disclose the closed session? commissioner goh: i make a vote not to disclose. secretary pacheco: ok, mr. pacheco, if you could have a

vote? secretary pacheco: on the motion not to disclose, commissioner peterson, commissioner garcia, commissioner hwang, and commissioner peterson is absent. the vote is 4-0. director goldstein: which i am would you like to call next? -- which item would you like to call next? commissioner goh: item number six. director goldstein: all right, we will call item no. 6, katherine viranyi and khaled hegazy, on 829 geary street, with the reason of suspension of smoking in enclosed area without

an approved exemption from dph. this is on for a hearing today, and we will start with the appellant. please step forward. >> hi, good evening. we are appealing the decision because we are in small business. my name is katherine viranyi. we are appealing this. we are a small business, unlike some that have restaurants or bars. we do not have anything else to sell. we opened this at the end of december 2008. there was an exemption for places that were prior, opened prior to 2009, december, which

was the year. we were not informed that if we would have moved to a commercial building, which we would have done, we would be exempt from all of this. we found out about that in 2010. they sent us a letter, which was already too late for me to ask an exemption. we got the permit and everything in 2008. 2009. no one informed us to move into a commercial space. so this is a small business. we are trying to relocate. to a smoke shop with an outdoor area, which is very difficult to find, so it is taking us some time. we are not going to be opening a bar with an outdoor space, which is another exemption. so i am just asking for a delay with the suspension.

commissioner hwang: before you sit down, when you are asking for a delay, a delay until 1? -- untilen? >> may be 30 days. are still looking for places to move to. commisonng a suspension to be effective in 30 days? so when you moved -- >> i am trying to follow all of the rules. when we opened in 2008, we were not prepared -- allowed to sell water, coca-cola, nothing. there is nothing that we have. commissioner hwang: let me just understand.

you want to delay the suspension so that in 30 day you will not be an operating concern? >> so we will be moved, in another location. commissioner hwang: 2 be suspended at another location? not following. >> it may take me longer than 30 days. commissioner hwang: i do not understand the reason for the delay. so you would no longer have your shop >> probably. meanwhile, there are other places that are operating. commissioner hwang: thank you. thank you. >> i would just like it to be fair comment to all of the businesses -- to be fair, to all of the businesses, not being singled out. commissioner hwang: thank you. director goldstein: the department.

>> good evening, i am with the san francisco's city attorney's office, and i am here on behalf of the san francisco department of public health. we received a notice of appeal in this matter and were not aware until the owner just spoke with the grounds for the appeal were. -- what the grounds for the appeal were. that they would like to sell tobacco products, that was the stated reason for the appeal, and it appears now that the owner would like to delay the suspension, and i am just restating it to frame the issue, because she wants additional time to vacate the premises, and it appears that that is do that she is claiming she did not receive notice as to what she should do. i should note that this

ordinance has been in effect for some time, dating back to 2010, and it was passed by the board of supervisors on march 16, 2010, approved by the mayor, march 25, 2010, and as part of that legislation, the exception that would be applicable in this case was set forth, and is contained in the health code. this particular piece of legislation receives a lot of attention -- received a lot of attention by the press and by those that had smoking in their buildings or in their enclosed premises. the owner in this case was made aware. you received a brief that we filed, a notice to comply, setting forth the relevant code sections. she received that back in december 2010, december 15,

2010. that is exhibit a to our motion, and then you can see from our motion that there were a number of opportunities to be heard as to what their issues she had with the process -- whatever issues she had with the process. there was a notice six months later when smoking continues, back on june 18, 2011. there was an intimate conference with dph. -- there was an abatement conference with dph. another meeting. the owners had an opportunity to explain or to develop whatever their concerns were, the difficulties were, with respect to operating. i understand that the owners in this case would like to be able to have their patrons smoke.

however, the health code expressly prohibits that. what complicates matters further, the smoking is taking place in a mixed use building. there is residential space immediately above the premises, and there are a number of tenants in that building that have complained to the department of public health regarding second-hand smoke, and they are present. there are representatives of dph that can speak to specific complaints, but it is my understanding that residents of the way up to the 10th floor have talked about the secondhand smoke. commissioner fung: are we listening for a case for a continuance? we did not approach this as a case, right? director goldstein: we did.

we just called it out of order. commissioner fung: we did proved so we are hearing it? -- we did prove -- we did? so we are hearing it? >> there are a number of occupants who are here from the building who want to speak and also representatives from dph, and the inspector there has been in contact with the tenants -- and the inspector who has been in contact with the tenants. i am willing to step away and have the tenants or representatives from dph address the questions. commissioner goh: any questions, commissioners? commissioner fung: no. >> or in the alternative, it appears that the owner in this

case is not disputing that the business is in violation of the health code. in this case, we have requested a 30-day suspension. i do not believe that there has been good cause established to request a continuance or to request that the suspension be held in abeyance. we were not provided with any specific time frame or specific things that necessarily needed to be done for her to facilitate her plan, and in light of the vagueness that has been offered, i would respectfully request that the board go ahead and a firm the suspension that dph has imposed. director goldstein: thank you. ok, we can take public comment. vice president garcia: i am

sorry, but i feel poibhe same way that commissioner fung does. initially, this was taken out of order for someone to make a case about why they wanted a continuance, so unless i hear from the appellant that she feels she's sufficiently covered the ground to make her case, it appears you are not going to get a continuance. why this suspension should not be upheld? or are you making a case for why this should be delayed? you have to come up here. >> i would have just like the delay, -- liked the delay. vice president garcia: i asked a question. when you spoke initially, did you make a case for a continuance or a case for why

you did not want the suspension to be upheld? ok, can we vote on that? and then we get to hear her case? i do not know if she was given a specific opportunity -- sufficient opportunity. commissioner hwang: i met with her in the office yesterday, and she was not clear if she wanted to come and argue her case. i asked her to let me know in advance what she wanted to do, and i also spoke with the president about taking this case out of order in order to facilitate the department of public health representatives and members of the public so they could leave the meeting quickly instead of sitting through the other items, so the time she came up to the podium, it really was not clear which of those two things she wanted to do, and then when she spoke, it seemed to me that she was arguing her case and not asking

for a continuance. vice president garcia: i do not want to be argumentative. as you know, manner director, -- maddon director, this was stated that this was going to be held out of order -- as you know, madam director. the possibility of a continuance. not that we would grant a continuance. i am just worried that a case, regardless of how strong it is, that the appellant possibly thought that she made an argument for a continuance and not an argument for a suspension, and i want to give her more time to do that. commissionegoh: well, i heard an argument, and the commissioners heard an argument for a continuance, and just to clarify that the appellant was asking for a continuance, so given that, i think we should hear public comment on the issue

of continuance and then take a vote. commissioner hwang: i would just like to ask the appellant, do you know what a continuance is? what does that mean? >> being opened for business. commissioner hwang: a " continuance" is that you do not want to have the hearing today but that you want to come back in weeks and have been heard then. that is what we mean by "continuance," and what i heard you say today was "delay," which in lay terms could mean a continuance, so i wanted to understand because you are not represented by counsel. do you want to have your matter heard today, or do you want to come back in two weeks? and why would you want to do that?

>> i -- commissioner hwang: so you can stay in business? >> yes, stay in business, but we are looking for another place. we are actively looking for real-estate brokers. commissioner hwang: thank you. commissioner goh: so i think we should call public comment on the issue of the continuance? does that make sense, director? director goldstein: i am just concerned that we would have public comment twice. whether the city attorney -- >> a motion to continue the case? if you are concerned taking that action, then you need public comment on that action before you take it. vice president garcia: or if there is no motion to continue, then we do not need -- director goldstein: i wonder if

we want to give the city attorney -- vice president garcia: and would he feel the need to do that if there was no motion to continue? >> if there is no motion to continue, i would not make a motion opposing it. >> ok. commissioner goh: ok. it was my understanding that, vice president garcia, you ask a question of the appellant, to make a motion for a continuance, and then commissioner hwang clear 5 what "continuance -- commissioner hwang talked about what a "continuance" means in

this context. vice president garcia: to clarify my confession -- to clarify, whether this has more to do with delaying the suspension than try to have additional time and to hire an attorney, so i feel a motion to continue is unnecessary. commissioner goh: in that case, we can call public comment on the substance. director goldstein: are there any members of the public who wish to make comment on this, and if so, please step forward? commissioner goh: i see other people approaching. are there other people who want to speak in public comment on this item? go ahead. >> my name