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June 16, 2009

June 16, 2009

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

Tuesday, June 16, 2009 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; Crow; Gruber; Henderson; Hurley; Mosbrucker.

Commissioners not Present: Justman; Mosser; Murphy.

Staff Present: Lee; Wolf.

Commissioner Marshall appeared on the record at 6:07 p.m.

III. Approval of the Minutes

MSC: To approve the Minutes of May 12, 2009.

(Hurley/Henderson: 5-0)

IV. Consideration of Appeals

A. 345 Fulton #52 AT090128 & -29

The landlord's petition for approval of utility passthroughs for 5 of 29 units was granted. The tenant in one unit appeals the decision on the grounds of financial hardship and the assertion that, since he receives a Section 8 voucher, he should not be subject to the passthrough.

MSC: To accept the appeals and remand the case to the Administrative Law Judge for a determination that this tenancy is not subject to the utility passthrough provisions of the Rent Ordinance. (Marshall/Mosbrucker: 5-0)

B. 242 – 5th Ave. #5 AT090117

(cont. from 5/12/09)

The landlord's petition for a rent increase based on the rent for comparable units was granted. The tenants in the unit appealed the decision on the grounds of financial hardship. The appeal was continued from the meeting on May 12th in order for staff to contact the parties and explore possible settlement.

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

C. 155 Jackson #1002 AT090124

The tenants' appeal of a decision certifying capital improvement costs was filed almost six years late because the tenants' financial circumstances have recently changed substantially for the worse.

MSC: To find no good cause for the late filing of the appeal; the Decision is therefore final. (Gruber/Hurley: 3-2; Mosbrucker, Beard dissenting)

D. 161 Powell #406 AT090098

(cont. from 4/21/09)

The tenant's petition alleging a substantial decrease in housing services due to the reconfiguration of the lounge area in this residential hotel was denied. The tenant appealed, maintaining that: the changes to the lounge area have made it so that the tenants cannot use and enjoy the lounge; the facts presented at the hearing do not support the conclusions reached by the ALJ; the relocation of the television to the laundry room denies the tenants use of the television; the tenants are suffering a non-economic hardship related to their general health and well-being by having lost the opportunity for social interaction and a feeling of community; and the landlord presented no compelling reason for the changes that were made. This appeal was continued from the meeting on April 21st in order for staff to contact the parties and explore possible settlement.

MSC: To accept the appeal and remand the case to enter the settlement reached by the parties as the disposition in the case. (Marshall/Hurley: 5-0)

E. 787 Valencia St. AL090123

The tenant's petition alleging an unlawful rent increase was granted because the ALJ found that the tenant still permanently resides in the subject unit. On appeal, the landlord claims that the ALJ was unfair, that the landlord's testimony was not considered in the decision, and the tenant is not living in the unit.

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

F. 250 Taylor #603 AL090120

The tenant's petition alleging unlawful rent increases was granted and the landlord was found liable to the tenant in the amount of $7,594.63 for rent overpayments and $348.73 for improper utility passthrough payments. On appeal, the landlord alleges that the tenant lied about when he moved in to the subject unit, and that the rent overpayment calculations are therefore in error.

MSC: To deny the appeal. (Marshall/Mosbrucker: 4-1;

Hurley dissenting)

G. 1253 – 17th Ave. #4 AL090122

The tenant's petition alleging an unlawful rent increase was granted because the ALJ found that no increase is warranted pursuant to Costa-Hawkins since the tenant still permanently resides in the subject unit. The landlord appeals, asserting that: the ALJ erred in finding the tenant's absence from the unit temporary, since his family has resided in Tiburon for the last five years; the ALJ improperly evaluated evidence to the detriment of the landlord; and the ALJ allowed the tenant to submit additional evidence without an opportunity for cross-examination by the landlord.

MSC: To deny the appeal. (Marshall/Mosbrucker: 4-1;

Gruber dissenting)

H. 1110 So. Van Ness, Unit No. 2 AL090121

The landlord's appeal was filed slightly over three weeks late because the landlord did not receive a copy of the decision in the mail.

MSC: To find good cause for the late filing of the appeal. (Marshall/Gruber: 5-0)

The landlord's petition seeking a determination pursuant to Rules ß1.21 was denied because the ALJ found that the original tenant's sister is a tenant in occupancy of the subject unit. On appeal, the landlord maintains that the tenant's stepsister is residing in the unit illegally, without his consent, and that the original tenants have abandoned the unit.

MSC: To accept the appeal and remand the case to allow the landlord to file an amended petition within 30 days adding a Costa-Hawkins claim as the basis for relief. (Gruber/Hurley: 5-0)

I. 119 Valdez Ave. AL090125

The landlord's appeal was filed 23 days late. However, the landlord claims that the appeal was mailed on April 15th and was due on April 18th.

MSC: To find good cause for the late filing of the appeal. (Hurley/Gruber: 4-1; Mosbrucker dissenting)

The tenants' petition alleging decreased housing services was granted, in part, and the landlord was found liable to the tenants in the amount of $6,331.50. On appeal, the landlord claims that: the window was replaced within 45 days of the Notice of Violation; the rent reduction for the roof should only be from February until November 2007; the tenant's photographic exhibits are false and the tenant failed to notify the landlord regarding the problems in the unit; the water heater was replaced in June rather than July; the tenants damaged the unit; the caption incorrectly lists another individual as an owner of the property; and he missed the hearing due to his son's medical emergency.

MSC: To accept the appeal and remand the case for a new hearing. (Gruber/Marshall: 5-0)

J. 502 Clement #2 & #3 AL090126 & -27

Two tenant petitions alleging decreased housing services were granted, in part, and the tenants were granted rent reductions in the amount of $50.00 per month due to the presence of rats in the common areas of the building. The landlord appeals, alleging that: it was nesting birds, not rats, that were making the noises the tenants complained of; no rats were ever seen by the tenants; the tenant in unit #3 failed to prove long-term verifiable notice to the landlord of the problem; the ALJ erred in calculating the dates for the rent reduction; and the landlord should not be held responsible for a City-wide rodent problem stemming from near-by commercial enterprises.

MSC: To recuse Commissioner Crow from consideration of this appeal. (Crow/Marshall: 5-0)

MSC: To deny the appeal except to remand the case for a necessary Technical Correction. (Marshall/Gruber: 5-0)

V. Communications

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

A. Several articles from the S.F. Apartment Magazine, BeyondChron, the S.F. Examiner, NBC Bay Area, and the S.F. Chronicle.

B. The office workload statistics for the month of April 2009.

C. A current copy of the Rent Ordinance and updated List of Rent Ordinance Amendments.

VI. Director's Report

Executive Director Wolf and Senior Administrative Law Judge Tim Lee reported as follows:

A. The Rent Ordinance was amended on February 20, 2009; the amendments went into effect on March 22, 2009. Section 37.2(v) was added to provide a series of definitions regarding "Victims of Domestic Violence, Sexual Assault or Stalking." Sections 37.9(a)(3.1) and (3.2) were added to provide confidentiality protections and a defense to nuisance evictions under Section 37.9(a)(3) for victims of domestic violence, sexual assault or stalking.

B. On May 19, 2009, the Superior Court upheld all of Proposition M with two exceptions. First, the Court concluded that the phrase "with ulterior motive or without honest intent" is unconstitutionally vague and is severed, but the phrase "in bad faith" is lawful and enforceable. Second, the Court concluded that the attorneys' fees provision in Section 37.10B©(6) violates the Equal Protection Clause. The Court rejected petitioners' other legal arguments. The rest of Proposition M is now enforceable and the Rent Board will accept and process all tenant petitions with Prop. M decreased housing service claims. A separate lawsuit challenging Proposition M is still pending in federal court, and the Court's ruling in the state court lawsuit may also be appealed.

C. Attorney James Millar phoned to report that, despite language in Rules ß6.15C specifying that a violation of the section shall not constitute a basis for eviction, he has been involved in several recent cases where rent overcharges by a Master Tenant have been the basis for eviction actions. Senior ALJ Lee will contact Mr. Millar to obtain additional information and report back to the Board.

D. The Rent Board had a party celebrating the 30th anniversary of rent control in San Francisco. Party favors were distributed to those Commissioners who were unable to attend.

VII. Old Business

A. Restoration of Original Rental Amount After Voluntary Reduction

By Landlord

Commissioner Mosbrucker distributed an alternative to Commissioner Murphy's proposed language at the beginning of the meeting. Discussion of this issue was continued to the next meeting in order for the Commissioners to have time to review the new draft.

B. Petitions for Extension of Time To Do Capital Improvement Work

(Rules and Regulations ß12.15)

This issue was continued to the meeting on August 4th when Commissioner Murphy will have returned.

VIII. Remarks from the Public

A. Paul Franza, an employee of landlord Robert Imhoff, remarked on the case concerning 250 Taylor #603. Mr. Franza told the Board that the landlord presented all the evidence, and that the tenant is "manipulating the system." Mr. Franza inquired as to the landlord's recourse.

B. Tenant Richard Riedel of 787 Valencia (AL090123) said that he has lived in the subject unit for over 20 years. Mr. Riedel told the Board that the landlord raised his rent after he was laid off from his job at New College of the Law, and he is now living on Social Security.

C. Landlord Themis Drolopas of 787 Valencia said that the tenant isn't living in the unit any more, nor are his sons, and that the tenant lives with his family in a house they purchased. Mr. Drolopas told the Board that the tenant didn't respond to a 3-Day Notice for 10 days, and asked the landlord for money to move out. The landlord said that he paid an attorney $1,500 for nothing, and he doesn't know what additional evidence he could provide.

IX. Calendar Items

June 23rd and 30th, 2009 – NO MEETINGS

July 7, 2009

11 appeal considerations

Old Business: Voluntary Rent Reductions

X. Adjournment

President Gruber adjourned the meeting at 7:20 p.m.

NOTE: If any materials related to an item on this agenda have been distributed to the Commission after distribution of the agenda packet, those materials are available for public inspection at the office of the Rent Board during normal office hours.

Last updated: 10/9/2009 11:26:19 AM