1242. Appeal

(A) Any party may appeal to the Board. On appeal, the Board may affirm, reverse, remand or modify the decision of the hearing examiner. The Board may conduct a new hearing or may act solely on the basis of the official record before the hearing examiner. The decision of the Board shall be the final decision of the Board, and the Board shall send a notice of the decision to all parties to the appeal, which shall include a statement of their right to judicial review. Decisions remanded to the hearing examiner shall be limited to instances where additional findings of fact are required.

(B) Any appeal shall be filed on a form provided by the Board no later than 30 days after receipt of the notice of the hearing examiner's decision. A party is presumed to receive the decision 5 days after it is mailed. The appeal shall be sent to the Board and opposing parties and their representative. Additionally, appellant(s) shall send a copy of the appeal to the hearing examiner whose decision is being appealed. The Board or staff may order that appeals relating to the same building or property, or different properties of the same landlord, be consolidated. The opposing party shall file any response to the appeal within 15 days from the date the appeal is filed.

(C) At the time of filing the appeal, appellant(s) shall pay an appeal fee in the amount of $50 for each unit for which an appeal is brought, up to a maximum of $250. The appeal fee may be waived in accordance with Section 1204.

(D) The hearing examiner's decision shall not be stayed pending appeal. If the Board reverses or modifies the hearing examiner's decision, the Board shall order the appropriate party to make retroactive payments over a reasonably appropriate period to restore the parties to the positions they would have occupied had the examiner's decision been the same as that of the Board.

(E) The Board will consider appeals of hearing examiners' decisions. At least 14 days prior to the date set for Board action on the appeal, a staff report shall be prepared recommending that the decision of the hearing examiner be affirmed, modified, reversed or remanded to the examiner for further hearing.

(F) At least 14 days prior to the date set for Board action, all parties shall be notified by mail of the date, time and place set for Board action on the appeal. Copies of the staff recommendation shall be mailed to all parties and their representatives at least 14 days prior to the Board action. Copies of the official record and the staff recommendation shall be available for public review at the Public Information Unit of the Board at least 14 days prior to the date set for Board action. Parties may submit written comments to the Board up to 6 days prior to the Board action.

(G) At the Board meeting at which action on the appeals is scheduled, each party or their representative will be allowed 5 minutes to address the Board.

(H) Unless the Board determines that a de novo hearing is required, the Board's decision will be based exclusively on the record before the hearing examiner. The vote of 5 Commissioners is required to affirm, modify, remand or reverse the decision of the hearing examiner. If the Board has not acted on the appeal at two consecutive Board meetings, the appeal is deemed denied.

(I) The Board's decision to affirm, modify, remand or reverse the decision of the hearing examiner shall be supported by written findings of fact and conclusions of law. When the Board votes to adopt the staff recommendation unchanged, the parties to the appeal will be notified only of the Board's decision. When the Board does not adopt the staff recommendation as written, a written decision of the Board shall be mailed to the parties or their representative of record.

(J) Continuances. Continuances of dates set for Board action on appeals shall be granted by a majority of the Board or by the Director only for good cause shown. A written request and the reasons for it must be received by the Rent Stabilization Board at least 2 business days prior to the scheduled hearing, unless good cause is shown for later request. The written request must contain the reasons for the continuance, an explanation of what efforts were made to ascertain the position of the other parties regarding the request for a continuance, and mutually acceptable alternative dates. Copies of this written request must be sent immediately to all other parties and proof of service must accompany the written request filed with the Board.

(K) Reconsideration.

(1) At the discretion of the executive director or his or her designee, an appeal may be treated as a request for reconsideration and referred back to the hearing examiner for such reconsideration only if it is claimed by the appellant that:
(a) there was good cause for a failure to respond to a petition;

(b) there was good cause for a failure to appear at a settlement conference or hearing; or

(c) he or she wishes to present relevant evidence that could not, with reasonable diligence, have been discovered and produced at the hearing.

(2) In the event that reconsideration under subsection (K)(1) is ordered, the parties will be so notified within 15 days of the filing of the appeal and, thereafter, all correspondence shall be directed to the hearing examiner. The threshold issue on reconsideration shall be whether a preponderance of the evidence supports the assertion that good cause existed for the failure to respond to a petition or to appear at a settlement conference or hearing or that the newly offered evidence could not, with reasonable diligence, have been discovered and produced at the hearing. Only if good cause for the failure is found, may the hearing examiner reconsider the merits of the petition.

(3) If the matter is reconsidered by the hearing examiner and the appellant does not then wish to appeal the new decision, the appellant may, within 30 days of receipt of the decision after reconsideration, request refund of the appeal filing fee and, upon such timely request, the filing fee shall be refunded. If the appellant wishes to contest the decision following reconsideration, he or she may file a supplemental appeal, so stating within 30 days after receipt of the decision after reconsideration. No filing fee shall be required for such supplemental appeal. Any other party may also appeal the decision after reconsideration within 30 days after its receipt.