May 06, 2003MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, May 6, 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 6:08 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber; Mosbrucker; Mosser; Murphy; Wasserman.
Commissioners not Present: Lightner.
Staff Present: Grubb; Wolf.
Commissioners Justman and Marshall appeared on the record at 6:14 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of April 15, 2003. (Becker/Gruber: 4-0)
IV. Remarks from the Public
A. Robert Pender, Vice-President of the Parkmerced Residents' Organization (PRO), distributed copies of the Tenant Times newsletter. Mr. Pender informed the Board that on-going capital improvement hearings are occurring at the Rent Board, and that the tenants are "persevering."
B. Jeff Cluett, representing the landlord in the case at 923 Eddy St. (AL030044), concurred with the Administrative Law Judge that the Golden Gateway decision deals with repairs that were underway. However, Mr. Cluett maintained that his client has been attempting to effectuate repairs for almost two years, and has been delayed by the permit process through no fault of his own.
C. Anita Barnes, the tenant in the Costa-Hawkins case concerning 1439 Ocean Ave. #2 (AT030011), said that her lease and estoppel agreement say that she is under rent control. Since the Memorandum of the Senior Administrative Law Judge says that the law is ambiguous, Ms. Barnes feels that "it is only fair" that she retain her rent control protections. She also maintains that her landlord is "hassling" her.
D. Otto Chu, the landlord in the Ocean Ave. case, reminded the Board that Costa-Hawkins says that single family dwellings and condominiums are exempt from rent control if the tenancy commenced after 1996. Mr. Chu said that his 3-R report supports a single-family designation.
V. Consideration of Appeals
A. 1439 Ocean Ave. #2 AT030011 (cont. from 3/18/03)
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. This case was continued from the meeting on March 18th 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.
MSC: To accept the appeal and remand the case to the Administrative Law Judge to vacate the decision and find that the premises are not exempt from rent control for this tenant under the facts of this case. (Becker/Marshall: 5-0)
B. 1290 Grove St. #505 AT030042
The tenant's appeal was filed one day late because he went by the postmark date rather than the date of mailing on the Proof of Service.
MSC: To find good cause for the late filing of the appeal. (Becker/Gruber: 4-0)
The tenant's petition alleging a substantial decrease in housing services due to the landlord's failure to allow the tenant to sublet was granted, and the tenant was granted a 95% rent reduction for the pertinent period of time. The landlord's subsequent appeal was granted as to the amount of the rent reduction, which was reduced to 50%. The tenant appeals the remand decision, asserting that: the guidelines for partial sublets set forth in Rules Section 6.15C(3) should be used in determining the amount of the rent reduction; no findings of fact have changed since the issuance of the original Decision of Administrative Law Judge, which should be reinstated; and, since Section 6.15 does not apply to subletting of the whole unit, individuals with roommates may travel for employment or education, but persons living alone would not be entitled to a rent reduction.
MSC: To deny the appeal. (Gruber/Justman: 3-1; Becker dissenting)
C. 959 Powell St. AT030040 & -41
The landlord's petition for certification of capital improvement costs to 8 of 12 units was granted, in part. The tenants in two units appeal the decision on the grounds that: the tank removal was necessitated by the landlord's deferred maintenance, which had resulted in a code violation; the tank removal constituted repair and not capital improvement; the tenants should not have to pay for the tank removal because it is of benefit to the landlord and the general public; and the new 1-inch tubing benefits the tenants in unit #11 only, and that unit is not subject to the petition.
MSC: To deny the appeal. (Murphy/Gruber: 5-0)
D. 3649 Market #201 AL030038
The tenant's petition alleging decreased housing services due to the landlord's failure to allow two replacement roommates was granted and the landlord was found liable to the tenant in the amount of $3,038.03. On appeal, the landlord contended that the tenant had not suffered a reduction in housing services because he was always allowed to replace one roommate. The landlord's appeal was accepted and the case was remanded to set aside the rent reduction granted for the period of time when the tenant believed he had been denied permission to obtain one replacement roommate, but to allow the rent reduction granted for the tenant only being allowed to have two occupants in the unit, rather than three. The landlord appeals the remand decision, asserting that: the tenant never had the right to sublet to two roommates, since he moved into the unit with his former wife, who cannot be considered a roommate; the landlord never promised that the unit could house more than two occupants, as provided for in the lease; the tenant failed to prove that the third occupant of the unit resided there for any appreciable period of time, nor that he paid rent; the tenant engaged in subterfuge and deception in order to obtain consent for the third roommate in the unit; the tenant's case was based on hearsay evidence; and no reduction in services has occurred, since the tenant admits that he has not procured even one replacement roommate.
MSC: To recuse Commissioners Becker and Mosbrucker from consideration of this appeal. (Marshall/Becker: 5-0)
MSC: To deny the appeal. (Marshall/Justman: 4-0)
E. 60 Harriet St. AT030039
The subtenant's petition to determine whether the master tenant was charging more than the proportional share of the total rent paid to the landlords was denied because the Administrative Law Judge found that the additional housing services provided by the master tenant made up for the discrepancy between the subtenant's proportional share and the amount that he paid. The subtenant appeals, claiming that: the Administrative Law Judge exhibited gender bias in favor of the master tenant; the master tenant's bathroom was for her exclusive use; there are incorrect Findings of Fact in the decision; services allegedly provided by the master tenant were not provided; and the Administrative Law Judge violated the rules of evidence.
MSC: To deny the appeal. (Gruber/Murphy: 5-0)
F. 375 Douglass St. AT030043
The tenant's petition alleging unlawful rent increases was granted and the landlord was found liable to the tenant in the amount of $29.58. However, oral notices of rent increase were determined to be valid, as were fireplace and repair fees collected annually since the inception of the tenancy. The tenant appeals, arguing that: the repair and fireplace fees were not part of the initial base rent, and constituted operating and maintenance expense increases that should have been subject to approval by the Rent Board; the inclusion of the fireplace and repair fees would render otherwise "de minimus" overcharges null and void; oral notices of rent increase are null and void pursuant to Ordinance Section 37.3(b); and the amount collected by the landlord at the inception of the tenancy was impermissible under the Civil Code because of the inclusion of the repair and fireplace fees.
MSC: To deny the appeal. (Gruber/Murphy: 3-2; Becker, Marshall dissenting)
G. 923 Eddy St. #107, 108 & 105 AL030044
The landlord's appeal was filed one day late because of a clerical mistake on the part of landlord's counsel.
MSC: To find good cause for the late filing of the appeal. (Becker/Murphy: 5-0)
Two tenant petitions alleging decreased housing services and the landlord's failure to repair were granted, in part and the landlord was found liable to the tenants for rent reductions based on habitability defects on the premises. Annual rent increases were also ordered deferred until code violations are remedied. The landlord appeals the rent reductions ordered due to the decks being in disrepair, claiming that: delays in the repairs being effectuated were beyond the landlord's control and caused by interference on the part of one of the tenants; the work on the decks is increasing, rather than decreasing, the tenants' housing services; and, pursuant to the Golden Gateway decision, mere inconvenience necessitated by repair that does not substantially interfere with the right to occupy the premises as a residence does not qualify for a reduction in rent.
MSF: To deny the appeal. (Becker/Marshall: 2-3; Gruber, Justman, Murphy dissenting)
MSC: To accept the appeal and remand the case for a hearing to take evidence as to whether the landlord performed the work in a reasonable and timely manner subsequent to the 2001 Notice of Violation. (Murphy/Gruber: 4-1; Becker dissenting)
H. 223 Leavenworth #1 AL030046
The landlord's petition seeking a rent increase pursuant to Rules Sections 1.21 or 6.14 or Costa-Hawkins was denied because the Administrative Law Judge found that the remaining occupant of the unit had a direct relationship with the landlord and therefore was a tenant rather than a subtenant or assignee. Additionally, a notice pursuant to Rules Section 6.14 was not served until two years after the landlord knew of the tenant's presence in the unit. On appeal, the landlord maintains that: the Administrative Law Judge did not take into account fraud committed by the tenant; the landlord was not informed of the subsequent occupant's presence in the unit; and a rent increase is warranted under Costa-Hawkins.
MSC: To accept the appeal and remand the case to the Administrative Law Judge to vacate the decision and find that a rent increase is warranted pursuant to Costa-Hawkins under the facts of this case. (Murphy/Gruber: 3-2; Becker, Marshall dissenting)
I. 1423 - 33rd Ave. AT030047
The tenant's petition alleging an unlawful rent increase from $1,607.00 to $2,400.00 per month was denied because the Administrative Law Judge found that the Progress Foundation, a non-profit corporation providing social services to severely mental ill persons, does not meet the definition of "tenant" in the Ordinance. On appeal, the tenant argues that: the premises are under the jurisdiction of the Rent Ordinance because the Progress Foundation merely acts as a facilitator of their clients' occupancy of the premises for residential purposes; this case is distinguishable from a prior Rent Board case where the premises were used for temporary housing for corporate clients; the purpose of the Ordinance is served by protecting the Progress Foundation's clients; and the notice of rent increase is invalid since it applies to the Progress Foundation and "all other subsequent occupants."
MSC: To recuse Commissioner Becker from consideration of this appeal. (Marshall/Becker: 5-0)
After discussion, it was the consensus of the Board to continue consideration of this appeal in order for the Deputy Director to attempt to facilitate settlement.
VI. Public Hearing
Residential Hotel Visitor Policy Ordinance
From 7:29 to 8:50 p.m., the Board convened a Public Hearing regarding implementation of the Uniform Visitor Policy for Residential Hotels. Twenty-one individuals spoke as follows below:
1. Tenant Charles Pitts informed the board that by enforcing the provisions of the Visitor Policy, hotel operators are opening themselves up to liability under Penal Code Section 602(n) regarding criminal trespass. Mr. Pitts feels that visitors should not be evicted after 9:00 p.m. and it is "unconscionable" that rent-paying tenants do not have rights.
2. Mission Hotel tenant Richard Nichols objects to having to sign up ahead of time for permission to have an overnight guest, since he does not know ahead of time if his date will be coming home with him. Mr. Nichols also finds it unfair that he can't have a visitor for more than one night in a row, and that he is limited to one visitor at a time.
3. Robert Pender of PRO read a letter that he wrote to Assemblywoman Jackie Spier, which he believes applies to SRO (Single Room Occupancy) hotel tenants. Mr. Pender feels that SRO tenants should have the same rights as regular tenants.
4. Hartland Hotel tenant Charles Abernathy says that his friends cannot visit him because they either don't have an ID or he hasn't given the hotel operator 24-hour notice. Mr. Abernathy doesn't think his overnight guests are any of the hotel operator's business.
5. Tenant Willie Trimble lives at the Veteran's Academy at the Presidio, which is run by Swords to Ploughshares. Mr. Trimble doesn't feel that Swords is following rules dictated by HUD, and wonders what the veterans who live there fought for.
6. Mission Hotel tenant Michael Taipale says the Visitor Policy Ordinance says that visitors can only be disallowed on the first of the month, and that 24-hour notice is "ridiculous." Mr. Taipale doesn't feel there is anything he can do about the restrictions, since Rent Board petitions can take "years."
7. Henry Karnilowicz is the Master Lessor of a residential hotel. Mr. Karnilowicz said that since each tenant is allowed 8 visitors per month, if there are two occupants in a room, there could be too many people in the hotel at one time. Mr. Karnilowicz suggested that the Ordinance should say 1 visitor per room, not per tenant. He explained that the requirement that ID's be left at the front desk is for security, so that operators know who is in the building, and when they have left.
8. Mission Hotel tenant Mark Friel is a Tenant Representative with the SRO Collaborative. He maintains that the hotel "disrespects the Visitor Policy" because notice of an overnight guest used to have to be given by 5:00 the same night, and now is required 24 hours in advance. You also can no longer have guests two nights in a row. Mr. Friel maintains that tenants should be able to use their 8 nights as they see fit.
9. Potter Hotel tenant Janet Smith says she is paying rent but living in an institutionalized setting. Ms. Smith says that tourists "wouldn't touch these hotels." She feels it is hypocritical that employees at the front desk often do not have US ID's, but they take ID's from visitors. Ms. Smith calls this a "prescription for identity theft."
10. Meredith Walters of the Central City SRO Collaborative says that they understand the tension between safety and security and visiting rights. The Collaborative suggests the following changes to the Uniform Visitor Policy: the Policy should be presented to each new tenant; any government-issued picture ID should be accepted; two visitors at a time should be allowed during daytime hours; overnight guests should be allowed on consecutive nights; the required posting of the law should be at least 11 inches wide and 17 inches tall; children should not count as visitors; tenants should be able to register overnight guests up until 9:00 p.m. on the night they wish to have the visitor; and desk clerks should not be allowed to hold visitors' ID's while they are in the building, but should be allowed to write down the numbers.
11. Seneca Hotel tenant and Mental Health Advocate Delphine Brody reported that the hotel accepts only California State ID's, and that drivers' licenses are not acceptable. This can mean that immigrants are not allowed to visit, so any government ID should be acceptable. Ms. Brody suggests that an appeals process should be available when there is a denial of visitation and no fees or penalties should be assessed while an appeal is pending, or while a petition is being processed at the Rent Board.
12. Tenant Rebecca Dorman says that while the Visitor Policy is supposed to be prominently posted, old policies are not taken down.
13. Sam Dodge of the SRO Collaborative presented a brief history of the genesis of the Uniform Visitor Policy, which started when the police identified charging visitor fees at front desks as hazardous, since undesirable elements could pay their way into the hotels. Supervisor Daly wished to address this problem, and the SRO Task Force was established in 1999. Meetings were held with the various stakeholders and an attempt was made to balance the competing interests. The Ordinance provides an annual chance to identify loopholes. Mr. Dodge reported that the Ordinance has been largely successful in the elimination of visitor fees.
14. Jefferson Hotel tenant Prince Bush thanked the Commissioners for listening to the tenants' side. Mr. Bush said that the hotels don't go by the same rules their tenants have to live by, and they lose peoples' ID's. Mr. Bush feels that tenants should be able to bring some friends over to watch an NBA game and if the friends cause a problem, the tenant is liable and can be put out.
15. Amit Motawala, proprietor of the Prita and Amit Hotels, said that the police require valid ID's for entry. Security being an issue, operators need to take ID's in order to know if people have left the premises. Mr. Motawala doesn't think that a visitor who stays 8 nights with one resident should then be able to spend 8 nights with another tenant at the same hotel.
16. Tenant Dan Williams said that tenants should be able to treat their rooms as their homes. Mr. Williams feels that 2 tenants at a time is too restrictive, but that 3 is reasonable, as long as the tenant doesn't count. Tenants should be able to obtain permission for a visitor up until 9:00. Mr. Williams contended that when hotel operators could charge for visitors, they allowed unlimited amounts, and violated health and safety codes "with impunity."
17. Paul Hogarth of the Tenderloin Housing Clinic said that prior to the adoption of the Visitor Policy, tenants had no rights. Mr. Hogarth believes that, when implemented properly, the Policy can aid in management of the building. Enforcement, however, is a problem. Since operators won't issue receipts when they charge for visitors, it is better for tenants to call the police. Mr. Hogarth contended that tenants have a responsibility when they bring in visitors, and can have their visitation rights suspended. He suggested that landlords should have to have Just Cause to deny visitors.
18. Ken Patel, proprietor of the Aranda Hotel, said that if they cannot retain a visitor's ID, they wouldn't be able to keep track of peoples' comings and goings. Mr. Patel agreed that any picture ID should be acceptable.
19. Summer Desai, operator of the Adrian Hotel, said that they are following the Visitor Policy, and that the Visitor Log is larger than the Rent Log. Mr. Desai maintained that it is hard to screen visitors, and that too many visitors over-utilize the bathrooms in the mornings when tenants need to get ready for work.
20. Sam Patel, President of the Independent Hotel Owners and Operators Association, is also on the SRO Task Force. Mr. Patel explained that the Visitor Policy was developed over four months, which was an insufficient amount of time. Mr. Patel clarified that he is the owner of the Mission Hotel, the Tenderloin Housing Clinic is the master lessor, and City Housing is the operator. Mr. Patel said that his association would be happy to work on formulating a policy that "works for everyone."
21. Earl Brown of the Central City Housing Collaborative said that City Housing has been unwilling to negotiate, but they are not the only ones getting complaints. Mr. Brown believes that the 24-hour notice requirement is the biggest problem; that all photo ID's should be acceptable; and that residents should be allowed to have two visitors at a time. Mr. Brown suggests that, rather than holding ID's, make tenants sign in and out with their guests and suspend their visitation rights if there is a problem. Mr. Brown also said that organizers are more welcomed in non-profit buildings, so the tenants in those buildings are better organized.
Upon the conclusion of the Public Hearing, the Executive Director informed the Board that the Director of St. Peter's Housing Committee reported that they had not received notice of the Public Hearing, and had individuals who wished to testify. The Public Hearing was therefore continued to the meeting on May 20th.
VII. Communications
The Commissioners received a copy of the Order in the case of Cwynar v. City and County of San Francisco, along with an article from the San Francisco Chronicle regarding the case.
VIII. Director's Report
Executive Director Grubb reported that Deputy City Attorney Marie Blits informed him that the idea of "Floating Alternates" for Commissioners would not create a seriatum meeting problem, since only two Commissioners would be able to vote. Mr. Grubb will ask the Office of the City Attorney to draft such legislation to take to the Board of Supervisors. Additionally, the Ordinance that authorizes a 50-50 split of any increased water bills related to the renovation of Hetch-Hetchy (Proposition A) passed at the Board of Supervisors.
IX. Calendar Items
May 13, 2003 - NO MEETING
May 20, 2003
10 appeal considerations (1 cont. from 4/15/03)'
7:00 Continued Public Hearing: Residential Hotel Visitor Policy Ordinance
X. Adjournment
President Wasserman adjourned the meeting at 9:28 p.m.