April 16, 1996

I. Call to Order

President Becker called the meeting to order at 5:40 p.m.

II. Roll Call

Commissioners Present: Becker; Bierley; Moore; Mosser; Murphy; Palma.
Commissioners not Present: Gruber; Wasserman.
Staff Present: Grubb; Wolf.

Commissioner Marshall appeared on the record at 5:45 p.m.; Commissioner Lightner arrived at 6:00 p.m.

III. Approval of the Minutes

MSC: To approve the Minutes of April 2, 1996.
(Murphy/Bierly: 5-0)

IV. Remarks from the Public

Robert Pender announced that the Tenants’ Network’s first fund-raiser will be held on April 24th, to which he invited the tenant Commissioners. He also welcomed new Tenant Alternate Commissioner, Everett Moore, as did Board President Becker.

V. Consideration of Appeals

A. 1000 Howard St. #212 Q001-46A
The tenant’s petition alleging substantial decreases in housing services was granted, in part, and the landlord was found liable to the tenant in the amount of $1,058.00 due to habitability defects on the premises. The landlord had failed to appear at the properly noticed hearing. On appeal, the landlord submitted a Declaration under Penalty of Perjury attesting to the fact that the property manager for the premises had been out of the country prior to the mailing of the Notice of Hearing and did not return until after the hearing had been held. At their meeting on April 2, 1996, the Commissioners continued this matter in order to obtain a Declaration from the property manager, which was requested by staff but not received.

MSC: To deny the appeal. (Marshall/Mosser: 5-0)

B. 2001 California St. - 10 units Q001-51R thru -60R

The landlord’s petition for certification of capital improvement costs was granted. Ten tenants appeal the decision, asserting that: tenants should not have to pay for replacement of a garage door that was necessitated by security concerns, nor should they pay for replacement of another garage door which was damaged by repeated failures of the automatic garage door opener; tenants should only pay for replacement of the garage door to which they have access; there are numerous factual errors in the decision; work done on the roof was in the nature of repair, rather than a capital improvement, and the roof continues to leak; much of the work was done without permits; and the electrical wiring upgrade was required by the landlord’s insurance company, should have been done for safety reasons several years ago, and was of no benefit to the tenants.

MSC: To deny the appeals. (Mosser/Palma: 5-0)

C. 261 Laguna St. Q001-47A

Six tenant petitions alleging substantial decreases in housing services and the landlord’s failure to repair were filed; five were withdrawn or dismissed prior to the decision in the case being issued. As to the remaining petition, the hearing officer found the landlords liable to the tenants in the amount of $7,575.00 due to lack of heat in the unit with notice to the prior owner of the property going back to February, 1983. On appeal, the landlord alleges that the tenants failed to prove that the unit was without heat, only that the heaters shorted out periodically; that the current owner cannot be held liable for the prior landlord’s failure to provide heat and that any rent reductions should commence from the date of the new owner’s purchase of the property; that the 2-year Statute of Limitations on a breach of an oral contract should apply; and that the equitable defense of laches should bar the rent reductions granted in this case.

MSC: To deny the appeal. (Marshall/Palma: 3-2; Lightner, Mosser dissenting)

D. 839 Leavenworth St. #210 Q001-48A

The tenant’s petition alleging substantial decreases in housing services was granted and the landlord was found liable to the tenant in the amount of $3,125.75 due to numerous, serious habitability problems on the premises. The landlord failed to appear at the properly noticed hearing and alleges on appeal that: the Notice of Hearing was sent to a 3% partner in the building, who failed to notify the principal owner of the proceedings; that the subject tenant failed to give notice of many of the conditions to the landlord; and that the outstanding code violations have been abated.

MSC: To recuse Commissioner Becker from consideration of this matter. (Becker/Marshall: 5-0)

MSC: To deny the appeal. (Marshall/Moore: 5-0)

E. 372 West Portal Ave. #4, 5, 7, 8 & 11 Q001-49A

The landlord’s appeal was filed five days late because the Decision of Hearing Officer was sent to an address with an incorrect zip code, and therefore was received late by the landlord. The zip code that was used, however, was taken from the Notice of Appearance form filled out by the landlord at the hearing.

MSC: To find good cause for the late filing of the appeal. (Marshall/Lightner: 5-0)

The landlord’s petition for certification of the costs of removal of an underground storage tank was granted. The landlord originally filed the petition on December 30, 1994 and gave the tenants of five units notice of rent increase on that date. Subsequently, the landlord withdrew the petition and re-filed it on April 28, 1995. The hearing officer therefore determined that the rent increase notices were null and void, having been issued prior to the petition being filed. On appeal, the landlord maintains that he amended, rather than withdrew, the petition and that therefore the validity of the rent increase notices should be upheld.

MSC: To deny the appeal; the landlord is advised that he would have had to issue new notices of rent increase for the higher amount regardless. (Palma/Lightner: 5-0)

VI. Communications

In addition to correspondence concerning cases on the calendar, the Commissioners received the following communications:

A. A Memorandum from Tom Trimbur of the Department of Public Works inquiring as to any passthrough provisions in the Ordinance and/or Rules for assessment district costs related to the undergrounding of utility poles.

B. A letter from the Executive Director of the San Francisco Apartment Association and several letters from landlords requesting that the Board clarify and simplify Rules Section 6.14 in light of Assembly Bill 1164 (Costa-Hawkins) as soon as possible.

C. A letter from Executive Director Grubb to Professor Mark Aaronson of the Hastings Civil Justice Clinic expressing some Commissioners’ concern over the fact that the clinic represents only tenants at Rent Board hearings, and not landlords.

D. A letter from Debra Hayes, Assistant District Attorney, with examples of letters sent to landlords and tenants pursuant to the Rent Board’s forwarding of random samples of notices to terminate tenancies.

E. A packet of materials from Commissioner Lightner, including a copy of the Santa Monica Beach, Ltd. v. Santa Monica Rent Control Board case (Superior Court No. SS005266) and an article on regulatory takings law from the "Southwestern University Law Review."

VII. Director’s Report

Executive Director Grubb reminded the Commissioners to turn in their Form 730 Statement of Economic Interest forms, if they have not already done so.

VIII. Consideration of Allegation of Wrongful Eviction

474 - 19th Ave. Q001-36E

The tenant was served with an eviction notice under Section 37.9(a)(11) of the Ordinance. The tenant was asked to vacate in order for reconfiguration of the unit in which he resided to take place. The notice was defective in that: it failed to state a just cause reason for the tenant to vacate; it failed to contain an "advice clause"; and a copy of the notice was not filed with the Rent Board within 10 days of service on the tenant. Additionally, the hearing officer found that the necessary permits were not obtained prior to service of the notice; no indication was given to the tenant as to whether he would be required to vacate for longer than 3 months, despite the tenant’s persistent inquiries; and no Request for Extension of Time was filed with the Rent Board, although the tenant has now been out of his unit for almost one year. The tenant has recently been served with a termination notice based on occupancy by the owner’s relatives.

Hearing Officer and Staff Recommendation: That this matter immediately be referred to the Commissioners to consider: (1) instituting a civil proceeding against the landlord under Ordinance Section 37.9(f); (2) referring this matter to the District Attorney for criminal prosecution under Ordinance Section 37.9(e); and (3) referring the landlord’s attorney to the California State Bar Association for review of his actions in this matter.

MSC: To accept the staff recommendations in this case. (Palma/Marshall: 5-0)

IX. Calendar Items

April 23, 1996 - NO MEETING

April 30, 1996
Old Business:
A. 1000 Howard St. #212 Q001-46A (considered 4/16/96)
B. Costa-Hawkins Bill: AB 1164

May 7, 1996
6 appeal considerations (1 rescheduled from 4/2/96)

X. Adjournment

President Becker adjourned the meeting at 7:15 p.m.