February 17, 2009

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

Commissioners not Present: Gruber; Justman; Marshall; Mosser.

Staff Present: Lee; Wolf.

Commissioner Murphy appeared on the record at 6:16 p.m.

MSC: To approve the Minutes of February 3, 2009.

(Mosbrucker/Hurley: 4-0)

A. Tenant Claire Mc Queeney of 4 Gerke Alley (AT080127) thanked the Commissioners for considering her lengthy appeal and asked if the Board had any questions for her. She asked that they consider the recent passage of Proposition M, which she hopes sends a message to landlords.

B. Ross Wilkinson spoke on behalf of the Lakewood tenants (AT090002 thru -62). Mr. Wilkinson told the Board that the most important issues in their joint appeal are: 1) that the legislative history of the Ordinance suggests that common area utilities were not to be passed on to tenants; and 2) that pre-existing agreements between landlords and tenants can't be overturned by Rules ß6.16. Mr. Wilkinson said that the landlord gave a false statement regarding utilities not being on the same meter; the landlord should be held to the requirements on the Rent Board petition; and that the decision violates the Equal Protection Doctrine.

C. Attorney Steve Williams spoke on behalf of the landlord in the case at 4 Gerke Alley. Mr. Williams told the Board that the tenant had been successful in defeating the landlord's previous 1.21 petition but the landlord subsequently employed a private investigator, interviewed witnesses and utilized a security camera to prove that the tenant principally resides in Santa Barbara.

D. The tenant in the case at 936 Diamond St. (AL090067) told the Board that she was present.

E. Richard Payton, the tenant in the case at 6600 – 3^rd St. (AL090069), told the Board that he never signed the papers that the landlord submitted.

F. Attorney Ray Shahani, representing the landlord in the case at 250 – 11th St. (AT090066), told the Board that he has no problem with the decision except that he contests the finding that the tenants were not timely served with a 6.14 notice.

The tenants' petition alleging decreased housing services was granted, in part, and the landlord was found liable to the tenants in the amount of $777.50 due to habitability violations on the premises. On appeal, the landlord asserts that the tenant repeatedly signed a statement attesting to the satisfactory condition of the unit.

The landlord's petition for approval of utility passthroughs for 216 of 715 units in this residential complex was granted. Sixty tenants jointly appeal the decision on the grounds that: the landlord's amended petition was untimely filed and should not have been considered; the Statute of Limitations should apply; the decision was rendered late; the Board of Supervisors did not intend for common area utilities to be an eligible expense but are the landlord's obligation; utility costs are covered by the annual allowable rent increase; the Rent Board has exceeded its rule-making authority; the landlord failed to meet their burden of proof; Rules Section 6.16 violates the tenants' leases; the base year precedes some of the tenancies; the landlord's room count is incorrect; and there are factual errors in the decision.

The tenants filed a petition seeking a determination as to the lawful base rent, which was denied because the Administrative Law Judge found that the tenants did not have standing to bring the petition. The tenants appeal, claiming that: the petitioners meet the definition of tenant in the Ordinance, because they have lived in the unit since they were infants, with the knowledge and consent of previous landlords; their parents did not terminate their tenancy when they vacated the property, and have continued to pay rent because the landlord would only accept it from them; the 6.14 notice was not timely served on the tenants; prior Board decisions affirm the tenants' position that they are tenants as well as original occupants of the premises; there are factual errors in the decision; and the landlord is harassing the tenants and using the decision to bolster spurious court claims in another jurisdiction.

MSC: To deny the appeal without prejudice to any additional parties filing new petitions. (Hurley/Murphy: 3-2; Mosbrucker, Henderson dissenting)

The tenants' petition alleging an unlawful increase in rent and decreased housing services was granted, in part, and the landlords were found liable to the tenants in the amount of $20.80 for rent overpayments and $2,025.00 due to habitability violations on the premises. The landlords appeal, claiming that: sufficient heat was provided to the living room during the period March 15, 2008 through November 15, 2008; the tenants did not cooperate with the landlords' attempt to determine if there were heating problems elsewhere in the unit; the landlords' repairs of the wiring and kitchen window were completed within reasonable periods of time; and the rent overpayment has already been refunded by the landlords.

The landlord's petition seeking a determination pursuant to Rules ß1.21 was granted as it was found that the subject unit was not the tenant's principal place of residence at the time the petition was filed. On appeal, the tenant asserts that: there are factual errors in the decision; she suffers from Post Traumatic Stress Disorder and was therefore unable to competently represent herself at the hearing; her absences from the unit were temporary and reasonable and were triggered by her dog's prolonged illness; she was advised to remain at her Santa Barbara unit by a doctor and a grief counselor; the landlord failed to meet his burden of proof; her brother in Santa Barbara needs her help; her San Francisco unit needs many repairs; and the San Francisco unit is the home to which she has returned for many years.

The tenant's petition alleging an unlawful increase in rent from $3,000 to $4,000 was denied because the ALJ found that the tenant was a subtenant rather than a co-tenant at the time of the increase, and it was therefore authorized by Costa-Hawkins. On appeal, the tenant argues that: he had an oral rental contract in the amount of $3,400 per month which was not rescinded; the tenant was listed on a 3-Day Notice to Pay Rent, which makes him a co-tenant; the landlord's failure to deposit the tenant's rental payment until after service of the notice of rent increase should not negate the establishment of a new tenancy; and the landlord had him fill out a rental application months prior.

The Commissioners convened a Public Hearing on proposed amendments to the SRO Hotel Visitor Policy at 7:10 p.m. A Committee of landlord and tenant representatives recommended the following changes to the Policy: to allow any valid California or out-of-state current government agency issued I.D. to fulfill the requirement that visitors produce identification upon request; to expressly state in the Policy that no visitor fees can be charged; to enumerate the penalties for violation of the Visitor Policy contained in the Police Code; and to make clear that if a requested overnight visit does not take place, the request shall not count against the tenant's allowed 8 overnight visits per month, as long as the tenant notifies management in writing. Twenty-four individuals spoke to the proposals and other issues regarding the Policy as follows below:

1. Gilbert Tse. is a disabled vet and a member of Axis of Love. Mr. Tse said that there has been no manager at his hotel for the last three years, which has led to tremendous mis-management. Mr. Tse alleged that there are "atrocities" occurring in the hotels, along with "criminal negligence."

2. Captain Gary Jimenez of the Tenderloin Police Station said that there are "serious problems" with the Visitor Policy because tenants don't know their rights, and managers "don't have a clue." Captain Jimenez said that the policy isn't being visibly posted, and that managers should have to sign off that they've read the Policy.

3. Greg Ledbetter of the Anti-Displacement Caucus of the Harvey Milk Democratic Club said that 14 overnights should be allowed, instead of 8; that the curfews are "intolerable"; and that money is being charged for visitors.

4. Kimberly Alvarenga, Aide to Assemblyman Tom Ammiano, suggested that San Francisco's Municipal I.D. be specifically included on the list of acceptable I.D.s. Ms. Alvarenga said that the Municipal I.D. card includes medical and other helpful information.

5. Jonathan Rodgers of the Mission SRO Collaborative said that there are different rules for regular rooms and "treatment" rooms and that patients' rights should be clearly defined.

6. Allen White told the Board that Larry Brinkin of the Human Rights Commission would have a written statement for the Board within the next day or two. Mr. White said that SRO tenants have the same rights as any other American, and shouldn't be treated any differently. Mr. White told the Commissioners that they wouldn't put up with having to produce identification that could be copied. He also asked if the Rent Board is the right agency to be dealing with this. Mr. White concluded by saying that people live in SROs out of economic necessity, and they shouldn't be discriminated against.

7. Shomari Clarke said that "improvements need to be made," although his experience in SROs has been "great," because he can fend for himself. Mr. Clarke believes that there needs to be a minimum standard of care, consistent unit pricing and professional management.

8. Reverend Randi Webster is a patient advocate and Axis of Love member. Ms. Webster said that human beings need companionship, which shouldn't be limited, and that she has had patients who have died due to a lack of visitors. Ms. Webster told the Commissioners not to assume that everyone is a rapist, murderer or criminal, and to re-examine the issue in a humane way.

9. Oscar Islas of Axis of Love said that he has been in a SRO for 3 years, after having been run over by a car. Mr. Islas complained that his girlfriend has only been able to stay with him 9 times a month, which he believes constitutes his "freedom being stripped." Mr. Islas told the Board that some hotels don't accept the Veterans' I.D. card.

10. Jeff Buckley, Director of the Central City SRO Collaborative, told the Board that his organization works with 70-100 hotels. He said that spelling out the Administrative Code Section that prohibits charging for visitors is a great addition to the Policy. He suggested the addition of jail I.D.s and asked that the Board consider eliminating the 3 "blackout" dates, as these are no longer necessary.

11. Chris Moyer of Axis of Love told the Board that her hotel room is so small, she can't comfortably have visitors. Ms. Moyer believes that the Visitor Policy should be posted on every door.

12. Silas Patino of Axis of Love said that he has lived in a SRO for 5 years, where the rent goes up every year but all he gets is "harassment." Mr. Patino has not received a rent receipt for over a year and he believes that there is substance abuse among staff members. Mr. Patino's hotel is not subject to the Rent Ordinance.

13. Kathleen Valdez of Axis of Love said that hotel operators shouldn't take under-the-table visitor fees. Ms. Valdez is on Section 8, and couldn't pay her rent by herself.

14. Kathleen Kalozsy of Axis of Love said that she sees injustice all around her – it is "your rights versus their prosperity." Ms. Kalozsy went on to say that "divided we fall" and "we live to be free," and then read a poem.

15. David Sarmiento of the medical cannabis community and Axis of Love said that he experienced bedbugs in his SRO but it took 5 years before his mattress was replaced. There is no 24-hour security, because the manager sleeps at the front desk. Mr. Sarmiento told the Board that he was homeless, but now feels less safe.

16. Albert Blats of Axis of Love said that no one living in a SRO has money but they're not children and they "need friendship."

17. Denise Dorey of Axis of Love has lived in SROs on and off since the 1970s. Ms. Dorey told the Board that her cousin almost died while waiting for an ambulance because the desk clerk at his hotel wouldn't let her in. Ms. Dorey said that SRO tenants are "at the mercy of strangers" and advocated for a minimum standard of care.

18. Shona Guchener, Executive Director of Axis of Love, decried the "criminalization of poverty." Ms. Guchener said that isolation has killed many patients that they serve and questioned the constitutionality of not being able to care for one's loved ones. She asked that the Board recommend a minimum standard of care to the Board of Supervisors and Planning Commission. She also suggested that they ask the City Attorney to review the constitutionality of the Visitor Policy.

19. Jonathan Dyer of Axis of Love doesn't live in a SRO. Mr. Dyer was concerned about people who get off work after visiting hours are over and, therefore, never get to have guests. Mr. Dyer suggested that if the tenant can prove that this is the case, they should be granted an exemption from regular visiting hours.

20. Sam Patel, President of the Independent Hotel Owners and Operators Association (IHOOA), said that his association is in agreement with the proposed changes, but asked that Section B(4) be clarified to specify that, if an overnight does not occur, management must be informed that evening. Mr. Patel thanked the Rent Board for translating the Policy into 7 languages.

21. Henry Karnilowicz, Secretary of IHOOA, told the Board that he has been on the last 3 Committees that have made recommendations regarding the Policy. Mr. Karnilowicz reminded the Board that SRO hotels were originally built for traveling salesmen, and were not designed for residential use. He said that many residents are afraid to speak up regarding drug dealers and other problems. Mr. Karnilowicz believes that the Policy is "excellent," and expressed his hope for the Board's support of the proposed changes.

22. Roger Patel said that he has been a hotel operator for 17 years. Mr. Patel feels that the Policy has been working quite well, although he had trepidation when it first passed. He said that he meets with many tenants who like things the way they are, and don't want to be disturbed.

23. Property Manager Bruce Burge said that the proposed modifications are "great," but that some critics of the policy don't have the whole picture and need corroboration.

24. Dipak Patel said that he is from the second generation of hotel operators. Mr. Patel believes that most of the issues surrounding the Policy are social and that SROs are put in this position by the government, because they provide affordable housing. Mr. Patel told the Board that hotel owners also make sacrifices due to the cost of utilities, the Sprinkler Ordinance, etc. Ultimately, Mr. Patel feels that the Policy represents a compromise, and that there should be no more changes.

The Public Hearing concluded at 8:00 p.m. The Commissioners briefly discussed the public comment and voted as follows below:

To receive visitors between 9:00 a.m. and 9:00 p.m. daily. A maximum of two (2) day time visitors at a time per room may be imposed by management. There is no limit on the total number of visitors a tenant may have per day, week or month.

Children 13 years old and under shall not be counted towards the visitor limitation rule. However, a maximum of two (2) children per room at a time can be imposed by management.

C. Caregivers of disabled tenants shall be exempt from visitor limitations. The owner or operator of the hotel may request medical verification or a caregiver I.D. card.

A. Owners or operators are entitled to request that visitors produce identification as follows:

A. disturb the peaceful enjoyment of the premises by other tenants and neighbors;

B. destroy, deface, damage, impair, or remove any part of the structure or dwelling unit, or the facilities or equipment used in common; or,

C. have committed repeated violations of the visitor policy which can be construed as creating a nuisance on the property; or constituting substantial interference with the comfort, safety or enjoyment of the landlord or tenants, which can be a just cause for eviction under the Rent Ordinance, as determined by the courts.

D. Any time a tenant's visitor is excluded from the hotel, written notice must be delivered to the tenant after the fact with the visitor's name and the reason for the exclusion.

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

A. A copy of the post card being sent to landlords who have previously filed petitions for approval of utility passthroughs regarding the recent changes in those procedures.

B. Articles from CNN, BeyondChron, and Bloomberg News.

Executive Director Wolf reminded the Commissioners that their Form 700 Statements of Economic Interest are due to the Ethics Commission by April 1st.

Senior Administrative Law Judge Sandy Gartzman brought to the Board's attention the fact that several properties in San Francisco have begun to purchase natural gas from a non-PG&E provider. Section 1.19 of the Rules provides: "For the purpose of Ordinance Section 37.2(q) and Sections 4.11 and 6.16 of these Rules, 'Tenant's Utilities' means charges for natural gas or electricity provided by Pacific Gas and Electric Company directly to the unit occupied by the tenant or to the building in which the unit is located and benefiting the tenant, whether paid by the tenant alone, by the landlord alone, or part by the tenant and part by the landlord." It was suggested by Ms. Gartzman that the Board might wish to amend the regulation by deleting the reference to PG&E.

Rules ß 1.19 now reads as follows:

For the purpose of Ordinance Section 37.2(q) and Sections 4.11 and 6.16 of these Rules, "Tenant's Utilities" means charges for natural gas or electricity provided directly to the unit occupied by the tenant or to the building in which the unit is located and benefiting the tenant, whether paid by the tenant alone, by the landlord alone, or part by the tenant and part by the landlord.

G. Allen White said that all owners and tenants should have access to the Visitor Policy, but it takes the Rent Board several months to get it translated and posted. Mr. White asked if the Board had legal counsel present at the meeting and whether the Commissioners knew if what they had passed violates the Constitution. Mr. White said that the Board should have put the matter over in order to get a statement from Larry Brinker of the Human Rights Commission.

H. Shona Guchener told the Commissioners that it behooved them to advocate for these rights and told them they should collaborate with the community.

I. Jeff Buckley requested clarification on when the new Policy will be available.

J. Shomari Clarke expressed his opinion that overnights shouldn't be limited at all, and said that people are "being treated like babies."

K. Reverend Randi White asked about tenants' right to file a petition at the Rent Board if the Visitor Policy is not posted in their hotel.

Commissioner Henderson adjourned the meeting at 8:25 p.m.