this is an area that we would hang out a lot when i was in high school. everyone is aware of that. thank you. >> it is an interesting location. i would assume that it was a good location for a retail store. i had a similar question as to why the department was changing their standard from 25 days to 20 days credit i am sympathetic, however, given the economic climate. not that i would support the

sale of cigarettes to minors. i would support a reduction in the penalty. >> i would agree. i would assume because of the nature of the violation, it seemed like it was an accident or a mistake by a very young clerk. perhaps that factored in a more lenient time. for the suspension. i would be in favor -- and also based on the testimony. i believe that he understands and believes that we should not be selling tobacco to minors. no one, i am sure, supports that. i would be inclined to reduce the time of the suspension.

>> i was just going to comment quickly. normally, when we see a 25-day suspension, there are similar comments. because it went down to 20 are ready, i am disinclined to extend that further. i do think there may be some circumstances that might -- i think the problem i am grappling with, i do not understand why there would be no new changes, as we heard from the department, that would put neon

flashing something to whoever is dealing with the customers to ensure that it never happens again. it does create a hardship. that makes it a little difficult. because the department did go down to 20, i would move to -- i would be inclined to uphold. >> i would be the same. we have the ability to do a 90- day suspension. we did a 20-day. i would support the department's recommendation of a 20-day suspension. >> i am usually the one to argue most strongly for production. if -- reduction. this is not -- this is not the owner who sold the tobacco. i am sympathetic to that.

for us to uphold, we have never known what the economic effect this might have on an operator. with the appellant, he is talking about the fact that the problem -- the product is less than it would be for a candy bar. i am not as sympathetic as they might ordinarily be. i have been encouraging -- please try to weigh what be up -- economic effects on an operator. i would suspect that it is possible that this individual, who was caught selling liquor to a minor, might pay the fine. he is suggesting is not that

great, and out of gratitude, for having something -- for having done something i consider to be more reasonable, i will move that we uphold the department and stick with the 20-day imposition of penalty. to not be able to sell tobacco for 20 days. >> is that on the basis stated? >> thank you for that. >> we have a motion from the president to uphold this 20-day suspension on the basis in the dph order. on that motion -- [roll call vote]

thank you. the vote is 3-2. this 20-day suspension is upheld. >> thank you. we will move back to item 5c. the subject property is on judah street. the appeal is protesting the issuance of a letter of determination to tenderloin housing clinic on november 19, 1997, that find no legal nonconforming use of the property as a tourist hotel has been established. at this hearing, the board failed to -- on april 1, 1998,

the board voted to continue the matter to await action by the superior court. this case was returned from the college your calendar and with the consent of the party. the president has agreed to give each party five minutes and we will start with the request. >> let me explain to people. both sides -- five minutes is more than a person would ordinarily get, not less. " good evening, commissioners. i am the attorney for the request. unlike the prior two cases, this case does present new facts. these are new facts that command the grant of a rehearing after these many years. the main fact that we rely on in

requesting a rehearing is the issuance in 2002 of a certificate of use and a permanent to convert what the city had previously considered to be a residential hotel to a tourist hotel. the permit was issued after application filed by my client from my office. after review by the department of building inspection, and the planning department, the property was approved to be a 20-room tourist hotel. contrary to the arguments made by the determination holder, the permit to convert that was issued does involve a review of the planning code. the permits specifically cannot be issued without a determination that the proposed use complies with the requirements of the planning code. that can be found at section

41.15c of the san francisco administrative code. specific permits and certificate that was issued to my client in 2002 was subject to both review by the planning commission and by the board of appeals. that right was found in section 41.1 at six of the administrative code. no appeal was filed this board in 2002. the time to file an appeal of this particular certificate is long past. he could have appealed that determination, tenderloin housing clinic could have appealed that determination. the certificate and per cent that was issued in 2002 is now final be determined that was issued in to dozens to is now final. this board needs to offer a

rehearing. i think the board's inability to muster a decision shows how difficult this case was for the boards, how complicated this question was for the board. we think is fairly straightforward. if you recall what occurred, it was a motion made by commissioner to uphold the determination. that motion failed 1-4. when a substantive motion was made, one of the persons who voted against it to uphold voted against the determination to overrule. we had a person who voted no on the same issue in the same case. not sure why that happened. we regret that it happens. that sense some signal to you that this is a troubling case to the board. more importantly, it has been overtaken by events. case has been heavily litigated through numerous court

proceedings involving but the city and the tenderloin housing clinic. the case was tried for rape court here in san francisco -- the court -- the case was tried for in court here in san francisco. the result in that case could be viewed as a mixed in terms of penalties that were awarded, the court refused to issue an injunction. that case went up to the appellant court and the appellate court affirmed that decision. that decision is final. the city filed a lawsuit trying to stop the operation of the property as the hotel. raise issues under the planning code, under the hotel ordinance. the city abandoned that lawsuit and chose not to proceed. here we are. in the last 15 months, the superior court has dismissed that lawsuit.

we left with the certificate of use and the operation of the property over the last 10 years as a tourist hotel. there are significant other legal questions that we raised in our brief. at the end of the day, it comes down to a question of fundamental fairness and trying to avoid the manifest injustice. in this particular case, allowing the kinds of inconsistencies that we see incident -- we see in this city decision making to happen. it had the effect of shutting down his business after 35 years. allowing that to happen would send a poor message to our citizens. i ask that you correct that injustice. >> you represented him in the hearing that took place before this board? >> i have represented them

since 1996 in every proceeding before the city. >> to make something clear, when there is an lod, it is not a hearing. someone requests a letter of determination, that is not a hearing. >> correct. the only hearing is when an aggrieved party files an appeal to this body. i suspect the question may go to the question of whether advice was given by the city attorney's office. >> you can go wherever you want to go. i am trying to get somewhere. >> there was no hearing when it was issued. there was a request for information. the information that we obtained determined that the determination was wrong. it was sitting in the planning

department's files. we did not even know about it. >> you might be answering the next question. it was going to go towards why were you on able before this board to demonstrate that this business had been operating as a tourist hotel since 1957? >> the city did not bother to look at its zoning file. this happened in a 30-day period. we were in court with the tenderloin housing clinic. we were defending ourselves against a whole array of claims. by the end of the day, at those records turned up in discovery in the litigation with the city. could we have found it? perhaps i should have been more diligent. the zoning administrator, when he issues a decision that was shut down a small business an

intact family, should have looked at is on file. >> you are going beyond the question. the next question has to do with -- never mind, i will wait. >> i very much appreciate your time. >> i know you like cases that span many years. the certificates of use that was the principal part of your president -- presentation, you cited the section that talks about what is involved in that. in this specific case, it in the issuance of this certificate, what review was there? >> i am not certain exactly how much review occurred. i do know that i would be very surprised if the city attorney's

office did not have a look at it. i do not believe whether there was a planning department review of that determination. >> there is no categories where there are signatures required? >> the application does have a procedure. it should. it should. the code itself requires that a review and requires that approval in order for the permit to issue. i think that is fine on now. this determination is not final, which creates two competing decisions by the city. >> even though this hotel -- hotel, motel, which is it? >> motel. >> it has operated as a motel ever since then, it was never a residential --

>> that is correct. >> some procedure in order to satisfy some administrative need of the courts or the planning department? >> involves the effort to trump the requirement of the administrative code. the property had to be withdrawn from the residential market. i do not believe you will see any names, no evictions, nobody was displaced from the property when that happens. i do not believe there is any evidence of any substantial residential use. of course, people do live in motels. this property has been operating commercially since day one. there was a mistake made. i mean, the form was sent to the wrong place. it never got returned.

when you ever owned the property before my client, the form never got returned to say, no, we are not a residential hotel. by default, at this property was classified as a residential hotel. we reminded that with our litigation. -- -- we remedied that with our litigation. i hope this board does the right thing and perhaps this inequity. >> not that i want you to lead me where this court might i to go, but with that represent the fact that it was never anything but a tourist hotel? without lead one to think that -- with that lead one to think that it should have been overturned based on manifest injustice? >> it should have been overturned based on the facts in front of the board.

four of the commissioners refused to uphold this. >> you did not try to have it overturned -- >> we are here now doing that. >> when i went back before the board in 1997, that was not the plea? >> the plea was error of law. the facts did not support the determination. that is the only facts in this record. i do not know if you've had a chance to look at it. if you look at the rapiecord, there are no facts of this hotel was -- did this property was ever operated as a residential hotel because it was not. >> there is no record when it was constructed and those permits were issued that said it was being billed as a hotel? >> it is a motel, they are in

the records, yes. there are also fell and broke records. -- there are also found a book records. this is a motel. >> y do you think a the zoning administrator did not take this into the account? >> they were involved with litigation with a property owner. the determination was part of a litigation strategy. the city attorney was prosecuting that litigation and appeared here in front of this board and gave a presentation in an effort to get that determination of put. it was being done as a part of a litigation strategy that failed. >> is the documentation -- did it show up in the rehearing process? >> we did not have any access to it. thank you very much, commissioners. >> i have a question.

i am looking at your papers on page 6. it seems to me that commissioner fung was asking questions, the focus of your view, the the certificate of use, right? >> it qualifies for a rehearing under your specific role. it was a new fact before the board. >> ok. the second paragraph under 0.3, page 6, 2002 certificate postdates 1998 determination. therefore, to the extent they are in conflict, the certificate should be deemed to supersede the determination. is there any authority for that? >> when you have a final administrative decision, not

appealed, a permanent trumps and non-final one. that is a straight forward doctrine. i hope that is correct. that doctrine comes from traditional law. >> i do not see any citations of any law, that is why i am asking you. >> i think it is a very straightforward and -- >> it ise mcman case. i would be happy to get you a citation on that. where there is an appellate process, to challenge something, that process is not taken advantage of by somebody wants to come back later and challenges. there has to be some finality of a permanent. >> the basis, related to the

desire bite your client to dig out of the business of right -- by your client she gets out of the business of renting? >wasn't related to evidence submitted with respect? >> that happened years earlier. >> that was the basis. >> the certificate had to be issued. >> that is what you submitted in support, correct? >> one of several things i submitted. >> i have nothing further for now. >> thank you. >> good evening, commissioners. on behalf of the tenderloin housing clinic. i want to address -- i would like to touch on one matter.

if i could have it on the screen. . i want to clarify this flier went out, apparently sending misinformation about our involvement in trying to convert this particular hotel. as stated, in two rooms for homeless people, welfare recipients, and felons. we have had no involvement in any effort to house homeless people at the hotel. we have not had any involvement with the beach motel since it was resolved in 1998. mike understanding is that the mayor's office has no designs on this hotel. i want to make that very clear. we did not get involved with this process until i got a call saying the board wants to resolve this matter.

it has been pending on your calendar for many years. there will be some public testimony that somehow we will force this to be a homeless shelter. that is not the case. that could continue as apartments, the restriction on renting houses -- has expired. there is no move to try to turn this into any homeless shelter or housing for homeless people. the problem with the argument is that the face of the certificate of use issued in 2002 the allies eight. it specifically states that the designation does not supersede the requirements of any other city code. those designations -- is only

issued because the entire property has been withdrawn from residential use. that is the reason the certificate of use was issued. the court of appeals says the hotel owner does not have to comply with the provisions of the hotel ordinance. both the city and mr. patel agreed to be bound. it specifically said it has nothing to do with the zone or the planning code and the court of appeals said their decision has nothing to do with the zoning and planning code. also, the courts of appeal have routinely stated that the invocation does not give the property owner are right to do it yourself zoning. ok? they cannot invoke it and not complied with zoning provisions

that uniformly applied to this property and other properties in the neighborhood and get some other the subsequent use of the property other than residential housing, residential rental housing, excuse me. they do not get a right to surpass the planning code provisions that generally applied to the neighborhood. every single court of appeal decision has confirmed that. it is and the statute itself. all this appeal is about is whether the zoning administrator determination must correct. and it clearly was because under standard nonconforming law, it is up to the property owner to show evidence of the nonconforming use. all the evidence that is evidence that was cut and was presented at the initial hearing.

as you can tell from reading the transcripts, it was a full and fair hearing. no additional evidence was provided that convinced this body to overturn the zoning administrator's decision. therefore, it is upheld. he is also incorrect but somehow the cou -- designing administrators determination was final at the time this board failed to uphold that. it was final. the request for rehearing does not suspend the determination. it was a final decision. even if it were to be determined to apply only -- to apply it to limit the planning codes provisions, which it does not, even if it was, it was not prior to this zoning administrator's determination. therefore, it is not binding on this board. >> let's deal with the first

thing you started with. the flier. what was the original reason that they got involved with this to begin with? >> we have been interested in maintaining the supply of residential hotels in san francisco. if you know the history of residential hotels, you know there was a tremendous amount of demolition and removal of residential hotels back in the tenderloin back in the late 1970's and early 1980's. that is why the ordinance was enacted. the tenderloin housing clinic was one of the chief sponsors, one of the major organizations pushing for the preservation of residential hotels. that has been our historic mission. we have uniformly monitored residential hotels to make sure they are in compliance. since the beach hotel had a 20