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June 20, 2006

June 20, 2006

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

Tuesday, June 20, 2006 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 6:37 p.m.

II. Roll Call

Commissioners Present: Becker; Gruber; Henderson; Mosbrucker; Wasserman.

Commissioners not Present: Hurley; Marshall; Mosser; Murphy.

Staff Present: Lee; Wolf.

Commissioner Justman appeared on the record at 6:45 p.m.

III. Approval of the Minutes

MSC: To approve the Minutes of May 30, 2006.

(Gruber/Mosbrucker: 4-0)

IV. Remarks from the Public

A. Samuel Lutz, Attorney for the tenants at 46 Sumner (AL060055), told the Board that the landlord's bias claim against the Administrative Law Judge (ALJ) didn't rise to the necessary level, and that the proceedings were fair. Mr. Lutz said that the ALJ ruled against the tenants as well as the landlord, and that many of their objections were over-ruled. Mr. Lutz maintained that the landlord was simply asking for a "third bite of the apple."

B. Andre Sanchez, Attorney for the landlord at 209 Turk St. #209 (AT060058), said that the tenant's basis for appeal was that he didn't have an attorney at the hearing, whereas the Notice of Hearing clearly says that a party can be represented. Mr. Sanchez told the Board that the ALJ didn't not commit an error or abuse of discretion.

C. Brian Cook, agent for the landlord at 46 Sumner, expressed his opinion that the apartment is "show-room quality."

V. Consideration of Appeals

A. 810 Gonzalez #7J AT060054

The tenant's financial hardship appeal was filed over three and one-half years late because the tenant did not know that she could still file the appeal, and did not have time to file at the time the decision was issued.

MSC: To recuse Commissioner Becker from consideration of this appeal. (Wasserman/Justman: 4-0)

MSC: To find no good cause for the late filing of the appeal. The Decision is therefore final. (Gruber/Justman: 3-1; Henderson dissenting)

B. 1000 Chesnut #2F AT060057

The tenant's hardship appeal of a $77.16 capital improvement passthrough was accepted and remanded for hearing. However, the Administrative Law Judge found insufficient evidence of financial hardship to justify deferral of the passthrough since the tenant's income to rent ratio exceeded the HUD guidelines at the time of initial occupancy, and the tenant is underemployed. The tenant appeals the remand decision, claiming that the ALJ failed to follow the Board's "unambiguous criteria" for determining financial hardship.

MSF: To deny the appeal. (Gruber/Justman: 2-2; Becker, Mosbrucker dissenting)

This case was continued to the July 11th Board meeting, when it is anticipated that another Landlord Commissioner will be present.

C. 1805 Cabrillo AL060053

The landlord's petition seeking a determination pursuant to Rules Sections 1.21 and 6.14 was denied because the Administrative Law Judge found that the subject unit is still the tenant's principal place of residence, despite the fact that his wife has moved in to a home the tenants purchased in Oregon. On appeal, the landlord claims that the ALJ misconstrued Rules Section 1.21 subsections (5) and (6) as amended for clarification on December 3, 2002.

This appeal was withdrawn just before the start of the meeting.

D. 46 Sumner AL060055

The tenants' petition alleging decreased housing services was granted, in part, and the landlords were found liable in the amount of $1,545.00. The tenants' appeal on the grounds that the rent reductions should have commenced from an earlier date was accepted and remanded for a new hearing. In the Decision on Remand, the landlords are found liable in the amount of $5,604.30 for the habitability defects. The landlord appeals the remand decision, arguing that: the Administrative Law Judge only considered the tenants' issues raised on appeal, despite the fact that it was a de novo hearing; deeming the rent reductions to commence as of July 11, 2004 is unfair; the Decision is incorrect as to the dates he received verifiable notice of the conditions; rent reductions were granted for periods after the conditions were abated; the rent reductions granted are excessive; several of the problems were not substantial; and two of the problems only occurred when it rained.

MSC: To deny the appeal. (Becker/Mosbrucker: 3-1;

Gruber dissenting)

E. 4076 – 17th St. #505 AL060056

The tenant's petition alleging a substantial decrease in housing services due to the unit's being significantly smaller than was represented by the landlord's agent was granted, and the landlord was found liable to the tenant in the amount of $200.00 per month. On appeal, the landlord maintains that: the size of the apartment does not constitute a "housing service;" the reduction in size is not substantial; since the tenant saw and measured the apartment prior to renting it, it was not reasonable to expect that it would be larger; the tenant failed to prove that he was promised a larger unit; the landlord was prejudiced at the hearing by not being granted a continuance in order to have his attorney present; the tapes secretly recorded by the tenant constituted hearsay and should not have been allowed into evidence as they were not authenticated; and the landlord's agent should be found more credible than the tenant in this matter.

MSC: To accept the appeal and remand the case on the record to the Administrative Law Judge to vacate the Decision and find, under these facts, that there is not a substantial decrease in housing services. (Gruber/Justman: 3-1; Becker dissenting)

F. 275 Turk St. #209 AT060058

The tenant's petition alleging a substantial decrease in services due to seismic retrofit work in the building was denied pursuant to the decision in Golden Gateway Center v. Rent Board. The tenant appeals, claiming that there was a reduction in services, that the conditions were unhealthy, and that the landlord should have relocated him.

MSC: To deny the appeal. (Gruber/Mosbrucker: 4-0)

VI. Communications

In addition to correspondence concerning cases on the calendar, the Commissioners received the following communications:

A. An article from BeyondChron regarding the Proposed Mirkarimi legislation.

B. Copies of the court decisions in the cases of Cumali v. Rent Board and Garber v. Jones.

C. An updated list of Rent Ordinance amendments.

D. A new staff roster.

E. Copies of Proposition B regarding eviction disclosure, the Mirkarimi legislation regarding Just Cause for removal of housing services, Ordinance 73-06 requiring mail receptacles in residential hotels, and Ordinance 112-06, limiting condo conversions in buildings where evictions have occurred.

VII. Director's Report

Executive Director Wolf informed the Board that the agency is experiencing a large increase in the number of utility passthrough petitions filed by landlords. Senior Administrative Law Judge Tim Lee gave the following litigation and legislation update:

A. In Cumali v. Rent Board, the Court of Appeal affirmed the trial court's ruling that the landlord did not have standing to challenge the facial constitutionality of Rules Section 12.15, which requires a landlord to file a petition for extension of time if the landlord knows that capital improvement work will require displacement of the tenant for more than 90 days. This Decision is now final, as no Petition for Review was filed.

B. Proposition B, approved by the voters on the June ballot, added Section 37.10A(i) to the Rent Ordinance. The new Section requires owners of properties with two or more residential units to disclose to any prospective purchaser the legal grounds for terminating the tenancy of each unit to be delivered vacant upon sale and whether the unit was occupied by an elderly or disabled tenant at the time the tenancy was terminated. Proposition B will take effect ten days after the Board of Supervisors certifies the election results.

C. Ordinance 73-06 requires residential hotel owners to provide Postal Service-approved mail receptacles for each residential unit within one year of the effective date of the Ordinance, or by May 20, 2007. The Ordinance also amended Rent Ordinance Section 37.14 to allow a former or current permanent resident of a residential hotel to file a tenant petition at the Rent Board for violation of the mailbox ordinance and request a corresponding reduction in rent.

D. On May 22, 2006, the Mayor signed Ordinance 112-06, which limits condo conversions of properties where tenants in two or more units, or an elderly or disabled tenant in one unit, have been evicted for specified no-fault evictions since May 1, 2005. The Ordinance is effective June 21, 2006.

E. The Pieri Decision extending Ellis relocation payments to all tenants is now final, as no Petition for Review was filed.

F. The Mirkarimi legislation, which would require a landlord to have a Just Cause under the Ordinance in order to sever or remove a tenant's garage or parking facilities, storage or access to common areas or other physical spaces or facilities on the lot, passed First Reading at the Board of Supervisors for the third time this afternoon, on a 7-3 vote.

G. The Writ in the case of Brown v. Rent Board is now being pursued by the tenant, because the landlord is now seeking to collect the Costa-Hawkins rent increase granted pursuant to the Decision of the Administrative Law Judge.

H. On June 13, 2006 the appellate department issued a decision in Garber v. Jones, finding that Proposition G superseded the Bierman amendment as to the required percentage ownership for an owner move-in eviction under Ordinance Section 37.9(a)(8). The court found that since the two provisions conflict, and Proposition G was passed later in time, Proposition G's 25% ownership requirement prevails over the 50% ownership required by the previously enacted Bierman amendment. The appellate department has certified the case for transfer to the Court of Appeal in order to settle the question of law involved.

IV. Remarks from the Public (cont.)

D. Tenant Otis Damslett of 4076 – 17th St. #505 (AL060056) asked the Board for guidance as to what additional facts they would need to believe that there was a decrease in services in his case. He also told the Board that he didn't move after realizing that the apartment was significantly smaller than he'd expected because he had incurred significant moving expenses. He also said that it is not possible to determine the square footage of a unit just by looking.

VIII. Calendar Items

June 6th & 13th, 2006 - NO MEETINGS

July 11, 2006

7 appeal considerations (1 cont. from 6/20/06)

Old Business: SRO Hotel Visitor Policy

IX. Adjournment

President Wasserman adjourned the meeting at 7:55 p.m.

Last updated: 10/9/2009 11:26:17 AM