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March 4, 2008

March 4, 2008

MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,

Tuesday, March 4, 2008 at 6:00 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level

I. Call to Order

President Gruber called the meeting to order at 6:05 p.m.

II. Roll Call

Commissioners Present: Beard; Gruber; Henderson; Hurley; Mosbrucker.

Commissioners not Present: Marshall.

Staff Present: Lee; Wolf.

Commissioner Justman appeared on the record at 6:07 p.m.; Commissioner Mosser arrived at the meeting at 6:10 p.m.; and Commissioner Murphy appeared at 6:20 p.m.

III. Approval of the Minutes

MSC: To approve the Minutes of February 12, 2008.

(Hurley/Henderson: 5-0)

IV. Remarks from the Public

A. Tenant Jesse Ely informed the Board that the property address for his case (AL080006) is 498 Utah, instead of 798, as incorrectly stated on the Agenda.

V. Consideration of Appeals

A. 1408 California #408 AT080008

The landlord's petition for approval of utility passthroughs for 20 of 37 units was approved. One tenant appeals the decision on the grounds of financial hardship.

MSC: To accept the appeal and remand the case for a hearing on the tenant's claim of financial hardship.

(Mosbrucker/Henderson: 5-0)

B. 1200 Washington #10 AL080007

The landlord's petition for a determination pursuant to Rules ß1.21 was denied because the Administrative Law Judge found that the subject unit is the tenant's principal place of residence. On appeal, the landlord argues that: the tenant failed to submit requested and essential evidence; the tenant made a misrepresentation at the hearing, which should call her credibility into question; most of the tenant's evidence consisted of her personal opinion; the landlord proved her case by a preponderance of the evidence, which is the proper standard; the burden of proof should have shifted to the tenant to justify her absence from the unit a majority of the time; and the subject unit is the tenant's second home, which does not constitute a principal place of residence.

Prior to the meeting, the landlord's representative submitted a request to postpone consideration of this case for one month, due to new evidence having become available.

MSC: To recuse Commissioner Beard from consideration of this case. (Justman/Henderson: 5-0)

MSC: To grant the landlord's request for a one-month continuance of the consideration of their appeal. (Hurley/Mosbrucker: 5-0)

C. 798 Utah AL080006

The tenant's petition alleging an unlawful rent increase from $896.00 to $2,600.00 per month was granted because the Administrative Law Judge found that the petitioner was a tenant, and not a subtenant, and therefore no rent increase pursuant to Costa-Hawkins was warranted. On appeal, the landlord argues that: the landlord is old and infirm; the landlord's sending one rent increase notice to the petitioner does not make him a tenant; this case is distinguishable from the case of Cobb v. S.F. Rent Board; and the tenants concealed the fact that the original tenant was vacating the premises from the landlord.

MSC: To deny the appeal. (Mosbrucker/Henderson: 5-0)

D. 2502 Cabrillo AL070191

(cont. from 11/13/07)

The landlord's petition for a determination pursuant to Rules ß1.21 was denied because the Administrative Law Judge found that the subject unit is the tenant's principal place of residence, and she is only temporarily residing at a residential care facility. On appeal, the landlord maintained that: the tenant's mail does not go to the subject unit but, rather, is delivered to her conservator; the tenant is physically able to return to the unit with in-home care but has failed to do so, although she can afford to; and the apartment is no longer the tenant's usual place of return, since she has chosen to relocate to an assisted living facility, rather than returning to the unit. At the meeting on November 13, 2007, the Board voted to continue consideration of this appeal in order for the parties to submit evidence that the tenant has returned to the unit or, if not, why not; or evidence of any efforts the tenant has made to effectuate her intent to return.

MSC: To accept the appeal and remand the case on the record for reconsideration of the facts submitted since the appeal was last considered; the parties will have a further right to appeal. (Murphy/Gruber: 4-1; Henderson dissenting)

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 January, 2008.

B. Articles from the Los Angeles Times and the S.F. Chronicle Real Estate Section.

VII. Director's Report

Executive Director Wolf informed the Board that she had received a complaint from a member of the public who objected to the Board members' ethnicities being listed on the Commissioner Roster that is posted on the agency's web site, so this information has been removed. The Commissioners declined her offer to have their pictures posted on the web site.

VIII. Old Business

Standards for Rescinding Ellis/OMI Notices of Constraints and the

Role of Rent Board Staff in Processing Requests for Rescission and

Other Petitions

The Board continued their discussion of the standards to be applied to landlord requests to rescind Ellis/OMI eviction notices. The Board has been considering clarifying the standard by the adoption of a bright-line rule based on whether the tenant in fact vacated after service of the eviction notice. Since there are currently two pending cases involving this issue, the Board's discussion has centered on the timing of the clarification. Commissioner Murphy stated his concurrence with the proposed clarification, but did not wish it to apply to pending cases. The Board then passed the following motion:

MSC: To adopt the following clarification to the standard for rescission of an Ellis/OMI eviction notice: In order for a request for rescission to be granted, the landlord would have to prove that no tenant vacated (or agreed to vacate) after the Ellis/OMI notice was served or show extraordinary circumstances. This clarification will apply prospectively only.

(Mosbrucker/Justman: 5-0)

IV. Remarks from the Public (cont.)

B. Tenant Jesse Ely of 498 Utah thanked the Board for their vote on his landlord's appeal.

IX. Calendar Items

March 11th, 18th & 25th, 2008 - NO MEETINGS

April 1, 2008

8 appeal considerations

X. Adjournment

President Gruber adjourned the meeting at 7:07 p.m.

Last updated: 10/9/2009 11:26:18 AM