May 22, 2007

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

Commissioners not Present: Justman; Marshall.

Staff Present: Lee; Wolf.

Commissioner Murphy appeared on the record at 6:35 p.m.

MSC: To approve the Minutes of May 8, 2007.

(Becker/Hurley: 4-0)

A. Dave Crow, attorney for the tenant at 555 Florida (AT070068), told the Board that the Administrative Law Judge erred in finding that the unit was newly constructed and therefore exempt under Costa-Hawkins. Mr. Crow said that the units could not have been newly constructed, since the building's walls and foundation were built in 1923. Mr. Crow believes that exemptions must be narrowly construed and the facts in this case show that a temporary certificate of occupancy was issued by the Fire Department. Since Rules ß1.17(g) requires that the Department of Building Inspection issue the certificate, "strict construction" requires reversal of the decision.

B. Tenant William Stone of 872 Sutter (AT070099) told the Board that the landlord had been a close friend, but fairness demands granting his appeal. Mr. Stone said that the landlord had tacitly allowed him to sub-let so that he could meet familial financial obligations. Mr. Stone alleged that the landlord has breached their agreement that he had six months to take his apartment back. Mr. Stone averred that he has never vacated the unit as his primary residence and that Costa-Hawkins is fundamentally flawed because it does not require landlords to give notice prior to issuing a notice of rent increase.

C. Attorney Steven Mac Donald said that he is a friend of tenant William Stone's, and knows where he lives. Mr. Mac Donald believes that the decision is flawed because the landlord did not meet the burden of proof.

D. Gloria Sullivan spoke in support of William Stone's appeal. She has known Mr. Stone since 2002 and knows the subject unit as his primary residence. Ms. Sullivan believes that the landlord is complicit, because she is a witness to their 6-month agreement and allowance of subletting.

The landlord's petition for approval of utility passthroughs for 37 of 48 units was granted. One tenant appealed the decision on the grounds of financial hardship. Prior to the meeting, the landlord agreed to withdraw the unit from the petition due to the tenant's financial hardship. The appeal was therefore withdrawn.

The landlord's petition seeking certification of capital improvement costs for 3 of 4 units was granted, resulting in a monthly passthrough in the amount of $44.70. One tenant appeals the decision on the grounds of financial hardship.

The landlord's petition for approval of utility passthroughs was granted. One tenant appealed the decision on the grounds that the landlord had not requested payment for utilities from the tenant for several months, and then asserted that the tenant was in arrears for utility charges as well as a utility passthrough. After receiving an explanation from staff as to the legal basis for utility passthroughs, the tenant withdrew the appeal prior to the meeting.

The tenant's petition alleging unlawful rent increases was denied because the Administrative Law Judge (ALJ) found that the tenant's unit is exempt from Rent Board jurisdiction as a newly constructed unit pursuant to Costa-Hawkins. On appeal, the tenant argues that: the building was constructed before 1995 and therefore the units are not newly constructed; a certificate of occupancy was not issued after February 1, 1995; there has been existing residential use and any certificate of occupancy issued in the future should not have retroactive effect; the building is also not exempt as substantial rehabilitation; the ALJ's determination should have been made pursuant to the provisions of Rules ß1.17(g) and statutory procedural requirements, which should have been strictly construed; the Fire Department cannot issue temporary certificates of occupancy; the permits proffered by the landlord did not qualify for temporary certificates of occupancy; the ALJ failed to consider the effect of the expiration of the relevant permits; and no lawful conversion of the subject unit has occurred and the unit is therefore subject to the jurisdiction of the Rent Ordinance, which renders the rent increases null and void.

Due to the absence of a Neutral Commissioner, consideration of this appeal was continued to a future meeting.

The landlord's petition seeking a determination pursuant to Rules ß1.21 and Costa-Hawkins was granted as the ALJ found that the subject unit was not the tenant's principal place of residence and subtenants in the unit moved in after January 1, 1996. On appeal, the tenant claims that: since he resumed residency in the subject unit as of June 8, 2006, when his sub-tenant vacated the premises, Costa-Hawkins is inapplicable; any increase in rent must be imposed on the lawful subtenant or assignee; the tenant still permanently resides in the subject unit; and the landlord is equitably estopped from raising the rent because he told the tenant he had six months to move back in to the apartment, but filed the petition for rent increase prior to the expiration of that time period.

The landlord's petition seeking a determination pursuant to Rules ß1.21 and Costa-Hawkins was granted as the ALJ found that the subject unit was not the tenant's principal place of residence and subtenants in the unit moved in after January 1, 1996. The tenant appeals the rent increase from $645.32 to $1,100.00 on the grounds of financial hardship.

The tenants' petition alleging decreased housing services was granted and the landlord was found liable to the tenants in the amount of $22,112.00 due to serious habitability problems in the subject unit. The landlord failed to appear at the hearing and appeals on the grounds that the Notice of Hearing was not properly served.

The Master Tenant's appeal was filed one day late because the Master Tenant believed that the postmark date would be sufficient.

The subtenant's petition alleging that he paid a disproportionate share of the rent pursuant to Rules ß6.15C(3) was granted and the Master Tenant was found liable to the subtenant in the amount of $536.70. On appeal, the Master Tenant claims that: the size of the bedrooms in the unit was not taken into account, nor was the subtenant's right to use the living room; the subtenant tacitly agreed to the terms by signing the rental contract; and he should have no more responsibility for cleaning the unit than do his roommates.

The Commissioners received communications regarding cases on the calendar.

Executive Director Wolf told the Commissioners that she, Senior Administrative Law Judge Sandy Gartzman and Counselor Greg Miller gave a presentation at the S.F. Apartment Association monthly meeting the previous evening.

May 29, 2007 - NO MEETING

June 5, 2007

Parkmerced appeals – O&M II

5 additional appeals

President Gruber adjourned the meeting at 6:50 p.m.