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April 22, 2008

April 22, 2008

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

Tuesday, April 22, 2008 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: Beard; Gruber; Henderson; Justman; Mosbrucker; Mosser.

Commissioners not Present: Hurley; Marshall; Murphy.

Staff Present: Lee; Wolf.

III. Approval of the Minutes

MSC: To approve the Minutes of April 1, 2008.

(Henderson/Mosbrucker: 5-0)

IV. Remarks from the Public

A. Andy Braden, representing the landlord in the case at 10 Lupine (AL080019), told the Board that a new hydraulic elevator cylinder has been certified on at least four prior occasions and he thought the issue was settled. Mr. Braden expressed his opinion that the Ammiano amendments in 2003 did not change the definition of a capital improvement. He asked that the Board overturn the Decision of the Administrative Law Judge (ALJ) and make it clear that the lists of capital improvements in the Ordinance and Rules and Regulations are examples, and not exhaustive.

B. Attorney Solvejg Rose asked that the Board amend Rules ß12.14 to "fill out the details of the enabling legislation" and confirm the intent of the Board of Supervisors to protect catastrophically ill and disabled tenants from owner move-in eviction. Ms. Rose is defending a tenant in a Declaratory Relief action where the landlord is asserting that the tenant is not protected because he is receiving SSDI instead of SSI, and SSDI does not have a means test. Ms. Rose told the Board that Supervisor Ammiano's Office told her that it was not their intent that disabled or catastrophically ill tenants had to be low-income in order to qualify for protected status.

C. Tenant Gary Near of 1408 California (AT080018) requested a postponement of his appeal, scheduled for this evening's meeting.

D. Attorney Ray Rockwell, representing tenant Sandy Scott of 1200 Washington #10 (AL080007), told the Board that there was no error or abuse of discretion on the part of the ALJ. Mr. Rockwell told the Board that the tenant spends a great deal of time in Arizona, but her principal place of residence is the apartment in San Francisco. He asked that the Board deny the landlord's appeal.

V. Consideration of Appeals

A. 1408 California St. AT080018

The landlord's petition for approval of utility passthroughs to 20 of 37 units was granted. One tenant appeals the decision on the grounds that the landlord violated postal regulations and the decision constitutes an abuse of discretion on the part of the Administrative Law Judge. At the meeting, the tenant requested a postponement of the appeal consideration because the transcript he is having prepared is not yet available; he was hospitalized for an ear infection; the record is voluminous; there is no prejudice to the opposing party, who does not object; and the Board has granted continuances on other occasions.

MSC: To postpone consideration of this appeal to the May 20th Board meeting; no further continuances will be granted to the tenant for any reason. (Henderson/Justman: 5-0)

B. 1828 Mason AT080021

The landlord's petition seeking a determination pursuant to Rules ß1.21 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 maintain that: they use their Sea Ranch home as a business address because it is larger and has an art studio; they use it as a mailing address because the mailboxes at the subject property are not secure; they are registered to vote in San Francisco; several evidentiary items show the San Francisco address; there is currently no Homeowner's Exemption for the Sea Ranch address; the tenants were not given the opportunity to rebut some of the landlord's submissions, which were speculative and constituted hearsay; the Sea Ranch home is a second residence; and the landlord did not meet their burden of proof.

MSC: To deny the appeal. (Mosser/Gruber: 4-1;

Mosbrucker dissenting)

C. 436 Moraga St. AL080020

The tenants' petition alleging an unlawful rent increase and requesting a determination of the proper base rent was granted and the landlord was found liable to the tenants in the amount of $10,100.00. On appeal, the landlord objects to finding the landlord liable for the entire amount of the overpayment to the tenant petitioners, rather than granting them an amount in proportion to their actual rent payment; maintains that there could be future claims from prior co-tenants for their share of the rent overpayments; asserts that it is unfair for the tenant petitioners to receive a rent refund for a period of time prior to their having lived in the subject unit; and the decision constitutes a windfall to the tenant petitioners.

MSC: To deny the appeal. (Mosbrucker/Henderson: 5-0)

D. 827 Corbett #101, 102, 202, 203, 301 AL080023

The landlords' petition for extension of time to do capital improvement work was denied on procedural grounds because the ALJ found that the landlord failed to file the petition immediately after it became apparent that the work would take more than three months and failed to obtain all necessary permits prior to issuing notices to vacate. On appeal, the landlord contends that: the petition was timely filed because the landlord could not have foreseen new requirements imposed by the Department of Building Inspection and did not have the information required for filing; all permits reasonably believed to be necessary for the project were issued prior to the time eviction notices were issued to the tenants; and the ALJ was biased against the landlord because another building on the property had been Ellised.

MSC: To deny the appeal. (Mosbrucker/Henderson: 5-0)

E. 1200 Washington #10 AL080007

(rescheduled from 3/4/08)

The landlord's petition for a determination pursuant to Rules ß1.21 was denied because the Administrative Law Judge found that the subject unit is the tenant's principal place of residence. On appeal, the landlord argues that: the tenant failed to submit requested and essential evidence; the tenant made a misrepresentation at the hearing, which should call her credibility into question; most of the tenant's evidence consisted of her personal opinion; the landlord proved her case by a preponderance of the evidence, which is the proper standard; the burden of proof should have shifted to the tenant to justify her absence from the unit a majority of the time; and the subject unit is the tenant's second home, which does not constitute a principal place of residence. At the March 4th meeting, the landlord's request for a postponement was granted.

MSC: To recuse Commissioner Beard from consideration of this case. (Justman/Mosbrucker: 5-0)

MSC: To accept the appeal and remand the case to the Administrative Law Judge for a supplemental hearing to consider any new evidence introduced by either party. (Mosser/Henderson: 5-0)

F. 16 Crestline #4 AT080022

The tenant filed a petition contesting a rent increase from $685.13 to $2,850.00 and the landlord filed a petition requesting a determination as to whether the increase was justified pursuant to Rules ß6.14. The Administrative Law Judge found that the increase was lawful pursuant to Costa-Hawkins because the tenant is a lawful subtenant who did not continuously reside in the unit prior to January 1, 1996. On appeal, the tenant claims that: he did not contradict himself at the hearing but, rather, got confused about the dates he temporarily moved out of the subject unit due to stress; he has new evidence which proves that he lived in the unit prior to 1996; and the decision presents him with a financial hardship.

MSC: To deny the appeal. (Mosser/Gruber: 4-1;

Mosbrucker dissenting)

G. 10 Lupine Ave. AL080019

The landlord's petition for certification of capital improvement costs was granted, in part. The landlord appeals the portion of the decision finding that replacement of an elevator hydraulic cylinder and pump jack constitutes a repair, and not a capital improvement. The landlord argues that: the work meets the definition of a capital improvement in that prolonging the life of the elevator prolongs the useful life of the building; the normal life expectancy of such an elevator part is forty years, so replacement cannot be considered routine maintenance and repair; and this work has been certified upon remand in prior cases.

MSC: To accept the appeal and remand the case to the Administrative Law Judge on the record with instructions to certify the costs of the new hydraulic elevator cylinder and pump jack. (Mosser/Justman: 5-0)

VI. Communications

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

A. Ordinance No. 33-08, effective April 16, 2008, which adds subsection 37.9(j) to the Rent Ordinance to require sellers and purchasers to give tenants written disclosure of certain tenant rights before and after the sale of rental property.

B. An article from the Oakland Tribune regarding evictions due to foreclosure.

C. The office workload statistics for the month of March 2008.

D. An invitation to the Mayor's celebration of Asian Pacific American Heritage Month.

VII. Director's Report

Executive Director Wolf informed the Board that the Mayor's Office is requiring the Enterprise Departments as well as the General Fund Departments to take an 8% salary reduction for next year.

IV. Remarks from the Public (cont.)

E. Attorney Jerome Ghigliotti suggested that the landlord in the case at 436 Moraga write a $10,000 check to all of the possible parties and the tenants would then have to decide on an equitable division of the proceeds.

F. Andy Braden thanked the Board for his first 5-0 victory on the 10 Lupine appeal. Mr. Braden was not satisfied, however, as he wants the issue settled. He feels that the ALJ shouldn't have found the list of capital improvements to be exhaustive and definitive, but should have decided if the work meets the definition of a capital improvement. Mr. Braden believes that there is a "dependency on the lists instead of legal reasoning."

G. David Blumenfeld, Attorney for the landlord at 827 Corbett, said that he only heard the issue of the landlord's untimely filing discussed, and wondered whether the other two issues that he raised were considered. Mr. Blumenfeld told the Board that the fact that the landlord Ellised another property on the lot shouldn't have been discussed or noted in the Decision.

VIII. New Business

The Commissioners briefly discussed the request from an attorney at the firm of Crow and Rose that the Board amend Rules ß12.14(d) to clarify that income is not a factor in determining whether a tenant is disabled within the meaning of Ordinance 37.9(i)(1)(B)(i). Senior Administrative Law Judge Tim Lee expressed his concern that the wording of the suggested amendment changes the definition of disability in the Ordinance, which is something that only the Board of Supervisors can do. It was the consensus of the Board to continue discussion of this issue until Commissioners Marshall and Murphy are present.

IX. Calendar Items

April 29, 2008 - NO MEETING

May 6, 2008

10 appeal considerations

Old Business: Disability Determinations

X. Adjournment

President Gruber adjourned the meeting at 7:38 p.m.

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