the city of san francisco sfgtv meeting of the board of appeals occurring wednesday, 17 october, 2012, will begin shortly.

. >> good evening, welcome to the october 17th, 2012 meeting of the san francisco board of

appeals. the present siding officer this evening is board president cis hwang. one seat on the board is vai captain and pursuant to charter section, the berd may hold a meeting when there is a vacancy. in such instances the board may overrule an action by the department by a vote of 3 members. to my left is deputy city attorney robert bryan, he will provide the board with any needed legal advice. at the controls is victor pacheco, i am cynthia goldstein and we are also joined by representatives of the departments that have cases before the board this evening. scott sanchez is here, he's representing the planning department and the planning commission and joseph duffy is here, senior building inspector representing the department of building

inspection. we expect to be joined also by representatives of the department of public health. at this time, mr. pacheco, if you could go over the berd's guidelines and conduct the swearing in process. >> the board requests you turn off all phones and pagers so they will not disrupt the proceedings. please carry on conversations in the hallway. the board's rules are as follows. the appellants each have 7 minutes to present their cases. people affiliated with these parties must include their comments within the 7 or 3 minute periods. member s of the public who are not affiliated with the parties have up to 3 minutes each to address the board but no rebuttals. to assist the board in the accurate preparation of minutes, member s of the public who wish to speak on an item are asked but not required to submit a speaker card or business card to board staff when you come up to the podium. speaker cards and pens are available on the left side of the podium.

the board also welcomes your comments and suggestions. there are customer satisfaction survey forms on the left side of the podium. if you have questions about requesting a rehearing, board rules or hearing schedules please speak to board staff during the break or after the meeting or call the board office tomorrow morning. the board office is located at 1650 mission street, room 304, between devoss and van ness avenues. this meeting is broadcast live on sfgtv, cable channel 78 and dvd's of this meeting are available for purchase directly from sfgtv thank you for your attention. at this point in time we will conduct our swearing in process. if you intend to testify at any of tonight's hearings and wish to have the board give your testimony evidentiary weight, please stand, raise your right hand and say i do after you have been sworn in or affirmed. please note any member of the public may speak without taking

this oath pursuant to the rights under the sunshine ordinance in the administrative code. thank you. (witnesses sworn). >> thank you, mr. pacheco. commissioners, we have two housekeeping items this evening. item no. 5, sashim doing business as mayor marakesh restaurant, the parties have jointly requested that the matter be continued to the board meeting of december 5, 2012 and with a vote we can move it to that date. >> so moved. >> thank you. is there any public comment on this item? seeing none, if you could call the role, please. (roll called). >> on that motion from

commissioner lazarus to reschedule 5-12104 to december 5. (roll called). >> the vote is 4-0, that matter is rescheduled to december 5. >> the next house keeping is having to do with item no. 6, ahmad al sharadi, that matter was just withdrawn a few minutes ago and will not be heard this evening. then we can start with no. 1 which is public comment for items not on tonight's agenda. is there anyone here who would like to speak on item 1? seeing none, we will -- i'm sorry, please step forward. 600 monteray boulevard? that's going to be called later. that's quite all right.

so no public comment under item no. 1, item no. 2, commissioner comments and questions. commissioners? >> i'm sorry, i should mention that i have to leave at 7:00 today and i apologize for that, i have to catch a flight for work-related travel. >> thank you. >> i also want to note there's a possibility i may not be able to attend next week's meeting. >> is there any public comment under item no. 2? okay, seeing none then we will move on to item no. 3, which is the adoption of the minutes of the board's meeting of october 10, 2012. >> move to adopt. >> thank you, is there any public comment on the minutes? seeing none, then mr. pacheco, if you could call the roll, please. >> on that motion from the president to adopt the october 10th, 2012 minutes.

(roll called). >> the vote is 4-0, those minutes are adopted. >> thank you. so i would like to call item no. 4 now. i'm wondering if there's someone here representing the department of public health. oh, great, thank you. so i will call item 4, appeal 12-100, quick and convenient versus the department of public health, appealing the 30-day suspension of a tobacco sales permit imposed on august 9, 2012 and the reason for suspension is selling tobacco products to minors. we will start with the appellant. you have 7 minutes. >> good evening, board members, sorry to intrude on your evening in this matter. however, i think there is something that really needs to be addressed on the punishment

phase for this type of violation. >> before you begin, would you like to state your name. >> my name is howard hibbard, i'm an attorney. what is so important about these proceedings is that when i attended the other hearing, almost every single violation received the same 30-day suspension. when you commit a serious felony or even serious misdemeanor, many times the matter is referred to the probation board to do an investigation to have punishment fit the crime. this is not done in this case and it seems to be arbitrary and capricious assignment that for this violation is a 30-day suspension, period. regretablely, this 30-day suspension, my client informs me, would be peril lus to her business. what i would like to recommend is that the punishment be changed or modified, there be a fine or the 30-day suspension at the election ever either the board or the defendant.

when you have a small store like this, people come in and buy cigarettes and then they buy other things. there's certain things that lead people to want to come into the store. they will do what we call leaders in the retail business. regretiblely, in this store one of the most important leaders it has is tobacco sales. i'm not going to comment on whether people should or should not be smoking, i'm only going to comment that it is legal and it is a way that people will actually go into the store and buy not just cigarettes but other items as well. this it's really important when there is a violation, yes, the violation should be addressed and it's a serious violation. what i'm questioning is that there should be an alternative to both fine and/or the suspension. the suspension in certain cases can lead to a punishment which is far worse than what would appear to be on its face. like in this case,

my client pretty much tells me if she has to go through 30 days, she rather doubts her store will survive. people will find cigarettes in other stores and people will continue to go to those other stores rather than her store. so it's as if you had, we were in merry olde england whereby if you committed a felony for more than $100, they hung you. as societies modernize we find crimes can be much more taylored and the more sophisticated the society to actually fit the crime. what i'd like to recommend here is that a fine be imposed in the alternative rather than a 30-day suspension. does the board have any questions? >> are you finished with your presentation? >> that's correct. >> i have a couple questions. in your brief you make a reference that the financial impact of this suspension was not discussed at the hearing. >> that's correct, sir.

>> did you present any information on the financial impact? >> i was not offered -- allowed to present anything. we just appeared, they read the charge and they assigned the punishment. there was no, other than -- indicating that i was present, that's all i was asked. there seemed to be no, no assignment during the proceedings for me to present that type of evidence. >> do you want to present a nexus between the suspension and her financial impact? >> i misunderstood you, do i want to present what? >> a nexus between survival of her business with the suspension. >> if the board will allow me more time i can probably gather the financial data. on the other hand, it's really difficult to show when you have a leader, people buying, i don't know if there's any way to collate from her cash

receipts other than common sense observation certain types of products in stores which people will continually come back to, to buy at a certain location and then they buy other things other than that type of sociological observation, i'm not sure what i could prove economically other than my client's opinion that if she's forced to do a 30-day suspension it will exact a much more substantial hardship than will appear on its face. >> thank you. >> we can hear from the department now. >> good afternoon, board members, larry kesler, department of hub health,

retail tobacco program. this was based on a police report back in april based on sales to a minor. we did have a dph hearing due to three months later due to some summertime postponement of these hearings. at that time the permitee was there and his attorney, my recollection is he did speak, he did talk to the hearing officer at that time. he was given, from what i remember, ample time to explain the situation. the hearing officer did uphold the 30-day suspension of the original notice. basically, after i read the brief, i did, i inquired at other counties what they do regarding these and what i did was i took the most successful rate of reduction in sales to minors, which was out of los angeles

county, and asked what they do. they do have that in their ordinance this they can charge these monetary penalties. because of the success rate i was interested in what they did and they strictly do suspension of permits. and our ordinance here in san francisco, the way we read it, it doesn't allow for any kind of monetary penalty. clearly a violation of california penal code this section 308 only allows for us to do a suspension on the permit, which was what we did in this case. >> how did you arrive at the 30 day determination? >> i took over this program. actually this was the first round of cases i received when i took over this program in april. i continued the policy that had been in place, my understanding, for years of a

30-day suspension. so i just continued the existing and standing policy the department of public health has. >> 30 days for first offense, even though you could suspend up to 90 days? >> correct. the hearing officer, of course, can reduce or increase up to 90 days or reduce to one day based on the discussion at that hearing. in this case he didn't reduce it at all, nor increase it. >> are you finished? just one question. historically, a number of years ago when these appeals first started showing up here, there was a lot of discussion between the financial impact and in some cases there were data presented as to how the tobacco sales would impact the economic

viability of those stores. and after a lot of discussions here there was the general suspension wound up to be around 20 days and then it slowly crept up to 30 days now and i'm wondering as mentioned, i'm not exactly sure how 30 days correlates, whether that is a meaningful suspension based upon a first-time offense. perhaps -- can you expand on that discussion as to what the department is thinking about? >> well, we've done a slight alteration since i first -- as i said, this was the first

round where i took over this program. we have made some slight adjustments to it. if it is at this point moving forward if it is a first offense and they asked for identification and simply we don't know what happened, we weren't there, we do -- the original notice is now for a 25-day suspension. going forward, after this first round, in seeing how things proceeded through these hearings that was a decision we made. my understanding, again, i think the overall goal of the health department is a reduction in these types of violations and i really can't tell you the history of why 30 days was started at some point. sounds like it's been see-sawing back and forth a little bit, perhaps, but in talking to just a comparison,

los angeles county they have had an excellent reduction in these types of events and they do a -- my understanding was they do about a 75 percent of the maximum penalty, which turns out in los angeles county to be about i think it's, like, 23 days or something like that. >> so their ordinance is a little bit different than ours. >> yes, they also can charge what the appellant was saying, to charge the equivalent of maybe monetary loss based on cigarette sales or whatever it is the administrative officer decides they are allowed. it's not in our ordinance. all we have is the suspension. >> did you check the amador county referenced by the appellant in his brief? he indicated they had a monetary fine. >> the list i have, october, 2012, i don't even have amador

county as even having an ordinance. i'm not saying they don't, they may. the list i have of facilities, of klts and cities that have these retail tobacco permitting -- i'm not clear where that information was gathered. >> thank you. is there any public comment on this item? okay, seeing none, then you have 3 minutes of rebuttal. >> first of all, i really appreciate the board's interest in the economic impact of these sales and in the fact that there really isn't any rhyme or reason to the 30 days. also, yes, it is true the way your statute is written, all you have