>> thank you for your patience.

>> it's easy to think of jack spade as different. it's for men with a different name, sort of. it's understandable that we want to count this as no. 11. i would like to remind you that there is no such thing as jack spade llc. it's not a real company. it doesn't exist. we are talking tonight about one company, about one entity with 94 stores. there is no such thing as a jack spade employee. everyone that works in a jack spade store is a kate spade llc employee. you can call it kate spade outlet, saturday, new york. jack spade. it doesn't matter what you call it. all three of the first features of the planning code are shared by all 94 stores. one standard array of apparel. spade is on

every garment. one distribution center, no. 2, substantially similar trademark and no. 3 substantially similar service mark. >> to just drive that home, if we can have the overhead for a moment. the zoning administrator commented that we were looking for the two items of trademark and array standardized array. as you would see section 703.3 b requires only two elements. among those two separate independent freestanding elements are service mark and trademark. finding a common service mark and trademark alone you will get to formula retail. if you find that kate spade and jack spade shared a

mark, you can combine and count kate spade stores together with jack spade storts. -- stores. we have here kate spade service mark as you can see. which is by the way, if you apply for a trademark you apply for a category of goods sorry typically retail stores will have categories of goods. kate spade service mark, jack spade service mark, kate spade trademark, jack spade trademark and for good measure, >> i'm not following your argument. part of me i have a problem here is that i don't have documents in front of me. you are putting these quickly

on an overhead that i can't read. what are you saying that they are sharing the same trademark. i can't see it. >> i'm sorry. >> this is put up from the website. >> okay, they are all under the same. that's the point? >> the point is that kate spade and jack spade have both trade marks and service marks. they share a substantially similar mark. the spade mark. and that finding that you can combine and count kate spade together with jack and you will have -- >> are they linked under the same trademark number. just because they are under the same trade mark, doesn't make it the same. link it for me. is this

your interpretation of the code because i don't have that in front of me either. >> i'm trying to distill your question more. >> i'm trying to understand your argument here. let go back to the code section, what is it 703.3 and you are pointing out two of the -- >> section 703.3 b formula use, two or more of the following features. >> standarded array. >> let's begin at the begins of the sentence. >> formula use. can we make the illumination area larger? okay. is that legible? >> why is it that we didn't get any briefs? >> by the way, i'm a volunteer,

i'm not a paid attorney? >> why is it that we didn't get any briefs? >> on a jurisdiction request. you have no briefing on the merits here. >> i think the difficulty and president hwang is pointing out that we are at a disadvantage that nobody presented any briefs. any of your arguments we have not considered them in writing and we are struggling to give you a fair hearing but not having any of that background material is challenging to understand your argument at this point. >> if you are making an a textual argument. i understand the argument of the people in this room. the text i can't do without paper. >> the reason doesn't have it is we didn't know they were required. >> i'm trying to understand your argument. >> we didn't understand it

would be helpful. >> as a lawyer? i'm not going to blame you. it's late, you are making a textual argument. i don't have the paper. let's do it. >> okay. formula retail use is here by defined as a type of retail sales activity or retail sales establishment which along with 11 or more retail sales establishments in the u.s. maintains two or more of the following features. a standardized ray of merchandise, standardized facade and color scheme, decor, signage and trademark or service mark. >> then it itemizes them. the question is how do we count. if

we find the common marks and trade marks, they should be counted together and we would not get 10 stores. we would get this plus 94 of kate spade stores. the codas written supports a finding that there is a common mark on the law and on the letter of the law. i'm sorry that we didn't know that briefs would be useful. i'm sorry that as an torn i don't practice in this area. >> that's okay. i don't need an apology, i need to understand your argument. you then presented documents that have trademarks. what do i need to -- please put that back. i'm trying to read it while i'm talking. what premise do i need to accept before you get to the two or more? because jack

spade is under kate spade llc? that makes it one? >> no. what i think it's a far more simple face value which is as we and many of the public speakers noted. the public recognizes that kate spade and jack spade are one. >> okay. >> that there is the common feature of spade. and these printouts that i was showing you that they are both trademarks. >> they each have, jack spade has it's own service mark and kate spade has it's own service mark. >> if you want to look at the ownership. may i now move this. they are all owned jack spade trademark owned by kate spade llc. there is no intervening

entity. >> that's what i needed. >> so those are, if you can find, let me just stutter for one moment, there is also the spade mark owned by kate spade. >> okay. thank you. >> may i, can i also make a few more comments. >> yeah because i interrupted you. i'm sorry a little expression of frustration. >> i appreciate that. the one thing i will say, regarding -- i wanted to clarify this my good friend phil lesser i did -- i thought clearly the opposite. he also implied that i'm an attorney representing clients. no. i'm a neighbor and a resident. i'm here na on a

personal capacity helping my community and pitching the same battle. regarding the affidavit, i'm curious to know why they chose this because i prefer to have melissa and ceo who preferred to have jack spade be a million dollar enterprise. it seemed to be a much more effective source and much more reliable source. i can very easily go down a corporate chain of someone who doesn't know and have them write a letter for you and finally i do represent clients, i do entity formation and such. i have a lot of clients and they can't find' place to rent. there are plenty of spaces that are open but the landlords are holding the market for higher rent. >> just to be clear when

president hwang mentioned the lack of briefing, it was the same briefing submitted for the request. >> for the merits on the permits for that issue. >> there's no brief submitted by the permit holder. >> thank you. so we have rebuttal now from the permit holder. >> i don't have too much. the first thing i wanted to say that there is actually nod -- not a spade on any garment. there is not a logo on the product. we have design team. while we are locked into a legal agreement with the landlord and i can't speak about the rent but it's been

grossly overstated. in terms of who signed the affidavit, i didn't feel comfortable signing the affidavit because i don't sign any of our leases and i thought that would be a problem if i submitted the affidavit. so phillip is the vp of real estate and construction. he was the one that submitted the affidavit and made sure that was clear. thank you. >> thank you. >> mr. sanchez, anything further? >> thank you, scott sanchez on the planning department. with regards to trademarks, these are separate. jack spade has one, kate spade has another. it is true they are all owned by kate spade, if you go 32 you

the jack spade, kate spade is the owner. we are looking at the numbers who maintain the same merchandise and that is what we are looking at. in this case this is their 11th storement this code specifies 11 or more. prop g reinforces. it says you need a conditional use operation for formula retail uses. as we have applied section 703.3 this does not satisfy the retail. >> if you include kate spade that is 332 globally, is that right >> i don't know how many, i know they are pushing a 90-100

in the u.s.. >> i have a question. i believe when we saw that section put up just a few minutes ago, that the introductory statement again reiterated you needed to have 11 or more. >> correct, the business maintains two or more of the following features and the various features. >> i thought i was hearing a little bit of circular logic, it might be because it's late. it sounded like the service mark argument was being used to justify whether there was more than 11 stores, in other words common trademarks, it's not how i assume you would approach it. >> i do understand that argument. i how to the more

compelling argument they would have would be regarding the trademark and that they have the trademark. there is a jack spade trademark and kate spade trademark and they are similar as defined in the planning code and at that point you would get to formula retail. but again, in reviewing this i find they are separate registered trademarks and there is nothing in the code that calls for substantial or similar or looks at the owner ship of those trademarks. >> there is nothing in the record under the current law that same is not an applicable standard? >> that's right. many of the proposals that you are out there, one would include international stores but this would be considered a formula retail. the other to be if it were a corporate ownership and

owned by an entity that that other formula retail stores. if i was starbucks and i wanted to own a bicycle shop and i would still be formula retail for that bike shop because i'm 50 percent owned by starbucks. that is the proposal. we would look at the corporate ownership. that is one of the proposals and not yet adopted. >> i have a couple of skwes. as -- questions. as far as you understand legislation, now that there are proposals with respect to corporate ownership and if such legislation were to pass, then it would easily fall within the letter. but the intent, do you understand when

the legislation was vetted in the first instance whether this was something that was considered and rejected? >> i was not involved in the crafting of it so i'm hesitant to speak when the board of supervisors ooh! been thinking about it. i would assume that at the time this would have been something novel for san francisco where i first approached it. we tried to deal with formula retail in the past. that's where we had legislation regarding large fast food restaurants. >> has anyone presented an argument with you for purposes of the department's determination to consider whether that was contemplated, rejected or completely not considered? >> i don't have that evidence. i have to rely on what the definition that we've been

applying for almost ten 10 years in the planning code. >> okay, the other question is the conditional use hearing, we know those cases if appeal don't come to our board. i'm pretty unfamiliar with that process. can you describe it a little bit? >> the typical use condition of applicants would take 3-6 months for application. it's a notice for up to a hundred feet, hearing before the planning commission and you would need a simple majority needed to prove or deny the application. they are didn't to the board of supervisors and requires 5 signatures from the members of the board of supervisors or owners of the property within 120 feet from the location. in order to

qualify for conditional use that it's necessary or desirable and additional findings when considering a formula retail use. >> that is negative next -- necessary or desirable? >> in a commercial district or if you are a formula retail application. >> okay. >> thank you. i know that commissioner hurried -- hurtado had a question for the permit holder. >> i think it was answered. if one of you could address my question is how many stores did kate spade have globally and how many are in the u.s. if you know? it's something like 90 u.s. and 150ish globally. >> that's good enough. >> thank you. >> okay.

>> commissioners, bar any questions by the parties. the matter is submitted. >> is that a clarification? >> if we can have the overhead one more time. >> spade trademark owned by kate spade. spade is a mark used in conjunction with jack and in conjunction with kate. >> we've heard this already. >> it's spade, scott has been making the point that it is made in conjunction with. >> jack spade. >> president? >> ultimately it's a mark. >> thank you. clarification. it

with it was a clarification? >> would the other party like to respond to that because it was a further argument? okay. comments? we don't have anything to say. >> i will start. i appreciate everyone coming out and i think it was an excellent discussion. you all have been talking about it and thinking about it for a long time. i haven't. it was great to hear all the viewpoints in the room. i said earlier this is a well-spoken highly articulate audience. i appreciate it was educational for me. i would have appreciated more paper but

that's my nature in the profession. i apologize for the small outburst. where i go with this, it's been difficult. i have gone back and forth as different speakers have said very different compelling things but where i go with this ultimately is a public process. ultimately this is something where i do see jack spade as being a component of a larger corporation and i see it as one in the same. so for that reason, i -- lean towards it bean a formula retailer. for that reason i will be in favor of revocation. it should have gone through conditional use process. >> i think i will talk next. everyone is extremely

passionate. i'm a long time resident in san francisco and have a deep root in the mission district as well. my parent had a shop on mission on 24th. my daughter goes to school at 15th and valencia right now. i understand the blight that mission street has. i do walk those streets. but i do remember when valencia street had that very same blight. i remember that when blue bottle, the cool coffee shop was owned and operated by the hell's angels and it was a motorcycle repair shop and also remember when places were not that pleasant to walk. it's compelling to me that i agree with our president that jack spade is a larger entity and should be considered a formula retail. i believe the public has a right to voice it's been

in regards to a formula retail or a large chain coming into an area like the mission district. i believe the voters were very specific in their desires of what they would like san francisco to stay and to become. so i would too agree with my president and yeah. >> i will disagree. i was at planning when we had the discussions on the first controls on formula retail. initially the zoning administrator had the authorization to make the determination not just a letter of determination, but to actually not approve permits,

but at that time it was 4. the number was 4. this has now been codified. it went through an extensive process and everyone here wants to talk about the intent. well, the intent is quite clear. the intent was to set up a process and a set up of numerical threshold. i think that intent is quite clear. contrary to what we had in the previous case that the people set some sort of precedent, the reason for that was not so much that the argument over what was formula retail, the reason there it was a question of what was equity and what was predatory nature of what was occurring and that specific instance. i think for myself it's what i reacted to. in this instance, i resonated very achilles -- closely to the comment that is made, if there

is a specific code and it's quite clear there is, then people need to be able to rely upon that. i don't see issues of equity here. i don't see issues other than perhaps a lifestyle determines for that particular area. but i remember walking this neighborhood as a kid and 16th street was always bad. it's still bad. at that time however, it was a blue collars working class on claef. i'm not in support of this permit. >> i'm not either. it is a close call and i tried to listen to all the arguments but when you have a standard such as 11, i think that needs to hold. we've had a lot of arguments on a lot of different

cases, you come right up to 9 or 10, but the number is 11. as a single corporate, it's not a criteria. i find the stores to be different. if it were kate spade saturday, i might have a very different feeling about it, but it's not. so i am not prepared to uphold the appeal. >> i have comments, not that it matters. >> it might, we haven't had a motion yet. >> so i, my main struggle with this was the reliance issues. there is a statute that seems to be if you interpret it as the ca has it's pretty clear on it's face. stores in the u.s.. however, my hesitation in going

along with that interpretation is that it would make me throw my comments out the door. the spirit of this law is to protect small businesses. that is the spirit of the law, that is why it was enacted, that's why the majority of voters voted for it. i understand that a numerical threshold was put into law and that is artificial and very persuasive to me that this was the 11th store. if it was 2, 3, 4, it might make a difference to me. i know there is legislation append to go fix the statute or make it clear. so all of those factors to me are determinant, and i feel the

perfect issue is to have a public venue. i think the cu process is the appropriate place to have that kind of a debate. it's not up to us. it's up to the board of supervisors and to the communities who have to live in this neighborhood. for that reason, i would support in granting the appeal. >> one of the reasons after i hear the nay sayers, is that one of the things we can do, it's not like a lifestyle. this is the community's concerns need to be taken into consideration. i think hurtado articulated it beautifully around the spirit of whether this was the intent and that's why i'm asking the question and there seems to be no answer whether this intended to bring a corporate structure within