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May 18, 2004

May 18, 2004

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

Tuesday, May 18, 2004 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 6:06 p.m.

II. Roll Call

 

Commissioners Present:

Becker; Gruber; Henderson; Hurley; Marshall; Mosbrucker; Wasserman.

 

Commissioners not Present:

Mosser.

 

Staff Present:

Wolf.


    Commissioner Justman appeared on the record at 6:09 p.m.; Commissioner Murphy arrived at the meeting at 6:35 p.m. Commissioner Becker went off the record at 7:30 p.m.

III. Approval of the Minutes

      MSC: To approve the Minutes of April 20, 2004.

          (Hurley/Becker: 5-0)

IV. Remarks from the Public

A. Tenant Jeremias Zabala of 345 Jones #203 appeared on behalf of the tenant appellants at the building, and was accompanied by his representative, Luis Berahona. Mr. Zabala spoke with the assistance of a Tagalog interpreter. He informed the Board that, if the tenants' hardship appeals were not granted, several members of the tight-knit tenant community in the building would have to move. Mr. Zabala also alleged that the capital improvements were really only minor repairs and complained of the conditions in the building. He feels it is unfair for the tenants to have to pay, since they are only receiving S.S.I.

B. Tenant Ernestine Weiss spoke on behalf of the tenants at the Golden Gateway complex. Ms. Weiss said that Rules Section 4.11 constitutes "gross fraud" because the landlord gets a rent increase each year, which includes PG&E. Ms. Weiss told the Commissioners that this hits the elderly the worst, and that they should "forget indexing and remove it altogether."

C. Robert Pender, Vice-President of the Parkmerced Residents' Organization (PRO), said that the annual rent increase originally included PG&E. Mr. Pender told the Board that the management at Parkmerced is "all over the map" with PG&E passthroughs, and encouraged the Board to "end the passthrough and end the confusion."

V. Consideration of Appeals

A. 345 Jones St. (8 units) AT040039-46

The landlords' petition for certification of capital improvement costs to 25 of 30 units was granted. The tenants in eight units appeal the decision on the grounds of financial hardship. All of the appeals were filed ten months late because the tenants are not native English speakers, many of them are elderly, and they did not realize that they had the right to appeal.

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

      MSC: To accept the appeal of the tenant in unit A-100 and remand the case for a hearing on the tenant's claim of financial hardship. (Becker/Marshall: 3-2; Gruber, Hurley dissenting)

      MSF: To deny the appeal of the tenant in unit #103. (Gruber/Hurley: 2-3; Justman, Marshall, Becker dissenting)

      MSC: To accept the appeal of the tenant in unit #103 and remand the case for a hearing on the tenant's claim of financial hardship. (Marshall/Becker: 3-2; Gruber, Hurley dissenting)

      MSC: To accept the appeal of the tenants in unit #200 and remand the case for a hearing on the tenants' claim of financial hardship. (Becker/Gruber: 5-0)

      MSC: To accept the appeal of the tenants in unit #203 and remand the case for a hearing on the tenants' claim of financial hardship. (Gruber/Becker: 5-0)

      MSC: To accept the appeal of the tenants in unit #205 and remand the case for a hearing on the tenants' claim of financial hardship. (Gruber/Becker: 5-0)

      MSC: To accept the appeal of the tenants in unit #405 and remand the case for a hearing on the tenants' claim of financial hardship. (Marshall/Becker: 3-2; Gruber, Hurley dissenting)

      MSC: To accept the appeal of the tenants in unit #501 and remand the case for a hearing on the tenants' claim of financial hardship. (Becker/Marshall: 3-2; Gruber, Hurley dissenting)

      MSC: To accept the appeal of the tenants in unit #505 and remand the case for a hearing on the tenants' claim of financial hardship. (Marshall/Becker: 3-2; Gruber, Hurley dissenting)

B. 2 Casa Way #205 AT040038

The landlord's petition for a determination under Rules Section 1.21 was granted and the Administrative Law Judge found that no "tenants in occupancy" resided at the subject premises at the time the petition was filed. On appeal, the tenants claim that: many of the indicia of residency are present at the subject unit; the San Francisco Unified School District accepted the subject unit as the tenants' principal place of residence for the purpose of enrolling their children in public school; the premises have not been sublet; the tenants meet the definition of "tenant" in the Ordinance and continue to use and occupy the premises; and the Ordinance does not require that a unit be a tenant's principal place of residence in order for rent increase limitations to apply.

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

      MSC: To deny the appeal. (Gruber/Murphy: 3-2; Becker, Marshall dissenting)

C. 690 Shotwell AT040047

The tenant's petition alleging decreased housing services due to the removal of a toilet was granted and the landlord was found liable to the tenant in the amount of $521.48. On appeal, the tenant does not challenge the result of the Decision but, rather, alleges that certain factual findings are in error.

      MSC: To deny the appeal except to remand the case to the Administrative Law Judge for a Technical Correction as to the amount of the rent reduction granted.

          (Becker/Marshall: 5-0)

D. 2033 Turk AL040032

        (rescheduled from 5/4/04)

The tenant's petition alleging decreased housing services due to a recurrent ceiling leak and water damages was granted, and the landlords were found liable to the tenant in the amount of $540.00. The landlords' appeal was accepted and the case was remanded to re-open the record on the past and present status of the leaks. In the Decision on Remand, the Administrative Law Judge finds the landlords liable in the amount of $780.00 due to the continuing leaks. On appeal, the landlords maintain that: the Administrative Law Judge is biased in favor of the tenant; the problem was not substantial, since the tenant failed to complain for a two-year period; a DBI inspector failed to find evidence of water intrusion; there is an arithmetic error in the calculation of the rent refund; and there is no current evidence of an active leak.

      MSC: To deny the appeal except to remand the case to the Administrative Law Judge for a Technical Correction to the Decision to adjust the amount of the rent overpayments. (Becker/Marshall: 5-0)

E. 3647-3651 - 19th St. AL040033

        (rescheduled from 5/4/04)

The tenant's petition alleging that the landlords' failure to consent to a replacement roommate constituted a substantial decrease in housing services was granted, and the landlords were found liable to the tenant in the amount of $679.31. The landlords had failed to give their consent to the tenant's proposed roommate because she had previously lived in another unit in the building, and the landlords alleged that she had left this unit in poor condition. On appeal, the landlords claim that: their rejection of the proposed roommate was reasonable; there was damage to the flat for which no deductions to the security deposit were taken; and the tenant failed to provide the landlords with any additional information regarding the proposed subtenant when given the opportunity.

      MSC: To deny the appeal. (Becker/Marshall: 5-0)

F. 835 Cole St., Apt. #1 AL040035

        (rescheduled from 5/4/04)

The tenant's petition alleging decreased housing services due to leaks in the bedroom and bathroom was granted and the landlord was found liable to the tenant in the amount of $7,187.50. On appeal, the landlord claims that the amount of the rent reductions are excessive considering his many attempts to remedy the problems; and that at the time of the hearing, he did not have the evidence to prove that the complaint has been abated.

      MSC: To deny the appeal. (Becker/Marshall: 5-0)

VI. Communications

The Commissioners received the following communications:

    A. A letter from landlord Bill Quan regarding the proposed amendments to Rules and Regulations Section 4.11.

    B. The corrected office workload statistics for the month of March, 2004.

    C. An updated list of amendments to the Rent Ordinance.

    VII. Director's Report

    Acting Executive Director Wolf informed the Board that interviews have commenced for the hiring of a new Executive Director. She also told them that the Mayor's Office will be sponsoring legislation authorizing the rental unit fee and that, in the legislation, the percentage of the fee borne by tenants and landlords will remain the same as it was this year. Ms. Wolf reminded the Commissioners to submit their Form 730 Statement of Economic Interest forms.

VIII. Old Business

    Proposed Amendments to Rules and Regulations Section 4.11 Regarding PG&E Passthroughs

    On April 20, 2004, the Board held a Public Hearing on two versions of proposed amendments to Rules Section 4.11, one with indexing for inflation and one without. The Commissioners continued their discussion on the merits of indexing at this evening's meeting. Commissioner Murphy said that the Coalition for Better Housing was prepared to pay Professor Davidoff from the Fisher School at the Haas School of Business to prepare an analysis. Commissioner Marshall responded that the decision was one of policy, rather than economics. Commissioner Marshall reiterated her opinion that the purpose of the PG&E passthrough is to recover extraordinary costs, and not inflationary increases accounted for by the annual increase. Commissioner Murphy questioned whether landlords who have long-standing correctly calculated PG&E passthroughs have a vested right in retaining their base years without the reduction in the amount of the passthroughs that indexing would cause. Commissioner Marshall said that she was prepared to compromise and only index every five years; Commissioner Murphy said that he could accept indexing on a going-forward basis only. Since the Landlord and Tenant Commissioners failed to come to agreement, Neutral Commissioners Justman and Wasserman conferred and offered the following proposal: for tenants who never had a utility passthrough or who had a passthrough in effect on 12/31/03 but there are not records to prove costs in the base year, the base year shall be 2002 but after five years the base year shall be moved up five years; and for continuing passthroughs where a base year prior to 2002 can be proved, there will be no indexing for years prior to 2002, but every year thereafter shall be indexed by the CPI. President Wasserman asked that staff draft this proposal, which will be discussed at the next Board meeting and put out for Public Hearing some time thereafter. President Wasserman also pointed out that the draft amended regulations eliminate many of the abuses that the Board, at the bequest of Supervisor Peskin, was attempting to ameliorate.

IV. Remarks from the Public (cont.)

    D. Ernestine Weiss said that the issue of "hotelization" is not being addressed at the Golden Gateway complex. Many units are being used for offices so there is great usage of electricity and other utilities. Ms. Weiss feels that the PG&E passthrough regulations are "not a question of compromise, but a question of legality."

    E. Genevieve Callejo, PRO Board member, spoke to Rules and Regulations Section 11.23 concerning provision by the Rent Board of interpreters and attorneys to low-income persons. Ms. Callejo informed the Board that PRO has run out of money to defend Parkmerced's pending petitions to pass through the cost of re-piping at the property. She stated that the tenants spent $12,000 on representation during extensive hearings on the landlord's operating and maintenance expense petition. She said that Parkmerced is a "special case" because of the numerous petitions filed by the landlord, and that the Rent Board should obtain an attorney for the tenants.

    F. Laura Traveler, past President of PRO, said that "indexing is the best way to go" at Parkmerced. Ms. Traveler maintains that an out-of-state controller calculates the utility bills in error; the tenants are paying passthroughs in addition to paying their PG&E bills; and, on the same floor, tenants are paying different passthroughs. Ms. Traveler asked whether the landlord would be able to provide spreadsheets as proof of their costs, or if they would be required to furnish copies of the actual bills.

    G. Robert Pender told the Board that PRO has requested legal assistance pursuant to Rules Section 11.23. As Parkmerced has become increasingly diverse, with many non-English speaking tenants, there is a greater need for interpreters.

    H. Joe Bravo, attorney for Parkmerced, said that he wanted to "dispel misconceptions and untruths." He told the Board that Parkmerced discovered overcharges in an audit, and brought them to the attention of the Administrative Law Judge. He also said that they have been endeavoring to rectify overcharges due to PG&E passthroughs, and have refunded $80,000 since July of 2001. They are also currently meeting with the Office of the District Attorney in an attempt to rectify the situation.

IX. New Business

    Rules and Regulations Section 11.23 Regarding Provision of Attorneys and Interpreters

    Acting Executive Director Wolf brought to the Board's attention the language of Section 11.23 of the Rules and Regulations, which states: "If the Administrative Law Judge determines that a party cannot afford the services of an interpreter, the Board shall assist in obtaining an interpreter or attorney at no cost to the party." The Parkmerced Residents' Organization (PRO) has made a request for legal assistance pursuant to this Section. This issue will be calendared for discussion at the next meeting.

X. Calendar Items

    May 25, 2004 - NO MEETING

    June 1, 2004

    6 appeal considerations (1 cont. from 5/4/04)

    Old Business:

      A. Rules and Regs. Section 4.11

      B. Rules and Regs. Section 11.23

XI. Adjournment

    President Wasserman adjourned the meeting at 8:43 p.m.

Last updated: 12/24/2013 2:21:40 PM