August 3, 2004
MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, August 3, 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 6:10 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber; Henderson;
Hurley; Mosbrucker; Mosser; Murphy; Wasserman.
Commissioners not Present: Marshall.
Staff Present: Gartzman; Wolf.
Commissioner Justman appeared on the record at 6:12
p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of July 20, 2004.
IV. Remarks from the Public
A. Robert Pender, Vice-President of the Parkmerced Residents' Organization (PRO), told the Board that PG&E passthroughs at Parkmerced have been "all over the map." Ernestine Weiss says that the tenants at the Golden Gateway complex are having the same problems. Mr. Pender believes that tenants are being taken advantage of, because PG&E costs are supposed to be included in the rent. He feels sorry for landlords who are trying to do a decent job.
B. Carolyn Cahn, President of PRO, remarked on what she feels is mis-management and dishonesty on the part of Olympic View Realty (OVR), the property managers at Parkmerced. She said that OVR's first operating expense petition lumped commercial property in with residential; this happened again later, but the tenants caught it. Ms. Cahn told the Board that tenants who are paying for utilities in other units went to Small Claims Court and prevailed on this issue, but management has refused to rectify the problem for other tenants.
C. Joseph Bravo, Attorney for OVR, remarked regarding the case at 552 Arballo (AL040084), stating that no other tenants have filed petitions contesting their PG&E passthroughs. Mr. Bravo objected to the Memorandum issued by Administrative Law Judge (ALJ) Peter Kearns, claiming it to be a violation of due process. Mr. Bravo said that Mr. Kearns referred to items not in the record; was acting as an advocate, rather than a neutral; and that nothing in the Government Code allows an ALJ to do this. Mr. Bravo asked that the case be remanded to a new ALJ.
D. Laura Traveler, past President of PRO, received clarification from the Board regarding the Remarks from the Public portion of the Agenda: individuals are allowed to make any remarks they wish, including regarding individual cases, but the comments are not taken as evidence nor considered by the Commissioners in deciding an appeal.
E. Tenant Genevieve Callejo of 552 Arballo told the Board that Mr. Bravo did not timely serve her with his final brief in the case. She wanted the Commissioners to know that it was not Senior Administrative Law Judge Sandy Gartzman who called the District Attorney regarding alleged improprieties in PG&E passthroughs at Parkmerced - it was Ms. Callejo who did so because she couldn't get any documentation from OVR. It is not true that she never filed a petition.
F. Attorney Marilyn Kalman, representing the tenant at 120 - 27th St. (AT040087), told the Board that the tenant was only challenging the Finding regarding shared use of the premises. Ms. Kalman told the Board that there are jurisdictional issues in the case. Allegedly, after the Community Boards Program moved out, the landlord started using the room the Program used to occupy. When the tenant complained, the landlords upped their use. Ms. Kalman said that the tenant is being forced out of her rent controlled unit, and urged the Board to remand the case to consider the extent of the shared use.
V. Consideration of Appeals
A. 101 Broderick St. #207 AT040089
The landlord's petition for certification of capital improvement costs to 19 of 28 units was granted. The tenant in one unit appeals the decision on the grounds of financial hardship.
B. 825 Jones St., Apt. 6 AT040086
The tenant's hardship appeal of a decision certifying capital improvement costs was accepted and remanded for hearing. The tenant's appeal was denied on remand. The Administrative Law Judge found that the tenant had failed to prove that a friend who was paying his rent was unable to also pay the passthrough amount; and that the tenant has chosen not to seek at least part-time work while he is going to vocational school. On appeal, the tenant maintains that: he is a full-time student and cannot work full or part-time; the Administrative Law Judge exhibited bias towards the tenant and he was treated differently than a neighbor with a hardship claim; the burden placed on him to prove his hardship claim was too onerous; and that he is elderly, ill, permanently disabled and destitute.
C. 1611 Vallejo AT040060
The tenants' petition alleging a substantial decrease in housing services was granted only as to claims of loss of a stovetop burner and functioning dishwasher. On appeal, the tenants claim that: after restoring the decreased housing service (dishwasher), the landlord should have been required to provide 30-day notice prior to restoration of the prior base rent amount; the Findings of the Administrative Law Judge are in error as to the refrigerator; the ALJ erroneously assumed that the ice machine malfunction was the fault of the tenants; the tenants gave oral notice to the landlord of the problem with the refrigerator door over several years; the landlord's witness was biased due to financial considerations; and the Decision is filled with irregularities.
D. 552 Arballo Dr. AL040084
The tenants' petition alleging that the landlord incorrectly calculated the PG&E passthrough was granted and the landlord was found liable to the tenants in the amount of $302.77. Additionally, the current passthrough in the amount of $23.17 was reduced to $0.18. On appeal, the landlord asserts that: the landlord should not be required to provide PG&E bills and evidence establishing laundry room utility usage for base year 1979-1980 because the tenants did not previously challenge the claimed 1979-1980 base year utility costs and the landlord did not own the property at that time; the landlord's utility cost spreadsheet which includes data "inherited" from prior owners is reliable evidence to establish utility costs between 1979-1999; the landlord did not discontinue the tenants' utility passthrough in 1987 when no passthrough was imposed, but rather preserved its 1979-1980 base year; the landlord's decision to continue the prior passthrough amount as a "place holder" instead of recalculating a new amount for the tenants' 2000-2001 passthrough should not result in the establishment of a new base year under Rules and Regulations Section 4.11(c); and, there is adequate evidence to establish base year and comparison year utility costs for each of the relevant passthrough periods.
Consideration of this appeal was continued to the meeting on August 24th in order for the parties to be given an opportunity to respond to the Memorandum of Administrative Law Judge. A briefing schedule was established as follows: the landlord's brief must be filed and served on the tenant by August 10th; and any tenant response must be filed and served by August 17th. No additional pleadings received after those dates will be considered by the Board.
E. 120 - 27th St. AT040087
The tenant's petition making many allegations of decreased housing services was granted only as to a slowly draining sink and loss of closet doors and the landlord was found liable to the tenant in the amount of $175.00. Additionally, the tenant requested a determination as to whether her current rent is a proper amount. The Administrative Law Judge ordered the landlord to refund PG&E overpayments in the amount of $5,613.96, as well as $7,303.00 in rent overpayments. The tenant appeals the decision, claiming that: the Administrative Law Judge erred in finding that the tenant did not have exclusive use of the hallway, bathroom, kitchen and back porch in the subject unit; the landlords had no right to convert another bedroom in the unit into a "guest room"; and the tenant's claims of trespass and harassment were justified.
MSC: To recuse Commissioner Becker from consideration of this appeal. (Mosbrucker/Justman: 5-0)
MSC: To deny the appeal. (Murphy/Gruber: 3-2; Henderson, Mosbrucker dissenting)
F. 345 Jones Street #401 AL040090
The tenants' hardship appeal of a decision certifying capital improvement costs was accepted and remanded for hearing. The tenants' appeal was granted on remand. The Administrative Law Judge found that there were four people living in the unit, two of whom are subtenants who contribute to the monthly rent. The subtenants' rent contributions were treated as part of the tenants' gross income for purposes of determining financial hardship. On appeal, the landlord contends that since the definition of "tenant" in the Ordinance includes subtenant, the Administrative Law Judge should have considered the subtenants' income when determining the tenants' financial hardship. The tenants oppose the appeal, claiming that it is the Board's policy that subtenants need not fill out hardship applications or document their incomes, since they are not legally responsible for rent payments.
The landlord's appeal was filed one day late because he didn't have time to prepare the appeal earlier and because he assumed that he had fifteen days after receiving the decision to file the appeal.
The tenants' petitions alleging decreased housing services were granted and the landlord was found liable to the tenants in the sum of $1,882.50 per unit for the loss of use of the on site coin-operated washer and dryer and for deteriorated hallway and stairway carpeting. In addition, the tenants' base rents were reduced by $30.00 per month until the landlord restores use of a washer and dryer within the subject building. On appeal, the landlord claims that: laundry facilities were not provided as a housing service, but as a gratuitous act by the landlord; since the tenant of unit #21 is single and the tenants of unit #22 are a childless couple, it is not credible that they each do ten loads of laundry a month; the tenants did not use the laundry machines in the building as often as they claimed at the hearing; the carpeting was worn and frayed when the tenancies commenced and the tenants accepted the condition of the carpeting by agreeing to pay the rent and move into the building; this building is occupied by low income and retired people who cannot afford and do not want to pay for improvements unless they are absolutely necessary; the rent reduction for the carpeting is excessive, particularly since it was in the common area of the building and not inside the tenants' units; photographs of the carpeting submitted by the tenants were staged; and the Administrative Law Judge misunderstood the dates of carpet repair.
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H.
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108 Garces Dr.
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AL040076
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I.
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117 Serrano Dr.
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AL040077
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J.
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107 Serrano Dr.
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AL040067
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K.
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402 Gonzalez Dr.
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AL040078
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L.
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119 Crespi Ave.
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AL040068
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M.
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70 Cambon Dr.
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AL040069
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N.
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530 Gonzalez Dr.
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AL040070
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O.
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27 Grijalva Dr.
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AL040071
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P.
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24 Josepha Ave.
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AL040072
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Q.
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603 Gonzalez Dr.
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AL040074
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R.
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108 Grijalva Dr.
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AL040075
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S.
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7 Castello Ave.
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AL040079
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T.
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228 Cardenas Ave.
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AL040080
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U.
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308 Serrano Dr.
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AL040081
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(cont. from 7/20/04)
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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. After discussing the landlord's appeals at its July 20th meeting,
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.
MSC: To recuse Commissioner Becker from consideration
of these appeals. (Mosbrucker/Justman: 5-0)
MSC: To accept the appeals and remand the cases
to the Administrative Law Judge to vacate the Decisions as to the effective
dates of the capital improvement passthroughs and to find that each of
the subject tenancies was renewed on a month-to-month basis and for a
necessary Technical Correction to the Decision in Case No. L031219. (Gruber/Murphy:
3-2; Henderson, Mosbrucker dissenting)
VI. Communications
The Commissioners received copies of Notices for the
two Public Hearings scheduled for August 24th and an e-mail from
the Office of the City Attorney regarding restrictions on participation in certain
political activities by City officers and employees.
VII. Director's Report
At the meeting on June 29th, the Commissioners had discussed the case of Calvo y Perez v. Superior Court (Sup. Ct. Case No. 610406) pursuant to a letter from Attorney Steve Collier of the Tenderloin Housing Clinic. In that appellate decision, the Court granted Mr. Collier's client's Writ of Mandate in an owner move-in eviction, finding that because Proposition G did not address the percentage ownership requirement of Ordinance Section 37.9(a)(8), the 50% ownership requirement of the Bierman Amendment had not been repealed. The Board asked for an Opinion on this issue from the Office of the City Attorney. Acting Executive Director Delene Wolf informed the Board that, in the opinion of the City Attorney, the Calvo Decision is not binding on the Rent Board because it is an unpublished decision in a case between two private parties, and the City/Rent Board were not parties. Mr. Collier will be so informed.
IV. Remarks from the Public (cont.)
G. Bill Luque asked what happened regarding the appeal
for 101 Broderick St. #207 (AT040089), as well as requesting clarification
regarding the Board's meeting schedule.
H. Laura Traveler told the Board that she received
ALJ Kearns' Memorandum on July 30th. Regarding the Parkmerced cases
where the term of the lease renewals were at issue, Ms. Traveler reminded
the Board that tenant Janece Fearless said that she was not told that her
year lease would be going month-to-month. Ms. Traveler believes that if anniversary
dates are not adhered to, the landlord will go up on the rent. She also remarked
on all the work that tenant Genevieve Callejo at 552 Arballo has put in on
her case, and said that is what tenants without money are up against.
I. Robert Pender seconded Laura Traveler's remarks.
He said that many "old-timers" cannot get down to the Rent Board
to file petitions, and he told the Commissioners that they are not honoring
their fathers and mothers.
J. Commissioner Henderson admonished her fellow Commissioners
to watch what they say in terms of depicting groups of people.
VIII. Calendar Items
August 10th & 17th, 2004
- NO MEETINGS
August 24, 2004
5 appeal considerations (1 cont. from 8/3/04)
Public Hearings:
6:30 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
7:00 Proposed Amendments to Rules Section 2.15 Regarding Commissioner Compensation
IX. Adjournment