September 21, 2004
MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, September 21, 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
6:05 p.m.
II. Roll Call
Commissioners Present: Becker; Hurley; Marshall;
Mosbrucker; Mosser.
Commissioners not Present: Murphy; Wasserman.
Staff Present: Gartzman; Wolf.
Commissioner Gruber appeared on the record at 6:06
p.m.; Commissioner Justman arrived at the meeting at 6:08 p.m.; and Commissioner
Henderson appeared at 6:14 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of September 7, 2004.
IV. Remarks from the Public
A. Celia Bloom, the landlord in the case concerning
383a Elsie, told the Board that she has documents that show that the tenant
his mis-represented his income.
V. Consideration of Appeals
(cont. from 9/7/04)
The landlord's petition for certification of capital improvement costs was granted. The tenant's appeal on the grounds of financial hardship was accepted and remanded for hearing. The tenant failed to appear at the remand hearing and his appeal was, accordingly, denied. On appeal, the tenant claimed not to have received a phone call from Rent Board staff on the day of the hearing, as stated in the Decision. The tenant subsequently failed to respond to staff's request to explain his failure to appear at the hearing. At the September 7th Board meeting, the Commissioners voted to continue consideration of this appeal in order for staff to attempt to contact the tenant again, with the proviso that no further continuances will be granted to the tenant. The tenant subsequently furnished a Declaration of Non-Receipt of Notice of Hearing.
MSC: To accept the appeal and remand the case for a hearing on the tenant's claim of financial hardship; should the tenant fail to appear, absent extraordinary circumstances, no further hearings will be granted to the tenant. (Becker/Marshall: 5-0)
B. 981 York St. AT040110
The landlord's petition for certification of the costs of a new heating system to the tenant in one unit was granted, resulting in a monthly passthrough in the amount of $58.12. The tenant appeals the decision on the grounds of financial hardship.
The tenant's petition alleging various decreased housing services in his unit was denied because the Administrative Law Judge found that the problems were not substantial or the tenant had not put the landlord on notice. The tenant appeals, maintaining that: the Administrative Law Judge did not take into account the many letters he had written to the landlord complaining of the conditions; and the landlord delayed in making repairs because he was upset at the outcome of a prior case before the Rent Board.
D. 54 Stanford Heights AT040107
The subtenant's petition alleging that she paid a disproportional share of the rent pursuant to Rules and Regulations Section 6.15C(3) was denied. The Administrative Law Judge found that the allocation of rent between the master tenant and subtenant was equitable because of the utility costs borne by the master tenant and additional housing services provided by her. The subtenant appeals, claiming that: the lease provides that utilities are included in the rent; and the master tenant gave false testimony at the hearing regarding utility costs.
The decreased services claims of three tenants regarding inadequate common area maintenance were denied. The claim of the tenant in unit #605 regarding a leaking and noisy radiator was granted and the landlord was found liable to the tenant in the amount of $60.00. The three tenant petitioners appeal the denial of the common area maintenance claim, arguing that: the Administrative Law Judge failed to make "Findings of Fact"; there are significant errors and omissions in the Decision and it is unsupported by the evidence; the rent reduction granted is grossly inadequate; claims that were denied should have been granted; the tenants proved their case through photographic evidence; the landlord was not credible at the hearing and gave false testimony; oral evidence should only have been taken upon oath or affirmation, which was not the case; the landlord's witnesses were biased; and the landlord has engaged in a pattern of retaliation against the tenants.
MSC: To recuse Commissioner Mosser from consideration
of this appeal. (Hurley/Justman: 5-0)
MSC: To deny the appeals. (Gruber/Hurley: 5-0)
F. 2030 Vallejo St. AL040106
The petitions of nine tenants were granted with regard to claims of decreased housing services due to the loss of full-time doorman service in this luxury building, in the amount of $200.00 per month. Additionally, individual decrease in services claims were granted for some tenants. Subsequently, the landlord alleged that he had restored the doorman service and reinstated the rent reductions. The instant petitions allege that the services have not been fully restored, in addition to asserting new individual claims. Two tenants not involved in the original case also filed petitions asserting the doorman claim, as well as individual claims. The Administrative Law Judge granted the two new petitioners the same relief as was granted in the original case for the period of time until the landlord partially restored doorman services. For all petitioners, from that point forward, the tenants were granted a continuing $50.00 per month rent reduction due to the fact that the services provided by the doormen have not been fully restored. On-going rent reductions for loss of general maintenance and repair services were found not to be warranted, although several individual claims were granted. The landlord appeals the ongoing $50.00 per month rent reduction for reduced doorman service, and $75.00 rent reductions granted for broken ovens in two units, arguing that: the Rent Board does not have jurisdiction over the doorman dispute, because it is a breach of contract action for damages and is not necessary to effectuate the Rent Board's regulatory purposes; the landlord has been deprived of his right to have the dispute heard by a jury; the landlord did not consent to have the issues heard before the Rent Board, which violates the judicial powers clause; and the tenants have failed to meet their burden of proving their ovens do not work.
Acting Executive Director Wolf informed the Board that Judge Warren recently heard oral argument on the landlord's Writ of the original decision in this case. It was therefore the consensus of the Board to continue consideration of this appeal until receipt of the court's order on the Writ.
The tenant's petition alleging unlawful rent increases was granted and the landlord was found liable to the tenant in the amount of $19,975.00. On appeal, the landlord asserts that: the Administrative Law Judge refused to accept information from the landlord showing the justification for the $100 rent increase; the ALJ counseled the tenant against mediating the dispute; the landlord was not credited with increases that he would have been entitled to; and the rent was increased because the tenant's girlfriend occupied the unit, and due to increased water and garbage fees.
VI. Communications
In addition to correspondence concerning cases on the
calendar, the Commissioners received the following communications:
A. The office workload statistics for the month of
August, 2004.
B. A Memorandum from Senior Administrative Law Judges
Sandy Gartzman and Tim Lee regarding necessary amendments to recently adopted
Rules and Regulations Section 6.16(i), in order to conform that Section to
Rules and Regulations Section 6.16(g).
C. A copy of Charter Section 4.104(1) regarding requirements
for adoption of Rules and Regulations.
VII. Director's Report
Acting Executive Director Wolf informed the Board that, according to Deputy City Attorney Marie Blits and pursuant to Charter Section 4.104, the Board could amend Rules and Regulations Section 6.16(i) at this evening's meeting as long as public comment was taken, as it had been properly itemized on the Agenda. Ms. Wolf also informed the Board that only ten days notice is required for a Public Hearing, rather than fifteen, and no separate Notice of Public Hearing is required, as long as the proposed amendments are properly listed on the Agenda. Additionally, it is not required that the Board provide the public with copies of proposed regulations in advance of a Public Hearing, as long as the amendments are available upon request. Ms. Wolf suggested that the Board continue with their current practice of providing separate Notices of Public Hearing and copies of the proposed regulations to the public in advance, except for certain issues which are of little import to members of the landlord and tenant communities. The Commissioners concurred with this approach. Ms. Wolf also told the Board that she had been informed that legislation will be introduced to require that the Board meet at City Hall and that Board meetings be televised.
VIII. Old Business
Proposed Amendments to Newly Enacted Rules Section
6.16(i) Regarding Utility Passthroughs
At their meeting on August 24th, the Commissioners held a Public Hearing on proposed amendments to Rules and Regulations Sections 1.19, 4.11 and 10.12 and proposed new Rules Sections 6.16 and 10.13 regarding utility passthroughs. At the conclusion of the Public Hearing, the Commissioners passed the proposed amendments, with the addition of an amendment suggested by Commissioner Marshall, which allowed landlords a third alternative for calculating utility costs for laundry facilities on the premises, i.e. to prove the actual cost of utilities that serve any laundry facilities on the premises (Rules and Regulations Section 6.16(g)). Subsequently, Senior Administrative Law Judges Sandy Gartzman and Tim Lee informed the Commissioners that it was necessary to amend Rules and Regulations Section 6.16(i), which describes the methodology for calculating utility passthroughs, to include this new alternative method for calculating the utility costs for laundry facilities. The proposed amendments to Section 6.16(i) are shown below, with additions indicated by underlining and deletions indicated by strikethrough:
(i) The landlord shall calculate the amount of the
utility passthrough as follows:
(i) Compile the utility bills for the "base
year" and the "comparison year" as defined in subsections
(b), (c) and (d) above. The utility passthrough shall be based on actual
costs incurred by the landlord during the relevant calendar years, regardless
of when the utility bill was received or paid.
(ii) Calculate the total utility cost for the "base
year" and the total utility cost for the "comparison year".
(iii) Where applicable the laundry facilities
are not separately metered in both the "base year" and the "comparison
year", compile evidence of any and all laundry facilities income
actually received or collected by the landlord for the use of the laundry
facilities in the "base year" and the "comparison year".
Calculate the total laundry facilities income for the "base year"
and the total laundry facilities income for the "comparison year"
and calculate the actual cost of utilities that serve the laundry facilities
in the "base year" and the "comparison year".
(A) Where the landlord cannot prove the actual
cost of utilities that serve the laundry facilities and a third party vendor
collects the user fees from the laundry facilities, compile evidence of
and calculate the income actually received by the landlord from the third
party vendor for the use of the laundry facilities in the "base year"
and the "comparison year".
(B) Where the landlord cannot prove the actual
cost of utilities that serve the laundry facilities and the landlord collects
the user fees from the laundry facilities, compile evidence of the user
fees actually collected by the landlord for the use of the laundry facilities
in the "base year" and the "comparison year" and calculate
50% of the amount collected.
(iv) Where applicable the laundry facilities
are not separately metered in both the "base year" and the "comparison
year",, subtract the utility costs for the laundry facilities
income, as calculated in subsection (iii) above, from the
total utility cost for the "base year" and the total utility cost
for the "comparison year".
(v) Subtract the total "base year" utility
cost (excluding utility costs for the laundry facilities income)
from the total "comparison year" utility cost (excluding utility
costs for the laundry facilities income) to get the utility cost
increase. If there is no increase or if there has been a decrease, no passthrough
is allowed.
(vi) Divide the resulting figure, if greater than
zero, by twelve (12) to determine the average monthly utility increase for
the entire property.
(vii) Divide the average monthly utility increase
by the number of rooms in the property to get the amount of the utility
passthrough that may be imposed for each room. For purposes of this section,
the number of rooms in a property shall be calculated by presuming that
single rooms without kitchens are one room units, studios are two room units,
one bedroom units without a separate dining room are three room units, and
so on. Each parking space and garage space in the building, which is included
in a tenant's rental or for which a user fee is charged, shall be counted
as one room. Areas used for commercial purposes but for which no user fee
is charged to the tenants, including but not limited to management offices
and retail space, shall be included in the room count in a manner that most
reasonably takes into account the size of the space and its utility usage.
(viii) To get the monthly utility passthrough for
a unit, add the number of rooms in the unit to the number of rooms for parking
and/or garage spaces included in the tenant's rental or for which a user
fee is paid by the tenant, and multiply that total number of rooms by the
monthly utility increase per room.
After discussion, the Board opened this issue for
public comment, of which there was none. The Commissioners then passed the
following motion:
MSC: To adopt the proposed additional amendments
to Rules and Regulations Section 6.16(i) in order to conform that Section
to Rules and Regulations Section 6.16(g). (Becker/Justman: 5-0)
IV. Remarks from the Public (cont.)
B. Arun Mitra told the Board that their deliberations
constituted "the finest example of consensus-building"; that he
was impressed by the intelligence of the group; and that it was "refreshing"
to see the rule of law prevail.
C. Tenant appellant Robert Rifkin of 1770 Broadway
(AT040102 thru -04) expressed his disappointment with the Board's decision
on the tenants' appeals. He told the Board that "consensus-building is
not the only function of a quasi-adjudicatory body." Mr. Rifkin believes
that the Board needs to get more feedback from tenants; that they chose to
ignore serious violations of the Rules and Regulations and due process; that
they "mollycoddled" an irresponsible landlord; and "rubber-stamped"
a decision based on false evidence. Mr. Rifkin feels that the Board has tilted
towards landlords ever since the issuance of the Golden Gateway decision
and for that reason, he will be working on the campaign for an elected Rent
Board.
IX. Calendar Items
September 28th, October 5th & October
12th, 2004 - NO MEETINGS
October 19, 2004
6 appeal considerations (1 cont. from 9/21/04; 1 rescheduled
from 10/5/04)
X. Adjournment
President Wasserman adjourned the meeting at 7:05 p.m.