vice president goh: at the hearing,. it commissioner hwang: at the hearing, your client was present? >> i believe so. commissioner hwang: so when allegations were raised, why was that not addressed at the hearing? o>> as a matter of fact, that was addressed. there was a commissioner who asked the question, was there any permit-related work done prior to the permit received. he emphatically said no, on the record. at second, first of all, bay drugs was not represented by counsel at the october hearing. they also brought a contractor to the hearing and presented that to the board and invited the board to ask any questions of the contractor they may have. there were no questions. you have to remember at that time, i believe the permit

holder only had seven minutes to present his case. before that the findings, we did not know what the board was going to focus on. so within the limited amount of time of 7 minutes, there were only so many things that one could address. commissioner hwang: the allocation of these un-permit it works prior to the permit, you are saying -- and i have not seen the supplemental briefing -- a temporary wall was put up to hide materials. the contractor who was present at the hearing did not submit that orally to the >> > > no, he did not, because again we were limited with the seven minutes. that was the state of defense. the permit holder was not represented by counsel. maybe i would have raised a,

maybe i would not have, but i don't know, but those are the limitations. the bottom line is, commissioners, we're talking about, yes, the neighborhood. that is important. we're also talking about two and human beings. this is their livelihood. commissioner hwang: right, i heard that. i heard earlier statement. i think my question has been answered. commissioner fung: at the day of the hearing, i believe they were represented by counsel. it was that the same firm? >> >> uchitel me today. -- if you could tell me the day. commissioner fung: it was the second hearing. was he represented by counsel at that hearing? >> yes. commissioner fung: your fur >>? yes, my firm. -- commissioner fung: was that

your firm? >> yes, that was my firm. president peterson: it became an issue of credibility. there was a gentlemen here who appeared to be council responding to some of those questions. i would have to look at the transcript on that. >> yes, and that was the october 6 hearing. what i am suggesting is this is a very important right for the permit holder, and it is not going to cost you a lot to review all of the evidence. at their arttwo declarations we have submitted. i>> ok, we will hear from the appellant now, ms. morgan? >> i had actually prepared something to say, but it appears i need to address what was just

said. first of all, the issue of the permit was covered pretty well at the jurisdiction request and the brief high it submitted for the jurisdiction request. all of the pertinent email about the timing of the construction, and i only filed because there was construction next door. it was not just a temporary wall. there were other walls and other people will testify that it is the same wall they now have their that you have seen the photographs that have the cutouts for the windows that people come up to. that is what they have their prior to may 24. they had gotten that far. they had done all of the demolition, all of the florin, all of the side walls, the entire counter wall. -- all of the flooring, all of the side walls, the entire counter wall. it is only bar drugs' arrogance

at permitting -- permeating this entire case, knowing the committee would not be happy with, they did not file for a permit to begin with. it after the jurisdiction request was filed, they continue to complete the construction and tried to get a permit or get their filed permit approval, believing, in their arrogance, that would basically care the fact they did not have a valid permit. i don't know how that could possibly work, and i believe that is addressed in the findings. granted, they came into the community and spent a lot of money, but prior to the jurisdiction request, when i was trying to figure out what was happening with that, it was doing what, i spoke with the insurance company -- not the insurance company, the real- estate company, who at that time intimated that he would not hold

them to the least, given that he did not want a situation created where there would be a lot of community opposition and conflict. but they chose to continue construction and get their final permit, believing they were going to win. it was only after we received three out of the four votes at the initial hearing at even occurred to them to get an attorney, and they had every opportunity from a poll -- from april or may, when i filed the jurisdiction request, through october to hire an attorney and the present and be represented by an attorney. i don't see what the issue is here. it is clear that they did most of the construction prior to filing for a building permit, which as it says in the findings x the permit invalid. commissioner garcia: what do you

think the farm would be if we were to allow them to present evidence that may cause us to change the language and are finding? who is harmed by that? >> i am not sure what the particular are in terms of why the findings would not be read it and there would not be a motion for rehearing but, what the practical or functional difference in those two things is, opening up the hearing now and resubmitting more evidence, or them filing for a rehearing, since this is all a done deal. i am not clear on what the upshot of that would be. commissioner garcia: i don't know if any of us are absolutely clear. if they were to bring forth new things that would change our findings, that still might have been evident that was available when the hearing was held and it may not rise to the level of putting them in a position to be

granted a rehearing. that is not the question. the question is simply, what is the harm in trying to ferret all the facts out and make sure we are in a good ground and give them the opportunity to at least present evidence that goes to the findings? >> frankly, here is how i feel about that. i would hate to see this go before the city attorney and have that kind of expense to the taxpayer. i think that would be a darn shame. if my of the standing is correct, if they are in a better position to open this up and present the information now, if that strengthens the board's position in terms of not being overturned at some point by the city attorney, perhaps that is the best route. i don't know. i am not an expert on this. what i know is they had ample opportunity to hire an attorney to address the fact that the permit came up with before the second hearing or before my

rebuttal. commissioner garcia: i will ask one more time, and you have to get out a brief answer because of not really addressed the question. the question is, what is the harm to the neighborhood or anyone if we allow them to present us with evidence or information that might make our findings more correct? what is the harm? >> and would give you the opportunity to change your vote? commissioner garcia: no, it may only allow us to change our findings. it has nothing to do with the vote. but that is that correct? president peterson: the board's decision is final until new evidence is entered. soak the findings could change. >> maybe that is the answer to the question. i am not represented by an attorney and likely will not be because i cannot afford it. president peterson: i guess what

you were alluding to, could a commissioner asked for a rehearing on orre-vote? commissioner garcia: okay, forgive me for not knowing that. that has not happened since i have been on the board, about five years. >> from the little i have been able to gather since this came up, this is out there in the quicksand. i have not been able to get clear information on what the possibilities are, so frankly, i am not sure how to respond, and that is the truth. but i would not want to weaken our position, obviously. commissioner garcia: okay, thank you. >> any comments from building ordbi. is there any public comment? seeing none, commissioners, the

matter is before you. commissioner fung: commissioners, if the permit holder and council feel -- and counsel feel it would require further information with respect to the disagreement over the findings, i see nothing that would prohibit us from looking at that information as we try to resolve the final language of the finding. commissioner garcia: i would agree, but i guess the practice of the board -- and maybe we have done things that are not accurate in the past -- to the findings accurately reflect a

tone of what went on at that particular hearing? and i guess there have been times -- and i think we have rehearings tonight were some of the same things are suggest it -- where whatever we relied upon to reached the decision we reached might be called into question. i guess that is basically what is happening. i will agree with commissioner fung, even though i voted against this in the first place. i voted in favor of the permit holder. what i would not want, it seems as though when we go to look at the findings, we're gong to consider the issue of whether or not work was started prior to granting of the permit, and assuming this vote were to pass, assuming we would allow more information, i would ask

dbi go through their records and let us know what ever they may have that would shed light on whether any work had begun prior to the issuance of. rigid prior to issuance of the permit. commissioner hwang: i am inclined to allow out for the briefing, notwithstanding the fact there was time. i don't think hearing additional information, reading additional information is going to present any issues for us. commissioner fung: commissioners, i move that would continue this case for a period of one week, i guess. >> you would have to consider whether you want to give the appellant time to submit something as well.

if the permit holder has already prepared something, you can either give them time to re- prepare new material or except what they have already prepared. but i think in any event, you should give the appellate some time to respond. commissioner garcia: would it be reasonable if the original permit holder were tonight to give the materials they intend to submit to the appellate? >> she has it already. >> it was submitted by e-mail, and i believe you were copied on the at,no? -- and i believe you were copied on that, no? commissioner fung: excuse me, if you're going to speak, you need to be recognized and come forward. madam director, one week is not enough time. >> i think it is a question of how much time we want to give the appellate time to respond.

commissioner fung: the next full board is january 19. and i think if we're going to look at this information, we should have a full board. >> is your motion to move it to the 19th? commissioner fung: move to continue this to january 19, and the information can be provided on the normal time basis. >> ok, so the permit holder's sub mittal should be provided two weeks prior and the appellate one week prior? and the department of building inspection also one week prior. vice president goh: and the submittals are to be narrowly addressing only this one issue of whether or not work was done

before the granting of the permit? commissioner fung: no, i think the issue is if they have a difference of the findings, they can't present their differences with the findings. rich can today present their differences with the findings. president peterson: i think if it is new evidence, i don't know how there will not be a new hearing. >> i think the idea is the information that was requested to be submitted this it -- is specific to the draft finding. we already have it in hand at the board, very specific to concerns about additional evidence related to the draft findings. vice president goh: i will probably vote in favor of the continuance, but i have a concern if every time we consider findings were the parties disagree, which will

probably happen quite often, if we will then continue them in order to get basically additional briefing. i am concerned we are on a slippery slope here. commissioner fung: i think it is slightly difference. we have had cases where there has been difference of opinion on the findings. usually those differences are communicated to us. in this instance, we had no communication with the differences were, therefore i am prepared to accept it. commissioner garcia: i guess i have a bigger problem we are going all the way out to the 19th of january. it seems prejudicial to the original permit holder, and i would hate to be the one making this argument cents i originally voted to uphold, but i don't know if they would ever be required when findings come up, would they come to have that in the hands of the appellant? is that something that is always

required? president peterson: that they provide their objection to the appellate court commissioner garcia: yes. >> anything that would get distributed to the board members would have to be distributed to all parties. commissioner garcia: i am also confused by the fact, we were going to have the hearing heard next meeting. correct? >> on the finding. icommissioner garcia: why would they need our permission to submit some argument as to why they disagree? and then we should consider that in either change that part of the finding or not. >> it is a good question, commissioner, and the rules are silent about s additionalubmittals. they say any additional material

may only be submitted with permission of the board. it was under that guideline that i brought this issue to you. but it could be a board ruled that parties can submit additional restatements and association with the findings. commissioner garcia: ordinarily they would have to make oral arguments? >> ordinarily, they would submit comments to the deputy city attorney and myself, and to the extent we can make changes and corrections to the findings, we can do that easily before they even get to you. in this case, the material was more substantive and we felt it was an issue for you to consider. commissioner garcia: i guess there is no reconsideration of this board about house should we do this? ms. sam got up to address the board, and i am troubled by the fact we're going out so far.

>> there is a hearing scheduled for december 14 on this matter. it on that hearing date, i would be willing to say whatever we had already submitted about a week ago, we would go on that. that would be all of our evidence on the findings, and give the appellant time to respond to that prior to the december 15 hearing, maybe a day or two before the hearing. because you are right, the permit holder is paying rent and expenses every month that this is unresolved. so, yeah, january 19 is far out. icommissioner garcia: thank you, and the appellant is raising her hand. president peterson: out of fruit fairness, she needs to come up. -- out of fairness, she needs to

come out. >> it seems to me at the end of the hearing, there was a lot of comment about the fact no more information. no more written information could be submitted, and that was my understanding. it was news to me after the findings were out that it could be addressed in a written manner. this all caught me off-guard. i have not read it. if they have submitted things, it seems only fair we have an opportunity to address what they submitted. doesn't it? commissioner garcia: they could have raised in an oral argument next week and it might have done away totally with what we're doing right now, and they could have shown up next week and made some oral argument about what ever is contained in this brief and we would have considered that before adopting findings anyway. it is just the recall is that makes it somewhat easier for

people to follow the fact it is in written form and it is not much deviation from anything we ordinarily do. >> perhaps i misunderstood in the beginning the opportunity -- what the opportunity was to respond to the fighting. -- to the finding. i was not aware i could even comment during the hearing next week. and it seems like such a shortperiod of time. commissioner garcia: you would have had the opportunity, and you will still have the opportunity. >> i was just not aware. they are now represented by legal counsel, which puts us at a disadvantage at this point. commissioner garcia: some lawyers may argue with that. commissioner fung: madam, you

would have an opportunity to revisit -- to review their submission by next friday? >> how would hope to have a minimum of two weeks. it is the holiday season. there is so much going on. trying to make a response to this in a week's time and try to find the time to do that in an adequate manner will be a real stretch. president peterson: i guess the thing is this is sort of converting into a rehearing request. what if we were to ask for a rehearing instead? i say that only because the findings would have to reflect that after the fact we received additional evidence to be considered. >> until you adopt your findings, your decision is not final before you have adopted your findings. you can continue to accept

evidence until you adopt your findings. >> did i misunderstand after the last two hearings when they said we could not submit anything else further? >> that is why we are here today, because it takes board approval to accept additional submissions. >> you are talking about the time when there were not enough votes. that is when we said no more evidence. >> but mr. kaplan was also told that he could not resubmit anything. >> between that time when we were waiting for the last commission -- >> at both hearings, there was that admonition. commissioner garcia: i think we're clear how you feel and how the other side feels and it is time for the board to make a decision. vice president goh: i have a question put it -- i have a

question. the finding is there is credible evidence and the record. work began prior to issuance of a permit. we just heard from counsel that the allegation that the work was done after the issuance of the permit was made at the last hearing -- she just said that, i wrote it down. so, it really sounds to me like we're talking about a request for a rehearing. why would we not just vote on these findings, adopt these findings, allow them to request a rehearing based on what they're calling new evidence, declarations, or what not, that we have not seen? i am trying to ask our counsel question. >> it is within the board's discretion. we have received these written submissions about the draft

findings. under the board's rules, we cannot accept them without the board voting to accept them. given the circumstances, the president has decided to give them the courtesy of being able to argue to you why you should exit them at this juncture and not later at a rehearing request -- why you should accept them at this juncture in that letter at a rehearing request. >> this is not the adoption of findings. this is calendars as a special item for turning in evidence. vice president goh: next week is the adoption of findings. commissioner fung: i will amend my motion. my motion will be to continue to accept the documents and maintained a hearing until next week. vice president goh: commissioner fung, i guess i was inclined to

allow out to the continuance until january and allow them time to respond for fairness reasons. i think it is unfair to allow her to respond in writing. i am inclined to support a continuance under these terms. >> commissioners, shall we call the motion? president peterson: call the vote. >> commissioner fung, the motion is to continue this matter until next week to allow the distribution of permit holdersubmittals to the board with note submission by the appellate? commissioner fung: i believe my motion was to accept additional information provided by the

permit holder, and we will accept any response to that information by the appellant and to maintain the schedule the hearing on adoption of findings for december 15. commissioner hwang: a question, when was the e-mail that you referenced earlier sent to the appellate, copied to the appellant? >> it would have been i believe on december 1 or november 30, thank you. >> commissioner fung, would you

be allowing ms. morgan up until tuesday to submit? commissioner fung: that is correct, or orally at the next meeting. >> the motion is to accept the supplemental information which we are to have at the office and to allow the appellant to rebut by next tuesday in writing if she would, and the adoption of findings which is already scheduled for december 15 remains on december 15. commissioner fung: correct. commissioner garcia: i feel compelled to make a comment. it to explain my vote to commissioner fung. commissionergoh made a cogent argument, in my opinion, we're opening ourselves up for a whole new direction when we consider findings. and i think that we should -- i will vote against the motion, e