Tuesday, June 15, 1999 at 6:00 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level
I. Call to Order
Vice-President Marshall called the meeting to order at 6:16 p.m.
II. Roll Call
Commissioners Present: Bierly; Marshall; Mosser;
Murphy.
Commissioners not Present: Becker; Gruber; Lightner;
Wasserman.
Staff Present: Grubb; Wolf.
Commissioner Justman appeared on the record at
6:54 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of June 1, 1999.
(Murphy/Mosser: 3-0)
IV. Consideration of Appeals
A. 529 Hugo St. T001-64A
The landlords petition for certification of capital improvement
costs was dismissed due to his failure to appear at the properly noticed hearing.
On appeal, the landlord apologizes for having mixed up the date of the hearing
and asks for the hearing to be rescheduled.
MSC: To accept the appeal and remand the case for a new
hearing. (Murphy/Mosser: 3-0)
B. 73 Cumberland St. T001-62A
The landlords petition for certification of capital improvement
costs was granted, in part. The costs of construction of a rear porch and
deck were disallowed to the tenants in two units pursuant to Rules and Regulations
Section 7.12(b) ("The 6-Month Rule"). On appeal, the landlords claim
that, while some of the preliminary architectural and engineering design work
occurred prior to the move-in date of the tenants in one unit, the physical
construction did not commence until ten months after the move-in date. They
contend that prior cases have held that the date the actual physical construction
commenced should be used for triggering the 6-Month Rule.
After discussion, it was agreed that this matter should be continued
to the next meeting, when more Commissioners will be in attendance.
C. 261 - 23rd Ave. T001-83R
The tenants petition alleging substantial decreases in housing
services, the landlords failure to repair and unlawful rent increase
was denied. The hearing officer found that a $50 increase in rent was actually
restoration of the prior agreed-upon base rent amount after discontinuation
of a discount for the tenants provision of management services. The
tenants habitability claims were determined to not be substantial or
it was found that the landlord acted expeditiously to effectuate repairs and
was hindered by an inflexible repair schedule of the tenants choosing.
On appeal, the tenant claims that the hearing officer was biased in favor
of the landlord; that his managerial discount was in the amount of $20, not
$50; that the leak and mildew problems in his bathroom are more serious than
depicted by the hearing officer; and that he has been reasonable in providing
access to the landlord
MSC: To accept the appeal and remand the case to the hearing
officer on the record to examine the October 8, 1998 letter from
the landlord to the tenant asking for reinstitution of the $50.00
monthly discount in light of the finding that the tenant had failed
to produce evidence of the amount of rent that he had been paying;
a hearing will be held only if necessary. (Murphy/Mosser: 3-0)
D. 469 - 8th Ave. T001-63A
The tenants petition alleging substantial decreases in housing
services was granted, in part, and the landlords were found liable to the
tenant in the amount of $4,972.50 due to habitability defects on the premises.
On appeal, the landlords claim that: they should not be liable for problems
that existed prior to their purchase of the property; they never received
letters from the tenant regarding defects on the premises; the tenant has
been uncooperative in providing access to the premises and has failed to move
her belongings so that the ceiling could be painted; and the light over the
mantle did not need repair as it was not broken.
After discussion, it was the consensus of the Board to continue consideration
of this appeal to the June 29th Board meeting.
E. 331 Waller #3 T001-84R
The tenants petition alleging decreased housing services was dismissed
due to his failure to appear at the properly noticed hearing. On appeal, the
tenant claims to have an unsecured mail box, and attaches a Declaration of
Non-Receipt of Notice of Hearing.
MSC: To accept the appeal and remand the case for a new hearing.
(Murphy/Mosser: 3-0)
F. 242 Turk St. #314 T001-87R
The tenants petition alleging unlawful increases in rent was denied
because the tenant failed to meet his burden of proof. On appeal, the tenant
asserts that he did not move into the unit at the earliest date assumed by
the hearing officer; and that he did not pay the original rental amount stated
in the decision but, rather, received free rent from the Salvation Army as
compensation for services that he provided.
MSC: To deny the appeal. (Mosser/Murphy: 3-0)
G. 6678 Third St. #C T001-89R
The tenants appeal of a decision granting a comparables increase
based on the Past Rent History of a Proposition I Affected Unit was granted,
and the case was remanded on the issue of the tenants rent history,
specifically, whether the tenants base rent included a charge for a
parking space. The hearing officer found that the carport on the premises
was an additional housing service provided after the inception of the tenancy,
for which the landlord was entitled to charge additional rent, and the $30.00
rent increase was therefore lawful. The tenant again appeals, claiming that
the prior owner knew that he was using the carport, charged no additional
rent and, therefore, use of the carport was a housing service included in
his base rent
MSC: To deny the appeal. (Mosser/Murphy: 3-0)
H. 801 - 25th Ave. #19 T001-67R
The tenants petition alleging an unlawful rent increase was granted
because the hearing officer found that there was a continuing, rather than
new, tenancy. On appeal, the landlord claimed that there was no basis for
finding that the petitioner had established a tenancy pursuant to Rules and
Regulations Section 6.14. The landlords appeal was accepted and the
case was remanded for further hearing on this issue. The Decision on Remand
overturns the original decision, finding that the landlord and resident manager
never approved the subtenancy; and, while the resident manager had some contact
with the petitioner, he was not aware that she was residing at the premises.
The rent increase from $712.50 to $950.00 was therefore found to be lawful.
The tenant appeals the remand decision, asserting that the resident manager
and landlord lied at the remand hearing, and asking for another hearing in
order to present new information.
MSC: To deny the appeal. (Mosser/Murphy: 3-0)
I. 2655 Pine St. T001-65A
The landlords petition for rent increases based on increased operating
expenses was granted, in part. The majority of the landlords claimed
increased expenses, in the repair category, were disallowed because the hearing
officer found that the disproportionate number of repairs performed in Year
Two as opposed to Year One created exaggerated results. Additionally, rent
overpayments in the amount of $1,465.80 were determined to be owing to the
tenants in unit #2, who moved to another unit in the building at a higher
rent, which should have changed their anniversary date. The landlord appeals
the decision on the grounds that: his due process rights were violated by
the determination of rent overpayments having been made without a hearing
on the issue; that the move to another unit was at the tenants initiative
and there was an agreement between the parties that their anniversary date
in the other unit would be retained; that the necessity for repairs during
the Year Two time period was not within his control; there are arithmetic
errors in the decision; the hearing officer and Rent Board are biased against
landlords; and his petition was not processed in a timely manner.
MSC: To accept the appeal and remand the case for a hearing
only on the rent history of the tenants in unit #2; the decision
is final as to all other issues. (Mosser/Murphy: 3-0)
V. Communications
In addition to correspondence concerning cases on the calendar, the Commissioners
received the following communications:
A. A Memorandum from Senior Hearing Officer Sandy Gartzman regarding
proposed amendments to Ordinance Section 37.9(a)(13) ("Ellis").
B. Judge David Garcias Order Granting Writ of Mandate in the
case of John Hickey Brokerage v. City and County of San Francisco (Superior
Court Case No. 303023) and Order for Preliminary Injunction in Cynar v.
City and County of San Francisco (Superior Court Case No. 303014).
C. Several newspaper articles concerning the rulings in the above-cited
cases.
VI. Directors Report
Executive Director Grubb reported that the departmental budget had its
first hearing before the Finance Committee of the Board of Supervisors today.
Budget Analyst Harvey Rose is recommending that half of the new positions
requested by the department be deleted. The public will have an opportunity
to comment at a hearing to be held on Saturday, June 19th.
VII. Old Business
A. Ellis Amendments
The Commissioners discussed a recommendation from Deputy City Attorney
Marie Blits that the package of suggested amendments to conform the Ordinance
to the Ellis Act being forwarded from the Rent Board to the Board of Supervisors
be further amended as follows below:
(13) The landlord, who does not have cause to evict under
any other provision of this Section 37.9(a), wishes to withdraw
from rent or lease all rental units within any detached physical structure
and, in addition, in the case of any detached physical structure containing
three or fewer rental units, any other rental units on the same lot, and
complies in full with Section 37.9A with respect to each such unit; provided,
however, that a unit classified as a residential unit under Chapter 41 of
this Code which is vacated under this Section 37.9(a)(13) may not be put
to any use other than that of a residential hotel unit without compliance
with the provisions of Section 41.9 of this Code; or
Since the Ellis Act does not require an owner to utilize other possible
grounds for eviction before filing an eviction under the Ellis Act, the Courts
are not requiring an owner to exhaust other grounds before proceeding under
Ellis. Therefore, the Board voted as follows:
MSC: To adopt the additional proposed amendment in the Boards
recommended package of Ellis Amendments to go before the Board of
Supervisors. (Murphy/Mosser: 4-0)
VIII. Calendar Items
June 22, 1999 - NO MEETING
June 29, 1999
2 appeal considerations (cont. from 6/15/99)
6:00 Public Hearing: Proposed Repeal of Rules Section 12.18 (Ellis)
Old Business:
A. Interest Rate When Capital Improvement Work is Financed With
a Variable Rate Mortgage
B. Proposed Amendments to Rules and Regs. Section 6.15
C. Translation Services
D. Minute Order Program
New Business: Commissioner Protocols
July 6, 1999
8 appeal considerations
IX. Adjournment
Vice-President Marshall adjourned the meeting at 7:00 p.m.