around that issue. >> [inaudible] president peterson: only if it is entering a question. i think your council did a great job. thank you. >> anything else? president peterson: mr. sanchez? >> scott sanchez, planning department. just to reiterate again, there are two issues that have been raised by the appellants -- whether or not the project is code complying. using their arguments would change how we review mcds in san francisco. if we were to consider child care facilities, which are a separate definition in the planning code -- and we do have many definitions in the planning code. it would be common to refer to

one definition for one use and another for a different use. the important thing we look at is how we would process the application. the chapter facility we will process as a child care facility in planning code. we will not process it as something else. we will not process it as a social service. i think that is an important part to make. this is a code compliant project. we did review it against the requirements of the planning code for the 1,000 foot requirement. we did not find that there were any facilities with of the defis that are prohibited in the code. in reference to the error in the code, it is an error in the planning code, referring to a code section that does not exist. it was repeated several times in the case report in error, but it was just repeated what the planning code said. we are working to correct that. the first issue -- it is code

complying, properly viewed in that way. the second issue, the broader issue here, and probably what this board will want to consider, is the impact on the neighborhood. that is within the discretionary authority of this board. it was not within the discretionary authority of the planning commission. the planning commission had a -- the had to find exceptional and extraordinary circumstances to justify it not accepting this. the commission found there were not exceptional and extraordinary circumstances. it was noted it was going to be a neighborhood-serving use. the nearest is 7.3 miles away. they put a couple of troubled times on there. there is no clear indication how easy it is to find parking around those facilities, or how good that data is.

there are probably facilities within a half hour drive, with time allowed for parking. the delivery that is available -- there is at least one delivery-only mcd in san francisco. there are others that sir san francisco that are located of the city. -- that serve as san francisco that are located out of the city. it is my understanding this storefront has been vacant for several years. it also provide a secure storefront, eyes on the street. one cannot argue you would have decreased security by having an occupied building with security cameras. one could argue it is an improved security situation to what would be there currently with a vacant storefront. three trading again, the commission did not find exceptional and extraordinary circumstances to deny the permit. they did condition the hours of operation monday through friday

from 9:00 to 8:00. they said after six months they could request that the zoning administrator allow them to operate until 10:00 p.m. monday through friday. that is to be clear there. i am available for any questions. thank you. vice president goh: good to talk about -- could you talk about the muni stop being ada or not? >> i do not know. i would assume the testimony of the member of the public who said it is not a ramped stop. there are requirements that the facility itself be accessible. president peterson: mr. sanchez, if i can go back to 790, section b, tommy how a community facility that primarily serves persons under 18 years of age is

not a day care? >> excuse me? president peterson: you know the language. a secondary school or community facility that primarily serves persons under 18 years of age. >> 790.141 section b? president peterson: it is the latter part, the following the language concerning schools. or secondary school, public or private, or community -- >> we have a separate and specific definition for child care. there is no reference in the code anywhere to community facility. president peterson: what is the definition of a community facility that primarily serves persons under 18 years of age? >> would look under the assembly

and social service. the community facility and recreation building -- it meets the definition of social service. it is included in that. but by the definition as a social service, not a child care facility, under 790.50a. i can put it on the overhead again. can i have the overhead, please? this is not quit working as well. -- not quite working as well. it provides social or fraternal gathering recreational services to the community -- a clubhouse, lodge, meeting hall, or community facility.

it also includes an enclosed recreation area not publicly owned. separate line item b, child care, which provide service by licensed personnel. honestly, if these uses were to come in for applications, we would not process them as community services. we would apply the planning code and say you are a child care facility. that is how we would process it. president peterson: do you cap community facilities or have it defined? in language, this reading is broad. i am just telling you that i have to define it. the second thing is that if you have this typo of subsection f, it does mean it could have been any of the other sections, right? >> we have to call upon the intent of the code.

child care center is not included as a prohibited use within 1,000 feet of the mcd in any of the other planning code sections. go to article 2. go to article 8. it does not say you cannot be within 1,000 feet of each health care center. this is a code section that has been reviewed as in error. there is an error in having code section f. it has been applied. there are precedents. we have approved facilities under this as well. president peterson: all right. thank you. vice president goh: i have a question related to that. did the planning commission notice there was a reference to f? >> i do not believe the issue was raised. vice president goh: thank you.

>> commissioners, if there are no further questions, the matter is submitted. commissioner fung: i can start. usually, i am one of the commissioners who asks questions, but i did not in this particular instance for two reasons. one is i was curious enough to go back and look at the tape on the planning commission hearing. lucky for me, i was able to use the fast-forward button. i did not have to do the same thing that most participants would have gone through. again, reading the briefs and listening to the presentations there, i think the issues have

stayed the same. they are quite wide. and in terms of where i would approach this, i think there is a certain focus that is impacting my own decision making on this particular case. and that is -- the focus is twofold. one is the specific code itself and how we interpret that, and whether i concur with the planning department staff and commission interpretation of that. secondly, whether i feel that the intent of that particular code also was conformed to in

the decisions that we saw. in my opinion, i do not find that the decision matched both the language of the code section and, more importantly, its intent. i believe that the uses that are in this specific area satisfied the prohibition within 1,000 feet. commissioner hwang: i would like to acknowledge the speakers and presenters, the lawyers, and the zoning administrator for excellent presentations today. i think the arguments raised were compelling on both sides. i want to make clear before i give you my thinking that i do not have any issues with mcds.

i think they are a needed type of business for san francisco at large. i have similar concerns with respect to the code. i think there is enough room within my reading of the code sections that are relevant to argue, as the appellants have, that the types of entities that exist within the 1,000 feet impact would make an mcd in this location not appropriate. secondly, the outpouring of the community is also very compelling here. this is clearly a concern for the public in this particular community, and i think that way is strongly in my thinking -- weighs strongly in my thinking that the appeal should be

granted. vice president goh: i do support mcds and think there is a need for them in the city. however, our charge year for the board of appeals is to consider the impact of any development on the surrounding community and the adjacent properties. we have seen here today a really profound showing of what this particular district, this particular neighborhood, thinks about this business. i was impressed -- i will not say suede -- by the seven eleven owner who came forward and said that the mcd owners claimed he supported their business when he says he does not. the lack of a feeling of trust from the community toward them -- toward the project sponsor i think was represented by that. i do think the public process

was flawed at the planning commission with the lack of having a translator. and i agree with what has been said so far about the other organizations within the 1,000 feet. i also think that edgewood being outside of that by 50 feet -- that is two houses, basically, outside the perimeter. that is an important consideration given that ed would is a treatment center. so i would -- given that edgewood is a treatment center. so i would support revocation. president peterson: i th mr.anank mr. schoepp for his investment in our community.

i support crown hardware. i do worry that we have sufficient supply here in the city. you may have gotten from my questioning that the plain language of the statute would seem to me that the mcds are not to be built within 1,000 feet of facilities catering to children, no matter how you get there. it is not well worded, the statute. it is confusing. the fact that there is a typo is concerning in a significant piece of legislation. i would concur with my fellow commissioners and i would move to uphold the appeal and overturn the issuance of the permit. bindings to follow. -- findings to follow. >> before you call the roll, i want to once again thank the

volunteer translators. >> the motion is from the president to revoke the permit. [applause] quiet. commissioner fung: wait a minute. >> quiet. the motion is to revoke the permit with findings at a later date. president peterson: please try to respect everyone's opinion here. commissioner fung: aye. vice president goh: aye. commissioner hwang: aye. >> the boat is 4-0. the permit is revoked. president peterson: can w>> wous back inde? president peterson: we are going

to resume the meeting. please call 6. >> appeal 10-077. it is the appeal of a denial on june 30, 2010 of eight ramp taxicab the nile. mr. murray and the appellate have agreed the public should go first because he has to leave. >> is that ok? president peterson: ok. >> a good evening. i am medallion # 239, royal taxi.

i have worked three years as a cabdriver. i know mr. farid omar about 15 years. he worked with me almost 15 years. if i have a vacation or am sick, or something like that, he covers me with a cap. -- cab. he has worked with other companies, too. he is a hard worker. he is a good man, a family man. he applied for it. thank you. president peterson: thank you. mr. murray?

hopefully our issue will be more brief than the last one. this is a relatively simple matter. it is -- i am sorry. jervis murray. mr. omar applied for a medallion and was denied his permit, primarily because he has not fulfilled his full-time driving requirement. it is that simple. even by his own count, which was in the opening brief, where they say in 2005 he spent 77 ships, 2006, 76 ships, and 2008, 84 shifts, he would not have made a requirement for more than two

out of the last four years. there is a question about whether or not mr. omar has been in the industry. he made drive a little bit, but the burden is on him to prove to us that he drove, and not for us to prove to anyone else that he drove. it is up to mr. omar to keep these records and to deliver his records accordingly in order to obtain a permit. the permit is not an entitlement. i recognize mr. omar has been on the list a long time, but it is not an entitlement. it is something he must work to obtain. as far as the test is concerned, each medallion applicant is given a test. they are all given a basic texaco driving test. the get three opportunities to take the exam and mr. omar failed all three times. there are claims that test should be irrelevant, but i think that goes to the heart of whether you know what you are

doing being a taxicab driver. there are only so many ways we can get to know what you know about driving on the streets. that test is one of those ways. if someone sends a location to you, you do not want to get a complete later on that drivers do not know where they are going. that is the type of complaint we tend to get regarding this issue. this is not irrelevant. it is actually an important point in order to maintain a medallion. finally, i do not want to go into details regarding the brief. i think the brief summers up everything relatively well. there was an issue regarding mr. omar's airport transaction. his bills will typically have an sfo trip, if not several. smart cars were introduced to sfo the summer of 2007, in june

2007. you can get good data. in order to pick up anyone from the airport, he must use their smart card to enter into the airport terminal. you do not need a smart card to drop off at the airport. if you are dropping someone off at the airport, you can drop them off at departures and exit without a smart card. however, if you want to pick up a person, you must first enter into what we call generically the taxi pit at the airport. you use your car to get in and wait in line with the other taxicabs. there can be up to 200 cabs at a time. you usually wait for 30 minutes , 2.5 hours. when you are called to pick someone up, you then can exit. upon exiting, you can tap out your card. after you have your customer, you go. that being said, with mr. omar

saying he was at sfo, we did a quick spot check for 2008. we did it for other years as well. for 2008, there were at least 40 ships where mr. omar said he was at the sfo, and there was no activity on his smart card. you are the person who owns the smart card and puts money on the smart card. when you use it, the amount is deducted from your card. i do not know what the argument is for mr. omar in terms of how he believes he has met the full time driving requirement. having others say that you have or you yourself saying you have does not make it so. way bills are the primary determinant for this requirement, and he simply does not have them. i do not think there is too much more to say about that. then too. president peterson: thank you.

we can hear now from the appellant. thank you. >> good evening. i represent omar in this hearing. omar has been driving a taxi cab in san francisco for 15 years. he has a car that has been current and active since he obtained it 15 years ago. he is a gas and gate driver right now. he works for several permit holders, some of which testified earlier today. another will testify during public comment. omar put his name on the waiting list for a medallion in 1996. his name came up with in the last year or the respondent denied the application for two reasons. he was 2 points shy of the examination which was not required to pass.

there is no rule that they pass the examination, only that they take it. to the issue of being locating places within san francisco, now that there's gps, there is no reason to know exactly where every place in san francisco. many of the responses that were marked as incorrect or subjective and confusing questions, especially in light of the fact that his first language is not english. i was confused to many of the questions and i have a law degree. also one of the question was when the driver should produce

a safety check. he marked his second answer which it is important, when i hear a noise while driving. as a passenger, i hope that he would perform a safety check. both answers are correct. if they go into the questions. the hearing officer consider that some of the bills were fraudulent. the decision was based on an overly critical analysis which has been abandoned. instead, the respondent sole cause for the denial was the

inference that the astronaut possible because of that airport records but there is no evidence and they are accurate or were liable. this is not authenticate the records in any way. there is no evidence that the records actually account for every time a taxi driver comes into the airport to pick someone up. there is no evidence at any other person was operating the taxicab that omar said he was operating. it is unreasonable to face a denial on the application. he has been driving full time. he continues to settle this. the has more than satisfied the

requirement and he has been misplaced bills. there was at least one letter and in support of his application of for medallion holders. one of the letters is a gentleman that is here today. it says here that if mr. omar said that this is not the only original bill, he has and i will respect his honesty and request that the mta and the officer understand the possibility of losing labels and conducting our business. he also at the hearing presented a list of 200 other drivers who attested to his driving and had

many in the audience. thank god they did not bring them tonight because he would not have any room for them. he would like to say a few words so i will conclude when i get my rebuttal. >> good evening. i have driven a cab for 15 years. have to wonder witnesses and -- i have 200 witnesses. i am a full-time driver. call any of the witnesses. they say that i am not a first- time driver.