>> welcome to the april 11, 2012 meeting of the san francisco board of appeals. the presiding officer is board president michael garcia. joining him is vice president hwang and commissioners fung, hillis, and hurtado. we are joined by the legal assistant. i am the executive director. we are also joined by representatives from some of the city departments that have cases before the board this evening. scott sanchez is representing the planning department and planning commission.

he is the zoning administrator. next to him is mr. duffy of the department of building inspection. we are also joined by john quang, representing the department of public works the belgium of st. use and mapping. -- division of st. use and mapping. >> the board requests that you turn off all phones and pages so you will not disturb the proceedings. please carry on conversations in the hallway. appellants, permit holders, and department representatives each have seven minutes to present their cases and three minutes for a rebuttal. people affiliated with these parties must include their comments with dennis p -- within this period. 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 to staff when you go up to the podium. speaker cards and pans are available on the left side of the podium. there are customer satisfaction survey forms on the left side of the podium as well. if you have questions about requesting a rehearing, or meeting schedules, please speak to staff after the meeting or call the board of this tomorrow morning. the office is located at 1650 mission street, room 304. this meeting is broadcast live on san francisco government television, cable channel 78. dvd's of this meeting are available for purchase. thank you for your attention. at this time, we will conduct our swearing in process. if you intend to testify in tonight's hearings and wish to

give evidenciary testimony, please stand, raise your right hand, and say "i do" after you have been affirmed. any member of the public may speak without taking this of, pursuant to the rights under the sunshine ordinance of the administrative code. thank you. do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? thank you. >> thank you. president, commissioners, we have two housekeeping matters this evening. two of the items have been withdrawn and will not be heard. that is item 4, protesting a building permit at 62 commerce street. and item 6, protesting the

suspension of a tobacco sales permit. we will move to item one on our calendar, which is public comment. for anyone who wishes to speak on an item not on tonight's calendar. seeing none, we will move to commissioner comments and questions. commissioners? commissioner fung: i would like to note that i will be missing the april 25 meeting. >> ok. is there any public comment on this item? seeing none, we will move on to the minutes. for your consideration this evening, we have the minutes of the board meeting of march 21, 2012. president garcia: seeing no comments, i would move we adopt the draft minutes. >> thank you. is there any public comment on the minutes? seeing none, call the roll,

please. >> on that motion from the president to adopt the march 21 minutes -- commissioner fung: aye. vice president hwang: aye. commissioner hillis: aye. commissioner hurtado: aye. >> those minutes are adopted. >> item four has been withdrawn. we will move to item five, starting with 5a. the property is at 2701 taylor st.. we received a letter from shasha lewis, requesting a rehearing of the appeal decided on february 29, 2012. at that time, the board voted 3- 2 to deny the appeal and upheld the denial of the mobile food facility permit, on the basis

that the proposed operation is within 300 feet of an established business with the same type of food product. we will start with the requestor, ms. lewis. you have three minutes. >> hello. i own and operate a coffee and tea company. as i said in the prior meeting, the other establishments that were mentioned on taylor street -- there was only one that was a restaurant, and they would never have and have never, and i do not project they will, served african coffee -- you gotta, tanzania -- uganda, tanzania, and i could go on.

i sell a particular type of ethnic coffee and ethnic tea from a mobile carts. that is all i sell. that is the business i have. >> it is a pleasure for me to stand in front of you today. you have to remember the business of this country, with fundamental protections and human rights. we have people of an intelligent iq. the woman the right decision. when you talk about coffee, i am an expert on coffee. this is unfortunate, fair trade, non-acidic coffee. no one can ever coffee -- ever copy it. this is what we are trying to

deprive the people of san francisco. you guys need to have a taste of this coffee and compare it. it is the acidity. that is fundamental to what we have done. this is what ms. lewis is trying to bring to the people of san francisco. competition is open to everybody. i do not know what the problem is with competition. this is the fundamental of this great country. look at the opportunity enjoyed by everyone of us, what opportunity to be here today to speak in front of you. i do not want that opportunity to be taken away from ms. lewis. thank you so much.

>> thank you. >> thank you. >> mr. quang? >> the department of public works does understand the position from the applicant. however, the department believes the board acted correctly in its decision. the suggestion that the applicant is providing an like foods than what the local merchants is is inappropriate. the board decision is very similar to the one you had made previously for casa, in their application along beale street. there is a restaurant right there that provided mediterranean wrap food. the board decided this was like food.

in this case, they are suggesting that because of the way the coffee bean is provided, it is unlike other coffee, which is not established within the dpw order of the determination of a like food, nor does it match previous decisions coming from this body. we request the board of hold your decision and not provide a rehearing in this case. thank you. vice president hwang: i have a question for you. the information provided by the requestor -- i do not know if you have your packet up there. >> i do not. vice president hwang: it says protest denial of dpw hearing

and permit appeals. you might have this text already memorized. encircled and highlighted for us to look at is something the hearing officer may consider, which is "like food shall take into consideration the ethnicity of the food and the composition of each menu, as well as other issues deemed relevant, do determine whether a conflict exists." a coffee cart should not significantly affect a traditional diner just because it also offers coffee on its menu. a hot dog cart could jeopardize a restaurant that specializes in sausage sandwiches. to refresh my memory, could you tell me what the establishments were that your department determined to be like food to the coffee cart?

>> in this case, in that immediate area, as provided at the last hearing, there was a mcdonald's that served coffee. there was a diner near by. i believe there was also a starbucks. that is within 300 feet of the immediate area. those all serve coffee. specifically, starbucks does serve -- its main sail as coffee. -- sale is coffee. it is my understanding this would then be considered like food. at least that is what has been provided from the community benefits district. vice president hwang: was there not another establishment that was considered by your department as like food? is that the diner? what was the name of the diner? i feel like that is where the emphasis was when we were discussing it before. thank you. >> is there any public comment

on this item? please step forward. >> good evening, commissioners. how are you tonight? my name is gaius, and i am a distributor for exotic african coffee and tea, predominantly in the san francisco area. i would like to say first off, if we are making this appearance to focus attention on the responsibility of you to protect the minority group, versus the larger group. we have to protect these balances. that is why we feel we want you to uphold, you know, our interest in this regard. our coffee and our product issued it is unique to the extent that it has been described as a myth or legend. the altar premium select coffee movement started in san francisco.

it is not an ultra-premium legend. but when people would try to find that coffee, this would be a good place for them to come. where can i find aaa grade organic fair trade coffee? it has to be someplace in san francisco. thank you. hopefully, you will consider this. thank you. >> thank you. next speaker, please. >> thank you, commissioners. executive director of the fisherman's wharf community benefit district. following up to a letter provided to you by the community benefit district, just as a reminder, there are actually a number of restaurants that are businesses that are very close by the location the permit is being asked for. there are actually 18

restaurants in the area. just within that same law, there is a cafe and a burger king. within 300 blocks, there are many more restaurants, including stroganoff restaurant, gino's pizza, a starbucks, beech street grill, and the rain forest cafe. these are within 300 feet on either side. through our community benefit district, we would encourage you not to grant a rehearing for this permit, based on all these restaurants, which to offer coffee at their locations. >> thank you. is there any other public comment? seeing none, the matter is submitted.

commissioner hillis: on this item, as well as the item after this, which is a hearing request, i heard a lot of testimony on both cases. i did not see anything new in either case. there is a similar case to what the dpw made before. i am inclined to not grant a rehearing request in either case, given the threshold. there is not a lot of new additional information that has been presented. president garcia: are there other comments? commissioners? commissioner fung: i am of a similar thought. i have not heard anything that is new. we did have a long and extensive

hearing previously on this case. vice president hwang: i am focused more on the manifest injustice basis for granting a rehearing. i am a fairly certain that i would be standing alone if i were to make a finding of manifest injustice. i do think that the injustice here is that this is, as testified to, a different type of product that this request is speaking to get permitted. it is very different from mcdonald's coffee, very clearly different from denny's. starbucks, even. starbucks might have an array of coffee, but it sounds to me as if it is not even close to what this applicant is seeking to get permitted. that seems in just to me. for that reason, i would lean in the direction of granting a rehearing. commissioner hurtado: i would be

in agreement with commissioner hwang. apart from the manifest injustice issue, i continue to believe, as i did at the first hearing, that it is not like food. for that reason, i would also support a rehearing. president garcia: it looks like i am going to be the deciding vote, and i am going to be against a rehearing. the reason is i feel it is an overly fine distinction to talk about where the coffee might come from. if someone was selling pasta and someone had store-bought costa and someone had homemade pasta, that is different. if someone were selling coffee from starbucks, and i came along and wanted to offer coffee like in new orleans, that is still light enough. i think everyone agrees we would

fail on the basis of something new. nothing new has been presented. i feel similarly to how i felt the first time this came before us. that is that it is a justified, reasonable decision on the part of dpw. i will move to deny the request for a rehearing. >> on that motion from the president to deny this rehearing request -- commissioner fung: aye. vice president hwang: no. commissioner hillis: aye. commissioner hurtado: no. >> thank you. the vote is 3-2. this rehearing request is denied, and a notice of decision shall be ordered. >> will move on to item 5b, another rehearing request. subject property at 2801

leavenworth street. we received a letter from john kwong, an agent for the dpw. the board voted 4-1 to grant the appeal and overall the denial of the mobile food facility permit by dpw on the basis that the reason for the denial has not been substantiated. in this case, mr. kwong, you will go first. you will have three minutes. >> as stated in my brief to the committee -- to the board -- we have received additional documentation from officer matt pia's from central station. he has identified the areas within 300 feet of the proposed location on leavenworth st. that serves like foods once again. i want to bring this to the