of the permit holder. we are happy to announce that we are also in agreement with the plans that we provided to the board and that we're asking that you make those changes to us so that we can fulfill this settlement agreement. it has been requested by the former represent of the appellants, his name is pat buscovich, his name is on the appeal that we mention that. he is no longer representing the appellants and was not involved with the negotiations leading to this settlement. we're working with the permit holder and appellants and have come to this agreement and respectfully request that you make the changes that we've agreed to so we can move forward with this permit. thank you. >> vice president fung: is your exhibit a dated august 22, 2012 the official settlement document? >> yes, that is. it's actually exhibit a to the

actual settlement agreement, commissioner. >> are there no further questions for the parties, we can see if there's any departmental comment. nothing? any public comment? okay. no other public comment. commissioners, if you have no questions, then the matter is before you. >> say the parties have reached an agreement. we should probably go ahead and confirm it. >> president hwang: if you care to support this settlement agreement, what you would need to do is to grant the appeal, and issue the permit with the modifications reflected in exhibit a. and that would be on the basis that the parties have reached this agreement. mr. pacheco when you're ready if you could call the roll on that

motion please. >> we have a motion from commissioner lazarus to grant the repeel and it is with the adoption revised plans, exhibit a dated august 22, 2012. and this is on the basis of agreement between the parties. on that motion, vice president fung, aye, president hwang, aye, commissioner hurtado is absent. it is 3-0. this permit is upheld with those revised plans and a notice of decision and order will be released, and no other rehearing requests are allowed. thank you. >> president hwang: thank you. calling item 6, appeal 12-081

kinami ahmed dba "nile café", appellant(s), versus department of public health, respondent. 544 jones street. appealing the 30-day suspension of a tobacco product sales permit. reason for suspension: violation of state law and the san francisco health code which p tobacco products. director's case no. smk12-06. we will start with the appellant's agent and you have seven minutes. >> thank you. abraham -- appearing on behalf of mr. ahmed. the reason for the appeal is the decision of the department is that it is overbroad and punitive. in addition we request a -- that the board review de novo the denial of the exemption request that the appellant submitted timely in a timely fashion.

the smoking of huka pipes and the enjoyment of the camaraderie that occurs around that have great cultural significance. unfortunately, the smoking ban in san francisco allowed the huka bar to fall through the cracks of that regulation. as i stated in my brief, mr. ah med because he is a muslim is not able to sell alcohol and it does not comply with regulations regarding bars or tafns s -- taverns so he could not fall within the limited exemption to the ban. when he submitted the exemption he put a little box written next to it huka bar in hopes of continuing to operate it that way. he did not receive a clear indication that he understood that his exception request had

been denied, up until the time of the recent hearing on this matter. so in terms of the arguments that are being made here, there are two i think that should be addressed. one is can the appellant, nile cafe, continue to sell and serve non-tobacco products that are used with huka pipes and all the receptacles and i ask serving equipment that goes along with that. and the second is, is there some way to fit nile cafe into one of the exceptions. on the first point about the non-tobacco products, the respondent argues we shouldn't allow the use and enjoyment of non-tobacco products in it nile cafe because it would cause problems with enforcement of the

law. that is respectfully not a legitimate reason for banning a product's use. the statute here is very clear. san francisco health code section 1009.21 states that smoking, or to smoke means that it includes inhaling, exhaling, or carrying smoking equipment for other weed or plant. non-tobacco stones, as the appellant wishes to continue to serve at nile cafe, are none of those. it's not a tobacco. it's not a weed or a plant. it's a stone with some syrup on it that's vol tied by the ash -- vaporized -- exactly. but by the coals and in a huka pipe. so the old latin term expresseso

unus -- i think applies here. the express mention of one thing in the statute excludes all others. so saying well it should be excluded or i would make our enforcement of the law as it stands difficult, is not a legitimate reason for denying the continued use of huka pipes. so the department's decision was overbroad and should be overturn odd that point. in addition, we request that the 30 day suspension of the tobacco license be overturned as punitive and unnecessary in this case, where mr. ahmed -- applicable to his establishment. >> vice president fung: counselor, has there been previous violations? >> i'm sorry, previous to?

>> vice president fung: to this one. this denial. >> no. >> vice president fung: okay. not denial, but suspension. >> you reserve your right to ask questions after -- >> vice president fung: you will have a chance for rebuttal. >> thank you. >> president hwang: thank you. we can hear from the department now. >> good evening, commissioners. i am janine young from environmental health, i'm senior inspector. since november 2005, nile cafe has only been approved, has license and permits to operate a restaurant. nile cafe is a restaurant, a cafe that serves coffee, expresseso, tea, smoothies and other beverages. also the cafe is located in a building that contains 87 residential units.

i first met the owner of the nile cafe in june 2010. and we met and we spoke about the ordinance. i told him, in june 2010, that the ordinance prohibited smoking inside restaurants, that the the ordinance also did not qualify restaurants for a smoking exemption. and i also informed him that in order to qualify for an exemption, he would have had to become a bar tavern or a tobacco shop, prior to december 31, 2009. and that the only way that smoking could be allowed indoors was that there had to be a new law on the books. but mr. ahmed requested to apply for the exemption anyway. when i received the exemption it was noted that they were trying to meet the exemption under bar with no employees.

now, the health code defines a bar as a business devoted to serving alcoholic beverages or consumption and nile cafe is not a bar. now on the exemption application, nile cafe did not check off tobacco shop. well they could not check off tobacco shop because the health code states that the tobacco shop cannot be located within or adjacent to a restaurant, bar or tavern. and furthermore, the california business and professional code include, in its definition, that a tobacco shop does not sell alcoholic beverages or food for consumption on the premise. so the san francisco law is very clear. there is no smoking indoors or outdoors for any type of establishment that serves food or beverages. and mr. ahmed the choice to violate the health code by allowing his patrons to smoke

indoors even after our meeting, even after i denied the exemption application, and even the follow-up phone calls that we had in 2010. i also sent a notice to comply. that was in 2011. and then there were two notices of violations that were issued in february and may of this year. so because of the continued repeat violation, the department ordered a cease and desist of smoking inside of the cafe, also insisted the complete removal of all smoking products and smoking devices, and a 30 day suspension for the tobacco permit. now my last meeting with mr. ahmed was june 19, 2012 and he showed me his new product that he wanted to convert to, which is these rocks soaknd jis rin and the glycerin is infused with flavors. i went last night and wanted -- to observe the operations. so it was the same huka pipes being used, the smoking devices

are still being lit by hot charcoal. the product is rock, but i did learn on the internet that you can mix tobacco products with these rocks. the patrons were inhaling, exhaling this heated product through the huka pipe. and then the cafe is still selling tobacco, and there were several open containers of huka tobacco products. and when i asked the employee why, if they were using this rock product would they need to have open containers of tobacco. the employee stated that these products are now being sold in small portions to their customers. and then they tell their customers to go smoke it somewhere else. but with this smoking devices, now on the site, the huka tobacco product now sold in small portions, directly to the customer, is really no way of

guaranteeing that the patrons or the employees would not add the tobacco to the rocks. the only way the department would have to verify that is to do something like a sting operation, or, you know, to go in and grab samples, while people are smoking, and this would create an enforcement nightmare for the department of public health. and i have aliana cur show to give another testimony. >> good evening, commissioners. my name is aliana cur show with the tobacco-free project of the department of public health. i wanted to first of all add that actually smoking has been banned in restaurants in california since 1995. in 2010, we strengthened the law, through a local ordinance. so this is not really anything new. this has been on the books for quite some time. the other thing i wanted to add

is that even if there were no tobacco product being used in the hukas -- and i do believe that having the tobacco products there, open in a container, it would seem that it would be very likely that the customers would put the huka tobacco product on the hot stones if there are huka pipes present. that this is sort of similar to the phenomenon of electronic cigarettes, which now were recently banned by the airport commission and they're banned on airplanes. and this is even though there's no tobacco that is used in electronic cigarettes, the problem is that it gives the public the impression that smoking is permitted in areas where it's not permitted, and it also gives the impression to the public that there's no consequence to smoking in areas where smoking is not permitted. tobacco is still the number one cause of preventable deaths in the united states, and the two

major factors that have reduced smoking in san francisco from about 20% to about 11.9% from 190 to now are snoak-free laws and tobacco taxes and that would be -- the -- if we were to allow smoking in this facility. >> so the department of public health is asking the board to please uphold the 30 day suspension because the business knowingly and repeatedly violated the ordinance since the first meeting in june 2010. the department also is asking the board to help send a message to the public and business owners that smoking is not -- will not be allowed in prohibited areas. and the only way we can do that is by upholding the cease and desist order which includes removal of the smoking devices from the cafe. thank you. >> vice president fung: ms. young, two questions.

one is the no employees -- i saw that in the bar or tavern designation. does that also apply to tobacco shop? >> first of all, i just wanted to let you know that when i did my inspections in may and june -- february and may, and when i went there last night as well, they have employees. so i mean this business has -- >> vice president fung: i'm talking about the ordinance. >> no, the ordinance does not have no employee designation for tobacco shops and that is because in state law there was something about bars with no employees called owner-operator bars. these are no contractors, owners do everything. >> vice president fung: all right. or owners. >> yes. owners, yes. >> vice president fung: the designation as a cafe for him to

sell tobacco products would require a separate permit from you? >> yes. anyone that wants to sell tobacco in san francisco must receive a permit from the department of public health to sell tobacco. >> vice president fung: does he have a permit for that? >> yes, he does. >> vice president fung: to sell tobacco. >> yes, he does. >> vice president fung: okay. thank you. >> thank you. >> president hwang: is there any public comment on this item? okay. seeing none then we will move into rebuttal. mr. merchant, you have three minutes of rebuttal. >> i'd like to stress that i've heard no rebuttal or argument regarding the lack of an actual statute that prohibits this non-tobacco product. i think that's very clear, they

have no argument about that, except for a hope that now they'll get some help from the board on this. and mr. ahmed has certainly made every effort to try to communicate and comply. unfortunately it appears that window or that possibility is very limited. and so we will -- have to take other avenues on that, and plan to do so. the issue of whether or not the enforcement of the regulations on the books would be more difficult, if non-tobacco products were allowed, is something for the board of supervisors to take up and address by amending the regulation. and in terms of whether or not we would be willing to remove tobacco from nile cafe is something that mr. ahmed has

considered and is willing to do if he is allowed to continue to possess and use the huka pipes with the non-tobacco product. >> vice presidenproduct. >> so ever since this new legislation came to light, i try to comply and try to understand and try to work every possible way to comply, and to be -- to continue doing it legally. i see so many gaps in the whole process. and i've tried to talk to eric mar's office, eric mar, himself, david chu, and supervisor kim. and the whole thing was discussed and debated without us being present.

we were not -- i did not know that this was going on. so they made some exceptions for some taverns and some cigar lounges to continue and to get grandfather status, his to continue to allow their patrons to smoke. whereas huka lounges were not because we were not part of the whole thing. i cannot serve alcohol so i cannot have a tavern license. and even if i have a tavern license, i cannot sell tobacco products because they don't allow me to have tobacco license. so it's just a catch-22 situation. so, you know, i try to understand the situation. and i made my -- say i'm a huka lounge. i have both tobacco product license and also cafe license, which is the restaurant license. so there is no category for a huka lounge in san francisco. it's a cultural thing. so a lot of people come from all over. they like to enjoy the huka

pipe. they don't want to go to a bar because they don't drink alcohol. it's a venue for a lot of people from different background to kind of find this venue to gather and to talk, and to have a time together. so the other thing was to -- >> president hwang: unless i missed it, i think your time is up. >> okay. >> vice president fung: i would raise the -- just to confirm what was stated by counselor at the -- you would stop all tobacco sales, if you were allowed non-tobacco products? >> absolutely. that's what i was trying to do. absolutely. that's what i was trying to do. from the get-go, trying to comply with the new ordinance. >> vice president fung: thank you, sir. >> president hwang: before you sit down, i might have misunderstood this, but i thought i heard the department

advise -- tell us that she had advised you, as of june 2010, that you could not be allowed smoking on your -- smoking tobacco products. >> she say that she was going to send me some documents on that. >> president hwang: right. and then i think in your brief you wrote -- your lawyer wrote that you did not learn that you did not receive exemption status -- you weren't exempt. you weren't considered exempt until you received the notice of vials. >> until i received this last letter -- >> president hwang: so in that interim period you that it it's fine for me to continue to have smoking products on my site. >> there are other huka lounges that were doing the same thing. so i did not receive any letter from them. and i saw what the other huka lounges were doing. they were in operation. so i assumed that they would come out with something, and i would get some paper, documentation. so i was waiting for that, basically.

and then i did receive -- >> president hwang: so you were never advised to stop doing it. that's your position? okay. >> until recently. >> president hwang: thank you. >> ms. young. >> so, again, i would just like to make it very clear that this is a restaurant. the state laws and the local law says that there's still smoking inside of restaurants. and the ordinance does not allow or provide any provision to allow restaurants or cafes to smoke indoors or outdoors. and i -- or any type of business to smoke, if they're located in a residential building. and since june 2010, nile cafe knew, through meetings with me, phone calls, we've had several phone calls, and notices. the first written notice was the denial of the exemption that went out november 2010. the second notice was the notice to comply. that went out august 2011.

and then there was two notices of violation issued on 2012. and that was all before we even met with the director of public health. so nile cafe h written notificas between november 2010 and may 2012. but they still made the choice to violate the health code. and therefore there should not be reversal or reduction of the suspension or order. the nile cafe once they comply with the suspension and want to -- they can contact me and we'll be willing to meet with them but i think they need to comply with the law first and then come to us and we can sit down and figure out something. thank you. >> vice president fung: ms. young, the ordinance, does it state smoking of tobacco? >> it states smoking of tobacco, plant, or other weed. >> vice president fung: and it's fairly broad then. >> it is very broad.

>> vice president fung: in what it says is smoking. >> yes. >> vice president fung: what about rocks? >> it does not say rocks. i don't think anyone was aware that you can smoke rocks. >> vice president fung: me either. >> i wasn't aware of it until their lead brought it to my -- >> vice president fung: if it's non-tobacco, would the the department maintain then that the ordinance says no smoking, period? >> if it's a non-tobacco product, if it doesn't meet the definition of smoking, then it's not smoking. but while they have tobacco products in the cafe, while they have an active permit, i don't think -- i'm not able to have any discussion with them. they need to first comply with the law, and then come and propose to the department, and the department will be open to listen, to meet with them. thank you. >> president hwang: thank you. >> commissioners, the matter is

submitted. >> president hwang: go ahead. >> commissioner lazarus: mr. burton, i guess, i am confused about what nile cafe claims to be. is it a cafe? i mean you can't be a cafe and a tobacco shop, as i understand it. so what is it? >> well, in terms of what it does, it does -- >> commissioner lazarus: it operates under a license as something. >> right. it operates under a license as a restaurant, is the main license. but it also has a tobacco license to sell the product. >> commissioner lazarus: but it's not a tobacco shop, is that -- >> under the -- the department is arguing that you cannot be a tobacco shop and serve food at the same time. that's the language of the statute. >> commissioner lazarus: well, if they're arguing it because it's in the statute, then -- >> i'm just telling you -- i'm not saying one way or the other. i'm just telling you their position. >> commissioner lazarus: and is it legitimate to argue that while there may be some

ambiguity allowing someone to continue while it gets resolved you can make a similar argument that it cease happening while it is being resolved? >> i'm sorry. >> commissioner lazarus: continue to smoke in this gray area of hukas? >> i would also like to correct the assertion that this is in any way smoking. it's inhaling a vapor that is heated off of a stone. and the statute is very clear in terms of what it defines as smoking. and it has nothing to do with these rocks, and this vapor. >> commissioner lazarus: apparently -- >> smoking has to do with smoke. there's no smoke. there is no smoke. the statute doesn't apply. >> commissioner lazarus: and you also talk about being allowed the opportunity to move the business. i'm not quite sure what that has to do with this either. >> well, under the exemption --

exceptions to the statute, there was the possibility of a grace period to move from a mixed use building to a commercial building. >> commissioner lazarus: grace period allowing what? >> the the relocation of the business. >> commissioner lazarus: but not the continued use -- >> well, at the new location, then the use could continue. >> commissioner lazarus: but that would have to be permitted as well, right? >> that would be allowed as a grandfathered business. >> commissioner lazarus: thank you. >> president hwang: i think the appellant raises an interesting argument on the statutory interpretation of where does the huka fit in the law. i think that what we're looking at here is the failure to cease and desist smoking of tobacco, when the state law was clear that tobacco cannot be smoked in a restaurant.

i'm talking. so if i -- so that seems to be what's at issue here. and the the fact that the exemption period had already expired at the point at which the appellant attempted to get one, you know, already futile at that point. i'm going to give you an opportunity in a minute, okay. i'm trying to formulate my thoughts and you're disrupting that formulation process. but that's where i'm going with this, which is that it seemed to me -- it seems to me, and you're going to have an opportunity to correct if i've totally got this wrong -- but that's where i'm looking at this -- the issue before us, which is -- i think a suspension, based on