obtain the cigarette and so the owner of this market is claiming that the 25 suspension is too harsh. and that the department we don't agree. first, in order to prevent minors from purchasing tobacco products the burden must be placed on the owner, to train his employees and to make sure that this does not occur. second, the ordinance allows the department to suspend the tobacco retail permit for up to 90 days and for a first time violaters but the department is requiring a 25 day suspension, which is less than 1 third of the allotted suspension time. and finally, well, also, the 25 day suspension will not put the market out of business. and so during that 25 days, he will not be able to sell tobacco products but they will be able to sell everything else, alcohol, snacks, whatever that stor is selling. but the greatest reasons that the department of public health is asking the board to up hold the 25 day suspension is because when the office searched for the schools located near the market, we found that it was within two blocks and a two-block walk there is gateway high school that has a population of 460 students. and within a four block walk, in addition to gateway, we have community high of the bay and gateway middle school. which now is a combined student population of 853 students. and then, 7 block walk, in addition to those schools, we have sacred heart preparatory with the 1250 student body population and now in the 7 blocks of its market we have over 2,000 students. and that is within a half a mile. and so we are asking you tonight to please up hold our decision to suspend the permit for 25 days and thank you if you have any questions. >> miss young... >> yes. >> we have not seen you for quite a while and your program must be successful. it just to confirm the appellant has indicated or read into his comment that he has indicated that this is the first time for him? >> yes. this is the first time violation. >> okay, thank you. >> i have a question, is an assumption that the store keeper or employee was caught that it might be a more frequent happening at that particular location? >> i am not sure about that. would i have to talk to the other department but i am not sure if we have the answer to that question. >> because i am trying to determine whether it was random, or indicative of something else? >> for the san francisco police department program, i believe that they randomly select an area. >> right. but i am saying that random act that the decoy happened to walk in and this gentleman was there and was distracted or whether there is some implication that this particular sales clerk would be doing this all of the time? >> yeah, i cannot answer that. >> thank you. >> thank you. >> thank you. >> is there any public comment? >> thank you. >> president lazarus, members, my name is arnold townsend and this store happens to be in the district and the neighborhood that i have lived and worked in for the better part of 50 years. i know the market and i don't, i know the owner i don't know the owner well, i knew the previous owner, but just simply will say that i am not a smoker and i don't believe with the children smoking and i work with a lot of youth in the community and the president of the economic opportunity council and my office is less than a half a block away and i want you to let you know that this store does not have a reputation for one causing disruption in our community, or selling alcohol to minors i work with the youth in the community and this is known as a place that they can get alcohol and there are a couple of other places that i can tell you about, where they think that it is easier but this store does not have that reputation. and in the community, yes, there are close to 2,000 students within 7 blocks or less. there have always been 2,000 students within 7 blocks or less, and they have not had this problem before. and it is not a problem store. the fillmore auditor um is upstairs, and they have youngsters from the suburbs coming in and doing all kind of damage in our community. and it can look very horrific on a monday morning after these concerts but this store is not a part of that. and you know and i know that liquor stores in many neighborhoods have a lot of opponents and they have a lot of people who would seize an opportunity like this to try to get the store shut down. and you have had them in here by the numbers and you don't see them tonight, you don't have neighbors, fillmore auditor um with a couple of 1,000 units west of the tower which is right across the street to where i lived eight years ago until last may those residents are not here opposing this store and this is not a bad neighbor. we have enough bad neighbors, and i just come to ask you, to really seriously consider over turning this suspension and let the people who work there continue to make a living thank you so much. >> thank you. >> is there any other public comment? >> okay, seeing none, then we will have rebuttal from the appellant. we have three minutes of rebuttal if you care to use it. >> i would like to thank the reverend and the department of health. and my client's suffered quite a bit for this notification process and went to the first hearing and hired counsel to come to this meeting and a man of great pride and runs a clean operation and he trains his employed ees not to do this and obviously a violation did occur and we are not contesting this, we are asking for the lean antsy, the 25 days will be catastrophic for his business and the counsel to pay the employees wages as well as his family support. and by, this confrontation, with the department of public health, he has pledged to clean up his operation from here on out. and he is not someone who has a reputation of selling to minors, over and over again. and he is dead set on seeing that his business runs in a rep utable manner here after. and he is seeking lean antsy of the board. the 25 days is, a large amount of time to lose 40 percent of your income and he is asking for a lean antsy, or some other remedy in that he could remain in business selling this in addition the tax base, obviously he is paying taxes on this, through the board of equalization, and the franchise tax board and the irs and shutting him down is just going to take away from the tax base that the city and the state and the federal government draw their income from. >> any further questions? >> i have a question. you just made reference to mr. kim pledging to clean up his business, but you also sort of stating that this was an off random incident and so i am unclear. >> correct. >> he intends to continue in operating in the rep utable manner. this has forced him to talk to his employees each day about carding people. if you look in some of the exhibits, they, there is a clear training that goes on just from looking down at the counter what we need to look at, what birth dates you are looking at as far as id and stuff, and this is one incident that occurred and unfortunately was a violation, but he is pounding even harder on his employees each day to follow the law, and make sure that each person who comes in is identified. >> thank you. >> okay, thank you. >> thank you. >> mis young, anything further? >> i would like to let the board know that the department of public health is consistent with its enforcement practice, and 25 days suspension is pretty standard for the department of public health and this is how we handle the first time violater and we do recognize that it will be some burden, but it will not shut the store down, the store will be able to sell other retail products. including the soda, and the alcohol, the snacks, and the foods. and so we just right now leave it up to the board to decide on whether to up hold our suspension or not. thank you. very much. >> thank you. >> excuse me, i have a question. i don't know in reading the brief of your department, there was an exhibit that described the decoy as someone who looked 17. >> yes. >> i know that you can't get an identity of this individual and i am not interested in that. is there any way to give like height and weight? >> i was outside of a high school recently and i thought that they were middle schoolers. just looking at them, they were small. >> and probably in the future, i could, i don't know if i have that information in the file today. >> okay. >> any other questions? >> no. >> thank you. >> the matter is submitted. >> i guess that i will start. as being a small business owner for a long period of time in the city. i am extremely sympathetic to the small business owners trying to make out a living in the city. at the same time, we had a presentation from the board of health last year in regards to under aged sale to minors. i believe that if you look at the numbers and according to the store owner's own record, at 8703 packs, basically it boils down to the 25 days come out to 2471 packs, and at 6 dollars a pack that say gross sale of $14,500. i think that the board, that the health department could levy a 90 day penalty on him. and although, i am sympathetic, i believe that 25 days is correct and i appreciate that the public has come out to speak in behalf of this store owner. >> okay. >> i guess that i will be a little different opinion. actually, when the doctor first came before us, the penalty that proposed at that time by the health department was 40 days. and this board had a difficult time finding a nexus between the penalty for cigarette sales, as compared to other penalties like for alcohol sales. which is a flat fine, and it is much less. for alcohol sales to minors. and i guess as we had many of these cases and we went through the discussions, without empirical method of determining it felt like ten days was a reasonable penalty for the first time and i would stick with that. okay. >> i am extremely sympathetic and i appreciate the owner taking responsibility for the employee's actions and i am a non-smoker and i am happy that i was had access as a child or a teenager. but, and i take both of my co-commissioners comments to heart. and i think that this is a difficult decision, but i do think that 25 days while, rough, is a good sort of compromise given that the department could have gone up to 90. and my, the most compelling reason here for me, is that 2000 students in the half mile radius, and if there children further away i think that i would feel a little bit differently. >> i think that i more of the view of commissioner fung. i think that the fact that there are so many kids in the area and there has not been any prior incidents, it is persuasive to me that this is not the kind of store that sells to minors and i think that it is a one-time incident and i also found particularly persuasive reverend testament to come out from the community and the store owner was persuasive to me and i would be in favor of reducing it to ten days. >> and as the newist commissioner on the board i don't have the experience of the passed cases. and thank goodness we have commissioner fung here to let us know. so, i do find that commissioner fung as well as vice president hurtado statement convincing enough for me to agree with them if that so be the motion. >> i think that just got called a gray beard. >> i will make... >> do you want to make a comment? >> i am very torn as well and i am thinking that ten is a little bit on the low side. >> and i might be happier with 15. >> commissioners, i would move that we accept the appeal on the condition that suspension be reduced to 15 days. >> commissioner fung do you want to state a basis for that? >> given that it is his first time. >> thank you. >> when you are ready. >> we have a motion from commissioner fung. to reduce the suspension from 25 days to 15 days, and this is on the basis that it is a first offense. on that motion, to reduce to 15 days, commissioner hwang? >> no. >> vice president hurtado? >> aye. >> president lazarus? >> aye. >> xh commissioner honda. >> aye. >> thank you, the vote is four to one and the suspension is reduced to 15 days on that basis, thank you. >> thank you. >> i was just informed that the parties to 8 a, b, c, would like to jointly request if those matters will be continued and i don't know if you would agree to take them out of order and resolve it to help them get out of the way. i would like to have the representatives from each side to confirm and have a date and mr. duffy is this in an effort to try to cancel the first permit on the appeal? is that part of why additional time is being requested? >> yes, there is talk that the permit to review this, could be canceled. but we were not able to get it done today because i needed some more paperwork and i need and there are issues that we got to sort out before we can get that done with regard to work being started and stuff like that. so i think that the best thing is to try to get more time to do that. >> okay. >> and miss con way, i know that you are the attorney for the appellant, are you in agreement with this? >> well, we would really in so far as we also, and we had originally requested a continuance from, you know, the stipulation from the permit holder in order to obtain documentation regarding the permit, and i wonder if at this time i could submit that and i have copies, no? >> and i would not, it will be up to the board to decide, and we have not called the item and not hearing the item tonight and i think that part of the suggestion is that the item is to be continued to avoid being heard at any time. >> that was the proposal, and i don't know if that is what you are agreeing to or not. >> the matter will not be considered tonight if the board acts in a way that it proposed. >> it will never be heard? >> if it was canceled there would be no subject matter for the board's consideration. >> okay, you never have a determination as to whether or not it is a single family home or a multiunit dwelling? >> no. >> okay. >> and we have called it. >> and okay. i understand. >> okay. >> and would it be possible to get this to the record, though? could you agree to that? >> what? >> that this documentation is submit it? >> and okay, so you in agreement about a continuance? >> is there a date. >> we will get to that in a minute. >> is there something for the permit hold tore speak to this? >> please step forward. >> >> the other microphone. please? >> and for the permit holder, and so are you also in agreement that you would like to have the matters continued? >> yes. >> so, all right, inspector duffy. i was going to suggest to the board if they want to do this, that it be continued to september 17th. that is what we are scheduling cases to now. and if i could give you enough time to work on this? or do you need more time than that? >> no, that will be plenty of time and if there is anything sooner that will be better as well. but if it is, and yeah, a couple of weeks is all that we need. probably. >> okay. >> and well, we have, i mean, i don't know if you want it as soon as next week? i thought more time only because my understanding was that this will be pulled off of the calendar. >> that is true. and okay, september is fine. >> okay, what you say. >> august 27th or even july 23rd is available. >> july 23rd would be great. >> there is still next week and we will take it from there. >> okay. >> in order to keep this off of the board's calendar for next week this will need to be resolved by the end of the day tomorrow. >> okay. >> if i could, you know this is the second time that we have done this, and the first or any way, and i had asked for this to be continued but i have vacation plans and i know that my client canceled the plans specifically to be here tonight and the delay has caused really by the permit holders and so i would suggest, and we would be comfortable with the 17th of september and we can work it out by then or not. and... >> that is fine. >> okay, thank you. >> and that is good for everybody. >> okay. >> so commissioners, that is something that you would like to do, a motion is needed. >> so moved. >> yes. >> thank you. >> any public comment? >> okay. >> we have a motion then from the vice president to reschedule all three matters to september 17, that is 8 aband c, and on that motion to reschedule, commissioner fung. >> aye. >> hwang. >> aye. >> lazarus. >> aye. >> honda. >> aye. >> 5-0, and all three matters are reschedule, to september 17th. >> thank you. >> so we will go back to the calendar items 6 a, b and appeal numbers 14-097 and 14-115 both dealing with a permit at 1149 prague street and the first one was filed by steven currier and nancy barsotti and the second one by steven, and protesting the he is ka vasing permit on may second and april 4th, 2014 to sbc pacific bell engineering and both for application number 1 4 exc-1815. >> i will need to recuse myself due to a financial investment and i can president hurtado to chair this part of the meeting. >> okay. >> good evening, commissioners. and chair hurtado, commissioners my name is steven currier and i am a resident of the amazon district in san francisco and i am also the past president of the outer mission merchants association and i trust that you read the brief, but i am going to go through the chronological time line of why we are here tonight and this is nancy barsotti and we are the appellants. and who filed the appeals for the excavation permits on 1149 prague street, on may second, and april 4th, respectfully. appellants filed the letters of objection to the improper tying to the department of public works, and noticed dated september 19, 2013. and dpw, number, 13 smf0246. and the notice advised that the members of the public have 20 days or had 20 days from the date of the notice to send written notice of their objectives to dpw and appellants attended a hearing at city hall on monday, january 6, 2014, regarding order 181997. item number ten on the agenda. and at city hall. to be located at this facility to be located at 1149 on or approximately 1149 prague street and at plok street and winding way, a city owned dpw park. on or on the approximate date, the director's decision was issued order number 1 82164 dated february 4, and february 6th, to deny the opposition and approve the request by at&t to locate the facility at that location. and dpw issued a utility excavation permit on april 4, 2014, due to an error from dpw the appellants did not receive a copy of the permit until may first. subsequently, dpw reissued the utility excavation permit dated may 2, at&t refused to acknowledge the latter permit and to begin construction, applicant filed jurisdiction request on may 20, for the april 4th 2014 permit. this board granted that jurisdiction request, unanimously at their hearing on june 11, 2014. and furthermore, respondents continued to object that the jurisdiction of the board and the respondents date that the board has no jurisdiction since at&t and the other followed the public works code but dpw in or in tensionally issued the permit 30 days late to the appellants, respondents spent half of the brief arguing this brief, arguing that this issue which was successfully addressed and ordered on june 14, to still not be in the jurisdiction of this board. and additionally, respondents said that quote, the board of appeals article three, section 6 d, public comment, prohibits persons who are parties to the appeal or representative of a party, from speaking during public comment. basically mr. johnson states that miss barsotti was not permitted to speak in public comment due to being the party of the jurisdiction hearing on the permit 14 exc-1815 dated april fourth at the june 11th hearing. >> she was not a party to the jurisdiction hearing on the april 4th permit. so the board had the right to allow her to speak at public comment. we need to hear the merits of the appeal and to argue the jurisdiction rights at this appeal hearing. also respondent's attorney states that the appellant currier for jurisdiction to file this appeal since he lives further that the radius of facility and however i live down the street in my neighborhood, the resident of the city and county of san francisco and the passed president of the association. >> and applicant objection, in the appeals to the facility located on prague street, and for several reasons, we object to this. and the facility is not at the location where at&t stated where it will be pictured on exhibit a in the appellant's brief is showing that the facility is on the periphery of the park and not in the middle of the park where it was originally intended to go and as of recent, wednesday, july third, they met to address the alternate locations, and they were eying the 300 to the 400 block off of polk but at&t refused those locations, second they opposed the installation of this because it will be placed in apark and although they say that it is not a park it is a right-of-way, we still contend that it is a park because dpw in its number 1 8, in 175, with 66 is not define what a park is. and as a layperson, we are just going through the guidelines of the number 1 8. and appellants oppose the installation of this facility because at&t did not post the notes of intent for the period of 20 days and so most of the neighbors that we actually all of the neighbors that we talked to, said that they did not receive anything in the mail from at&t. appellants oppose the installation of this because the board of supervisors passed an ordinance, 76-14, file number 1 40319 in section 4 of the ordinance, 76-14, the board indicated that its intent that the permanent or the permitting requirements contained in article 27 would be retroactive in that they would apply to any permit that was not final on the effective date of the ordinance. and the board of supervisors also determined that a permit does not final if the permit is subject to a pending appeal. this ordinance was approved by mayor ed

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