January 4, 2005MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, January 4, 2005 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 6:10 p.m.
II. Roll Call
Commissioners Present: Becker; Gruber; Hurley; Marshall; Mosbrucker; Mosser.
Commissioners not Present: Henderson; Wasserman.
Staff Present: Lee; Wolf.
Commissioner Murphy arrived at the meeting at 6:12 p.m.; Commissioner Justman appeared on the record at 6:15 p.m. and went off the record at 7:00 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of December 8, 2004.
MSC: To approve the Minutes of December 14, 2004.
IV. Remarks from the Public
A. Landlord Sue Cauthen of 1321 Montgomery #A (AL040120) expressed her belief that the amount granted the tenant is excessive. Ms. Cauthen said that she personally cleaned the mold from the unit 8 months before the tenant filed the petition. She admitted to not fixing the leak in the unit as promptly, because she is "low-income" and the repair was expensive. Ms. Cauthen feels that $200 per month is unwarranted because it didn't rain every month, and that a total reduction in the amount of $400 would be "more fair."
B. Robert Pender, Vice-President of the Parkmerced Residents' Organization (PRO), told the Board that PRO is the oldest continuous tenants' organization in San Francisco, having been founded in 1974. Mr. Pender informed the Board that the Metropolitan Life Insurance Co. was the first landlord at Parkmerced, and that the GI bill provided money for veterans' housing. Mr. Pender moved in to Parkmerced in 1969. The current landlord filed their first petition in January of 2000.
V. Consideration of Appeals
A. 1321 Montgomery #A AL040120
The landlord's appeal was filed twenty-five days late because the landlord had been hospitalized twice during the previous five-week period.
The tenant's petition alleging decreased housing services due to a leaking window and moldy walls was granted and the landlord was found liable to the tenant in the amount of $1,400.00. The landlord failed to appear at the original hearing due to a calendaring mistake. Her appeal was accepted and remanded for another hearing. The Decision on Remand upheld the original decision. The landlord appeals the remand decision, arguing that: the tenants failed to notify the landlord that mold had recurred after amelioration efforts in February, 2003; photographs were presented which showed that there wasn't mold in the unit in October, 2003; a DBI Notice of Violation issued in August of 2003 did not cite the landlord for the presence of mold; the condition did not rise to the level of a substantial decrease in housing services; there was no impact on the tenant between April and August 2003; the amount granted is excessive; and the tenant had a retaliatory motive.
B. 28 Fuente Ave. AT040135
The landlord's petition for certification of the costs of a repiping/irrigation project was granted, resulting in a monthly passthrough in the amount of $63.70 to the tenants in 48 of 66 units. The tenant at 28 Fuente Ave. appeals the decision, asserting that: the cost of the property should have reflected the cost of improvements that needed to be made; and tenants should not have to pay for the previous landlord's deferred maintenance. This appeal was improperly thought to have been mooted pursuant to the Board's motion on the joint merit appeal of six other tenants at the property at the November 23, 2004 meeting.
C. 101 Broderick #207 AL040156
The landlord's appeal was filed two days late without a good cause reason being provided for the late filing.
The landlord's petition for certification of capital improvement costs was granted, in part. One tenant appealed the decision on the grounds of financial hardship. The tenant's financial hardship claim was granted, and sufficient hardship was found to warrant deferral of the passthrough for a period of one year. The landlord appeals the remand decision, claiming that the tenant did not account for income from tips; the tenant has no reason not to be gainfully employed; and the tenant has always asked to pay additional rent for a garage.
D. 235 O'Farrell #311 AL040153
The tenant's petition alleging decreased housing services was granted, in part. The tenant's allegation that the size of his new room constituted a reduction in services was, however, denied. This issue was accepted on appeal and remanded: in the Decision on Remand, the Administrative Law Judge found that the reduced size of the new room warranted a rent reduction in the amount of $30.00 per month for eighty-four months. The landlord appeals the remand decision, arguing that: the Statute of Limitations on such claims is four years; the equitable doctrine of laches should bar the claim, since the tenant unreasonably delayed in bringing it; and no extraordinary circumstances exist to warrant the tenant's recovery for more than one year prior to the filing of the petition.
MSC: To recuse Commissioner Mosbrucker from consideration of this appeal. (Becker/Gruber: 5-0)
MSC: To accept the appeal and remand the case to the Administrative Law Judge on the record to change the commencement date for the rent reduction for the smaller room size to March 5, 2002. (Marshall/Becker: 5-0)
E. 2124 Hyde St. #3 AT040152
The landlord's petition for certification of the costs of the installation of electric heaters in six units was granted. The tenants in one unit appeal, asserting that: they should not have to pay for the cost of a 2000 watt third heater in their unit, since it was unnecessary.
F. 1384 - 8th Ave. AT040154
The tenant filed a petition alleging decreased housing services arising out of the landlord's alleged refusal to allow the tenant to have replacement roommates. The petition was denied because the Administrative Law Judge found that a good faith but improper rent increase on the part of the landlord did not constitute refusal for replacement roommates under Rules Section 6.15B. The tenant appeals, asserting that: there are factual errors in the decision; request for a replacement roommate was made by the tenant in accordance with the requirements of Rules Section 6.15B; and her inability to fill one of the vacant rooms was the direct result of the landlord's refusal to rescind the unlawful rent increase.
G. 901 Balboa St. AT040155
The tenant's petition alleging decreased housing services due to the division of utility bills between units in the building was denied because the Administrative Law Judge found the terms of the lease controlling. The tenant appeals, claiming that the decision is unfair because each unit should have its own separate electric and gas meter.
VI. Communications
The Commissioners received a new Roster of Commissioners, a copy of the recently amended Hotel Visitor Policy and copies of e-mails regarding recently enacted legislation passed by the Board of Supervisors imposing restrictions on condominium conversion in two-unit buildings where evictions of senior or disabled tenants have occurred and pending amendments increasing Ellis relocation payments.
VII. Director's Report
Acting Executive Director Wolf informed the Commissioners that amendments introduced by Supervisor Peskin regarding Ellis relocation payments were passed by the Board of Supervisors this afternoon on first reading. The amendments implement state law changes that prohibit the withdrawal of residential hotels in San Francisco and allow relocation payments to be made to all tenants, not just low-income, elderly or disabled tenants.
VIII. New Business
The Commissioners discussed a Memorandum from Senior Administrative Law Judge Tim Lee regarding an amendment to the Ordinance sponsored by Supervisor Gonzales, which took effect January 2nd. The amendment allows specified family members and/or domestic partners of a tenant to occupy the rental unit notwithstanding a lease provision limiting the number of occupants if the landlord has unreasonably denied the tenant's request to add such occupant. In passing the amendments, the Board of Supervisors expressed their intent that the consent procedures for subletting contained in Rules Sections 6.15A and B substantially apply to this legislation, modified to accommodate the family situations addressed therein. Mr. Lee drafted proposed new Rules Section 6.15D, which tracks the consent procedures of Section 6.15B(b)(1) with the following changes:
1. Proposed Section 6.15D(c)(ii) allows the landlord to obtain sufficient
information to confirm the family relationship of the additional occupant
to the tenant, and also provides that credit or income information may be
requested only if the additional occupant will be legally obligated to pay
rent to the landlord;
2. Proposed Section 6.15D(c)(iv) provides that creditworthiness may be the
basis for refusal of the tenant's request for the additional occupant only
if the additional occupant will be legally obligated to pay rent to the landlord;
3. Proposed Section 6.15D(c)(v) provides that the additional occupant must
agree in writing to be bound by the current rental agreement between the tenant
and the landlord, but deletes the requirement that the additional occupant
must sign the rental agreement in order to avoid any possible inference of
the creation of a direct landlord-tenant relationship with the additional
occupant; and
4. Proposed Section 6.15D(c)(vi) provides that the total number of occupants
cannot exceed two persons per studio rental unit, three per one-bedroom, four
per two-bedroom, six per three-bedroom, or eight per four-bedroom.
5. The Leno requirements in Section 6.15B(b)(vi) and (vii), i.e. that the
tenant is requesting a replacement of a departing tenant and the request is
no more than one time per existing tenant per year, have been deleted to accommodate
the family situations involved in the new legislation.
Commissioner Marshall expressed her belief that the consent procedures should
not apply to a minor child, which was the consensus opinion of the Board. She
will work on drafting some additional language in order to make this explicit.
Discussion of this issue will continue at the February 1st meeting.
IX. Calendar Items
January 11, 18 & 25, 2005 - NO MEETINGS
February 1, 2005
6 appeal considerations (1 cont. from 12/14/04; 1 rescheduled from 1/18/05)
Old Business: Ordinance §37.9(a)(2)(B) Regarding Additional Occupancy
of Family Members
New Business: Proposed Amendments Regarding Exemption Based on Substantial
Rehabilitation
X. Adjournment