February 15, 2005

 

 

MINUTES OF THE REGULAR MEETING OF

THE SAN FRANCISCO RESIDENTIAL RENT

STABILIZATION & ARBITRATION BOARD,

 

Tuesday, February 15, 2005 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 6:18 p.m.

 

II.     Roll Call

 

 

III.     Approval of the Minutes

 

    MSC:    To approve the Minutes of February 1, 2005.

        (Becker/Gruber:  5-0)

 

IV.     Remarks from the Public

 

A member of the public asked whether the Board was going to discuss the “Gonzales” amendments to the Ordinance.

 

V.     Consideration of Appeals

 

A.  750 Guerrero #4 & #6            AT050005 & -10

 

The landlord’s petition for certification of capital improvement costs to the tenants in seven units was granted pursuant to a Minute Order.  The tenant in unit #4 appeals on the grounds of financial hardship.  The tenant in unit #6 also appeals on the grounds of hardship, claiming that disability prevented her from timely filing the election form for the 100% passthrough alternative.  

 

The Board continued consideration of the appeal of the tenant in unit #4 so that staff could pursue an allegation by the landlord that the tenant’s wife also resides in the unit.  If this is the case, she will need to provide a Tenant Hardship Application as well.

 

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

 

MSC: To accept the appeal of the tenant in unit #6 to find good cause for the late election of the 100% passthrough alternative and remand the case to the Administrative Law Judge on the record in order to phase in the certified capital improvement costs in accordance with Ordinance Section 37.7©(5)(B)(ii) and Rules and Regulations Section 7.12(c)(5)(B)(ii). (Becker/Justman: 5-0)

 

B.    1301 – 31st Ave.            AL050001

 

The landlord’s petition for a determination pursuant to Rules Section 1.21 was denied because the Administrative Law Judge found that the subject unit was the tenant’s principal place of residence.  On appeal, the landlord argues that:  the tenant’s IDs all list her Florida address and her utilities are billed there; the subject unit is furnished with the tenant’s possessions because she uses it as a secondary residence; the tenant’s absence is not reasonable or temporary, having lasted for 5-6 years; and the tenant is never at the subject unit, nor does she receive mail there.

 

MSC: To accept the appeal and remand the case to the Administrative Law Judge on the record to make a determination that the tenant is not a “Tenant in Occupancy” pursuant to Rules and Regulations Section 1.21.  (Gruber/Hurley:  3-2; Marshall, Becker dissenting)

 

C.    5538 Fulton St.            AL040163

 

The tenants’ petition alleging decreased housing services was granted, in part, and the landlords were found liable to the tenants in the amount of $3,245.00 due to habitability problems in the unit.  Additionally, rent overpayments in the amount of $688.84 were determined to be owing from the landlords to the tenants.  The landlords appeal the decision only as to the rent reduction granted for lack of heat, maintaining that:  the rent reduction was granted for a period of time which included the summer months, without any evidence that the tenants used the heat year-round; and the Decision grants compensatory damages, which is a judicial function.  

 

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

 

D.    26 John St., Apt. A            AL050002

 

The landlord’s petition for a determination pursuant to Rules Sections 1.21 and 6.14 and Costa-Hawkins was denied because the Administrative Law Judge found that the tenants are original tenants who are just temporarily staying with their adult son while one of the tenants recuperates from surgery.  The landlord appeals, maintaining that:  the landlord made a threshold showing that the unit is not the tenants’ principal place of residence, after which the burden of proof should have shifted to the tenants; the tenants are also co-owners of the building in which their son resides; and the decision was based on a hearsay statement by one of the tenants.

 

MSC: To deny the appeal.  (Marshall/Becker:  5-0)

 

 

E.    1000 Chesnut St. #9E            AL050004

 

The tenants’ petition alleging decreased housing services was granted, in part, and the landlords were found liable to the tenants in the amount of $70.00 due to the loss of use of the unit for one day due to the installation of new windows.  The landlords appeal, asserting that:  if the reduction in services was indeed substantial, the tenants would have taken the landlords up on their offer of accommodations; the tenants were not forced to leave their unit; the tenants’ real complaint was with work done on the shower in their unit; and the rent reduction granted should not have been for a full 24 hours but, rather, for the 8 hours in a day.  

MSC: To deny the appeal.  (Marshall/Becker:  4-1; Gruber dissenting)

 

VI.     Communications

 

    The Board received the following communications:

 

A.  A new roster of Commissioners.

 

B.  A copy of the proposed departmental budget submission with explanatory Memo from Acting Executive Director Wolf.

 

C.  Form 700 Statement of Economic Interests and Sunshine Ordinance Declaration.

 

D.  A letter from the Small Property Owners of San Francisco regarding the Gonzales amendments.

 

VII.     Director’s Report

 

Acting Executive Director Wolf informed the Board that their Statement of Economic Interests Forms and Sunshine Ordinance Declarations are due to the Ethics Commission on April 1, 2005.

 

VIII.     Old Business

 

A.    Ordinance Section 37.9(a)(2)(B) Regarding Additional Occupancy of Family Members

 

At their meeting on February 1, 2005, the Commissioners passed a motion to put out for Public Hearing proposed amendments to Rules and Regulations Sections 6.15A and B and proposed new Section 6.15D to conform the Rules and Regulations to newly enacted Ordinance Section 37.9(a)(2)(B).  This amendment to the Rent Ordinance, proposed by Supervisor Gonzales, allows for 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.  Proposed new Rules Section 6.15D outlines consent procedures modeled after the consent procedures for subletting contained in Rules Sections 6.15A and B, per the intent of the Board of Supervisors, modified to accommodate family situations.  

 

Commissioner Becker brought to the Board’s attention the fact that the Gonzales amendments are merely an eviction protection for tenants if a landlord unreasonably withholds consent.  Commissioner Becker believes that new Section 6.15D should also provide for a decrease in services remedy for tenants as contained in Rules Sections 6.15A and B and proposed the addition of new subsection 6.15D(e) to read as follows:

 

(e)  A landlord’s unreasonable refusal to consent to a tenant’s written request for the addition to the unit of a tenant’s child, parent, grandchild, grandparent, brother or sister, or the spouse or domestic partner (as defined in Administrative Code Sections 62.1 through 62.8) of such relatives, or as a result of the addition of the spouse or domestic partner of a tenant, subject to subsections 6.15Dc(ii), (iv), (v) and (vi), above, may constitute a decrease in housing services pursuant to Section 10.10 of these Regulations.

 

MSC: To add proposed new subsection 6.15D(e), along with certain minor technical amendments, to the proposed amendments being put out for Public Hearing in order to conform the Rules to newly enacted Ordinance Section 37.9(a)(2)(B).  (Becker/Marshall:  5-0)

 

The Board also discussed a letter from the Small Property Owners of San Francisco, making several suggestions as to possible amendments to the Rules and Regulations that these owners believe would more fairly implement the Gonzales legislation.  One of the suggestions in this letter was Rent Board mediation in cases where the owner and tenant failed to agree.  This led to a discussion of the possible Rent Board equivalent of a Declaratory Relief action, where a landlord or tenant could file a petition for a determination as to the reasonableness of a request or refusal.  This could protect tenants from the threat of eviction, while also protecting landlords from the possibility of a wrongful eviction action.  There were concerns voiced by the Tenant Commissioners that such a landlord petition could lead to delay in a tenant’s ability to obtain consent.  Commissioner Becker will work with Senior Administrative Law Judge Tim Lee and bring some proposed language back to the Board at the meeting on March 1st.

 

B.     Proposed Amendments to the Regulations Regarding Exemptions Based on Substantial Rehabilitation

 

Senior Administrative Law Judge Sandy Gartzman continued her discussion with the Board of problems regarding the procedures for obtaining exemption from the Ordinance for buildings that have undergone substantial rehabilitation as defined in Ordinance Section 37.2(s) and Rules Sections 1.18 and 8.12.  It has become apparent that some of the requirements contained in Rules Section 8.12 are impossible for a landlord to meet, and that subsections 8.12 (4), (5), (7) and (9) should be stricken from the Regulations.  Since the Department of Building Inspection no longer issues determinations of condemnation or determinations that the premises were ineligible for a permit of occupancy, nor do they perform inspections prior to commencement of rehab work, it is currently up to the ALJ’s to determine what is “essentially uninhabitable.”  At the Board’s request, the Administrative Law Judge staff will hear the sub rehab petitions currently in the pipeline, and formulate a proposal for possible amendments to §8.12 for the Commissioners’ consideration.

 

IX.     New Business

 

Departmental Budget

 

Acting Executive Director Wolf discussed the budget proposal for the fiscal year ’05-’06 that will be submitted to the Mayor’s Office on February 22nd.  The budget will remain very much the same as last year’s budget, except for mandated increases for salaries and fringe benefits.  In the submission to the Commissioners, the expenditures for the services of the City Attorney and temporary salaries were reduced from last year.  After discussion, it was the consensus of the Board that these line items should be restored to last year’s levels.

 

MSC: To approve the proposed budget, with increases in the City Attorney and temporary salaries line items, and a possible increase in translation services, if appropriate.  (Gruber/Marshall:  4-0)

 

X.     Calendar Items

 

February 22, 2005 - NO MEETING

 

March 1, 2005

4 appeal considerations

Old Business:  Gonzales Amendments

 

XI.     Adjournment

 

President Wasserman adjourned the meeting at 8:15 p.m.