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March 6, 2007

March 6, 2007

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

Tuesday, March 6, 2007 at 6:30 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level

I. Call to Order

President Gruber called the meeting to order at 6:35 p.m.

II. Roll Call

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

Commissioners not Present: Murphy.

Staff Present: Lee; Wolf.

III. Approval of the Minutes

MSC: To approve the Minutes of February 20, 2007.

(Becker/Hurley: 5-0)

IV. Remarks from the Public

A. Patricia Breslin, Executive Director of the Hotel Council of San Francisco, brought to the Board's attention what she believes is a "critical issue." Ms. Breslin said that the Rent Ordinance conflicts with State law, which forbids considering a guest in a full-service hotel a "tenant."

B. Wes Tyler, the General Manager of the Chancellor Hotel, said that the definition of "tenant" in the Rent Ordinance complicates the full-service hotel situation in San Francisco. Mr. Tyler said that he has to turn away people who would like to stay more than 32 days.

C. Jim Abrams, President of the California Hotel Lodging Association, said that San Francisco's Ordinance treats guests in hotels differently than any other city, and that the innkeeper/guest relationship is a "term of art." Mr. Abrams said that a "full-service" hotel must meet 7 very specific criteria and that if the hotel is not full-service, the occupant becomes a tenant after 30 days. Mr. Abrams told the Board of a situation where a guest failed to pay but the police wouldn't evict the individual, citing the Rent Ordinance. Mr. Abrams asked that the Board take steps to clarify this situation.

D. Katrina Decker, the attorney for the tenants at 2030 Vallejo #1001 (AT070025), told the Board that the second tenant was unavailable at the time of the hearing due to being temporarily incarcerated. Ms. Decker said that she had been unable to let the Board know that until now.

V. Consideration of Appeals

A. 722 Taylor #3 AT070029

The landlord's petition for certification of the costs of seismic retrofit work to 1 of 6 units was granted. The tenants appeal the decision on the grounds of financial hardship.

MSC: To accept the appeal and remand the case for a hearing on the tenants' claim of financial hardship. (Becker/Marshall: 5-0)

B. 2030 Vallejo #1001 AT070025

The landlord's petition for a determination pursuant to Rules Sections 1.21 and 6.14 and Costa-Hawkins was granted because the Administrative Law Judge (ALJ) found that the subject unit is not the tenants' principal place of residence. On appeal, the tenants claim that they failed to appear because they did not receive notice of the hearing, and attach the requisite Declaration of Non-Receipt of Notice of Hearing.

MSC: To accept the appeal and remand the case to the Administrative Law Judge for a new hearing.

(Marshall/Becker: 5-0)

C. 1330 Jones St. AL070026

The landlord's petition for approval of utility passthroughs for 12 units was dismissed as having been untimely filed. On appeal, the landlord asks that the Board waive its regulation and grant an equitable remedy: rather than the petition being completely dismissed, allow the landlord to collect the passthrough for 11 months, since they were only 1 week late in filing the petition.

After discussion, it was the consensus of the Board to continue this appeal in order for staff to contact the landlord and ascertain the reason for the late filing of the petition.

D. 1000 Green St. AL070027

The landlord's petition for approval of utility passthroughs for 29 units was dismissed as having been untimely filed. On appeal, the landlord asks that the Board waive its regulation and grant an equitable remedy: rather than the petition being completely dismissed, allow the landlord to collect the passthrough for 11 months, since they were only 1 week late in filing the petition.

As in the case at 1330 Jones Street, above, this case was continued in order for the landlord to provide information as to why the petition was untimely filed.

E. 1875 Pacific Ave. AT060120 & -23

(cont. from 1/9/07)

The landlord's petition for a rent increase from $400 to $1,595.00 based on comparable rents was granted. The tenant, the former resident manager of the building, claims hardship as well as asserting that: her due process rights were violated because her request for extension of the open record was denied; there are factual errors in the decision; the landlord should have used comparable units in the same building as the tenant's unit; and the landlord has harassed the tenant and attempted to evict her from the unit.

After discussion at the meeting on January 9th, it was the consensus of the Board to continue consideration of this appeal in order to allow the tenant to provide evidence that she had been precluded from submitting.

MSC: To deny the tenant's substantive appeal. (Hurley/Gruber: 3-2; Becker, Marshall dissenting)

After discussion, the Board decided to continue consideration of the tenant's hardship appeal to the April 3rd meeting in order for the Commissioners to read the Vega decision and provide the landlord's attorney with an opportunity to brief the question of whether hardship is a defense to a comparables increase. Additionally, the Executive Director will contact the parties and see if a Rent Board mediator could be helpful in facilitating a settlement.

F. 205 Collins #7 AL070022

The tenant's petition alleging substantial decreases in housing services was granted and the landlord was found liable to the tenant in the amount of $3,915.00 due to several habitability defects on the premises. The tenant's failure to repair claim was denied because no violations of state or local law were proved to exist as of the effective date of the notice of rent increase. The landlord appeals the decision, arguing that: the petition was filed in retaliation for a banked rent increase that was issued; the rent reductions granted are arbitrary and disproportionately high; and the tenant failed to meet his burden of proving the dates and amount that services were diminished, nor did he prove notice to the landlord.

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

G. 1005 Hyde St. #31 AT070023 & -24

The tenant's appeals were filed approximately three weeks late because the tenant thought he could file a tenant petition to contest the overcharges, which does not have a deadline for filing.

MSC: To find good cause for the late filing of the appeal. (Becker/Marshall: 5-0)

The landlords filed two petitions for certification of capital improvement costs, which were granted. In the decisions, it is found that the landlords testified that they refunded charges for capital improvement passthroughs that were not discontinued upon expiration of the amortization period. One tenant appeals the decisions, claiming that the landlords did not reimburse these overcharges.

MSC: To accept the appeal and remand the case to the Administrative Law Judge on the issue of the tenant's proper rent; a hearing will be held only if necessary. (Becker/Marshall: 5-0)

H. 1661 Bush St., Apt. 5 AT070028

The landlord's petition requesting a determination pursuant to Rules Sections 1.21 and 6.14 and Costa-Hawkins was granted because the ALJ found that the tenant did not reside at the subject premises prior to January 1, 1996 and therefore a rent increase was warranted under Costa-Hawkins. On appeal, the tenant claims that three other tenants in the building signed statements under oath that he was a resident in the building as of 1995.

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

VI. Communications

The Commissioners received the following communications:

A. A Fact Sheet regarding Senate Bill 464, introduced by Senator Kuehl, which would establish a holding period after the sale of a building before the owner could Ellis; and provide that all tenants in a building would receive 1-year eviction notices if any tenants in the building are seniors or disabled.

B. A Certificate of Training and Sunshine Declaration Form for filing with the annual Form 700 Statements of Economic Interest.

VII. Director's Report

Executive Director Wolf reminded the Commissioners that their Form 700 Statements of Economic Interest are due at the Ethics Commission by April 2nd; the Certificate of Training and Sunshine Declaration Form is due by that date as well. She also informed the Board that staff has been participating in several community outreach opportunities recently: she and Greg Miller attended the Mayor's Town Hall meeting in the Bayview; Robert Collins and Rod Wong represented the Agency at "Family Day;" Alyse Ceirante and Greg Miller distributed literature at the City's "Family Fair;" Ms. Wolf will be interviewed for the S.F. Apartment Association magazine; she, Sandy Gartzman and Greg Miller will be panelists at the S.F. Apt. Association meeting on May 21st; and Ms. Wolf will attend the Mayor's Town Hall on March 26th.

VIII. Old Business

Mirkarimi Legislation Requiring Just Cause for the Severance or Removal of Certain Housing Services

The Board continued their discussion of proposed amendments to the Rules and Regulations to implement the Mirkarimi legislation, which requires a just cause reason for the landlord's severance or removal of certain housing services. After a Public Hearing at the meeting on February 20th, the Commissioners debated whether or not it was advisable to pass regulations. Commissioners Becker and Murphy agreed to speak to their respective constituencies and report back to the Board. Since there was opposition from both the landlord and tenant communities, the Board decided not to adopt any regulations at this time, and let the courts decide the issues. If the landlord and tenant commissioners can agree on proposed regulations in the future, the Board could revisit the issue. Senior Administrative Law Judge Tim Lee reminded the Commissioners that it was still necessary to amend Rules ß12.20(a) to conform to the Mirkarimi legislation. Therefore, the Board passed the following motion:

MSC: To adopt the proposed amendment to Rules and Regulations Section 12.20(a) to conform the Rule to the Mirkarimi legislation (Ordinance Section 37.2{r}) by deleting subsection 12.20(a)(3). (Justman/Becker: 5-0)

Rules Section 12.20(a) now reads as follows below (deletions indicated with strikethrough):

(a) Unilaterally Imposed Obligations and Covenants

For purposes of an eviction under Section 37.9(a)(2) of the Ordinance, a landlord shall not endeavor to recover possession of a rental unit because of the tenant's alleged violation of an obligation or covenant of the tenancy, if such obligation or covenant was unilaterally imposed by the landlord and not agreed to by the tenant and either was not included, or is not materially the same as an obligation or covenant in the rental agreement mutually agreed to by the parties. The foregoing shall not apply to: (1) changes in obligations or covenants that are not material; (2) changes in material obligations or covenants required by law or to protect the health, safety and quiet enjoyment of the occupants of the building or adjoining properties; or (3) material changes that have resulted in a substantial decrease in housing services with respect to garage, storage space, or access to common areas for which a commensurate rent reduction has been provided by the landlord; and (43) rent increases or other changes in the terms of a tenancy authorized under the Rent Ordinance and Rules and Regulations.

IV. Remarks from the Public (cont.)

E. Tenant Sophie Resetar of 1875 Pacific (AT060120 & -23) thanked Commissioners Henderson and Marshall for their understanding of the Constitution, since she believes that her right to contract under the Constitution is "being trampled on." She told the Commissioners that a senior citizen would be forced out onto the streets, since her landlords have abused the process.

F. Landlord Alex Bush of 1875 Pacific told the Board that the ownership would like to settle, as they do not wish to put the tenant out on the street, but she refuses to talk to them.

G. Tenant Gregory Luteff of 1005 Hyde St. (AT070023 & -24) thanked the Board for accepting his appeal and verified that the other tenants in the building are not affected by the disposition of his appeal.

IX. New Business

Commissioner Justman and several of the other Commissioners indicated that they would like to discuss the issue raised by the Executive Director of the Hotel Council of San Francisco at the next meeting. Senior Administrative Law Judge Tim Lee will do some preliminary research into the issue of exemption for hotel accommodations under Ordinance ß37.2(r)(1).

X. Calendar Items

March 13, 2007 - NO MEETING

March 20, 2007

5 appeal considerations

New Business: Exemption for Hotel Accommodations (Ord. ß37.2(r)(1))

XI. Adjournment

President Gruber adjourned the meeting at 8:25 p.m.

Last updated: 10/9/2009 11:26:18 AM