March 18, 2003MINUTES OF THE REGULAR MEETING
OF
THE SAN FRANCISCO RESIDENTIAL
RENT
STABILIZATION & ARBITRATION
BOARD,
Tuesday, March 18, 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 6:10 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber; Marshall; Mosser; Murphy; Wasserman.
Commissioners not Present: Lightner.
Staff Present: Gartzman; Wolf.
Commissioner Justman appeared on the record at 6:16 p.m.
III. Approval of the Minutes
IV. Remarks from the Public
A. Attorney Robert Gates, representing the landlord in the case at 144 Parnassus (AT030013), told the Board that the hearings in this matter were "exhaustive" and that the Administrative Law Judge "did an able job." He depicted the dispute as being over a commercial art studio that was never intended for residential occupancy, and said that the landlord did not appeal the finding of jurisdiction in the interests of settlement.
B. Alan Lerch, the landlord in the case at 29 Lupine #D (AT020613), told the Board that he did not receive the Notice of Appeal Consideration in time to respond, since it was sent to an old address. Mr. Lerch did not request a continuance, and just wished to support the Decision of the Administrative Law Judge.
C. Robert Pender, Vice-President of the Parkmerced Residents' Organization PRO), distributed copies of the Tenant Times. Mr. Pender told the Commissioners that he had been given a 3-Day Notice to Pay Rent or Quit, and was the third male member of PRO's Board of Directors to have received such a notice.
D. Tenant Anita Barnes of 1439 Ocean #2 (AT030011) told the Board that she is losing her rent control protections due to Costa-Hawkins and it is unfair that she is facing a 66% rent increase through no fault of her own.
V. Consideration of Appeals
A. 1053 Oak St., Apt. 203 AT030009
The tenant's appeal was filed three days late because the tenant misinterpreted the deadline for filing the appeal, and the tenant has been under a lot of pressure trying to complete required course work.
The tenant's petition alleging improper calculation of a PG&E passthrough was denied, although the Administrative Law Judge corrected the amount of the passthrough. On appeal, the tenant asserts that: payment of individual utility bills as well as a PG&E passthrough constitutes fraudulent double-billing; the new corridor lights are not as efficient as the old ones; rate increases are not supposed to apply to low-income persons; and payment of the PG&E passthrough constitutes a financial hardship.
B. 25 Camp St. #1, 2, 4, 5 & 6 AL030017
The landlord's appeal was filed two months late because the landlord failed to receive a copy of the notice of hearing or the Decision of the Administrative Law Judge.
Five tenant petitions alleging decreased housing services due to an inoperative doorbell intercom system were granted and the landlord was found liable to each tenant in the amount of $100 per month. The landlord failed to appear at the hearing. On appeal, the landlord alleges that he failed to receive notice of the hearing, and attaches the requisite Declaration of Non-Receipt of Notice of Hearing.
C. 1439 Ocean Ave. #2 AT030011
The tenant's petition alleging an unlawful rent increase was denied because the Administrative Law Judge found that the tenant's unit is separately alienable from the title to any other dwelling unit and is therefore exempt pursuant to Costa-Hawkins. On appeal, the tenant maintains that: when she moved into the building the lower unit had been rented out, which gave her vested rights under rent control; the tenant's rights should not be affected by the landlord's having incorporated the residential space into another commercial unit; the Decision of the Administrative Law Judge establishes a dangerous precedent which allows landlords to remove rental units in order to exempt the premises from rent control; a contract cannot be changed unilaterally after the fact; there are factual errors in the decision; and the rent increase creates a hardship for the tenant.
After discussion, it was the consensus of the Board to continue consideration of this appeal in order to have the Administrative Law Judge research the legislative intent of Costa-Hawkins and attempt to ascertain whether these facts fall within the exemption of single family homes and condominiums mandated by the legislation.
D. 450 Duboce Ave., Apt. #4 AT020012
The landlord's petition for certification of the costs of exterior painting to 16 of 26 units was granted, resulting in a monthly passthrough in the amount of $24.43. One tenant appeals the decision, arguing that: the building was not completely painted; the old lead-based paint was not scraped off prior to the new paint being applied; and the cost is excessive for an incomplete and unprofessional job.
E. 29 Lupine #D AT020613
The landlord filed a petition seeking a determination as to whether the tenant is a "Tenant in Occupancy" pursuant to Rules and Regulations Section 1.21, and the Administrative Law Judge found that the unit does not constitute the tenant's principal place of residence. The tenant appeals, maintaining that she has established that the subject unit is her primary residence, although she does not return there every night. The tenant claims that many modern married couples have multiple residences to accommodate their complex lives and relationships.
F. 677 - 47th Ave. AT030016
The tenant's appeal was filed five days late because the tenant confused business days with calendar days and was ill for 10 of the 15 days.
The tenant's petition alleging decreased housing services was granted, in part, and the landlord was found liable to the tenant in the amount of $1,677.50 due to the loss of use of the back yard and washer and dryer. The tenant appeals the denial of several other claims raised in his petition, arguing that: storage was provided as a housing service at the inception of the tenancy; the landlord and his agents have lied about the tenant; the Administrative Law Judge did not properly apply the law and consider the evidence; the value of the reduction in services is greater than the amount granted; there are factual errors in the decision; and the burden of proof was higher than the tenant expected.
G. 7 - 9th Ave. AL030015
The tenant's petition alleging unlawful increases in rent and decreased housing services was granted and the landlords were found liable to the tenant in the amount of $778.08 due to unlawful rent increases and $259.00 due to defective bedroom windows. Storage was also determined to be part of the tenant's housing services included in base rent. The landlord appeals, claiming that: there are factual errors in the decision; the rent overpayment calculations are incorrect; storage in the building is available to the tenants for an extra fee; the tenant is in violation of his lease agreement; the tenant damaged the windows; and the tenant never notified the landlord of the problem with the windows.
H. 2511-2513 Sacramento St. AL030010
The landlords' petition for certification of the costs of exterior painting and new copper piping was granted. However, the Administrative Law Judge determined that the capital improvement passthroughs were temporarily discontinued because notices of annual rent increase issued by the landlord failed to include the capital improvement passthrough. On appeal, the landlord asserts that: a 30-day notice of capital improvement passthrough was issued to the tenants after the filing of the petition, and this notice should suffice; the current capital improvement passthrough was not included on the notice of annual rent increase because the landlord did not know the amount that was going to be approved; and the Administrative Law Judge did not point out the error in the notice at the time of the hearing, which prejudiced the landlords from correcting the error earlier.
I. 2708 - 23rd St. AL030014
The tenants' petition alleging an unlawful increase in rent was granted, because the Administrative Law Judge found that the tenants were tenants rather than subtenants and therefore no Costa-Hawkins increase was warranted. On appeal, the landlord maintains that: the petitioners are subtenants who moved in to the subject unit in 1999 and no original occupants currently reside at the unit; the Administrative Law Judge relied on hearsay evidence in rendering her decision; obtaining credit information on a prospective occupant does not make them a tenant; the tenants signed an addendum to the rental agreement acknowledging their status as subtenants; and the landlord is not required to exercise their rights under Costa-Hawkins within a certain period of time.
J. 144 Parnassus Ave. #19 AT030013
The tenant's petition alleging unlawful rent increases was granted and the landlord was found liable to the tenant in the amount of $14,974.27. Additionally, the landlord was found liable for decreased housing services claims during a period of renovation work throughout the building in the amount of $887.50. However, the Administrative Law Judge found that many of the tenant's claims regarding conditions during the renovation were barred by the decision in Golden Gateway v. Rent Board, or because the tenant had failed to notify the landlord regarding the problem. On appeal, the tenant asserts that: the Administrative Law Judge's reliance on the Golden Gateway decision was incorrect because the work substantially interfered with the tenant's right to occupy the premises, was not effectuated in a reasonable or timely manner and was elective in nature; the Administrative Law Judge failed to rule on claims of trespass in that a credenza, a refrigerator and windows were stored in the tenant's art studio without her consent; plaster dust resulting from plumbing work performed in the apartment and studio completely permeated the tenant's belongings and a greater rent reduction should have been granted; renovation of a unit above and work in the tenant's studio have compromised her use of the unit; and the leaks from the light well and above bathrooms have not been corrected.
MSC: To recuse Commissioner Becker from consideration of this appeal. (Marshall/Murphy: 5-0)
MSC: To accept the appeal and remand the case on the record to the Administrative Law Judge to make Conclusions of Law on two items inadvertently omitted from the Decision; to deny the appeal as to all other issues. (Murphy/Gruber: 3-1; Marshall dissenting)
VI. Communications
In addition to correspondence concerning cases on the calendar, the Commissioners received the following communications:
A. An e-mail from former Commissioner Khin Aung, letting the Board know her new address in New York.
B. The current issue of the Tenant Times.
C. The appeal decision in the case concerning 1670 Clay St. (AT020245), heard and decided on January 7, 2002, which was approved by the Board and signed by President Wasserman.
IV. Remarks from the Public (cont.)
E. Helen Young, the landlord in the case at 7 - 9th Ave. (AL030015), said that she feels that $70 per month is too much for a broken window during the summer months, and that just the hinge was loose. Ms. Young also disputes the overpayment calculations in the decision and says that the base rent amount is incorrect.
F. John Shea, the tenant in the case concerning 7 - 9th Ave. (AL030015), told the Commissioners that the 3 x 4' window was dry rotted, a foot and a half from his bed, and that it took over 7 months to get it fixed. He thanked the Board for their decision concerning the landlord's appeal.
G. Landlord Helen Young told the Board that she caught the tenant stealing windows from a vacant apartment, and that's what started the whole dispute.
H. Tenant Anita Barnes told the Commissioners that an attorney friend had attempted to explore the legislative history of Costa-Hawkins and found cases concerning subtenants only. She informed the Board that the landlord would not negotiate with her attorney.
I. Landlord Helen Young inquired as to whether there were any additional avenues of appeal.
J. Robert Pender informed the Board that there would be a Tenants' Convention, and not a conference. He also told the Board about the upcoming Community Congress.
VII. New Business
Senior Administrative Law Judge Sandy Gartzman conducted a brief training for the Board on the provisions of the new Ammiano legislation concerning capital improvements.
VIII. Calendar Items
March 25, 2003 - NO MEETING
April 1, 2003
8 appeal considerations
Old Business:
IX. Adjournment
President Wasserman adjourned the meeting at 8:21 p.m.