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March 30, 2010

 

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.

 

 

Last updated: 2/12/2015 3:11:51 PM