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May 6, 2008

May 6, 2008

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

Tuesday, May 6, 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; Hurley; Mosbrucker; Mosser.

Commissioners not Present: Justman; Marshall.

Staff Present: Lee; Wolf.

Commissioner Murphy appeared on the record at 6:30 p.m.

III. Approval of the Minutes

MSC: To approve the Minutes of April 22, 2008.

(Mosbrucker/Henderson: 5-0)

IV. Remarks from the Public

A. James Coy Driscoll, Attorney for the tenant at 3014 Clay (AL080024), told the Board that the tenant hasn't been able to stay at the unit because she is the primary caregiver for her husband, who has cancer. Since there is a subtenant in occupancy on the premises, no rent increase was granted. Mr. Driscoll asked that the Commissioners uphold the Decision and deny the appeal.

B. Tenant Danilo Montemayor of 601 Leavenworth (AT080035) told the Board that English is his second language and that circumstances in the building forced him to file a petition. Mr. Montemayor said that the elevator hasn't been working for almost four weeks, and he lives on the fourth floor. He has lived in the building for twenty-six years and this is the seventh manager, who doesn't do anything. Mr. Montemayor explained that he missed the hearing because he went to the Philippines.

C. Attorney Solvejg Rose reiterated her request that the Board amend Rules ß12.14(d) to clarify that the intent of the Board of Supervisors was to protect disabled tenants from owner move-in eviction, without regard to their income or resources. Ms. Rose said that the Supervisors did not want to exclude tenants who had resources of more than $2,000, nor undocumented workers.

D. Tenant Jane Rocio Evans of 310 Columbus (AT080029) told the Board that the three letters from Rod Wong of the Eviction Unit to her landlord affirmed the presence of bedbugs in her unit. Ms. Evans said that she was unaware of her right to file a petition alleging decreased housing services, and that she did not speak to the landlord directly because he was abusive. Ms. Evans told the Board that the landlord filed an Unlawful Detainer even though he was told she was going to move out, which "attests to his character."

V. Consideration of Appeals

A. 601 Leavenworth, Apt. 41 AT080035

The tenant's petition alleging decreased housing services was dismissed due to his failure to appear at the properly noticed hearing. On appeal, the tenant provides evidence to demonstrate that he was out of town at the time the hearing was noticed.

MSC: To accept the appeal and remand the case for a new hearing; should the tenant again fail to appear, no further hearings will be scheduled. (Henderson/Mosbrucker: 4-1; Hurley dissenting)

B. 935 Geary St. #904 AT08003

The tenant's appeal was filed seven months late because the tenant thought that his attorney has successfully appealed the imposition of the utility passthrough approved by the Administrative Law Judge.

MSC: To find good cause for the late filing of the appeal. (Henderson/Mosbrucker: 4-1; Gruber dissenting)

The tenant's hardship appeal of a decision approving utility passthroughs was dismissed due to the tenant's failure to appear at the properly noticed remand hearing. On appeal, the tenant explains that he was ill on the day of the remand hearing and thought that his attorney would represent him.

MSC: To accept the appeal and remand the case for a new hearing; should the tenant again fail to appear, absent extraordinary circumstances, no further hearings will be scheduled. (Murphy/Mosbrucker: 5-0)

C. 174 Turk #203 & 304 AT080033 & -34

Two tenant petitions alleging substantially decreased housing services were dismissed due to the tenants' failures to appear at the properly noticed hearing. On appeal, the tenants explain that one of the tenants was incapacitated by a severe coughing spell and the other tenant had to watch his young daughter until it had passed. By that time, it was too late to make it to the hearing, and the petitions had been dismissed.

MSC: To accept the appeals and remand the cases for a new hearing; should the tenants again fail to appear, no further hearings will be scheduled. (Henderson/Mosbrucker: 5-0)

D. 429 Bush #53 AT080027

The tenant's appeal was filed one day late because the tenant needed help in completing the Hardship Application form.

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

The landlord's petition for approval of utility passthroughs for 14 of 28 units was granted. One tenant appeals the decision on the grounds of financial hardship.

MSC: To accept the appeal and remand the case for a hearing on the tenant's claim of financial hardship.

(Henderson/Mosbrucker: 5-0)

E. 1351 Mason #2 & 11 AT080025 & -26

The landlords' petition for rent increases based on increased operating expenses for 5 of 12 units was granted. The tenants in two units appeal the decision on the grounds of financial hardship.

MSC: To accept the appeal of the tenants in unit #2 and remand the case for a hearing on the tenants' claim of financial hardship.

(Mosbrucker/Henderson: 5-0)

MSC: To accept the appeal of the tenant in unit #11 and remand the case for a hearing on the tenant's claim of financial hardship.

(Mosbrucker/Henderson: 5-0)

F. 536 Leavenworth #36 AT080030

The landlord's petition for utility passthroughs for 22 of 62 units was approved. One tenant appeals the decision on the grounds of financial hardship as well as the claim that she never uses any of the building's parking spaces.

MSC: To accept the appeal and remand the case for a hearing on the tenant's claim of financial hardship only. (Mosbrucker/Henderson: 5-0)

G. 310 Columbus #205 AT080029

The tenant's petition alleging decreased housing services was denied because the Administrative Law Judge found that the tenant had failed to notify the landlord of the alleged problems, and thereafter failed to pay rent. The tenant appeals, claiming that: the landlord was notified of the problems by a Rent Board staff member who was investigating her wrongful eviction claim; there are factual errors in the Decision; there were serious habitability problems on the premises; the ALJ abused her discretion in this case; and the landlord retaliated against her by filing an unlawful detainer when she was planning to move out.

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

H. 455 Arlington #9 & 10 AL080031 & -33

The tenants in two units filed petitions alleging substantial decreases in housing services because of the landlord's refusal to provide additional keys to the front door of the building. The landlord failed to appear at the properly noticed hearing. The petitions were granted and the landlord was found liable to the tenants in the amount of $50.00 per month. On appeal, the landlord claims not to have received notice of the hearing because of a calendaring error. Additionally, the landlord asserts: that no testimony or evidence was received from one of the petitioners, who appeared by representative; that the Ordinance does not require that a key be provided for an unidentified "emergency contact person" nor unidentified others; that the rent reduction is excessive as to the unit with the lower base rent; and that there has been no reduction in housing services as the locks were changed to enhance safety and security at the building.

MSC: To accept the appeals and remand the cases to the Administrative Law Judge for a new hearing. (Mosbrucker/Murphy: 5-0)

I. 3014 Clay #1-A AL080024

The landlord's petition seeking a rent increase pursuant to Rules ß1.21 and/or Costa-Hawkins was denied. Although the Administrative Law Judge found that the subject unit is not the tenant's principal place of residence, there is a subtenant on the premises who is a "Tenant in Occupancy" and therefore no increase was warranted pursuant to ß1.21. Additionally, the tenant was determined to still "permanently reside" at the subject unit, so a Costa-Hawkins increase was precluded as well. On appeal, the landlord argues that the subtenant does not occupy the subject unit as his principal place of residence, and he does not reside in the unit with the knowledge and consent of the landlord.

MSC: To deny the appeal. (Mosbrucker/Henderson: 3-2; Gruber, Murphy dissenting)

J. 3489 – 17th</> St. AL080028

The tenant's petition alleging an unlawful rent increase was granted because the ALJ found that the market increase was not authorized by Rules ß6.14 or Costa-Hawkins. On appeal, the landlord maintains that: the Cobb case is distinguishable from the instant case in that there was no dispute as to the status of the original tenant in Cobb, which must be determined in this case; the landlord never accepted the petitioner as a tenant; and the original tenant is no longer permanently residing on the premises, so a rent increase is warranted pursuant to Costa-Hawkins.

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

VI. Communications

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

A. Two articles from the S.F. Chronicle regarding two landlords in the South of Market accused of serious tenant harassment.

B. An article from the Sacramento Bee regarding Governor Schwarzenegger's opposition to Proposition 98 on the June ballot.

VII. Director's Report

Executive Director Wolf informed the Board that the Senate Judiciary Committee passed SB 1598, which requires a one-year notice to tenants that the building, including the interior of each unit, will become smoke-free. Rent controlled units could be converted to smoke-free, but only after the current tenant moves voluntarily. Tenant advocates remain opposed to the bill because smoking remains prevalent among low-income persons, and the bill could lead to even fewer housing choices among that population. Senior Administrative Law Judge Tim Lee told the Board that the Brown writ (Case No. 507716) regarding 2340 Filbert Street has been settled and dismissed. Ms. Wolf also let the Board know that Attorney Joey Koomas has been hired as a new Citizens' Complaint Officer and will start on June 2nd.

VIII. Old Business

Disability Determinations Pursuant to Ordinance ß37.9(i)(1)(B)(i)/

Proposed Amendments to Rules ß12.14(d)

The Commissioners continued their discussion of a request 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 ß37.9(i)(1)(B)(i). The Board was given a copy of the 2002 case of Tate v. Thompson (CUD-01-600545), which granted summary adjudication to the tenants on this same issue. Senior Administrative Law Judge Tim Lee told the Board that, although the case is unpublished and not binding, it could be helpful upon judicial notice, as the court likes to be consistent. Commissioner Mosbrucker remarked that the proposed amendment is too specific and involved; rather, the language just needs to make clear that the tenant only needs to meet the disability definition under the SSI Program, with no other qualifications. Sr. ALJ Lee will draft such language for the next meeting.

IV. Remarks from the Public (cont.)

E. Jane Rocio Evans told the Board that the landlord changed his story at the hearing. Ms. Evans believes that the ruling by the Board in her case is a "self-serving" attempt to cover up errors by staff and the Board, and she threatened an investigation. Ms. Evans urged the Board to look at her case again.

F. Tenant Geeta Bhadaura told the Board that she was subletting from a Master Tenant who gave her a notice to vacate for her own use. Ms. Bhadaura explained that some tenants are living for free in their units by making money off of other tenants, although they don't have the responsibilities of an owner. She also feels that tenants don't have the same remedies against Master Tenants as they do against an owner.

IX. Calendar Items

May 13, 2008 - NO MEETING

May 20, 2008

7 appeal considerations

Old Business: Disability Determinations

New Business: Rules ß1.12, Calculation of the Allowable Annual Increase

X. Adjournment

President Gruber adjourned the meeting at 7:26 p.m.

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