MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL
RENT
STABILIZATION &
ARBITRATION BOARD,
Tuesday, March 30, 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
6:03 p.m.
II. Roll Call
Commissioners
Present: Beard;
Crow; Gruber; Henderson; Hurley; Marshall; Mosbrucker; Murphy; Mosser.
Commissioners
not Present: Yaros.
Staff
Present: Gartzman;
Wolf.
III. Approval
of the Minutes
MSC: To
approve the Minutes of February 23, 2010.
(Mosbrucker/Henderson: 5-0)
IV. Remarks
from the Public
A. Ken Bukowski, the tenant at 798 Post
(AT100018 & -19), told the Board that the person most affected by the
decision in his 1.21 case is his domestic partner, who has been staying in the
subject unit for a long time. Mr.
Brukowski said that the best evidence, film from the surveillance camera,
wasn’t presented at the hearing.
He asked that the rent be raised to a “reasonable level.”
B. Valentina Guisti, daughter of the
landlord in the case at 260 West Portal #7 (AL100004), said that there are two
issues in the case: whether a
Statute of Limitations should be applied to the overpayment; and what was the
tenants’ lawful base rent. Ms.
Guisti maintained that a Rent Board Administrative Law Judge (ALJ) oversaw a
determination of the tenants’ base rent in 1997 and the landlord relied on the
tenants’ Estoppel Certificate when she purchased the property. The Rent Board now has a clause for
when there is no determination made as to the lawfulness of the base rent but
this case fell during the time when there was no such clause. The fact that parties cannot appeal a
Technical Correction to a Decision should mean that the decision is final.
V. Consideration
of Appeals
A. 2755 Franklin #4 AT100033
The
landlord’s petition for certification of capital improvement costs to 2 of 12
units was granted, resulting in a monthly passthrough in the amount of
$61.49. The tenant in one unit
appeals the decision on the grounds of financial hardship.
This
unit was withdrawn from the petition prior to the Board meeting.
B. 240 Cumberland #107 AT100025
& -26
The
landlord’s petitions for certification of capital improvement costs were
granted, resulting in monthly passthroughs in the amount of $2.77 and $53.66 to
the tenants in 25 units. One
tenant appeals the decisions on the grounds of financial hardship.
MSC:
To accept the appeals and remand the cases for a hearing on the tenant’s claims
of financial hardship.
(Mosbrucker/Murphy: 5-0)
C. 1565 Washington #2 AT100014
The
landlord’s petition for certification of capital improvement costs for 8 of 15
units was granted, resulting in a monthly passthrough in the amount of
$60.20. The tenant in one unit 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.
(Marshall/Mosbrucker: 5-0)
D. 1616
Taylor, Apt. 7 AT100021
The
landlord’s petition for certification of capital improvement costs to 11 units
was granted, resulting in a monthly passthrough in the amount of $41.00. 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.
(Marshall/Mosbrucker: 5-0)
E. 1121
Alabama #1/2 AL100020
The
tenant’s petition alleging decreased housing services and unlawful rent
increases was granted and the landlord was found liable to the tenant in the
amount of $18,000.00 in rent overpayments and $1,100.00 due to habitability
defects on the premises. The
landlord failed to appear at the properly noticed hearing. On appeal, the landlord claims not to
have received the Notice of hearing and provides the requisite Declaration of
Non-Receipt of Notice of Hearing.
MSC:
To accept the appeal and remand the case for a new hearing; should the landlord
again fail to appear, absent extraordinary circumstances, no further hearings
will be scheduled.
(Murphy/Gruber: 5-0)
F. 1900
Vallejo #203 AT100016
& -17
The
tenant’s hardship appeals of two capital improvement passthroughs were denied
because the ALJ found that the tenant’s rent comprises less than 26% of her
gross income. On further appeal,
the tenant argues that: net,
rather than gross income should be considered; she has increased transportation
costs and medical bills; and she is single and self-supporting.
MSC:
To deny the appeals. The tenant
may file a new hardship application if her financial circumstances change so
that her monthly rent constitutes at least 30% of her gross income. (Murphy/Gruber: 5-0)
G. 798
Post #302 AT100018
& -19
The
landlord’s petition seeking a determination pursuant to Rules 1.21 was granted
because the ALJ found that there was no “Tenant in Occupancy” at the subject
unit. On appeal, the tenant
maintains that the landlord will not accept his domestic partner as a tenant in
the unit and that the decision presents them both with a financial hardship.
MSC:
To deny both the tenant’s substantive and hardship appeals. (Murphy/Gruber: 5-0)
H. 250
Roosevelt #2 AT100023
The
landlord’s petition for a rent increase to 1 of 4 units based on increased
operating expenses was granted, resulting in a 7% base rent increase. The tenant appeals, claiming that the
decision presents her with a financial hardship.
MSC:
To accept the appeal and remand the case for a hearing on the tenant’s claim of
financial hardship.
(Mosbrucker/Marshall: 5-0)
I. 987 Alabama AT100027
The
tenant’s petition alleging decreased housing services and the landlord’s
failure to repair was dismissed due to the tenant’s failure to appear at the
properly noticed hearing. On
appeal, the tenant claims that he had a family emergency he had to attend to on
the day of the hearing.
MSC:
To accept the appeal and remand the case for a new hearing; should the tenant
again fail to appear, absent extraordinary circumstances, no further hearings
will be scheduled. (Marshall/Mosbrucker: 5-0)
J. 4276 – 23rd St. AT100030
The
tenants’ petition alleging decreased housing services due to lack of heat in
the unit was granted and the landlord was found liable in the amount of
$616.50. The landlord failed to
appear at the properly noticed hearing but claims on appeal to have been sick
on the day of the hearing.
MSC:
To accept the appeal and remand the case for a new hearing; should the landlord
again fail to appear, absent extraordinary circumstances, no further hearings will
be scheduled. (Murphy/Gruber: 5-0)
K. 260 West Portal #7 AL100004
(cont.
from 2/23/10)
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; 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; and the
Board should apply the three-year limitation period contained in Code of Civil
Procedure §338(a).
After
discussion at the meeting on February 23rd, the Board agreed to continue this
appeal in order to 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.
VI. Old
Business
Limitations
Period for Refund of Capital Improvement and Utility Passthrough Overpayments
The
Board discussed a Memorandum from Senior Administrative Law Judges Tim Lee and
Sandy Gartzman providing a historical overview of the sections of the Ordinance
and Rules that relate to statute of limitations. The Memorandum also outlined policy options concerning the
application of a limitations period on the refund of overpayments due to a
landlord’s failure to file a require petition and/or worksheet and/or the
landlord’s failure to discontinue a capital improvement or utility passthrough
that has lawfully expired. The
following options were presented:
a) make no change and continue to apply no limitations period to such
capital improvement and utility passthrough overpayments so refunds may go back
to April 1, 1982; b) interpret the current one-year tenant petition filing
requirement of §37.8(d)(1) to include tenant challenges based on the landlord’s
failure to file or serve a utility passthrough petition or worksheet and/or
discontinue the utility passthrough; or c) interpret the current three-year
limitations period of §37.8(e)(7) to find that such capital improvement and
utility passthrough overpayments are “null and void” increases subject to the
three-year limitation.
After
discussion, including a historical overview of the genesis of the current
limitation on null and void rent increases by Commissioner Marshall, it was the
consensus of the Board to continue the current policy.
V. Appeals (cont.)
K. 260 West Portal #7 AL100004 (cont.)
MSC:
To accept the appeal and remand the case to the Administrative Law Judge to
find that the Technical Correction to Decision of Hearing Officer in Case No.
R002-22C was a final determination on the lawfulness of the tenant’s base rent
that is binding on the parties.
(Mosbrucker/Hurley: 5-0)
L. 1000 Howard #411 AT100013
The
tenant’s petition alleging decreased housing services due to the presence of
surveillance cameras in her unit was denied. On appeal, the tenant claims that the decision is unfair;
and she only resided in the apartment for three months because she was
subjected to invasion of privacy, harassment and she could not afford to pay
the rent on her disability income.
MSC:
To deny the appeal.
(Mosbrucker/Gruber: 5-0)
M. 2085 Bush St. #507 AT100015
The
tenant’s petition alleging lack of heat in her unit was denied. On appeal, the tenant claims that: her representative failed to appear at
the hearing and they had the documents necessary to prove her case; there are
documents missing from her file; and she has been subjected to harassment and
violence on the part of her landlord.
MSC:
To deny the appeal.
(Murphy/Gruber: 4-1;
Marshall
dissenting)
N. 10 Aladdin Terr. AL100022
The
landlord’s petition seeking a rent increase pursuant to Rules §1.21 was denied
because the ALJ found that the subject unit is the tenant’s principal place of
residence. The landlord appeals,
arguing that: the tenant has been
residing at the home of her domestic partner since 2006; the tenant did not
move out in reliance on the landlord’s buying her out of her tenancy, because
she was already residing in Marin County; and the tenant could have moved back
in to the unit prior to the landlord’s petition being filed, but failed to do
so.
MSC:
To deny the appeal with the understanding that the tenant will move back in to
the unit within a reasonable period of time. (Mosbrucker/Marshall:
5-0)
O. 1858 Mason AL100024
The
subtenant’s petition alleging decreased housing services was denied. However, her claim that she paid more
than her proportional share of the rent pursuant to Rules §6.15C(3) was granted
and the Master Tenant was found liable in the amount of $7,278.00. On appeal, the Master Tenant claims
that: the subtenant’s boyfriend
has been living in the unit since July 2006 and not July 2007; the decision is
in error as to the amount the subtenant paid for rent; the third bedroom in the
unit is often vacant and the Master Tenant has to cover the rent; the Master
Tenant’s room is substandard and should not be counted as living space; and the
subtenants engage in abusive behavior towards him.
MSC:
To deny the appeal.
(Murphy/Gruber: 5-0)
VII. Communications
In
addition to correspondence concerning cases on the calendar, the Commissioners
received the following communications:
A. Articles from BeyondChron, the S.F.
Chronicle, and the S.F. Examiner.
B. The office workload statistics for the
month of January, 2010.
C. The Department’s Statement of
Incompatible Activities.
D. An amendment to the Ordinance extending
protection from eviction due to foreclosure to tenants in post-’79 rental
units.
E. Data on Rent Board hardship appeals
filed in 2008 and 2009.
VIII. Director’s
Report
Executive
Director Wolf informed the Board as follows:
A. An Ordinance sponsored by Supervisor
Chiu to curb Ellis Act evictions in North Beach by regulating parking garages
was passed by the Board of Supervisors on First Reading but was continued again
for further amendments; an Ordinance banning smoking in common areas of
apartment buildings and other public spaces passed unanimously on First
Reading; Supervisor Avalos’ foreclosure amendment referenced above passed
unanimously on First Reading; and an Ordinance sponsored by Supervisor
Mirkarimi mandating a change to the SRO Hotel Visitor Policy to ensure access
to census workers passed at the Board as well.
B. Ms. Wolf told the Board that long-time
counselors Rupert Fabito and Ruben Urriaga are retiring: Rupert’s last day will March 31st
and Ruben will retire at the end of June.
C. The Director reminded the Board that
their Form 700 Statements of Economic Interest are due on April 1st.
IV. Remarks
from the Public (cont.)
C. Tenant Leo Ruddy of 260 West Portal
told the Board that after the decision in their case was issued, the landlord’s
daughter was made a 25% owner in the building and the tenants received the
first of three eviction notices.
Mr. Ruddy believes that this is retaliatory and asked if anything can be
done.
D. Landlord Marcia Guisti of 260 West
Portal said that her children have been part-owners of the building for several
years and the deed was changed as part of her father’s “master plan” for them
to attain full ownership by 2010 when there will be no more inheritance
tax. Her daughter has just moved
back from Italy and is ready to live on her own.
E. Tenant Jan Ruddy of 260 West Portal
told the Board that the landlord had offered the tenants an apartment that her
daughter could have moved into and that the timing seems obvious. Ms. Ruddy said that their rent is the
lowest in the building after having lived there for thirty-one years.
F. Valentina Guisti said that the building
that the tenants live in is the one she’s always loved and they have the nicest
top floor unit. Her brother owns
the other building. Ms. Guisti
also said that the unit that became available has two bedrooms, which she
doesn’t need.
IX. New
Business
Proposed
Amendment to SRO Hotel Visitor Policy to Ensure
Access
to Census Workers
On
March 9th, the Board of Supervisors passed an amendment to
Administrative Code §41D4 sponsored by Supervisor Mirkarimi. This amendment added a new goal to the
Uniform Hotel Visitor Policy to ensure that census workers engaged in census
activities are allowed access to residential hotels, and requested that the
Rent Board amend the Visitor Policy to incorporate this addition. Ms. Wolf provided the Board with the following
language to effectuate this mandate:
New
Section 1.A.3: Census workers
shall be allowed access to Residential Hotels during the hours of 9 a.m. until
8 p.m. for the purpose of census activities. For the purposes of this subsection, the term “census
activities” means any activity that has as its primary purpose encouraging SRO
occupants to participate in the census, including but not limited to conducting
surveys and distributing handbills, door hangers and flyers related to the
census. For the purposes of this
subsection, the term “census worker” means an official employee of the U.S.
Census Bureau or of an organization contracted by the City and County of San
Francisco to perform Census outreach and education. Census employees shall present valid identification issued
by the Bureau to a front desk clerk or property management staff. Employees of City-funded census
outreach organizations shall present documentation from the Office of Citizen
Engagement and Immigrant Affairs confirming that they are contracted with the
City for Census outreach.
MSC:
To adopt proposed new Section 1.A.3 to the SRO Hotel Visitor Policy to ensure
that census workers engaged in census activities are allowed access to
residential hotels.
(Murphy/Marshall: 5-0)
X. Calendar
Items
April
6th & 13th, 2010 – NO MEETINGS
April
20, 2010
8
appeal considerations
XI. Adjournment
President
Gruber adjourned the meeting at 7:40 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.