September 05, 2000p>
MINUTES OF THE
REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, September
5, 2000 at 6:00 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level
I. Call
to Order
President Wasserman
called the meeting to order at 6:12 p.m.
II. Roll
Call
Commissioners Present: Becker;
Gruber; Hobson; Marshall; Wasserman.
Commissioners not Present: Justman;
Lightner; Mosser.
Staff Present: Grubb;
Winslow; Wolf.
Commissioner Murphy
appeared on the record at 6:17 p.m.
III. Approval
of the Minutes
MSC: To approve the
Minutes of August 22, 2000.
(Becker/Gruber:
4-0)
IV. Remarks from
the Public
- Lynn Elman, the landlady
involved in the case at 436 B Haight St. (AT2K0114; AL2K0113), informed
the Board that the period that the premises were without a roof was one
month, and not 4 months; that the color photos showed the real situation
regarding the lack of natural light in the unit; and that the rent reduction
in the amount of $50.00 per month would present her with a hardship.
- Karen Uchiyama, attorney
for the landlord in the case involving 1369 Hyde St. #73 (AL2K0110), stated
her opinion that the Administrative Law Judge had mischaracterized the case
as a simple 6.14 case, when it was a question of interpretation of contracts.
- Tanya Ridgley spoke
on behalf of Lynn Elman, saying that she had watched Ms. Elman be adversely
affected by her dealings with the tenants at the property, and that the
situation was unhealthy and exhausting.
- Lena Lettinger, the
tenant in the other unit at 436 Haight St., spoke in support of the tenant
appellant, Lyza Chavez', claim. She cited "disrespectful" behavior
on the part of the landlady, and said that there had previously been direct
sunlight into the units from March through October, but now there was none.
- Lyza Chavez, the tenant
at 436 B Haight St., said that she had tried to accommodate the construction
project by switching her schedule. Ms. Chavez believes that the landlord's
pattern of attempted entry without notice and other harassing incidents
were done with the intention of driving the tenants out.
- Peter Fatooh, representative
of the landlord at 34 Lloyd St. (AL2K0115), maintained that: the marital
status of the tenant in the case was irrelevant and cited by the Administrative
Law Judge to evoke sympathy, whereas the fact that the landlady is 80 years
old was never brought up. Mr. Fatooh informed the Board that the tenant's
$328.00 rent will lead to sale of the building and probable removal of the
rental units via the Ellis Act.
- Mark Entieri, attorney
for Chandler Properties, asked that the Board correct the record in the
case at 1369 Hyde St., because Chandler Properties is only the agent for
the landlord, and not the landlord. He also stated his opinion that the
case should be remanded to determine market rent for the unit in March,
1996.
- Robert Sheppard, attorney
for the tenants at 1369 Hyde, complemented the professionalism of Administrative
Law Judge Lela Harris, who decided the case.
V. Consideration
of Appeals
A. 1369 Hyde St.
#73 AL2K0110
(cont.
from 8/1/00)
The tenants' petition
alleging an unlawful increase in rent from $1,206.06 to $3,800.00 per month
was granted because the Administrative Law Judge determined that the tenants
commenced occupancy prior to January 1, 1996 and an original tenant still remained
on the premises; therefore, the landlord was not entitled to an increase pursuant
to Costa-Hawkins nor Rules Section 6.14. On appeal, the landlord argues that:
the Decision is based solely on Rules and Regulations Section 6.14, with no
weight given to the landlord's arguments regarding contracts and case law; the
Decision was based on hearsay; the Administrative Law Judge proceeded as though
it were the respondent who had the burden of proof in this case; the tenant
should not acquire the status of "original tenant" by misrepresenting
herself as one; the landlord did not waive his right to raise the rent by failing
to do so, because he did not have actual knowledge that the last original tenant
had vacated the unit; and the Decision is based on equity, and ignores the written
contracts between the parties.
MSC: To recuse Commissioner
Murphy from consideration of this appeal. (Marshall/Becker: 5-0)
MSC: To deny the appeal,
except to remand the case on the record to correct the caption to the Decision,
since Chandler Properties is the agent for the landlord, but not the landlord
in the case. (Becker/Marshall: 3-1; Gruber dissenting)
B. 436 B Haight St. AT2K0114;
AL2K0113
(cont.
from 8/1/00)
The tenant's
petition alleging substantial decreases in housing services was granted, in
part, and the landlord was found liable to the tenant in the amount of $768.50.
On appeal, the landlord asserts that the amount of the rent reduction granted
due to decreased lighting is excessive and for too long a period of time; the
tenant has received additional services due to the construction work performed
on the premises; there are certain erroneous statements in the Decision; and
the tenant contributed to the untidy condition of the yard, although the landlord
does not appeal the amount granted as to this issue. The tenant also appeals,
claiming that her claims of elimination of privacy and quiet enjoyment, mailbox
problems, interruption of gas service, unauthorized entry and harassment were
not sufficiently looked at by the Administrative Law Judge.
MSC: To deny the tenant's
appeal. To accept the landlord's appeal only to remand the case to the Administrative
Law Judge on the record in order to correct the commencement date for the rent
reduction due to loss of natural light to October 1, 1999. (Becker/Marshall:
3-2; Gruber, Murphy dissenting)
C. 34 Lloyd St. AL2K0115
(cont.
from 8/1/00)
The tenant's petition
alleging an unlawful rent increase from $328.00 to $950.00 was granted because
the Administrative Law Judge found that the petitioner was a tenant, and not
an assignee, and therefore the rent increase was not warranted pursuant to the
Costa-Hawkins Rental Housing Act. On appeal, the landlord maintains that: a
subjective description of the petitioner's personal status in the Decision has
the appearance of bias; the petitioner failed to seek permission to move into
the unit from the landlord, and did not inform the landlord of her status as
a roommate in the unit; and the petitioner is attempting to take advantage of
the elderly landlady in this case.
MSC: To deny
the appeal. (Becker/Marshall: 3-2; Gruber, Murphy dissenting)
D. 223 Lily St. AL2K0134
The landlord's petition
for certification of the costs of new rear stairs and a new roof was granted.
The landlord appeals denial of a $300 expenditure for removal of a chimney,
asserting that the cost was incurred in conjunction with the roof work, and
that removal of the chimney constituted an upgrade to the roof.
MSC: To recuse Commissioner
Hobson from consideration of this appeal. (Becker/Marshall: 5-0)
MSC: To accept the landlord's
appeal and remand the case to the Administrative Law Judge on the record to
certify the costs associated with removal of the chimney. (Murphy/Gruber: 5-0)
E. 300 Hyde St. AL2K0133
The landlord's petition
for certification of the costs of a seismic retrofit project was denied because
the Administrative Law Judge found that the petition had been filed more than
five years after completion of the work. On appeal, the landlord claims that
the warranty for the roof is the proof of the completion date; and that the
landlord will provide additional signed affidavits from the roof company and
previous building manager to prove that the new roof was part of the retrofit
project.
MSC: To accept the landlord's
appeal and remand the case to the Administrative Law Judge on the record only
to certify the costs of the new roof. (Becker/Marshall: 5-0)
F. 1080 Post St. AL2K0112
(cont.
from 8/1/00)
The landlord's petition
seeking a determination as to whether the rent for the unit could be raised
to "market" based on Costa-Hawkins and Rules Section 6.14 was denied.
The Administrative Law Judge (ALJ) determined that a rent increase given during
a period when the original tenant had vacated the unit, but family members were
residing there, constituted the rent increase that the landlord was allowed
pursuant to Costa-Hawkins. The landlord appeals, claiming that: the tenants
coached each other to ensure that their responses matched each others' at the
hearing; it was inappropriate for the ALJ to attempt to ascertain the amount
of the rent increase the landlords were intending to impose; the Decision is
in error regarding the circumstances surrounding the first rent increase given
by the landlord; the Rent Board Rules and Regulations require that a 6.14 notice
be served upon the tenant prior to a rent increase being issued pursuant to
Costa-Hawkins, and the landlord had not served such a notice at the time the
first rent increase was given; the landlord's acceptance of rent should not
operate as a waiver of their right to raise the rent because no written notice
was given of the subtenants' occupancy of the unit; the Decision is incorrect
in stating that a 3-Day Notice to Pay Rent or Quit was issued for the amount
of the first rent increase, rather than the subsequent increase to market rent;
and it is illogical to conclude that the earlier rent increase constituted the
Costa-Hawkins increase when other units in the building were renting for a much
higher rate at that time.
MSF: To deny the appeal.
(Marshall/Becker: 2-3; Gruber, Murphy, Wasserman dissenting)
MSC: To accept the appeal
and remand the case for a hearing to take evidence on the rent history and the
circumstances surrounding the rent increase to $510.00; both parties are encouraged
to provide translation at the hearing. (Murphy/Wasserman: 5-0)
G. 2033 Turk St. AL2K0131
The tenants' petition
was granted and the landlord was found liable to the tenants in the amount of
$768.81 due to an unlawful rent increase and $2,090.00 for decreased housing
services in the unit. On appeal, the landlord maintained that the issue of the
unlawful rent increase was resolved at a mediation session conducted prior to
the subject hearing, and that the tenants deducted amounts owing from the landlord
from their rent; and that the length of time given for rent reductions was excessive,
as the services were restored shortly after notice of the defective conditions
was given to the landlord by the tenants. The landlord's appeal was accepted
and remanded to the Administrative Law Judge to determine the intent of the
parties with respect to the rent overpayment issue, and make any necessary offset
against amounts owing from the landlord to the tenants. In the Decision on Remand,
the landlord's liability was reduced by the amount already deducted by the tenants
from their rent. The landlord appeals the remand decision as to the length of
time granted for rent reductions due to decreased housing services, claiming
not to have received notice of the conditions until receipt of written notice
and/or a Notice of Violation from the Department of Building Inspection.
MSC: To deny the appeal.
(Becker/Murphy: 5-0)
H. 436 Fell St. AL2K0130
One tenant's petition
alleging an unlawful rent increase was granted because the Administrative Law
Judge found that no 6.14 notice had been served on the tenant, although the
landlord had known of his occupancy in the subject unit and accepted rent from
him for an 18 month period. Additionally, no increase was justified pursuant
to Costa-Hawkins because the tenant was not a subtenant or assignee, and resided
in the unit pursuant to an agreement with the landlord. A petition filed by
another occupant of the unit was denied due to lack of standing, because there
was no evidence that that tenant had a rental agreement directly with the landlord.
On appeal, the landlord claims that the lease that was tendered with the tenant
is not in effect, because the tenants allegedly did not sign and return it for
18 months; and that a letter was sent informing the tenant that he was not the
Master Tenant and that the lease between the original occupants of the unit
was still in effect. The landlord maintains that a new tenancy was therefore
established and he should have the right to raise the rent to market.
MSC: To deny the appeal.
(Marshall/Becker: 4-1; Gruber dissenting)
I. 1593 McAllister #301 AT2K0132
The tenant's petition
alleging decreased housing services was dismissed because the tenant arrived
3 hours late for the hearing. On appeal, the tenant, who no longer resides in
the unit, claims not to have received notice of the hearing because it was mailed
to the wrong address.
MSC: To deny the appeal
without prejudice to re-filing; since he has vacated the unit, the tenant is
advised to consult with a Rent Board staff member regarding enforcement of the
Decision prior to re-filing. (Murphy/Becker: 4-1; Gruber dissenting)
- Appeal Hearing
123 Sanchez St.
#8 AT2K0083
(acpt.
6/20/00)
The tenant's petition
alleging an unlawful rent increase was granted because the Administrative Law
Judge found that the tenant's rent included parking. The Board accepted the
landlord's appeal and remanded the case to consider the equitable defense of
laches. However, since the tape of the original hearing could not be located,
and the parties disputed what was said at that hearing, a new hearing was held
and a new Decision issued. In that Decision, a different Administrative Law
Judge found that the tenant had failed to prove that his initial base rent included
parking and that the rent increase for parking was therefore lawful as it was
an additional housing service added after the commencement of the tenancy. The
tenant appealed the remand decision, asserting that: the tenant was not given
equal time at the hearing to respond to the landlord's slanderous allegations;
documents submitted by the landlord were fraudulent; and the prior building
manager routinely offered parking spaces at no additional charge when they became
available. The tenant's appeal was accepted for a de novo Board
hearing, with each side instructed that they had no more than one hour to present
their case.
The appeal hearing commenced
at 7:30 p.m. and concluded at 9:45 p.m. In attendance were the tenant, the landlord,
the landlord's attorney and witnesses for the landlord. The tenant testified
that he was led to believe by the prior resident manager that his initial base
rent included parking, although a space would not become available until a later
date. Therefore, the $85.00 charge for parking constituted an unlawful rent
increase. The landlady asserted that parking charges were always additional
and kept separate from apartment rents; that she had no knowledge of any agreement
between the tenant and the prior resident manager; and that the tenant had paid
for parking for three years, and now wanted out of the contract. After discussion
and consideration of the testimony and documentary evidence, the Board passed
the following motion:
MSC: To deny the tenant's
petition. (Murphy/Gruber: Becker, Marshall dissenting)
VII. Communications
In addition to correspondence
concerning cases on the calendar, the Commissioners received the following communications:
- The office workload statistics
for the month of July, 2000.
- A new staff roster.
- An order of the California
Supreme Court depublishing the case of Cabinda v. Santa Monica Rent Control
Board.
VIII. Director's
Report
Executive Director Grubb
informed the Board that he will be on vacation from September 6th
through 15th.
IV. Remarks from
the Public (cont.)
- Lynn Elman told the
Board that the acceptance or denial of an appeal shouldn't be based on whether
or not the Commissioners believe the Administrative Law Judge to be correct,
but on the evidence submitted.
- Tanya Ridgley spoke
again on behalf of Lynn Elman, stating that the Board's decision seriously
affects peoples' lives; that the tenants are "using the system";
and that landlords should be able to choose who lives in their building.
IX. Calendar Items
September 12,
2000 - NO MEETING
September 19,
2000
9 appeal considerations
X. Adjournment
President Wasserman
adjourned the meeting at 10:30 p.m.