Update on Status of Lawsuits Challenging Prop M
In the federal court case of Carrico v. CCSF (United States District Court Case No. C09-0605), the plaintiffs challenged the constitutionality and validity of Proposition M, the tenant harassment amendment to the Rent Ordinance adopted by the voters in November 2008 as Ordinance Section 37.10B. On September 4, 2009 District Court Judge Alsup dismissed the complaint, finding that plaintiffs' federal claims were without merit and holding that the state claims should be decided in state court.
In the state court case of Larson v. CCSF (Superior Court Case No. 509083), the Court's May 19, 2009 decision was appealed by all parties. On July 28, 2009, the plaintiff petitioners filed an appeal of the court's decision. On August 14, 2009, the City filed a cross-appeal of that part of the court's decision striking the unilateral attorney fees provision of Section 37.10B(c)(6). The Court's May 19, 2009 order is still in effect pending resolution of the appeals. Thus, except for the phrase "with ulterior motive or without honest intent" in Section 37.10B(a) and the attorneys' fee provision in Section 37.10B(c)(6), the rest of Proposition M is now enforceable.
Update on State Court Prop M Lawsuit
On May 19, 2009, the Superior Court upheld all of Proposition M with two exceptions. First, the Court concluded that the phrase "with ulterior motive or without honest intent" is unconstitutionally vague and is therefore severed under Proposition M's severance clause, but that the phrase "in bad faith" was lawful and enforceable. Second, the Court concluded that the attorney fees provision in Section 37.10B(c)(6) violates the Equal Protection Clause because "it authorizes attorney fees to a single class of litigants or in a single class of cases." The Court rejected Petitioners' other legal arguments. Thus, except for the phrase "with ulterior motive or without honest intent" and the attorneys' fee provision in Section 37.10B(c)(6), the rest of Proposition M is now enforceable. The stay previously issued that prevented the City from enforcing Sections 37.10B(a)(6), (7), & (8) of Prop M is no longer in effect, and the Rent Board will accept and process all tenant petitions with Prop M decreased housing service claims.
It should be noted that a separate lawsuit challenging Proposition M is still pending in federal court, and the court's ruling in the state court lawsuit may also be appealed.
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Uniform Hotel Visitor Policy Amended
The Uniform Hotel Visitor Policy was amended by the Rent Board Commission on February 17, 2009. The Board made four changes to the existing Visitor Policy: to allow any current government agency issued California or out-of-state picture I.D., including a San Francisco City I.D. card, to fulfill the requirement that an I.D. must be produced by the visitor upon request by management; to expressly state in the policy that visitor fees may not be charged; to enumerate the Police Code penalties for violation of the Visitor Policy; and to make clear that if a request for an overnight visit doesn't actually come to pass, as long as the tenant notifies management in writing by 6:00 p.m. the following day that no overnight visit took place, then that request doesn't count as a visit for purposes of the 8 visits per month limitation.
Uniform Hotel Visitor Policy as Amended February 17, 2009 - (pdf document) (4 pages)
The one page version is suitable for posting (it is also available in seven languages, English, Spanish, Chinese, Tagalog, Vietnamese, Hindi, Gujarati).
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Proposed Amendments to the Uniform Hotel Visitor Policy - Public Hearing February 17, 2009
UNIFORM HOTEL VISITOR POLICY
Proposed Amendments (underline indicates new language; strike-through indicates deleted language)
1. No operator, employee or agent of a Residential Hotel, as defined in San Francisco Administrative Code Section 41.4(p), may impose or collect a charge for any person to visit a guest or occupant of the hotel. Additionally, no owner or operator of a single room occupancy hotel (SRO) shall deny a guest or occupant of the hotel the right as to:
A. Day Time Visitors
To receive visitors between 9:00 a.m. and 9:00 p.m. daily. A maximum of two (2) day time visitors at a time per room may be imposed by management. There is no limit on the total number of visitors a tenant may have per day, week or month.
Children 13 years old and under shall not be counted towards the visitor limitation rule. However, a maximum of two (2) children per room at a time can be imposed by management.
B. Overnight Guests
1. To have eight (8) overnight guests per month, limited to one visitor per tenant per night. Only tenants who have resided in their unit for thirty-two (32) continuous days or more shall be entitled to have overnight guests. Court-ordered custodial rights, which end at age seventeen (17), shall be honored for purposes of consecutive overnight stays but any such visits shall be counted toward the limitation on the number of overnight visitors.
2. For tenancies of two (2) persons per room, each tenant is permitted to have eight (8) overnight visitors per calendar month, but those tenants will have to reach agreement as to who will have the one (1) visitor per night if there is a dispute.
3. Tenants are entitled to have a visitor stay eight (8) days consecutively in a calendar month. Any visitor staying consecutive nights, as agreed upon, shall not be required to check in and out during the course of a consecutive stay. Otherwise, the visitor must check out by 11:00 a.m. or make arrangements with the desk to become a day time visitor.
4. Requests for overnight guests shall be made no later than 9:00 p.m. on the same day. If a request is made but no visitor stays past 9:00 that evening, the request shall not be counted against the tenant's allowed eight (8) overnight guests per month, as long as the tenant has informed management in writing that no overnight visit took place. The visitor does not have to be present at the time the request is made and the visitor's name need not be provided until the visitor arrives at the hotel, after which time the visitor shall have the same in and out privileges as the resident.
C. Caregivers of disabled tenants shall be exempt from visitor limitations. The owner or operator of the hotel may request medical verification or a caregiver I.D. card.
2. Owners and operators of SROs shall have the right to adopt reasonable rules and regulations to ensure that the visitor rights set forth above do not infringe on the health and safety of the building and/or otherwise interfere with the tenants' right of quiet enjoyment.
A. Owners or operators are entitled to request that visitors produce identification as follows:
1. Only ONE of the following types of valid California or out-of-state current government agency issued picture I.D. need be provided, including but not limited to: a valid and current passport, a California Department of Motor Vehicles (DMV) issued I.D., a Mexican Consular Registration Card or Resident Alien Card, merchant seaman I.D., a Day Labor Program I.D., or Veteran's Administration I.D. or any valid California or out-of-state current government agency issued picture I.D.
2. Owners/managers cannot require that an I.D. be left with management during the visitor's stay. If an I.D. is not left with management, tenants must escort their visitors out of the building and make sure that they sign out. If a tenant's visitor does not sign out upon leaving, the tenant may lose their visitor privileges for thirty days, which must be put in writing within seven days.
3. A log must be maintained by management and the visitor must sign in and sign out. The log shall indicate when an I.D. is surrendered and when it is returned.
4. If an I.D. is lost or misplaced and not returned within 12 hours of the visitor's request to have it returned, the owner/manager shall pay the visitor $75.00 in cash immediately upon demand by the visitor as compensation for the loss and inconvenience of replacing the lost I.D.
B. Owners and operators shall have the specific right to restrict visitors on two (2) of the three (3) actual check days of each month. Providers are required to post those blackout dates at least five (5) days prior to the first blackout date on a minimum size of 8-1/2" x 11", to be posted prominently by the entrance or in the lobby. Blackout dates shall not apply to children thirteen (13) years of age and under, custodial children or consecutive visitors.
C. Owners and operators may deny visitor rights for 30 days to tenants who are repeat violators of hotel visiting rules. No penalty may be imposed until the second violation, and violations shall expire after 18 months. All notices of violation of the policy, including the first notice, must be in writing with a copy provided to the tenant. These limitations on the right to revoke visitor rights do not apply in the case of failing to ensure that a guest signs out upon leaving the building, as specified in Section 2A(2) above.
D. Tenants who disagree with the imposition of a penalty may either:
1. appeal to the operator or tenant representative (if one is present); or, in the alternative,
2. the tenant may go directly to the Rent Board for adjudication of their complaint.
E. Owners and operators shall also have the right to limit the number of nights any single visitor can make to the property to eight (8) per calendar month.
F. Tenants shall not be required to escort their visitors to the bathroom or other common areas of the building, except as specified in Section 2A(2) above. However, the tenant is responsible for the conduct of their unaccompanied visitor.
3. Nothing in this section shall interfere with the rights of owners and operators of SROs to exclude specific visitors who willfully or wantonly:
A. disturb the peaceful enjoyment of the premises by other tenants and neighbors;
B. destroy, deface, damage, impair, or remove any part of the structure or dwelling unit, or the facilities or equipment used in common; or,
C. have committed repeated violations of the visitor policy which can be construed as creating a nuisance on the property; or constituting substantial interference with the comfort, safety or enjoyment of the landlord or tenants, which can be a just cause for eviction under the Rent Ordinance, as determined by the courts.
D. Any time a tenant's visitor is excluded from the hotel, written notice must be delivered to the tenant after the fact with the visitor's name and the reason for the exclusion.
4. SRO owners or operators shall make available to their tenants a copy of any written Supplemental Visitor Policy that complies with this policy. SRO owners or operators are required to prominently post the Uniform Visitor Policy and any Supplemental Visitor Policy on a minimum size of 11" x 17" by the entrance or in the lobby.
5. Other than as a settlement of an unlawful detainer action, a tenant cannot waive the rights as outlined in this legislation. Any agreement between the SRO owner or operator and the tenant that reduces or limits the rights set forth in this legislation shall be deemed void and unenforceable.
6. Tenants are accorded certain and specific rights as a result of this legislation. If the SRO owner or operator violates this provision, a tenant will have legal recourse and will be encouraged to visit the San Francisco Rent Stabilization Board or the Police, as appropriate. Pursuant to Police Code Section 919.1(b), in addition to any available civil penalties, any operator, employee or agent of a Residential Hotel who violates any of the provisions of this Uniform Hotel visitor Policy shall be guilty of an infraction, the penalty for which shall be a fine of not less than $50 nor more than $500, consistent with the California Government Code."
7. SRO owners or operators seeking a modification of the rights set forth above may file a petition with the San Francisco Rent Stabilization Board and receive a hearing on said petition. Notice of the time and date of said hearing shall be prominently posted by the SRO owner or operator above the front desk of the hotel, in the lobby and at least five (5) copies shall be posted on each floor of the building.
8. The Rent Board shall translate the Uniform Visitor Policy into the predominant languages of the community and make them available as needed.
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Status report on Prop M Lawsuit
Several plaintiffs, including the San Francisco Apartment Association, have filed a lawsuit challenging the validity of Proposition M, the tenant harassment amendment to the Rent Ordinance recently passed by the voters. The case is Larson et al. v. City and County of San Francisco Superior Court Case No. 509083. On January 21, 2009 the Court granted a temporary stay of some provisions of Proposition M, and set a hearing on the plaintiffs' challenges to the entire Proposition for April 17, 2009. The Rent Board will accept tenant petitions with Prop M decreased housing service claims, but will not schedule such petitions for hearing until after the court's ruling on April 17, 2009.
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