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August 4, 2009

August 4, 2009

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

Tuesday, August 4, 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; Mosser; Yaros.

Commissioners not Present: Marshall; Mosbrucker; Murphy.

Staff Present: Lee; Wolf.

III. Approval of the Minutes

MSC: To approve the Minutes of July 7, 2009.

(Hurley/Gruber: 5-0)

IV. Remarks from the Public

A. Tenant Ross Wilkinson told the Board that Commissioner Henderson's Form 700 Statement of Economic Interests says that she's a landlord and not a tenant. Mr. Wilkinson said that, if no explanation is provided, he would go to the City Attorney. He also noted that the page of the Board's Statement of Incompatible Activities dedicated to particular activities is left blank. Mr. Wilkinson believes that it should say that landlords and tenants cannot be representatives for the other side. He also told the Board that the Charter requires that the Minutes record how each member votes.

B. Tenant Robert Dupire-Nelson of 151- 26th Ave. (AL090161) said that the subject unit has been his children's homes since they were born, and that a combination of job and health reasons necessitated the family's spending time in Hawaii. The family spends as much time in San Francisco as possible, and the Administrative Law Judge (ALJ) has twice confirmed that Mr. Dupire-Nelson works in San Francisco. Currently, they are moving to reunite the family in San Francisco.

C. Attorney Andrew Zachs, representing the landlord at 151- 26th Ave., told the Board that the tenant's wife and children principally reside in Hawaii. Mr. Zachs reminded the Board that the tenant was ordered to provide tax records, but only fully redacted returns were provided. Additionally, the tenant failed to appear at the remand hearing, so the landlord was deprived of the ability to cross-examine the tenant. Mr. Zachs said that this is not a fair way to adjudicate cases and demonstrates the tenant's contempt for the Board.

D. Attorney Robert De Vries, representing the tenant at 151 – 26th Ave., said that the airline records show that the tenant spends the majority of his time in San Francisco, and there is no dispute that he works here. His wife and children spend the majority of their time in Hawaii, but also spend time in San Francisco. Mr. De Vries said that tax returns were provided, but they are privileged documents. Mr. De Vries maintained that the tenants never lived at the Clay Street property, which was an investment and not a residence.

E. Tenant Carl Hathwell of 201 Divisadero (AT090179) asked whether he could repeat the gist of his appeal, which was that the ALJ did not consider his medical expenses in denying his hardship claim.

F. Landlord Wilbur Tom of 151 – 26th Ave. told the Board that an IRS tax lien shows that the tenant's address is on Clay Street.

G. One of the tenants at 833 Lombard #A (AT090173) told the Board that there was one huge room when they moved in to the unit that the landlord promised she would make into two rooms. However, the partition wall wasn't built all the way to the ceiling. Although the landlord said she would take care of it, she is now alleging that the wall was built two years before the tenants moved in.

V. Consideration of Appeals

A. 387 Ellis #208 AT090175

The tenant's petition alleging decreased housing services was dismissed because the Rent Board does not have jurisdiction over this property as the rents are regulated by the Department of Human Services. The tenant appeals, claiming that the building is not exempt.

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

B. 1008 Larkin, 406B AT090177 & -78

The tenant's appeals were filed three weeks late because the tenant did not receive copies of the decisions in the mail.

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

The tenant's petitions alleging decreased housing services were dismissed due to the tenant's failure to appear for the hearing until over an hour after the scheduled start time. On appeal, the tenant asks that she be granted another hearing or that the dismissals be changed to without prejudice so that she can pursue her claims in Small Claims Court.

MSC: To accept the appeals and remand the cases to the Administrative Law Judge to change the decisions to Dismissals Without Prejudice. (Gruber/Crow: 4-1; Beard dissenting)

C. 2201 Van Ness Ave. #403 AT090176

The tenant's petition alleging decreased housing services was denied because the ALJ found that the tenant had not stayed in the tourist hotel room for 32 consecutive days and the Rent Board therefore has no jurisdiction over this matter. The tenant appeals, claiming that she stayed at the hotel for 57 days but the landlord falsified records and lied under oath; and her due process rights were violated because the ALJ would not hear the merits of her case.

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

D. 640 Mason #706 AT090174 & -84

The tenant appeals decisions certifying capital improvement costs and granting utility passthroughs on the grounds of financial hardship.

MSC: To accept the appeals and remand the cases for a hearing on the tenant's claims of financial hardship.

(Henderson/Crow: 5-0)

E. 427 Stockton #709 AT090160

The landlord's petition for certification of capital improvement costs was granted. 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. (Henderson/Crow: 5-0)

F. 1036 Polk #501 AT090163

The tenant's hardship appeal was filed over six years late because the tenant's financial circumstances have changed due to a disability.

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

The landlord's petition for certification of a seismic strengthening project was granted. 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. (Henderson/Crow: 5-0)

G. 1562 Fulton St. AT090164

The tenant's appeal was filed three days late because she did not receive a copy of the Dismissal in the mail.

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

The tenant's petition alleging decreased housing services and unlawful rent increase was dismissed due to her failure to appear at the properly noticed hearing. On appeal, the tenant claims not to have received notice of the hearing, and attaches the requisite Declaration of Non-Receipt of Notice of Hearing.

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

H. 1115 Taylor #4 AL090162

The subtenant's petition alleging that he paid a disproportional share of the rent pursuant to Rules ß6.15C(3) was granted and the Master Tenant was found liable to the subtenant in the amount of $10,800.00. On appeal, the Master Tenant alleges that he was unaware of the requirement that the amount of rent paid must be proportional; that the decision will present him with a financial hardship; and that the subtenant is going to be evicted due to his uncooperative behavior.

MSC: To deny the appeal on substantive grounds but remand the case for a hearing on the Master Tenant's claim of financial hardship. (Gruber/Crow: 5-0)

I. 1185 Pine St. #22 AT090167 & -68

The tenant's hardship appeals of decisions granting a rent increase based on increased operating expenses and a capital improvement passthrough were denied on remand because the ALJ found that the tenant had failed to document the income he receives as a taxi cab driver. On further appeal, the tenant claims that: he was not asked to provide additional documentation of his income, which he is happy to provide; he should be entitled to deduct familial expenses which he incurs; and his income-to-rent ratio is within the Board's guidelines, regardless of what he spends his money on.

MSC: To deny the appeals. (Gruber/Hurley: 5-0)

J. 833 Lombard #A AL090165 & AT090173

The tenants' petition alleging deceased housing services and the landlord's failure to repair was granted, in part. The landlord was found liable to the tenants in the amount of $4,350.00 due to the landlord's failure to build a partition wall that would create two separate bedrooms, as promised prior to the inception of the tenancy. The landlord was also found liable in the amount of $660.16 due to rent overpayments. The failure to repair claim was determined to be moot since the noticed rent increase was null and void. The landlord and the tenants appeal the decision. The landlord claims that the wall was built before the tenants moved in; that whether the wall was built with permits or was full or partial should have no bearing on whether it constituted a housing service; and the tenants' petition resulted from personality conflicts and the issuance of a rent increase. In their appeal, the tenants request a greater rent reduction for the wall and claim that there is still mold and mildew on the premises, which constitutes a code violation.

MSC: To deny both the landlord's and tenants' appeals.

(Crow/Hurley: 5-0)

K. 151 – 26th Ave. AL090161

The landlord's petition seeking a determination pursuant to Rules Sections1.21 and 6.14 was denied because the ALJ found that one of the tenants still resides in the unit as his principal place of residence. On appeal by the landlord, the case was remanded to allow the tenant to produce tax returns from relevant time periods and to delete a Costa-Hawkins determination from the decision. The landlord now appeals the remand decision, which arrived at the same conclusions, on the grounds that: the tenant did not comply with the remand order, since the tax returns submitted were useless without the ability to cross-examine the tenant, who failed to appear at the remand hearing; the tenant has not voted in San Francisco since 2001, despite testimony to the contrary at the original hearing; and spouses cannot have different principal places of residence.

MSC: To accept the appeal and remand the case to the Administrative Law Judge for a supplemental hearing in order for the tenant to provide information as to the tax consequences of the sale of the Clay Street property with the accompanying tax schedules, including Schedule E, and to allow the landlord to cross-examine the tenant. (Beard/Gruber: 3-2; Crow, Henderson dissenting)

L. 201 Divisadero AT090179

The tenant's hardship appeal of a utility passthrough was denied on remand because the tenant's income-to-rent ratio including the passthrough was only 28.67%. On appeal, the tenant claims that the Decision does not take his yearly medical expenses into account.

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

VI. Communications

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

A. A copy of the decision in the case of Palmer v. City of Los Angeles (Los Angeles County Superior Court No. BS107637), which found that Los Angeles' Inclusionary Housing Ordinance violates Costa-Hawkins.

B. Articles from the S.F. Examiner, BeyondChron, SFAppeal and the Mayor's Office of Communications.

C. A Pending Litigation Status Report from Senior ALJ Tim Lee.

D. The office workload statistics for the month of June, 2009.

E. New Staff and Commissioner Rosters.

VII. Director's Report

Executive Director Wolf informed the Board as follows:

A. The rental unit fee will remain at $29.00.

B. The plaintiff petitioners, including the S.F. Apartment Association, have filed an appeal of the court's decision in Larson v. CCSF (Superior Court Case No. 509083). The City has filed a cross-appeal of that part of the decision striking the unilateral attorney fees provision of Section 37.10B©(6).

VIII. Old Business

Discussion of the issues of Voluntary Rent Reductions and Petitions for Extension of Time to do Capital Improvement Work were continued to a future meeting.

IX. New Business

Proposed Amendment to Rules and Regulations Section 6.16(g)(iii)

Under the Rules and Regulations, a tenant can file a Tenant Hardship Application (as opposed to a hardship appeal) in two circumstances: after receipt of notice of a Water Revenue Bond Passthrough and/or a Utility Passthrough Worksheet. While Rules ß4.14(l) regarding water revenue bond passthroughs specifically provides for a stay of the passthrough pending hearing and appeal, Rules ß6.16(g)(iii) is silent on these issues. Senior ALJ Sandy Gartzman suggested that the Board might wish to amend ß6.16 to provide that the filing of a Hardship Application stays payment of the utility passthrough similar to hardship applications for water revenue bond passthroughs as follows (new language underlined):

(g) Petition Not Required for Certain Utility Passthroughs

(iii) A tenant who receives a utility passthrough under this subsection (g) may file a hardship application with the Board within one year of the effective date of the passthrough, and may be granted relief from all or part of such passthrough based on hardship. Payment of the utility passthrough set forth in the hardship application shall be stayed until a decision is made by the Administrative Law Judge after a hearing on the tenant's hardship application. Appeals of decisions on a tenant's hardship application shall be governed by Ordinance Section 37.8(f).

MSC: To adopt the proposed amendment to Rules and Regulations Section 6.16(g)(iii). (Beard/Henderson: 5-0)

X. Calendar Items

August 11th, 18th, 25th and September 1st – NO MEETINGS

J5

September 8, 2009

12 appeal considerations

Old Business:

A. Voluntary Rent Reductions

B. Petitions for Extension of Time

XI. Adjournment

President Gruber adjourned the meeting at 7:40 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