very glad to see you leaving here with this building. i think manifest injustice would building going forward. i think it is time for the building to move ford, legally fort -- for this building to move forward, leavinlegally by e decision stated by the commissioners. with that, i move to deny the rehearing request. on that motion to deny the rehearing request -- dy[roll-call vote] that motion passes, three-one. we call the next item, which is item 4d, the subject property at

450b jones street. the letter from christopher hall and joseph morehead, attorneys for appellant, sunflower spa, requesting rehearing of appeal number 10-037, sunflower spa vs. department of health. at that time, upon motion by garcia, the board voted 4-0-1 -- vice president goh was absent -- to uphold the revocation of the subject massage establishment permit with adoption of the hearing officer's findings. >> thank you. >2w3thank you for the continua. president peterson: state your name for the record? >> christopher hall, appearing for the permit holder at 450b jones street. she requested a rehearing in

this matter because she felt that it would be manifest injustice served and the end result would be manifest injustice, if there is an outright revocation as opposed to the gradual penalty that could have been imposed, meaning a penalty of suspension. i would like to point out there were two issues raised in our brief, and one deals with the testimony that was brought to the attention of the board back on august 11. that was the statement that he received a complaint in july of 2010 of prostitution at this establishment. that issue, that statement was never raised in the city's brief before the hearing on august 11. until this date, we had never received any evidence

whatsoever of any complaint of prostitution at this establishment in july of this year. there is such a thing as due process, and that was brought to this board's attention on the 11th by that statement, and we received that by surprise. until this date, we had never received who made the call, the exact date in july that the call was made, the content of the call, who received it at the department. for the doctor to stand up and say, well, we received a call of a complaint of prostitution without advance notice or from the city attorney's office was not fair and violates due process. the second item that was brought to the board's attention on august 11 was the storage area,

and the city attorney mentions in his brief that the testimony of the permitee was contradicted, that her testimony was it was a storage room for certain items. and the city attorney said it was contradicted. i don't know whether this board actually read the brief or the administrative hearing decision, but there were three separate individuals that testified. there was inspector walsh, there was a police officer and another police officer. each of these individuals speculated -- speculated -- there may have been people living there, may have. it appeared to be it was their testimony. the doctor stood up and testified before this board on

the 11th that people were, in fact, living there and in humane conditions, and that was not testified at the administrative contradict the permit holder, r the reasons why there were certain items in that storage room. she testified there were no women living in this courtroom at this establishment. president peterson: council, i think your time is up, thank you. >> so i think it is unfounded and prejudicial for the board to have considered these items of testimony. president peterson: alright, thank you, sir. i+s>> council, we will afford yu the same time. >> good evening.

i'm a deputy city attorney, here on behalf of the department of public health. the board should denied the request for rehearing because the palin -- because the appellant did not raise in her written request for her presentation just a few moments ago by her council any new or different material facts or circumstances. looking at my pad, i had hoped to write down what those were so i could respond directly, but it is blank because there were not any new material facts or circumstances that were referenced. the two issues that council referenced i responded to in my brief, specifically indicating -- he indicated that the storage room in question was just there for mattresses and at the hearing that there was nothing contrary to the appellant's

testimony. and we set forth the transcript laying that testimony with the other three witnesses saying it appeared to be there were people living there, blankets, pillows, hair dryers, mirrors, cosmetics, plenty of things to show that people were living there. there was evidence of that. but again, and i will go through the other grounds, but again, these are things that were discussed at the rather long and extensive hearing. the appellant's council had an opportunity to respond, did respond rather forcefully on a number of these issues. as to the storage room question, the doctor did not just jump up and provide this

information willy-nilly. this was a situation where a board member specifically asked the department what was the nature of this room, and the doctor responded to that inquiry and explained his understanding of what the room looked like and what purpose was. -- and what its purpose was. as to the other matter of the july complaint, as i mentioned in my brief, the appellant opened the door on that matter. by insisting on three occasions, at least -- i reviewed the videotape and number of times -- insisting there had been no complaints by anyone about this establishment, and so the commission could have a fuller understanding of what was going on, i, not the doctor, indicated there had been this complaint received. but as i also note in my brief,

this commission did not reference that incident in its findings and that is not the basis of this decision. as indicated by board member garcia and another matter, this is a hearing. the palin spent a number of minutes at the hearing making an effort -- the appellant spent a number of minutes at a hearing make an effort to respond to the doctor, and based on all that i have said, i would submit that the board should deny the request for rehearing. vice president goh: i have a question. the july 2010 allegations or complaints of prostitution came in as a rebuttal to the appellants insisting there had not been any complaints? is that the argument? >> yes. vice president goh: is there reason, then, it cannot appear? because your office was aware of it, that it did not appear in

the original briefing? >> because i did not think it was relevant and necessarily appropriate for this board to be looking at the conduct subsequent, the conduct that was the basis of the revocation. i specifically mentioned i thought the board should focus its attention on the overwhelming conduct that supported the revocation, and the findings that the board made do only reference those of the prostitution, the practitioners without the licenses, the hiding of folks without licenses in the storage rooms. those are the things referenced in the findings. vice president goh: i thought i just heard you argue we had the power to look it that subsequent to that? >> you can, but i think it is unfair -- i think it is fair to

imply that whenever we decide it was a fair and it you concluded that you would rely on things and not include the july 2010 incident. vice president goh: okay, thank you. president peterson: thank you. is there any public comment on this item? step forward. >> paul, 309 fourth avenue, san francisco. i watched the original hearing on the internet. he is not my colleague. ms. win is not my client, but she is one of my people. the last 28 years, was married to a south vietnamese refugee.

they lost everything. in my wife's case, her father was sent into a so-called re- education camp in vietnam. he did not make it out in time and broke his health and spirits and he died just a few years later. her mother died i think of a broken heart, chronically depressed, and not last much longer. what i am getting at is they lost everything when they came here. it would be a shame, i guess the word is manifest injustice, to see the department of health pursue this through absolute revocation. it is the death penalty of administrative sanctions. a lesser sanction would be more appropriate. i am just here to ask for mercy and ask that you send this back for a rehearing with maybe a referral for suspension. thank you. president peterson: thank you.

any other public comment? step forward. >> good evening, board. i am a member of the public, just here observing this case. it sounds like there are women being exploited at the sunflower spa, according to the allegations. it is a shame how women are being exploited in this town, and you do have reviewed as the attorney pointed out. he should take into account the totality of the circumstances and probably would want to review this massage establishment's permit all together. if women are being held in storage areas and there is prostitution and it is well known -- it is well-known throughout the whole burst that women are not being treated

properly in this town -- through the whole earth. i would think that you would want to take into account the totality of the circumstances, all allegations, and it looks like you already unanimously decided before. president peterson: thank you. again, sir, if he could submit a speaker card, i would appreciate it. any other public comment? ok, yes, right there. >> seeing none, commissioners, the matter is submitted. commissioners, before you began the liberation, perhaps you should put on the record that although vice-president goh was absent, she has reviewed the record in this case. goh that is correct. -- vice president goh: that is correct. i will start. i was troubled by the fact that a complaint dated july of this year was brought an end was a surprise to the appellate.

my background is criminal defense, and that is not ok in our field. however, it can be ok if it is broad and to rebut something that the pilot opens the door -- if it is brought in to rebut something when the appellant opens the door, and that is what we have heard. i am still troubled, probably not troubled enough to vote for a request of rehearing as arises to manifest injustice, but i wanted to put on the record that i think it is something to pay attention to. commissioner garcia: beyond the fact that it was brought up, this rebuttal, there was a comment made by commissioner appear to the effect that we would give it the weight it deserved and that it was here say and it was new and it was a surprise. again, as has been said several

times with our hearings, this is reviewed, so it was legal. maybe we can argue whether or not it was fair. so that issue, it seems to me to issues that were raised by mr. hall having to do with request of rehearing, and one of them had to do with that, and the other had to do with the fact that it was not proven or had been contradicted as to whether or not the storage room at issue -- and for those people who are here who were not here for the original hearing, there was a storage room with in this massage parlor and it appeared, there was evidence presented, that people might have actually been living there. what makes it so horrible and makes you feel like it might have been explicative was the dimensions of this particular

room. -- what makes it feel like maybe it was exploitation was the dimensions of this particular room. but that was not the issue. the fact was it was submitted, stipulated to by the appellant's council, by the appellant that room was used when it was known to the operators of the massage parlor that there were inspectors on the ground. so they were sent there to hide. why were they hiding? because they were not licensed, not permitted masseuses. 3should we have deca board that we would have a step- function and we would not go for revocation, not go for the death sentence? we were very sympathetic and brought up the fact we were very sympathetic to the appellant's background. this was a disturbing case, and i feel as though nothing new has been brought forward. also, i do not feel there was

any evidence that makes me feel as though this represents manifest injustice, so i intend to not vote for a rehearing request. commissioner fung: if one listens to only the facts that rehearing argument, one would have thought those two were the u

new has been presented and manifest injustice has not been proven, as far as i am concerned, andu( therefore i wod request. xq>> on that motion by commissioner fung to deny the request for rehearing. [roll-call vote] the vote carries, 4-0.moving onm items, i am 4e, >7óvu-krjurisdin request, subject property at 690 douglass street. a letter from tim stevens, the request, asking that the board take jurisdiction over a zoning administrator stop work order release dated october 15, 2009,

regarding building permit application number 2008/10/31/56 hundred. the appeal ended october 30, 2009, and the jurisdiction request was received on august 30, 2010. >> i am representing tim stevens. it seems like you have addressed this issue once already this evening, when the clock starts ticking. in this case, by planning's admission, it was admitted that tim stevens did not receive the stop work order release letter until august 16 of this year, and, accordingly, because of the language contained within the stop work release order, did not know that he had only 15 days to

respond. once he received this letter this year, he responded within that time, and therefore we are requesting the jurisdiction review. frankly, the two parties are not an agreement -- are not in agreement. there is a clause in the stop work order release that mentions a "agreement." i don't know if you can see, but i think this is beside the point, actually. they are frankly not an agreement, and the clock did not start ticking until august 16 of this year by planting's own admission. mr. stephens did not receive the stop work order release -- mr. stevens did not receive the stop

work order release, and i guess that is the crux of this issue. i would also say in this case, there is no sort of a ticking time bomb or people being displaced out of work, etc. at the stop work order release speaks to what i believe the language is as-built structure, anyway, so why not allow the jurisdiction review, considering mr. stevens did not even know about it until 15 days ago and responded in kind. thanks. commissioner garcia: mr. kohl myer, you would not happen to have a letter of this understanding? >> i have a letter of understanding, and it clearly

shows there is no agreement. the next day, there is an email where mr. stevens -- commissioner garcia: no need to keep testifying. i'm just asking if you have a copy of the letter that you referenced in your brief. >> i have two copies. commissioner garcia: that is yes or no. if you do, i would like to see it. am i don't know, frankly. -- >> i don't know, frankly. there is one that has been italicized and struck through. there is another one with a second version. commissioner garcia: why don't we not see it and i will forget that we ask the question. if i needed, i will ask for it again. thank you. -- if i needed, i will ask for it again. thank you. president peterson: okay, let's hear from the permit holder.

>> good evening, commissioners. >> thank you, scott sanchez, planning department's staff. i just recognize that the permit holder cemented their brief to the planning department and not the board -- submitted a brief to the planning department and not the board of appeals. sorry, i was out of the office until today and i did not realize this mistake was made. i have the copies that we receive, if the board would like to receive them. i believe the board's requirements are very clear. i am not sure why this happened, but i apologize that this was not recognized. commissioner garcia: at the very least, if we decide to hear it

tonight, due to this error, whoever is here this was -- whoever's error this was, like to hold this over so we have a chance to look at it? president peterson: is there any proof of mailing or address on it? >> it was hand delivered to the planning department. commissioner fung: commissioners -- hold one second. commissioner fung: you cannot tell from the information there.

>> let me know who you are. >> they told me they hand- delivered this. i dropped off 10 copies and an original and i left it. he told me to do that. >> it is now up to you whether you want to go forward with oral argument. the u.s. agreed we are seeking continuance. once a minute, we hear oral argument, we take a brief and try to read it quickly. you'll be prejudiced by the fact we have not had a chance to read the brief. >> since in our brief is the written agreement, i think it is imperative that you read that. there is also numerous other emails that will shed a lot of light. would you rather read it and

have argument later tonight, or would you like us to come back at another time? whichever is best for you. commissioner garcia: how long is your brief? >> we used the full six pages. commissioner garcia: single spaced? >> it is not quite single spaced. there is some the spacing and indentation. and then there is the e-mail attachments from mr. stevens. there is a specific email in their way he says i except -- commissioner fung: hold. president peterson: and the representative, did you receive this brief? commissioner fung: commissioners, we need to continue this. >> yes, i received it. president peterson: did you

receive it? >> yes, i did. president peterson: okay, thank you. sir, it is really your decision. would you like us to proceed tonight? commissioner fung: no, i think it is our decision whether we will have the opportunity in a brief moment between cases to review it properly, and i don't think that is the case. president peterson: then we will need to come up with a date for the continuance of this matter. vice president goh: might not be in favor of a continuance, right? president peterson: right, but if we don't feel -- vice president goh: the fact we don't have a brief in front of us, we would have to ascertain and determine if it was an error on the behalf of the board of appeals and not on behalf of the appellant.

the permit holder. >> we are the permit holder. vice president goh: whether it was the permit holders mistake. commissioner garcia: even if it is an error, it could be forgivable. to hear this properly, we need to read the briefing, and if we don't feel like we have enough time to read it tonight, i think we have to hold it over. president peterson: what dates are available? maybe this will help guide the discussion. >> the following meetings are fairly equally full, but if you don't want to wait much longer, i would move into next week. commissioner fung: the 22nd looks ok. >> september 22? commissioner fung: are both parties available? commissioner garcia: you have to come up here.