because they were "represented" by their fellow tenant. Although the Landlord’s right of cross-examination was violated (not to mention the illegal representation issue, addressed below), this fatal defect in the process was completely and improperly overlooked by the Commission.

Petitioners hereby renew the two previously filed Motions for Appropriate Relief as grounds for nullification of the Order rendered by the Commission. See Exhibits 3 and 4 to the previously filed Memorandum. The fatal flaws objected to in these Motions render the Order invalid.

D. Contrary to the requirements of State law and other applicable laws, the Commission permitted one of the tenants to represent several absent tenants in the presentation of their cases in the proceedings.

Tenants who failed to appear to present evidence and to be subject to cross examination were properly dismissed by the Commission. See attached Exhibit 5, ordering the dismissal of the complaint of Susan Cairnes. However, contrary to State law and the consistent provisions of County law, the Commission permitted several of the tenants (Floyd, Farr and Volante) to be represented, in their absence, by another tenant, Johnson, over objection of the Petitioner. See Order, pages 3-5. As presented in the Motion for Appropriate Relief, Exhibit 3 to the previously filed Memorandum, representation of the charging party by other than the charging party himself or herself, or by an attorney duly admitted to practice in Maryland, is prohibited by Administrative Procedures Act at Section 2A-6(c) and Section 2A-8(g), Montgomery County Code and State law. Although in certain circumstances corporate entities or partnerships can be represented by lay persons, there is no question that under no circumstances may an individual be represented by a person other than an attorney admitted to practice in Maryland before a quasi-judicial body such as the Commission.

This representation requirement is one of State law and cannot be unilaterally authorized by the Commission, as it apparently attempted in this case. See Section 10-601, Business Occupations and Professions Article, Annotated Code of Maryland; Lucas v. Bar Association of Montgomery County, 35 Md. App. 442, 371 A.2d 669 (1977); Public Service Commission v. Hahn Transportation, Inc., 253 Md. 571, 253 A.2d 845 (1969).

Further, it is important to note that a legislative authority cannot alter this prohibition on practice of law and representation. Rather, the judicial branch must alter this prohibition. Accordingly, even if the County presumed to permit such representation before the Commission, it would not be proper or legal. See Public Service Commission v. Hahn Transportation, Inc., supra 253 A.2d 852 ("Under our constitutional system of separation of powers, the determination of what constitutes the practice of law and the regulation of the practice and of its practitioners is, and essentially and appropriately should be, a function of the judicial branch of the government.").

There is no question whatsoever that such representation of individual parties in such a quasi-judicial proceeding as that before the Commission in this case is the practice of law. Accordingly, it is respectfully submitted that Mr. Johnson's representation of the three tenants, Floyd, Farr, and Volante, was illegal and improper and accordingly all consequences of that representation must be declared void, including all Orders in favor of these three tenants. Further, in accordance with the Motion for Appropriate Relief previously filed, the complaints of these three tenants must be dismissed. To do otherwise, in addition to permitting an illegal act of representation and practice of law, these Orders would constitute violations of due process inasmuch as these tenants were not available for cross-examination by Petitioners. Of course an absent tenant simply cannot meet the burden of proof under the Administrative Procedure Act, and accordingly, like the tenant already dismissed (Cairnes), the complaints of these three tenants must also be dismissed. See Exhibit 5, including finding of failure to bring forward tenant’s case in chief.

E. This Proceeding Conducted by Montgomery County as De Facto Complainant Was Barred as to Housing Code Violation Complaints by a Previous Settlement with the County.

The petitioners, without admission of wrongdoing with respect to housing code violations, and with repair and abatement of all outstanding violations to the satisfaction of the County, entered into a full and final settlement agreement with the County as to the housing code violations. See Letters dated February 16, 1998 and October 21, 1997 to the County Attorney for Montgomery County, attached hereto as Exhibit 1.

The settlement outlined in these letters to the County Attorney settled all proceedings that would be conducted by the County with respect these housing code violations. As stated in the outline of the settlement contained in the October 21, 1997 letter at page 2, "no other penalties or assessments with respect to pending code violation notices for buildings owned by the Winarskys’ should be made so long as the work is carried out, as proposed." As confirmed in the letter dated February 16, 1998, the settlement was fully performed by Winarsky and hence the Landlords’ were entitled to the benefits of the settlement.
Of course, the settlement related to the County as a whole. The County includes not just the Offices of the County Attorney or merely the staff of Code Enforcement, but it includes also the Landlord-Tenant Commission, all members of the Executive and Legislative Branches and, even the Landlord-Tenant Commission itself. The County is one government entity.

Contrary to the provisions of this Settlement Agreement, the County proceeded to press forward with these proceedings before the Commission which resulted in the various "Orders" against the landlords. It is respectfully submitted that the Settlement Agreement with the County and with the County’s Chief Legal Officer, County Attorney, binding the County as an entire entity and all of its elements with respect to the housing code violations, prohibited the proceedings of the Commission with respect to housing code violations. Of course, this did not foreclose the tenants from pursuing such housing code violation assertions in separate tribunals available to them (e.g., the District Court or the Circuit Court), but this did foreclose the County from convening these proceedings in the form of the Commission and from being the de facto complainant asserting these violations as a cause for relief, to be later enforced by the County.

Therefore, it is respectfully submitted that by reason of the Settlement Agreement, all awards contained in the Order with respect to the 25% rebate of rent for housing code violations be vacated and declared null and void and of no further effect.

CONCLUSION

It is respectfully submitted, for the above stated reasons, that the Order of the Commission must be vacated and judgment be entered for the Petitioners herein.

Respectfully submitted,

By:

Clyde "Rocky" Sorrell
Hogan & Hartson, LLP
600 Jefferson Plaza
Suite 203
Rockville, MD 20852
(301) 315-8029
Attorneys for Petitioner