>> commissioners, the larger majority of the request and the brief is not new information. it was addressed during the appeal hearing. there is one new item, the appellant of course is allowed to do whatever improvements she wants to her roof as long as it's within the code and it's legal. at this point, i don't see that the threshold of a rehearing has been covered. >> i would concur. i also want to comment that notwithstanding any commentary that might have been made after 11 p.m. that we are tired. that's a human condition. our eyes are open, if you said any of the

commissioners were sleeping and not able to attend to the hearing appropriately, that might give me some pause, but i believe we were all here present voting and so i don't believe there are concerned that i have on that front . with that i would move to deny the rehearing request. >> thank you. mr. pacheco please call the roll. >> on that motion from the president to deny the rehearing request. commissioner fung, hurtado, lazarus, commissioner honda. aye. >> thank you. the vote is 5-0. this request is denied and a notice of desist an order.

>> item 5. item 5:james stephensdba "sausage slinger", appellanttss vs. dept. of public works bureau of street-use & mapping, respondent 100 new montgomery street & 3151-3153 16th street. appealing the revocation on march 20, 2013, of mobile food facility permit sale of hot dogs, chips and sodaa. permit no. 11mff-0070.>> item 5. sf 51234 i want to thank if board of appeals for hearing this appeal and i want to thank dpw for accepting this appeal. i'm a mediator and' parent of one of the appellants, one of the partners. phillip grossman t licensee and the holder. the dpw has brought to the attention at the hearing that several things that the appellants were in violation of the hours of operation and that they were violating the good

neighbor policy which is in effect and part of their license. the appellants have two locations. they have the location in the mission at 3153 i believe 16th street and 100 at montgomery street. when the original water was issued granting a license, they were giving until 3 a.m. to stay open. the provisional license said 1 a.m., but the actual permit that was issued said 3 a.m.. although the appellants did not stay out until 3 a.m., they operated passed the 130 a.m. or 1:00 a.m.. it became

apparent to the dpw that the appellants were staying up past 1 a.m. and a call was made to them on june 1, a discussion was held and told it had been amended and the e-mail had been sent and apparently not been seen by james steven. the mission area there is two bars. it's very livelily in the mission. the card is a small card. it's in front of one bar very close to one of the bars. about 1:00 the starts to get crowded. it should be noted there were three unlicensed,

unregulated carts which the appellant had made the report to the police which were taking business from them. the appellants had gone through all the requirements set out by the city in order to get a cart with water, contained a certain temperature and had a refrigerator and they were licensed for this area. they had most of their business taken. one of the important things is when after june 1, they started getting more complaints. these complaints we believe were generated by some of the business owners in the area who didn't want a cart in front of their place selling food. it was impossible for the young guys to get the information from the dpw as to who was making these

complaints. it's hear say. it's unvetted. anyone can file a complaint. they are small carts. they didn't have loud music playing, the bars were consistently letting in and out and they boil sausages and hot dogs. they have sauerkraut and onions and condiments. the unregulated carts down the street were cooking bacon, onions and peppers and we believe that many of the complaints that were heard were about the smells that were coming from these unlicensed and unregulated carts. the appellant went to the police and made a police report and they were told that the mission at that hour on the weekends is a busy place and chasing food vendors is not a high priority for them. that's very

understandable. it's very understandable that responding to complaints about robberies is more important. a hearing was held in august on the public hearing order, the order for hearing only mentions one location and that's the 16th street location. if you look at the recommendations after which the d pw submitted it only mentions one location, the 16th street location. the dpw rendered the harsh estest vote. they revoked their license. he came out to find out the revocation was the entire food

service. there was no evidence, no evidence presented, he wasn't even aware of that as to the whole license. only one location was mentioned. we don't believe that the harshest penalty is what should have been given to them. they are young men trying to start out in business. they have spent a lot of money, invested a lot of time and bring a lot of passion to what they do. and we are hoping that the board in its discretion will reduce the penalty to a suspension for both locations. they have not operated until they filed this notice of appeal. they obeyed the regulations as they saw fit. mr. stevens will admit that when he was informed in

june that they had to begin to close down at 1:00 a.m., this is what they did. they began to pick up and pack out which takes about a half hour to an hour. during that period of time there were hot dogs left in their tins which were cooking and in order not to waste food, they did continue to sell. so, thank you very much. >> at what time did the appellant find out that the revised permit was in effect where it limited to 1:00 a.m.? >> by james conversations with me, he told me he found out during the conversation on june 1. it does appear there was an e-mail sent out prior to that

did correct the 3 a.m. to 1 a.m.. he did not read it. >> wasn't there also a phone call? >> i'm sorry? >> wasn't there a phone call received? >> that was on june 1. >> there was nothing before that is what you are saying? >> that's my understanding yes. >> what about the good neighbor policy that they never got the original issuance but the department was provided with the copy of the permit? >> it appears to me they were provided with that on june 1, when it was sent out on june 1. they pledge two items on the policy, noise and smell. they boil hot dogs. there is no smell. they are on a very busy street where bars are constantly opening doors and letting people in and out and there is a lot of traffic.

although i wasn't there and i can't a test to it. it would seem to me that maybe two or three people around a hotdog stand -- >> my question was when did they receive the good neighbor policy? >> it would appear they probably received it when they -- i believe it was in april that the dpw sent out the amended hours and they sent it along with that. he did not open at the mail. i don't think he knew what it was about. >> okay. thank you. >> thank you. mr. fong? good evening commissioners. john with public works. the statement from the

appellant was mostly correct. in the beginning we received multiple applications for location of this food cart. the primary one was on #16th street on montgomery. we had a public hearing on it and determination based upon the public hearing was to restrict the hours on 16th street, mondays through thursdays to i believe 1:00 a.m. and then, i stand corrected, to 12 midnight and fridays and saturdays to 1:00 a.m.. a direct order was drafted. at that point they had 90 days to get the fire department and the health department's approval. that information was provided to the applicant at some point subsequent to that we received

appropriate information from both health and fire. one of my staff erroneously issued a permit for 3:00 a.m. and they quickly found out and corrected it and sent the applicant with the revised time which was submitted as part of the brief this this case. yes, we did erroneously issue a permit which has been corrected. over time we continued to receive complaints via e-mail with the documentation that the applicant continued to work after the time. we notified the applicant of violation of the time permits. we continue to review these objections and violations afterwards. we decided at that point gifrn that we are providing proper notification to hold public hearing as it relates to

revocation process. i understand the hearing suggest one location but the permit itself was revoked with two locations on it. i'm here to answer any questions you may have. >> you issued one permit for two locations? >> yes, the mobile food facilities program allows for 1 cart or truck at multiple locations throughout the day or one locations with multiple facilities. in this case it was one cart, multiple days at two different locations. >> in your rules of procedures, if you want to call it that for this program, what does it say in there about revocation with respect to multiple locations in one permit? >> in this case the department is given wide latitude. we can

revoke one location or the entirety. >> it's states the director can modify or revoke a permit. >> one last question for me is that the april issuance. refresh my memory from your brief. the permit was issued in april soon after that, you issued a revision to that. what date? >> that is correct. on friday an e-mail was sent, a hard copy was sent to them which they signed contained erroneous information and corrected the information and a printout was sent on august 27th.

>> to where? the address they had? >> yes. >> so did you e-mail and hard copy mail? >> i don't think we sent them a hard copy. we sent them an e-mail copy. >> there were e-mail correspondence. it was initial hard copy they came and signed. we found the error and revised it and sent them the revised permit. >> via e-mail and no hard copy? >> yes, sir. >> are there any complaints on the montgomery location? >> my understanding is they have not operated there yet. >> also says that staff contacted applicant via phone. did they actually -- were they actually able to speak with the applicant at that time or did they leave a voice message? >> there were multiple phone

calls i recollect. there were times they left a message and times they were able to discuss that with them. >> it was issued at 3:17 and once staff realized there was a mistake, they informed him of the error. was there a record they spoke to the applicant at that time? >> i cannot speak whether they were able to get them by phone. i have documents they were corrected. >> i have documents there was a phone call. >> i'm sure there was a phone call made but i'm not sure if they were able to reach through or had to leave a voice mail. >> maybe off topic, but did the applicant says there was quite

a few non-permitted vendors at that time. whose responsibility for enforcement would that lead to? >> this program has been challenging over the last year or so. what's been happening is we are having, both the health department and ourselves are getting various complaints from neighborhood groups of unpermitted people showing up around 1:00 in the morning and setting up. the department has been working with san francisco police department and the local police districts to assist in the enforcement of these late night operations. what usually happens is when we are informed of it, by the time we can respond, usually the unpermitted merchant is go n from the site. enforcement is

from dpw and from the health department with related food products. >> we have someone who is evidently paid the fees and they are operating beyond what their permit says, but at the same time we have people on the same block that are operating without any permits, and if that falls upon dpw and the enforcement falls upon dpw, what plans do you have to do that enforcement? >> the challenge that we face based upon the code is actually very interesting. whereas the department can issue citations to a merchant, there is no policing power that we can, so if we go up to someone and ask to see a permit from them and they choose not to show a

permit nor to provide information in terms of physical id's, there is nothing that our inspection staff can do with it because we do not have that policing power. it's been challenging and that's why we've been trying engage with both the health and fire department and the police department in assisting us. >> at this point there should probably be some legislation added to assist dpw in enforcement? >> that is correct. i believe there is going to be proposed legislation that will be coming to the board shortly to modify the mobile food facilities program. >> okay. thank you. >> i have a question and i'm apologizing if it was asked by commissioner. i was looking for information. the initial communication, the initial permit with the 3:00 time

limit. >> the application came from the person itself. >> the erroneous permit, how was that communicated? >> what happened was after the staff issued a permit they went back and rechecked -- >> no, how was the initial permit delivered to the appellant. >> the initial permit was handed. >> okay. and the second was delivered by e-mail. all right. the objecters at the original permit hearing, what were the basis of the objections? >> most of the objections were related to the late night operations and that was the major cause for the hearing for officers to make a restriction of the time to shorten it up.

>> okay. and the objecters for the late night were they neighbors, neighborhood businesses? who were they? not their names. >> this is usually the residents in the nearby area. the gist of it is a combination of the bar scene and the late nights from the bars and they are feeling that this food cart would exasperate already uncomfortable situation. >> okay. that's all. >> one last question. sorry. when in pass when a license has been revoked how typical or how common is it for both locations to be revoked? i know it's multiple locations, one permit. is it traditionally that you would take both locations away?

>> actually this is the first mobile food permit that we have revoked because typically, when we have one identified situations that merchants are in violation, it's remedy to take appropriate action. we try very hard not to revoke a permit if at all possible. >> the concerning is that you gave them multiple chances to comply and they have not complied? >> that is correct. >> what about suspension, you suspended permits, correct? o you just go straight for it. when do you have a sort of a -- the appellant has requested a suspension as an alternative, has that the been contemplated? >> it was considered, but, again, this was a case where

operation late at night beyond what was authorized under the permit, this was the biggest concern that the community that objected to so the department's decision was to revoke the permit. >> okay. thank you. suspension would have been within your right >> that's correct. >> is there an opportunity to reply? >> as any revokes they may apply one year from the date of revocation. >> okay. thank you. >> is there any public comment? >> do we have any other public

commenters? >> okay. thanks. >> good evening. shall we wait until mr. kwaung returns? >> yes. let's wait until the department representative is here. is there a problem with

the computer?

>> he's back now. >> we need the mic. >> i reside at 3155, 16th street. i'm asking respectfully that you uphold the revocation due to good neighbor policy. when you had the hearing when this license was granted, i was there. it was changed, they applied for 3 a.m. but they granted 1 a.m. closure which the rule stayed they should start closing a half hour before the time granted. i have basically 9 videos of them operating past 1:00 in the morning. and i would like to

play you one. this is from 5/13 at 2:03 a.m. right outside my apartment window. it's very short. >> it's the noise from the bar? >> no. they have a boom box and a sound system. they are also operating a gas powered generator that powers i don't know what, maybe the electricity for this. there is also a side table and chair. you can see it draws 6 bars on my block and it draws everybody

underneath my window. [inaudible] i have another one that's from july 15. at 1:55 a.m.. same scenario. i was notified by the dpw that they called the person, mr. stevens that they violated the permit and he received a certified mail notice that he was in violation. after june 24th for whatever reason he was not for the most part was not showing up. so there was none after

that. he was operating a sound system, a power generator. the gentleman before me said there were other carts in the area, but there haven't been any that i have seen. there are more on mission street. since he has been gone i saw one which i called the police and they came immediately and moved that person on. needless to say this attracts people lie magnets under my windows this is a mixed use area. thank you. >> can i clarify one thing. you indicated that they weren't there after june 24th? >> no, i'm sorry. that was a misstatement. i was