the motion carries, and this matter is continued. >> thank you. director goldstein: ok, we will move on to our last item, item number seven, appeal no. 10-134. avef abdelhlim, the appeal of a suspension of the tobacco products hills establishment permit, about selling tobacco to minors. we will start with the appellant. or the appellant's representative. >> by a.m. also going to request a continuance to a date when all five members of the board are here. unfortunately, i have to ask for that very crowded made calendar.

my client has informed may that the family is going to be going back to jordan for the month of july and will not be back until september, so i would ask for the continuance so the full board can hear and consider all the evidence surrounding this appeal. president goh: in order to grant a continuance, first, one of the commissioners has to make a motion. first, let's hear from the department. >> i am a representative of the health department. on behalf of the department, i will object to the may continuance. this is the second time. i think we were supposed to have this case -- we reluctantly

granted a continuance. i do not know of the absence of the vice president will make a big difference. president goh: ok, thank you. commissioners, if we were going to have a continuance, we would have to about a motion for a continuance, and i would be disinclined for the reasons stated by the department. commissioner hwang: in this case, they are objecting to, particularly given that this is a second request. >> he wanted to retain counsel, so he went to the office and asked for a representative. there was nothing prior to tonight. president goh: ok,

commissioners? is anyone inclined to move for a continuance? like i said, i am declined, but if there is a motion, i will hear it. i do not see a motion from anyone. we will hear it. >> this matter was a complaint of a store selling cigarettes to a minor. the hearing occurred on -- i am not sure of the date of the hearing. there were approximately 11 other cases that were heard on the same day, and the same penalty was imposed for each and every incident of a store that had sold cigarettes to a minor, and that was the standard cookie cutter approach of a 25-day suspension. this market has been in business for 37 years. there has never been in

violation or an accusation of the permit or the restrictions on the sale of cigarettes to a minor in 37 years. what their record reflected at the hearing is that an employee of the store who had just returned to work, a part-time employe you, he had just returned to work. his mother had died. he was rather distressed. the individual came into the store. showed again vacation. " the employee you look at the headend vacation, misread it, and did on this one circumstance sell cigarettes to a minor. i would like to have the opportunity to look at their identification of the minor to see whether or not that individual does, in fact, look older or younger than 18 years of age.

this is an individual who, as i have said, has run the business for 37 years without incident. he, in his statement to the board, indicated that the point that the store does sell cigarettes attract people into the store so that the purchase everything that is for sale there. so a 25 basis pension would have a serious financial impact. we are asking the board of appeals to consider the totality of the circumstances, the fact that this has been a business that has operated for 37 years and has paid taxes, that has employed people, that generates revenue for san francisco, and that would be negatively impacted by such a

long suspension of sales of the cigarettes. i would like the opportunity to at least look at the id of the minor to see whether or not that person does look older not. it is true, however, that the employee did review the identification, miss read it, and sold the sale. the employee is not here today, but the narrative is that it was this employee the works part time that did make the sale in this case. president goh: can you explain why it is relevant to see the idea of the minor if the employee did look at the idea and it showed the decoy as being under age? >> it is my understanding that the employee's first language is spanish. he may have misread the identification. clearly, the identification

showed that the person was underage. nonetheless, it has been a factor in some of these cases. i believe the last time i was here at one of the hearings, an issue of the identity of the face specter of the id for some of the decoys does not represent what the decoys look back. given this particular individual's emotional state, there may have been some confusion between the face he looked at and the dates on the identification for the board to consider. president goh: i think i understand. thank you. commissioner fung: one of the points being made by appellant or by you was that there is no record of the tickets. >> i think what the column means by that is he received a citation and the citation indicated that it was a misdemeanor and he was cited to

appear at 850 brian street on the date at the bottom of the citation. he did appear on that day. the clerk told him -- i was not his attorney at that point. the clerk in room 101 at 850 bryant st. said there was no record of this having ever been filed as a criminal complaint. not that the citation itself does not exist. the other point i did want to make was that the citation -- the date on the citation, i believe, is december 18. let me just check the sedation -- the citation date -- the narrative was the 19th. the citation is december 18. the narrative supplied by the department was september 19. the last time i was here, there was a discrepancy between the citation and the date contained

in the police report. the board did take that into consideration and fashion a remedy to reduce the time of the suspension. commissioner hwang: i have one question. there was a sub middle -- submittal on the part of your client. it is two pages. i was perplexed by 0.7 and 8 and wanted you to address them. -- i was perplexed by points seven and eight and wanted you to address them. >> you wanted me to address? commissioner hwang: paragraphs 7 and 8. i am just curious about those. there is an accusation pointed

at the decoy. >> i did not procure this document. i guess it is illegal for a minor to purchase cigarettes, but that is really not what we are here to determine today. commissioner hwang: so you did not help prepare this document? >> i was not retained until after this document was submitted. i think sometimes people in their own defense -- commissioner hwang: got it. thank you. >> dr. ojo? >> commissioner, good evening. the department of public health found out the appellant was

doing business and violated the san francisco health code and the california penal code when he sold cigarettes to a 16-year- old minor decoy on december 19. i do not have any reason to doubt the police officers. they are well-trained officers. i do not have any reason to doubt they were using somebody that does not look his or her age. if this were the case, the clerk did look at the id, whether or not he is able to read the id is not the issue at this point. on december 8, 2010, in accordance with the health

code, the department suspended the permit to operate for 25 days. in the appellate's argument, it states the suspension or loss of income is his employee's responsibility. he is not taking responsibility for what his agent in this case did at the store. the agent was working on behalf of this -- on behalf of the owner, and does not have the fall responsibility of the permit requirement for that store. in the counsel's argument, he said the suspension was too severe. the appellant has failed to provide documentation as to the percentage of his store's record -- stores' revenue that is based on tobacco sales.

affidavits submitted by our client and the police department does say they misstated the incident as being september 18. they did fly -- did file an incidental supplemental report saying it took place on september 19. we personally fell the appellant's agent was acting on the appellant's behalf and it was the appellant's opportune sheet -- responsibility to ensure his agents are well trained in the law of selling cigarettes to minors. the suspension, i think, is very reasonable. the department asks that the board denied the appeal.

president goh: i need to see a written law from the health department where it says -- can you talk about how shopkeeper's know about the prohibition and the penalty for selling cigarettes to minors? >> at the point of issuance of permits to operate, usually the applicant, in this case the appellant, received that information. during our routine inspection, my inspectors also mentioned it to the operators the need to display the products properly and the need for them not to sell to minors. the tobacco-free projects also

mail out reminders every year to all the establishments. president goh: do these materials indicate that for a first offense it is up to 90 days? commissioner hwang: the attorney suggested this was a cookie cutter penalty other people receive the same penalty. can you address that? >> the department is very, very sensitive about this issue. i think the department has been very fair that if it is your first offense they do not want to go to high, and therefore they allow 45 days.

in some cases where there is a compelling reason to go lower, the department has done that. but we want to be consistent. we do not want to water the lawn down. we found this was very adequate. commissioner hwang: as to the other matters that were before the department, it was for purposes of consistency? >> there could be some cases where it was the second offense and the penalty was much higher. i cannot say that everyone received 35 days. >> is there any public comment?

seeing none, we will move to a bottle. -- to rebuttal. >> on the day that i was there, of all the people, on the first instance, regardless of circumstances, the same penalty was handed out. there was a statement about the reduced revenues submitted to the board. they said the sale of cigarettes was about 10%, but again the cigarettes generate revenues in all the other items for sale in the store. the individual that sold the cigarettes is no longer employed. there were the notices of what any employee of selling cigarettes would have to look for in terms of the date. they were up.

the employee reviewed all of the restrictions that must be checked in order to sell cigarettes to a minor. further, i believe it is the testimony of mr. avef abdelhim that he was not ever notified about what the actual penalty would be. he does take responsibility for his employee for the sale of cigarettes to minors. i urge you to consider again that he has been in business for 37 years without one complaint, and that there is a discrepancy in the dates. have you ever come up when the department came to you for an inspection -- were you advised of what the penalty would be for the sale of cigarettes for a minor? >> they did not show me a brochure or anything to show what the penalty is. i know it is illegal to sell

cigarettes to minors, but they never showed me the penalty. i was not sure if it was a fine or something. i did not know what the penalty is if i sell to a minor.i did n. i just showed the law and what to do. commissioner peterson: what are the policies you have in place to train your employees? >> there is a sign to not sell to minors, period, before even those restrictions.

i always believed it is not right. i do not allow them to buy alcohol or tobacco. and i always put signs out there as you walk by the cash register that you cannot buy cigarettes if you are under 18. you cannot buy alcohol if you are under 21. and they know that. commissioner peterson: thank you. >> i worked at the store with my father. it is a family business.

the store needs a family of six. we were not aware of what the fine or anything is in the store. i have been working in the store with my bad for 11 years. we always bring in a sharp team. we checked ids. there are 21 and over science. -- and over signs. commissioner peterson: thank you. >> dr. ojo. >> commissioners, i think the argument of the appellant is not possible at all. if he does not know the consequences, why tell his employees not to sell cigarettes to minors? secondly, prior to issuance of the permit to operate, like i said earlier, the department gives them all the requirements.

i do not know what type of establishment he has. if he has purely a grocery store, this law requires that we inspected twice a year. it is a restaurant -- it is not a restaurant, but a grocery store, but if it serves sandwiches, we inspect more than two times a year. every time my inspector is on site, they do a check for the display and they do make sure that there are signs that you cannot sell to minors and there are consequences. the consequences are given to them when they apply for the permit to operate. this is not the first year we have been enforcing the law. this has been discussed many, many times. i strongly feel the operator knows what the consequences are. he has heard about it from his friends, suspension for a

various number of days for sales to minors. i believe in the 25 days the department is imposing on him is very generous. they were allowed to give him and 90 days, but they gave him 25 days. >> the matter is submitted. commissioner peterson: i found the citadel -- the submittal had a lack of contrariness and responsibility. at the same time, i am sympathetic to the small business. but i agree that 25 days is far less than what could of been imposed. those are my comments. -- commissioner hwang: president goh: i agree.

sometimes we continue to look at the id, but in a case where the clerk looked at the id and saw the girl was actively 16 i do not see how that would be relevant to us our council. -- uus or counsil. -- counsel. i will move to uphold the department. >> the motion is to deny the appeal and uphold the department. on that motion -- commissioner fung: aye. commissioner peterson: aye. commissioner hwang: aye. >> the vote is 4-0 and the motion carries. president goh: thank you. is there any further business? >> there is no further business. president goh: we are adjourned.

>> i work with the department of

environment and we are recycling oil. thank you. we can go into a refinery and we can use it again. they do oil changes and sell it anyway, so now they know when a ticket to a. hal>> to you have something you want to get rid of? >> why throw it away when you can reuse it? >> it can be filtered out and used for other products. >> [speaking spanish] >> it is going to be a good thing for us to take used motor

oil from customers. we have a 75-gallon tank that we used and we have someone take it from here to recycle. >> so far, we have 35 people. we have collected 78 gallons, if not more. these are other locations that you can go. it is absolutely free. you just need to have the location open. you are set to go.