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July 20, 2004

July 20, 2004

MINUTES 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

      MSC: To approve the Minutes of June 29, 2004.

            (Becker/Gruber: 5-0)

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.

      O. 235 O'Farrell St. #311 AT040062

    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.

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

    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:

        MSC: To recuse Commissioner Becker from voting on the proposed amendment to Rules and Regulations Section 11.23. (Marshall/Justman: 5-0)

      MSC: To adopt the proposed amendment to Rules and Regulations Section 11.23. (Gruber/Marshall: 5-0)

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

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

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:

        MSC: To put out for Public Hearing on August 24, 2004, the proposed amendments to Rules and Regulations Sections 1.19, 4.11 and 10.12 and the proposed new Rules and Regulations Sections 6.16 and 10.13 regarding utility passthroughs.

              (Marshall/Justman: 5-0)

      B. Proposed Amendments to Rules and Regulations Section 2.15 Regarding Commissioner Compensation

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

    President Wasserman adjourned the meeting at 7:58 p.m.

Last updated: 10/9/2009 11:26:16 AM