property -- that bay drugs began construction work on the property. that is what you were referring to, right, commissioner? commissioner fung: yes. but whether there is a straw vote for something, i think we need to do that first. if it is not going to carry, we should not be wordsmith in this to death. -- wordsmithing this to death. commissioner peterson: i tend to agree. i appreciate the wordsmithing to have shut the issues, but in light of the history of this case -- to hash out the issues, but in light of the history of this case, there were discussions about reconsidering the merits or adopting the findings. i am still struggling with

accepting the findings. in truth, it still has to do with the validity of the permit and the technicalities there. but i do appreciate all the wordsmithing. it was helpful to hash out some of the conflict. you are interested in dealing with the merits? commissioner fung: commissioners, can we, in essence, reaffirmed the decision making process -- reaffirm the decision making process and then bifurcate between that and the making of findings? president goh: how would you like to do that? take a straw vote on whether or not we will -- commissioner fung: that is fine. president goh: adopt findings or all, or if any commissioners

change their vote -- commissioner fung: that is fine. president goh: ok. i have not change my vote. commissioner fung: i have not changed my vote. commissioner peterson: i have not changed my vote. vice president garcia: i have not changed my vote, the single vote in favor of not overturning, or opposed. commissioner hwang: as i indicated at the last hearing, i think there was additional evidence raised. and i think legally, especially in light of a new ninth circuit opinion, there was, in my opinion, a valid permit on which this permit holder could ride. that is what i am struggling with. it is a technicality, if you will, a legal issue. but we are a legal body.

that is where i would have a hard time accepting the findings overall. >> is there a motion, commissioner? commissioner peterson: can i make a motion? >> would you like to hear from our city attorney about any of your comments? >> american samoa the agenda states, tonight you can take a vote on the -- as the agenda states, tonight you can take a vote on the merits of the case. commissioner peterson: if we don't do that, there are only three votes needed for the findings, and the findings can go forward. >> from the outside, what i had seen, there was a motion for-one to kill this permit. -- 4-1 to kill this permit.

then president peterson subsequently said that you were not sure at that time whether you could support that. on a basic level, if you have changed your boat, the permit is upheld. you do not need findings. you do not have the four boats to deny the permit. that is where you are at a basic level from the outside. >> it is not clear that commissioner peterson has stated you will not be able to start the findings, which is not necessarily the same thing as whether you support the original motion. commissioner peterson: two matters have been a test for this evening to give the board the option. president goh: so we could go forward with the findings without commissioner peterson's abouvote? vice president garcia: if i were to raise a motion, if you go

through that exercise, i will raise a motion to reconsider the merits. i think that would have merited all that discussion about the findings -- i think that would have mooted all the discussion about the findings. i am making sure that, at least my understanding, that it does not make sense to put findings before reconsideration of the merits. president goh: it might be that commissioner peterson would care to speak for herself. commissioner peterson: i am comfortable with moving on the findings, but i recognize there may be a misstep in the process. i also recognize that there may be an independent basis for the decision based on policy under the business tax regulation code.

but i am struggling with that language about the permit and some of the evidence, and whether it is undisputed. just in good conscience, how to be more -- i defer to the city attorney. >> i am comfortable with you moving forward on the findings tonight. president goh: i can -- commissioner fung: i think you just confused me. vice president garcia: why don't we put the first issue to rest and entertain the motion having to do with reconsideration of the merits? if that fails, it makes perfect sense to get into the findings. if it does not fail, if we now are 3-2 --

president goh: the commissioner might feel as though the findings -- as though she did not want to support the findings, but not strongly enough to go back on the boat. vice president garcia: if we entertain the motion and there is a vote, we will know the answer. president goh: likewise, we could do it the other way around and vote on the findings. vice president garcia: i have a right to make the motion since both things are under consideration. we will have wasted all that time. why don't we settle the first one. commissioner peterson: that is assuming you're going to win on your motion. vice president garcia: i said if we were to prevail. i make a motion. if my motion gets one more vote, we will have wasted our time dealing with the findings. president goh: i think commissioner peterson said she was comfortable going forward with working on the findings.

and i am almost finished. vice president garcia: there is a point of confusion why she was considering do that when she is considering changing her vote. why not let me make my motion and be done with that? if she boats and it is 4-1, and every consideration of the merits. i see no harm doing that first. i see great harm in doing the other first. commissioner peterson: since i created this mess, i think let us vote on the merits first. >> we need the motion. vice president garcia: my motion should be that we reconsider the merits of the appeal. "do not have to motion to do that because it is on the calendar. you also -- you just have to make the motion on what you would like the outcome to be. vice president garcia: i vote we uphold the permit held by bay city drugs.

>> call the roll on that motion, please. >> ok. the motion is from the vice- president to uphold this permit. on that motion to uphold -- commissioner fung: no. president goh: no. commissioner peterson: aye. commissioner hwang: no. >> ok. the boat is -- vote is two to three. absent another motion, this permit is upheld. >> president peterson, do you want me to call the next item? vice president garcia: if i could make a statement, then i would like to break. a statement would be to the public who is here who was opposed to this. i feel this had absolutely

nothing to do with whether i am sympathetic to your neighborhood. i am extremely sympathetic. as i have stated, i think the first time we had this hearing, the solution lies in appearing before the board of supervisors and the police commission and talking endlessly about the problems that face our neighborhood. but please >> welcome back to the january 19 meeting of the board of appeals. please call at no. 6. >> calling item 6, appeal number 10-121, st. paul's market versus

dph. it is the appeal of a 35-day suspension of a tobacco product sales establishment permit, i posed on october 13, 2010. the reason for suspension, selling tobacco products to minors. >> thank you. we will start with the appellant or his agent. i >> when i was working, some gil came in my store. she wanted to buy some cigarettes. i asked her for i.d. she showed me id. i was not paying attention. she was under age. and -- and i sold her some

cigarettes. commissioner fung: sir, is this your attorney? >> yes. >> yes, i am his attorney. president goh: please speak into the microphone. sir, you need to speak into the microphone. then you cannot speak. >> uh, i don't know, to pay a fine. at that like to pay the fine. -- i would like to pay the fine. vice president garcia: were you done, sir?

you asked for an i.d. >> yes, i did. vice president garcia: because the police records showed you did not. >> i asked for i.d. vice president garcia: okay, thank you. president goh: thank you. you can sit down now. >> good evening, commissioners. i am representing the san francisco health department. vice president garcia: i should disclose now that i know the decoy, i note per family, they live in my neighborhood. it is not going to affect my ability to decide this. >> i want to congratulate president goh and vice president

garcia and thank the commissioners for all the good work they do for our city. i think i am going to make this presentation very short. it seems as if the operator, the owner of st. paul's market, is not actually denying the fact that he did sell to a minor. our report states that he did not ask for the identification. regardless, if he did aske for the minor's identification, the identification showed clearly she was underage and he still sold the cigarettes. i do empathize with him, and i

would not mind reducing the 35 days to 25 days. commissioner hwang: you said you would not mind? >> i do not mind. president goh: it says in the police narrative that he did not ask for i.d., but in her report it says that she was asked for i.d. in her report, which was provided. there is a little bit of a discrepancy between the police to port and the department's brief and her report -- between the police department's report and the department's brief and her report. >> yes. president goh: okay, thank you. >> is there any public comment on this item? seeing none, if you have more to say, please step forward. >> i have been working there 38

years. this is my first time i made that mistake. but i did ask for i.d. i would like to pay with a fine, because that is my business, and i want to keep my business running. commissioner fung: unfortunately, sir, that is not an option based upon the way the code is written. you. a fine -- you fine --a fine. president goh: i have a question. is your shot behind schools? >> yes. president goh: samples? it is right behind the school?

>> yes. icommissioner hwang: you understand that the suspension is a suspension from selling tobacco? >> yes. it is not -- commissioner hwang: it is not closing down your store. what did you understand the penalty to be? >> i have to give up my license to sell cigarettes. commissioner hwang: cigarettes only. you know that you can sell other products? >> yes. commissioner hwang: ok, not just making sure. >> anything further? nothing further? commissioners, the matter is submitted. vice president garcia: i appreciate the gesture made. on may 12, we had two cases

before us. the department asks for 25 days suspension. in july we had one asked for 25 debt was reduced to 20. we had one on august 11 that ask for 45 days, which was upheld by the board because, if not technically, it was the second violation. the last one was on august 18, the department asked for 25 g-8 -- 25 days, which was further reduced to 20. i consider 25 days to be reasonable and i would uphold the department and respectfully ask the other members of the board to agree with the 25 days as reasonable. >> you would be modifying the department's orders since it was for 35 days. president goh: is that a motion,

commissioner? vice president garcia: that would be a motion. president goh: i would support that motion. commissioner hwang: you asked a question about a school. can you tell me more about the school? president goh: i am familiar with this area. it is 29th and sanchez. at 29th street. it is st. paul's, st. peter's? st. paul's church, with the two big spires, and there is connected to that church a school. commissioner hwang: i just wanted clarification, thanks. >> commissioners, shall we call the roll on that motion? if he could do that, please? >> the motion is from vice

president garcia to overrule dph and modified the suspension to 25 days. on that motion -- [roll call vote] the vote is 4-1, the dph is overruled and the suspension is modified down to 25 days, down from 35. >> thank you. let's move on to item number seven, if you could call that when you are ready? vice president garcia: while he is doing what he is doing, i have to make a disclosure here also. i formerly taught finance at usf at my daughter attended usf for one semester. this will in no way influenced

me in determining this case. >> calling item 7, appeal number 10-126, richard rabbitt vs. dpw. it is a protest at of issuance on october 29, 2010 to the university of san francisco a minor sidewalk encroachment permit, a chain fence and retaining wall encroaching 6 feet onto the sidewalk right of way for a distance of the 389 feet. permit number 10mse-0373. >> thank you. >> thank you, commissioners, for this opportunity to speak to you. at that congratulate president

goh and the vice president garcia on their appointments. this concerns the encroachment that in clauses 50% of the public right of way. -- that encloses 50% of the public right of way. as you can see from this drawing, but the area and blew it is all of the other sidewalks and landscaping on golden gate avenue. all of those areas either have -- in total, there is the six- foot sidewalk, 3 feet of landscaping, so there is 9 feet. this area is unusual and there is only 6 feet. in terms of the context of the objective of this appeal, i just wanted to draw your attention to the better streets policy as part of san francisco, which is a city-wide policy promulgated in 2006 with the objective to make sure that public rights of way, that they become public

access corridors, the idea that the public right-of-way should be preserved for public access and not be taken by private party for their sole and exclusive use. that is what is at issue. in terms of the better streets policy, i would also like to note, pursuant to that, the better streets plan has ben implemented and is not yet official laws in san francisco, but it is in the process of being implemented. it has objectives for improving the pedestrian experience, including sidewalk lighting, minimum sidewalks width. even though i am not asserting that is binding law upon the commission, it sort of shows the direction san francisco is going and the objective of enhancing the pedestrian experience on sidewalks. with that said, the complaint was made to usf about the

encouragement of the permit and we did not respond to the plate. dpw asked usf to submit a permit application or remove the fence. when the application was submitted, it did not contain the information that was required pursuant to the application and pursuant to dpw's own website. one of those key factors is the neighborhood encroachment pattern, and what that is designed to do is to allow dpw to evaluate how this encroachment fits in with the rest of the neighborhood. this drawing here is the drug that should have been submitted but wasw buthen dpw receive this application, it was incomplete. but this should have done is said, please go back and prepare these drawings and photos to give us a sense of what is going on. instead, dpw approved a permit on the same day, without having all the information necessary to

issue the permit. when i found out the permit was issued, i was curious what were the reasons why the permit was issued? what were the facts and what was the legal basis, and dpw did not give an explanation. i ask them to explain what documents are in their possession that showed which factors they looked at. they confirmed in writing back to me there are no documents. so we have a decision for which we have no information, but when i filed the appeal, one of the points -- there were a number of issues relevant here, but one of them was there was a provision in the public works code which says you cannot approach upon more than 25% of the sidewalk right of way unless dpw makes a

determination that is not applicable. that is separate and apart from the general factors to be considered, so the fact that it is set off in a separate part of the section, i interpret that to mean that is a threshold requirement. in this case, as i mentioned, there is no evidence of any determination on this issue. in terms of usf's response, when they responded, they still did not provide neighborhood and christmas pattern drawings. they provided three photos that i think were not entirely representative of what is going on, and i would like to submit that drawing here on the screen. they submitted three photos. this was looking west. this was looking east. this was looking west and is adjacent to the baseball field. the baseball field is here.

all the other areas were omitted. even at the point where they're responding to the appeal, they are not providing lead information. in this context, i would like to make another point, which is another issue that i made, not here, but in rebuttal, this issue of the retaining wall. one of the issues was that for public safety, you need that to keep people from falling over the retaining wall. one of the issues there is that the public actually cannot see what is behind the fence. the fact that the fence has lines and a tarp on it, if a member of the public was trying to see what is on the other side of the fence and that the retaining wall, there is no way for the public to get that information. although the information provided here is coming from usf, which of course they have a vested interest in a certain result. that should be considered. just to show you another drawing, here is a drawing that

shows the different areas. as mentioned earlier, i was showing there are areas around the encroachment where we consider landscaping and sidewalk, everything 9 feet or greater, just to show you what was a medic, they did not include the areas from the world gym -- for the areas that were omitted, they did not include the areas from world gym. just in finishing, going back to dpw, here is a drawing that shows this was part of dpw's brief. one of the reasons they said the permit should be issued is this fence is needed to stop fly balls. actually, in this photo, if you actually read the usf report, they're saying there is an inner fence that stops fly balls. therefore, that is not a valid reason. thank you very much. commissioner fung: sir, where

you live? >> i live about six blocks away from where the baseball field is. commissioner fung: okay, thank you. commissioner hwang: i just have a quick question. it your map that you put on the overhead, could you put the last one back up? >> sure. commissioner hwang: yeah, with the yellow highlight. am i sure, of course -- >> sure, of course. commissioner hwang: you are saying that usf failed to submit pictures were the yellow highlighting is? >> i am saying more than that. i am saying that the areas in red are with the photos that usf submitted. i am saying they failed to i am saying they failed to support