April 3, 2007

Commissioners Present: Becker; Gruber; Henderson; Hurley; Justman; Mosbrucker; Mosser.

Commissioners not Present: Marshall; Murphy.

Staff Present: Lee; Wolf.

Commissioner Mosser went off the record at 8:40 p.m.

MSC: To approve the Minutes of March 20, 2007.

(Mosbrucker/Hurley: 5-0)

B. Tenant Albert Morales of 827 Corbett Ave. (AL070040) told the Board that he no longer resides in the subject unit; he moved back to the unit he originally occupied on March 31, 2007.

C. Tenant Matthew Pruitt of 1554 Howard (AT070036) said that he lived in his unit without being able to deadbolt his door; that the building manager was drunk and wound up on the pavement; and that his cat is a service animal.

D. Yosef Peretz, representing the tenant at 41 Mars Street (AT070039), suggested that the Board discuss the tenant's appeal only after resolving whether the Rent Board should issue disability determinations absent an endeavor to recover possession, which is calendared under "New Business." Mr. Peretz said he concurred with Senior Staff's recommendation that determinations of protected status should only be issued in the context of an eviction. Mr. Peretz also said that the value of services provided by the tenant's domestic partner needs to be factored in to meet the S.S.I. definition of disability.

E. Tenant Edson Jair Retureta Baez of 3134 – 24^th Street (AL070043) informed the Commissioners that he still is without the housing services for which he was granted rent reductions.

F. Landlord A. Groswird of 41 Mars explained that he is merely trying to sell the family home in order to settle the estate. Mr. Groswird just wishes for the matter to be settled.

G. Tenant Sophie Resetar of 1875 Pacific (AT060123) told the Board that she has been told that she will lose her appeal. Ms. Resetar said that the landlord's statement that she would not participate in mediation is untrue – she was sick, but took part in the mediation by telephone.

The landlord's petition for a rent increase based on comparable rents was granted. At the Board meeting on March 6, 2007, the tenant's appeal of the decision on substantive grounds was denied. However, her appeal of the decision on the grounds of financial hardship was continued in order for staff to contact the parties and offer the services of the agency in hopes of obtaining a mediated agreement.

The tenant's petition alleging decreased housing services was denied. One of the tenant's claims is that the landlord has not allowed him to keep his cat on the premises. Since the landlord has taken no action to force the tenant to remove the cat, the claim was denied. The tenant appeals, claiming that the cat is a service animal.

The tenant's petition alleging decreased housing services was granted and the Master Tenant was found liable to the tenant in the amount of $3,120.00. The Master Tenant appeals, claiming that: at the time the decision was issued, the problems in the unit had been remedied; the back windows are fixed, and cannot be opened; the hot water valve was manipulated by other tenants in the building; he failed to attend the hearing because he was ill on that day; and the decision presents him with a financial hardship.

The tenant's appeal was filed one day late because the tenant thought it was sufficient to have mailed the appeal within the 15-day deadline.

The landlord's petition for approval of a utility passthrough for 15 of 794 units was granted. One tenant appeals on the grounds that: 1994 is an improper base year as the tenant did not have a passthrough in effect on November 1, 2004; ß6.16(n) is unconstitutional; and the landlord's increased utility costs are covered by the allowable annual rent increase.

The landlord filed a petition seeking a determination as to whether a rent increase from $639.42 to $2,850.00 was authorized by Rules ß6.14 and Costa-Hawkins. The Administrative Law Judge (ALJ) found that the landlord was not entitled to an unlimited rent increase because the tenant was not a subtenant or assignee and a 6.14 notice was not timely served. The tenant also filed a petition alleging unlawful rent increases, failure to repair and requesting a determination as to the proper base rent. The failure to repair claim was denied as being moot, the lawful rent was determined to be $639.42 and the landlord was found liable to the tenant for any sums paid in excess of that amount since February 1, 2006. The landlord appealed both decisions, asserting that: the ALJ's findings are not supported by substantial evidence; the landlord did not waive their right to a Costa-Hawkins rent increase by accepting rent at the lower amount for a short period of time; the landlord never entered into a landlord-tenant relationship with the tenant; the landlord did not rescind the rent increase to $2,850.00 but, rather, affirmatively took steps to effectuate such increase; the 6.14 notice was served within a reasonable amount of time and, to the extent that ß6.14 conflicts with Costa-Hawkins, the regulation is void; only the legislature can create the timeliness presumption contained in Rules ß6.14; and the decision is unfair and works a hardship on the landlord.

After discussion at their meeting on January 23rd, the Board remanded the case to the ALJ to make additional findings on two issues. Prior to this evening's meeting the Board was informed that the parties had reached a settlement agreement and the appeal was therefore withdrawn.

The tenant's petition alleging decreased housing services was granted only as to the landlord's failure to take reasonable steps to investigate the sources of alleged foul odors in the tenant's unit. On appeal, the landlord maintains that: there has been no reduction in services, since the alleged problems existed from the time the tenant moved in to the unit; the Golden Gateway case should bar the tenant from recovering on this claim; the landlord has reasonably accommodated the tenant; the alleged problem has not been proved to exist; the tenant contributes to the problem by failing to ventilate his unit; and the requirement that the landlord give 60-day notice to restore the rent reduction constitutes a windfall to the tenant.

The tenants' petition alleging an unlawful rent increase was denied. The ALJ found that the increase was warranted under Costa-Hawkins because the original occupants of the unit had died and the tenants are lawful subtenants who moved in to the unit after January 1, 1996. On appeal, the tenants claim that: the ALJ ignored sworn testimony that one of the tenants lived in the unit in 1995; there was documentary evidence that the tenant opened a bank account using the subject unit's address in 1995; and the ALJ placed too much emphasis on dates given by the tenant in the petition and a 1997 Rental Unit Questionnaire.

The Commissioners discussed a Memorandum from Senior Staff recommending that landlord's requests for a Rent Board determination of a tenant's claim of protected status be limited to those who are seeking to recover possession of a rental unit under Ordinance ß37.9(a)(8), and the applicability of the recent decision in the case of Delaura v. Beckett. Commissioner Mosser expressed his concern that the Board could be deluged by speculative requests. Commissioner Mosbrucker opined that this is a complicated area of law and that the Delaura court misunderstood the issue. The Board therefore voted as follows:

Such Rent Board determinations are therefore available only if the landlord wants to recover possession of the tenant's unit for owner-occupancy and the tenant claims protected status. Determinations are not available at the Rent Board either for owners who wish to sell the property or for owners who want to recover possession of a tenant's unit based on an Ellis eviction.

The landlord filed a petition seeking a determination of the tenant's protected status under Ordinance ß37.9(i). The Administrative Law Judge (ALJ) found that the tenant was not disabled under the applicable Social Security guidelines because he was able to engage in substantial gainful activity at the time of the hearing. On appeal, the tenant claims that: the Rent Board has the discretion to determine disability by some other method than qualification under the SSI/SSP guidelines and should construe the criteria in the light most favorable to tenants facing eviction; the ALJ erred in considering the tenant's financial circumstances in determining his disability status; the tenant suffers from financial hardship; the tenant meets the criteria for disability under the SSI/SSP programs; the fact that the tenant materially participated in the operation of his business does not mean that he engaged in substantial gainful activity within the meaning of that term; the value of the hours put in by the tenant's domestic partner should be deducted when determining the tenant's monthly income; the tenant does not need to liquidate assets in order to be eligible for SSI/SSP; and the tenant is "presumptively disabled" under the Social Security criteria.

H. Attorney James Kraus expressed his opinion that the Delaura decision is the "law of the land," until overturned. Mr. Kraus said that, if the Rent Board doesn't hear protected status determinations, tenants will be in court on declaratory relief actions and that the controversy won't end, it will just move to a different forum.

I. Attorney Dennis Hyde, representing the landlord in the Mars Street case, also believes that the Delaura decision applies. Mr. Hyde said that the purpose of having the Rent Board determine protected status was to protect landlords from exposure to wrongful eviction claims, and refusing to hear them absent an eviction action flies in the face of that.

J. Attorney Yosef Peretz speculated that protected status determinations could also be requested for Ellis cases, and asked why an owner move-in situation should be different. Mr. Peretz believes that a landlord isn't entitled to an advisory opinion from the Board. Mr. Peretz also feels it is unfair for a tenant to be forced to disclose private information when the tenant didn't bring the case.

In addition to correspondence concerning cases on the calendar, the Board received the following communications:

A. A Daily Journal article regarding various proposals to curb eminent domain.

B. An article from the Examiner regarding a proposed surcharge for the right to have new pets in a unit.

Executive Director Wolf informed the Board that the office has leased a new copying machine that has a scanner. The Commissioners indicated that they wished to continue receiving meeting materials as they have been: all documents will be mailed, but documents produced by staff will also be e-mailed.

April 10th & 17th, 2007 - NO MEETINGS

April 24, 2007

9 appeal considerations

President Gruber adjourned the meeting at 8:45 p.m.