MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL
RENT
STABILIZATION &
ARBITRATION BOARD,
Tuesday, February 23, 2010 at 6:00 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level
I. Call
to Order
President Gruber called the meeting to order at
6:00 p.m.
II. Roll Call
Commissioners
Present: Beard;
Crow; Gruber; Henderson; Hurley; Mosbrucker.
Commissioners
not Present: Marshall;
Mosser; Murphy; Yaros.
Staff
Present: Lee;
Wolf.
III. Approval
of the Minutes
MSC: To
approve the Minutes of January 19, 2010.
(Mosbrucker/Hurley: 5-0)
IV. Remarks
from the Public
A. Tenant Julian Lagos of 128 Garces Drive
(AT100003) objected to the conduct of the landlord’s attorney at the hearing in
his case and asked for a new hearing.
He said that the attorney called him a liar several times, which swayed
the Administrative Law Judge’s (ALJ’s) judgment. Mr. Lagos cited the State Bar’s Rules of Professional
Conduct in claiming that the ALJ should have recused herself and asking that
his landlord’s attorney be barred from any future hearings he is involved in.
B. Tenant Ray Hartz said that the Rent
Board’s process is unfair to tenants in that the Board’s policies are available
to landlords but tenants remain unaware since the policies are not written
down. Mr. Hartz claimed that the
ALJ in his case didn’t let him make his arguments and parties are not allowed
to make their arguments to the Board, who are the ultimate deciders. Mr. Hartz said that he is acting to
protect the constitutional rights of tenants, and not out of vengeance.
C. Tenant Raqui Michael of Parkmerced said
that the landlord’s attorney is taking advantage of the process by providing
fraudulent testimony and evidence at both of the Rent Board hearings he has
been involved in. Mr. Michael said
that this lawyer has engaged in misconduct and been suspended three times by
the State Bar. The landlord in his
case was allowed to give phone testimony over his objection, which Mr. Michael
believes denied him the right to cross-examination.
D. Joseph Sharai, the tenant in the case
at 75 Surrey (AL100001), said that he had an oral lease and was not told that
there were two units on the water meter.
He told the Board that he only had one roommate at a time; the cause of
the excess water bills was a leak in the downstairs unit; and the landlord is
now refusing to cash his rent checks.
His landlord called in sick on the day of the hearing and the manager
failed to show up. Mr. Sharai
asked that the Board deny the landlord’s untimely appeal.
E. Attorney Karen Uchiyama, representing
the landlord at 397 Naples (AL090267), told the Board that this case started as
a decrease in services petition over the question of whether the landlord
needed to upgrade the electrical system in the building. This has been a “big issue” at the
Department of Building Inspection and more than ten inspectors have gone out to
the property. An inspector finally
said that the work was unnecessary but another inspector overturned this
decision. Ms. Uchiyama asked that
the Board table consideration of this case until all inspectors “speak with one
voice” and there is a final decision.
F. Tenant Vilma Molina of 397 Naples said
that the landlord’s claims are “bogus,” that the landlord has had plenty of
time, and that the inspector shouldn’t have signed off on work that wasn’t
completed. Ms. Molina maintained
that there are still outstanding Notices of Violation.
V. Consideration
of Appeals
A. 427 Stockton #709 AT100012
The
landlord’s petition seeking approval of utility passthroughs for 43 of 72 units
was granted. One tenant appeals
the decision on the grounds of financial hardship.
MSC:
To accept the appeal and remand the case for a hearing on the tenant’s claim of
financial hardship. (Mosbrucker/Hurley: 5-0)
B. 465
Ellis #312 AT100005
The
tenant’s petition was dismissed due to his failure to appear for the properly
noticed hearing. His appeal of the
dismissal was accepted and remanded for a new hearing with the stipulation
that, absent extraordinary circumstances, should the tenant again fail to
appear, no further hearings would be granted. The tenant failed to appear for the properly scheduled
remand hearing and now appeals that dismissal on the grounds that: he is disabled; his landlord unlawfully
increased his rent each year and illegally evicted him; and his landlord
discriminated against him because of his race.
MSC:
To deny the appeal.
(Hurley/Gruber: 5-0)
C. 959
Powell #1 AT100011
The
landlord’s petition for certification of capital improvement costs was granted,
resulting in a monthly passthrough in the amount of $11.54 to 10 of 12
units. The tenants in one unit
appeal the decision on the grounds of financial hardship.
MSC:
To accept the appeal and remand the case for a hearing on the tenants’ claim of
financial hardship.
(Henderson/Mosbrucker: 5-0)
D. 825
Pine #12 AT090261
& -62
The
tenants’ hardship appeal was denied on remand because the ALJ found that the
tenants’ rent comprised only 17% of their combined income. The tenants appeal the remand decision,
claiming that a recent pay cut makes them eligible for the Board’s hardship
guidelines.
MSC:
To accept the appeal and remand the case to the Administrative Law Judge to
evaluate the tenants’ changed financial circumstances; a hearing will be held
only if necessary.
(Gruber/Mosbrucker: 5-0)
E. 3479
Mission #1 AT100007
& -08
The
landlord’s petition for certification of capital improvement costs to 3 of 4
units was granted. The tenants in
one unit appeal the decision on the grounds of financial hardship as well as
arguing that the work was in the nature of repair and did not constitute
capital improvements.
MSC:
To accept the appeal and remand the case to the Administrative Law Judge for a
hearing on the tenants’ claim of financial hardship only. (Henderson/Gruber: 4-1; Mosbrucker dissenting)
F. 128
Garces Dr. AT100003
The
tenant’s petition alleging a substantial decrease in housing services because
of changes to the refuse removal system on the property was denied because the
ALJ found that mere inconvenience did not warrant a rent reduction in this
case. On appeal, the tenant claims
that the ALJ should have declared a mistrial or recused herself from the case;
and that she failed to consider the reduced volume of the new trash containers,
the landlord’s posted trash disposal policy and history of crime in carports,
and the limited mobility of a co-tenant in the unit.
MSC:
To deny the appeal.
(Hurley/Gruber: 5-0)
G. 702
Baker St. AT100002
The
tenant’s petition alleging decreased housing services was denied because the
ALJ found that the tenant had failed to provide the landlord with access to the
unit. On appeal, the tenant claims
that: the ALJ refused to allow him
to introduce witness statements, testimony and documentary evidence at the
hearing; he provided a key to the unit to the landlord’s contractor; and it was
the tenant who alerted the building inspector to the fact that the hot water
pipes are not insulated.
MSC:
To deny the appeal due to the tenant’s failure to provide the landlord with
access to the unit without prejudice to re-filing should the conditions not be
remedied after the tenant has provided the landlord with access. (Hurley/Gruber: 5-0)
H. 75 Surrey St. AL100001
The
landlord’s appeal was filed over one month late because the landlord claims
that he mailed an appeal to the Rent Board office in a timely manner, but it
was never received.
MSC:
To recuse Commissioner Mosbrucker from consideration of this appeal. (Crow/Gruber: 5-0)
MSC:
To find good cause for the late filing of the appeal.
(Crow/Hurley: 5-0)
The
tenant’s petition alleging decreased housing services was granted and the
landlord was found liable to the tenant in the amount of $840.52 due to the
fact that the tenant discovered he was paying the water bill for his neighbor’s
unit as well as his own. The
landlord appeals, claiming that the tenant lied about his water consumption
because he has roommates and rents out rooms in the unit when he travels for
work; and the leak in the downstairs unit was fixed without delay.
MSC:
To deny the appeal.
(Henderson/Crow: 5-0)
I. 695 John Muir Dr. #416 AT090260
The
landlord’s petition seeking approval of utility passthroughs for 200 of 715
units was granted. One tenant
appeals the decision, maintaining that:
the order exceeds the Rent Board’s powers by requiring the tenants to
pay the landlord’s costs for utilities other than “tenants’ utilities,” which
are utilities delivered exclusively to the tenant’s unit for the tenant’s own
use and under the tenant’s individual and exclusive control and discretion.
MSC:
To deny the appeal.
(Hurley/Gruber: 5-0)
J. 397 Naples AL090267
The
tenant’s petition alleging decreased housing services and unlawful rent
increases was granted, in part, and the landlord was found liable to the tenant
in the amount of $1,148.13 for rent overpayments and $1,160.70 due to decreased
housing services. On appeal, the
landlord maintains that: the
electrical equipment in the unit is adequate and code compliant; the existing
windows were installed with permits and either the prior or current Housing
Inspector made an error; the plumbing problem is not substantial; and all of
the issues in the petition have been abated in a timely manner, but clearances
from the Department of Building Inspection were not forthcoming.
MSC:
To deny the appeal.
(Mosbrucker/Henderson: 5-0)
K. 260 West Portal #7 AL100004
The
tenants’ petition alleging unlawful rent increases and the landlord’s failure
to discontinue capital improvement passthroughs was granted and the landlord
was found liable to the tenants in the amount of $11,730.69. The landlord appeals the decision,
arguing that: there is no evidence
that there was a utility passthrough as the initial base rent could have
included a flat charge for utilities; the tenants’ base rent in 1997 was
established by the Rent Board and agreed on by the parties; and it is unfair
for the decision to go back so far when the landlord has not taken all
allowable rent increases nor assessed the tenants’ share of the Rent Board fee.
After
discussion, the Board agreed to continue this appeal to the next meeting. At that time, the Commissioners will take
up the policy question of whether to adopt a 3-year Statute of Limitations for
a landlord’s failure to discontinue a capital improvement or utility
passthrough and whether to codify any such policy in the Rules and Regulations. The Board will then decide the instant
appeal.
L. 1123 Kansas AT100009
The
tenants’ petition alleging an unlawful rent increase from $2,130.65 to
$3,580.00 was denied because the ALJ found that the subject unit is a
separately alienable condominium and the increase is therefore warranted under
Costa-Hawkins. The tenants appeal,
arguing that: the lower part of
the condominium is a separate unit, which cannot be sold separately, and
therefore the subject unit is not exempt pursuant to Costa-Hawkins; whether the
other unit is currently rented is irrelevant; the landlords are manipulating
the use of the property to get around rent control; the landlords failed to
prove that there was a bona fide purchase of the unit for value; the landlords
represented that the unit is covered by rent control, which is specified in the
lease, and was relied on by the tenants; and the rent increase is in excess of
market rent for the unit.
MSC:
To recuse Commissioner Mosbrucker from consideration of this appeal. (Henderson/Gruber: 5-0)
MSC:
To accept the appeal and remand the case to the Administrative Law Judge for a
hearing on the issue of whether there was a bona fide transfer of the unit for
value; to deny the appeal as to all other issues. (Beard/Crow:
5-0)
M. 752 Pacific #45 AT100010
The
landlord’s petition for a rent increase from $306.00 to $850.00 pursuant to
Rules §1.21 was granted because the ALJ found that the subject unit is not the
tenant’s principal place of residence and a subsequent occupant of the unit has
never paid rent and is not a “Tenant in Occupancy.” On appeal, the tenant claims that: the previous management company agreed to allow her relative
to move in to the unit without the rent being increased and the new owner
should be bound by this agreement; the subject unit is her second home, which
she plans to live in even after she retires; and her foster son has resided at
the subject unit for over six years.
MSC:
To deny the appeal.
(Hurley/Gruber: 5-0)
VI. Communications
In
addition to correspondence concerning cases on the calendar, the Commissioners
received the following communications:
A. Articles from S.F. Weekly, the S.F.
Examiner, the S.F. Chronicle, and the CoStar Group web page.
B. The case of Chacon v. Litke
(2010 DJDAR 2160).
C. A letter from tenant Ray W. Hartz, Jr.
D. A letter from landlord Greg Blaine.
E. An announcement for the Sunshine and
Ethics Training taking place on March 2nd.
VII. Director’s
Report
Executive
Director Wolf informed the Board that legislation sponsored by Supervisor Mar
making families with minor children a “protected class” for purposes of owner
move-in eviction during the school year passed unanimously at the Board of
Supervisors on January 26th and will take effect on March 14th. Legislation sponsored by Supervisor
Avalos extending eviction protection in the event of foreclosure to post-1979
rental units was continued to March 2nd. Due to the City’s budget deficit, free parking will no
longer be extended to City Commissioners and Board members. Ms. Wolf briefly discussed a pending
ballot initiative having to do with tenant hardship. She also reminded the Commissioners to file their Statements
of Economic Interest by April 1st.
Lastly,
and most importantly, the entire Board extends their congratulations to
Commissioner Mosser on his recent marriage and Commissioner Yaros on the birth
of baby Andrew Robert Cowie on February 21st.
IV. Remarks
from the Public (cont.)
G. Henry Shain, attorney for the landlord
in the case at 1123 Kansas (AT100009), told the Board that in court one
couldn’t present new evidence on appeal.
The tenants never brought up the issue of whether the condominium’s sale
was a bona fide transfer for value and the landlord therefore wasn’t on notice
of the issue. Mr. Shain then outlined the history of the transactions.
H.
Earl Lawrence, the tenant in the case at 702 Baker (AT100002), told the Board
that he “got along just fine” with the prior owner of the building, but the
current owner’s maintenance man has been making mistakes. Mr. Lawrence denied that he failed to
provide the landlord with access to make repairs and said that the contractor
had a series of personal events that prevented him from showing up. The landlord did a good job on work in
the unit according to Mr. Lawrence.
He expressed his belief that he has done everything that he was supposed
to do and that the ALJ was wrong.
I. Jeanne Jorge, attorney for the landlord
at 702 Baker Street, clarified the disposition of the appeal.
J. Michael Mak, the landlord at 702 Baker,
said that the tenant has no phone and feels disrespected if notice is not given
according to his specifications, but the landlord has no key to the unit. Mr. Mak maintained that he is given
Notices of Violation because the tenant puts his belongings under the stairs,
which constitutes a hazard and a nuisance. He now has to upgrade the electrical system in the building
and he has to go through the tenant’s unit.
K. Michael Sameroski spoke in support of
tenant Earl Lawrence, alleging that the landlord and his attorney wrongfully
conspired to evict the tenant. He
said that a 3-day notice was served during the pendency of the appeal and asked
that the Board reconsider their denial since there are habitability defects on
the premises.
L. Tenant Ray Hartz Jr. said that he is
going to find out how the Board operates and that he is “hostile for a
reason.” Mr. Hartz believes that
the Board will let him talk but not listen to anything he has to say and that
ALJ Berg was biased and unfair.
Mr. Hartz reiterated his contention that landlords have passthrough
agents who know the Board’s policies, of which tenants are unaware.
VIII. New
Business
Departmental
Budget
Executive
Director Wolf outlined the Department’s budget proposal for Fiscal Year
2010-2011 and answered the Board’s questions, after which time the Board passed
the following motion:
MSC:
To approve the Department’s proposed budget for Fiscal Year 2010-2011. (Gruber/Hurley: 5-0)
IX. Calendar
Items
March
2nd, 9th, 16th and 23rd, 2010 –
NO MEETINGS
March
30, 2010
15
appeal considerations
Old
Business: Limitations Period for
Refund of Capital Improvement and Utility
Passthrough Overpayments
New
Business: Proposed Amendment to
SRO Hotel Visitor Policy to Ensure
Access to Census Workers
X. Adjournment
President
Gruber adjourned the meeting at 8:15 p.m.
NOTE:
If any materials related to an item on this agenda have been distributed to the
Commission after distribution of the agenda packet, those materials are
available for public inspection at the office of the Rent Board during normal
office hours.