president peterson: i move to adopt the november 17, 22 minutes. >> thank you. is there any public comment on the minutes? seeing none, if you could call the roll, please? >> on that motion from the president to adopt the november 17 minutes -- [roll call vote] thank you, the vote is 5-0. the minutes are adopted. >> thank you. if you could call item four, then. >> calling item 4, special item, appeal number 10-073, housing corps inc. for says dvi, planning department approval, subject property at 281 turk

street, consideration and possible action on the request of the permit holder bay drugs to allow some middle of supplemental briefing and evidence in response to the board's draft findings. >> thank you. commissioners, they have provided a court reporter to transcribe this item and are requesting that the transcript be deemed the official record of the proceedings. the permit holder has agreed to provide the board and the appellate with a copy of the transcript at no cost, and if you are in agreement with this, a motion is needed. >> is that for this proceeding? >> this particular item. president peterson: i will so moved. >> thank you. is there any public comment on the use of a court reporter? seeing none, if you could call the roll, please -- >> on that motion from the president to certify the transcription as the official record of the proceedings --

[roll call vote] thank you, the vote is 5-. -- the vote is 5-0. >> before you is whether you will accept the new information and evidence requested to be submitted by the permit holder in association with the draft findings. with the president's consent we can give each party three minutes to argue this point, starting with the permit holder. >> good evening, commissioners. my name is diana sam, the attorney for the permit holder. the crucial issue here is did bay drugs do required permit work prior to the time they got there. on may 24? if a drug's followed the rules, then they had a vested right,

and this board has no legal basis to revoke the permit. there is a case on this and is the congregation vs. the city of los angeles. there are two people involved here, guy is here this evening. these are real people. this is their livelihood. they want to open up a pharmacy. they signed a lease, caught the permits. they did everything required by law. they spent about $100,000 of their own money, plus they are on the hook for the three-year lease. they even got a certificate of completion from the city. then the appellate comes along and says, we don't want this. and now their livelihood and over $100,000 is taken away from them. if this board is going to do that, it ought to at least get

all of the evidence and hear all the evidence that is relevant. most of the evidence in the board's findings relies on the palate, the appellant's testimony, the appellate's email. her testimony and e-mail about construction is based on what she saw from outside. in fact, what happened was quite different. the contractors declaration showed he did no work which required a permit before they got the permit on may 24. for example, the appellate says there is framing out of what looks like a counter wall. a drug has clarified at in an additional evidence that we would like to some that what the appellant may have salt in the contractor's declaration. it says, what she must have seen was a temporary wall i installed to hide the tools and materials. this wall does not affixed to

the premises in any way and no permit was required to install this wall. also, this board should receive additional evidence from bay drugs because the brief made no mention that they had done work that required a permit prior to the permit, dust in the wrist binding, they naturally did not respond to this allegation. the allegation appears in the rebuttal brief. bay drugs did not have a chance to give a response. there responded and the limited time they had at the october 6 hearing. under the law, you cannot take away to people's right to pursue their livelihood after they got a permit and spent over 100,000 hours on something. thank you. -- $100,000 on something. thank you. commissioner garcia: that is to say if they accept the premise

that they had a vested right. you are not saying that this board has a right to revoke a permit that has already been granted, right? >> yes, that is a case that is on point. they have a vested right because there was a permit that was supplied to dbi and the planning department and they spent some money on. commissioner garcia: maybe i asked the question poorly. it would be required, the basis that would be required is that it would be established there is a vested right? >> correct. commissioner garcia: you made it sound like any permit that came before the board we would not have the authority to overturn, and i wanted clarity on that. >> let me repeat -- commissioner garcia: if there is a vested right, but that has to be established. >> then the question is how one gets a vested right. commissioner garcia: i

understand that. i was wondering if you were being overly general or if there was a provision so. the other question i have, it seems as if the arguments have more to do with the request for rehearing that it would have to do with getting new facts in that would go towards what is before us tonight, which are the findings. so maybe you could clarify that for me? >> well, no, i have declarations from the contractor that said he did not do any permit work prior to getting the permit. they're relying on a letter from the construction company from september 18, 2010, which says there was site preparation and demolition. the board said, there you go, but they did work without a permit. the contractor's declaration

clarifies that by saying, no, the demolition that i was referring to in my september 18 letter was i scraped up some floor tile. that does not require a permit. commissioner garcia: ok, what that might cause the board to do would be to strike a sentence that has anything to do with whether work was done prior to getting a permit, when actually it would seem with the board is relying upon in its decision -- and by the way i was the minority on that -- is item six, which has to do with community standards. how do you overcome that burden? >> if the permit holder has his vested rights, which i think it does because they got the permit legally and spent the money, and there is case law that has a vested right based on those facts, then we don't even get to the neighborhood problem.

commissioner garcia: okay, i guess you are laying the basis for a case in superior court? because there is no request here that i am aware of for rehearing. >> not yet, because we don't have to ask for a rehearing until the findings are found. commissioner garcia: okay, that clears that up. thanks a lot. >> any other questions? vice president goh: at the hearing,. it commissioner hwang: at the hearing, your client was present? >> i believe so. commissioner hwang: so when allegations were raised, why was that not addressed at the hearing? o>> as a matter of fact, that was addressed. there was a commissioner who asked the question, was there any permit-related work done prior to the permit received. he emphatically said no, on the

record. at second, first of all, bay drugs was not represented by counsel at the october hearing. they also brought a contractor to the hearing and presented that to the board and invited the board to ask any questions of the contractor they may have. there were no questions. you have to remember at that time, i believe the permit holder only had seven minutes to present his case. before that the findings, we did not know what the board was going to focus on. so within the limited amount of time of 7 minutes, there were only so many things that one could address. commissioner hwang: the allocation of these un-permit it works prior to the permit, you are saying -- and i have not seen the supplemental briefing -- a temporary wall was put up

to hide materials. the contractor who was present at the hearing did not submit that orally to the >> > > no, he did not, because again we were limited with the seven minutes. that was the state of defense. the permit holder was not represented by counsel. maybe i would have raised a, maybe i would not have, but i don't know, but those are the limitations. the bottom line is, commissioners, we're talking about, yes, the neighborhood. that is important. we're also talking about two and human beings. this is their livelihood. commissioner hwang: right, i heard that. i heard earlier statement. i think my question has been answered. commissioner fung: at the day of the hearing, i believe they were represented by counsel. it was that the same firm? >> >> uchitel me today.

-- if you could tell me the day. commissioner fung: it was the second hearing. was he represented by counsel at that hearing? >> yes. commissioner fung: your fur >>? yes, my firm. -- commissioner fung: was that your firm? >> yes, that was my firm. president peterson: it became an issue of credibility. there was a gentlemen here who appeared to be council responding to some of those questions. i would have to look at the transcript on that. >> yes, and that was the october 6 hearing. what i am suggesting is this is a very important right for the permit holder, and it is not going to cost you a lot to review all of the evidence. at their arttwo declarations we

have submitted. i>> ok, we will hear from the appellant now, ms. morgan? >> i had actually prepared something to say, but it appears i need to address what was just said. first of all, the issue of the permit was covered pretty well at the jurisdiction request and the brief high it submitted for the jurisdiction request. all of the pertinent email about the timing of the construction, and i only filed because there was construction next door. it was not just a temporary wall. there were other walls and other people will testify that it is the same wall they now have their that you have seen the photographs that have the cutouts for the windows that

people come up to. that is what they have their prior to may 24. they had gotten that far. they had done all of the demolition, all of the florin, all of the side walls, the entire counter wall. -- all of the flooring, all of the side walls, the entire counter wall. it is only bar drugs' arrogance at permitting -- permeating this entire case, knowing the committee would not be happy with, they did not file for a permit to begin with. it after the jurisdiction request was filed, they continue to complete the construction and tried to get a permit or get their filed permit approval, believing, in their arrogance, that would basically care the fact they did not have a valid permit. i don't know how that could possibly work, and i believe that is addressed in the

findings. granted, they came into the community and spent a lot of money, but prior to the jurisdiction request, when i was trying to figure out what was happening with that, it was doing what, i spoke with the insurance company -- not the insurance company, the real- estate company, who at that time intimated that he would not hold them to the least, given that he did not want a situation created where there would be a lot of community opposition and conflict. but they chose to continue construction and get their final permit, believing they were going to win. it was only after we received three out of the four votes at the initial hearing at even occurred to them to get an attorney, and they had every opportunity from a poll -- from april or may, when i filed the jurisdiction request, through

october to hire an attorney and the present and be represented by an attorney. i don't see what the issue is here. it is clear that they did most of the construction prior to filing for a building permit, which as it says in the findings x the permit invalid. commissioner garcia: what do you think the farm would be if we were to allow them to present evidence that may cause us to change the language and are finding? who is harmed by that? >> i am not sure what the particular are in terms of why the findings would not be read it and there would not be a motion for rehearing but, what the practical or functional difference in those two things is, opening up the hearing now and resubmitting more evidence, or them filing for a rehearing, since this is all a done deal.

i am not clear on what the upshot of that would be. commissioner garcia: i don't know if any of us are absolutely clear. if they were to bring forth new things that would change our findings, that still might have been evident that was available when the hearing was held and it may not rise to the level of putting them in a position to be granted a rehearing. that is not the question. the question is simply, what is the harm in trying to ferret all the facts out and make sure we are in a good ground and give them the opportunity to at least present evidence that goes to the findings? >> frankly, here is how i feel about that. i would hate to see this go before the city attorney and have that kind of expense to the taxpayer. i think that would be a darn shame. if my of the standing is correct, if they are in a better

position to open this up and present the information now, if that strengthens the board's position in terms of not being overturned at some point by the city attorney, perhaps that is the best route. i don't know. i am not an expert on this. what i know is they had ample opportunity to hire an attorney to address the fact that the permit came up with before the second hearing or before my rebuttal. commissioner garcia: i will ask one more time, and you have to get out a brief answer because of not really addressed the question. the question is, what is the harm to the neighborhood or anyone if we allow them to present us with evidence or information that might make our findings more correct? what is the harm? >> and would give you the opportunity to change your vote? commissioner garcia: no, it may only allow us to change our findings.

it has nothing to do with the vote. but that is that correct? president peterson: the board's decision is final until new evidence is entered. soak the findings could change. >> maybe that is the answer to the question. i am not represented by an attorney and likely will not be because i cannot afford it. president peterson: i guess what you were alluding to, could a commissioner asked for a rehearing on orre-vote? commissioner garcia: okay, forgive me for not knowing that. that has not happened since i have been on the board, about five years. >> from the little i have been able to gather since this came up, this is out there in the quicksand. i have not been able to get clear information on what the possibilities are, so frankly, i

am not sure how to respond, and that is the truth. but i would not want to weaken our position, obviously. commissioner garcia: okay, thank you. >> any comments from building ordbi. is there any public comment? seeing none, commissioners, the matter is before you. commissioner fung: commissioners, if the permit holder and council feel -- and counsel feel it would require further information with respect to the disagreement over the findings, i see nothing that would prohibit us from looking at that information as we try to resolve the final language of

the finding. commissioner garcia: i would agree, but i guess the practice of the board -- and maybe we have done things that are not accurate in the past -- to the findings accurately reflect a tone of what went on at that particular hearing? and i guess there have been times -- and i think we have rehearings tonight were some of the same things are suggest it -- where whatever we relied upon to reached the decision we reached might be called into question. i guess that is basically what is happening. i will agree with commissioner fung, even though i voted against this in the first place. i voted in favor of the permit

holder. what i would not want, it seems as though when we go to look at the findings, we're gong to consider the issue of whether or not work was started prior to granting of the permit, and assuming this vote were to pass, assuming we would allow more information, i would ask dbi go through their records and let us know what ever they may have that would shed light on whether any work had begun prior to the issuance of. rigid prior to issuance of the permit. commissioner hwang: i am inclined to allow out for the briefing, notwithstanding the fact there was time. i don't think hearing additional information, reading additional information is going to present

any issues for us. commissioner fung: commissioners, i move that would continue this case for a period of one week, i guess. >> you would have to consider whether you want to give the appellant time to submit something as well. if the permit holder has already prepared something, you can either give them time to re- prepare new material or except what they have already prepared. but i think in any event, you should give the appellate some time to respond. commissioner garcia: would it be reasonable if the original permit holder were tonight to give the materials they intend to submit to the appellate? >> she has it already. >> it was submitted by e-mail,

and i believe you were copied on the at,no? -- and i believe you were copied on that, no? commissioner fung: excuse me, if you're going to speak, you need to be recognized and come forward. madam director, one week is not enough time. >> i think it is a question of how much time we want to give the appellate time to respond. commissioner fung: the next full board is january 19. and i think if we're going to look at this information, we should have a full board. >> is your motion to move it to the 19th? commissioner fung: move to continue this to january 19, and the information can be provided on the normal time basis. >> ok, so the permit holder's sub mittal should be provided

two weeks prior and the appellate one week prior? and the department of building inspection also one week prior. vice president goh: and the submittals are to be narrowly addressing only this one issue of whether or not work was done before the granting of the permit? commissioner fung: no, i think the issue is if they have a difference of the findings, they can't present their differences with the findings. rich can today present their differences with the findings. president peterson: i think if it is new evidence, i don't know how there will not be a new hearing. >> i think the idea is the information that was requested to be submitted this it -- is specific to the draft finding. we already have it in hand at

the board, very specific to concerns about additional evidence related to the draft findings. vice president goh: i will probably vote in favor of the continuance, but i have a concern if every time we consider findings were the parties disagree, which will probably happen quite often, if we will then continue them in order to get basically additional briefing. i am concerned we are on a slippery slope here. commissioner fung: i think it is slightly difference. we have had cases where there has been difference of opinion on the findings. usually those differences are communicated to us. in this instance, we had no communication with the differences were, therefore i am prepared to accept it. commissioner garcia: i guess i

have a bigger problem we are going all the way out to the 19th of january. it seems prejudicial to the original permit holder, and i would hate to be the one making this argument cents i originally voted to uphold, but i don't know if they would ever be required when findings come up, would they come to have that in the hands of the appellant? is that something that is always required? president peterson: that they provide their objection to the appellate court commissioner garcia: yes. >> anything that would get distributed to the board members would have to be distributed to all parties. commissioner garcia: i am also confused by the fact, we were going to have the hearing heard next meeting. correct? >> on the finding. icommissioner garcia: why would they need our permission to

submit some argument as to why they disagree? and then we should consider that in either change that part of the finding or not. >> it is a good question, commissioner, and the rules are silent about s additionalubmittals. they say any additional material may only be submitted with permission of the board. it was under that guideline that i brought this issue to you. but it could be a board ruled that parties can submit additional restatements and association with the findings. commissioner garcia: ordinarily they would have to make oral arguments? >> ordinarily, they would submit comments to the deputy city attorney and myself, and to the extent we can make changes and corrections to the findings, we can do that easily before they

even get to you. in this case, the material was more substantive and we felt it was an issue for you to consider. commissioner garcia: i guess there is no reconsideration of this board about house should we do this? ms. sam got up to address the board, and i am troubled by the fact we're going out so far. >> there is a hearing scheduled for december 14 on this matter. it on that hearing date, i would be willing to say whatever we had already submitted about a week ago, we would go on that. that would be all of our evidence on the findings, and give the appellant time to respond to that prior to the december 15 hearing, maybe a day or two before the hearing. because you are right, the permit holder is paying rent and expenses every month