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January 21, 2003

January 21, 2003

MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,

Tuesday, January 21, 2003 at 6:00 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level

I. Call to Order

President Wasserman called the meeting to order at 6:15 p.m.

II. Roll Call

Commissioners Present: Aung; Becker; Gruber; Lightner; Marshall; Mosser; Murphy; Wasserman.
Staff Present: Grubb; Wolf.
Commissioner Justman appeared on the record at 6:21 p.m.

III. Remarks from the Public

Prior to taking remarks from the public, President Wasserman announced that this would be Commissioner Aung's last meeting, as she is moving to New York. President Wasserman expressed the Board's good wishes, and noted how much she had appreciated Commissioner Aung's passion, eloquence and fair-mindedness. Commissioner Aung told the Commissioners that serving on the Board had been an unexpected pleasure, and commended them for their principles and ability to compromise.

A. Attorney Gen Fujioka of the Asian Law Caucus, representing the tenants at 857 Clay St. (AT020535 thru-52), explained his complaint under the Equal Access to Services Ordinance (Administrative Code Chapter 89). Mr. Fujioka acknowledged that Executive Director Grubb was correct in describing the bilingual services that are offered by the Department, in his response to Mr. Fujioka's complaint. However, Mr. Fujioka believes that these measures do not deal with the obstacles faced by unrepresented parties, and that the "initial access point to the availability of services is missing."

B. Attorney Karen Uchiyama, representing the landlord at 3833 - 20th St. (AT020562), said that the landlord objects to the tenants' appeal because they are no longer in possession of the unit and she believes they do not have standing to pursue the appeal. Ms. Uchiyama also maintains that the tenants did receive notice of the hearing.

IV. Consideration of Appeals

A. 50 Edgar Pl. AT020507

(cont. from 12/17/02)

The tenant appealed the dismissal of her petition alleging decreased housing services due to her failure to appear at the properly noticed hearing. On appeal, the tenant claimed not to have received notice of the hearing. The tenant failed to respond to a Memorandum from the Deputy Director, directing her to provide a Declaration of Non-Receipt of Notice of Hearing. As the tenant is not a native English speaker, the Board continued this appeal at the meeting on December 17th in order for staff to contact the tenant again. Subsequently, the tenant provided the required Declaration.

MSC: To accept the appeal and remand the case for a new hearing.

(Becker/Marshall: 5-0)

B. 1524 Waller St. AT020553

The tenant's petition alleging improper calculation of a PG&E passthrough was dismissed due to his failure to appear at the properly noticed hearing. On appeal, the tenant, who is a senior, admits that he struggles with memory loss and asks to be granted another 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 granted. (Becker/Lightner: 5-0)

C. 50 Chumasero Dr. #3C AT020555

The tenants' appeal was filed over two months late because the tenants do not read or write English and the person who translates for them was out of town for six months.

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

The landlord's petition for rent increases based on increased operating expenses was granted, resulting in 7% increases in tenants' base rents. Two tenants 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. (Becker/Lightner: 5-0)

D. 3833 - 20th St. AT020562

The tenants' petition alleging decreased housing services was dismissed due to their failure to appear at the properly noticed hearing. On appeal, the tenants claim not to have received notice of the hearing, and attach Declarations so attesting.

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

MSC: To accept the appeal and remand the case to the Administrative Law Judge to change the Dismissal of the tenants' petition to "without prejudice." (Marshall/Lightner: 4-0)

E. 55 Dolores St. AL020496

(rescheduled from 12/3/02)

The landlords' petition for certification of capital improvement costs to the tenants in five units was granted, in part. The landlords appeal the disallowance of certain items, claiming that: the removal of the old fence and ivy were incidental to dry rot work, which constituted a capital improvement, and the tenants failed to object to certification of this work; the replacement of nine glass panels was improperly characterized as a repair; the dry rot work performed on the lower balcony of unit #3 did not benefit any of the other units in the building, and should only have been allocated to unit #3; the landlord was not provided with an opportunity to amend the petition; and the Rent Board has arbitrary standards for allocation of capital improvement costs.

MSF: To accept the appeal and remand the case on the issue of the allocation of the balcony enclosure and dry rot work; the landlord shall be permitted to amend the petition to allocate the cost to the tenants in all units, however, the issue of whether the cost should be allocated to any tenant at all shall be addressed. (Marshall/Becker: 2-3; Gruber, Justman, Lightner dissenting)

MSC: To deny the appeal. (Justman/Gruber: 4-1; Lightner dissenting)

F. 1751 Market St. #19 & #61 AT020533

The tenant's petition alleging decreased housing services was dismissed due to his failure to appear at the properly noticed hearing. On appeal, the tenant claims that he thought the hearing commenced at noon instead of 9:00 a.m. and asks to be granted another 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 granted. (Becker/Marshall: 5-0)`

G. 410 Waller St. AT020534

The tenant's appeal was filed nine days late because the organization she approached for counseling originally was closed and she came down with the flu.

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

The tenant's petition alleging a substantial decrease in housing services was denied because it was found that the tenant failed to prove that she had suffered a loss of quiet enjoyment of the unit nor that the landlord had unreasonably withheld consent for a replacement roommate. On appeal, the tenant claims that the Administrative Law Judge failed to address her contention that the landlord forced her to sign a materially different rental agreement in retaliation for her having filed a previous Rent Board petition.

MSC: To deny the appeal. (Gruber/Lightner: 5-0)

H. 3617 - 17th St. AT020531

The landlord filed a petition seeking a determination as to whether the tenant is a "Tenant in Occupancy" pursuant to Rules Section 1.21. The Administrative Law Judge denied the landlord's petition, finding that the tenant is a "Tenant in Occupancy." Upon appeal by the landlord, the Rent Board Commissioners remanded the case to the Administrative Law Judge to vacate the decision and find that, under these facts, the tenant is not a "Tenant in Occupancy." The tenant appeals the remand decision on the grounds that: there was insufficient evidence to prove that the tenant was not a "Tenant in Occupancy;" the erasure of the tape of one of the days of hearing has prejudiced the tenant; and the Board's decision in this case was based on facts that were received after the close of the record.

MSC: To accept the appeal and remand the case for a new hearing. (Becker/Marshall: 3-2; Gruber, Lightner dissenting)

I. 520 So. Van Ness #290 AL020532

The tenant's petition alleging decreased housing services was granted, and the landlord was found liable to the tenant in the amount of $1,250.00 due to the lack of heat and hot water in his single room occupancy hotel room. On appeal, the landlord asserts that: the tenant failed to provide supporting documents sufficient to meet his burden of proof; and work order requests provided by the landlord show that the tenant did have heat in his unit on the dates in question.

MSC: To accept the appeal and remand the case for a new hearing. (Gruber/Lightner: 4-1; Marshall dissenting)

J. 857 Clay St. AT020535 thru -52

The appeals of the tenants in unit numbers 308, 414 and 417 were filed one day late because the tenants are monolingual Chinese speakers and materials concerning the appeals process were provided in English only.

MSC: To recuse Commissioner Mosser from consideration of these appeals. (Lightner/Gruber: 5-0)

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

The landlord's petition for certification of seismic upgrading of the building to 34 of 49 units was granted, resulting in a monthly passthrough in the amount of $26.17. The tenants in fifteen units appeal the decision on the grounds of financial hardship. Through their representative, the tenants in those units and in three additional units assert that the Rent Board is deficient in providing services to monolingual Chinese speakers because: notices and information regarding the process are only provided in English; and interpretation was not provided at the hearing. The tenants also allege that the decision is in error in finding that there are no commercial units in the building.

MSC: To accept the appeals and remand the case for a new hearing for all tenants included in the petition; translation will be provided at the hearing; and any hardship appeals that were filed will be held in abeyance pending the issuance of a new decision. (Becker/Marshall: 5-0)

K. 710 Clayton St. AT020556 thru -61

The tenant in Apt. 6 filed his appeal six days late because the tenant was out of town on business at the time the decision was mailed; and the appeal was filed within fifteen days of the postmark date.

MSC: To recuse Commissioner Gruber from consideration of these appeals. (Lightner/Gruber: 5-0)

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

The landlord's petition for certification of capital improvement costs to the tenants in six units was granted, resulting in a monthly passthrough in the amount of $78.02. On appeal, the tenants claim that: some of the work was more in the nature of repair than capital improvement; if the building had not been neglected by the landlord, the work would not have been as costly; painting of the east walls of the building was not related to the water damage; the removal of the asbestos plumbing insulation was required by law; the new heating system interferes with the tenants' quiet enjoyment of their units; some of the tenants may be facing a financial hardship; and a report from an independent estimator should be obtained.

MSC: To deny the appeals. (Lightner/Gruber: 5-0)

V. Communications

The Commissioners received correspondence concerning cases on the calendar.

VI. Director's Report

Executive Director Grubb told the Commissioners that he would present a proposed budget at the next Board meeting, which will be very similar to this year's budget except for some one-time costs. He also informed the Board that it is likely that the Security Deposit Interest Ordinance (Chapter 49 of the Administrative Code) will be amended so that landlords will just pay the rate in effect on the anniversary date for the interest payment, rather than having to pro-rate between different rates that are in effect during the year.

III. Remarks from the Public (cont.)

C. Art Heyman, the landlord in the case concerning 3617 - 17th St. (AT020531), asked whether the remand hearing could be restricted to the same witnesses who attended the first hearing. He also expressed his suspicions, since the tape that was accidentally erased contained the testimony of the tenant' s witnesses. He asked whether the Rent Board had made an effort to retrieve the erased information from an audio forensics lab.

D. Michael Taipale, the tenant at 520 So. Van Ness (AL020532), told the Board that the landlord's representative had agreed with everything the tenant had said at the hearing, and was now manufacturing new evidence. Mr. Taipale said that he "finally got someone who wouldn't lie on their behalf," and now he has to start all over.

E. Yvonne Ellingson, who was present at the hearings concerning 3617 - 17th St. as a witness for the landlord, said that the landlord was put in the position of proving something that couldn't be proved. Ms. Ellingson believed that the Administrative Law Judge exhibited bias on the part of the tenant, and said that there is "no justice" in anything the Rent Board does.

F. Kietra Sutherland, also a witness for the landlord at 3617 - 17th St., lives next door to the subject building and said that the tenant hasn't lived there for several years, and that the tenant has been committing "illegal acts."

G. Tenant Proceso Emperio of 1524 Waller St. (AT020553) told the Board that he is a seaman who has traveled the world for twenty years. His rent at the inception of his tenancy was $35.00 per month. He recently got a rent increase from $350 to $420, and he lives alone.

VII. New Business

Commissioner Marshall proposed that the Board adopt a policy that would allow an Alternate Board member to be a "floater", such that an Alternate could vote in the stead of either of the voting Commissioners should one be absent. Since the Landlord and Tenant Commissioners present concurred that this would increase the Board's efficiency, staff was asked to look into drafting such an amendment and exploring whether this would necessitate an Ordinance change, or could be accomplished through an amendment to the Rules and Regulations.

VIII. Calendar Items

January 28, 2003 - NO MEETING

February 4, 2003

11 appeal considerations (1 cont. from 12/17/02; 1 cont. from 1/7/03

6:30 Public Hearing:

Proposed Amendments to Rules and Regulations Section 1.18

Old Business: "Floating" Alternates

IX. Adjournment

President Wasserman adjourned the meeting at 8:02 p.m.

Last updated: 10/9/2009 11:26:15 AM