think they care about anything other than amplified music that would disrupt my evening. that is storefronts and thriving businesses. they do not care about the artists or the bartenders or the cooks. i do not what north beach is all about. hopefully, that is what they will be. >> it sounds like conjecture. i am very curious about -- >> certification, please be seated. -- sir, please be seated. >> i am not a frequent patron of the north beach area. i do not know if there are other establishments that have live music. are there? they are not being shut down? >> no. tupelo was issued the permit. what should happen is zoning should say, we made an honest

mistake. it was our fault. there has always been live music on grant avenue. they should let them run their business. they made a substantial investment. >> you've answered my question, thank you. vice president hwang: any other public comment? i think there is another person going to speak. >> good evening, commissioners. i am an avid admirer of the board of appeals and its exercise of discretion. i would like to encourage you to use your discretion here to help preserve a very important resource in san francisco. sometimes, it is called -- the board of appeals is called upon to exercise judgment and what is best for the community overall. i think saving an important

music venue in north beach is one such discretion call that you should make. thank you. vice president hwang: any other public comment? we will start rebuttal. we start with the appellant. you have three minutes of rebuttal. >> to clarify the six-month period, that is before tupelo ever opened its doors. since we have opened our doors, we have not had a single incident, a single fight. we had had absolutely no problems. [unintelligible] >> thank you, commissioners. we have heard a lot of stuff. i was -- the most amazing thing was the actual police officers

coming up. and talking about how much broadway has turned into a war zone. let's kill grant avenue, too. broadway went downhill when they started doing the 8:00 towaway. and turned it into an armed camp. the only people who would go down with the people that were used to armed camps. let's look at broadway. this particular venue is five blocks up. that is a crazy argument. i want to go back to looking at the total circumstances surrounding the 2005 permit. if that was issued, you have a continuation. in my brief, i talk about property rights and -- this is a first amendment protected activity. you have the fact that somebody

has been doing first amendment protected activity for six years. somebody buys their property and all of a sudden, a very powerful group that lives up on top of the hill decides that we do not want this in our neighborhood. we are going to get rid of it. unfortunately, we have a library issue. we have some crazy issues from certain groups. you have a lot of discussion as to what is right and what is right is jobs, keeping it alive, keeping our soul life. this -- i think the people did not like the fact that they got cleaned out to at the entertainment commissioner. they have a file full of stuff. we looked pretty bad entertainment, maybe we should call or friend and planning and

cause problems. that is what they did. you are in a position to rectify that problem. the evidence is there. i can name of six or eight things the planning department did as a mistake. when of pete rose went in there, they gave them the business plan. -- moh he doesquitos went in thy gave them the business plan. >> where is the evidence of what happens in a meeting? >> i will call up -- he can tell you what happened. >> does he have a vested interest in this? >> he was the only one that was there aside from the platter. " there is none? >> no. >> ok, it's not like i am trying to find something against your

case. i am just trying to find some evidence of windy hours, changed from what was originally proposed -- windy hours were change from what was originally proposed. what 20 hours? >> 10:00 -- 7:00 until 10:00, and non-amplified, five days a week. >> where is it that that was changed? >> on the record, it probably was a mistake. that was not the client's mistake. that was the planning commission's mistake. >> i could see where you would argue that the mistake was not enforcement. -- non-enforcement. >> can we talk about him coming out, with out legal counsel, handing a business plan over to

planning. can you tell us what we need to do? he punched into the computer. nobody found that 97. nobody, not mr. lord, not mr. miller. none of these people. >> you are talking about -- it has to do with the 2005? >> correct. >> lookout exhibit b. -- look at exhibit b, the second page. if that was made known in 2005 that they want to operate under those hours, it would seem to me that you would have to show me where the hours returned earlier or explain to me the language on the basis for a recommendation.

>> there is no hours in that 2005 at all. >> it does not mean that you cannot operate any hours that you want to. it means that nothing has changed from what was originally conditioned. >> let's go back to my brief. we talked about first amendment protected activity. somewhere along the way, the city let people do certain things. if you look at my exhibits, the dwellers themselves -- >> i am not a lawyer, but the problem becomes, maybe there was some mistake made on the part of entertainment. you have to have a validly issued permits. if entertainment made an error in their interpretation of the 2005 cu -- that is not for me to decide. that is something for a court to decide. for my purposes right here,

right now, there is some confusing language having to do with eight. if you have to stay below a certain sound level. i cannot find anything that would authorize this operation to stay open beyond 10:00 at night. >> other than a validly issued permits. something you said was kind of disturbing. >> you entered by custom. -- you have answered my question. >> did you watch the 2005 hearing? did hours of operation, u come ? >> the hours were never mentioned. the entire transcript is in my brief.

>> hours were never brought up? >> nothing. >> the 10:00 shot down? >> correct. the issues were how much food are you going to do, how many tables, how would you limit the crowd and noise? that is what the dwellers were concerned about. >> we have heard great testimony, it sounds like it is a well-run business. i agree it is not related to broadway. it is far away on grant avenue, which has a different character. somebody somewhere, the referenced the hours. it is hard for us to imagine that you went to a hearing, a conditional use hearing, and did not talk about the hours. if this was such a big change. either people did not know about

the old condition or it was not been requested. i am having a hard time figuring out -- >> the 1997 conditional use during was not mentioned at all in the paper work. it is a huge mistake. senior planners have looked at it and they could not believe that. >> it sounds odd that it was not mentioned. it is hard for us to say, just because it was not mentioned, you got approval to operate -- and help us find -- >> the facts are what they are. the city and county of san francisco is the entertainment commission is the planning commission. ok? it is the same thing. the city and county of san francisco issued a valid permit

unrestricted in 2005. that is the issue. >> before you sit down, first of all, commissioner, are you finished? >> yes. >> with all the information, i am getting a little confused. at what point in time did the establishment begain operating until 2:00? >> the 2005 operation began -- >> no, no. >> i believe it that the entertainment permit -- got the entertainment permit, it was issued early in 2006. the first day they had bad permit, they had a live band. -- had bad permit, they had a live band.

>> what was the>> my recollecti, maybe march of 2006. >> thank you. >> do you have a question? >> it would be good to get your understanding of what happened in 2005. did the 1997 restriction on hours come up? >> i was not aware of it at all. i was never given a referral with the nikkei's number. the only case number i was ever

-- with a case number. that was the only cu i knew about. the issue of hours of operation was not in there. my assumption, and maybe that was incorrect, there was not a restriction on hours. when they are silent on it, that was my assumption. >they came to the commission asking for entertainment until 2:00. >> that would need conditional use. >> in node. -- no. we go to planning. you are planning, it is this a permissible use? the only response i got was the 2005 cu, which did not speak to hours. my assumption was there was no restriction on hours. >> authorizing a place of

entertainment, they do not reference anything? they are silent on that? >> they were in this case. this is what i was presented with a guy planning. the conditions were attached to this permit -- presented with by planning. the conditions were attached to this permit. they did not stipulate to hours, and so we did not either. >> when did you become aware of the 1997? >> 2011, when tupelo came. that timeline is something that you have. we did make that mistake. in the referral that came to us, it referred to case number whatever it was, but it did not say 2005 or 1997.

my administrator, mr. king, believes it was a continuation of the sme cu. that was our error. we did not know they were different from each other. that is why the entertainment commission went forward and it should something they should not have -- issued something they should not have. >> were you involved in the 2005 decision at the entertainment? >> i was the permit administrator, not the director. yes, i was involved. >> in that instance, was there any reference to previous cus? >> i expect they give me all the

information that they have. i only got a cu that had no restriction on hours. it was silent on the hours. it was the 2005. i did not know there was a 1997. >> when you sat in on the hearing for the 2005 entertainment commission permanent, -- permits, the presentation must have reference to something. >> it did reference -- it did not reference anything else at all. >> thank you. >> thank you. just a brief recap on the timing. in december 1996, we received a

referral from the police department. in 1997, we approved conditional use. la bodega did operate for several years. in 2005, the bar was added to the restaurant. they went through the process for that. then we have a change of use. we gave our referral back to introduce its commission dated in november of that year, 2005. then we have a referral for another change of use this last year to tupelo. we gave our response back in august stating that there were these conditions of approval. we informed the entertainment commission of those requirements. i did want to address a couple of points. this is not about the character of the operator. i want to make that clear. this is a very narrow determination related to

enforcement of conditions of approval. since tupelo has operated, i am not aware of any complaints against the property. we do not have any complaints against the property or the operator. they have not been providing entertainment, even though they could, that is consistent with their previous authorization. they're not doing that. but we have been very clear in saying, since this letter was issued back in october, they have choices. there is a path forward. they can either operate in compliance with the conditions of approval that go back to the original authorization of the place of entertainment permit with the police department in 1997, or should they wish to move beyond that, they can file a conditional use authorization -- i had hoped that one would have been filed. this hearing has been continued several times. we're now at a hearing and we

have for a lot of good public testimony about the use. this is public testimony that should be directed at the planning commission. that is something they can pursue. we would encourage them to do so. i wanted to make that clear. i am available for any other questions. >> your data base shows for a specific property, which of various entitlements. what does it show for this property? >> it shows the 1997 authorization, the 2005 authorization, there may be other permits related to the property. those are two that are on the parcel information database. maybe the last year, it has been available on our website. the property information map,

you can pull up motions and conditions of approval. that is something that is available to the general public when they come into the planning information counter. thank you. >> i believe it, go ahead. >> were you able to watch the 2005 hearing? >> i did not watch the 2005 hearing. the assistant zoning administrator did watch the hearing. there was no reference to any changes in the hours of operation. that was something that had been raised by the appellant previously. we did not find any merit to that argument. >> there is no reference to the 1997 cu. that would have been relevant to the fact that -- this argument could go both ways.

you were changing to allow full service liquor, that would have been a good thing to point out. this establishment only had live music until 10:00 tonight. do you think people knew of it at this time? >> there is no excuse for not knowing about it. it would have been in our records. we approved the la bodega use with those conditions of approval. they operated continuously without violating those conditions of approval. but he does did not apply for any changes to the hours -- though he temosquito did not apy changes to the hours. the only change is the addition

of hard liquor service. it seems pretty clear that at the time the planning commission was considering, they were considering one single aspect of the change to the operation. >> that is clear by the documentation. it just seems odd to me that the hours were not brought up. >> we would have been in a much better situation now had that happened. i regret that it did not happen. those conditions of approval remain in effect from 1997. >> is paul still was planning? were you able to talk to them about this? >> i did speak to him and he did not have any specific recollection. >> i have a question. you have invited the appellant to submit another application. what with the likelihood of granting that be? >> i cannot speculate. this is something that would be

the determination of the seven members of the planning commission. they would need a simple majority in order to approve the amendment. we did see at the hearing that there is support. i think the biggest concerns were related to the police issues, which could probably be addressed. there would be a forum for that. >> i am a little confused about the policy about amplified and non-amplified music. my assumption is that the decibel level will be the same for both of them. why the difference? >> that was the determination of the planning commission in 1997. now we would prefer that the use be limited to the noise ordinance. it does make sense that when you have amplified, there is a greater possibility of things going wrong. they have -- you could have a

greater ease in which it could exceed the noise ordinance. it is an unfortunate condition that they had in making that distinction. i think it was relating to the use itself. it was very simple at the time, the very limited hours of operation, the retailer to use that applied in 1997. >> that would be called amplified? >> it should not be amplified through any speaker system. >> let's assume, and i do assume, that testimony given earlier, that testimony is correct. overall the years they were operating, what changed -- why

has there been a complaint to the planning department? >> i cannot speculate why we receive complaints. we just receive complaints. it was brought to our attention that the entertainment commission did not approve the permit with those conditions. >> thank you. >> it was operating from 2005 until the sale would to a clock with amplified sound. were there complaints -- until 2:00 with amplified sound. were there complains? >> i did not know about complaints. >> do you know if there were complaints? >> there were probably about four or five over the course of all of those years. on sound. and then you have heard testimony from the police

department as to any other kinds of activities. >> go ahead, i'm sorry. >> i have another question. for either the owner or his representative. >> yes? >> is there a reason why you did not submit for conditional use it for hours of operation? >> why we would not cement -- segment -- submit. >> we are scheduled for an intake appointment on that specific issue. >> ok. >> thank you, sir. let me give you what my assumption is. it might inform the question i'm going to ask.

is it correct that you are an owner of this establishment earlier and you were the person involved in 1997? >> no. >> your the consultant? >> i was the founder and executive director of the north beach chamber of commerce. i have a long history of knowing what goes on or has gone on at that location. i have testified on behalf of mosquitos over the years. >> even though you are part of the team, i assume it is a right to ask you a question. what was it that you intended to tell this commission? >> i have been in the neighborhood since the early 1960's. i did go to the 2005 conditional use hearing. at the time, my recollection is, we all knew what was coming in.

we all knew that the people who were opening mosquitos reorganizes of the north beach jazz festival. we all were very familiar with what we doing. the conditional use permit hearing, and i think i was the one, it was about alcohol. i think that came up, what is the point of calling? how can you have a mojito without a run in it? -- rim in it. we all expected that there would be live music. their essence was about live music. for the record,