January 07,2003MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, January 7, 2003 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 6:15 p.m.
II. Roll Call
Commissioners Present: Aung; Gruber; Marshall; Murphy; Wasserman.
Commissioners not Present: Becker; Lightner; Mosser.
Staff Present: Grubb; Wolf.
Commissioner Justman appeared on the record at 6:25 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of December 17, 2002.
(Gruber/Murphy: 4-0)
IV. Remarks from the Public
Robert Pender, Vice-President of the Parkmerced Residents' Organization (PRO), told the Board that management has divided Parkmerced into four divisions, and changed where tenants are supposed to pay their rent. Mr. Pender is concerned because management has given 3-Day notices in the past. He wonders if this is in retaliation for Parkmerced tenants voting against Proposition R on the November ballot.
V. Consideration of Appeals
A. 1830 Clay St. #103 AT020526
The tenant's appeal was filed one day late because the tenant did not understand the difference between business and calendar days, and Veteran's Day was a holiday.
MSC: To find good cause for the late filing of the appeal. (Murphy/Gruber: 4-0)
The landlords' petition for rent increases based on increased operating expenses to 21 units 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. (Marshall/Murphy: 4-0)
B. 503 Font Blvd. AT020523
The landlord's petition for rent increases for 2,702 of 3,456 units based on increased operating expenses was granted, resulting in 7% base rent increases for the majority of the tenants. The tenant in unit 503 Font Blvd. 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. (Murphy/Marshall: 3-1; Gruber dissenting)
C. 707 Gonzalez Dr. AT020524
The landlord's petition for rent increases for 2,702 of 3,456 units based on increased operating expenses was granted, resulting in 7% base rent increases for the majority of the tenants. The tenant at 707 Gonzalez Drive appeals the decision on the grounds of financial hardship.
MSF: To accept the appeal and remand the case for a hearing on the tenant's claim of financial hardship. (Marshall/Justman: 2-2; Gruber, Murphy dissenting)
Consideration of this appeal was continued to the meeting on February 4th, when another voting Tenant Commissioner will be present.
D. 581 - 14th Ave. #2 AL020527
The landlord's appeal was filed over two years late because the landlord's son, who is pursuing the appeal, was only recently provided with a copy of the decision, and he was not involved with the business aspects of managing the property at the time the decision was issued.
MSC: To find no good cause for the late filing of the appeal; the decision is therefore final. (Marshall/Murphy: 3-1; Gruber dissenting)
The tenant's petition alleging decreased housing services because of habitability defects on the premises was granted, in part, and the landlord was found liable to the tenant in the amount of $6,980.00. The landlord appeals only the portion of the decision granting the tenant a rent reduction in the amount of $125.00 per month due to loss of use of the garage, asserting that: the tenant did not prove he was entitled to park in the garage because he had no written agreement so stating; the prior landlord provided no information regarding the tenant's use of the garage; the tenant failed to prove that he was paying $50.00 per month for parking; if the tenant was paying $50.00 per month for parking, then $125.00 per month should not have been granted; his father was 89 years old at the time of the hearing, and did not effectively represent himself; and the tenant failed to provide access in order for the repairs to be effectuated.
E. 2229 Francisco St. AT020251
The tenant's petition alleging a decrease in housing services due to the loss of closet space was denied because the Administrative Law Judge found that the loss was not substantial, as the tenant's belongings were moved to another closet in the unit. On appeal, the tenant claims that: the decision is inaccurate and incomplete; there was inadequate time for the hearing; and he has suffered a substantial reduction in housing services because the closet he now uses is smaller and cramped.
MSC: To deny the appeal. (Gruber/Murphy: 4-0)
F. 1844 Mason St. AL020522
The landlord filed a petition seeking a rent increase in the amount of $100 per month, claiming that the presence of a cat on the premises was an additional housing service added after the commencement of the tenancy. The petition was denied, because the Administrative Law Judge found that the landlord had allowed the tenants to move into the unit with two cats. Additionally, the landlord had waived the "No Pets" clause in the lease by having known about the cats throughout the tenancy. On appeal, the landlord argues that: if the landlord had given them permission to have pets, the tenants would have had the lease amended to reflect that understanding; the landlord's now deceased husband was too ill to have met with the tenants prior to the commencement of their tenancy; the landlord's son was often at the subject premises, and rarely saw the tenants' cats; the "No Pets" clause in the lease was not waived, because the landlord no longer saw the tenants' cats after having issued warnings to the tenants; and the tenants' credibility should be impeached by their conduct in other cases before the Board.
MSC: To deny the appeal. (Marshall/Murphy: 4-0)
G. 1290 Grove St. #105 AL020525
The tenant's petition alleging a substantial decrease in housing services due to the landlord's failure to consent to a replacement roommate was granted, and the landlord was found liable to the tenant in the amount of $6,570.20. On appeal, the landlord asserts that: the tenant was not attempting to replace a roommate but, rather, intended to sublet the whole unit; it is improper to grant a rent reduction consisting of 95% of the rent, since 50% of the living space should be imputed to the tenant; the Administrative Law Judge has improperly awarded prospective damages; the tenant failed to attempt to mitigate his damages; a person who colludes with a tenant to violate a material provision of the lease can be rejected for cause; and the tenants in this case had "unclean hands."
MSC: To recuse Commissioner Murphy from consideration of this appeal. (Murphy/Justman: 4-0)
MSC: To accept the appeal and remand the case to the Administrative Law Judge with instructions to grant a 50% rent reduction instead of a 95% rent reduction due to the landlord's failure to consent to the replacement roommate.
(Gruber/Marshall: 3-0)
H. 334 Second Ave. AT020528
The landlords filed a petition seeking a determination of the initial rent for a non-comparable replacement unit. The base rent for the replacement unit was set at $970.00, and it was determined that the landlords had no banked rent increases. Upon appeal by the landlords, the Board remanded the case to the Administrative Law Judge to find that, under the facts of this case, there is a continuing tenancy and the landlord does not lose the right to impose banked rent increases prospectively. The tenant appeals the remand decision, arguing that a Stipulation for Entry of Judgment and General Release executed by the parties should bar the imposition of banked increases.
MSC: To deny the appeal. (Murphy/Gruber: 4-0)
I. 5 Isadora Duncan Lane AL020520
The tenant's petition alleging decreased housing services and an unlawful rent increase was denied. However, the premises were found to be subject to the jurisdiction of the Rent Ordinance and the base rent for the unit was determined to be $400.00 per month. The landlord appeals the portion of the decision determining the rent to be $400.00, maintaining that: the tenant failed to prove that the rent was $260.00 and, therefore, the rent should remain at $600.00 per month; the landlords did not commence eviction proceedings against the tenant for valid reasons that did not mean they acceded to the tenant's payment of less than $600.00 per month; and the tenant failed to refute that the rent was $600.00 per month.
MSC: To deny the appeal. (Justman/Marshall: 4-0)
IV. Remarks from the Public (cont.)
B. Hamzy Shirry, the tenant at 5 Isadora Duncan Lane (AL020520), told the Commissioners that the rent has been paid over the past year. He said that the new landlord turned a residential hotel into a youth hostel. Mr. Shirry alleged that he has been deprived of heat, and said that he was "insulted and offended." The tenant stated that he is not fighting for himself, but to "uphold the law."
VI. Appeal Hearing
1670 Clay St. AT020245
(acpt. 11/19/02)
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 maintained that she meets all of the indices of residency contained in Rules Section 1.21. At their meeting on November 19, 2002, the Board accepted the appeal for Board hearing on the issue of the tenant's intent to return to the unit. The Commissioners specified that the parties would have ten minutes for direct examination; ten minutes for cross-examination; and five minutes for closing arguments
The appeal hearing began at 7:07 p.m. and concluded at 8:07. In attendance were the tenant, Gloria Stella Botelle, with her attorney, Paul Clifford; the landlord, Garret Tom, appeared with his attorney, Karen Uchiyama. Testimony at the hearing focused on the transfer of the tenant's property in Florida, the reasons for the tenant's prolonged stay in Florida, and evidence of an intent to return to her unit in San Francisco. At the conclusion of the hearing and after discussion of the testimony and evidence, the Board voted as follows:
MSC: To grant the tenant's appeal and vacate the Decision on Remand to find that she is a Tenant in Occupancy pursuant to Rules and Regulations Section 1.21.
VII. Communications
In addition to correspondence concerning cases on the calendar, the Commissioners received a Letter of Resignation from Commissioner Aung, who is moving to New York, and whose last Board meeting will be on January 21st.
VIII. Director's Report
Executive Director Grubb informed the Board that the interest rate on security deposits commencing March 1, 2003 would be 1.2%. The Interest on Deposits Ordinance will possibly be amended to require only one interest calculation per year, to eliminate the need for pro-rating.
IX. Old Business
Proposed Amendments to Rules and Regulations Section 1.18
The Board continued their discussion of the problem of evictions pursuant to Rules and Regulations Section 1.18. As currently written, this Section permits evictions for substantial rehabilitation to occur before any hearing is held or the actual costs of the work are certified. Tenants can therefore be evicted and not realize they have the right to reoccupy the unit, although the subsequent petition for exemption may be denied due to the failure of the owner to meet the expenditure requirements. The proposed amendment, authored by Commissioner Aung, is intended to provide guidance to landlords and tenants by creating a rebuttable presumption that the costs on the approved construction permits are the estimated cost of the proposed work. The proposal also requires that a landlord who recovers a unit or units pursuant to Section 37.9(a)(12) must file a petition for exemption within one year of recovery of the unit or be deemed to have wrongfully recovered possession in violation of Section 37.9(f).
MSC: To vote the proposed amendments to Rules and Regulations Section 1.18 out for Public Hearing. (Marshall/Murphy: 4-0)
IV. Remarks from the Public (cont.)
C. The tenant involved in the appeal hearing concerning 1670 Clay St. (AT020245), Gloria Stella Botelle, thanked the Board for ruling in her favor. She told the Commissioners that she has been subjected to harassment, and that what she said was "true."
D. Robert Pender asked that Agenda items be "put in English," since he did not know what was meant by "Proposed Amendments to Rules and Regulations Section 1.18."
X. Calendar Items
January 14, 2003 - NO MEETING
January 21, 2003
11 appeal considerations (1 rescheduled from 12/3/02; 1 cont. from 12/17/02)
XI. Adjournment
President Wasserman adjourned the meeting at 8:48 p.m.