STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: AJ 710204-RO
DRO DOCKET NO.: N-GC-86-S-72-R
ARTHUR T. MOTT,
------------------------------------X TENANT: AUDREY HOLLIS
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On October 8, 1986, the above named petitioner-owner filed a petition for
Administrative Review against an order issued on September 15, 1986, by
the Rent Administrator, 50 Clinton Street, Hempstead, New York, concerning
housing accommodations known as Apartment 427, 31 Brewster Street, Glen
Cove, New York, wherein the Rent Administrator imposed a $250.00 fine on
the owner for including a temporary fuel surcharge of 2% when stating the
Legal Registered Rent on the 1985 Apartment Registration form.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the administrative appeal.
The tenant commenced this proceeding on February 24, 1986 by filing an
objection to the apartment registration alleging, in part, that the owner
stated on the registration form that the Legal Registered Rent was $526.05
when in fact it was $515.81, not including a separate 2% fuel surcharge
In answer to the complaint, the owner stated, in relevant part, that the
tenant's legal rent as of April 1, 1985 was $515.81, for a total rent of
$526.05 including the electric surcharge, i.e., the owner agreed with the
tenant's breakdown of the rent. The petition neither affirmed nor denied
that the registration form had been incorrectly filled out.
In this petition, the owner contends that the Rent Administrator's Order
is incorrect and should be modified. The owner cites Section 2500.2(e) of
the Tenant Protection Regulations (TPR) whose definition of Legal
Regulated Rent states that "rents may be formulated in terms of rents and
other charges and allowances", implying that including the 2% surcharge in
the box for the Legal Registered Rent was at worst an inadvertent error.
Furthermore, the owner argues it was a Rent Guidelines Board Order which
allowed the 2% surcharge and which stated the surcharge was not part of
the Legal Regulated Rent. Such an order is contended to be neither a
part of the Emergency Tenant Protection Act (ETPA) nor a rule or
regulation under the ETPA and therefore no fine is permitted under Section
2506.2(b) of the TPR.
DOCKET NUMBER AJ 710204-RO
The tenant did not answer this petition,although given the opportunity to
The Commisioner is of the opinion that this petition should be granted.
There is nothing in the record to indicate that this owner had been
warned to discontinue the inclusion of the 2% surcharge in the box calling
for the Legal Registered Rent. Although, the directions for filling out
the 1985 apartment registration form states separate charges should not be
included under "Legal Registered Rent", there is no such warning on the
form itself. Since it was legal to charge $526.05 on April 1, 1985 it was
not unreasonable to think that was the Legal Registered Rent.
There is also nothing in the record to indicate that the owner ever
charged an excessive rent based on this incorrect rent stated on the form.
Accordingly, the Commissioner hereby finds that the Administrator should
not have fined the owner for what was apparently merely an error.
However, the owner is incorrect that such a fine could not be imposed had
the misstatement been knowing. Section 2506.2(b) of the TPR allows such a
fine for a violation of an order issued under the ETPA. A Rent Guidelines
Board Order is such an order.
The owner is hereby advised to correct such error in any other apartment
registration(s). Failure to do so may result in a fine in a future
THEREFORE, in accordance with Emergency Tenant Protection Act and
Regulations, it is
ORDERED, that this petition be, and the same hereby is, granted and the
Rent Administrator's order be, and the same hereby is, modified in
accordance with this Order and Opinion.