individuals, when let's hope that one time somebody does something and they come before us and they realize how severe that is and we're serious, we give them something that will not put them out of business or seriously affect them. i guess there are other members of the board could not share that opinion, but if it were up to me, i would certainly uphold the department.

commissioner peterson: i feel strongly that we should uphold 25 when there are nearby schools. vigilance is needed. in a tourist area, i have not heard any evidence of school-age children. i think it is important that this board support the department, the law, and we need business owners to take it serious. president goh: i am interested in supporting the department in this case. i found the notion that we had an employee who did it, the employee was fired, and then finding out the employee was the son of one of the owners, i

found that interesting. and that the department could have gone to 90 days and only did 25 i seem to think is fair. if there are no other comments from the commissioners? commissioner fung: you know, they asked for an extension. we gave them one week of discussion time. if they had come on last week, they would have more than likely gotten a five-day reduction. their case is no different than the other two cases that were there. and i would support that. it could have been bigger, but i don't think we will be able to get a larger reduction. commissioner hwang: sorry, were

you finished? commissioner fung: i am done. commissioner hwang: i think the last hearing we had, there were other matters. the matters with tobacco suspension licensing did not go in that way, just to clear the record. i think one received a reduction, and the other did not. commissioner fung: two out of three received a reduction. commissioner hwang: i don't think that is true. and i was here. perhaps i am not remembering. in this case, i am more inclined to go with the president's position, in part because of what she stated, but also, i think the fact that the employee, if it was a < 30 day

employee, did not even look at the card or ask for it or shut any type of suggestion this was something they need to consider as part of the obligation of the licensor. for those reasons, i would be inclined to uphold in its entirety. ivice president garcia: if i ma, commissioner hwang, in the draft minutes, it reflects we had four cases. one of them was continued, three were held. two of them, not the penalty was reduced to 20. commissioner hwang: okay, thank you for clarifying. just for the record, i did appreciate the clarification and the doling out of punishment on these types of offenses between alcohol and tobacco.

it is not our place here to make the policy change. i would stick to my sentiment. president goh: is there a motion? vice president garcia: suspecting it will fail, i move that we will uphold. >> you are going to grant the appeal? vice president garcia: grant the appeal and reduced the penalty to 20 days. >> ok, thank you. if we could call that motion, please? >> on that motion from the vice president to grant this appeal and reduced the 25-day suspension to 20 days. on that motion -- [roll-call vote]

thank you. the vote is 3-2. four votes are needed to modify any department all action. so the 25-day suspension would be upheld. >> should i call the next item? president goh: yes. >> appeal number 6, appeal number 10-26, richard rabbitt vs. the department of public works. protesting the issuance on october 29, 2010 to the university of san francisco minor sidewalk encroachment permit, a chain fence and retaining wall encroaching 6 feet onto the sidewalk right of way for a distance of 389 feet. it public hearing was held on january 19, 2011, and for further consideration today.

on january 9, 2011, the matter was continued to allow for the p.w. to submit additional information pursuant to the board's comments. on march 23, 2011, the matter was continued further to allow time for the permit holder, usf, to provide the board with copies of permits obtained for the retaining wall constructed in 2004. we will call the permit holder first. mr. o'brien? >> commissioners, my name is harry o'brien, here on behalf of usf, and we are here to request a for the continuance of this matter. we have had some productive discussions of a settlement with mr. rabbitt as well as other members of the neighborhood. i think we have an agreement in principle, although we need some additional things to be confirmed.

richard, if you want to join in that request, and anything that you would like to add, i think it would be to request that you continue this matter for perhaps another month or so and hopefully we can resolve this. >> commissioners, i just wanted to echo what mr. o'brien said. i believe we have an agreement in principle on the settlement, and what we needed is we needed dp debbie to cooperate with us, because it is -- dtw to cooperate with us, because it is contingent upon them as the department that granted the permit to agree. with the terms of the sidewalk issues and the tree issues. one of the things that we would ask the board to consider is to request dpw cooperate in the settlement process. the second thing i wanted to check was to see if the board

was interested in hearing the general outline of the settlement. i would be happy to go into that, or if not, happy to skip that as well. vice president garcia: my only comment would be the reverse of the way that you phrased it, and that the agreement conforms to the wishes of dpw rather than asked dpw to cooperate. >> i understand, commissioner. obviously, if dpw does not agree, it all three parties cannot agree, then we do not have an agreement and we would have a different discussion at the next hearing. i understand that you cannot commit dpw, but we are asking they engage in a dialogue with us. we have had some e-mail with usf, productive exchanges, but i sent 3 e-mails to dpw and i have

received no response. it is the context of that. president goh: thank you. >> commissioners, i am john from the department of public works. in these cases when there is a settlement between parties, as long as there is no expansion to the encroachment, the department would typically reissue a minor sidewalk encroachment, rescind the previously issued a permit, and describe what the new it encroachment would be. there is very little from that perspective that dpw would need to participate in the discussion for. it is an agreement in place between the parties and all we do is validate in this case that the encroachment has been reduced and not expand ied. so there may have been some miscommunication in this case in terms of the request made of the department compared with what we

typically do on these types of encroachments when there is a reduction or modification. president goh: would you be willing to respond to an email or other query from the parties? >> yes, commissioner. they contacted me right before this hearing and informed me of the continuance and of a potential settlement, which may involve the evaluation of some existing street trees and the public right of way. i will coordinate with both parties, as well as the urban forester to evaluate any potential impact to the relocation of the fence and the existing street trees and issue a new encroachment permit to finalize the settlement if required. president goh: okay, we still have to vote on a continuance. >> i would ask for public comment first, if there is any. commissioner fung: i have a question for mr. o'brien.

there are a number of other people who have submitted various types of concerns and thoughts with respect to this case. are they knowledgeable of what is being proposed? >> richard may be a better person to answer that question. the discussions have involved numerous members of the media community. i think everybody else has been an active participant. commissioner fung: in the discussion? ok. same question. >> i would just address that, there are three other neighbors in the immediate neighborhood involved in this, and they can speak in their public comment, but i believe those three neighbors have all been involved in this and are all ok it in principle tonight. obviously, i cannot speak for the broader public interest of everyone in the city of san

francisco. vice president garcia: there is a woman who was involved with us, what san francisco, and i don't know she is a neighbor or not. at its sheet involved? >> she has not been involved in the settlement discussions. >> a she involved in this? >> she has not been involved in the settlement discussions. >> is there any public comment? >> hello. my name is chris schaefer. i spoke in january opposing any change in the configuration of the fans because it had actually the face fines which were the only landscaping. i am the one neighbor of the four in my view from my living room is the baseball field. in essence, have worked with my neighbors on the issues that are relevant to us.

there are two -- one is the appearance, as well as an issue for all four of us, which is returning as much of that sidewalk back to the public so it is walkable. in the solution we have worked out together, we propose to have more sidewalk return so that in essence there would be more sidewalk that is walkable, and as well a re-planting of the trees. why we need dpw is in that solution where there would be public trees placed in the public right of way, we have to make sure that would not hurt the trees and the public area, and therefore we would like dpw and the urban forester to make sure we are not the one against the recommendation or what dpw would have. in essence, we get more sidewalk, more trees. we feel that is win-win. >> thank you. is there any other public

comment? >> good evening. my name is mcintyre, and i give up a dinner with my granddaughter for this. i feel obligated to say something. i have been a resident of university terrace since 1979 and san francisco since 1963. as a citizen of san francisco, i endorsed this agreement and. sybil reached by the appellant and permit applicants -- i endorsed this agreement in principle reached by the palin and the permit applicants. with respect to the fences and the sidewalk encroachment. as i understand it, the role of the board of appeals is to adjudicate possible errors by the permit authority based on the law, and i am happy to say

that in order to get to the full facts, you have had to continue this hearing twice. hopefully you'll be patient and continue one last time. until now, i have been somewhat critical because it seem very difficult for an appellate to get four votes out of five, but i hope and expect that the outcome will meet my goal of seeing the law applied equally to both parties. thank you for your patience and careful attention to the facts and law, which make this agreement possible. thank you. >> thank you. next speaker? >> hi, i live next door to richard rabbitt. the reason why i support the idea of having dpw involved, and

not just them involved but consulting with the neighbors, the one thing we all want it was 6 feet on the west end. the reason why there has been some uncertainty about that is dpw was the entity that said that trees could be harmed if they cut branches. not knowing how much of a compromise would be achieved by the time you came here, i did take pictures of trees with no branches near the bottom. i am just hoping that as part of our discussion in principle that the neighbors can bring up items such as this and have an opinion stated so that i can trust that the compromise will be something that most of us can be pleased with. i think the compromise has gone very far, and i would appreciate

an extension. thank you. >> thank you. is there any other public comment? then, commissioners, the matter is a minute. commissioner hwang: i will make a motion to continue the matter as requested by the joint party. >> commissioners, if i may be so bold to suggest that the june 29, there has the best availability, which is about a month out. commissioner hwang: be bold, yes. i will accept that to my motion. works for everybody? june 29? ok. than any other commissioner comments before we call the roll? please call the roll. >> on that motion from commissioner hwang to continue this matter once again to june

29, 2011. on that motion -- [roll-call vote] thank you, the vote is 5-0. this matter is continued again until june 29. president goh: okay, we're going to take a short break.