however, what that person looks like is another case, and i wanted to review what the person looked like, whether they looked like they were under 18 or not. president goh: i see. but you do have the police report? >> yes, i have the police report. deputy city attorney: dr. ojo. dr. ojo: the hell could is very clear. it allows the department to suspend for up to 45 days. in this case, 25 days. i am sure during initial hearing they listened very

carefully to the argument of the operator, in the decision was based on that fact. -- and the decision was based on that fact. i would respectfully ask the board to uphold the department of. we think it is very reasonable, it is not excessive. thank you. vice president garcia: dr. ojo, i do not remember if it was this case the one that came up before. there was a comment that dph,

the department of public health, pretty much just shovels people through, that one size fits all, and that no extenuate circumstances are considered -- no extenuating circumstances are considered. >> that is not true. i think probably about four years ago, that might have been true. it has changed. they have gone through a lot of changes internally, and currently, i do attend some of those hearings.

there is testimony of the operators, and from time to time, they do -- he does consider the factors that lead to the sale of the cigarettes, but he tries to be consistent. i remember two cases. you could tell where one could not understand a lot of all. -- did not understand a lot region -- did not understand the law at all. vice president garcia: that was

a situation, where every case was like the same case, but you're telling us that is not the case, that each case is decided on its own merit. >> yes. vice president garcia: thank you. deputy city attorney: is there any public comment? you will have the opportunity to speak in rebuttal. commissioners, you of the decision on whether or not you want to go into closed session -- you have the decision. i am inclined to make the motion. it is curious to me. i am respectful of counsel's argument, if we do not have a full calendar tonight, so i am -- argument, it and we do not have a full calendar tonight, so i am inclined -- i am respectful of councils arguments, in an but -- note argument --

argument, and we do not have a full calendar tonight. deputy city attorney: i suppose we could go into closed session. commissioner fung: just to confirm, it is exactly the same copy? deputy city attorney: it is the same copy. president goh: the same one. so we do not need to go into closed session then? that is great. we can just show that one. deputy city attorney: we will allow a minute for that process to happen.

so we can move into a bottle. -- into rebuttal.

>> the photograph does look young, however, i could not read on the driver's license itself when that photograph was taken. it was at least two years old. i would like to point that out, because the person in the folks in very young, -- the person in the photo looks very young. so i would again ask the board to consider a reduced suspension. i was at the public hearing, and there were somewhere around 11 or 13 tobacco's sales to minor cases on the same day as the hearing for mr. fadi, and each and every one of them received a 25-day suspension, regardless of their circumstances,

including the woman who spoke before, i guess it was items seven, at the appeal board tonight. everyone got the same sentence -- i guess it was item seven. again, there are no prior violations. mr. fadi had just returned from a long trip. he was jet lagged. over 90% of his business is the sale of cigarettes. so i again ask the board to modify this to what i had requested in my brief. perhaps a few days or a fine, or at least the 15 days that had been granted to the prior appellant. >> yes, i really want to say sorry again.

it looks like a baby picture. to me, it it looked over 18 because i had a lot of business at the cash register -- to me, it looked over 18. i just want to ask you if you can help me out and pay a fine. if i close, the i have family to support, and and it is only me -- note -- to support, if it is only me. if i cannot so cigarettes, --

sell cigarettes, i have to close the store. glbt city attorney -- deputy city attorney: thank you. vice president garcia: the driver's license, i thought you got back at 16 -- ... at 16. -- got that at 16. that is an id that you can no longer get, a driver's license at 16? it is an interesting situation, not that i think it would

change one way or another, but do we know when that picture was taken? dr. ojo: [inaudible] vice president garcia: if it is two years old, we may be looking at a very different woman. dr. ojo: commissioners, if i may, the picture is very representative of how she looks like, because the same was used in another case. last week when i was here, i had that picture, a full figure picture of the individual, but i

could not presented because they requested a and i.d. -- requested an i.d. vice president garcia: so it is a very recent picture? dr. ojo: yes. president goh: dr. ojo, in cases where how the person appears as likely to come up, it might make sense to have the photo and a low as the closed session in order to see it. -- and allow us a closed session. >> i think it is an issue. he has admitted to the sale of cigarettes to a minor. however, to some degree, the factual elements of the cases what did the person actually look like, and that potion --

person in the photograph looks like a baby. it looks like a very young person. if we were in court, it would not be admissible in its current condition. i understand that that is not the objective here. but in fairness and the understand the facts and understand someone who had been traveling and had been suffering from jet lag, that is what i am asking to have considered. commissioner fung: when she turns 18. if we were to reduce this to 15 days, then we would be perpetuated in a performance --

a pro forma approach, and the fact is that the situation the owner in it is -- the owner is in is not going to change when he takes his next trip, and his response to my question was perhaps limited only to him, and i did not ask that of the other appellants in this particular instance. i do not know. i think i am rambling, but i probably would support a reduction. vice president garcia: i would certainly do that, in some time

in the past, i think i went through exercise similar to what this gentleman did prior to coming here this evening. it has always been curious to me how we got where we are. it is with all due respect, dr. ojo, and maybe sometimes a hearing officer reduces a fine, but in terms of the economic impact of the individual, and there is a reasonable argument, and their argument is if the sale of tobacco was so important to someone who was always the appellant then they should therefore always exercise greater caution to whom they sell cigarettes to. it is possible. human error.

this is one of the few cases i can remember in a long time where it is the actual owner coming before us as opposed to someone who works for the owner. aside from my general feelings about this, i wish the board of supervisors would we examine the law which -- would re-examine the law. it has the potential of being very, very harsh. if we were talking about a safeway, 25 days would be meaningless to them because of all of the other products they have, but what we could be doing is tantamount of putting him out of business or a $25,000 fine, not that he is going to earn that much money in the 25

day period of time, but the impact on his business, and i think he is right. if you are called house of cigarettes, and you do not have cigarettes, you are going to lose some of your customers. 25 days are up, "we will go back to the house of cigarettes." the impact can be very, very serious for this individual. i worry that my statements are falling on deaf yearse -- ars, -- ears, but i would absolutely support a reduction. commissioner peterson: a pro forma and everyone being treated the same. however, similar punishments or

penalties, particularly in similar situations. this, like the case prior, both appellants have admitted they have not checked for i.d. in the case prior, we implemented a 15-day suspension. i think of fairness, we should do the same, so i am in favor of the suspension. president goh: i am leaning the other direction in this case, and some of the reason is because it is the house of cigarettes, and that is the business, and i would think with the, one would be even more careful to always check i.d. -- and i would think with that. the mistakes made by the department in the filing papers, that was my only reason for supporting the reduction to 15

days, and so i would so move, pending news things for other commissioners. vice president garcia: would you consider a compromise of 20? president goh? yes. vice president garcia: to be overturned and impose -- would we overturn and impose a new -- deputy city attorney: mr. pacheco, could you call the roll, please? secretary note -- secretary pacheco: on the motion to overturn the department's

recommendation and move it to 20 days. [roll call] it is a modified to 20 days. -- it is modified. gipp be to city attorney -- deputy city attorney: mr. pacheco, could you call the next item, please? secretary pacheco: item number nine, which is our last item, a appeal number10 10-142, jack's

market, selling tobacco products to minors. deputy city attorney: you have -- minutes. >> 25 days. second, i would request to see a picture of the lady. he was working with us for five years, and he always asks for i.d., and i asked him why he did not, and he told me she'd look like he was over 21, and that is why he did not care to us for an

id -- he told me she looked like she was over 21. he is a good worker. if you see my attachments in there, -- i also of a daughter. i do not want anyone to sell tobacco to her -- i also have a daughter. with the workers, i always remind them, even if they work with us for so long, i remind them to check for id note -- for ideas region -- for id, and he said that she looked like he -- she was over 21, and that is why he did not ask.

commissioner fung: is this your store? >> it is my husband. commissioner fung: what else to you -- do you sell? >> lotto, chips, but tobacco is our source of income, and alcohol, in the store, and we have regular customers. commissioner fung: have you ever sold alcohol to a minor and got caught? >> no. this is our first ticket. deputy city attorney: thank you. dr. ojo? dr. ojo: commissioners,

apparently the appellant is not denying the sale of cigarettes to minors. the department has done a lot in terms of educating the operators, educating them about the law and sending them a lot of educational materials about tobacco products, and we have been running this program for about five or six years. i think by now, all of the licensed operators -- it is frustrating to our inspectors that we spend so much time on enforcement, but that is the

nature of the profession that we are in. " they allow 90 days for the first offense. -- they allow 90 days. sometimes they listen to the testimony of all of the different operators, and they considered a hardship, but, again, not to watch a lot down vote -- to water the law down, and working with the board, the 25 days is the least we can go down for for the first offense. we think 25 days is reasonable.

in this case, she sells other products other than cigarettes, so i would respectfully ask that the board denied the appeal and uphold the 25-day suspension -- that the board deny the appeal. deputy city attorney: thank you. i do not see any public comment. you have time for your rebuttal. >> i think 25 days is -- they also gave them 25 days, in this is our first defense. -- and this is our first defense -- offense. from now on, i tell the worker

not to base this on how they look. he said when he looked at the lady, he did not see a girl. a lady. she looked like over 21. that is why i would like to see the picture of the lady or the girl, to see if she looked older or younger piccata -- or younger. deputy city attorney: dr. ojo, anything further? dr. ojo: i have seen the trend tonight. in fairness, if the board decides to reduce his from 25 to 20 days, dph would be happy to

consider that. president goh: sums of offenders received 25 days, is that correct regent -- some second offenders receive 25 days, is that correct? -- received 25 days? commissioner fung: actually, if the appellant had seen the picture, there would be no way. vice president garcia: this is a different one. commissioner fung: oh, it is? then my comment relates to a previous case. i think it is up to you. president goh: if