January 23, 2007

Commissioners Present: Becker; Gruber; Henderson; Hurley; Justman; Marshall; Mosser; Murphy.

Staff Present: Lee; Wolf.

Commissioner Mosbrucker appeared on the record at 6:10 p.m.

MSC: To approve the Minutes of January 9, 2007.

(Becker/Gruber: 5-0)

The tenant's appeal was filed seven weeks late because the tenant did not realize that appeals of utility passthrough decisions had to be filed within fifteen days of mailing of the decision.

The landlord filed two petitions for approval of utility passthroughs for 11 of 794 units, which were approved. One tenant appeals both decisions on the grounds of financial hardship.

The landlord's petition for utility passthroughs to 41 of 72 units was granted. One tenant appeals the decision on the grounds of financial hardship.

The tenant's petition alleging decreased housing services was dismissed due to his failure to appear at the properly noticed hearing. On appeal, the tenant claims that he assumed his hearing would be combined with that of another tenant in the building, which was at a different time.

The landlord's petition seeking a determination pursuant to Rules Section 1.21 was granted because the Administrative Law Judge found that the subject unit is not the tenant's principal place of residence. On appeal, the tenant's brother, a subtenant in the unit, claims that: the tenant is currently obtaining medical treatment in Puerto Rico, where her son is a doctor, but has not permanently moved there and still considers the subject unit her home.

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

The landlord's Petition for Extension of Time to do Capital Improvement Work was denied because the Law Administrative Judge found that the petition was not timely filed and the landlord performed additional, elective work beyond that described in the Notices to Vacate. On appeal, the landlord maintains that: the time requirements in the Rules and Regulations for bringing the Petition are ultra vires; the ALJ was only supposed to decide whether the landlord's time estimate was reasonable; the ALJ failed to recognize the inevitable delays involved in construction projects in San Francisco; the additional work that became necessary was not foreseeable at the time the Notices to Vacate were given; the ALJ exhibited bias against the landlord in the Decision; the landlord's contractors kept changing their estimates as to how long the work would take; it was reasonable for the landlord to wait to file the petition until he had enough information as to how long the work would take; and the landlord should not be penalized for trying to make appropriate and necessary repairs.

The landlord filed a petition seeking a determination as to whether a rent increase from $639.42 to $2,850.00 was authorized by Rules ß6.14 and Costa-Hawkins. The Administrative Law Judge (ALJ) found that the landlord was not entitled to an unlimited rent increase because the tenant was not a subtenant or assignee and a 6.14 notice was not timely served. The tenant also filed a petition alleging unlawful rent increases, failure to repair and requesting a determination as to the proper base rent. The failure to repair claim was denied as being moot, the lawful rent was determined to be $639.42 and the landlord was found liable to the tenant for any sums paid in excess of that amount since February 1, 2006. The landlord appeals both decisions, asserting that: the ALJ's findings are not supported by substantial evidence; the landlord did not waive their right to a Costa-Hawkins rent increase by accepting rent at the lower amount for a short period of time; the landlord never entered into a landlord-tenant relationship with the tenant; the landlord did not rescind the rent increase to $2,850.00 but, rather, affirmatively took steps to effectuate such increase; the 6.14 notice was served within a reasonable amount of time and, to the extent that ß6.14 conflicts with Costa-Hawkins, the regulation is void; only the legislature can create the timeliness presumption contained in Rules ß6.14; and the decision is unfair and works a hardship on the landlord.

After discussion the Board passed the following motion:

The landlord's petition seeking a determination pursuant to Rules Section 1.21 was denied because the ALJ found that the subject unit is the tenant's principal place of residence. On appeal, the landlord claims that: the landlord did not have an opportunity to respond to post-hearing evidence submitted by the tenant; the landlord was prejudiced by not being allowed to cross-examine the tenant as part of the landlord's prima facie case; the tenant is currently residing at her Santa Barbara residence; the burden of proof in this case should have shifted to the tenant; and the notice of rent increase was mailed at the time the petition was filed and should not be found to be null and void.

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

A. The office workload statistics for the month of December, 2006.

B. A Memorandum from Senior Administrative Law Judge Tim Lee with revised draft regulations implementing Ordinance ß37.2(r) requiring just cause for removal of specified housing services.

Executive Director Wolf regretfully informed the Board that Joe Lacey, a tireless advocate for tenants and the elderly, passed away recently. He will be greatly missed.

The Board continued their discussion of proposed amendments to the Rules and Regulations to implement the Mirkarimi legislation and went over the newest draft. The Board members talked about how balancing the legislation with the Golden Gateway decision is not "black and white," and most Commissioners seemed to feel that a 90-day carve-out for temporary capital improvement work is reasonable. Likewise, the Board agreed with the addition to Section 13.11(b) that specifies that no civil or criminal liability shall be imposed on a landlord who seeks to sever a housing facility in good faith for a listed just cause; the language appropriately mirrors the language used in the Ordinance regarding attempted evictions when tenants are claiming protected status. The notice requirement, Section 13.12, was changed to be more explicit as to how the severance must be effectuated. Commissioner Becker then brought up several concerns, including whether there should be no civil or criminal liability on the part of landlords; whether severance of housing services that were provided for no additional consideration should be allowed; and whether allowing a landlord to permanently remove housing services under Section 13.11(a)(4) will lead to abuses. Consideration of this issue was continued until the next meeting in order for Commissioner Becker to draft some language to address his concerns regarding permanent removal of housing services.

January 30, 2007 - NO MEETING

February 6, 2007

2 appeal considerations

Old Business: Mirkarimi Legislation (Ordinance ß37.2{r})

New Business: Departmental Budget

President Gruber adjourned the meeting at 8:50 p.m.