July 20, 2004MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, July 20, 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
6:13 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber; Henderson;
Hurley; Marshall; Mosbrucker; Wasserman.
Commissioners not Present: Mosser
Staff Present: Gartzman; Lee.
Commissioner Justman appeared on the record at 6:17
p.m.
Commissioner Murphy appeared on the record at 6:30
p.m.
III. Approval of the Minutes
IV. Remarks from the Public
A. Sarah Norr of the Central City SRO Collaborative
discussed the 445 O'Farrell Street appeals (AT040064 thru AT040066) concerning
the landlord's untimely installation of an automatic fire sprinkler system
19 months after the City's deadline. Ms. Norr explained the substance of
several letters she previously wrote to the Board concerning the appeals,
alleging that the delay was not caused by the City's failure to process
the permits, but by the landlord's failure to respond to the Fire Department's
request for clarification for a five-month period. She believes that the
tenants should get compensation for the period of construction in addition
to the period of time before the work commenced because the landlord, not
the City, caused the delay.
B. Robert Pender, Vice-President of the Parkmerced
Residents' Organization, read a June 22, 2004 letter of appreciation that
he wrote to the Board of Supervisors. Mr. Pender also read a speech that
he prepared, but did not deliver, to the Board of Supervisors about changing
the composition of the Rent Board.
C. Arun Mitra, representing the tenant of 235 O'Farrell
(AT040062) asked the Board how a tenant could meet his burden of proof when
the person who has the information you need is involved in the conflict
with you. Mr. Mitra informed the Board that the tenant was only able to
get measurements of his former room by chance, when he happened to see it
was open, because the landlord would not give him access to the room. Mr.
Mitra stated that the room the tenant had previously occupied was a bigger
and better room than the one where he currently resides.
D. Ernestine Weiss, a tenant from the Golden Gateway
Center, stated that Rules and Regulations Section 4.11 is "unjust"
because it's illegal to charge tenants twice for PG&E - once in the
CPI annual increase and once in the utility passthrough. Ms. Weiss believes
that Section 4.11 "should be excised, not revised."
E. Janece Farless, a long-term tenant from The Villas
Parkmerced, addressed the Board regarding the landlord's claim on appeal
that the tenant's signature on her annual lease renewal letter was an agreement
for a month-to-month tenancy, instead of a one-year lease renewal (AL040077).
Ms. Farless informed the Board that she was surprised to find out that the
landlord considers her a month-to-month tenant because she was never informed
of that by the landlord, in writing or orally. She is concerned about being
a month-to-month tenant if it means the landlord will be able to increase
her rent at any time, without waiting until her next anniversary date.
V. Consideration of Appeals
A. 108 Garces Dr. AL040076
B. 117 Serrano Dr. AL040077
C. 107 Serrano Dr. AL040067
D. 402 Gonzalez Dr. AL040078
E. 119 Crespi Ave. AL040068
F. 70 Cambon Dr. AL040069
G. 530 Gonzalez Dr. AL040070
H. 27 Grijalva Dr. AL040071
I. 24 Josepha Ave. AL040072
J. 603 Gonzalez Dr. AL040074
K. 108 Grijalva Dr. AL040075
L. 7 Castello Ave. AL040079
M. 228 Cardenas Ave. AL040080
N. 308 Serrano Dr. AL040081
The landlord's petitions for certification of the
costs of new roofs were granted. However, the Administrative Law Judge ruled
that the passthroughs had been imposed prematurely and could not be effective
until expiration of the current one-year leases. The landlord appeals only
as to that issue, arguing that the landlord did not renew the leases for a
one-year term but, rather, as month-to-month tenancies. The landlord asserts
that the renewal letter makes no reference to a one-year lease term; the term
of the lease that is identified had already expired; and there is no evidence
in the record that the tenants relied upon any representation that the renewal
was for one year nor that the tenants wish to be bound by such terms. The
landlord also requests a technical correction to the Decision in Case No.
L031219 at page 8, line 21 where unit 108 is incorrectly referred to as unit
114.
MSC: To recuse Commissioner Becker from consideration
of this appeal. (Marshall/Justman: 5-0)
MSW: To accept the appeals and remand the cases
to the Administrative Law Judge to vacate the Decisions as to the effective
date of the capital improvement passthrough and to find that each of the
subject tenancies was renewed on a month-to-month basis. (Justman/Gruber)
After discussing the landlord's appeals, the Board continued the appeals until the August 3, 2004 meeting to allow the parties the opportunity to address the question of whether the tenants' leases were renewed for a one-year term under Civil Code Section 1945 and such cases as Miller v. Stults 143 Cal. App. 2d 592 and Hagenbuch v. Kosky 142 Cal. App. 2d 296.
The tenant's petition alleging a substantial decrease
in housing services was granted, in part, and the landlord was found liable
to the tenant in the amount of $490.00. The tenant appeals the portion of
the decision finding that his new room is not significantly smaller than his
old room, and therefore does not constitute a substantial decrease in services.
The tenant attaches scale drawings of both rooms to augment his claim.
MSC: To accept the appeal
and remand the case for further hearing on the issue of room size, as
well as a comparison of the quality and amenities of the tenant's former
and current rooms, and to allow the tenant to amend the petition to state
a value for the decreased housing service. (Becker/Marshall: 3-2; Gruber/Murphy
dissenting)
P. 445 O'Farrell St. #103, 420 & 426
AT040064 thru AT040066
The tenants' appeals were filed three days late because
their representative miscalculated the date that the appeals were due.
Seven tenant petitions alleging decreased housing
services were granted as to the lack of installation of automatic fire sprinklers
in this residential hotel. The landlord was held liable to the tenants in
the amount of $20.00 per month for a 3-1/2 month period, after which time
the Administrative Law Judge found that the City failed to process the permit
application. The tenants in three units appeal on the issue of the fire sprinklers,
asserting that the City's delay in issuing the permit was caused by the landlord
having filled out the application incorrectly and then taking five months
to respond to the City's request for clarification. The tenants argue that
the landlord should be liable for rent reductions for the entire period of
the delay plus the six-month period between issuance of the permit and completion
of the sprinkler installation. Additionally, one tenant appeals on the issue
of power outages in the building, claiming that she now has evidence that
will show that this problem presented her with a significant hardship.
MSC: To accept the appeals
on the issue of the fire sprinkler installation only and remand the case
to the Administrative Law Judge for a hearing to consider the new evidence
and information presented by the tenant appellants on appeal, as requested
by the Administrative Law Judge. (Becker/Marshall: 5-0)
Q. 2665 Judah St. #3 AL040082
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 $1,605.00. On appeal, the landlord claims that: the tenant has habitually
paid the rent late, and is currently six months in arrears on rent; the tenant
disturbs other tenants in the building; the tenant's rent is below market
value; the amount of the rent reductions is arbitrary and not supported by
any evidence; and the landlord would accept a settlement in the amount of
half of the amount that was granted by the Administrative Law Judge.
MSC: To deny the appeal
except to remand the case to the Administrative Law Judge for a Technical
Correction to paragraph 8 of the Conclusions of Law and paragraph 2 of
the Order. (Gruber/Becker: 5-0)
R. 2301 Francisco #205 AL040083 and AT040085
The tenant's petition alleging decreased housing services
was denied. The Administrative Law Judge found that the right to use a dishwasher
was a housing service included in the tenant's rent at the inception of the
tenancy, but that no rent reduction was warranted because the tenant herself
got rid of the dishwasher after it became inoperative. However, the Administrative
Law Judge specified that the tenant could file a petition should the landlord
not allow her to obtain a dishwasher in the future. The Administrative Law
Judge also found that the right to have a washer and dryer was not a housing
service provided at the inception of the tenancy. The tenant and landlord
both appeal the decision. On appeal, the tenant claims that the Administrative
Law Judge erred in finding that the washer and dryer did not constitute housing
services. The landlord maintains that the tenant had falsely led him to believe
that a previous manager had allowed her to have a dishwasher on the premises,
but that no such permission had ever been given.
MSC: To deny both parties'
appeals. (Marshall/Justman: 4-1; Gruber dissenting)
VI. Public Hearing
Proposed Amendments to Rules and Regulations Section
11.23 Regarding
Provision of Attorneys and Interpreters.
The public hearing convened at 7:03 p.m. and concluded
at 7:20 p.m. Four individuals testified as follows:
A. Robert Pender, Vice-President of the Parkmerced
Residents Organization (PRO), stated that in the last three years, PRO has
had $13,000.00 in its treasury and has spent $12,000.00 of it for the benefit
of the Parkmerced tenants. PRO has no more money to spend to defend the Parkmerced
tenants' interests at the Rent Board. They are asking the Rent Board to pay
part of the cost to defend the Parkmerced tenants as a group since the landlord
can afford to pay for an attorney, but the tenants cannot.
B. Ernestine Weiss, a tenant at the Golden Gateway
Center, said that under the Constitution, people are entitled to an interpreter
paid for by the Rent Board. However, she does not believe the Rent Board should
pay for attorneys since people who cannot afford attorneys can go to legal
aid or other organizations.
C. Janece Farless, a tenant at The Villas Parkmerced,
agrees with Ms. Weiss' comments about interpreters but also feels that the
"little person" should be provided a lawyer if one is needed.
D. Edwardo Bonsi, a tenant at the Golden Gateway Center,
also agrees that the Rent Board should pay for interpreters. He said it would
be great if the Rent Board could pay for attorneys, but at the very least,
people should be given a referral to an attorney.
E. Laura Traveler, former president of the Parkmerced
Residents Organization (PRO) and current PRO Board member, told the Board
that the Parkmerced tenants need legal assistance at the many hearings being
held on the landlord's rent increase petitions and that PRO has paid as much
as it can. It is difficult to raise more money because most new tenants are
students from neighboring San Francisco State University. At the time PRO
requested the Rent Board to pay for its attorney, the existing regulation
said that the Rent Board was required to pay for interpreters and attorneys
if a person could not afford one. Ms. Traveler expressed her concern that
the regulation was being amended only after PRO requested the Rent Board to
pay for an attorney to represent the tenants.
After taking testimony from the public, the Commissioners made the following comments: Commissioner Marshall stated that the Rent Board will continue to pay for interpreters for parties who cannot afford one, but there is no money in the Rent Board's budget to pay for attorneys, much as the Board might like to be able to do so. Commissioner Mosbrucker stated that the proposed amendment is only a clarification of the existing regulation. In addition, she pointed out that there is no automatic right to an attorney in civil matters. Commissioner Henderson stated that the Rent Board does provide referrals to members of the public and will continue to do so. Commissioner Wasserman stated that the Rent Board fee would have to be increased in order for the Rent Board to pay for attorneys.
Upon conclusion of the public hearing, the Board passed the following motion:
This Section now reads as follows below:
11.23 Legal Representation of Assistance of an Interpreter in Certain Cases
Both parties are entitled to legal representation at
any stage of the proceeding. If it shall appear to the Administrative Law Judge
that the issue or facts in a matter before him or her are so involved or intricate
that in the interests of justice, of conserving time or of facilitating the
preparation of an adequate record, a party ought to be represented by an attorney
or an interpreter, the Administrative Law Judge may urge such party to procure
such services. If the party agrees to procure an attorney or an interpreter,
the Administrative Law Judge shall allow a party a reasonable period of time
to do so. When this occurs, the opposing party shall be advised, and the matter
may be continued for this purpose. If the Administrative Law Judge determines
that a party cannot afford the services of an interpreter, the Board shall assist
in obtaining an interpreter at no cost to the party. The term "interpreter"
shall include persons trained in the international language for the deaf.
VII. Communications
In addition to correspondence concerning cases on
the calendar, the Commissioners received the following communications:
A. Rent Board monthly workload statistics for May
and June 2004.
B. A draft of proposed amendments to Rules and Regulations
Section 2.15 (Per Diem Compensation).
C. An anonymous letter from a tenant at The Villas
Parkmerced.
D. A copy of the Court of Appeal's decision in Jun
Wai Tom v. City and County of San Francisco upholding the lower
court's decision that the City ordinance regarding tenancies in common was
an unconstitutional violation of the right of privacy.
VIII. Director's Report
Acting Executive Director Tim Lee informed the Board as follows:
A. The Rent Board's budget was approved by the Board
of Supervisors on July 20, 2004; the Fee Legislation was approved by the Board
of Supervisors on July 13, 2004 with a 50-50 split of the fee between owners
and tenants and allowing the annual fee to be based on the approved budget
without a separate fee ordinance; a proposed ballot initiative amending the
Charter to change the way that Rent Board Commissioners are appointed was
rejected by the Board of Supervisors on July 13, 2004.
B. We have not yet received the requested opinion
from the City Attorney regarding the Calvo y Perez v. Superior Court
decision.
C. The decision in Jun Wai Tom v. City and
County of San Francisco was certified for publication.
IX. Old Business
The Board continued its discussion of Commissioner's Justman's revised proposed amendments to the utility passthrough regulations that were introduced at the meeting of June 29, 2004. Commissioner Murphy raised a concern about the type of evidence that might be required of a landlord who currently has a utility passthrough in effect for a tenant and who elects to continue to use the tenant's existing base year for future utility passthrough calculations. Commissioner Justman explained that the landlord would be required to produce source documents, such as PG&E bills, to prove the landlord's utility costs in the base year. However, the Administrative Law Judge could consider other records provided by the landlord, provided that such records would qualify as competent evidence under the California Evidence Code, such as the "business records" exception to the hearsay rule. If the landlord could not prove a tenant's existing base year costs with source documents or other competent evidence, the proposed regulation provides for a default base year of 2002. Commissioner Wasserman reminded the Board that since landlords will have to petition for approval of all utility passthroughs under the proposed regulations, tenants will be able to file appeals of decisions approving utility passthroughs on the basis of financial hardship. The Board then voted as follows below:
Pursuant to the Commissioners' request, staff drafted a revised amendment to Rules and Regulations Section 2.15 to conform the regulation to Ordinance Section 37.4(h). The proposed amendment reads as follows below:
Section 2.15 Per Diem Compensation
Each member shall receive $100.00 $75.00
for each Board meeting attended if the meeting lasts for three six
hours or more in a single twenty-four hour period, $75.00 if the meeting
lasts from one to three hours in a single twenty-four hour period, and
$50.00 $70.00 if the meeting lasts one hour or less than
six hours in a single twenty-four hour period. If a member or the alternate
is not in attendance for an entire meeting, compensation shall be determined
by reference to the actual aggregate time the member was in attendance in
proportion to the total time of the meeting.
MSC: To put out for Public Hearing on August 24,
2004, the proposed amendments to Rules and Regulations Section 2.15. (Justman/Becker:
5-0)
IV. Remarks from the Public (cont.)
F. Laura Traveler, former president of the Parkmerced
Residents Organization (PRO) and current Board member, stated that the Board's
comments on the utility passthrough base year proof are "right on"
because spreadsheets can be fraudulent, unreliable evidence of base year
costs. Ms. Traveler said that one of the issues for Parkmerced tenants is
a problem with their base years. She thanked the Board for clearing this
up.
G. Robert Pender, Vice-President of the Parkmerced
Residents' Organization, told the Board that Genevieve and Ricardo Callejo
have been working on their utility passthrough case for over a year and
the Board should expect to see more such cases from Parkmerced. Mr. Pender
said that his landlord "is a little confused."
H. Ernestine Weiss, a tenant of the Golden Gateway
Center, stated that her landlord received a rebate from PG&E and refuses
to disclose it. She commented that utility passthroughs are "double
dipping" and that the law allowing it is "illegal." Ms. Weiss
contends that tenants should not have to pay any utility passthrough since
the increase in utility costs is already included in the annual increase.
I. Edwardo Bonsi, a tenant of the Golden Gateway
Center, stated his belief that if a person cannot afford an attorney, the
City should provide one. He questioned the Board's authority to change the
law.
X. Calendar Items
July 27, 2004 - NO MEETING
August 3, 2004 - 21 appeal considerations (14
continued from 7/20/04)
August 10th & 17th, 2004
- NO MEETINGS
August 24, 2004 -
3 appeal considerations
6:30 Public Hearings:
· Proposed
Amendments to Rules Section 2.15 Regarding Commissioner Compensation
· Proposed
Amendments to Rules Sections 1.19, 4.11 and 10.12 and Proposed New Rules
Sections 6.16 and 10.13 Regarding Utility Passthroughs
XI. Adjournment