January 8, 2008

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

Staff Present: Lee; Wolf.

Commissioner Murphy appeared on the record at 6:50 p.m.

MSC: To approve the Minutes of December 11, 2007.

(Hurley/Henderson: 5-0)

A. Landlord Arthur Minassian of 1393 – 27^th Ave. #2 (AL070205) told the Board that the comments by the Administrative Law Judge in her response memo regarding his case did not reflect the comparables petition that he submitted.

B. Tenant Carl Ricitelli of 350 Laguna Honda (AT070207) said that the building still doesn't have heat and that he gave sworn testimony regarding this at the hearing. Mr. Ricitelli felt as through the Administrative Law Judge was calling him a liar.

C. Attorney Wesley Wakeford spoke on behalf of his client, tenant Julia Nelson of 3531 – 21^st St. (AT070208). Mr. Wakeford asked that the Board permit the tenant's untimely appeal because, at the time the decision was issued, the tenant did not have the resources nor understand how to pursue an appeal. Mr. Wakeford said that the decision is still having repercussions today as the amount of the rent increase makes the unit prohibitively expensive and the tenant can't get a roommate. Mr. Wakeford expressed his belief that the financial hardship of a prior tenant should not cause the tenant's rent to go up beyond the amount specified in her lease.

D. Attorney Clifford Fried spoke on behalf of the landlord in the case at 1550 Fell, Unit B (AL070204). Mr. Fried said that there was no opposition by the tenants to the rescission of the Ellis notice, and that the only opposition was coming from the Rent Board. Mr. Fried maintained that a note in the file regarding a conversation between the tenant and a Rent Board staff member cannot be considered evidence because it is not sworn testimony and was not introduced by the landlord or the tenant. Mr. Fried asked that the Board reverse the decision, which he believes is "unconstitutional."

E. Tenant Rachael Meyer of 1624 Sacramento #3 (AL070209) told the Board that the subject unit is her roommate's principal place of residence although she is a member of a "non-traditional family." Ms. Meyer said that the landlord's proposed rent increase presents a financial hardship, that the landlord's evidence was illegitimate "hearsay," and that the landlord is motivated by profit in a hot rental market.

F. Attorney Steve Williams spoke on behalf of the landlord at 1624 Sacramento. Mr. Williams said that this is not a hardship case, as the tenant owns her own property, and that she has been getting tax advantages and then claiming ignorance. Mr. Williams told the Board that the tenant testified falsely on several points at the hearing and that they shouldn't "countenance deception." Mr. Williams asked that the Board overturn the decision.

G. Landlord Mary Creigher of 3531 – 21^st St. said that the landlords reduced the rent because the original tenant was suffering a hardship. Ms. Creigher told the Board that the appeal procedure was explained orally at the hearing and is also in the decision. It is now two years later and the decision is being appealed.

The tenant's appeal was filed approximately eight months late because of the illness and subsequent death of the tenant's husband and consequent legal matters.

The landlord's petition for rent increases based on increased operating expenses in this multi-unit complex was granted. One tenant appeals the retroactive amounts owed on the grounds of financial hardship.

The landlord's petition for approval of utility passthroughs for 14 of 38 units was granted. The tenant in one unit appeals the decision on the grounds of financial hardship.

The tenant's appeal was filed over three weeks late because the tenant was out of the country at the time the decision was issued.

The tenant's petition alleging substantial decreases in housing services was denied because the Administrative Law Judge found that the problems were not substantial or that the landlord remedied them soon after receiving notice from the tenant. The tenant appeals, asserting that: the landlord lied at the hearing; the landlord and his wife do not have experience in property management; there are many habitability problems on the premises; one of the reputed owners is not listed in the records at City Hall; and the landlord has discriminated against him.

The landlord's request for rescission of a Notice of Intent to Withdraw Residential Units from the Rental Market was denied because the ALJ found that the landlord failed to prove that no tenant vacated the subject unit as a result of the landlord's Ellis filing, nor that any extraordinary circumstances exist to justify rescission. On appeal, the landlord argues that: the tenants had decided to vacate the premises prior to the issuance of the Ellis notices, but had not disclosed this to the owner; the decision was based on an ex parte communication between one of the tenants and a staff member at the Rent Board, which did not allow for cross-examination or rebuttal by the landlord; the ALJ ignored the uncontroverted evidence that was presented by the landlord; no tenant vacated the unit because of the Ellis filing; and the landlord's due process rights were violated, as were Sections 11.17(a) and (b) of the Board's Rules and Regulations.

The landlord's petition for a rent increase based on comparable rents was denied because the Administrative Law Judge (ALJ) found that the initial rent had not been set very low, even though there was a special relationship between the parties. On appeal, the landlord claims that: the rental ads he submitted showed that comparable units rented for an average of $324 more per month than the subject unit; the ALJ should have made the tenant prove his contention that the initial rent was set at close to market; and the rent having been set 18.8% lower than the average comparable rent constituted a significant disparity.

The landlords' petition for 7% rent increases to 2 of 12 units based on increased operating expenses was granted. The tenant in one unit appeals the decision, claiming that there is not adequate heat in the building, although the tenants failed to provide proof of this at the hearing.

The tenant's petition alleging an unlawful rent increase was denied because the ALJ found that the rent had been temporarily discounted due to the financial difficulties of a prior tenant. The tenant appeals, maintaining that: when she moved in to the unit, she was not informed that the rent had been temporarily reduced; she has a valid lease with the landlords at the reduced base rent amount; it is more likely that the rent was reduced due to market conditions; the rent is again being increased, resulting in an $825 monthly rent increase since August of 2004; and the rent is more than comparable units of nicer quality. The tenant's appeal was filed almost two years late because of work commitments at the time the decision was issued.

The landlord's petition for a determination pursuant to Rules Sections 1.21 and 6.14 and Costa-Hawkins was denied because the ALJ found that the subject unit is the tenant's principal place of residence. On appeal, the landlord maintains that: the tenant takes a Homeowner's Exemption on a property he purchased in Richmond, California and represented to various government agencies that the Richmond property is his principal place of residence; the tenant's testimony cannot be found credible considering these misrepresentations; the record was left open for the tenant to produce evidence he failed to provide; the utility bills for the subject unit are inconsistent with full-time residential use; and the tenant's credit card bills show that he purchases gasoline in proximity to the Richmond address.

The tenants' petition alleging an unlawful rent increase from $2,084.80 to $3,550.00 was granted because the ALJ found that the original tenant still permanently resides in the unit, even though she spends weekends in Greenbrae at a house she owns with her husband. The landlord appeals, arguing that: the tenant filed for a homeowner's tax exemption two years after purchasing the home, demonstrating that she did not mistakenly request this benefit while signing voluminous documents at the time of purchase; a neighbor spoke of seeing the tenant at the Greenbrae residence "a lot," while the landlord's agent rarely saw her at the subject unit prior to the filing of the petition; the tenant uses the Greenbrae address for certain bank accounts, car registration and insurance; the tenant perjured herself at the hearing; and the tenant is making a profit off of the subject unit.

In addition to correspondence concerning cases on the calendar, the Commissioners received an article from SFGate regarding the eviction of Bianca Jagger from her New York apartment because it was found not to be her principal place of residence.

Executive Director Wolf briefly discussed the Mayor's Inauguration and a goodbye dinner for Commissioner Becker with the Board.

H. Attorney Clifford Fried expressed his opinion that the issue regarding the note from staff in the file is one of weight, not admissibility, and that the agreement between the landlord and the tenant is presumptive, pursuant to the Evidence Code. Mr. Fried said that the Rent Board's Ellis Act procedures aren't in writing, which is problematic for the public. He informed the Board that their policy regarding rescissions of Ellis notices says that tenancies must not be terminated, not that the tenant didn't move out. He also expressed his opinion that staff shouldn't be calling the parties and investigating these cases.

I. Landlord Arthur Minassian told the Board that the ALJ didn't properly consider the evidence he submitted. He said that all of his comparables were within 14 blocks of the subject unit, which is the same general area. He reminded the Board that perfect comparability isn't required and said that the ALJ ruled in favor of the tenant's argument, without any evidence. Mr. Minassian believes that the decision is unfair, that $230.00 per month is a significant sum and that he did not do a "poor job" of putting together his petition.

January 15, 2008 - NO MEETING

January 22, 2008

7 appeals

New Business: Standard for Rescinding Ellis/OMI Notices of Constraints and the Role of Rent Board Staff in Processing Requests for Rescission and Other Petitions

President Gruber adjourned the meeting at 8:15 p.m.