MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, February 1, 2005 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; Gruber; Henderson; Hurley; Marshall; Mosbrucker; Mosser; Wasserman.
Staff Present: Lee; Gartzman; Wolf.
Commissioner Justman appeared on the record at 6:08 p.m.; Commissioner Murphy arrived at the meeting at 6:20 p.m.; and Commissioner Mosser left the meeting at 7:40 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of January 4, 2005.
(Gruber/Becker: 5-0)
IV. Remarks from the Public
A. Landlord Teresa Gonio commented on the recently enacted Gonzales amendments regarding the additional occupancy of family members in a unit. Ms. Gonio wanted to draw the Commissioners’ attention to what she believes could happen as a result of this legislation. She predicted that there will be fires throughout the City, as the housing stock is old and not built to accommodate so many people; tenants will divide up rooms into separate units; and there will be too many electrical appliances. Ms. Gonio realizes that the Board of Supervisors passed this legislation, but still feels that the blame will be on the Rent Board’s shoulders if any of these scenarios should come to pass.
B. Robert Pender, Vice-President of the Parkmerced Tenants’ Organization (PRO), invited the Commissioners to PRO’s first General Meeting of 2005. Mr. Pender informed the Board that Olympic View Realty is his third landlord since 1974.
C. Ted Lowenberg, President of the Small Property Owners of San Francisco, told the Board that it is up to them to correct what he sees as deficiencies in the Gonzales legislation. Mr. Lowenberg believes that the process outlined in the legislation fails to address: landlords being out of town for a significant period of time; the need for documentation as to familial relationships; that new tenants should be “automatically” 6-14’ed; potentially increased Ellis and OMI relocation expenses; and that the new tenants should not be allowed to bring in pets.
D. Sarah Norr of the Central City SRO Collaborative asked that the Board deny the landlord’s appeal regarding the case at 445 O’Farrell (AL040161). Ms. Norr reminded the Board that the case was remanded only to consider the tenants’ new evidence regarding the period of time for which the rent reductions should be granted. Ms. Norr maintained that the landlord’s new appeal raises issues outside the scope of the remand, and that the landlord had the opportunity to raise those issues but didn’t appeal the original decision. Additionally, the landlord raised these arguments in another case and they were rejected by the Board.
E. Tenant Susan Lawrence of the Winton Hotel (AL040161) said that the landlord has already made all these arguments; that the ALJ’s decision is consistent with other Board decisions; and that fires have displaced “tons” of SRO tenants. Ms. Lawrence believes that “consistency in Rent Board decisions is the key to accountability.”
V. Consideration of Appeals
A. 653 Capp St. AT050003
The landlords’ petition for certification of capital improvement costs to the tenants in five units was granted, resulting in a monthly passthrough in the amount of $32.96. The tenant in one unit appeals the decision on the grounds of financial hardship.
MSC: To accept the appeal and remand the case to the Administrative Law Judge for a hearing on the tenant’s claim of financial hardship. (Becker/Marshall: 5-0)
B. 1168-1170 Stanyan St. AL040138
(cont. from 12/14/04)
Two tenant petitions alleging decreased housing services were granted and rent reductions in the amount of $100 and $75 per month were ordered for the loss of a roof deck to both units; and $30 was granted for the loss of a back porch to the tenant in unit 1170 only. On appeal, the landlord claims that: after a six and a half year delay, the rent reductions for the roof deck should be barred by the equitable doctrine of laches; prejudice to the landlord should be presumed after almost seven years and actual prejudice exists in this case; the delay indicates that the roof deck was not a substantial housing service; the tenant in unit 1170 paid no additional consideration for the deck and so no rent reduction is warranted, despite the deck having become part of the tenancy prior to the enactment of the Rent Ordinance; one of the tenants in unit 1168 moved in after removal of the deck so the rent reduction should be halved for that unit; rent reductions should not be granted when amenities are removed for safety reasons; the Rent Board has no authority to make monetary awards, particularly to a deceased tenant’s heirs who paid no rent; the tenant in unit 1170 filed his petition out of retaliatory motives; and a rent reduction granted seven years after the loss of a housing service does not advance the purposes of the Ordinance.
MSF: To deny the appeal. (Marshall/Becker: 2-3; Gruber, Murphy, Justman dissenting)
MSC: To accept the appeal and remand the case to the Administrative Law Judge on the record to grant reductions in the amount of $100.00 per month for the tenants in both units for 27 months (October 1997 until January 2000) and from April 6, 2004 until such time as the roof deck is restored and the base rent is properly increased. (Justman/Murphy: 5-0)
C. 440 Davis Ct. #1921 AL040162
The landlord’s petition for a determination pursuant to Rules and Regulations 1.21 was denied because the Administrative Law Judge found that the landlord failed to show that the tenant did not reside in the subject unit as her principal place of residence. On appeal, the landlord asserts that the tenant’s conduct, including her failure to appear at the hearing, resulted in the landlord being unable to satisfy its burden of proof; and the tenant’s failure to cooperate with Rent Board proceedings should not result in a ruling in her favor.
MSC: To accept the appeal and remand the case to the Administrative Law Judge to consider Evidence Code Section 413 and what, if any, inferences should be drawn from the tenant’s failure to explain or deny the evidence presented by the landlord; a hearing will be held only if determined to be necessary by the Administrative Law Judge. (Justman/Marshall: 4-1; Becker dissenting)
D. 445 O’Farrell #103, 420 & 426 AL040161
Seven tenant petitions alleging decreased housing services were granted due 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 appealed, 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 Board accepted the appeals and remanded the case on this issue. In the Decision on Remand, the Administrative Law Judge found the landlord 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. The landlord appeals the remand decision, arguing that: the Rent Board failed to follow its own procedures in finding good cause for the untimely filing of the tenants’ appeals; the Administrative Law Judge showed bias toward the tenants in recommending that a remand hearing be held; the Residential Hotel Sprinkler Ordinance (RHSO) created no rights or remedies for tenants under the Rent Ordinance; the installation of a fire sprinkler system constitutes a capital improvement and not a housing service; when the petitioners negotiated the initial base rent for their units, they knew that the units were not sprinklered; because the Rent Board does not have subpoena power, the landlord was precluded from providing relevant evidence from City housing and fire inspectors; and the RHSO is unenforceable because it was never approved by the appropriate State agencies.
MSC: To deny the appeal. (Becker/Marshall: 3-2; Gruber,
Murphy dissenting)
E. 3649 Market #203 AL040160
The tenant’s petition alleging decreased housing services due to the landlord’s failure to provide extra key sets was granted and the landlord was found liable to the tenant in the amount of $100.00 per month, or $750.00. On appeal, the landlord claims that: the building has had substantial security issues over the years; the new key system was installed to ensure the safety of all tenants; and there is adequate access for guests through the phone entry system.
This appeal was withdrawn just prior to the meeting.
F. 794 San Jose Ave. #5 AL040159
(rescheduled from 1/18/05)
The tenant’s petition alleging decreased housing services was granted and the landlord was found liable to the tenant in the amount of $740.00 due to various habitability problems in the unit and an unreasonable level of noise from the upstairs tenant. The landlord appeals regarding rent reductions granted for a broken living room window and the alleged noise problem, maintaining that: the landlord was never cited regarding the living room window, although a Notice of Violation was issued for other conditions in the unit; the living room window is not substandard; it is unclear what a “reasonable” response to the noise problem on the part of the landlord would be; “lack of noise” is not a housing service provided by the landlord nor within the landlord’s control; and, since it is impossible to tell whether the problem has been abated, the tenant is being granted a permanent rent reduction, which is unfair.
MSC: To deny the appeal. (Becker/Marshall: 3-2;
Gruber, Murphy dissenting)
VI. Communications
In addition to correspondence concerning cases on the calendar, the Commissioners received the following communications:
A. Office workload statistics for the months of November and December 2004.
B. An updated Rent Ordinance and list of Ordinance amendments.
C. A new staff roster.
D. An update on new State laws pertaining to evictions.
E. An article from the LA Times regarding inappropriate behavior of City Council members.
F. An e-mail from Senior Administrative Law Judge Tim Lee regarding Ellis amendments, which will go into effect February 20, 2005.
VII. Director’s Report
Acting Executive Director Wolf informed the Board that she attended a meeting of the SRO Task Force and went over amendments to the Hotel Visitor Policy enacted by the Rent Board pursuant to a Public Hearing on December 8, 2004. The Task Force and landlord and tenant members of the Committee expressed their appreciation to the Rent Board for their hard work and an inclusive public process. An 11x17” copy of the revised Visitor Policy in English will be mailed to all residential hotel owners and operators; translated versions of the Policy into four languages will be available at the Rent Board shortly. Ms. Wolf also informed the Commissioners that Nick Pagoulatos, former Director of St. Peter’s Housing Committee, has begun serving as a Rent Board counselor on a 6-month temporary requisition due to the disability leave of another counselor.
VIII. Old Business
Ordinance Section 37.9(a)(2)(B) Regarding Additional Occupancy of Family Members
The Board continued their discussion of amendments to the Ordinance sponsored by Supervisor Gonzales, which took effect on January 2nd. The amendments allow for specified family members and/or domestic partners of a tenant to occupy the rental unit notwithstanding a lease provision limiting the number of occupants if the landlord has unreasonably denied the tenant’s request to add such occupant. In passing the amendments, the Board of Supervisors expressed their intent that the consent procedures for subletting contained in Rules Sections 6.15 A and B substantially apply to this legislation, modified to accommodate the family situations addressed therein. Senior Administrative Law Judge Tim Lee drafted amendments to Rules Sections 6.15A(b) and 6.15B(a) and proposed new Rules Section 6.15D, which substantially tracks the consent procedures of Section 6.15B(b)(1) with certain necessary changes due to these being familial relationships.
At the Board meeting on January 4th, the Commissioners discussed the proposed language. At that meeting, Commissioner Marshall expressed her belief that the consent procedures should not apply to a minor child, which was the consensus of the Board. Mr. Lee subsequently revised proposed §6.15D to exclude minor children from the application process outlined as well as to clarify the number of occupants that will be allowed. With these and two other minor technical changes, the Board passed the following motion:
MSC: To put out for Public Hearing proposed amendments to Rules and Regulations Sections 6.15A and B and proposed new Section 6.15D to conform the Rules to newly enacted Ordinance Section 37.9(a)(2)(B). (Marshall/Justman: 5-0)
IX. New Business
Proposed Amendments to the Regulations Regarding Exemption Based on Substantial Rehabilitation
Senior Administrative Law Judge Sandy Gartzman provided the Board with an overview of problems regarding the procedures for obtaining exemption from the Ordinance for buildings that have undergone substantial rehabilitation as defined in Ordinance Section 37.2(s) and Rules Sections 1.18 and 8.12. It has come to Ms. Gartzman’s attention that some of the requirements specified in Rules Section 8.12 may be impossible for a landlord to meet. For example, a landlord’s petition for exemption based on sub rehab must be accompanied by various documents generated by the Department of Building Inspection (DBI), including: a determination of condemnation; and/or a determination by DBI that the premises were ineligible for a permit of occupancy; a complete inspection report issued by DBI prior to the commencement of the work; and a final notice of completion from DBI. However, DBI no longer issues determinations of condemnation or determinations that the premises were ineligible for a permit of occupancy. They also do not perform complete inspections prior to commencement of rehabilitation work. And, there is no such thing as a “final notice of completion.”
Ms. Gartzman reported that she and several members of her staff met with Senior Building Inspector Lawrence Kornfield to verify current DBI procedures. She informed the Board that there are currently four sub rehab petitions pending, with a fifth on the way. In the absence of documentation from DBI, it will be left up to the Administrative Law Judges who hear these petitions to determine whether the buildings are “essentially uninhabitable.” The Commissioners will review materials provided by Ms. Gartzman and continue discussion of this issue at the next meeting, with an eye to formulating appropriate amendments to the Rules and Regulations and procedures governing sub rehab exemption.
X. Calendar Items
February 8, 2005 - NO MEETING
February 15, 2005
5 appeal considerations
Old Business:
A. Proposed Amendments to the Regulations Regarding Sub Rehab
B. Ord. §37.9(a)(2)(B) Regarding Additional Occupants
New Business: Departmental Budget
XI. Adjournment
President Wasserman adjourned the meeting at 8:20 p.m.