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September 4, 2007

September 4, 2007

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

Tuesday, September 4, 2007 at 6:00 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level

I. Call to Order

President Gruber called the meeting to order at 6:05 p.m.

II. Roll Call

Commissioners Present: Becker; Gruber; Henderson; Hurley.

Commissioners not Present: Justman; Marshall; Mosser.

Staff Present: Gartzman; Wolf.

Commissioner Mosbrucker appeared on the record at 6:10 p.m.; Commissioner Murphy arrived at the meeting at 6:30 p.m.

III. Approval of the Minutes

MSC: To approve the Minutes of August 21, 2007.

(Becker/Hurley: 4-0)

IV. Remarks from the Public

A. Terrence Faulkner, a co-tenant at 106 Crespi Drive (AT070175), said that the current owners of Parkmerced are the same as the prior owners; that the tenants filed their appeal late because "it took a while for the whole thing to trickle down;" that Parkmerced had a "fiduciary duty" but mis-represented figures on their petition; and the Statute of Limitations for filing appeals shouldn't apply under these circumstances.

B. Tenant Jessica Chung-Hwa Nam of 55 Chumasero Drive #12C in Parkmerced said that the landlord can't use the expenses of a prior landlord for an operating expense increase under the Ordinance, which says that there can't be two O&M increases within a five-year period; and the landlord's insurance expenses were exaggerated.

C. Co-tenant Thomas Agee of 106 Crespi Drive said that Parkmerced didn't make the information available to the tenants, who thought that the Parkmerced Residents' Organization (PRO) was taking care of everything. Mr. Agee said that he has since found out that this is not the case. Mr. Agee feels that the insurance figures are "not right."

D. Attorney Karen Uchiyama, representing the landlord in the case at 1606 – 18th Avenue (AL070170), said that her client lives in Honolulu and there needs to be an evidentiary hearing in the case. Ms. Uchiyama explained that she dismissed the Unlawful Detainer with the understanding that "that would be it," and she maintained that there was no communication from the other side. Her client therefore failed to appear and now owes in excess of $16,000 to the tenant. Ms. Uchiyama expressed her belief that tenants get a new hearing when they "blow it."

E. Denis Norrington, the Master Tenant at 106 Crespi Drive, said that the tenants were basing their appeal on the cases decided at the July 10th Board meeting. Mr. Norrington alleged fraud on the part of Parkmerced in two ways: that the extraordinary insurance charges are illegal; and that a second O&M increase within five years is prohibited. Mr. Norrington believes that the transfer of the property was a "wash sale", purely to obtain a second O&M passthrough, because the personnel are the same and "nothing has changed."

V. Consideration of Appeals

A. 15 Hermann St. #206 AT070179

The tenant's appeal was filed one day late because the tenant alleges that she was confused because her last name was incorrect on the Proof of Service.

MSC: To find good cause for the late filing of the appeal. (Becker/Mosbrucker: 4-0)

The landlord's petition for approval of utility passthroughs for 30 of 62 units was granted. One tenant appeals the decision, claiming improper service and the fact that there was a broken window in the building that required the tenant in that unit to keep the heat on all day.

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

B. 2935 Fillmore St. AL070177

The tenants' petition alleging decreased housing services and unlawful rent increases was granted, in part and the Administrative Law Judge found the landlords liable to the tenants in the amount of $174.75 for decreased housing services and for any sums paid in excess of the base rent of $1,900.00. The landlords failed to appear at the hearing and submit a Declaration of Non-Receipt of Notice of Hearing with their appeal.

MSC: To accept the appeal and remand the case for a new hearing. (Becker/Mosbrucker: 4-0)

C. 8 Carl St. AT070171

The landlord's petition seeking approval of utility passthroughs for 3 of 7 units was granted. One tenant appeals the decision, claiming that the 2002 base year should not apply to him, since his tenancy was established pursuant to a mediated agreement in 2006.

This appeal was withdrawn prior to the meeting.

D. 1606 – 18th Ave. AL070170

The tenant's petition alleging unlawful rent increases was granted and the landlord was found liable to the tenant in the amount of $16,400.00. On appeal, the landlord claims that: the tenant moved out of the family home when he became an adult, and moved back in unbeknownst to the landlord; the landlord only became aware of the tenant's presence on the premises shortly before the death of his mother, the original tenant; and the landlord failed to appear at the hearing because his attorney improperly assumed that the tenant would withdraw the petition upon the dismissal of an unlawful detainer that the landlord had filed against the tenant.

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

E. 1062 – 1066 Florida AT070172

The tenant's petition alleging decreased housing services due to construction and printing press noise and environmental and respiratory hazards was denied. On appeal, the tenant claims that he provided documentary evidence sufficient to prove his claims and the printing press was not the issue that was important to the tenant.

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

F. Parkmerced:

The landlord's petition for rent increases based on increased operating expenses for 1,633 of 3,287 units was granted, in part. The appeals of the tenants in 19 units were considered at the Board meeting on July 10th. Four additional tenants untimely appeal the decision as follows below.

566 Arballo Dr. AT070173

MSC: To recuse Commissioner Becker from consideration of all of the appeals involving Parkmerced. (Mosbrucker/Gruber: 4-0)

The tenant's appeal was filed approximately 3 months late because the tenant submitted her application to the management at Parkmerced prior to coming to the Rent Board, but was denied.

MSC: To find good cause for the late filing of the appeal. (Mosbrucker/Henderson: 4-0)

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.

(Mosbrucker/Henderson: 4-0)

126 Garces Dr. AT070176

The tenant's appeal was filed approximately three months late because the tenant believed that the issues had been adjudicated, only to find out that the issues were still being litigated.

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

55 Chumasero Dr. 12-C AT070174

The tenant's appeal was filed approximately three months late because the tenant is not a native English speaker and thought that the other tenants' appeals would apply to her as well.

MSC: To find good cause for the late filing of the appeal. (Mosbrucker/Henderson: 4-0)

The tenant appeals the decision on the grounds that the new landlord should not be entitled to rent increases based on the old landlord's expenses and that the landlord's insurance and other expenses in the petition were exaggerated.

MSC: To accept the appeal and remand the case to the Administrative Law Judge with instructions to find that Ordinance ß37.8(b)(1)(A) does not permit this increase to take effect until five years from the date that the O&M 1 increase was imposed and to disallow consideration of insurance expenses. (Mosbrucker/Henderson: 4-0)

106 Crespi Dr. AT070175

The tenant's appeal was filed approximately three months late because the tenant claims that the landlord fraudulently misrepresented their entitlement to the rent increases.

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

H. 115 Haight St., Apt. #5 AT070178

The tenant's petition alleging decreased housing services due to a faulty radiator and mold/mildew problem was denied because the ALJ found that the landlord had remedied the problems shortly after receiving notice from the tenant. On appeal, the tenant claims that: the landlord was allowed to treat her disrespectfully at the hearing; she orally requested that the resident manager make repairs to the radiator; the mold in her unit was not removed properly; and the landlord has not followed through on representations that the situation would be monitored.

MSC: To accept the appeal and remand the case to the Administrative Law Judge for a new hearing only on the issue of whether there was notice to the landlord regarding the mildew problem after February 2006 and, if so, whether the condition constituted a substantial decrease in housing services. (Murphy/Becker: 4-0)

VI. Communications

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

A. A copy of Ordinance #200-07, which takes effect on September 9, 2007, and requires landlords to re-key or replace door locks when all tenants vacate a rental unit.

B. A Pending Litigation Status Report from Senior Administrative Law Judge Tim Lee.

C. An article from U.S.A. Today regarding the increase in rents due to the current "credit crunch" in the mortgage markets.

IV. Remarks from the Public (cont.)`

F. Attorney Karen Uchiyama asked questions regarding the denial of the landlord's appeal, specifically, if the failure of the landlord to appear was due to attorney error, whether it was akin to a default judgment in Superior Court, or if there was a decision on the merits.

G. One of the tenants at 106 Crespi Drive expressed concern because Tenant Commissioner Becker recused himself from consideration of the Parkmerced appeals, whereas Landlord Commissioner Murphy did not, and he knows the representative for Parkmerced, Burt Pollacci.

H. The tenant in the case at 115 Haight Street #5 (AT070178) told the Board that she told management there were leaks in the closet, but they didn't do anything. She said that the problem wasn't just with the window, but the closet as well.

VII. Calendar Items

September 11th, 18tj and 25th, 2007 - NO MEETINGS

October 2, 2007

7 appeal considerations

VIII. Adjournment

President Gruber adjourned the meeting at 7:00 p.m.

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