July 5, 2005
MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, July 5, 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 6:15 p.m.
II. Roll Call
| Commissioners Present: |
Becker; Gruber; Henderson; Justman; Marshall; Mosbrucker; Wasserman. |
| Commissioners not Present: |
Hurley; Mosser. |
| Staff Present: |
Lee; Wolf |
| |
|
Commissioner Murphy appeared on the record at 6:20 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of June 21, 2005.
(Becker/Justman: 4-0)
IV. Remarks from the Public
A. Tenant Wayne Cameron of the 1.21 case at 1044 Pine St. (AT050145) told the Board that construction noise had prevented him from being in his unit as much as he would have liked. Mr. Cameron asked that the Board not punish him for “helping a friend buy her dream house.” He also informed the Commissioners that the poor public middle schools in San Francisco led to the decision to send his son to school in Pacifica, and that the landlord had threatened to sue the Board should he receive an adverse ruling in the case.
B. Landlord Craig Lipton of 1044 Pine told the Board that he had no retaliatory motive in the case, that the Administrative Law Judge was fair, and that the tenant spends 4-5 nights per week in Pacifica, where his son goes to school. Mr. Lipton said that the tenant is never at the property, and asked where he goes home to at night.
C. David Nelson, the leasing agent for landlord Craig Lipton, said that he hasn’t seen the tenant at the property even once, and that notices remain on his door for several days at a time.
D. Craig Mallory, the property manager for landlord Craig Lipton, said that he lived next door to the tenant for a year and rarely saw him. Mr. Mallory asked that the Commissioners “respect the decision of the Administrative Law Judge and let it stand.”
V. Consideration of Appeals
A. 825 Pine #12 AT050153
The tenants’ petition alleging decreased housing services was dismissed because the tenants departed the hearing without presenting any evidence regarding their claim. On appeal, one of the tenants claims that he was not well on the day of the hearing, but has ample evidence to prove his claim.
MSC: To recuse Commissioner Gruber from consideration of this appeal. (Becker/Justman: 5-0)
MSC: To deny the appeal. (Murphy/Justman: 4-0)
B. 665 Eddy #64 AL050156
The tenant’s petition alleging decreased housing services was granted and the landlord was found liable to the tenant in the amount of $1,295.00 due to a non-functional elevator and lack of heat in the unit. The landlord appeals, asserting that: there is insufficient evidence in the record to justify the rent reductions granted; the elevator was only dysfunctional for one-third of the relevant time period; under State law, a landlord is given 30 days to effectuate repairs after receiving notice of a problem; it is reasonable for the landlord to make attempts to repair, rather than replace, an elevator; and the tenant had partial heat in his unit and failed to complain about the lack of a permanent heating source in the unit for two years.
MSC: To deny the appeal. (Becker/Marshall: 5-0)
C. 240 Dolores, Apt. 216 AT050155
The landlord’s petition seeking a determination pursuant to Rules Section 1.21 was granted as the Administrative Law Judge found that the subject unit is not the tenant’s principal place of residence. The tenant did not appear at the hearing. On appeal, the tenant claims not to have received the Notice of Hearing, because he was undergoing medical treatment in New York at the time.
MSC: To recuse Commissioner Murphy from consideration of this appeal. (Becker/Murphy: 5-0)
MSC: To accept the appeal and remand the case to the Administrative Law Judge for a new hearing. (Becker/Marshall: 4-0)
D. 878 Kansas AT050154
The landlords’ petition for extension of time to complete capital improvement work was granted and the landlords’ estimate of seven months was found to be reasonable. The tenant appeals, claiming that the landlord was granted seven months to complete the work, but the “extension for building permit form” indicates start to finish dates totaling nine months.
MSC: To deny the appeal. (Marshall/Murphy: 5-0)
E. 553 Belvedere #B AT050152
The landlords’ petition for a determination pursuant to Rules Section 1.21 was granted because the Administrative Law Judge found that the subject unit was not the tenants’ principal place of residence. On appeal, the tenants claim that: the tenants are “tenants in occupancy” of the subject unit because they are only temporarily in Israel while one of the tenants pursues her PhD; the tenants’ payment of rent for the apartment for the past eight years while in Israel evidences their intent to return; many of the indicia of residency enumerated in Rules Section 1.21 show the subject unit as the tenants’ residence; the landlord should be barred from pursuing the rent increase based on the theory of promissory estoppel; and the enactment of Rules Section 1.21 constituted an impermissible use of rule-making power on the part of the Rent Board.
This appeal was withdrawn immediately prior to the meeting.
F. 1044 Pine #9 AT050145
(cont. from 6/21/05)
The landlord’s petition for a determination pursuant to Rules Section 1.21 was granted as the Administrative Law Judge determined that the subject unit is not the tenant’s principal place of residence. On appeal, the tenant maintains that: he was prejudiced because his requests for postponement of the hearing were denied so he was forced to testify by telephone, and the landlord failed to appear and be subject to cross-examination; there is nothing in the regulation that specifies the relevant time period for determining a tenant’s principal place of residence, and no evidence was submitted as to where the tenant resided on the date the petition was filed; the fact that the tenant co-owns property and his son attends school in Pacifica does not make that community his principal place of residence; where a tenant sleeps is indicative, but not conclusive, as to their principal place of residence; the indices of residency enumerated in the regulation show the subject unit as the tenant’s principal place of residence; the landlord is acting with a retaliatory motive; and the Rent Board did not have the authority to enact Rules Section 1.21.
MSC: To recuse Commissioner Becker from consideration of this appeal. (Murphy/Justman: 5-0)
MSC: To deny the appeal. (Gruber/Murphy: 2-3; Henderson, Marshall, Justman dissenting)
MSC: To accept the appeal and remand the case to the Administrative Law Judge for further hearing; each side may submit supplementary evidence. (Justman/Marshall: 5-0)
VI. Communications
The Commissioners received the following communications:
A. A copy of the appellate decision in Bisno v. Santa Monica, which upheld a provision of the Santa Monica Rent Ordinance which allows a rent increase when the unit is not the tenant’s principal place of residence.
B. A copy of the Notice of Public Hearing for the July 19th hearing on proposed new regulations to implement Ordinance Section 37.3(a)(5)(B), which allows landlords to pass through to tenants 50% of the water bill charges attributable to water rate increases resulting from issuance of water system improvement revenue bonds authorized at the November 5, 2002 election (Proposition A).
C. An article from the San Francisco Chronicle regarding married couples who live in separate domiciles.
VII. Director’s Report
Senior Administrative Law Judge Tim Lee informed the Board that Judge Warren’s ruling in the Pieri case that recent Ordinance amendments extending Ellis relocation payments to all tenants was stayed upon the City’s filing of an appeal. Plaintiff’s motion to lift the stay was denied on June 27th, which means that tenants may assert their rights to relocation payments under the Peskin amendments pending a final decision on appeal.
VIII. Old Business
Board Hearing for Property at 2201 Pacific #601 (AT050139) (acpt. 6/7/05)
The Board will hear the Rules Section 1.21 case concerning the property at 2201 Pacific at the August 2nd meeting. Commissioner Justman asked whether there were certain documents that might be requested that could help elucidate the question of whether the tenant’s principal place of residence is the San Francisco unit or the house in Sausalito where she spends time with her husband. The Board asked staff to prepare a Pre-Hearing Order requesting that the tenant provide: homeowner’s exemption forms, the Deed of Trust and homeowner’s insurance policy on the Sausalito property, as well as recent tax returns.
IX. New Business
PUBLIC EMPLOYEE APPOINTMENT
Consideration of Whether to Approve the Chair Wasserman’s Appointment of Acting Executive Director Delene Wolf as the Executive Director of the Residential Rent Stabilization and Arbitration Board
MSC: To approve the Chair Wasserman’s appointment of Delene Wolf as Executive Director of the Residential Rent Stabilization and Arbitration Board. (Marshall/Murphy: 5-0)
The Alternate Commissioners present voted in the affirmative as well.
X. Calendar Items
July 12, 2005 - NO MEETING
July 19, 2005
5 appeal considerations
6:30 Public Hearing: Water Revenue Bond Passthroughs
XI. Adjournment
President Wasserman adjourned the meeting at 7:35 p.m.