however, the party can elect to pay a fine outside of the suspension to avoid the suspension and just a personal agreement or as a side agreement with regard to the violation. there's nothing prohibiting that at all. i think more importantly if there is going to be a suspension that's upheld, and let's just go back, this store has been here for 20 years without any violations at all. this is the first violation it's had. i think it's appropriate at a minimum that the time be at least cut to 15 days or that the board determine some kind of fine and my client will elect to pay the fine because he's so worried about the catastrophic impact of the suspension. unless the board has any other questions, i have nothing else. thank you. >> well, i just have one more question. so you don't have any evidence to present to us today on the financial impact; is that correct?

>> that is correct. i can have my client testify to that effect. she doesn't speak english very well, but from my understanding of what she has told me or her husband has told me, she has been running the store over 20 years, the impact would be quite substantial. it's substantial enough they hired me to come down here and file this appeal and have it heard. and i think if you tie that in to the fact there's really no rhyme or reason for the 30 days, they are not even applying a 30 day rule, they are applying a 25 day rule and los angeles has a 23 day rule, i think reducing the suspension, appropriate. >> and what do you feel would be an appropriate fine? >> $5,000. it's not the amount, it's not the amount of the money, it's what the impact is. if my client is willing to pay that, then he's willing to pay it. >> thank you.

>> mr. kessler, do you have any rebuttal? you have time if you'd care to use it. no? okay. then, commissioners, the matter is submitted. >> five thousand is a lot of cigarettes. >> i don't think we're, we have jurisdiction to impose a fine in lieu of suspension or in addition to a reduced -- i was surprised to find absolutely no justification or excuse presented in the papers or oral presentation, absolutely no acknowledgement of the conduct at issue and any attempts to remedy it from happening in the futurement and for that reason i think the 30 days is appropriate. i think it's, if that was what the department decided and they could have gone up to 90, i

think that's well within a reasonable amount of time. . >> i do find it troubling that we don't have anything presented to us. is it true that we don't have jurisdiction to convert this it a fine from a suspension? >> i would be careful about that in light of what's been said by the department of health. at this point i'm just not, i'm reluctant to say you do have jurisdiction over that. >> well, i think regardless, based on what was -- the lack of evidence that was presented tonight as to the financial impact, i would have to agree

with president hwang and uphold the 30 days suspension at this point. >> commissioner hartado, that discussion on monetary fines has come in front of this board many times. and previously some of the arguments were that if one sold liquor to a minor, the penalty is $300. there is no suspension involved by the state of california or local law. i would argue slightly differently. given the nature of the economy now and the fact that we actually have seen less appeals of this nature in recent years, i would give them a little bit of a break and wonder whether we would accept a suspension of 20 days.

>> i mean i guess i could be persuaded of that. i think the suspension needs to be meaningful so as to act as a deterrent. the number of days does seem somewhat arbitrary and again we don't have enough data to calculate the impact. i could offer 25 and split the difference. >> i'd be prepared to make a motion. i'd move to, in light of where we are with the economy i would uphold the department -- excuse me -- accept the appeal and uphold the department and reduce the suspension to 25 days.

>> shall we call the roll on that, commissioners? mr. pacheco. >> on that motion from the vice president to grant this appeal and reduce the suspension to 25 days. on that motion to reduce,. (roll called). >> the vote is 3-1, the suspension is reduced to 25 days. >> thank you. moving on to item no. 7, appeal no. 12-103, paul antono versus the department of building inspection, the subject property is at 1123 folsom street for construction work done without a permit. on

for hearing today and we can start with the appellant. >> good evening, my name is paul antono, the appeal that i am working off here, it was not that the construction was done without a permit. on august 9, 2012, that's when i picked up my permit to do, to convert this space which was a 15-room motel into a two-unit -- two condos. the original notice of violation was received in 1996, 15 years ago. we had purchased the property in 2005. when we purchased the property there was nothing on the title report that had said there was a cloud on the title or there was an abatement. the abatement actually occurred in 1998, director's decision 3.998 and there was an

initial bill paid in 1999 and we didn't find out anything until 2010, september of 2010, that it was going to be referred to the city attorney's office. as soon as we received that, i actually went to the housing department and i spoke to anthony leppe to figure out how -- what was going on, how to fix this problem. so we construed a notice of vial violation, he came in and did the property, i had an agreement with the tenants. it remained vacant until 2009. i rented it to commercial tenants. it was an agreement they needed to move out so we could correct the 2006 violation and convert the building, but the fees that were assessed on the 9 times fee was based on anthony leppe's two code violations which he said there was to hand

rail and fire ladder. so i have a contract that i have with a contractor from october of 2010 just to maintain the fire ladder and to put wooden railing, installation materials for a thousand dollars. i paid in 2012 i paid $25 times the fee with the job card, when it was approved. >> you paid based on 25,000. >> exactly, we had to do a 314 notice, which we had to get around to all the neighbors. it took a while to get the people out, to notify the neighbors and submit the permits, submit the architectural plans and permits, structural, so anyway,

i paid based on $25,000 and it's more of a -- it's not a lot of money that was paid, but i don't think it was warranted, especially when it was only these two items involved, which was the ladder and the fire escape. >> did you request the department to take a second look at the valuation? >> i did and they said to file an appeal. and that's what i did. >> okay, we'll hear from the department, then. >> good evening, commissioners, joe dunphy from dbi when i was looking at the brief i couldn't find the notice of violation that had the penalty on it, it was president part of the brief. so i made some copies of the

notice of violation that has what the inspetor wrote it up with. i'd like to pass that up. >> that would be great. >> basically we have a notice of violation issued on september 17th, 2010. the legal use of the building is a 15 guest room hotel approved by permanent application. the hotel is located on the second

floor of a two-story building over a ground floor commercial. there have been changes made to the original floor plan, rooms have been removed, there is a new bathroom with extensive electrical outlets installed. permit research shows no permits have been taken to perform any of this work. so basically it is a notice of violation for work without a permit. inspector lappe put 9 times fee on $25,000 so it doesn't say on the violation when the work was done or who-done-it, it just notes that there is definitely work there. i did look up the 96 notice of violation. it actually was very, i wasn't able to get that many details on that, but it seems this issue may have been an old one but nothing was done on it. so when the inspector went back in 2010 it was still an issue and he ended up

writing it up. that's where the $25,000 penalty came from. obviously the new owner came in and i'm not sure what happened with that, but the penalty would have been on the work done without a permit. so i'm available for any questions. >> mr. duffy, this 2010 nov, is it referring back to the 1996 violations? >> that's a good question and i can't figure that out myself with reading through and i went today to get the housing inspector, i was unable to get that. one of the questions i wanted to do as part of my research but i didn't get that. typically if the work was done by a previous owner, we do have some discretion with that because they are obviously taking care of it now. i'm not saying not to reduce it, but it was work done without a permit,

it wasn't taken care of. the inspector did the right thing at the time. your point about talking to the department i always think is a good thing to do. if they tell you to go to (inaudible) better to talk to some of the deputy directors so you are not coming here to do that. i'm not sure what happened, i was president part of that. i don't know if it was part of the 96. i suspect it was because i looked at permit history today and i didn't see a permit to take care of anything relating to 96. >> because the work he's talking about, a hand rail and stuff, none of it is listed here. >> i know, and when you look up the notice of violation in the brief, that's all that talks about. i couldn't figure that out either when i started reading it and then i was able to find this notice of violation. there wouldn't be a 9 times penalty for fixing a hand rail. >> i wouldn't think so. >> only work that was done without a permit so i think the question would be who did the

work and when did they do the work? >> would you like to have more time in meeting with this gentleman and come back to us at a future date? >> i'd like to have spoken to inspector leppe, absolutely, before tonight but that wasn't able to happen. if you'd like to, i can try and resolve it, maybe, at a department level. >> commissioners, i'd like to have a correlation between the scope of work and the valuation so we know exactly what's going on. >> the inspector went there in 2010 and could not determine when the work was done. that might affect the penalty and i'm not sure, the penalty would have been put on by someone in our department at the time prior to the issuance of the permit, so i don't know how that discussion went. he may have used someone else to pull the permit and didn't realize it, just gt a bill and then realized there was a penalty on this. if you hire someone to get a permit, they are going to go ahead and pay for it, to get the permit. maybe that's what

happened. >> how much time do you think you'd need? >> two weeks. >> madam director? >> i would say if you want it on in november i would suggest the 7th over the 14th. >> november 7th allow you an opportunity to visit with the department and see if you can clear this up? you need to come forth here if you're going to speak. i think you would go through first mr. duffy. if that's all right with you, commissioners, then i will move to continue this to november 7th. >> so that's to allow time for the parties to discuss a resolution and if that doesn't work, then for dbi to do

additional research. >> right. >> on that motion to continue from the vice president to november 7th. (roll taken). >> the vote is 4-0, this matter is continued to november 7th. thank you. >> then we're moving on to items 8a and 8b, which shall be heard together. 8 a is appeal 12-090, 8b is 12-091, appellants are carol seligman and jim stafford, subject property is 2705 larkin street and both appeals are protesting

the issuance to peter fenton to a permit to demolish a building, conforming to residential design guidelines by stepping back in two directions. the matter is on for hearing today. i understand the appellants have, are jointly represented by an attorney and if you would like to step forward. are the parties here for this item? you need to -- you want to try and get him? okay, thank you. very sweet.

mr. elman, we just called this appeal. we're ready to have it heard when you are ready to start. commissioners, since this matter is two appeals joined the parties will have 14 minutes to present their case. >> mr. president and members of the board, i am howard elman representing the appellant, carol seligman and we are, the other appellant has granted us his time so that we could have a little bit more it make a coherent presentation to you, because there are some complex issues. what we're asking for is that

you revoke the permit that's been issued and require the permit to correct all the nonconforming uses. our appeal is supported by testimony from fire experts jim mcmullen, mr. moony who is here tonight, the state fire marshal for 7 years. he cannot here to testify as an expert tonight because he is testifying in some expert out of the city. mark moony has equally strong credentials in the packet presented to you. he is here tonight and able to speak on those issues and answer questions. there's a lot of issues in this matter and it's complicated. i would like to focus on a few short ones, ones that are easy to understand. there's a studio apartment in this building that's a nonconforming pre-existing use. the plan before you proposes to enlarge and relocate the

studio in violation of the san francisco planning code section 181, and to exit from that unit through an unsprinklered garage from the second floor. now, initially there was a second emergency exit, means of egress, that was a stairway in back of the building. and the plan calls for the elimination of that stairway and so now you have -- and this is a rent controlled unit, by the way, if there's a tenant in there they are going to be dealing with the possibility of having to walk tlau through a garage that's not sprinklered, even though a lot of residential fires begin in a garage, and they don't have the access out the back that is clearly what they are supposed to have and is clearly required by the code. so that's point 1. and in and of itself it is sufficient to require that this permit be set

aside or sent back for further analysis and study. second, there was a roof deck that was built in 2008 without a permit. under your code, a roof deck is treated as habitable space making it a 5-level building without sprinklering in violation of code 5 stories above two basements, and we filed a formal complaint about this --. >> mr. elman, if you want the pictures to show up while you are speaking, you will have to refer to them as you are speaking and then the tv department will pick it up, okay? >> okay. okay, this is a picture of the --. >> if you can flip it. i paused your time, but any time you want to refer to the picture, you have it refer to it. >> i introduced my associate, kimberlee whangfu to you. as a dinosaur, i'm not very good with these modern technology things and she is and that's why i rely on her for this.

>> i restarted your time, you are at 11.16. >> i've spent 11 minutes already? >> no, no, you have 11. >> okay, thank you. so the roof deck was built without a permit and it's treated as a habitable space and so now we have 5 floors over the basement and that's supposed to be sprinklered and the plans don't call for full sprinklering. there is a series of violations of the emergency escape and rescue provisions under building code section 1026.1 and that's where -- you got it? that section says the openings that are required shall open directly into a public way or to a yard or court that opens to a public way. the word is directly. now most of us understand what that means. a line from here to there without a lot of

interference or obstacles. it's not over the woods -- over the hill and through the woods to grand mother's house. and yet if you look at these plans there is no such opening as required for all of the various improvements. now, it's possible that dbi could have made an equivalency determination. the code allows for that, as you know. the equivalency determination has 3 parts. it starts with an application, followed by a determination that, yes, indeed, the building plan actually has protections that are equal to the protections in the building code that we're not going to enforce, even though the state building code says that everything -- even though local governments have the right it reduce -- to increase the standards, they do

not have the right to reduce them. so you have an application, a determination, then you have to have written findings. you can look in this file and you won't find any of those three things. none of them. all right, in the response to our papers, mr. fenton's lawyers have said they are not responsible for prior violations. that's not correct. the building code says that the violations run with the property and that's planning code section 180 subparagraph b i'm prepared to give the authorities on this that i've collected through the city attorney with a copy to mr. fenton's lawyer. a further statement that because mr. fenton relied on a defective permit and incurred expense, he has vested rights.

the problem with that argument is you don't get vested rights on the basis of an illegal permit and you don't get vested rights against public health and safety regulations which we're talking about is a serious threat. i think that one thing before i ask mark moony to come to the podium here, we filed an application for design review at the planning commission -- discretionary review at the planning commission and were turned down. and lurking in the background here is the allegation that we are using building code arguments to raise what was essentially a planning code issue. we were told by the planning commission, don't tell us anything about the building code, take that to the board of appeals. so what is this, sort of a game of -- here we are.

now, miss seligman, her house directly abuts the fence of the house. that house has had two fire incidents in it. the house to the north of her has had a serious fire incident. mr. moony actually investigated that. and so, you know, what is that argument all about? violations of the building code don't matter if you have -- if you are involved, if you are concerned about it, if you have a different objective than just protecting against building code violations. the violations exist based on the structure and that's what counts. the validity of the permit does not change with the identity of the party calling it into question. that's what

i'd like to end up with here for this part of the presentation and ask mark moony to come forward. >> good evening, board members, my name is mark moony, i'm a private licensed investigator with the state of california, my expertise is in fire suppression and fire safety. i've taken a look at the plans related to this permit process and specifically i have come up with two violations of this permit process which are extremely important issues that need to be discussed. first of all is keep in mind, please, that this home is bound on two sides by other properties at a zero lot line. in other words, in the event of an emergency you have no exit from either side, only from the front or the rear. with that in mind, in the event that an emergency occurs, and let me also remind you that the building code uses the term emergency, not fire. because you could have a natural gas emergency which causes an explosion, you could have an

ert -- earthquake and so on. what i want to make clear is that the egress from the rear of the structure is into an area that has no legal access to a public right of way so as a result they would be required, the minimum distance from the rear of the house for safe area would be 50 feet. currently they have plus or minus 57. if the plan is put in action and extends the building out, they would only have 29 feet. that is surely very short of the required distance. this is related to radiant heat. i did investigate a fire in san jose at the santana road fire and 58 feet across the feet, the foal foliage across the street from the winchester mystery house