February 3, 2009

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

Commissioners not Present: Gruber; Justman.

Staff Present: Lee; Wolf.

Commissioner Murphy appeared on the record at 6:15 p.m.

MSC: To approve the Minutes of December 16, 2008 with the following corrections: on page 4, Phil Page is not the President of the Golden Gateway Tenants' Association; and on page 5, Clay Tominaga's comments should read: "He also informed the Board that rolling the base year forward in 2009, rather than to 2009 . . .". (Mosbrucker/Mosser: 5-0)

A. Clarence Mason, a tenant in a SRO hotel, said that there are no mailboxes in the hotel, and his mail gets sent back. Mr. Mason wanted to know how he could make the hotel operators provide mailboxes, since they have said that they will not follow the policy.

B. Jeff Buckley, Director of the Central City SRO Collaborative, said that he was present to support the 3^{rd Street tenants in their appeal (AL080125). He told the Board that the Collaborative is working with the Post Office to address their new policy of refusing to provide individual mail delivery in SRO hotels unless they had already been doing so for more than 90 days. Mr. Buckley said that the mailbox ordinance passed in April 2006, and hotel owners were given a year to come into compliance. It is now 3 years later, and we are dealing with the same issues. Mr. Buckley feels private hotel owners should be held accountable for what should have been remedied.}

^{C. SRO tenant Mary Hernandez told the Board that her mail goes to the hotel receptionist, which causes delays. She does not believe that she should be treated differently than the tenants who live in the apartment building next door.}

^{D. SRO tenant John Mallory said that his GA check used to be held up because he didn't have a mailbox, and he had to institute direct deposit. The situation is the same now that he's on SSI.}

^{E. Tenant Bob Bower now lives in an apartment building with mailboxes, but he used to live in a SRO and mail was very hard to get.}

^{F. Paul Hogarth of the Tenderloin Housing Committee said that some hotel operators did comply with the law and the postal service will continue to deliver mail to those who've been receiving it for more than 90 days. Mr. Hogarth told the Board that tenants' representatives are working with the postal service and putting pressure on them. However, in the meantime, tenants need a remedy at the Rent Board and scofflaws shouldn't be let off the hook.}

^{G. Daniel Pledger told the Board that this is a privacy issue, since clerks can rifle through tenants' mail. Mr. Pledger said that compensation isn't the issue, rather, privacy and security are. He asked that the Board address a citizen's right to have their mail delivered.}

^{H. Otto Dowdy spoke on behalf of the Tom Waddell Center. Mr. Dowdy told the Board that SRO hotels are "sub-normal housing" and that residents' health and economic outcomes are lower than the population as a whole. Mr. Dowdy now lives at the Ritz Hotel, where he gets full mail service. Mr. Dowdy believes that mailboxes are just one step in improving the quality of residents' lives.}

^{I. Jose de la Cruz, an Organizer with the Central City SRO Collaborative, reiterated that landlords should not be let off the hook if they haven't complied.}

^{J. Alexandra Goldman of the Central City SRO Collaborative asked that the Board not set a "dangerous precedent" that landlords don't have to comply with the law.}

^{K. Peter Maziak of the Central City SRO Collaborative informed the Board of an "unintended consequence" of this new policy: SRO tenants who do not have individual mail delivery do not qualify for digital converter box coupons, because the SRO is considered a business, and businesses do not qualify for the coupons. Mr. Maziak postulated that tenants should be able to use rent reductions granted for decreased housing services to buy a converter box.}

^{The tenant's appeal of a decision granting rent increases based on increased operating expenses was filed almost two months late because the tenant was out of the country at the time the decision was issued.}

^{The landlord's petitions for rent increases based on increased operating expenses and certification of capital improvement costs were granted. One tenant appeals the decisions on the grounds of financial hardship.}

^{The landlord's petition for certification of capital improvement costs to 20 of 50 units was granted. One tenant appeals the decision on the grounds of financial hardship.}

^{The tenant's petition seeking a determination of her lawful base rent was granted and the landlord was found liable to the tenant in the amount of $2,976.64 due to rent overpayments. On appeal, the landlord claims that his rents are less expensive than any other rentals in Chinatown and the decision is unfair.}

^{The tenant filed a petition requesting a determination of his lawful base rent. The Administrative Law Judge (ALJ) denied the petition because he found that the landlord's accounting of water and garbage service costs did not constitute a demand for payment and was therefore not a rent increase. The tenant's appeal was accepted and remanded for a determination as to the legality of the water and garbage charges. In the remand decision, the ALJ finds that landlord-provided water and garbage are housing services represented to the tenant as free of charge at the inception of the tenancy and any attempt by the landlord to collect for such services constitutes an unlawful rent increase. The landlord appeals the remand decision, asserting that: there was no agreement that the landlord was going to pay for water and garbage; the lease provides that these charges are the tenant's responsibility; the tenant's testimony was not truthful; determination of the validity of the terms of the lease is a State law issue over which the Rent Board has no jurisdiction; the landlord has not waived the lease provision but has withheld payment of interest on the tenant's security deposit as on-going collection of the charges; and parole evidence should not be allowed to contravene the express language of the written contract.}

^{MSC: To recuse Commissioner Crow from consideration of this appeal. (Murphy/Mosbrucker: 5-0)}

^{MSC: To accept the appeal and remand the case to the Administrative Law Judge on the issue of whether the oral agreement legally can amend the terms of the written agreement, paying special attention to the Statute of Frauds; a hearing will be held only if necessary. (Beard/Murphy: 5-0)}

^{The tenant's petition alleging an unlawful increase in rent from $1,726.97 to $4,300.00 per month was granted because the Administrative Law Judge found that the original tenant had not vacated the unit and therefore no increase pursuant to Rules ß6.14 was warranted. On appeal, the landlord maintains that: the increase is authorized by Costa-Hawkins because the original tenant no longer permanently resides at the subject unit; there are factual errors in the decision; loan documents signed by the original tenant require that his principal place of residence be in North Carolina; and the petitioner's testimony at the hearing was not credible.}

^{The tenants in four units in this SRO hotel filed petitions alleging decreased housing services due to the lack of approved mail receptacles. The petitions were granted and the landlord was found liable to the tenants in the amount of $50.00 per month. On appeal, the landlord claims not to have received notice of the hearing, and attaches the requisite Declaration of Non-Receipt of Notice of Hearing. The landlord also claims that the rent reductions granted are excessive; he has made improvements to the property; and the amounts granted constitute a financial hardship.}

^{The subtenant's petition alleging that he paid more than his proportional share of the rent to the Master Tenant was denied. The subtenant appeals, claiming that: the value of the amenities he is provided were over-valued by the Administrative Law Judge; the unit is not kept clean by the Master Tenant; cable TV is not being provided; the unit is infested with vermin; and he would use his own dishes and pots and pans but there is no room to store them.}

^{The landlord's Petition for Extension of Time to do Capital Improvement Work was granted. One tenant appeals the decision, arguing that: the Administrative Law Judge (ALJ) failed to consider whether the landlord is proceeding without ulterior motive and with honest intent; the ALJ allowed the landlord to remove the site on which his unit is located, rather than just temporary removal of the unit itself; and the tenant was precluded from challenging whether it is necessary for him to vacate the unit during the construction work.}

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

^{A. A chart showing how the new security deposit interest rate of 3.1% was calculated.}

^{B. A chart showing that the Rent Board's web site is heavily trafficked, in comparison with other City departments.}

^{C. Several articles from various publications, including BeyondChron, the S.F. Chronicle, the S.F. Daily Journal, the New York Times, the S.F. Business Times and the Wall Street Journal.}

^{D. A Memorandum from the Office of the City Attorney regarding the rights of San Francisco tenants during the foreclosure crisis.}

^{I. A Memorandum from the Executive Director regarding proposed amendments to the SRO Hotel Visitor Policy.}

^{Executive Director Wolf informed the Board as follows:}

^{A. Post cards are being sent out notifying landlords who have previously filed utility passthrough petitions of the amended regulations and procedures and informing them of how they can obtain the new forms.}

^{B. The Form 700 Statements of Economic Interest and Sunshine Declarations are due April 1st.}

^{C. The landlord's Writ in the case of Strain v. Rent Board was denied, as Judge Mahoney found that the ALJ gave proper weight to the evidence in this 1.21 case, even though the tenant had a Homeowner's Exemption on another property.}

^{D. Several plaintiffs, including the S.F. Apartment Association, have filed a lawsuit challenging the validity of Proposition M, the tenant harassment amendment to the Rent Ordinance recently passed by the voters. The case is Larson et al. v. City and County of San Francisco (Superior Court Case No. 509083). On January 21, 2009 the Court granted a temporary stay of some provisions of Prop. M, and set a hearing on the plaintiffs' challenges to the entire Proposition for April 17, 2009. In the interim, the Rent Board will accept petitions with Prop. M claims for filing, but will not schedule such petitions for hearing until the court ruling on April 17th.}

^{The Board continued their discussion of issues that have come up in conjunction with the Petition for Extension of Time process (Rules ß12.15). Currently, in order for the landlord's petition to be granted, the regulations require that the landlord have all necessary permits prior to filing the petition. The Board's ALJs often deny the petitions for lack of all of the necessary permits, even when the landlord's estimate of time is reasonable and the landlord is acting in good faith. Senior Administrative Law Judge Tim Lee outlined the following issues from prior discussions: the Board could give the ALJs more discretion to grant such petitions, as long as no notice to vacate has been issued; tenants could be paid the rent differential any time they are displaced for more than 90 days, whether or not the petition is granted; and a standard or timeline should be established for tenants moving back in to the unit, which could be modeled after Rules ß12.19. The Commissioners asked Mr. Lee to draft language incorporating these three suggestions for discussion at the March 3rd meeting.}

^{L. Winship Hillier asked whether it was normal for the Executive Director to be acting as President of the Board, and was informed that Ms. Wolf is actually the Board Secretary.}

^{Ms. Wolf went over suggested changes to the Visitor Policy recommended by a Committee of landlord and tenant representatives that include: to allow any valid California or out-of-state current government agency issued picture 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. Commissioner Beard suggested that tenants should be required to notify management in writing if a requested overnight does not occur.}

^{MSC: To approve the proposed departmental budget for Fiscal Year 2009-2010. (Murphy/Mosbrucker: 5-0)}

^{Vice-President Marshall adjourned the meeting at 8:07 p.m.}