comply with the rules. >> on january 13th do you deny smoking was taking place in your restaurant? >> personally i wasn't there, if she says, so i will not deny that. >> thank you. >> miss young. >> we would only like to say that marrakech is a restaurant with employees. marrakech must comply with both california labor code and the san francisco health code and each time environmental health has visited the restaurant, patrons were not purchasing tobacco products only, but allowed to smoke inside the restaurant.

when i spoke to the owners directly, marrakech owners and operators made the choice to ignore environmental health's warnings and marrakech owners and operators knowingly and willingly continued to violate state laws by allowing their patrons to smoke inside the restaurant. the department does request the board to please uphold the 30-day suspension of the tobacco permit thank you. >> another question. could the department have issued a greater number of days suspension based on the information that you had at the time? >> no. >> thank you. commissioners the matter is submitted. >> based on the information presented and the factual history and legal standard, i think it's a fairly clear case

that the suspension needs to be upheld. >> i concur. >> i think the issue is how many opportunities has he been given? it's not an issue of what should culturally be allowed, but the fact that he has had notice multiple times and i would support the suspension. >> i'll move to uphold the suspension based on the record. >> we have a motion from the president to uphold this 30-day suspension on the basis of the record provided. on that motion, commissioner fung? >> aye. >> commissioner hurtado is absent. vice president lazarus?

>> aye. >> commissioner honda? >> aye. >> thank you. the vote is 4-0. the 30-day suspension is uphold on that basis. >> president hwang i think we're still waiting on the 6:00 arrive of our term. interpreter >> the other three that remain, i don't think any of them would get done in five minutes, so i would suggest a >> welcome to the board of appeals meeting for january 16th, 20 . i have been notified that the interpreter is stuck in traffic and we'll have to move on to another case. i would like to see a show of hands for item no. 11, appeal no. 12-142, 2nd street

merchants, versus department of public works bureau of street-use and mapping. and:00 no. 12, appeal no. 12-142, paawan kothari, doing business as the chai cart. >> anyone here for that item? >> perhaps they are out in the hall. >> let's give them a minute. president hwang, which case would you like to begin with? >> item 12. is anyone here for item no. 12, the chai cart? i guess we'll go with item no. 11. >> item no. 11, appeal no.

12-142, 2nd street merchants versus dpt of public works bureau of street-use and mapping. this is protesting the issuance on september 28th, 2012 to expresso subito llc mobile food facility sale of espresso drinks. this matter is on for rehearing today. this public hearing was held and closed on november 14th 2012 and at that time a motion to uphold the subject mobile food facility permit did not muster sufficient votes to pass the permit and was upheld by operation of law. we'll start with the attorney for the appellant. >> good afternoon, commissioners. i think i made four valid points in the briefing and i'm just going to highlight those quickly and yield the rest of my time to the merchants. the first point is the most

salient point which is the due process issue. i think the applicant has admitted or has not disagreed that at least two locations, 301 sacramento street and 303 south sacramento street did not receive notice of the permit. and they sort of tried to distinguish between the notice of the permit and the notice of an appeal and i think those are two very separate issues. the public works code says that businesses within a 300' radius are entitled to receive notice of the permit. what is the use of giving a notice of appeal after everything is said and done? the second issue is i believe due to radius services mistake, the whole block was missed floatfication area and that is because radio services calculates notice the block using the assessor's block as opposed to what is stated in the public works code, which is the mid-point of the block face.

can i just go to this overhead real quickly? okay. so where the x is where expresso subito did the 300' radius, but where the little star is the actual block face. so all the businesses down here were not notified and one business that dpw testified to was 101 2nd street and no one from that building received notice. the second point is that dpw testified if starbucks objected we most likely would have denied the parent and we have on record that starbucks did object to the permit. they have not withdrawn their objection and the fact that they are not taking an active part in this appeal does not mean they did not object to the permit. third, dpw has been misapplying the 300' radius. the order says 300' radius and

public works code says [#350-7b8/]' radius and for them to use a 300' walking distance instead of an radius is an arbitrary and capricious application of law. the like foods argument, we just want dpw to get it right next time. they said starbucks sells like food within a 3 off and on' radius and the applicant agrees and let's get it right and say we're using our discretion and there is like foods within 300'. allison rowe, this is subito's truck, which they plan to move which is sidewalk service. it's odd that they accepted the permit that expressedly prohibits sidewalk service. two, making apples-to-apples

comparisons to menus. three, in march, the hearing officer kevin day said there is a saturation in downtown already about coffee, and 41 was removed aored as a location because it's too dense our menu is almost exactly the same as subito's and all of my competitors, because we compete with each other. their discretion could not be exercised without a complete set of facts by dpw at the time of decision. 4, there is no bathroom for use. you can't handle money and food. that is part of the health code. it's a health hazard not to have a hand washing simpbetween cashiering and foodservice. the map show twos coffee

vendors. subito admitted major disclosures and misled the city. the mobile food facility says the permit is valid om if the applicant has not misrepresented facts. >> jim patrick -- three things the bathroom, parking and side door on the truck. the bathroom has not been approved by the owner of the building as specifically sets out in the regulations in the law. the bathroom is not 200' from where the truck is. in fact, it's about a block and a half. you have to go half a block across the street and north half a block and up the stairs and back in the mezzanine and i viewed it today and i can tell you it's quite a ways. and there is no handicap path of travel to the bathroom, which is required. no way can the customers use it or the employees use it.

no. 2 is parking. it's taking the last two spaces in this whole large two and a half block area of downtown. no parking. we need parking for customers. we don't need parking for coffee. no. 3 the side door, when you open the side door it will take 60% of the sidewalk. it's right in front of a restaurant. when the restaurant puts out their tables it takes up 40% of the table, 60 and 40 last time i checked was 100. where are the pedestrians in it's a problem. we have an illegal bathroom and we're losing the parking and side door operations make it impossible. this deal just doesn't pass muster and when it doesn't pass muster, you can't sell mustard. thank you. >> fill out a card, sir. >> hello, among the other reasons that restaurants is family-owned restaurant --

the problem that we have, i have a couple of points here. we sell coffee in the morning. two, there is always construction getting done there. and as you can see, there is only -- >> reference the overhead, if you want us to see something? >> so as you can see, this is our restaurant there. and there is only one lane there. that would be our problem. i mean, i don't see how that could be fixed. also we are already receiving enough competition, like allison said. we all sell the same thing. thank you. >> hi, my name is deb serials with serials markets. they claim that i wasn't within 300' and that the access to my location was on market street. in fact, we have never had access on market street. the access to our place is on 2nd and stevenson, a quarter

block down, which is within 300'. in my lease it allows me to have a patio. i have a 1500-square-feet patio that i spent $75,000 building. it's exclusively for me and we're within 300'. we sell organic coffee. >> what is the name of your company? >> sellers markets. >> thank you. >> thank you. >> >> okay. >> >> i'm a private individual. >> >> my name is gary goldstein i'm the permit holdner this hearing. i first applied 16 months ago and i have spent over $100,000 on this business. i relied on dpw policy, which

is part of the city policy. there is a specific language in the dpw guidelines which addresses the coffee truck as not to be considered like food outside of a diner. this hearing was triggered by radio omission which was no fault of mine. all partis were properly notified. i was parented by dpw in september and i have no revenue while having to maintain significant costs of over $1,000 a month and other overhead. the truck is my chance to make a living for my family and it's my only opportunity to have a livelihood. i have acted in good faith. please help me to epihold my permits. thank you. >> good evening my name is debbie cardigan with sedric

farm. i am here to ask that you uphold espresso subjectee, but correct the typos and findings pointed out by the appellantment i have a whole thing written here. i have to say there were so many things that were said that weren't right by the appellants, i don't even know where to start, but i will start with due process. there is this whole issue whether due process was served and there is a question as my client pointed out, he didn't, but it was no fault of his own. radio service may have missed two addresses. two addresses. and those addresses [pwo-pblgs/] got notice of your first board of appeals hearing. this is not different than when you had your hearing on grumpis and off the grid, when grumpies said we didn't get notice because dpw didn't renotice when they switched locations. you took jurisdiction and heard it up uphold the permit with modifications. this is the same thing, a de

novo hearing. starbucks hasn't been around in 15 months. they sent one email in november of 2011, saying they were concerned about ingress and egress. at this point they are nowhere to be found. i spoke with the regional vice president of starbuckss, a guy name david chu who said we don't want to be involved of we want to be neutral. we don't want to do anything more. we're neutral. we're staying out of it. doesn't sound like starbucks is particularly worried. it was just a question of ingress and egress. at this point the closest store to our truck location is 290 feet away. you have to cross a public street to get to a starbucks. yes, it's been 300', but as mr. kwong will tell you, it's just a factor that may be considered

by dpw. there are lots of other factors that could be considered, including the fact that starbucks is a gigantic name-brand that people will go to no matter what. they have wi-fi and sell a full menu. in terms of like foods as my client has mentioned he make his living only with the sale of espresso drinks and coffee. if you look at the guidelines and this is what the city policy he was relying on when he submitted his application says that a coffee cart should not be considered like a diner. all of the people who have been speaking except for starbucks, which isn't here have said that they are operate full-day menus and dpw's stance in this and consistent application of the guidelines has to been to look at totality of the menu. we're merely asking for consistent application of the guidelines. the guidelines say that they are aloud to consider like foods. they don't have to say no, but they can consider them.

that is what dpw did here. okit method of measurement that dpw uses to determine like foods is clearly a walking distance. the appellants made a big deal how everywhere in the guidelines it talks about radius and radius and radius and one place it doesn't. to me, exactly the opposite. the fact that it doesn't say 300' radius there, means that you can do a 300' walking distance which is, in fact, exactly what police department did in past times. regarding the restroom issue, i think we have the owner of the facility that is going to provide the restroom here tonight to speak with you. but i think it's suffice to say that you don't need ada accessible. we have been through this with department of sanitation and the appellant want to the department of sanitation to get this revoked and it didn't work. so i don't know what

their issue is. the issue with sidewalk services i would like to use the overhead for one minute to show you the two truck locations. this is the truck location on 2nd street. as you can see the truck location is here. there is a clear path of travel. there are few tables out here, outside of the path of travel. similarly on front street, this is the truck location. there is a 16' wide sidewalk. and no tables and chairs along here. so those are big deals and they are arguing that there is all of this construction. well, dpw can always stop people from parking in those parking spaces. if they are concerned about blockage, they can do, that otherwise anybody can park there. so those are all issues to by cred when talking about this. the last issue notice not

provided correctly. this overhead show where's the notice was provided. as you can see it's the midpoint of the block face. there are small streets. it's true, but look at the name of the block. block 370 7. block 370 7. block 3707. this is an assessor's block. this is the midpoint of the block face. so i would like to you consider all of these things and i would like you to consider that my client has tried in > faith for 15 months to comply with this process. and i hope that as you know the city may be changing policy, but for the last 15 months he has been working with existing city policy and good faith and has done nothing wrong and just wants the chance to be a good neighbor. thank you very much. >> i have a question. >> yes. so how far is the bathroom from the location of the truck? >> gary? >> 100', maybe.

>> about 100' is what gary is saying. >> excuse us. >> what we can do, if you would like, we can work with the restaurant owner and see if we can get a map available to show to you during public comment period. would that be okay? >> okay. >> thank you. mr. kwong. >> good evening commissioners john kwong from the department of public works. there appears to be a continual different interpretations from the various parties related to the department's process. let's first go to the notification. the notification as stated by the various partis is correct about what is a truck. it's located -- the notification is to be 300'

radius from the mid-point of the block or the length of block, whichever is greater. that is how the legislation is written up. when it's a food cart as such at a specific property address it's 300' from that throt.lot. it's relates to the evaluation of like foods, the department tries its best to make sure it's been 300'. we make that determination as it relates to like foods. now to suggest that we use a 300' radius, it would be as the bird flies, which would not be appropriate. previously under the previous legislation that has been since suspended which came from the san francisco police department, the police department requires 600' distance, which the police department actually uses a measuring wheel to wheel off for their validation. this has been the practice of the police department. and the department of public

works sees no reason to establish another way of evaluating these distances. it would not be possible for staff to walk through buildings and what not. it must be a walking distance for us to accurately determine the distances. there was a question again going back to like foods. we have people suggesting that in the morning, all they serve is coffee and that is competition as it relates to like food. however, as stated previously, again, in our order, as to established guidelines, we determine like food by looking at the totality of the menu in order to be fair and consistent. otherwise, there is no way for the department to make that evaluation. we literally have to send someone out there and stand there for different timeframes, in order to make that determination. that would not be propriety.

appropriate. >> there were questions related and i have to apologize. when i went back and reevaluated the finding from the director, we made a small error putting down 3 radius. it should be 300 feet. there is no way we do determine that. i don't think the department has made any incorrect decisions. we go understand this is a very challenging piece of legislation for the board. and this is quite different from the appeal for no. 12, which is almost polar opposite. again, in our evaluation we evaluate like foods and also distances, obviously.

at 290 feet from a wheeling distance from a parking spot, it could be 290. it could be 310. depending on where on the parking space, it's a 20-foot stall and it depends on where you start the count from. it's right at the border and we recognize that. and we believe our decision was propriety in this case. i'm ready to answer any questions that you may have. based upon the information provided by the applicant, because we are given the mailing information from an applicant, much like planning does and we have to take that as fact based upon an affidavit from the company that created that or the applicant.

>> have you verified that the information given by the applicant is true to the notification that was given? >> at the initial notification, it was correct. >> thank you. >> we'll take public comment now. can i see a show of hands of how many people will speak to this item. keep in mind any owners of the business listed as 2nd street merchants should not be participating at this time. if you could please line up on the far wall and if you have not already filled out a speaker card, you are not required to, but it helps us in the preparation of minutes. >> i will limit testimony to two minutes. >> okay. first speaker can begin. >> good evening commissioners. ken cleveland, representing the building owners and managers association. i would just like to go back to the starbucks objection.

the applicant seems to feel that starbucks does not continue to object. i talked to kim winston, who is the senior manager for government affairs for starbucks, and starbucks is loath to be publicly opposed to small independents, of course. they are 17,000 nationwide/world wide operation and they are not going to come out as an 800 -pound gorilla to opposite this. they sent an email to the department of public works that states to [pwho-pl/] it may concern, starbucks is opposed tot application submitted by expresso subito. while we are not opposed to expresso subito's operations we

object to the proposed locations for the trucks. they have not rescinded the objection. i think that is very relevant. thank you. >> thank you. >> next speaker, please. >> and if you could come forward and line up by mr. pacheco, that will save second here's. >> my name is john gaser, adolph [tkpwa-ers/], inc. and i want to deal with the ingress and egress of people moving on 2nd street. 2nd street is 15' of saluki on either side. and as the parties showed there is lots of room. well, there isn't lots of room. >> can you refer to the overhead? >> you will see people standing for this food truck and they are 9' or more of the sidewalk occupied by those people. that means there is 6' left for two-way traffic to go. i recently went to the bank and

the truck was there, and we were crushed trying to get into the bank. that is one area of real concern to me. the second area i have with concern on 2nd street between market and mission, there is only two metered parking places. everything else is yellow zoned and red-zone. so where is the normal people who may want to go to the other stores on the street going to park? you are issuing permits for trucks, that are occupying parking spaces for business. another thing that bothers me, the trucks are giving the food out, so no one is saying it's a restaurant. the city is not getting any sales tax. we pay sales tax to the city. you are losing. we're geting into more areas. construction. this is common view on 2nd street. 2nd street is under massive construction. and it will be. and if you keep putting th