period of enforcement. okay. go ahead. did i say something that was improper from your perspective, factually or are you going to make another argument. >> i am not going to make another argument. the one that i -- and i don't think you did anything improper. just that the exemption exception period ha had not cead at the time that he made his application. >> president hwang: okay. thank you. >> and the point is that my hope is that the board will see that this border is overbroad and that it prohibits legal activity. >> president hwang: thank you.

>> vice president fung: you know, the problem -- the ordinance made by some people be considered overbroad. however, the definition that is being asked of this board is extremely narrow. and the ordinance, i think, is quite clear, in terms of how it defines. and the question of -- that raises some element of grayness to that ordinance is what happens with non-tobacco

products. although it does say smoking of any tobacco or weed or whatever else. i'm not sure i have enough here to be able to overturn the department's position. perhaps if it was only a huka lounge, smoking non-tobacco, that may make their position a little bit more palatable to the department. >> commissioner lazarus: if you don't mind, i do have,

ms. young, a question on what steps, if any, the department has taken to address the huka question. i mean the appellant has spoken to three of our supervisors. and i'm wondering where your department's going with this issue. >> so i have informed all of the business owners who wanted to change to huk-a that right now with the existing law in the book the only way that you're going to be allowed to smoke is if you are a bar, tavern, or tobacco shop, and the smoking occurs in an outdoor patio. and there's no smoking within 10 feet of a door leading to the patio. that's the only way that you can smoke. so unfortunately, there's not much the department can do, unless -- until there is another law on the book. >> president hwang: and that was, what you just described, is

a policy that was developed in it your department? >> so based on the law, it limits everyone to -- that's the schematic, that we're limited to. so -- as far as smoking indoors, that's prohibited. and the exemption that they're talking about never applied to restaurant. you had to have been a bar, tavern, or tobacco shop, in a commercial building. >> president hwang: right. but going to the appellant's core argument that this falls outside of that non-smoking provision, it makes this very difficult. okay. thank you. well other than that, you're, at this point in time, ms. young, your department is not doing anything further to address this

particular -- i mean if the issue has been presented that this falls outside of the smoking ban, and the ordinance, then what are you all doing? >> right now, this is the first business actually using a rock and glycerin product. everyone else is still using the basic traditional tobacco, or some version that has plant that fits into the definition. so this is the very first one -- that we've seen this product at all on the scene. >> president hwang: thank you. that's helpful. >> thank you. >> vice president fung: commissioners, i'm prepared to move, if there's no further comment. i'm going to move that we deny

the appeal and uphold the department's 30 day suspension. on the ground that the ordinance prohibits, at this point in time, this particular activity. >> were i to vote in favor of that motion, i would want to add that the policy basis also submitted by the department is a compelling factor. >> vice president fung: actually, you know, commissioner, i would be willing to overrule the department, if you were... >> president hwang: tell me why. >> vice president fung: except for one issue. i think it's probably a victimless crime, but the one issue is the residential units up above. >> president hwang mean, you'd be -- if i were to -- >> vice president fung: i'm not antismoking.

>> president hwang: that's not what i was talking about. i was talking about encouraging people to -- having the appearance that smoking is permitted in a venue such as restaurants. that's what i was -- >> vice president fung: i understand. >> commissioner lazarus: if i may just add, but it is residential units. so that does sort of further add the department's case, does it not? >> vice president fung: yes, i believe so. >> so there's a motion i believe on the floor to deny the appeal and uphold the suspension on the basis that the ordinance prohibits smoking at restaurants, and also with a friendly amendment, i don't know if you've accepted, that the -- >> vice president fung: i have. >> -- the dph policy -- if you could repeat your statement. >> president hwang: i felt

that the arguments -- the dph policy to avoid allowing the appearance of permitting smoking in restaurants is compelling. >> vice president fung: was that clear? >> yes. i'm waiting for mr. pacheco to write it down. >> this is a motion from vice president fung to deny the appeal, uphold the suspension on the basis that the ordinance prohibits smoking in restaurants, and on the basis that the dph policy to avoid having the appearance of smoking

in restaurants is compelling. on that motion, president hwang aye. commissioner hurtado is absent. commissioner lazarus, aye. 3-0, the suspension is upheld on that basis. >> president hwang: thank you. >> i'll call item 7 (7) appeal no. 12-089 henry johnson, appellant(s) versus police department, respondent. 1195 quesada street. appealing the denial on july 23, 2012, of tow car operator permit for hearing today. we will start with the appellant, mr. johnson. you have seven minutes to present your case. >> good evening to you all. i'm here today -- the decision

that they made due to a fine that my first permit i should have kept, and instead of the second one. i don't want to waste too much of your time tonight, but i have a family to feed and this is what i do here in san francisco, tow cars for the last 17 years. and never had no problems here. so that's what i'd like to say. >> vice president fung: sir, i was a little confused by what is really before us in this case. you applied for a tow driver -- you submitted a tow driver application for a new company named nelson. >> no. for bay ridge. i have previously held one for numerous years, just until i branched off to get a second job with a second company.

>> vice president fung: and what's the name of that company? >> the company was named bay bridge. i previously held a permit for like 15 years, already, before bay bridge. >> vice president fung: okay. perhaps i got to hear from the department. i'm still confused but we'll straighten this out. >> okay. >> good evening, commissioners. officer fenaris appearing on behalf of the san francisco police department, permits division. the reason for denial for mr. johnson's tow car permit was it's actually two-part. it's basically the municipal code -- he has municipal code violations and it was an incomplete application. i have evidence but i will show it to you on the overhead.

he applied for a new tow car application on december 14 of 2011. however, he did not submit his fingerprints as required by municipal police code section 3003(b). i called mr. johnson on his personal phone, and his current place of employment at that time, which was nelson's, as well as bay bridge, i talked to his employers, left messages for him on his phone, to submit his fingerprints to complete his application for a tow operator. after numerous requests, mr. johnson did arrive and that took until april to get him to come back in and submit his fingerprints. a criminal history check from the department of justice revealed mr. johnson had two arrests in september of 2007. and he was convicted on those in 2009. these were arrests for

23103(a) of the california vehicle code which is reckless driving and 594b1 which is vandalism. his was specifically to a vehicle, malicious mischief to a vehicle of the municipal police code. i requested a copy of the incident report from mountain view police department, case no. 07003090, and it confirmed the arrest of johnson. i'd like to show you just a page or two of the police report, just to confirm that. if you can see here, officer revis transported and booked johnson into the main jail for

594a3b vandalism and for 23103a reckless driving. and the report is kind of long so i'll go to another page of the charges. basically mr. johnson, he was actually filmed on video, for reckless driving and he deliberately swerved side to side, causing the vehicle to roll over and he was booked into the main jail and these are his charges, 594a vandalism over 5,000. the other thing that kind of disturbs me about that is that was a 16,000 pound vehicle -- truck. let me go on. so basically mr. johnson failed to appear for numerous hearings after i called him and told him that he would have some municipal code violations. only after a letter on may 10,

informing mr. johnson that he needed to appear or his application would not be processed, he did appear. i informed him at that time he was in violation of the municipal police codes. and i'd like to show you which codes those are. i'll put those on as well. first one is going to be just a section that says that he must complete a set of fingerprints by the police department for his application. the second one is the municipal police code 3004a which basically states within four year the day of the application has been submitted, there is no convictions of burglary, robbery, theft, receipt of stolen property, removal of stolen parts from vehicles and malicious -- to a vehicle.

also, on his application, he also neglected to list the arrests, which is also a violation of the permit. when you apply, if you can see right here, basically it says failure to provide a full information relative to prior convictions guilty pleas or no contest pleas may be cause to deny the permit. he has listed down one arrest in 1987 for possession. so basically, at the hearing where mr. johnson did arrive, he spoke for a brief moment regarding the matter. he said he never was arrested in 2009. however, the criminal history check reveals that he has been. he was arrested in 2007, but his

conviction was in 2009. mr. johnson then was informed by the hearing judge, mr. cogin that his application would be denied for those municipal code violations as well as the code section 2a80 which basically -- get that as well -- states that -- basically chief powers stating that we didn't -- he did not find -- to be suitable for a tow driver at that time. and that basically states that the chief of police may refuse to issue any permit that is subject to police department investigation or issuance if it shall appear the character of the business or applicant requesting such permit does not warrant the issuance thereof. so, you know, the main thing basically, there's a couple of things going on. and in all fairness, i have other applicants that fall into that same category. they have to wait the allotted time, which is -- could be three

or four years, depending how long that takes. so it's kind of not fair to them. i explained to mr. johnson that november of 2013 he would be able to reapply. >> just for clarification, this is a permit denial, not a revocation, correct? >> denial. >> in conjunction with the bay bridge company. >> he currently held a permit for another one. the problem was when mr. johnson came in originally he wasn't fingerprinted. i've been there for a year and a half. while i go there i go by the municipal code which says every new applicant will be fingerprinted. so maybe before i was there he might have not been fingerprinted but now it's consistent with every applicant. >> i think i'm not really clear here. is the the application was for a permit -- an original permit, a new permit. >> yes. >> correct? >> yes. >> for bay bridge towing

company. >> it was a revocation and a denial. because when he was fingerprinted he fell into that category of that municipal code. >> president hwang: so he had an existing permit, and he sought a renewal of the permit? >> he had an existing permit, and he wanted to transfer to a new company. >> no, i didn't. >> vice president fung: wait, you'll have a fans. >> president hwang: or additional gls. >> additional permit. >> president hwang: in addition to not granting in addition to denying the new permit, the police department revoked an existing permit? >> yes. >> president hwang: that was not at issue. >> i don't believe that's on appeal before you. >> president hwang: right. >> it was revealed then that he had had the arrest and conviction. >> president hwang: that's not before us. okay. thank you. >> vice president fung: officer, you're required to submit an application for every company you drive for? >> yes. >> vice president fung: so your letter of denial refers to

applications derived for nelson towing? >> it refers to nelson towing and bay bridge. >> vice president fung: no. just nelson is what the letter states. >> i can show you the letter from mr. cogan, basically was the hearing judge. >> vice president fung: well perhaps i don't -- i'm looking at -- is this the official letter from your department, notifying mr. johnson, dated july 23, 2012? written by william cogan? >> yes. >> vice president fung: that's the official letter to him, right? >> yes. >> vice president fung: it says denial of sfpd issue tow truck driver application to drive for nelson's towing, only. >> that was probably for the revocation.

he never received a permit for bay bridge. that was -- his application for bay bridge was denied. the revocation was for nelson's and i believe nelson's expired but i believe it expired. >> vice president fung: you know what this is? this is a denial of the appeal of that denial, i presume. >> yes, i believe you're correct. >> vice president fung: okay. the original application was for bay -- >> bay bridge. >> president hwang: again, if i could just clarify, the statement from the appellant states on may 30, the bay bridge tow permit was denied. on june 20, the nelson's tow permit was revoked. >> i'd have to check the records. i just know the one from bay bridge was denied at the hearing. the revocation on the other one

probably... you're probably correct on that. >> vice president fung: in the -- his original application then for the one that was revoked, did it have the same requirements? >> same requirements, yes. >> vice president fung: as this ordinance? >> yes. >> vice president fung: it just did not have the fingerprinting requirement, therefore there was no history check? >> there always was a fingerprinting requirement. i can show you that. actually i did show it to you but i'll show you again. there always was one. i don't know why there wasn't one on that one. and that's what it is there, basically the applicant shall be accompanied by a fingerprint fee, which they're charged typically. maybe he wasn't charged that at that time. he didn't have a set -- a complete set of applicant's fingerprints to be taken by the police department at that time. and that's for all the applicants that are tow drivers

or owners. >> vice president fung: right. but in his previous application, was there any fingerprints in his file? >> i didn't see any fingerprints in his file, no. >> vice president fung: so you reviewed his entire file then. >> president hwang: well take public comment. is there anyone wishes to speak on this item? okay. seeing none, then we have rebuttal. you have additional time, if you'd like to speak. mr. johnson, you can speak now. you have an additional three minutes. >> excuse me. number one, my nelson permit wasn't never -- it's valid. it's still valid now. i was -- i only came back to get additional permit from this gentleman, right here. i come in every year to take pictures, to renew every single

year. i've gone coming to this department for the last 15 years, before this gentleman started working here. i just had renewed my nelson permit prior to this incident with the bay bridge. i had just renewed it. everything was fine. i took -- i had fingerprints prior to this, with nelson, i had fingerprints prior to this, and with the bay bridge, it was some new, so he opened, maybe take fingerprints again. there wasn't nothing i never was hiding because every year that you go in there, you bring a dmv printout, valid pictures, so everything -- everybody know exactly what's going on. i mean this new thing that he started doing, this wasn't -- it wasn't a problem five years, i've been holding this permit for the last -- since 2007, each after this incident happened.

even after 2009 i was convicted i still came in here to renew and there wasn't a problem until 2012 when this gentleman right here, it became a problem. but my permit was always valid. and it's still valid, until the problem that i'm having now. i just think it's unfair for him to go back and take another permit that i previously already had, and to characterize me, he never worked with me, he maybe should ask some of his -- his fellow officers, like carolyn -- that's been working with me for the last 15, 20 years. i just met this guy a year ago -- i mean a few months ago. i didn't work with officers here in san francisco for the last 20 years. first time i met this gentleman. >> vice president fung: mr. johnson, you indicate then that, in your renewal of

december 2011, you submitted all information required, including fingerprints. >> i submitted everything that i was supposed to submit in december, because it wasn't nothing like i was hiding. i know the city requires that you carry two permits. i work for two different companies, so it wasn't no -- trying to -- one permit on one company. i took the right option to go the right way was to get another permit, and when i went to try to get this other permit he winded up taking the other permit i previously had. i mean i was only trying to go about the right route and he seemed like i was trying to hide something, which i never was. >> mr. johnson, the officer says that they requested fingerprints at the end of 2011 and it was not until april that you submitted them. is that correct? and if so, why? >> ma'am, in 2011, at the end of the year, what i had done was i just went in there and renewed

my bayview -- i meanmy nelson permit. 2011 i went and renew with pictures, my dmv printout, paid my money. then in january i was going to this other company to work for a time to make some more money and then i went back again. i never hired from this gentleman, or never anything like that. it was just at the time that we done it, you know. i always -- when he call, or contact me, i always respond to anything he said. but it was never nothing like that. i mean i've been working here for the last 17 years. they got my record down there at the city. >> commissioner lazarus: but do you disagree that there were numerous requests and a lapse of several months between the request for fingerprints and your submitting a fingerprint? >> ma'am, it wasn't never no request. what he's saying is untruthful. there never was a request. when i stepped to the window and he request i get fingerprints i go straight down the hall and

get 'em. it was never you send me a letter to go somewhere. i denied it. when you send me down the hall, i went straight down there and done it. so what he's telling you is untruthful. >> i think -- you know, i think that the issue regarding fingerprints only relate to the request for the new permit for bay bridge. is that what your understanding is? rather than the existing one. for nelson. >> yes. but i'm still trying to understand what happened with meeting or not meeting the request in a timely fashion. >> okay. >> but he's not -- i think -- and tell me if i'm wrong, mr. johnson. you're not requesting any -- you don't object to the denial of the bay bridge permit at all. >> no. i don't deny -- i mean i'm not denying the bay bridge permit. i can understand that. >> it's the existing one. >> this is my existing permit, and all my eggs is in one basket.

>> i understand. >> i got no way of providing for my family. >> i get it. i think i get it. >> questions relating to -- >> correct. >> thank you. officer fenarus you have rebuttal as well. >> there's a letter i sent mr. johnson back on -- looks like april, informing him that if he failed to appear at his last hearing in may -- >> this is for the denied permit in bay bridge, right? >> this is for, yes, bay bridge. >> i think we're on the revocation of the nelson permit. so do you have anything on that, in terms of applications or -- >> you know, that fell into the same category as bay bridge, basically there were no fingerprints and once he was fingerprinted he was in vials of the municipal code. >> do you have