this has been an extremely frustrating enforcement case for the planning department. prior to the hearing, i spoke with the enforcement planner who had been handling this, and she wondered if they would show up because they have not showed up, they have not been doing the things they need to be doing in order to come into compliance. there have been very non responsive. actually, we have directed them -- there is an outstanding penalty of $50,000. that may begin within the orbit of the history. 2000, there was a planning commission action that authorized activity at the subject property. it 2009, received a complaint. from 2009 to 2010, we work with the project sponsor which dealt with noise emanating from the front seating area, the smoking area. we had sent the notice of violation and penalty to them in may of 2010. it became effective on may 24,

2010. they failed to file an appeal on the notice of violation public. we sent reminders to them in june and july, received no meaningful response from them. in october, we initiated a case. initially we were going to seek revocation of their authorization. we ended up revising their previous authorization to enclose that patio. november 29, 2010, the department met with the project sponsor, their representatives, and the board of supervisors, and mr. dufty, and discuss the process. we even said specifically that the occurred police and it could come before this board and city jurisdiction request, but they did not respond. december 9, 2010, they met at the conditional use authorization and require them to close up the front wall and said they had to submit a

building permit within 60 days. they had a room door. -- they had a roll-up door. the planning commission said they had to file the permit within 60 days. the failed to do so. it came to an issue with the department of public health they were going to revoke their health permit for other violations. they had serious issues with their smoking hypatia -- with their smoking patio. we agreed to a temporary extension of their health permit if they made good faith efforts to come into compliance, and we outlined three things. we want them to file a building permit application as required by the planning commission. they did so. it is incomplete, and we sent them a notice of requirement at the end of april that the fed to respond to so far. we told them either pay the police or come to this board and seek jurisdiction request.

we thought jurisdiction request, but they're not here. finally, there were other issues related to noise, the sound inspection. we had a sound inspector go out. yes, this has been a very unfortunate situation, and assuming the board does not grant jurisdiction, then we would proceed further enforcement action. president goh: okay, thank you. commissioner hwang: mr. sanchez, what comes next? >> that is a good question. we don't typically have product sponsors who are so unwilling to comply with the laws of the city. in this case, i think we would have to pursue the full panel the amount and it could be referred to collections, which could go to public health and seek revocation of their health. because they violated their health permit. we could call on the city attorney to help enforce on this.

commissioner hwang: got it, thanks. commissioner fung: it is still in operation? >> yes. but they were almost closed down by health. >> is there any public comment? no. commissioners? president goh: commissioners, thoughts? motions? commissioner fung: move to uphold. commissioner hwang: move to deny jurisdiction. commissioner fung: great, that is my motion. >> we have a motion from commissioner fung to deny at the jurisdiction request. call the roll. about on that motion from commission fung to deny jurisdiction -- [roll call vote] thank you. the vote is 4-0, jurisdiction is

denied. thank you. >> ok, just remind the audience, items 5a and 5b have been pulled off the calendar because those matters were administratively dismissed. item number 6 also has been pulled off the calendar. that matter was continued. to may 25. that is the taxi case. so we will move on to item number seven, which is appeal number 11-033, nizar askndafi, doing business as mmc wine and spirits, 615 sutter st., appealing a 25-day suspension of a tobacco product sales establishment permit imposed on march 9, 2011. reason for suspicion, selling

tobacco products to minors, director's case number f e-011- 20. we will start with the permit holder. sir, you have seven minutes. >> i am the owner of ofmmc wine and spirits. 615 sutter street. i was working that day, and i like to go to the bank before it closed. i told my friend just to stand their 15, 20 minutes, i am going to the bank to drop off the change. i said asked for identification for all and tobacco. i went to the back. when i came back, he had the ticket. the problem is we don't make a lot of money from tobacco.

if we stop selling tobacco, it would be a problem for the store. especially now, i have a bigger loan. if i don't pay anything, at this a lot of customers. we know we are not supposed to sell to minors and we never do it and we always ask. thank you. commissioner fung: sir, you referenced a letter from the united states marine club? i don't have it. i got out of the other commissioners have it, but i don't have that letter. >> he is very busy and i told him what happened. he told me he would send a letter. that is what happened. most of my customers are from the nine states marine club. vice president garcia: what do you sell? >> liquor, wine, tobacco, juice.

vice president garcia: what percentage of sales from tobacco? >> maybe 10%, 15%. it is not much, but i am worried if i don't sell tobacco, the other stuff may go down. vice president garcia: did you all for the department of public health when you had the hearing, did you have anything to offer us? i know, how do you prove and negative, but to demonstrate that this gentleman that he absolutely does not work for you? the you have an econo employee records, anything that would -- do you have any kind of employee records, anything that would show he does not work for you? thank you. commissioner hwang: excuse me, i have a question. what you have to shut down the store? -- why do you have to shut down the store? is it not a suspension of

tobacco? >> i would lose a lot of customers. it is bad for me. commissioner hwang: in your papers, is said you'd have to close your store. >> i would lose money. is better to close at than lose the money. vacation two weeks, three weeks, it is better than selling, not selling tobacco. the selling to minors, that is bad for me. across the street from me as a school. i did not sell anything to minors. it is better for me to close. commissioner hwang: which school is across the street? >> the school of arts. president goh: thank you. dr. ocho? >> good evening, commissioners,

i represent the health department. listening to the appellant, there is no denying the fact that he did sell cigarettes to a minor. in talking to my inspector, who went to the site to issued a citation, he did mention this is quite a good size grocery store. that cigarettes represent a very small percentage of the business. i think the public also said he does not make a lot of money from the sale of cigarettes. -- i think the appellant also said he does not make a lot of money from the sale of cigarettes. he said the seller was a friend of his. as you note, he is responsible

for the mistake his friend made. we strongly felt that the reference to the friend is probably wrong, that a a might be clerk. but notwithstanding, i think the person who made the sale was representing the appellant, and the appellate should be held responsible -- the appellant should be held responsible for the action of his agent. therefore, we felt the 25 days was appropriate and the department would respectfully ask the board to uphold the 25- day suspension. thank you. commissioner hwang: what is the maximum number of days you could have imposed? >> for a first offense, the most

we're supposed to impose is at least 90 days' suspension. dph only recommend it to suspend the permit for only 25 days. commissioner hwang: thank you. vice president garci i know the way that dph normally approaches this, it would not matter if they worked with this operation or not, but to the best of your knowledge, was any attempt made to ascertain whether this gentleman actually worked for mmc? >> at the hearing, there was no way for the health department to verify that, except searching through their files to see if this person was on the payroll or not. that is contingent on the documents provided by dph if it

went that far. i would ask the city attorney to grant that permission to do that. vice president garcia: and the other question i have is, all the cases that come before us, it never occurred to me to wonder, how does 25 days run? is it 25 consecutive days, 25 days that his store would be under operation, or how does that work? >> it is at 25 consecutive days. vice president garcia: whether or not the operation is open? >> exactly. commissioner hwang: dr. ocho, does the fact, whether it is true or not, that the individual who sold cigarettes to a minor was an employee, is that of any relevance to the department of determining culpability? >> not at all. commissioner hwang: thank you. vice president garcia:

occasionally, i think the public tries to ascertain if there were mitigating circumstances. if it would be well known to the department that the story presented was accurate, would that have influenced dph? >> say that again? vice president garcia: i am sure at times dph takes into consideration mitigating factors, and it was well known but this gentleman did not work there and the story presented by the other was absolutely factual, that might have mitigated the that was imposed, correct? >> i am not too sure if the department, at if the director considered that during the course of the hearing. there are other factors that would normally consider to reduce the penalty that would have been levied on the appellant. whether or not the person works

there, whether or not the person is a friend, or relative, the fact remains that person was acting as an agent of the operator, and at that point the operator takes full responsibility for the action of the agent who was representing them at that time. vice president garcia: i understand that. i am just remember a case that came before us, where it was an immigrant, asian i believe, who had an elderly parent with vision problems and the absence of the actual owner and operator of the store sold tobacco to a minor. i think that dph on its own thatmete out the penalties that it normally would. so the assumption would be there must be times when the consider mitigating factors. >> sure, yes. another example would be an individual, the gentleman came

in a wheelchair, elderly person who is hard of hearing. he could not stand up from the wheelchair. his wife took a break at the time. the officers were there. we knew for sure, deep in all of our hearts, there's person -- this person did not have the capability of checking the identities of the person purchasing the cigarettes. at that time, the department did reduced the amount. vice president garcia: thank you. >> is there any public comment on this item? seeing none, sir, you have three minutes of rebuttal if you have anything more to say. did you have more to setno? ? ok. dr. ocho, i assume you have nothing more? ok. then, commissioners, the matter is before you. commissioner hwang: my

inclination is to uphold the department, especially in light of the fact the school is across the street. it is not relevant to me whether or not the person who sold the cigarettes, a true statement or not, was not an employee at the time. president goh: i would agree with that. >> i know it is lean times and perhaps join the staff and to full capacity, but such close proximity to the school, i would uphold the department as well. president goh: is there a motion? vice president garcia: just for the record, i would have chosen if it were up to me if the gentlemen who operate the store was actually going to close three weeks, that would be 21 days. i would think that would be reasonable, give him the four days. and mentioning the fact there is a school across the freeway. we're not talking about a school that is populated by minors, we're talking about the academy,

with a think is an individual school. presumably, older than 18. to bring the school issue into it i think is false. president goh: is there a motion? commissioner hwang: i move to uphold the department. >> we have a motion from commissioner hwang to uphold the 25-day suspension. on that motion to uphold -- [roll call vote] thank you. the vote is 3- 2to2 to uphold te suspension. it is upheld. >> thank you.

thank you, docter ocho. appeal number eight has already been heard. we move on to appeal number 9, appeal number 11-030,ann and john cheong versus department of building inspection, protesting the issuance on february 25, 2011, to murphy trust a permit to erect a building, two-story storage facility with 5000 square feet of ground-floor area. application number 20090807439s. we start with the appellant. you have seven minutes. i think it is back to the other microphone. >> hello, testing? my business partner is my sister, and our company as a full-time dance studio and late

night in you. as the owners of the buildings located at 1261 connecticut street, with all this appeal to stop the destruction of the warehouses next war property which if allowed to be built as planned would block access to our fire sprinkler pipes and valves, drainpipes, and gas service. the 30-foot tall proposed buildings would also block fresh air and natural light provided by legal windows on the natch -- on the north side of our building. lastly, we wonder why the rush to permit without notifying us properly. being good neighbors, we decided to ask. we ask the developer. he said he had every right to build up to the property line and was not aware of our windows. i reminded him that we had met once before when he came to unlocked his gate and let me access my utilities. we stood in front of utilities and i pointed out our windows.

he denied ever meeting me before. for over 14 years, that fence on his property has extended onto my property, right up against my building. it should have stopped where my sidewalk ends, but it does not. besides keeping be beholden to him every time i need access, mr. murphy and his tenants have for use of my property without my permission and without just compensation. for over 14 years we have suffered repeated damage from cars crashing into our building when it was least as a parking lot, from rat infestations, and clouds of terror when it was used as a dump, and analysts graffiti and vandalism -- and clouds of beirut when it was used as a dump. we did not want to bear the burden of moving pipes and utilities as the building plan requires. we cannot afford the money, time, an interruption that it

take to install mechanical ventilation and skylights to make up for the block duendes. these expenses, besides being grossly unfair, would be catastrophic to our defense business, especially in this increasingly difficult economy. ita, -- exhibit a, is the legality of our windows. pg&e it shows 18 by 200-foot parcel adjacent to our property connecting the streets, which recently could only be used as a back alley, delivery line, or access road. exit b, pg&e. the current partial map, which shows the parcel and question was added to the adjacent property in 1981, at least to the earliest revision indicated that the top right-hand corner of the page.

our building was built in 1954, during which time that parcel was still in effect, thus permitting what exists today. these windows are protected by a grandfather clause that should have required a setback of at least 5 feet before the permit was approved. what happened? perhaps this can be found on the proposed building plants which did not guarantee the seal of approval or the engineers who may have missed the grandfather duendes. this exhibit shows the north side walls. the fire sprinkler pipes and drainpipes and daughters that we need to access. the height of the gutter's is 20 feet. they require regular maintenance and the use of an extension ladder or cherry picker. these exhibits, osha rules require 25-foot extension ladder and 1 foot of the distance from the wall for every 4 feet of height. to maintain my gutters and

pipes, the required distance from the property setback for the latter. it this picture shows at the 20- foot ladder against the building in proper position and where the new building should be, set back 6 feet from our building. this picture shows where the proposed building would be, as indicated by the red outline and the shaded area on the left side. and these exhibits show the tape measure 6 feet from the building. these are the details describing the 1930 boom left, often described as a cherry picker, which could be employed instead of a ladder. it would require less space than a letter but would cost $10,000. -- it would require less space than a ladder, but would cost him does not less. we do not done a cherry picker,

but we are open to donations. these pictures show the gas meter and fire sprinkler service, which sits near the front part of the setback property along the length of our building. our sprinkler requires periodic testing for water pressure, which involves a back flushed test and 5-your certification. the \ test releases -- the back flushed test releases egg gusher of water. the recommended setback is for proper room for testing. the gas meter needs to be read a monthly and turned off an extreme emergency. the setback would allow for such. this is a certified plumber for the sprinkler test and recommended set back. this picture shows the street side, the neighbor's fence, up against our building, parblockig access. this is roughly the property line, give or take a few inches, or the feds should have and it and where i ask the day

before a gate. this is a copy of the e-mail sent to the fire department specter document the discussion i had with him concerning his personal recommendations for proper access to the fire sprinkler pipes and service for inspection. finally, we do not object to our neighbor developing his property, which is his right, but we're determined not to lose access to the side of our building, not just for our sake but the sake of utility workers. we are equally determined not to lose the fresh air and light and we ask you to grant our appeal and spend the building permit until there is agreeable set back and grant has property egress and years that he blocked our access and use our property for his own game. thank you. president goh: would you put up exhibit c-1-a, the sprinklers and fire alarms and what not.

the chain-link fence on the other side of the utilities? is that on the sidewalk, or the back alley? speaking to the microphone, please? >> you are seeing the back, to inside the gate. president goh: ok. >> we are standing next to our property. this is the front. >> this is the sidewalk. it down on this one, it is the sidewalk. -- >> on this one, it is the sidewalk. president goh: i just was not sure what it is. could you put the other one back up? you see that chain-link fence on the other side? is that on the sidewalk? >> yes, it is. president goh: that is toward the front. >> on the sidewalk, up against the building. president goh: in the rear, there is an alley way? >> no, what i was saying is that

pg&e has shown on the plot map what looks to be a street ext. four property. president goh: that is a a, -- that is a exhibita. does that exists >>? no, it does not. that was absorbed in 1981. president goh: okay, thank you. commissioner fung: sir, has there been any negotiations between you and the other party. >> when we met with mr. murphy, he said there would be no negotiations. commissioner peterson: were unified in march of 2010? >> we were notified of an environmental impact statement, at which time i asked if there were building plans submitted, and there were none. when we investigated, we found the building plan for another building, not this one. commissioner peterson: thank you. commissioner hwang: in order for

you to access your sprinklers and meters at this time, you have to ask mr. murphy because of the chain link fence? >> exactly. commissioner hwang: and how does that work out? >> it is difficult. when he had tenants that were friendly, that would let us on to the property so we could do the maintenance work. but when it decided to clear out the tenants and prepare to build, which was about two and 1/2, three years ago, it has been really hard to get hold of him. as i said, he said we have never met, but i have met him at least once before to try to gain access. commissioner hwang: the windows on that line, are you able to get in and out of them if you are not able to get through the fence? >> no. commissioner hwang: not that he would do that, but -- >> no. commissioner hwang: so the property line in that picture, i think it was exhibit c,