October 14, 2003
MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, October 14, 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 6:11 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber; Lightner; Marshall; Mosbrucker; Wasserman.
Commissioners not Present: Mosser; Murphy.
Staff Present: Grubb; Lee; Wolf.
Commissioner Justman appeared on the record at 6:20 p.m. Commissioner Marshall left the meeting at 8:20 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of September 30, 2003 with the following correction: on page 2, under “Review of the Commission on the Environment’s List of Energy Conservation Improvements”, the Board’s recommended change of the amortization period for attic and roof insulation should also include wall insulation. (Becker/Marshall: 4-0)
IV. Old Business
A. Review of the Commission on the Environment’s List of Energy Conservation Improvements
The Board continued their discussion of the Commission on the Environment’s List of Energy Conservation Improvements (Ordinance Section 37.7(c)(2) with Senior Administrative Law Judge Tim Lee. Mr. Lee informed the Board that their decision to extend the amortization period for attic/roof and wall insulation from 10 to 20 years would be inconsistent with the amortization period for ceiling insulation found in Ordinance Sections 37.7(c)(4)(A)(i) and 37.7(c)(5)(A)(ii). However, since energy conservation is a separate basis for passthrough under the Ordinance and 20 years appears to be a more accurate estimated life of the improvement, the Commissioners chose to stay with their decision to amortize these improvements over a 20-year period. The Board again continued discussion of whether future changes to the List should be made without approval of the Board of Supervisors but, rather, by the Rent Board through Rules and Regulations, in order for the Tenant Commissioners to receive input from the Tenant Community.
B. Rossoff v. S.F. Rent Board: Proposed Amendments to
Rules Section 6.11
At the Board meeting on September 30th, Senior Administrative Law Judge Tim Lee informed the Board that Judge Quidachay granted the landlord’s writ. The Judge noted that since Section 6.11(a)(1) refers to extraordinary circumstances “including, but not limited to” the specified circumstances set forth in the Section, the regulation must be read expansively and not restrictively. Since such an expansive interpretation was not the intent of the Board in adopting the regulation, the Commissioners asked staff to draft an amendment to address the court’s concern with the existing language of the regulation, which follows below (strikethrough for deletions and double underline for additions):
(a) Petition Based on Extraordinary Circumstances
(1) The provisions of this Section 6.11(a) shall apply only in extraordinary circumstances, including but not limited to the following situations:
(A) where, because of a special relationship between the landlord and tenant, or through due to fraud, mental incompetency, or some other reason extraordinary circumstances unrelated to market conditions, the initial rent on a unit was set very low or the rent was not increased or was increased only negligible amounts during the tenancy; or
(B) where the landlord became owner of record of a Proposition I Affected Unit between September 1, 1993 and December 22, 1994, or where the landlord entered into an agreement to purchase a Proposition I Affected Unit which agreement became non-contingent on or after September 1, 1993 and before November 9, 1994, and, in becoming owner of record or entering into the purchase agreement, the landlord relied on the ability to increase rents without limitation from the Rent Ordinance.
Passage of Proposition I at the November 1994 election does not in and of itself satisfy this Section 6.11(a)(1), though it may be considered.
MSC: To put the proposed amendments to Rules and Regulations Section 6.11(a)(1) regarding comparables rent increases out for Public Hearing. (Marshall/Becker: 3-2; Gruber, Lightner dissenting)
A Public Hearing on the proposed amendment will be held on Tuesday, November 18th. An Executive Session concerning the Rossoff case will be held on that date as well.
C. Proposed Amendments to the Uniform Visitor Policy for Residential Hotels
In accordance with the requirement that the Rent Board review the provisions of the Uniform Visitor Policy on an annual basis, three Public Hearings were held. As a result of concerns raised by tenants at those hearings, Executive Director Grubb convened a Committee to suggest possible amendments to the Visitor Policy. The Visitor Policy Committee met four times and consisted of four landlord representatives, four tenant representatives, one neutral and Mr. Grubb. A majority of the members reached agreement on all issues that were raised by the public at the Public Hearings, and the Committee came up with a list of proposed amendments to the Visitor Policy that were put out for Public Hearing.
At the Public Hearing on September 16th, 16 individuals commented on the proposed amendments. After discussion of the issues raised by the public, the Board identified several areas for further discussion, including: the number of blackout dates, which should fall on actual check days; whether ID’s can be retained by hotel staff, and which types of ID’s are acceptable; exemption for caregivers; and limitations on guests. At this evening’s meeting, the Board made several changes to the proposed amendments, including: specifying that professional and/or necessary service providers shall not be counted toward the visitor limitation rule; providing that guest requests may be made no later than 7:00 p.m. on the same day; increasing the fine for losing an I.D. from $20.00 to $75.00; specifying that visitors can be restricted on 2 of the 3 actual check days each month; requiring that the Visitor Policy and any Supplemental Visitor Policy be posted on a minimum size of 11 x 17” by the entrance or in the lobby; and specifying that translation of the Visitor Policy in the predominant languages will be provided by the Rent Board on an as-needed basis.
MSC: To adopt the Proposed Amendments to the Uniform Visitor Policy in SRO Hotels as recommended by the Visitor Policy Committee, as amended. (Gruber/Marshall: 5-0)
V. Consideration of Appeals
Commissioner Becker was recused by acclamation from consideration of the first two appeals.
A. 706 Gonzalez Dr. AT030305
The landlord’s petition for rent increases based on increased operating expenses was granted. The tenant appeals the decision on the grounds of financial hardship.
MSF: To deny the appeal. (Lightner/Gruber: 2-3; Marshall, Mosbrucker, Wasserman dissenting)
MSC: To accept the appeal and remand the case for a hearing on the tenant’s claim of financial hardship. (Marshall/Mosbrucker: 4-1; Lightner dissenting)
B. 150 Font 11-M AT030306
The tenant’s appeal was filed almost one year late because the tenant thought she had filed a hardship appeal at the time the decision was issued.
MSC: To find good cause for the late filing of the appeal. (Lightner/Justman: 5-0)
The landlord’s petition for rent increases based on increased operating expenses was granted. The tenant appeals the decision on the grounds of financial hardship.
MSC: To accept the appeal and remand the case for a hearing on the tenant’s claim of financial hardship. (Lightner/Marshall: 5-0)
C. 430 – 9th Ave. #3 & #11 AT030302 & -03
The landlord’s petition for rent increases to 3 of 12 units based on increased operating expenses was granted. Two tenants appeal the decision on the grounds of financial hardship.
MSC: To accept the appeal of the tenant in unit #3 and remand the case for a hearing on the tenant’s claim of financial hardship. (Becker/Mosbrucker: 3-2; Gruber, Lightner dissenting)
MSC: To accept the appeal of the tenant in unit #11 and remand the case for a hearing on the tenant’s claim of financial hardship and to check the tenant’s rent history. (Becker/Mosbrucker: 5-0)
D. 825 Jones St. #5 & #6 AT030295 & -96
The landlord’s petition for certification of capital improvement costs to 9 of 18 units was granted, in part, resulting in monthly passthroughs in the amount of $57.61. The tenant in unit #5 appeals the decision on the grounds of financial hardship, in addition to asserting that: the new laundry room is an unnecessary luxury item since there is a large commercial laundromat directly across the street; the building is in need of other capital improvements, such as new wiring; the interior paint job is overpriced and the work was poorly performed; and the new carpet is worse than the one that it replaced. The tenant in unit #6 appeals on the grounds that: the landlord is attempting to turn the building into luxury apartments to appeal to a wealthier class of tenants, and thus overspent on the work; all of the improvements except for the seismic retrofit work were unnecessary; and the landlord lied to the Administrative Law Judge about the character of the alleged capital improvements.
MSC: To accept the appeal of the tenant in unit #5 and remand the case for a hearing on the tenant’s claim of financial hardship only. (Lightner/Gruber: 3-2; Becker, Mosbrucker dissenting)
The appeal of the tenant in unit #6 was continued to the next meeting so that staff could contact the tenant and attempt to obtain more information regarding his financial circumstances.
E. 161 Powell St. #202 AL030299
The tenant’s petition alleging decreased housing services in this residential hotel was granted, in part, and the landlord was found liable to the tenant in the amount of $1,590.00. On appeal, the landlord claims that: the rent reduction granted for a reduction in the size of the tenant’s room is excessive due to an inaccurate mathematical calculation and in light of the other housing services provided by the landlord to the tenant; the rent reduction for the inoperative elevator is excessive and elevator service was restored as of June 18, 2003; and the rent reduction granted for the lack of heat is excessive considering the amount of rent paid by the tenant.
MSC: To deny the appeal except to remand the case to the Administrative Law Judge on the record to discontinue the rent reduction for the inoperative elevator as of the date the service was restored. (Becker/Justman: 5-0)
F. 3116 – 16th St. #4 AT030300
The tenant’s appeal was filed 3 days late because the tenant is not a native English speaker.
MSC: To find good cause for the late filing of the appeal. (Becker/Gruber: 5-0)
The tenant’s petition alleging decreased housing services was denied because the Administrative Law Judge found that the noise coming from an upstairs unit was not unreasonable in a building occupied by families. On appeal, the tenant claims that: the Administrative Law Judge failed to consider evidence introduced by the tenant at the hearing; testimony from a witness who does not reside at the building should not have been considered; and a habitability problem raised by the tenant was not addressed in the decision.
MSC: To deny the appeal. (Gruber/Lightner: 5-0)
G. 1678 Great Highway AT030301
The tenants’ petition alleging an unlawful rent increase was denied because the Administrative Law Judge found that the increase was warranted pursuant to Costa-Hawkins. However, a claim of decreased housing services due to lack of heat was granted, and the landlord was found liable to the tenants in the amount of $1,700.00. On appeal, the tenants claim that: the proposed rent increase is for more than market value, showing that the landlord’s intent is to evict the tenants; the original tenant has been away from the premises temporarily due to family obligations and plans to return to the subject unit when his grandson begins high school next year; and the Administrative Law Judge failed to consider the fact that the original tenant is a disabled senior citizen who will be displaced from his home.
MSC: To recuse Commissioner Becker from consideration of this appeal. (Marshall/Gruber: 5-0)
MSC: To deny the appeal. (Lightner/Gruber: 3-2; Marshall, Mosbrucker dissenting)
H. 4295 – 24th St. AT030308
The landlords’ petition for certification of capital improvement costs and rent increases based on increased operating expenses to 5 units was granted. The tenants in one unit appeal certification of the costs of the new electrical service, asserting that there has been no improvement in electrical power or service to their unit and they have derived no benefit from this work.
MSC: To deny the appeal. (Lightner/Justman: 5-0)
I. 855 Sacramento #339 AT030307
The tenant filed a petition asking for a determination as to whether his rent is a lawful amount. The Administrative Law Judge found the rent the tenant was paying to be lawful. On appeal, the tenant submits a copy of a cashier’s check for six days’ rent and a notice from management of the hotel stating that the tenant is in arrears on his rent.
MSC: To deny the appeal. (Gruber/Lightner: 3-2;
Becker, Marshall dissenting)
J. 3323 Broderick St. AT030304
The landlords’ petition for certification of capital improvement costs to one of two units was granted, in part, resulting in a monthly passthrough in the amount of $73.90. On appeal, the tenant maintains that: the garage door had to be replaced; the water heater was moved in order to make room for a second parking space for a lower unit; the water pressure restrictor valves provided no benefit to her unit; the tenants in the building have no access to the activity room; the claimed work constituted maintenance; and the tenant did not know which items were being petitioned for.
MSC: To deny the appeal. (Lightner/Gruber: 5-0)
K. 1347 – 25th Ave. AL030277
The landlords’ petition seeking a determination pursuant to Rules Sections 6.14, 1.21 and Costa-Hawkins was denied. The Administrative Law Judge found that although the original tenant had vacated the subject unit, the current occupant is a lawful subtenant who resided in the unit prior to January 1, 1996 and that a 6.14 notice was not timely served upon him. The tenant’s petition alleging decreased housing services was granted, in part, and the landlords were found liable to the tenant in the amount of $8,520.00 due to worn out carpeting and a defective stove and refrigerator. The landlords appeal the decision, claiming that: there is no evidence that the tenant was living at the premises at the time the 1997 rental agreement was executed; the landlords’ 6.14 notice should presume to have been received by the tenant; the Rent Board does not have jurisdiction over “substantial damage” claims; there is no quantifiable standard as to the value of the decreased services; and the landlords were denied their right to a jury trial and an opportunity to have the matter heard in civil court.
MSC: To deny the appeal. (Becker/Mosbrucker: 3-2;
Gruber, Lightner dissenting)
VI. Communications
The Commissioners received a Pending Litigation Status Report and an e-mail regarding the Baba v. Rent Board case from Senior Administrative Law Judge Tim Lee.
VII. Director’s Report
Executive Director Grubb informed the Board that the new bond passthrough calculation sheet has been prepared.
VIII. Calendar Items
October 21, 2003 - NO MEETING
October 28, 2003
11 appeal considerations (1 cont. from 10/14/03)
Old Business: List of Energy Conservation Improvements
IX. Adjournment
President Wasserman adjourned the meeting at 8:45 p.m.