June 10, 2008
MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, June 10, 2008 at 6:30 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level
I. Call to Order
President Gruber called the meeting to order at 6:35 p.m.
II. Roll Call
Commissioners Present: Beard; Gruber; Henderson; Hurley; Marshall; Mosser.
Commissioners not Present: Justman; Mosbrucker.
Staff Present: Gartzman; Koomas; Wolf.
Commissioner Murphy appeared on the record at 6:38 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of May 20, 2008.
(Henderson/Hurley: 5-0)
IV. Consideration of Appeals
A. 1059 Leavenworth #12 AL080044
The tenant's petition alleging decreased housing services was granted, in part, and the landlord was found liable to the tenant in the amount of $1,700.00 due to habitability problems in the subject unit. The landlord failed to appear at the hearing and claims on appeal not to have received notice of the hearing, attaching the requisite Declaration of Non-Receipt of Notice of Hearing.
MSC: To accept the appeal and remand the case for a new hearing. (Henderson/Gruber: 5-0)
B. 1616 Taylor #7 AT080047
The landlord's petition for approval of utility passthroughs to 4 of 11 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. (Murphy/Marshall: 5-0)
C. 405 Serrano 5D AT080048
The landlord's petition seeking approval of utility passthroughs in this multi-unit complex 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. (Murphy/Marshall: 5-0)
D. 2070 Pacific #501 AT080050
The tenant's appeal was filed ten days late because she was out of the country at the time the decision was issued.
MSC: To find good cause for the late filing of the appeal. (Marshall/Henderson: 5-0)
The landlord's petition for approval of utility passthroughs for 8 of 29 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. (Marshall/Henderson: 5-0)
E. 7A Gonzalez Dr. AT080045
The tenant's appeal was filed four days late because the tenant allegedly did not understand the time frame for filing and feels that time must be allotted for the receipt of mail.
MSC: To find good cause for the late filing of the appeal. (Murphy/Marshall: 5-0)
The landlord's petition for approval of utility passthroughs for 5 of 16 units was granted. One tenant appeals on the grounds that: the increase is discriminatory, since it is not being assessed to all tenants; the laundry room is dirty and the washers and dryers are frequently inoperable; the cost of the laundry room machines has gone up and should be covered by the annual rent increase; the landlord does not pay for the utilities to her unit; and there are habitability defects on the premises.
MSC: To deny the appeal. (Murphy/Gruber: 5-0)
F. 520 Holloway Ave. AL080049
The landlords' Petition for Extension of Time to do Capital Improvement Work was denied because the landlords failed to obtain all necessary permits prior to issuing the notice to vacate. The landlords appeal, asserting that they received assurances from a Rent Board staff member that their petition was properly prepared prior to their filing it.
MSC: To accept the appeal and remand the case to the Administrative Law Judge on the record to vacate the decision and grant the petition pursuant to Rules and Regulations Section 2.18. (Henderson/Murphy: 5-0)
G. 2040 Franklin #708 AL080046
The landlord's Petition for Extension of Time to do Capital Improvement Work was denied because the ALJ found the landlord's time estimate for completion of the project to be unreasonable. The landlord appeals, maintaining that: the ALJ impermissibly relied on post-hearing submissions from the tenant and the tenant's two witnesses, who had not seen the subject unit; the tenant's post-hearing submissions should not have been considered by the ALJ; the tenant failed to provide evidence requested by the ALJ; and evidence provided by licensed professionals who had been inside the unit should have been given more weight.
MSC: To accept the appeal and remand the case to the Administrative Law Judge for a supplemental hearing. Evidence already in the record does not have to be re-submitted; any additional evidence must be submitted no later than five days prior to the remand hearing. Any witnesses must be present at the hearing or available for phone testimony. (Marshall/Henderson: 5-0)
H. 221A Douglass St. AL080051
The landlords' Petition for Extension of Time to do Capital Improvement Work was denied because the landlord did not have all the necessary permits prior to issuing the Notice to Vacate. The landlord appeals, explaining that: the landlords had the only permit required to commence the work; the electrical and plumbing permits were approved, but had not been picked up by the contractor; the tenants were not prejudiced in any way and were given more notice than was legally necessary; and the landlords are trying in good faith to complete the work as expeditiously as possible.
MSC: To accept the appeal and remand the case to the Administrative Law Judge on the record to vacate the decision and grant the petition pursuant to Rules and Regulations Section 2.18. (Murphy/Gruber: 5-0)
I. 272 Downey St. #1 AL080052
The tenant's petition alleging decreased housing services was granted, in part, and the landlord was found liable to the tenant in the amount of $1,437.50 due to a broken light fixture and exposed wiring in the kitchen and the landlord's failure to maintain the common areas of the property. On appeal, the landlord claims that: the tenant took down the light fixtures in the unit and replaced them with his own fixtures; and the garbage area of the property is not dirty.
MSC: To deny the appeal. (Marshall/Henderson: 5-0)
J. 264 B Carl St. AL080053
The tenant's petition alleging unlawful rent increases was granted and the landlord was found liable to the tenant in the amount of $13,634.33. On appeal, the landlord asserts that: the storage space is being used for commercial purposes; the space is in a separate building and was never represented as part of the tenant's housing services; and the tenant was not truthful at the hearing.
MSC: To deny the appeal. (Marshall/Henderson: 5-0)
V. Public Hearing
Proposed Amendments to Rules Sections 12.14(d) Regarding
Disability Determinations Pursuant to Ordinance ß37.9(i)(1)(B)(i) and
Rules ß1.12 Regarding Calculation of the Allowable Annual Rent Increase
The Board convened a Public Hearing at 7:10 p.m. on proposed amendments to Rules Sections 12.14 and 1.12 to clarify that there is no "means test" for purposes of a tenant's qualifying for protected status as disabled and to reflect the correct month for calculating the allowable annual rent increase. No one spoke on the proposed change to Rules Section 1.12. Four persons addressed the Board regarding the proposed amendments to Section 12.14 as follows below:
1. Victoria Tetter of the Independent Living Resource Center expressed her support for the proposed amendments to Rules ß12.14. She told the Board that there shouldn't be a means test for disability, since the other categories of protected tenants do not have one. She then explained the differences between several of the welfare programs available to the disabled.
2. Jamie Rush, Housing Attorney for the Aids Legal Referral Panel, read a statement in support of the proposed amendments, which Commissioner Henderson asked to be incorporated into the record to justify passage of the changes:
ALRP serves people living with HIV/AIDS without regard to income or means because we recognize a need that is a consequence of the disease itself and its myriad associated health problems. People living with HIV/AIDS and other disabilities face serious challenges regardless of the amount or source of their income.
Lawmakers have responded to these challenges by creating protections for people with disabilities. In the case of OMI evictions, the Supervisors determined that those who would face the most severe consequences as a result of such evictions are long-term disabled and elderly tenants, for whom the loss of housing would be likely to have a catastrophic impact. Because of the difficulties inherent in having to search for new housing and undertake a move, these tenants are at especially high risk of ending up homeless or in temporary and substandard housing. And this risk is present for folks with varying levels and sources of benefits. For my clients living with HIV/AIDS, access to safe, stable housing is critical to their ability to maintain their health, and I can attest to the fact that my clients who end up in substandard housing or in shelters experience a significant decline in their condition.
While responding to the needs of disabled and elderly tenants, the Supervisors made the decision not to use a broad definition of disability like the ADD definition. Instead, they chose to employ the more restrictive disability standard used for Social Security benefits. It seems clear that this decision was meant only to limit the definition as it relates to the disabling condition or diagnosis, and not to impose further, non-disability-related eligibility requirements, such as a means test.
The Supervisors could not have intended to create a test under which two people could have identical health conditions, identical durations of tenancy, and identical monthly incomes, but one is not protected because his income comes from SSDI instead of SSI.
The language used to define disability for purposes of both SSI and SSDI is quite explicit: a " . . . physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months."
What possible reason could there be to deny protection to someone who meets this definition – someone diagnosed with an impairment that is expected to result in death – for the mere reason that she has a work history that qualifies her for SSDI benefits?
This issue is going to continue to arise until the definition is clarified. As evidenced by the declaratory relief cases, as well as numerous matters that have come before the Rent Board, the current procedure is to decide the issue on a case-by-case basis. For a disabled tenant, the stress of having to go through this prolonged process, all the while being unsure whether he is going to be forced out of his home, can have a serious detrimental impact. Clarifying the definition with this amendment will save the time and resources of attorneys, the court, and the Rent Board; but more importantly it will relieve disabled tenants of at least some of the stress and anxiety associated with this inherently traumatic process.
3. Attorney Solvejg Rose reminded the Commissioners that it was she who had initially requested that the amendments be made, and she would not repeat her comments from previous meetings. Ms. Rose expressed her satisfaction that the proposed amendments accomplish the intent of the Board of Supervisors.
4. Ken Bass told the Board that he is a tenant who is facing the situation contemplated by the proposed amendments. Mr. Bass receives SSDI payments that make him ineligible for SSI, and he was not considered to be disabled as a result. Mr. Bass reported that he had to spend a great deal of money to prove his disabled status.
The Public Hearing concluded at 7:22 p.m. The Board then voted as follows:
MSC: To adopt the proposed amendments to Rules Section 12.14. (Marshall/Henderson: 5-0)
MSC: To adopt the proposed amendment to Rules Section 1.12. (Henderson/Marshall: 5-0)
VI. Communications
In addition to correspondence concerning cases on the calendar, the Commissioners received the following communications:
A. Several articles from CNN.com, the S.F. Chronicle, the San Francisco Daily Journal, and the New York Times.
B. The office workload statistics for the month of April.
C. The Court of Appeal Decision in the case of Baychester Shopping Center v. S.F. Rent Board (A118684), regarding successor liability.
VII. Director's Report
Executive Director Wolf introduced new Citizens Complaint Officer Joey Koomas to the Commissioners. She informed the Board that the Department did very well at the hearings before the Budget Committee of the Board of Supervisors: Committee Chair McGoldrick restored the Citizens Complaint Officer position that had been deleted. Ms. Wolf also informed the Board that several staff members would be volunteering to assist with the additional marriage ceremonies that will be held at City Hall during the weeks of June 16th and 23rd. Senior Administrative Law Judge Sandy Gartzman told the Board that an amendment to the Ordinance allowing for a passthrough of the increase in water rates will be going before the Housing and Land Use Committee of the Board of Supervisors on Monday, June 30th.
VIII. Remarks from the Public
Landlord Dee Rich of 272 Downey Street (AL080052) told the Board that the tenant took the fixtures in the unit down without her knowledge and also painted the flat red. Ms. Rich said that she spent $5,000 re-doing the flat before the tenant moved in. She believes that she has ten reasons to evict the tenant, but would rather work it out. Now, according to Ms. Rich, this may no longer be possible.
IX. Calendar Items
June 17, 2008 – NO MEETING
June 24, 2008
7 appeal considerations
X. Adjournment
President Gruber adjourned the meeting at 7:40 p.m.