February 03, 2004
MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, February 3, 2004 at 6:00 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level
I. Call to Order
Vice-President Marshall called the meeting to order at 6:12 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber; Henderson; Justman; Lightner; Marshall; Mosbrucker; Mosser.
Commissioners not Present: Wasserman.
Staff Present: Grubb; Wolf.
Commissioner Murphy appeared on the record at 6:24 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of January 20, 2004.
(Becker/Gruber: 5-0)
IV. Consideration of Appeals
A. 1036 Polk St. #507 AT040002
The tenant’s appeal was filed eight months late because the tenant is not a native English speaker.
MSC: To recuse Commissioner Marshall from consideration of this appeal. (Becker/Gruber: 5-0)
MSC: To find good cause for the late filing of the appeal. (Becker/Mosbrucker: 5-0)
The landlord’s petition for certification of the costs of a seismic retrofit project 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 to determine whether the passthrough applies to this tenant in this unit and, if so, to decide the tenant’s financial hardship claim.
(Becker/Mosbrucker: 5-0)
B. 440 Davis Court #1118 AT040003
The tenant’s appeal was filed two months late because the tenant is not a native English speaker and suffers from dementia and depression.
MSC: To find good cause for the late filing of the appeal. (Becker/Justman: 5-0)
The landlord’s petition for certification of capital improvement costs was granted. The tenant’s hardship appeal was accepted and remanded for hearing. Due to the tenant’s failure to appear at the properly noticed hearing, the tenant’s appeal was dismissed. The tenant appeals the dismissal on remand, explaining that he is not a native English speaker and suffers from dementia and depression.
MSC: To accept the appeal and remand the case for a hearing on the tenant’s claim of financial hardship. Should the tenant again fail to appear, no further hearings will be granted, absent extraordinary circumstances. (Becker/Marshall: 4-1; Gruber dissenting)
C. 736 Leavenworth, Apt. #7 AL030371
The tenant filed a petition requesting a determination as to whether the current rent is a lawful amount. Due to a rent increase for an additional occupant on the premises, the Administrative Law Judge determined that the tenant was entitled to a refund of rent overpayments in the amount of $4,583.78. On appeal, the landlord claims that the decision is in error as to the amount of rent received from the tenant for the months of November and December of 2003 and April of 2002.
MSC: To deny the appeal without prejudice to the landlord collecting debts that are owed, if any. (Becker/Marshall: 5-0)
D. 828 Taylor St. AL040001
The landlord’s petition for certification of capital improvement costs was certified, only in part. The landlord appeals, arguing that: timely good faith efforts to commence and complete the exterior painting work were undertaken within 90 days of issuance of the Notice of Violation; and the garden replacement was incidental to the exterior painting work, and therefore should be certified.
MSC: To deny the appeal as to the garden issue, but to accept the appeal on the issue of the exterior paint job and remand the case for a hearing to determine when the painting started and if there were justifiable reasons for any delay.
(Becker/Marshall: 5-0)
V. Communications
In addition to correspondence concerning cases on the calendar, the Commissioners received a letter from landlord Bill Quan regarding proposed amendments to Rules Section 4.11.
VI. Director’s Report
Executive Director Grubb informed the Commissioners that Rent Board Supervisor Pedro Ruiz will be retiring after twenty years of service to the agency. His last day in the office will be February 18th.
MSC: To commend and thank Rent Board Supervisor Pedro Ruiz for his twenty years of service to the Rent Board, and for his efforts on behalf of the tenants and landlords of San Francisco. (Marshall/Lightner: 5-0)
VII. Old Business
A. Proposed Amendments to Rules and Regulations Section 4.11 Regarding Utility Passthroughs
Senior Administrative Law Judge Sandy Gartzman discussed changes made to draft regulations amending the utility passthrough provisions per instructions from the Board at the last meeting. The major changes in the new drafts are as follows: one version includes indexing of base year utility costs for inflation, while the other does not; section 10.12 was left in to allow for challenges by tenants to current utility passthroughs and new section 10.13 was added for tenant challenges to passthroughs noticed on or after the effective date of the proposed amendments; 2002 will be the base year for all tenants, with the following three exceptions: (1) where a landlord has a passthrough in effect as of the effective date of the amendments, they will be allowed to keep the tenant’s same base year, (2) where a tenant moves in after 12/31/03, the base year will be the calendar year preceding the inception of the tenancy and, (3) where a landlord became an owner of record after 12/31/02, the landlord will be allowed to petition for approval of an alternate base year if the landlord demonstrates a good faith but unsuccessful effort to obtain base year utility cost records; where there are laundry facilities on the premises and a user fee is charged and there is no separate metering of the laundry facilities, the landlord may not impose any utility passthrough unless the user fees collected are deducted from the total utility costs for the building; and where there is no separate metering and the tenants cannot use the laundry facilities, then no passthrough will be allowed.
As to other commercial fee use areas that are not separately metered, such as parking and storage, the new draft provided that a landlord could pass through utility costs to all units unless the tenant proved that s/he does not pay a user fee for that area and the area in question is not a common area. Commissioner Gruber brought up a building that he owns, which contains 40 units and only 5 parking garages, without a separate meter. For that building, under the proposed draft regulations, he would be precluded from imposing a utility passthrough. As the Commissioners agreed that the result in that instance was too harsh, it was decided that the calculation of the number of rooms in the building shall include parking and storage spaces, which shall each be counted as separate rooms.
Ms. Gartzman will incorporate the agreements reached at tonight’s meeting into a new draft, which will be discussed at the meeting on February 17th.
B. Assembly Bill 647 (Unabated Code Violations)
At their meeting on January 20th, the Commissioners discussed AB 647, which took effect on January 1, 2004. The legislation amends Civil Code Section 1942.4 to prohibit a landlord from demanding or collecting rent, or issuing a notice of rent increase or 3-day notice to pay rent or quit, where certain code violations exist, a notice of violation is not abated within 35 days, and the delay is without good cause. AB 647 also provides for attorney’s fees to a tenant who successfully defends an eviction action based on the landlord’s violation of the section. At the January 20th meeting, it was the consensus of the Board to wait until a case comes before them on appeal before making any policy interpretations of the new law.
Commissioner Murphy asked that this issue be re-calendared for discussion. It is his opinion that the granting of a 100% rent reduction pursuant to AB 647 constitutes a penalty against the landlord, which is not allowed under the Rent Ordinance. The Executive Director will ask the Office of the City Attorney for an opinion on this question, as well as the question of which types of code violations would warrant a 100% rent reduction under AB 647.
VIII. New Business
A. Commissioner Gruber inquired regarding the 4,000,097 hits on the Rent Board’s web site in December, 2003.
B. Since Executive Director Grubb will be retiring and his last day in the office will be April 1, 2004, Commissioner Becker inquired regarding plans for the transition to a new Director, and asked whether the Board should get involved.
C. Commissioner Murphy informed the Board that ex-Hearing Officer Dave Wharton recently passed away. He was joined by his fellow Commissioners, and the entire staff of the Rent Board, in expressing condolences to the Wharton family.
D. Commissioner Murphy questioned the information currently being provided by Rent Board staff regarding the Cwynar case, which is that the Decision only applies to the named plaintiffs, and that Proposition G is still in effect. Commissioner Murphy requested that the City Attorney be asked whether the Decision also applies to members of the named plaintiff organizations, and/or members of the general public. Mr. Grubb will request that the City Attorney issue an Opinion on this question.
IX. Calendar Items
February 10, 2004 - NO MEETING
February 17, 2004
4 appeal considerations (1 cont. from 2/3/04)
Public Hearing:
Proposed Amendments to Rules Section 6.11
Old Business:
Proposed Amendments to Rules Section 4.11
X. Adjournment
Vice-President Marshall adjourned the meeting at 8:24 p.m.