June 24, 2008

Commissioners Present: Beard; Gruber; Henderson; Hurley; Mosbrucker.

Commissioners not Present: Justman; Mosser; Murphy.

Staff Present: Lee; Wolf.

Commissioner Marshall appeared on the record at 6:10 p.m.

MSC: To approve the Minutes of June 10, 2008.

(Mosbrucker/Henderson: 5-0)

A. Tenant Robert Hughes of 543 Buena Vista West (AL080061) told the Commissioners that there has been no working elevator in the building since October. The landlord stated that the elevator was repaired in November, and that he is just waiting for the State to certify the work. Mr. Hughes informed the Board that three tenants from the building with medical problems were present at the meeting.

B. Attorney Steven Littman, representing the landlord at 407 Randolph (AL090059), said that the plaintiff would be willing to have the case remanded on the issues of Rules ß1.21 and Costa-Hawkins. Mr. Littman also asked that the Board address the issue of permanent residence, as he believes that the filing of a Homeowner's Exemption should create a presumption of principal place of residence, and the Board should adopt a conclusive rule on the effect of such a filing.

C. Tenant Gary Near of 1408 California (AT080018) told the Board that the Minutes of May 20^th are "fundamentally inaccurate" as to his comments as follows: his motion to disqualify President Gruber from consideration of his appeal was based on a financial relationship with his landlord, rather than personal; he referred to on-going investigations of his landlord by other City agencies, which he believes are likely to lead to a federal investigation; and, in the summary of the case, there is no mention of the Board's ruling on his request for President Gruber's disqualification. Mr. Near said that his remarks would be unnecessary if the Board would record its meetings.

D. Richard Dearborn spoke on behalf of the tenant at 2525 Judah (AL080054), who he has known for a long time. Mr. Dearborn attested to the fact that the tenant uses all three of the units he rents as his principal place of residence, and said that the landlord's statement is "filled with inaccuracies."

E. Robert Valverdie also spoke on behalf of the tenant at 2525 Judah, saying that the law is clear and the landlord's appeal is frivolous. Mr. Valverdie said that he has known the tenant for 30 – 40 years, and didn't think there was a problem with using three apartments as one residence.

F. Tenant Nushin Mavaddat of 2525 Judah said that the Decision of the Administrative Law Judge (ALJ) is correct and should be upheld. Mr. Mavaddat told the Board that he provided ample evidence that the units have constituted a single home for himself and his family for over twenty years, and that the owner leased the apartments to him with full knowledge. He said that it is not true that there is commercial use, nor that the units are used as an office for employees, or a religious meeting place.

The tenants' appeal was filed approximately 1-1/2 months late because the tenants are monolingual Chinese speakers.

The landlord's petition seeking rent increases to 5 of 12 units was granted. The tenants in one unit appeal the decision on the grounds of financial hardship.

The landlord's petition for a determination pursuant to Rules ß1.21 was granted, as the Administrative Law Judge (ALJ) found that the tenant uses the subject unit for commercial purposes only. The tenant failed to attend the hearing. On appeal, the tenant claims not to have received the Notice of Hearing, as he was out of the country.

The tenant's petition alleging unlawful rent increases was granted because the ALJ found that the tenant occupies two proximate units in the building as his principal place of residence and his mother occupies a third, for which the tenant pays rent. On appeal, the landlord claims that: the tenant's use of three units is contrary to the public policy goals of the Rent Ordinance; one of the units is being used as an office, meeting space and for guests, rather than housing, and there is no commercial rent control; it is unfair that owners are limited to one unit for purposes of owner-occupancy eviction, while tenants can receive the benefit of rent control in more than one unit; and the unit occupied by the tenant's mother should qualify for a Costa-Hawkins or Rules ß6.14 increase.

^{MSC: To deny the appeal. (Marshall/Henderson: 4-1;}

^{Gruber dissenting)}

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 $2,800.00 due to habitability problems on the subject premises. On appeal, the landlord claims that: the back door cannot be locked, as it would be a violation of the building code; and the heater emitted a foul odor because the tenant failed to clean it, as required by his lease.

The landlord's petition seeking a determination as to whether a rent increase is warranted pursuant to Costa-Hawkins was denied because the ALJ found that the tenants still permanently reside on a part-time basis at the subject unit. On appeal, the landlord maintains that: the original tenants occupy the subject premises no more than 1-2 days per week; the current occupant moved in after January 1, 1996; the fact that the tenants take a Homeowner's Exemption on another property creates a presumption that the subject unit is not their principal place of residence; the decision defeats the purpose of Costa-Hawkins; and the case should be remanded for a determination under Rules ß1.21.

The tenant's petition requesting that the Rent Board determine his lawful rent was granted in part and denied in part. The Administrative Law Judge found that while a rent increase from $748.65 to $1,150.00 was warranted pursuant to Costa-Hawkins, the rent increase notice was null and void because it failed to name the tenant petitioner. The tenant appeals, asserting that: on his visa application, he is registered at his partner's unit in Amsterdam because it is a requirement in order to remain longer than the three months allowed on a tourist visa; he is temporarily away pursuing language studies; the landlord has known of his situation and yet cashed his rent checks for over two years; and he has never terminated his tenancy at the subject unit. The landlord also appeals that portion of the decision voiding the rent increase on the grounds that: original occupants who no longer permanently reside in the unit do not need to be served with the notice of rent increase, especially as the Rent Board's interpretation of the "no longer permanently resides" standard of Costa-Hawkins assumes that the tenant has severed his ties to the unit; and the current occupant of the unit is not a subtenant but, rather, an assignee, who now has privity of estate with the landlord and is the only party affected by the change in terms of tenancy.

Three tenant petitions alleging decreased housing services due to a broken elevator were granted and the landlord was found liable to the tenants for rent reductions valued at 15% of the tenants' base rents during the time the elevator has been inoperable. On appeal, the landlord claims that: the ALJ is biased and he did not receive a fair hearing; the San Francisco Department of Building Inspection does not have jurisdiction over elevators; he made diligent efforts over a four-month period to locate an elevator company willing to make the needed repairs; there were inconsistencies in the testimony offered by one of the tenants, which was at odds with the observations of the landlord; the rent reduction is excessive for a temporary inconvenience; the landlord was trying to avoid a large passthrough to the tenants by not installing a new elevator; and the Rent Board does not have the authority to impose a punitive penalty.

In addition to correspondence concerning cases on the calendar, the Commissioners received two articles from BeyondChron and one from the New York Times.

Executive Director Wolf told the Board that three measures have been referred to Committee by the Board of Supervisors for possible inclusion on the November ballot: an anti-landlord harassment measure; inclusion of families with children as a protected class for purposes of OMI eviction; and bringing owner-occupied duplexes under the City's condominium conversion law. Ms. Wolf also informed the Commissioners that she would be on vacation from June 30th through July 18th.

G. Jean-Pierre Guittard asked for clarification regarding the disability standard that is used for determining protected status.

Commissioner Gruber expressed his desire to see more specific credibility determinations in ALJ decisions. Commissioner Hurley wondered if it would reduce the number of no-shows at hearings if staff would call parties prior to hearings.

President Gruber adjourned the meeting at 7:45 p.m.