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November 19, 2002

November 19, 2002

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

Tuesday, November 19, 2002 at 6:30 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level

I. Call to Order

President Wasserman called the meeting to order at 6:32 p.m.

II. Roll Call

Commissioners Present: Aung; Becker; Gruber; Hobson; Justman; Lightner; Murphy; Wasserman.
Commissioners not Present: Marshall; Mosser.
Staff Present: Gartzman; Grubb; Wolf.

III. Approval of the Minutes

President Wasserman announced that the Minutes of November 12, 2002 were not yet available for approval.

IV. Remarks from the Public

A. Robert Pender of the Parkmerced Residents" Organization (PRO) told the Board that they were not following the Agenda, which provides for approval of the Minutes, because the Minutes of the meeting of November 12th were not yet ready for approval. Mr. Pender requested a copy as soon as possible and wanted his objection noted for the record.

B. Elton Blum, the landlord"s attorney in the case concerning 1177 California St. #1414 (AL020247), reminded the Commissioners that the tenants have filed no opposition to the appeal.

C. Craig Clevenger asked if President Wasserman was related to Attorney David Wasserman, and was informed that she is not.

D. Paul Clifford, attorney for the tenant at 1670 Clay St. (AT020245), told the Board that the tenant has resided in the unit for twenty-three years, but that the decision was based on a short period of time when she was residing in Florida. Mr. Clifford said that the Rent Ordinance was enacted in order to protect such tenants.

E. Tenant Jonathan Marcus of 4831 California St. (AL020251) told the Board that his landlord would "say anything to confuse the issue," and asked that the Board go through Mr. Marcus" response to the landlord"s appeal carefully.

F. Tenant Robley Passalacqua, representative for many of the tenants who filed appeals of the decisions certifying the costs of new roofs at Parkmerced, told the Board that the Ordinance dictates that "properties" be considered when considering capital improvement petitions, whereas the word "building" is used for operating and maintenance expenses. Mr. Passalacqua said that the words "mean what they say," and are not interchangeable. He believes that the new roofs at Parkmerced meet none of the criteria necessary to be considered capital improvements.

V. Consideration of Appeals

A. 747 Ellis St. #7 & #9 AT020249 & -50

The tenant in unit #9"s appeal was filed one day late because the tenant thought he had fifteen days from the date of the postmark for the filing of the appeal.

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

The landlord"s petition for certification of capital improvement costs to 8 out of 14 units was granted. Two tenants appeal the decision on the grounds of financial hardship.

MSC: To accept the appeal of the tenant in unit #7 and schedule a hearing on the tenant"s claim of financial hardship.

(Becker/Aung: 5-0)

MSC: To accept the appeal of the tenant in unit #9 and schedule a hearing on the tenant"s claim of financial hardship.

(Becker/Aung: 5-0)

B. 20 Fuente Ave. AT020240

(rescheduled from 10/29/02)

The landlord"s petition for certification of the costs of a new roof over two units was granted, resulting in a monthly passthrough in the amount of $20.29 to the tenant in unit 20 Fuente Ave. only. That tenant appeals on the grounds that the complex should be treated as one property, and the work does not meet the definition of "capital improvement" because: it does not materially add to the value of the property; it does not appreciably prolong the property"s useful life, as roof replacement is more in the nature of repair; it does not adapt the building to new uses; and there is no evidence that the roof replacements are being amortized or depreciated over their useful lives.

MSC: To deny the appeal. (Gruber/Lightner: 3-2; Aung, Becker dissenting)

C. 454 Arballo Dr. AT020239

(rescheduled from 10/29/02)

The landlord"s petition for certification of the costs of a new roof over two units was granted, resulting in a monthly passthrough in the amount of $17.62 to the tenant in unit 454 Arballo only. That tenant is represented by the same representative as the tenant in unit 20 Fuente Ave., above, and puts forth the same arguments on appeal.

MSC: To deny the appeal. (Gruber/Lightner: 3-2; Aung, Becker dissenting)

D. 608 Gonzalez Dr. AT020236

(rescheduled from 10/29/02)

The landlord"s petition for certification of the costs of a new roof over four units was granted, resulting in a monthly passthrough in the amount of $15.11. The tenant in one unit is represented by the same representative as the tenant in unit 20 Fuente Ave., above, and puts forth the same arguments on appeal.

MSC: To deny the appeal. (Gruber/Lightner: 3-2; Aung, Becker dissenting)

E. 116 & 118 Grijalva Dr. AT020237 & -38

(rescheduled from 10/29/02)

The landlord"s petition for certification of the costs of a new roof over two units was granted, resulting in a monthly passthrough in the amount of $28.72. The tenants in both units appeal. They are represented by the same representative as the tenant in unit 20 Fuente Ave., above, and put forth the same arguments on appeal.

MSC: To deny the appeals. (Gruber/Lightner: 3-2; Aung, Becker dissenting)

F. 26 & 30 Garces Dr. AT020258 & -59

The landlord"s petition for certification of the costs of a new roof over four units was granted, resulting in a monthly passthrough in the amount of $15.36. The tenants in two units appeal. They are represented by the same representative as the tenant in unit 20 Fuente Ave., above, and put forth the same arguments on appeal.

MSC: To deny the appeals. (Gruber/Lightner: 3-2; Aung, Becker dissenting)

G. 101 Bucareli Dr. AT020257

The landlord"s petition for certification of the costs of a new roof over one unit was granted, resulting in a monthly passthrough in the amount of $39.47. The tenant is represented by the same representative as the tenant in unit 20 Fuente Ave., above, and puts forth the same arguments on appeal.

MSC: To deny the appeal. (Gruber/Lightner: 3-2; Aung, Becker dissenting)

H. 120 & 122 Cambon Dr. AT020222 & -56

The landlord"s petition for certification of the costs of a new porch roof over two units was granted, resulting in a monthly passthrough in the amount of $6.47. The tenants in both units appeal. They are represented by the same representative as the tenant in unit 20 Fuente Ave., above, and put forth the same arguments on appeal.

MSC: To deny the appeals. (Gruber/Lightner: 3-2; Aung, Becker dissenting)

I. 21 Fuente Ave. AT020254

The landlord"s petition for certification of the costs of a new roof over five units was granted, resulting in a monthly passthrough in the amount of $17.84. The tenant in one unit is represented by the same representative as the tenant in unit 20 Fuente Ave., above, and puts forth the same arguments on appeal.

MSC: To deny the appeal. (Gruber/Lightner: 3-2; Aung, Becker dissenting)

J. 328 Garces Dr. AT020253

The landlord"s petition for certification of the costs of a new roof over two units was granted, resulting in a monthly passthrough in the amount of $21.85. The tenant in one unit is represented by the same representative as the tenant in unit 20 Fuente Ave., above, and puts forth the same arguments on appeal. The tenant additionally points out that the Administrative Law Judge inadvertently omitted the paragraph certifying the cost of the new roof from the decision.

After discussion, it was the consensus of the Board to continue this case in order for staff to contact the tenant and find out if she wishes to augment her substantive appeal with a hardship claim.

K. 1670 Clay St. AT020245

The landlord filed a petition seeking a determination as to whether the unit constituted the tenant"s principal place of residence. The Administrative Law Judge found that the tenant was not a "tenant in occupancy" pursuant to Rules and Regulations Section 1.21 because she had resided in a unit in Florida which she owned with her mother for over one year, and that was the place to which she returned after traveling or job-related training. The tenant"s appeal was accepted and the case was remanded to the Administrative Law Judge to examine whether the unit constituted the tenant"s principal place of residence between the date of enactment of Rules and Regulations Section 1.21 and the date of filing of the petition, with instructions that behavior before the date of enactment of the regulation and up until the date of the hearing could be considered. In the Decision on Remand, the Administrative Law Judge upheld the original decision, finding that the tenant was not a "Tenant in Occupancy" at the time the petition was filed, although the tenant had returned to the San Francisco unit in response to the filing of the petition. On further appeal, the tenant maintains that: she meets all of the indices of residency contained in Rules Section 1.21; no evidence was presented that the Florida address, or any other address, constitutes her principal place of residence; she was effectuating repairs on the Florida unit in order to ready it for rental; the tenant has never sublet the unit; the evidence indicates that the tenant had intended to return to the San Francisco unit prior to the filing of the landlord"s petition; the tenant had no need to document in detail her comings and goings prior to the enactment of Rules Section 1.21; and Rules Section 1.21 exceeds the Rent Board"s authority and violates the Interstate Commerce Clause of the Constitution by interfering with the right to travel.

MSC: To accept the appeal for Board hearing on the issue of the tenant"s intent to return to the unit. The parties will have ten minutes for direct examination; ten minutes for cross-examination; and five minutes for closing arguments. (Becker/Aung: 5-0)

L. 3649 Market St. #201 AL020246

The tenant"s petition alleging decreased housing services due to the landlord"s failure to allow two replacement roommates was granted and the landlord was found liable to the tenant in the amount of $3,038.03. On appeal, the landlord asserts that: the tenant has not suffered a reduction in housing services because he has always been entitled to replace one roommate, and the open behavior of the parties has not established that the tenancy includes more than two people; the tenant failed to prove that the prior property manager approved any occupant other than the two signatories on the lease agreement; and certain findings in the decision are based on hearsay evidence.

After discussion, it was the consensus of the Board to continue this case in order to receive a Memorandum from the Administrative Law Judge addressing the question of whether consent was actually withheld for one replacement roommate.

M. 1177 California St. #1415 AL020247

The tenants" petition alleging decreased housing services in this condominium unit was granted, and the landlord was found liable to the tenants in the amount of $4,399.00. The landlord failed to appear at the properly noticed hearing. On appeal, the landlord attests to not having received the Notice of Hearing under penalty of perjury.

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

MSC: To accept the appeal and remand the case for a new hearing. (Lightner/Gruber: 4-0)

N. 102 Clifford Terrace AT020248

The tenant"s appeal was filed three days late because she picks up her mail on a weekly basis at a post office box, and a Rent Board staff member allegedly misinformed her regarding the filing deadline.

MSC: To find good cause for the late filing of the appeal.

(Becker/Aung: 5-0)

The landlord petitioned to establish a base rent for the unit, which was being occupied rent-free by his sister, the tenant. The petition was granted, and the Administrative Law Judge set the rent at $1,092.00 per month. The tenant appeals, arguing that no rent should be charged for the unit because: it is infested with mold, mildew, dry rot, rodents, and experiences flooding and seepage every winter, which has damaged the tenant"s personal possessions and destroyed the carpeting; it is located next to an underground transformer which may be emitting dangerous EMF"s; the iron gate that provides egress is dangerous; there are leaks into the garage; there was an oral agreement that the tenant be allowed to live in the unit as long as she wanted rent-free, the tenant was not prepared for the hearing, because she thought her attorney would be requesting a postponement; and she has been subjected to threats and harassment from her brother, the landlord.

MSC: To deny the appeal without prejudice to the tenant"s filing a petition alleging decreased housing services, if warranted. (Lightner/Gruber: 5-0)

O. 4831 California St. AL020251

The tenant"s petition alleging unlawful rent increases was granted, and the landlord was found liable to the tenant in the amount of $7,285.98. On appeal, the landlord argues that: the originally agreed-upon rent for three occupants was $1800.00 and not $1,650.00; the amount of the overcharge was incorrectly calculated; and the amounts owing to the tenant"s prior roommates will never be collected by them, which results in a windfall to the tenant.

After discussion, it was the consensus of the Board that recoupment of the entire amount by the Master Tenant would be unfair, as there were subtenants on the premises who paid a portion of the unlawful amounts. Therefore, this case was continued in order for the landlord and Master Tenant to undertake a search and attempt to locate any subtenants who were residing on the premises at the time the overcharges were paid. Staff will send a memo to the parties and explain that they should submit the names and addresses of the prior subtenants to the Board for continued consideration of this appeal at a future meeting.

P. 2416 Geary Blvd. #4 AT020252

The landlord"s petition for certification of capital improvement costs to the tenants in one of five units was granted. The tenants appeal the decision on the grounds that: the building façade and hallway improvements were cosmetic enhancements of a luxury nature that were done in order to receive higher rents from four newly renovated apartments in the building; and the deferred maintenance defense should apply to new as well as previous owners of the building

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

Q. 1601 Lombard St. AL020218

(cont. from 10/29/02)

The landlord"s petition seeking a determination as to whether there are any "Tenants in Occupancy" at the subject unit was denied, because the Administrative Law Judge found that two of the current occupants reside at the unit as their principal place of residence. On appeal, the landlord argues that: the tenant took actions after the petition was filed to establish occupancy in the unit but, at the time the petition was filed, she was not a "Tenant in Occupancy"; the tenant does not qualify for protection under the Ordinance because she has been residing out of state for three years; by having sublet the unit, the tenant became a landlord, and had no right to occupy the unit; the decision is beyond the authority of the Rent Board, because it expands the definition of "Tenant in Occupancy"; and the tenant in this case has unclean hands, which should have factored in to the decision. After discussion at the meeting on October 15th, it was the consensus of the Board to continue this case in order for staff to contact the tenant and find out whether she has moved back in to the subject unit. The tenant furnished evidence of her reoccupancy of the unit. The case was further continued from the meeting on October 29th due to the absence of Commissioner Justman, who had begun the consideration of this case on October 15th.

MSC: To deny the appeal. (Becker/Aung: 3-2; Gruber, Lightner dissenting)

VI. Communications

The Board received correspondence concerning cases on the calendar.

IV. Remarks from the Public (cont.)

G. Tenant Jonathan Marcus of 4831 California told the Commissioners that all of the rent checks provided to the landlord came from him; that it would be difficult to split up the amount between all the prior roommates; that the landlord won"t have any incentive to find the old roommates; and he believes the money is legally his.

VII. Calendar Items

November 26, 2002 - NO MEETING

December 3, 2002

Executive Session: Blaine Family Trust v. Rent Board (Perlstadt)

6:30 Public Hearing: Proposed Amendments to Rules Section 1.21

11 appeal considerations

Old Business: Proposed Amendments to Rules Section 1.18

VIII. Adjournment

President Wasserman adjourned the meeting at 8:50 p.m.

Last updated: 10/9/2009 11:26:15 AM