would prohibit removal of the stairs if that was the intention. the commission did adopt the plan has been shown to you by the appellant. the current planning commission has reviewed it and has approved the new project. that supersedes the previously approved project. that went through a full public process. president goh: thank you. >> is there any public comment? >> my name is carol m. rogers. i am here to represent russian hill neighborhoods. i am on the executive committee and a member of the design and land use committee that has been following this project through the various hearings. i would like to reiterate the russian hill neighbors support the project at 1269 going forward. therefore, we are speaking against the granting of the appeal. we feel that as an organization we have done due diligence on this project.

we have examined it several different times over the course of its appearance before this group and several other groups in the city. we have had an opportunity to examine and reexamine our position. we really feel it is in the best interest of the neighborhood and the city, the immediate and the overall russian hill neighborhood. it is an eyesore that can be brought to an end. this project should go forward. thank you. >> is there any other public comment? seeing none, commissioners, the matter is before you. president goh: comments, commissioners? commissioner fung: the recorded document applies to a project that is void. that project is gone. the new project was the basis

upon which we reviewed the variance. i do not find that particular document has any impact on my decision making. president goh: other comments? i am concerned. my questions indicated the fact that the document was not recorded. i do see this new evidence. i think i would potentially do it as prejudicial that it was not brought before us. is there in motion? commissioner fung: move to deny rehearing. >> call the roll on that, please. >> on that motion from commissioner fung to deny this rehearing request -- president goh: no. vice president garcia: i am

sorry. what was the motion? >> to deny the rehearing. vice president garcia: yes. commissioner peterson: aye. >> the vote is 3-1 to deny the rehearing request. it is denied and a notice of decision shall be released. >> thank you. if you are ready, you can call item 4b. >> calling a rehearing request for the subject property at 281 turk street. we have a letter from shaughn moran, requesting every -- morgan, requesting a rehearing. the board voted 2-3 to uphold the permit.

the subject permit was upheld. the permit holder is bay drugs, llc. >> the permit holder has provided a court reporter to transcribe this hearing and would like the board to designate it as the official transcript. the permit holder has agreed to supply the board and the appellant with a copy of the transcript at no charge, but we need a motion to designated as such. president goh: i will move. >> any public comment or bored comment on using the court transcript as the official record of this hearing? seeing none, call the roll on that please. >> on that motion from president goh to designate the transcription as the official record of this proceeding. commissioner fung: aye. commissioner fung: a -- vice president garcia: aye. commissioner peterson: aye. >> the vote is 4-0.

the transcription shall be the official record. >> thank you. we can start with the requestor. i believe her attorney is representing her this evening, mr. wagner. >> my name is david wagner. i am an attorney licensed to practice law in california. i represent the community. i am appearing as pro bono council on this matter. before the clock starts on my three minutes, i want to respectfully request a minute to explain why i would like to request a continuance. i am not sure what the proper procedure for that is. it would take a bit of time for me to request that you continue it. i just got involved in this case last week. president goh: you can have one minute to argue. >> thank you.

commissioners, as i mentioned, i met the appellants for the first time last week. i have not had the time to fully prepared to argue the merits of my client's request for hearing. with an attempt to persuasively argue my case in three minutes this evening, i respectfully request to continue this matter and allow me to file a brief addressing the underlying legal and factual issues that would merit a rehearing. contrary to bay drug counsil's assertion, appellants were only represented for a month in april and may of last year. that attorney never filed any breaks in the case. rather, his work was limited to a few e-mails and phone calls. neither house and -- housing corps incorporated nor the community have been represented

by counsel since that time. therefore, i respectfully request that you grant that continuance and give me time to submit a brief on the issue. >> we should give the attorney for the permit holder a minute as well if she cares to use it. commissioner peterson: do we know how long the request for a continuance is? >> 30 days would be great, but any amount of time. at least a week. 30 days would be ideal. >> this is a request for a continuance as well as additional briefing. commissioner fung: do you know our rules and procedures on rehearing requests? >> yes, commissioner. i familiarized myself with those rules. commissioner fung: are you prepared to bring forth new information? >> in the event that you deny a request for a continuance, i have prepared remarks in that regard, yes.

>> good evening, commissioners. they have had months. the appeal brief was filed on september 9, 2010. it is now february 2011. the business and tax section's say that the board should act within 60 days after the filing, which was on september 9, or in a reasonable time thereafter. they have had months to get an attorney. they had an attorney. my client has to start a business. every day, he is losing money. a continuance would be inappropriate. it would delay things. they were supposed to present new evidence, fax, or circumstances when they filed the request for a hearing on

january 31. they did not do that. now they want to extend it for another 30 days. i think that is inappropriate. i strongly object to this. president goh: i have a question for you. i am not remembering when you came on board for the permit holders. it seems to me that we granted a continuance for your representation of them. do you remember how long that was taxpayer >> let's -- how long that was? >> it was december 9. i do not recall the exact date. i know it was before december 9 when it came on board, probably at the october 6 hearing. president goh: prior to your representing your client, they had an agent representing them.

is that correct? and he was an expediter, but not an attorney? "was a property specialist, not an attorney. -- >> he was a property specialist, not an attorney. president goh: thank you. >> if there is an interest in granting a continuance, someone can make a motion. if there is not, we can move into the three minutes for argument. president goh: i will make a motion to grant the continuance. i would give counsel two weeks. we do not have a hearing in two weeks. i would give counsel a intel march 9 -- until march 9, because we gave the permit holder time when they became represented by counsel, despite

the fact that they had been represented by an expediter previously. commissioner peterson: do you want to specify any particular amount of briefing and a schedule for breathing? -- for briefing? president goh: if we go to march 9, that is a problem. the you have a suggestion? commissioner peterson: perhaps march 16. then there could be a week between. president goh: ok. commissioner peterson: the request for brief would be due on march 2 and the permit -- i mean the third. president goh: and i would say five pages? commissioner peterson: if it were march 9, is there any way piper's could be done? -- papers can be done, especially since become -- council is indicating he has

some evidence experts -- some evidence? >> it would be next thursday to submit, to be returned before. -- february 24. president goh: that would be fine with me. >> do you want that to be your motion, the hearing on march 9, with no more than five pages submitted on february 24? president goh: yes. >> we will take public comment on the question of the continuance only. is there any public comment on the issue of the continuance? >> it does sound like -- vice president garcia: if i can

make a comment, we are allowing the attorneys a minute to argue their case and are going to allow the public three minutes to respond? president goh: you are right. one minute. >> i am representing supervisor jane kim, in which the property presides. we would like to issue our support for the continuance. it looks like that is what the board is going to do at this point. we are in support of the communities organizing. we feel they deserve an opportunity to support, with the aid of counsel, their side of the argument. >> thank you. any other public comment on the issue of the continuance? seeing none, call the roll on that motion. vice president garcia: we did not have come and among the

commissioners. go ahead, commissioner fung. commissioner fung: there are two things i would like to say. one is that granting a continuance to the permit holder was to allow briefing on a very specific legal issue. when i reviewed the rehearing request, i saw no new information. i sought a reiteration of a couple points that were made through several meetings. the question in my mind is whether we offer the same ability to have council brief.

i am not sure i'm going to go with that. vice president garcia: the request for a rehearing was filed on the last day of january. that is 2.5 weeks. certainly, anyone filing for a rehearing wants to familiarize themselves with our rules and pages having to do with a request for a rehearing. certainly, prior to having done that would have been the time to hire an attorney. when we granted a continuance to the permit holder, it was not prejudicial to the other side. there is no money being spent or lost by the other side, because the permit holder gets an attorney. this is highly prejudicial to the permit holder. he has ongoing expenses. i would be very much against granting a continuance. commissioner peterson: i think

the issue, and the one i was wrestling with, is a complicated legal issue. i would appreciate more legal briefing. i also think we did convey the same professional courtesy to the project sponsor. they very much made an issue of not having counsel. lastly, convincing council to act pro bono is a difficult hurdle. it is much more difficult than paying council. i have much sympathy for the community in convincing a lawyer to represent them on a pro bono matter. i have sympathy for the time that this took. >> shall we call the roll? >> on that motion from president goh to reschedule the matter for march 9, a briefing at the five pages -- commissioner fung: aye.

vice president garcia: aye. commissioner peterson: aye. >> the boat is 4-0. the matter is rescheduled to march 9. >> thank you. >> when you are ready, give the room a minute to clear. please leave the room as quickly as you can so we can move on to our next item. vice president garcia: -- president goh: dbi and planning get to leave, because it is all taxi.

>> i think you can call item six now. the room is clearing. >> : item six, appeal 10-135, makanna askandafi doing business as pearl market versus the department of public health, appealing a 45 days suspension of a tobacco product sales establishment permit. the reason for suspension -- selling tobacco products to minors. >> will start with the appellant or his agent. please step forward.

you will have seven minutes. >> good evening, commissioners. i am appealing the 45 days because i think it is way too much for a small business to lose that income for 45 days. it is something we did not do intentionally. we had no intention to sell cigarettes to minors. and we had an employee who checked the id. when he looked at it, it said over 18. a request to check the id if you have it.

>> will go into closed session when the board requests it to look at the idea, but if you have other arguments, you should make them now. >> i just want to say 45 days -- we cannot afford to close 45 days. we have all the posters on our doors. we checked the id all the time. we do the best we can to not sell cigarettes to minors. commissioner fung: did you only store in 2008, when you were cited previously? >> yes. this is our second ticket in 10 years. president goh: you owned the store in 2007. did you appear in front of us before? >> yes. president goh: i think i remember. thank you. vice president garcia: what you

did you appeal to this board? >> 2008. vice president garcia: what was the action of the board? >> selling to a minor. vice president garcia: you appealed the suspension. how long was the suspension? >> 20 days. vice president garcia: what did the board do? >> it was maybe 30 days. we missed the appeal. they gave us 30 days. we got it down to 15. vice president garcia: before this board. and did anyone make the comment in 2008 that were you to run afoul of this law again that this board would be decided by harsher? -- decidedly harsher? >> no, but i did know that if we got a second ticket it would be more. but what should we do to not sell to minors?

we checked the id. we train the employees to check the id. i do not know. vice president garcia: i am very sympathetic to you, but it is an agency issue. where you the one who sold the cigarettes, or is someone who worked for you? is it the same person who sold them in 2008? >> it is a different person. vice president garcia: thank you. >> we will hear from the department now, dr. ocho. >> good evening, commissioners. it is true that the establishment did sell cigarettes to minors -- to a minor. i am not going to go through a very extensive presentation. this theory the second time they were cited.

the last incident occurred on february 19, 2008. the arguments that to the appellant presented, saying that mthe minor used a fake id during the course of the operation, is not true. i have no reason to doubt the professional conduct of our peace officers. they recognize the legal ramifications and they would not use a minor with a fake id. the appellant also argued that 40% of his sales came from cigarettes. that is far from the truth.

i did speak to my inspectors who went inside. they went into the market on divisadero. it has a deli. i do not remember if they still have a meat market. sales of tobacco are probably less than 50% -- less than 15% of the total sales. i strongly agree with the department's 45-day suspension. they should have been more careful. i respectfully ask the board to please uphold the department ruling. thank you. president goh: do your records show that the previous suspension was a 30-day

suspension that this board reduced to 15 days in july 2008? >> the file came to me this afternoon. president goh: thank you. vice president garcia: is there a typographical error on page 2 of your brief? this brief is dated june 325. -- january 25. page two, fourth line, " therefore, instead of the department's usual 15-day suspension" -- >> that should read 25. vice president garcia: i thought maybe you'll have gotten lenient. >> a thank you, commissioner. [laughter] >> we have item 6a, a closed

session which would allow us to see a picture of the minor decoy with for guides to whether the person looked under age. president goh: i will make emotion. the other issue is whether the id is fake. >> is there any commissioner comment on this motion? is there any public comment on moving into closed session? seeing none, we will take the role on that motion. -- the roll on that motion. >> on that motion from president goh to convene in closed session -- commissioner fung: aye. vice president garcia: aye. commissioner peterson: aye. >> the vote is 4-0. the board shall convene in closed session. >> we should gavel out. excellent.