Rent Board Rules and Regulations: Part XI - Hearings

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Section 11.10 Time of Hearing; Consolidation

(Amended September 19, 1989; and October 20, 1998)

            Within a reasonable time following the filing of a petition and payment of the estimator fee, if required, the petition shall be referred to a Administrative Law Judge. If the petition is for a determination of disability pursuant to Ordinance Sections 37.9(i)(1)(B)(i) and (ii), such hearing may be conducted by a Administrative Law Judge or other designee of the Rent Board. That Administrative Law Judge shall hold the hearing within forty-five (45) days of the date of the filing of the petition. Where petitions are filed by or for tenants of a single housing complex, and there are common material issues of law or fact, those petitions shall be consolidated for hearing, unless to do so would be unfair to either party. Written notice of the hearing, by mail, shall be given at least ten (10) days prior to the date of the hearing. A declaration under penalty of perjury stating the date and place of the mailing of such notice and stating to whom and at what addresses the notice was sent shall be retained in the file of each case.

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Section 11.11 Notice of Hearing; Response

            Written notice of the hearing shall be given by mailing a notice stating the date, time, and place of the hearing and generally describing what will take place, who has the burden of proof and the types of evidence likely to be useful at the hearing to the responding party. The responding party may file at the Board office a written response to the petition at any time before the hearing. Any response so filed may not be considered as evidence and is not a substitute for appearance at the hearing. If a response has been filed, the Administrative Law Judge shall give the petitioner a reasonable opportunity to review it and to respond to it as argument by the respondent.

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Section 11.12 Notice to Attorney

            Whenever any document other than evidence containing the attorney's name, address, and telephone number is filed by an attorney on behalf of a party, or whenever any party so requests in a notice signed and dated by the party and giving the name, address, and telephone number of the party's attorney, all notices sent by the Board thereafter shall be sent to the party's attorney instead of the party.  Notices will not be sent both to the party and to the attorney.  A request to send notices to a party's attorney may be withdrawn at any time by a written notice to that effect signed and dated by the party and filed with the Board.

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Section 11.13 Postponements

(Amended June 18, 1991)

            (a)        The Administrative Law Judge or Commissioners or designated staff member may grant a postponement of a hearing only for good cause and in the interest of justice.

            (b)        "Good cause" shall include, but is not limited, to the following:

                        (1)        the illness of a party, an attorney or other authorized representative of a party, or a material witness of a party;

                        (2)        verified travel outside of San Francisco scheduled before the receipt of notice of the hearing; or,

                        (3)        any other reason which makes it impractical to appear on the scheduled

date due to unforeseen circumstances or verified pre-arranged plans which cannot be changed.  Mere inconvenience or difficulty in appearing shall not constitute "good cause."

            (c)        Parties may agree to a postponement at any time.  Where the parties have agreed to a postponement, the Board shall be notified in writing at the earliest date possible.

            (d)        Requests for postponement of a hearing must be made in writing at the earliest date possible, with supporting documentation attached.  The person requesting a postponement should notify the other parties of the request and provide them with any supporting documentation.

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Section 11.14 Absence of Parties

(Amended March 11, 1986)

            (a)        If a party fails to appear at a properly noticed hearing or fails to file a written excuse for non-appearance prior to a properly noticed hearing, the Administrative Law Judge may, as appropriate: continue the case; decide the case on the record in accordance with these rules; dismiss the case with prejudice; or proceed to a hearing on the merits.

            (b)        If the party who does not appear bases an appeal substantially on the fact that notice of the hearing was not received, the appellant must attach a declaration under penalty of perjury on a form provided by the Rent Board. The declaration must include facts to support the contention that the notice was not received.

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Section 11.15 Mediation

(Amended March 7, 1989; November 19, 1996)

            In any case that the Board may deem appropriate, the Administrative Law Judge may make an earnest effort to settle the controversy by mediation. The parties shall be given written notice of the mediation session in accordance with Sections 11.10 (Time of Hearing; Consolidation) and 11.11 (Notice of Hearing; Response). Section 11.13 governing postponement of hearings shall apply to mediation sessions. Written notice of the mediation session shall explain the following: that participation in a mediation session is voluntary; that a request by any party for an arbitration hearing instead of a mediation session received prior to the scheduled mediation shall be granted and held at the date and time of the scheduled mediation session; that any request by any party for an arbitration hearing instead of a mediation session received after the commencement of the mediation session but before the Administrative Law Judge has communicated privately with either party in a caucus shall be granted and held at the date and time of the scheduled mediation session; that an arbitration hearing will be conducted instead of a mediation session if the responding party fails to appear; and that the petition will be dismissed with prejudice if the petitioning party fails to appear. Sections 11.14(b) (Absence of Parties), 11.22 (Personal Appearances and Representation by Agent) and 11.23 (Legal Representation or Assistance of an Interpreter in Certain Cases) shall apply to mediations. If the parties fail to settle their differences through the mediation process, an arbitration hearing on the merits will be scheduled in approximately thirty to forty-five days with a different Administrative Law Judge. The Administrative Law Judge must fully inform the parties of their rights under the Ordinance before any mediation agreement becomes binding. To the extent possible, mediation agreements shall be self-enforcing. The Administrative Law Judge shall not allow any tenant to waive her/his rights to the lawful base rent.

 

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Section 11.16 Refusal of Hearing in Certain Instances

            (a)        The Administrative Law Judge may dismiss any petition, complaint or request without a hearing if the Administrative Law Judge concludes that it is frivolous. The Administrative Law Judge shall file a written statement with the Board setting forth the basis upon which the decision rests.

            (b)        The Administrative Law Judge may decide any matter without a hearing if it appears from the record prior to a hearing that there is no genuine issue as to any material fact.

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Section 11.17 Conduct of Hearing

(Amended March 7, 1989; Subsection (c) amended January 18, 1994)

            (a)        Oral evidence shall be taken only on oath or affirmation.

            (b)        Each party shall have these rights: to call and examine witnesses; to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him or her to testify; and to rebut the evidence against him or her. If respondent does not testify in his or her own behalf he or she may be called and examined as if under cross-examination.

            (c)        The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. For petitions filed on or after January 19, 1994, in the absence of a timely and proper objection, relevant hearsay evidence is admissible for all purposes. Proffered hearsay evidence to which timely and proper objection is made is admissible for all purposes, including as the sole support for a finding, if (a) it would otherwise be admissible under the rules of evidence applicable in a civil action or (b) the Administrative Law Judge determines, in his or her discretion, that, based on all the circumstances, it is sufficiently reliable and trustworthy. The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing, and irrelevant and unduly repetitious evidence shall be excluded.

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Section 11.18 Burden of Proof

(Amended March 11, 1986)

            In any proceeding before the Board or any Administrative Law Judge thereof, the landlord shall have the burden of proving that an increase in rent in excess of the allowable annual rent increase is justified. The tenant shall have the burden of proving that there has been (1) an increase in the dollar amount of the rent in excess of the limitations, (2) a rent increase due to reduction in housing services without a corresponding reduction in rent, and/or (3) a failure to perform ordinary maintenance and repair as required under state and local law.

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Section 11.19 Stipulations

            The parties, by stipulation in writing filed with the Administrative Law Judge, may agree upon the facts or any portion thereof involved in the hearing. The parties may also stipulate as to the testimony that would be given by a witness if the witness were present. The Administrative Law Judge may require additional evidence on any matter covered by stipulation.

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Section 11.20 Record of Proceedings

(Amended September 19, 1989; November 19, 1996)

            All proceedings before the Administrative Law Judge or the Board, except investigatory review of Reports of Alleged Wrongful Eviction and mediation sessions, shall be recorded by tape or other mechanical means. A mediation agreement itself may be recorded by tape. The Board may order a transcript of a recorded proceeding or mediation agreement, provided the Board makes a copy available to the parties at the parties’ expense. A party may order a transcript, provided that such party makes a copy for the Board and offers a copy to the adverse party without charge.

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Section 11.21 Party Use of Reporter

(Amended November 19, 1996)

            A party desiring to preserve a record of a proceeding, except a mediation session, may employ a reporter, provided that copies of any transcript are supplied to the Board and offered to the adverse party or parties without charge.

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Section 11.22 Personal Appearances and Representation by Agent

            In any proceeding before the Administrative Law Judge or Board, each party may appear personally or by an attorney, or by a representative designated in writing by the party, other than an attorney. Each party, attorney, other representative of a party, and witness appearing at the hearing shall file a written notice of appearance and oath with the Administrative Law Judge, which notice and oath shall become part of the record. No exception to the rule (11.17) against basing any Finding of Fact solely on hearsay evidence inadmissible under the California Evidence Code will be made on account of the absence of a party.

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Section 11.23 Legal Representation or Assistance of an Interpreter in Certain Cases

(Amended July 20, 2004)

            Both parties are entitled to legal representation at any stage of the proceeding. If it shall appear to the Administrative Law Judge that the issue or facts in a matter before him or her are so involved or intricate that in the interests of justice, of conserving time or of facilitating the preparation of an adequate record, a party ought to be represented by an attorney or an interpreter, the Administrative Law Judge may urge such party to procure such services. If the party agrees to procure an attorney or an interpreter, the Administrative Law Judge shall allow a party a reasonable period of time to do so. When this occurs, the opposing party shall be advised, and the matter may be continued for this purpose. If the Administrative Law Judge determines that a party cannot afford the services of an interpreter, the Board shall assist in obtaining an interpreter at no cost to the party. The term "interpreter" shall include persons trained in the international language for the deaf.

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Section 11.24 Decisions of the Administrative Law Judge

            (a)        The Administrative Law Judge shall make written findings of fact and a written decision as to whether the noticed or proposed rent increase exceeding the limitations of Section 37.3 is justified. The decision of the Administrative Law Judge shall contain the date upon which a rent increase or decrease shall become effective.

            (b)        If a decrease in rent is granted, the Administrative Law Judge shall state when the decrease commenced, the value of the decrease and the nature of the service. The decision shall also state to what amount the rent can be increased when, and if, the service is restored.

            (c)        If an increase is denied for failure to perform ordinary maintenance and repair, the Administrative Law Judge shall specifically enumerate the repairs necessary, and the amount to which the rent can be increased when those repairs are completed.

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Section 11.25 Expedited Hearings

(Added by Ordinance No. 133-92, effective June 20, 1992)

            (a)        Applicability. In the following cases, a tenant or landlord may obtain an expedited hearing and order:

                        (1)        Any landlord capital improvement petition where the proposed increase for certified capital improvement costs does not exceed the greater of 10% or $30.00 of a tenant's base rent and the parties file a signed stipulation setting forth the cost of the capital improvements on a form provided by the Rent Board;

                        (2)        Any tenant petition alleging decreased housing services with a past value not exceeding $1,000.00 as of the date the petition is filed;

                        (3)        Any tenant petition alleging the landlord's failure to repair and maintain the premises as required by state and local law, provided that the tenant attaches to the petition documentary evidence showing that the unrepaired/unmaintained conditions constitute violations of applicable health or safety codes;

                        (4)        Any tenant petition alleging unlawful rent increases where the parties file a signed stipulation setting forth the tenant's rent history on a form provided by the Rent Board and the rent overpayments do not exceed a total of $1,000.00 as of the date the petition is filed;

                        (5)        Any tenant or landlord petition concerning only jurisdictional questions where the parties file a signed stipulation setting forth the relevant facts.

            (b)        Application for Expedited Hearing and Order. In order to obtain an expedited hearing and order, the petitioner must file an application for an expedited hearing and order, including the written consent of all parties, on a form provided by the Rent Board. The application, and the applicable stipulations and documentary evidence required in subsection (a) above, must be filed at the time of filing the petition in order to obtain an expedited hearing date within twenty-one (21) calendar days of the filing of the application. Within seven (7) calendar days of the simultaneous filing of the application, stipulations and petition, a staff member shall determine whether an expedited hearing is appropriate under subsection (a) above.

                        (1)        If an expedited hearing is found to be appropriate, an expedited hearing shall be scheduled within twenty-one (21) calendar days of the filing of the application for an expedited hearing and order. Written notice of the expedited hearing date shall be mailed to all parties at least ten (10) calendar days prior to the date of the expedited hearing. A declaration under penalty of perjury stating the date and place of the mailing of such notice and stating to whom and at what addresses the notice was sent shall be retained in the file of each case. The notice shall state the date, time and place of the hearing and generally describe what will take place, who has the burden of proof and the types of evidence likely to be useful at the hearing.

                                    (A)       Postponement of Expedited Hearing. Requests for postponement of an expedited hearing date shall be governed by Section 11.13 (Postponements) above. If an expedited hearing is postponed, it will be rescheduled at the earliest available date which may not be within twenty-one (21) calendar days of the filing of the application.

                        (2)        If an expedited hearing is not appropriate under subsection (a) above, written notice of rejection of the application shall be mailed to the parties within a reasonable time following the filing of the application and a hearing on the petition shall be scheduled within forty-five (45) calendar days of the filing of the petition. Written notice of the hearing shall be mailed to the parties in accordance with Sections 11.10 (Time of Hearing; Consolidation) and 11.11 (Notice of Hearing; Response) above. The hearing shall be conducted in accordance with Ordinance Sections 37.7(g) (Certification Hearings) or 37.8(e) (Hearings).

            (c)        Late Application for Expedited Hearing and Order. If any portion of the application, written consent of all parties, required stipulations or documentary evidence necessary for obtaining an expedited hearing and order are filed at any time after the petition is filed, a hearing on the petition shall be scheduled within forty-five (45) calendar days of the filing of the petition. Prior to commencement of the hearing, the Administrative Law Judge shall determine if an expedited hearing and order are appropriate under subsection (a) above. Where an expedited hearing and order are appropriate, the Administrative Law Judge shall conduct the hearing in accordance with the expedited hearing procedures set forth in subsections (e) and (f) below, provided that all parties sign a written waiver of the right to receive an expedited hearing date within twenty-one (21) calendar days of the filing of the application.

            (d)        Application for Expedited Hearing and Order at the Hearing. Even if no application for an expedited hearing and order is filed prior to commencement of the hearing, the Administrative Law Judge may determine that an expedited hearing and order are appropriate under subsection (a) above and offer the parties an opportunity to file an application at the hearing and as long as the record in the case remains open. The Administrative Law Judge must fully inform the parties of their rights under the Ordinance before accepting the application.

            (e)        Conduct of Expedited Hearing. Expedited hearings shall be conducted in accordance with Sections 11.17 (Conduct of Hearing) and 11.22 (Personal Appearances and Representation by Agent) above. Burden of proof requirements set forth in Section 11.18 (Burden of Proof) above are applicable. All parties are entitled to legal representation or the assistance of an interpreter at any stage of the proceeding. No record of the hearing shall be maintained for any purpose.

            (f)         Order of the Administrative Law Judge. The Administrative Law Judge shall issue a written order deciding the petition no later than ten (10) calendar days after the hearing. The Administrative Law Judge shall make no written findings of fact. The Administrative Law Judge shall order payment or refund of amounts owing to a party or parties, if amounts are owed, within a period of time not to exceed forty-five (45) calendar days of the mailing of the order. If amounts owed are not paid or refunded within forty-five (45) calendar days, the Administrative Law Judge may order the amount(s) added to or offset against future rents.

                        (1)        For expedited hearings conducted pursuant to subsection (a)(1) above in which the petitioner prevails, the Administrative Law Judge's written order shall contain the date upon which a capital improvement passthrough shall become effective, the monthly passthrough amount per unit and the applicable amortization period(s).

                        (2)        For expedited hearings conducted pursuant to subsection (a)(2) above in which the petitioner prevails, the Administrative Law Judge's written order shall contain the nature of each substantially decreased housing service, the value of the decrease and the total amount of the past rent reduction corresponding with the decreased housing service(s). The order will also include the amount of any prospective rent reduction for a continuing decreased housing service. The order shall state under what conditions the landlord may be able to restore the rent reductions.

                        (3)        For expedited hearings conducted pursuant to subsection (a)(3) above in which the petitioner prevails, the Administrative Law Judge's written order shall contain the date and amount of the deferred rent increase, a specific enumeration of the necessary repairs and/or maintenance and the amount to which the rent can be increased when those repairs and/or maintenance are completed.

                        (4)        For expedited hearings conducted pursuant to subsection (a)(4) above in which the petitioner prevails, the Administrative Law Judge's written order shall contain the dates of each relevant rent increase, the amount of rent actually paid by the tenant, the lawful amount of rent owed by the tenant and the amount of rent overpayments.

                        (5)        For expedited hearings conducted pursuant to subsection (a)(5) above, the Administrative Law Judge's written order shall state whether the subject rental unit(s) is/are subject to the jurisdiction of the Rent Board.

            (g)        Stay of Administrative Law Judge's Order. The Administrative Law Judge's written order shall be stayed for fifteen (15) calendar days from the date of mailing the order.

            (h)        Objection to Administrative Law Judge's Order. Any objection to the Administrative Law Judge's order must be received by the Rent Board within fifteen (15) calendar days of the mailing of the order unless such time limit is extended for good cause by a staff member. "Good cause" shall include, but is not limited to, the following: verified illness or death of a party which prevented the filing of a timely objection; verified absence from the party's mailing address during the fifteen (15) calendar days following the mailing of the order; any other reason which made it impractical to file a timely objection. Mere inconvenience or difficulty in filing the objection shall not constitute "good cause." The objection to the Administrative Law Judge's order shall be filed on a form provided by the Rent Board. The form shall state the basis of the objection, and shall be accompanied by sufficient copies to distribute to each party, along with one set of business-sized envelopes (with no return address) addressed to each party, with first class postage affixed to each envelope.

                        (1)        Effect of Timely Objection. The timely filing of an objection will automatically dissolve the Administrative Law Judge's order. The petitioning party may refile the petition for hearing under any other appropriate hearing procedure set forth in the Ordinance. To the greatest extent possible, the new case will be assigned for hearing to the same Administrative Law Judge who issued the dissolved order.

                        (2)        Finality of Administrative Law Judge's Order. If no timely objection to the Administrative Law Judge's order is made, the order becomes final. The order is not subject to appeal to the Board under Ordinance Section 37.8(f) nor is it subject to judicial review pursuant to Ordinance Section 37.8(f)(9).

            (i)         Consolidation. To the greatest extent possible, and only with the consent of all parties, expedited hearings with respect to a given building shall be consolidated.

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