>> good evening and welcome to the december 7, 2011 meeting of the board of appeals. presiding ais kendall goh. commissioner peterson will be absent. to my left is the deputy city attorney. at the controls as the board's legal assistant and i am the board executive director. when world be joined by representatives from some of the city departments that have cases before the board. we have the zoning administrator. also next to him is joseph duffy, representing the part -- department of building inspection. we are joined by eric mar and a representative fro.

>> the board requests you turn off all funds and pagers. please carry-on conversations in the hallway. the board's rules of presentation are as follows. the press representatives and appellants have seven minutes to present their cases. and three minutes for rebuttal. people affiliated must include their comments within the 7 minute or three minutes period. members of the public for not affiliated with the party have up to three minutes to address the board and a bottle. to assist the board in the accurate preparation of minutes, members of the public who wish to speak on an item are asked but not required to submit a speaker card or business card when you come to speak. speaker cards and pans are available on the left side of the podium.

the board welcomes your comments and suggestions. there are customer satisfaction survey forms on the left side of the podium. if you have questions about requesting a rehearing or schedules, aspeak to board staff or call the board office tomorrow. the board office is located at 1650 mission street room 304. this meeting is broadcast live on san francisco government television, cable channel 78, and the days of this meeting are available for purchase directly from sfgtv. we will conduct our swearing in process. if you intend to testify at any of tonight's hearings and wish to have the board give your testimony evidentiary weight, please stand, raise your right hand and say i do after you have been sworn in or firm. please note that any member of

the public may speak without taking an oath pursuant to the rights under the sunshine ordinance in the administrative code. thank you. do you solemnly swear or affirm the testimony you're about to give will be the truth, the whole truth, and nothing but the truth? thank you. president goh: we will start with item one. is there any member of the public that would like to speak to an item that is not on tenet calendar? seeing none, item 1 is comments and questions. >> i wanted to announce that will not be present for next week's meeting. due to work travel. president goh: thank you. any other commissioners? i have a quick comment i would like to make. it has to do with allegation ways we receive from a member of

the public that certain attorneys or individuals have access to us as commissioners and others do not. i want the public to know that we take those kinds of allegations seriously. we in fact modified our rules last year to address the issue. just for a reminder, for people who might have missed it, i am going to read our rule number five, section 5 which has to do with communications of the board. -- with the board. the board is a quasi agenda carry a body whose decisions are rendered on the evidence. in order to preserve the fairness and integrity of the board's proceedings, any evidence of the parties or members of the public wish the board to consider in deciding a case must be part of the public record as follows.

i am paraphrasing here. the parties and members of the public should present evidence only as -- at a public meeting like this or through their written submission. parties should refrain from communicating evidence, facts, or information about the subject matter of a pending case outside the public record. any written communication to the board containing information or evidence pertaining to a case pending must be submitted through the -- [no audio] and not sent to us individually. this section does not apply to communications with the board about procedural or ministerial issues. those issues could be better directed to director goldstein. because we have had this allegation or these allegations about our fairness and due

process, i wanted to remind the public that our practice is to disclose any ax party communications we have and we will disclose them on the issue. that is a reminder for everyone. thank you. any other comments are questions? is there any public comment on item two? we will move to item number three, the adoption of minutes. before you for your commit -- your consideration are the meeting minutes. i move the adoption. >> please call the roll. to adopt the november 16 minutes, commissioner fung, aye. vice-president garcia, aye.

commissioner hwang. aye. president goh: is there any public comment? we can move on to item no. 4 which is our first appeal. appeal no. 11-110. elias louh as -- doing business at st. paul's market. appealing a 70 day suspension of the tobacco product sales establish permit imposed on october 4, 2011. reasons for suspension, selling tobacco products to minors. this is director of case number ft-11-44. we will began with the appellant for the palin's agent. who has seven minutes to speak. please support.

>> good evening. i would like to state the facts of this case, all right? i am justin dahls and i am the agent for st. paul's market, elias louh is the owner. if i may state the facts briefly. mr. louh is accused of selling cigarettes to a minor in violation of the penal code section c08. the decoy, a girl 15 years old -- 15 years old allegedly, she came to the store during a busy time. my client after for identification. she preferred the id. -- proferred the id.

my client was negligent in not taking the exact date. -- did of birth. she asked for the idea a second time around but was refused. the next thing you know, the police came with the minority koy and told him that he was in violation. we have submitted briefs to this body and we have quoted california penal code section 308. that clearly states that the violation of this code is punishable either as a criminal offense of misbehavior, or the civil action. this is in the disjunctive. our contention is that my client

should be punished for this offense only once. the fact that san francisco health code states that they're trying to punish the client because of the operation of his business was sanctioned by the department of health. our contention is that the california penal code supersedes the san francisco health department procedures. also, the penal code clearly states that the fine for this offense should be $200 for the first time, $500 for the second

time, and $1,000 for the third time. we contend the should not be penalized by shutting the sales by my client for 70 days as ordered by the representative of the health department. this amounts to punishment on the basis of entrapment. by that i mean my client was not predisposed to sell cigarettes to minors. it is a small neighborhood grocery store. the code says that the client, the offender must knowingly and

willingly to violate the law and that is not the case. because my client was not predisposed to make a sale to minors. also, we contend there is a case law that was mentioned in bentonville, maryland. it is stated that actual evidence should preclude successive prosecutions for a single offense.

this was indeed a single offense. we're in the process of going to court over the next couple of months and we're waiting for court date. at that time we will present our evidence and possibly there may be a punishment there. we contend that this request -- [no audio] shut down operations for 70 days and present our evidence before the court for the same offense is tantamount to double jeopardy in a sense. it is a single sovereignty, punishing for the same offense twice. one is for a better word for modus operandi.

how the client was committed and the other is for the crime itself. the third issue i would like to read that even if my client was negligent, and did violate california's section 308, this punishment is harsh because -- [bell] the sale of cigarettes is the main attraction for this neighborhood grocery store to attract businesses because he sells lots of groceries and is tantamount to depriving him of his opportunity to own a -- order a decent livelihood. -- earn a decent livelihood.

[bell] thank you very much. president goh: when you presented tonight the facts, you said -- liggett order straight. you said that when your client requested to review the identification card the second time, he was denied. this was only after he was cited. >> that is correct. any further questions? president goh: thank you. we can hear from the department now. >> i am eric mar, involved in the tobacco program. qaeda base summary here what --

kind of a summer here. this business is a market. -- just a summary here. this came to the board of appeals and a 25-day suspension was row. the business sold cigarettes again to a minor on june 1, 2011 and we and received a 70-day suspension for the sale of cigarettes. and applied to come to the board of appeals. a summary of the neighborhood. that is kind of a family neighborhood. and i surveyed the area myself. located in this area, there were three elementary schools and middle schools within two or three blocks. also recreation center it that

was frequented by teenagers and youth, it is one block away. also, there is james lick middle school located six blocks away. and immaculate conception high school which is eight blocks away. it is kind of a family neighborhood. i want to give that background. the health department, the code allows for up to six months of suspension for a second time violation within one year. we issued a 70-day violation, a 70 day suspension. i am the person who for the last five years have been going out to the sites issuing the citations as well as posting these locations. i make it a point to emphasize that do not do it again. the second time it will be a lot more harsh. i make a point because i do not want to see these people brought in again. i make a point to emphasize, do not do it again. every -- i tell that to every

operator. my family owned two small businesses also in san francisco so i understand the plight of small business. the minor decoy operation occurred and the miner was 15 years old. the owner -- to his credit, the first time a citation was issued, the idea was not checked. this time at least he checked the idea but incorrectly and apparently did not read the day. unfortunately, that time, the officer had come in to do that. the undercover operation. normally again i want to emphasize we could ask for up to a six months' suspension but we asked for 70. i ask for 90 normally but since

he did ask for the id, it went down from 90 to 70. that was my recommendation. i think that is all i need to say. >> in order to help out, would you go over the issue having to do with what appears to be confusion on his part as to what the city can impose upon someone who is in violation of 308 but also in violation of the city's regulations having to do with selling tobacco to minors? >> there's a difference there. this comes up quite often. a lot of times, people will come to the directors hearing genser went to the police department and i thought i got a result. there is a separation between the health department and the police department. one is enforcing the penal code and one is enforcing the health code. that is what we are enforcing. there is no fine but there is a suspension involved.

>> thank you. >> i wanted to ask you cents a point was made of it about not allowing the appellant to review the ide again. at least the second time with the age was of the minor. >> i do not know the procedure that when the police department does this operation. i would doubt seriously they would withhold something if that was not done properly. thank you. >> is there any public comment? seeing none, we will remove -- moved into rebuttals. you have three minutes. >> thank you. all i can say is the punishment

must fit the crime. in this case, the 70-day suspension will be a death blow to the financial operations of my client. not allowing him to earn a livelihood in this country. because he does not have the faculty to help himself by working with somebody else because he does not have the wherewithal to be an employee and his only source of income, i request that the amount of suspension, the time of suspension be reduced to probably one month or in the alternative, a monetary sanction in the amount of $500. thank you. >> anything further?

>> the health department does not have a means of collecting fees like that so that is not an option we do. i understand this is a hardship. i would also clarify, this is not totally a cigarette story. it is a small mom-and-pop operation. the inventory is low. cigarettes, i cannot give the precise but it is a large -- small display. there is not a whole lot of products in the store. again, all i can say is we could ask for six months but we ask for 70 days. >> did you say earlier also across the street from the school -- it is st. paul's. >> a