March 31, 2009

Commissioner Mosbrucker appeared on the record at 6:04 p.m.; Commissioner Hurley arrived at the meeting at 6:10 p.m.

MSC: To approve the Minutes of March 17, 2009.

(Henderson/Mosser: 5-0)

A. Landlord Robert Vorhees of 2813/15 19^th St. (AL090087) suggested that the agency also provide parties with e-mail notification of hearing dates.

B. Attorney Michael Hall, representing the landlord in the case at 3640 Fillmore (AL090091), said that the rent increase was declared invalid because a landlord/tenant relationship had been established, but the tenants had actually attempted to "fly under the radar." Mr. Hall told the Board that: the rent was tendered in the name of the original tenant, the tenant's sister; a Costa-Hawkins increase was given promptly after discovering that the original tenant had vacated; and the landlord did not recognize that the "illegible" signature on the checks was not that of the original tenant's. Mr. Hall maintained that several of the "core findings" of the decision are false, as demonstrated by the transcript of the hearing.

C. Landlord Leon Ribay of 738-40-42 Treat (AL090088) said that his capital improvement petition was dismissed because he was late to the hearing. Mr. Ribay explained that he had a stomach problem and had to go see his doctor in Daly City. Mr. Ribay requested another hearing, since he spent in excess of $54,000 on new back stairs.

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

(Mosbrucker/Henderson: 5-0)

The landlord's petition for certification of the costs of a new roof to the tenant in a single-family residence was granted, resulting in a monthly passthrough in the amount of $44.77. The tenant appeals the decision on the grounds of financial hardship.

The landlord's petition for certification of capital improvement costs was dismissed due to his failure to appear at the properly noticed hearing. The landlord appeals, providing evidence that he was out of the country at the time the hearing was scheduled.

The landlord's petition seeking certification of capital improvement costs was dismissed due to the landlord's failure to appear at the properly noticed hearing. On appeal, the landlord claims that a medical condition necessitated his seeing his doctor on the morning of the hearing.

The tenant's petition alleging decreased housing services was granted and the landlord was found liable to the tenant in the amount of $2,668.60 due to lack of a functional heating source and a changed parking configuration. The landlord appeals the decision on the grounds of financial hardship.

The landlord's petition seeking rent increases based on increased operating expenses to 4 of 5 units was granted. The tenant in unit #5 appeals the decision on the grounds that the base rent used to calculate the operating expense increase for his unit is incorrect. The tenant in unit #1 appeals the decision on the grounds of financial hardship.

The landlord's petition for approval of utility passthroughs for 39 of 50 units was dismissed because the landlord failed to provide evidence of the actual utility costs, including electricity, that were incurred. On appeal, the landlord explains that the current manager of the building was not informed of the deficiencies in the petition because that information was not forwarded by the former manager of the property.

The landlord's petition for certification of capital improvement costs to 46 of 115 units was granted. Two tenants appeal the decision on the grounds of financial hardship.

The tenant's petition alleging an unlawful increase in rent was denied because the Administrative Law Judge (ALJ) found that the rent increase from $663.13 to $1,600.00 was warranted pursuant to Rules ß6.14. A claim of failure to repair was denied because code violations were remedied as of the effective date of the notice. The tenant's decrease in services claim was partially granted and the landlord was found liable to the tenant in the amount of $300.00 due to lack of heat in the unit. The tenant appeals, claiming that: the ALJ engaged in ex parte communication with the landlord; neither she or her mother received or signed for the 6.14 notice; there was no heat in the unit for over eight years, despite repeated oral requests, rather than two months; and the rent increase presents her with a financial hardship.

The landlord filed a petition seeking a determination as to whether the subject single-family dwelling is subject to the jurisdiction of the Rent Board. The Administrative Law Judge found that, although the subject unit is separately alienable from any other dwelling unit, the continuing tenancy began before January 1, 1996 and the unit is therefore not exempt pursuant to Costa-Hawkins. On appeal, the landlord argues that the Estoppel Certificate provided by the tenants indicated that they moved in after January 1, 1996, upon which the landlord relied and the tenants are estopped from disclaiming; the Cobb case is inapplicable because it deals with vacancy decontrol after the last original tenant no longer resides on the premises; and evidence of the tenancy having commenced at an earlier date constitutes inadmissible hearsay.

The tenant's petition challenging a rent increase from $1,068.00 to $2,650.00 was granted because the ALJ found that the tenant was a tenant, and not a subtenant or assignee, and therefore the rent increase was not authorized by Costa-Hawkins. It was additionally found that a 6.14 notice was not timely served. On appeal, the landlords claim that: the landlords were unaware that the original tenant no longer lived in the unit until just prior to serving the notice of rent increase; the tenants intentionally concealed the fact that the original tenant no longer resided in the unit; the 6.14 notice was timely served; there are factual errors and incorrect conclusions in the decision; the landlord did not knowingly accept rent from the tenant; the Rent Board attempted to interfere in the judicial process to the detriment of the landlords; the petitioners presented only a partial evidentiary record, which may have been intentional, as well as hearsay; the ALJ disregarded the landlords' evidence; and the burden of proof was incorrectly placed entirely on the landlords.

The landlords' petition for a rent increase from $724.00 to $1,448.00 was denied because the ALJ found that the landlords failed to establish a comparable rent for the subject unit. The landlords appeal the decision, asserting that: the Rules and Regulations only require that the landlord show that the initial rent for the unit was set low, but not that they prove the amount of rent for a comparable unit; the landlords' expert reasonably proved that the subject unit's rent is lower than that of comparable units; and the ALJ exhibited bias against the landlords and for the tenants.

In addition to correspondence concerning cases on the calendar, the Commissioners received copies of articles from the San Francisco Business Times and the San Francisco Examiner.

D. Landlord Attorney Michael Hall told the Board that in the disposition of the case concerning 3640 Fillmore Street, it appeared that the Commissioners thought the landlord had the burden of proof. Mr. Hall said that all the issues were resolved against the landlord on the "flimsiest of evidence," there was nothing in the record to support several of the findings in the decision and there were several false statements in the findings.

President Gruber adjourned the meeting at 7:05 p.m.