>> the only thing that we don't want the suspension, a liquor store without cigarettes does mant. we want to keep it to support our family. >> we ask to keep our permit and that is the only thing that i can say. >> it is the first time that it happened and we are trying to do the best that we can. we now, we are trying to take all of the time. we bought something to check it to, and we are trying to work hard on it. >> how long have you been in business? >> well, i have been in seven years but together is three years and a half because i have another liquor but then we

decide to be a partner. and >> what type of training did you give to your employee? >> well we tried to explain him and to train him like a month and nevers. and >> how old is he? >> he is 42. >> okay. >> thanks. >> anything further? >> did you want to speak? >> no. >> okay. okay. we will hear from the department, now. good evening, the commissioners, laerry kesller, manager for the retail tobacco permitting program. we received a referal from the san francisco police department

that on may 19th, 2012, a clerk at aone liquor and grocery sold a pack of cigarettes to a minor, through their decoy program. based on this being a first offense, and that they did ask for id from the minor, dph ordered a 25-day suspension of their permit which has been kind of a standard policy. at the dph director hearing on november 12th, the order was upheld by the officer, i am happy to hear that they bought a device that helps. it sounds like they bought a device that would help from now on in making sure that the identification matches the age before they sell the cigarettes that is the system that they purchased that helps a lot. and that is indeed what they did. >> and if you have any

questions? >> >> thank you, is there any public comment? >> seeing, none, do you have anything further? >> no? >> okay. and anything further from the department? no. okay. commissioners. >> i have a question for the department or the appellant. >> the location of your business is what is the actual street location? >> could you stand up in >> erving and the cross street in >> 42nd avenue. >> is there any schools in the vicinity? >> no. >> well not close to two blocks. >> do you get the students coming in from the schools nearby? >> not really.

thank you. >> i guess that it is... you know, we understand the law and the law has been there for quite a long time. and the question that we always raise when we hear that the tobacco cases, the sale of the tobacco to minor cases is how

to equate the penalty within that law and yet, recognize that perhaps it is i little difficult time for not only the economy in general, but for the small business owners. it is not my intent to ever totally wave a penalty, based upon the law and program, but i... maybe for thanksgiving, i am willing to reduce it the penalty. i would like to reduce it to 15 days. >> i am a little torn too

because there was an infraction and i think that there needs to be some penalty for that. i also know that this is their livelihood and i would be enclined to go lower, 10 days. 14 days, is that? would you do 15. >> i said 15. >> then, i am okay with that. >> thinking about work weeks. just state for the record, on principle, i believe that 25 days is an appropriate penalty. i understand that it is the first time offense, and that the department has up to imposed up to 90 days. selling to minors is a problem. and i think that my understanding is that the type of enforcement has been actually effective in deterring this type of conduct. notwithstanding the fact that i do agree that it is difficult

for a small business owners to manage suspensions of this nature. i think that it will, you know, deter future violations. >> well, i guess that what i would say is that because it was a first-time offense and i believe that it was a mistake. i guess that i would be inclined to reduce the penalty to ten days, perhaps. as my fellow commissioner had suggested. i do wish that and maybe this is the case that i don't know. but i do wish that part instead of issuing penalties, perhaps, there should be some sort of public education, or public or some kind of training component that the department could impose because it does seem that perhaps it is a lack of training and how to read these licenses and we see a lot of

these mistakes. and that i believe are honest mistakes happening especially with some of these first-time offenses. so apart from that, i do wish that we could see that in the future rather than financial penalties for some of these business owners that are struggling in this economy. but my inclination would be to reduce it to ten days given the circumstances that i have heard. >> do you have a motion, commissioner? >> yes, i would move to grant the appeal and reduce the suspension to ten days. >> call the role, please? >> we have a motion from

commission to reduce to ten. >> hwang, aye. >> >> no. >> three to one and the suspension is reduced to ten days, thank you. >> so item number eight was dismissed and will not be heard this evening and we can move on to item number nine which is appeal 12-136. second street, merchants. subject properties at 150 california street and 84 second street, protesting the issue ans on september 28th, 2012 to expresso subito llc of a mobile food facility permit for the sale of espresso permit number 1 1 mff-0167. it is for hearing today and we will start with the appellants who have seven minutes to present their case.

>> excuse me, going to put a timer here so i don't jam myself up. >> we will do it as well >> clever. >> i need your card. >> sure. >> it must have fallen on the floor. all right, we will start over, again. >> okay. >> shall i proceed in >> yes, go ahead. >> thank you. for allowing us to present our point of view regarding the permit relating to the espresso subito department order 180199. i am jay walsh president of the 122nd street corporation and speaking for the association. recently my wife asked me why

we are responding to the same matter that we had addressed in march my reply was that we can't appeal every case, but in this instance, the approval based on this information or on the current legislation has been approved with no apparent verification of the real facts, like for like, the density of the businesses in the area, and the 300-foot radius clause and we want to know what bathroom access, will provide. and we are not aware that adequate notice or any such notice had been provided to affected businesses and business owners in the 300 foot radius. our program is the same as presented in the march hearing, for many years, at least 6 businesses and brick and mortar businesses offered espresso coffee in that radius of 84,

second street which is the address in question. an mff operating there, thus violates the radius clause code of pw section 148.88 paragraph d. action that we ask is to please over turn this approval for both second street and 150 locations whereby they will be in less than 150 feet of starbucks and many others, to do so will restore balance to the permitting process and in the confidence that the interpretation of rules is consistent. the items that i wanted to address, like for like density, radius clause and the bathroom access and adequate notice. like for like, in the hearing of march 28th, mr. hearing officer kevin day found for each of the two remaining sites, i quote, paragraph d, sentence, there are no like foods espresso within 300-foot

radius of 84 second. this opinion, closed quotes, this conflicts with the facts that that the 50 restaurants on second street corner serve coffee. the important distinguishing thing here about like for like is that 8 percent of the sales in the morning before 10:00 o'clock are coffee. that all of these quick service restaurants. and so, anybody. >> eight or 80? >> 80. >> 80 percent, is coffee before 10:00 o'clock. and people are coffee addicts i got to have my coffee. so therefore, a truck on the street, selling coffee is in direct competition or like for like. the radius clause, there are six of these restaurants within the 300-foot radius.

bathroom access. what bathroom access will espresso subito provide. we ask the question because our group must comply to regulations to health and ada issues and the increase in mff results in our group having to turn away walk-ins from the street. asking to use the bathrooms. our just to use the table and chairs to sit down and eat what they bought out on the street. last, adequate notice, we are not aware of adequate notice or any such notice that had been provided to the effected business and building owners within the 300-foot radius, if proper steps had been taken, perhaps we could have shorten the discussion of these above issues. please, over turn this approval for the second street and 150 california locations as they will be within the 300-foot radius of starbucks and many others. in doing so, restores balance to the permit process.

i have another statement for a person who had to leave. shall i end mine and begin the next one or sit down and someone else speak? >> you still have time. go ahead. >> good. >> this is for deborah sellers of sellers market. also, at stevenson and second. 240 feet away from 84 second. her points that she wanted me to make were the landscape going forward for the city and downtown area and risks to us all. right now, there are in this, and some of this information that i got from a documentary on trucks in san francisco last week. how timely. 75 mffs from the downtown area, and reported 350 in the city. and on the tail end of the report it mentioned, only one

health inspector for those 350 vendors. and that could be verified but that is what i heard. but if you do the math, a normal restaurant has four inspections a year. so if you do the math on 350, that is 1400 inspections a year, for one health inspect or, if this is really what is going on, it is putting the consumers at health risk. that is point one, like for like, again, restating that 80 percent of all business before 10:00 o'clock is coffee, if you don't have coffee, you don't sell anything during that period of time in all of the restaurants along the second street corridor and my building, i am involved because i have a building on second street and i am very aware of the neighborhood. and also, i want to mention that pizza is also part of this appeal and starbucks is included in this whole discussion although they are

not a part of this appeal. our measurements as far as where those businesses differ from what was on the report. and last item, which is ties in to the ongoing discussion, the legislation for these trucks was meant for under served areas and not the heavily populated downtown areas. thank you very much. for your attention. >> thank you. >> if you have any questions? >> sir, i have a question. your brief talks about the second street location and your closing comment brings in the 150 california. >> i understand that the permit is for both locations. >> are you folks objecting to both location? s >> yes, thank you. >> any other questions? >> thank you.