May 20, 2008
MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,
Tuesday, May 20, 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 6:06 p.m.
II. Roll Call
Commissioners Present: Beard; Gruber; Henderson; Hurley; Justman; Marshall; Mosbrucker.
Commissioners not Present: Mosser.
Staff Present: Lee; Wolf.
Commissioner Murphy appeared on the record at 6:16 p.m.
III. Approval of the Minutes
MSC: To approve the Minutes of May 6, 2008.
IV. Remarks from the Public
A. James Coy Driscoll, Attorney for the tenant at 400 Dolores #7 (AL080041), told the Board that the tenant properly requested additional keys, which were refused by the landlord. The landlord failed to appear at the hearing, and is appealing on the grounds of non-receipt of the Notice of Hearing. Mr. Driscoll said that the landlord's negligence in calendaring the hearing did not provide a basis for granting the appeal, and asked that it be denied.
B. Tenant Carol Morgenstern of 1796 Beach (AT080037) told the Board that she was not properly served with a Rules ß 6.14 notice because she did not pick it up at the Post Office. Ms. Morgenstern said that she told the landlord she had moved in and the landlord thereafter accepted rent from her. She didn't appear at the hearing because she thought the landlord would be "true and clear," and she is only appealing the decision because the landlord gave falsified facts at the hearing.
C. Tenant Shane Tice of 1547 Clay #205 (AT080039) told the Board that their neighbors are harassing his family, but the landlord is saying that Mr. Tice is threatening the neighbors and harassing the building manager. The landlord is threatening to obtain a restraining order against him. Mr. Tice said that he has had no personal contact with the manager, who is now saying he's dangerous.
D. Tenant Gary Near of 1408 California (AT080018) spoke on behalf of himself and tenant Terry Perrin. Mr. Near submitted a Motion to Disqualify President Gruber due to a personal relationship with Mr. Near's landlord. Mr. Near alleged that there were perjured representations regarding ownership of the building; and a "secretive" e-mail from a Senior Administrative Law Judge (ALJ) to the landlord's representative. Mr. Near said that there is no such entity as "Citi Apartments" and that the ALJ did not take administrative notice of the other 39 petitions that were filed by the landlord on the last day of the year. Mr. Near told the Commissioners that there was an investigatory hearing before the Board of Supervisor's Land Use Committee regarding his landlord's "pervasive unlawful business practices and basic dishonesty." Mr. Near also threatened a federal investigation.
V. Consideration of Appeals
A. 1408 California AT080018
(post. From 4/22/08)
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 April 22nd meeting, the tenant's request for postponement of the appeal consideration was granted, with the stipulation that no further continuances would be granted to the tenant.
MSC: To deny the appeal. (Murphy/Gruber: 5-0)
B. 536 Leavenworth #44 & 1006 AT080042 & -43
The landlord's petition for approval of utility passthroughs for 22 of 62 units was granted. Two tenants appeal the decision on the grounds of financial hardship.
MSC: To accept the appeals and remand the cases for hearings on the tenants' claims of financial hardship. (Marshall/Murphy: 5-0)
C. 400 Dolores #7 AL080041
The tenant's petition alleging decreased housing services due to the landlord's failure to provide her with additional keys to the building was granted and the landlord was found liable to the tenant in the amount of $50.00 per month. The landlord failed to appear at the properly noticed hearing. The landlord appeals, explaining that the fax transmission he sent to his attorney concerning the hearing failed to transmit; and the restriction on providing additional keys was undertaken as a security measure.
MSC: To accept the appeal and remand the case for a new hearing; should the landlord again fail to appear, absent extraordinary circumstances, no further remand hearings will be scheduled. The tenant's reduced base rent shall remain in effect unless and until a different base rent is established by the Board. (Murphy/Marshall: 5-0)
D. 505 – 26th Ave. #1, 2 & 3 AL080040
The landlord's petition for certification of the costs of a new water heater was denied because the landlord failed to abate a Notice of Violation for the condition of the boiler for almost three years, without explanation. On appeal, the landlord argues that: his request for continuance of the hearing was denied; PG&E was responsible for some of the boiler malfunctions; and he could not afford to do the work and had to obtain a loan to pay property taxes on the building.
MSC: To deny the appeal. (Henderson/Marshall: 5-0)
E. 1550 Fell St., Unit B AL080038
The landlord's request for rescission of a Notice of Intent to Withdraw Residential Units from the Rental Market was denied because the ALJ found that the tenants had vacated the unit as a result of the Ellis filing. On appeal, the Board remanded the case for a supplemental hearing on the issue of the tenants' motivation in vacating the unit. In the Decision on Remand, the ALJ again denies the landlord's request, finding that the landlord failed to prove that the tenants agreed to voluntarily vacate the unit independent of the Ellis notice. On further appeal, the landlord argues that: the Decision is based on guesses and conjectures, rather than the evidence, which was ignored; there was no evidence that the tenants' motivation in vacating the premises was the Ellis filing; it would be a violation of Rent Board and public policy to not grant the landlord's petition; and extraordinary circumstances exist for granting the landlord's petition.
MSC: To recuse Commissioner Justman from consideration of this appeal. (Murphy/Beard: 5-0)
MSC: To deny the appeal. (Marshall/Henderson: 3-2; Gruber, Murphy dissenting)
F. 1796 Beach St. AT080037
The landlord's petition seeking an unlimited rent increase was granted because the ALJ found that the last original tenant had vacated the unit and the remaining occupants are subtenants who moved in after January 1, 1996. On appeal, the tenants claim that they have been paying rent directly to the landlord and therefore are co-tenants for whom no Costa-Hawkins rent increase is warranted.
MSC: To accept the appeal and remand the case to the Administrative Law Judge for a supplemental hearing. (Marshall/Murphy: 4-1; Gruber dissenting)
G. 1547 Clay #205 AT080039
The tenants' petition alleging substantial decreases in housing services due to noise from a neighboring unit and a leak in the refrigerator was denied. On appeal, the tenants claim that: they are being harassed by hostile, noisy neighbors who do not like children; the landlord also does not want children in the building, which constitutes discrimination; the building manager lied at the hearing; the neighbors complained even when they were engaging in normal activities, such as washing dishes; and their intimidation and harassment claims were not adequately addressed in the Decision.
MSC: To deny the appeal. (Murphy/Gruber: 5-0)
In addition to correspondence concerning cases on the calendar, the Commissioners received the following communications: articles from the S.F. Chronicle, S.F. Examiner and the New York Times, and proposed amendments to Rules Sections 1.12 and 12.14.
VII. Director's Report
Executive Director Wolf informed the Commissioners that there was a hearing regarding the business practices of Citi Apartments before the Land Use Committee of the Board of Supervisors on May 12th.
VIII. Old Business
Disability Determinations Pursuant to Ordinance ß37.9(i)(1)(B)(i)/
Proposed Amendments to Rules ß12.14(d)
At its May 6, 2008 meeting, the Board requested staff to draft a possible amendment to ß12.14 of the Rules and Regulations clarifying that in order to have protected status under Ordinance Section 37.9(i)(1)(B), the tenant is only required to meet the disability standard, and not any other requirements, of the federal Supplemental Security Income/California State Supplemental Program (SSI/SSP). The proposed
clarifying amendment, with additions in underline and deletions in strikethrough, is set forth below.
(d) A tenant is disabled under Ordinance Section 37.9(i)(1)(B)(i) if the tenant meets the standard for blindness or disability under the federal Supplemental Security Income/California State Supplemental Program (SSI/SSP). In determining whether a tenant is disabled
as defined under Section 37.9(i)(1)(B)(i), a finder of fact shall consider relevant evidence, including:
(1) findings by any government entity concerning a disability;
(2) testimony concerning the disability; and
(3) medical evidence concerning the disability.
MSC: To put the proposed amendments to Rules and Regulations Section 12.14(d) out for Public Hearing. (Murphy/Marshall: 5-0)
IV. Remarks from the Public (cont.)
E. Tenant Shane Tice of 1547 Clay told the Board that the ALJ didn't feel that he met his burden of proof. Mr. Tice said that he provided a copy of a letter from the landlord saying that they felt threatened by him, although the building manager contradicted that at the hearing. Mr. Tice finds it "scary" that his landlord's agents have the right to carry guns and have the same authority as peace officers. He also said that there was constant construction in the building but they couldn't look at a toilet that was out for three days.
IX. New Business
Rules ß1.12: Calculation of the Allowable Annual Rent Increase
Executive Director Wolf informed the Commissioners that there is a problem with the methodology for calculating the annual allowable rent increase currently set out in the Rules and Regulations. Rules and Regulations Section 1.12 specifies the data to be used in calculating the annual allowable increase. Section 1.12(a) currently states that the annual increase "shall be no more than 60% of the percentage increase in the consumer Price Index (CPI) for All Urban Consumers in the San Francisco-Oakland-San Jose region as published by the U.S. Department of Labor for the 12 month period ending November 30." (emphasis added) However, for a number of years the Department of Labor's Bureau of Labor Statistics has not published monthly data for the San Francisco-Oakland-San Jose region, and only publishes the data bi-monthly, starting in February each year. Thus, data is published for October 31 and December 31, but not for November 30. In the absence of data for November 30, staff has been using the 12 month period ending October 31. Staff therefore recommended that the Board make a conforming technical amendment to Section 1.12(a) and drafted the following proposed amendment (with additions in underline and deletions in strikethrough).
Section 1.12 Annual Rent Increase
(Amended February 21, 1984; effective March 1, 1984; amended
December 8, 1992; Subsection (b) amended August 20, 1996.
(a) Where a landlord is entitled to an annual rent increase to be effective from December 8, 1992 through February 28, 1993, the allowable amount of increase is 1.6%. Thereafter, the annual allowable increase determined by the Board shall become effective each March 1, and shall be no more than 60% of the percentage increase in the Consumer Price Index (CPI) for All Urban Consumers in the San Francisco-Oakland-San Jose region as
published by the U.S. Department of Labor for the 12 month period ending
November 30 October 31. In determining the allowable percentage rent increase, numbers of .04 and below shall be rounded down to the nearest tenth decimal place, and numbers of .05 and above shall be rounded up to the nearest tenth decimal place. In no event, however, shall the allowable annual increase be greater than seven percent (7%). The Rent Board shall publish the annual allowable increase amount on or about January 1. The published increase shall be determined only once for each 12 month period and shall remain in effect until the next scheduled recalculation.
MSC: To put the proposed amendment to Rules and Regulations Section 1.12(a) out for Public Hearing.
X. Calendar Items
May 27th & June 3rd, 2008 - NO MEETINGS
June 10, 2008
6:30 10 appeal considerations
7:00 Public Hearing: Proposed Amendments to Rules Sections 12.14(d) & 1.12(a)
President Gruber adjourned the meeting at 7:05 p.m.