September 23, 1997B>
MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, September 23, 1997 at 6:00 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level
- Call to Order
President Lightner called the meeting to order at 6:10
p.m.
- Roll Call
Commissioners Present: Becker; Gruber; Lightner; Marshall; Moore;
Mosser; Murphy; Wasserman.
Commissioners not Present: Bierly.
Staff Present: Grubb; Wolf.
Commissioner Murphy went off the record at 9:30 p.m.
- Approval of the Minutes
MSC: To approve the Minutes of September 16, 1997.
(Becker/Gruber: 5-0)
- Remarks from the Public
A tenant in the audience expressed his interest in the Board’s
proposed legislation pertaining to "Master Tenants"
since he is currently in the process of being evicted by a Master
Tenant who he believed was only a roommate. He suggested that
the Board define and codify this term and require that a Master
Tenant disclose their status as such at the inception of any subtenant’s
occupancy of the unit. His attorney, Olivia Paniagua, obtained
clarification that Commissioner Lightner’s proposal regarding
Master Tenants was just for discussion, and not draft language
to be put out for Public Hearing.
- Consideration of Appeals
- 4163 - 23rd St. S001-04R
(cont. from 9/16/97)
The landlord’s petition for certification of capital improvement
costs was granted, resulting in capital improvement passthroughs
in excess of $400 to the tenants in four units. One tenant appeals
the decision, asserting that: the two new decks added to the
structure should be considered "luxury items", her deck
is smaller than that of her neighbor’s, and the new decks are
smaller than the original decks; she should not have to pay for
energy conservation work because she was not provided with low-flow
water devices and she purchased her own shower assembly; the costs
of new carpet and mini-blinds should be allocated separately to
each unit, and not equally to all units in the building; allocation
of the costs of garden renovation should factor in use of the
garden by tenants who reside in an adjacent building owned and
occupied by the same landlord; the rebuilding of the rear stairs
and decks was due to the landlord’s deferred maintenance and the
costs were found to be excessive by the independent estimator;
and she derives no benefit from work done in the basement area
of the building. At the meeting on September 16, 1997, a motion
to accept the appeal and remand on certain issues was made and
seconded, but failed to pass. Consideration of this matter was
therefore continued.
MSC: To accept the appeal and remand the case to the same hearing
officer on the record to clarify her findings regarding the issue
of whether the rebuilding of the rear stairs and decks was due
to the landlord’s deferred maintenance; and to obtain information
from the estimator as to whether costs attributable to profit
and overhead were factored into her valuation of the subject work.
A hearing will be held only if necessary. (Becker/Marshall:
5-0)
- 2844 Lyon St. R001-71A
(cont. from 8/19/97)
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 $7,745.00 due to serious habitability
defects on the premises. The landlord failed to appear at the
hearing and maintained on appeal that the Notice of Hearing was
sent to an incorrect address. Additionally, the landlord claimed
that a $100.00 per month rent reduction due to lack of heat was
excessive because the heat is defective but operative; that the
common area lighting problem was corrected immediately after notice;
that the cracked and broken windows are the fault of the tenant;
that the tenant painted the unit with the wrong paint, which created
peeling; that there is mildew in the unit due to the tenant’s
failure to ventilate; and that the tenant’s filing of the petition
was not in good faith but was in retaliation for the landlord’s
service of a 3-Day Notice to Pay Rent or Quit. As the landlord
had informed the Director that she would be sending the Board
a copy of her Declaration of Non-Receipt of Notice, which she
believed her attorney had already mailed to the Board, the Board
continued consideration of this case from the meeting on August
5, 1997. The Declaration of Non-Receipt of Notice of Hearing
was subsequently received.
As there were several inconsistencies in the landlord’s communications
regarding her correct address and notations in the file that she
had been called twice regarding the hearing by staff, it was the
consensus of the Board at the August 19th meeting for staff to
write a letter requesting clarification under penalty of perjury.
The matter was therefore further continued. Upon discussion
of the landlord’s response to the Board’s queries at the meeting
on August 19, 1997, the Commissioners in attendance made but failed
to pass a motion due to the absence of a voting neutral, and the
matter was again continued.
MSC: To accept the landlord’s appeal and remand the case to
the same hearing officer for a new hearing. (Wasserman/Gruber:
3-2; Becker, Marshall dissenting)
- Old Business
- "Remarks from the Public" Portion of the Agenda
Deputy City Attorneys Teresa Stricker-Croley and Amy Ackerman
were present to discuss the question of whether the Board is required
to take public comment before deciding on an appeal from a decision
of hearing officer and, if so, what restrictions may be placed
on public testimony. Historically, the Board has allowed public
comment prior to and after consideration of the calendared appeals.
The only limitation on remarks has been that, for due process
reasons, parties were not allowed to comment on a case that would
be coming before the Board until after the Commissioners had completed
their consideration of that matter. However, stipulations of
the Brown Act and Sunshine Ordinance had prompted the Board to
re-consider that policy and allow the public to comment on any
matter on or off the calendar at either of the "Remarks"
portions of the calendar. The Commissioners explained their concerns
regarding engaging in ex parte communication with either party
to a case with the Deputy City Attorneys, who agreed to conduct
further research on the tension between open meeting laws and
the requirements of due process. Further discussion will be calendared
for a future meeting.
- Discussion of Proposed Amendments and Additions to the Rules
and Regulations
- Rent Paid by "Master Tenants"
The Board discussed a proposal authored by Commissioner Lightner
defining the term "Master Tenant"; requiring that a
Master Tenant disclose, upon request from the landlord, the amount
of rent being charged to any subtenant(s); and requiring that
a Master Tenant pay a proportional share of the rent being paid
to the landlord. Commissioner Marshall proposed requiring that
a tenant holding him or herself out as a "Master Tenant"
disclose that status and the right to evict without just cause
pursuant to Ordinance Section 37.9(b) to any subtenant(s) at the
inception of the tenancy, and precluding eviction without just
cause to any Master Tenant who failed to do so.
- Changes in Roommates
The Commissioners briefly discussed proposed Rule 6.15, authored
by Commissioner Marshall, which would require that where it has
been established that a tenancy includes more than one tenant,
replacement of one or more tenants by an equal number of comparable
tenants shall not constitute a breach of the lease or rental agreement.
The Board’s discussion centered around how to define "comparable
financial ability" and necessary fluctuations due to neighborhood,
etc.; and the need for a landlord to look at the financial capability
of a household as a whole.
- Material Changes in the Terms of a Tenancy (30-Day Notice
Pursuant to California Civil Code Section 827)
Lastly, the Board discussed new Section 12.20, authored by Commissioner
Becker. This proposal specifies that a landlord may not evict
a tenant for violation of a term of the tenancy which was unilaterally
imposed by the landlord or not materially the same as the terms
originally agreed to by the parties. The landlord Commissioners
articulated their concerns that the changes in terms included
must be material, and that the Board not legislate against reasonable
health and safety measures.
Due to the lateness of the hour, discussion of all of the above
proposals was continued to the next meeting.
- Communications
The Commissioners received the following communications:
- The monthly Summary of Mediation Agreements for August,
1997.
- The office workload statistics for the month of August,
1997.
- A letter from Attorney Robert DeVries concerning the proposed
Rules changes on the Agenda.
- Remarks from the Public (cont.)
Greg Stephens chastised the Board for discussing what he considered
to be the most important portion of the Agenda last, so that he
was the only remaining member of the public in attendance. He
also felt that the master-tenant issue should be left alone.
He also stated his beliefs that: there should be multiple opportunities
for the public to comment throughout the meeting; the Commissioners,
who represent vested interests, should not have dominated the
meeting; landlords have a significant economic advantage in their
dealings with tenants, especially in the context of the current
housing crisis; the Commissioners should not be partisan, but
should keep their mission in mind and remain neutral; and they
should not "micro-manage" roommate situations. In additional
remarks, Mr. Stephens thanked the Commissioners for their hard
work and acknowledged that they play an "active civic role."
- New Business
Commissioner Marshall requested that, when members of the media
are present at a meeting and taping and/or videotaping the proceedings,
staff ask that they identify themselves and their affiliations.
- Calendar Items
September 30, 1997 - NO MEETING
October 7, 1997
8 appeal considerations (1 cont. from 9/2/97)
1 Eviction Consideration
Old Business: Continued Discussion of Proposed Amendments and
Additions to the Rules and Regulations Pertaining to Material
Changes in the Terms of a Tenancy; Rent Paid by "Master
Tenants"; and Changes in Roommates
- Adjournment
President Lightner adjourned the meeting at 10:25 p.m.