i would -- i could vouch for the fact i didn't know they sold cigarettes either. and i've gone in the store maybe twice to buy things other than cigarettes. but i think, and i have the same question that my co-commissioner peterson had about the odd look and shape of the new card and why it wouldn't cause someone to pause. and normally i'm very inclined to impose the department's recommendation on a suspension, but under these circumstances, i think many of the facts that compel me to think the situation is unique in that the child, or the decoy was associating with children -- i mean not children, but young adults, and the distractions

and the effort that i believe the appellant made in trying to do that while running the store , to do the calculation of math, i can see that under these particular circumstances i would be a little more lenient than normal. >> i'm actually leaning the other way. i understand the decoy ms. lazar felt sorry for the store owner, and i do, too, and yet the department could go up to 90 days and instead imposed 25 days. so i'm actually inclined to support the department.

>> commissioners, we've had many tobacco cases come in front of us and, you know, the early ones we all tried to establish a nexus between the penalty and what is done in other areas such as the sale of liquor to minors and i don't think we've come to any significant agreements among ourselves and with the department on that. i would just say at this point given the way the economy is, i think this appellant deserves a break. >> what do you mean by "break?" >> she did sell cigarettes to a minor, and so i would look at a reduction of the penalty.

>> well, i think you heard my question and what i'm struggling with, and if we do want the department to take these things seriously, we should help them adhere to the law. this is not something we do lightly. i can be convinced of a few days' reduction but no greater than five days reduction. so at that i would move to -- would i overturn or -- >> are you seeking to reduce? >> i would reduce to 20 days? >> you would be granting the appeal and reducing the suspension to 20 days? >> correct. >> and that would require four

votes. >> mr. pacheco, if you could call the role, please? >> before i vote, i'm going to say our practice that if one vote would make a difference, then we will continue the case in order to allow the missing commissioner to vote, in this case as my comments indicated, i would be inclined to vote against commissioner peterson's motion but because of our practice, i will change my vote so that we don't have to go through that process and we can move on with tonight's agenda. >> so again we have a motion from commissioner peterson to grant the appeal and reduce the suspension from 25 days to 20. on that motion, commissioner fung? >> aye. >> president goh?

>> aye. >> vice president garcia is absent, commissioner hwang? >> aye. >> the vote is 4-0. the appeal is granted and the suspension is reduced to 20 days. >> thank you. >> thank you. >> so we'll call the next item, actually the next item is number eight which has been rescheduled to next week so we'll call item number 9, appeal 11-037 for raed yaser doing business as white palace licker with at 1324 silver avenue appealing the tobacco sales permit imposed on march 9, 2011. reason for suspension is selling tobacco products to minors, fd-011-13 and is on for hearing today and we will start with the appellant. please step forward. you have seven minutes. >> good evening, everybody. ok. on the day of question --

>> can you just speak into the microphone and please say your name? of white palace in san francisco. ok. on the day of question here my employee, alex, we have very strict laws in my establishment, since we have children and i do want to commend san francisco police and inspectors for doing such a great job deterring anyone from selling to minors, and i just want to go ahead and from what i understand over here, i was wondering why i would be responsible, and i see, but it says here knowingly selling to minors. there's no way anyone in my establishment would sell to a

minor knowingly. now, at the time when the decoy came into my place of business, he was asked for an i.d. i don't know how protocol is on providing the i.d., but she threw it down and before my employee had a chance to pick it up, she had already picked it up and taken it back. i don't know if this is a psychological thing that is used to entrap people in this type of business or not, but to me when she provides an i.d., the place is very busy, it's a busy little place and when she provides the i.d. and throws it on the counter or dropped it, i don't know if she did it intentionally, knowingly or not, but she drops it and takes it back, doesn't give my employee any time to observe, but he glanced at it, from my undergo, and he saw 85. i don't know how the new i.d.'s

are, but maybe that threw him off and maybe he saw it as a different section of the i.d. i'm not sure exactly what happened during that time since i wasn't there. but i received a call stating that one of my employees sold to an undercover agent. but, you know, i've been there many years, my parents started it and now i'm the owner, and this never happened to us and we try our best. we have kids, and i don't condone this type of action at all. but 25 days is really hard. i have a lot of employees. i have a lot of overhead. i pay approximate $10,000 in taxes every month. and i just can't see how this can happen. we try our best and i already spoke with my employee regarding this fact and put him on suspension until i find out what happens with his case, his

case was with -- he told me there was no sufficient evidence to uphold what was said or was there so he wasn't fined and the case was dismissed. to my knowledge is what he told me. so i asked him over and over and he told me he wasn't fined, they just told him to go home so i figured, ok, so they dismissed his case so i feel like since i wasn't the one that sold, never will and his case was dismissed that there should be at least some type of leniency towards my place of business, you know. there are a lot of people that feed off this business and hate to see something go wrong. not that i live on selling cigarettes. it's just a convenience site, if we don't have that for them they would go somewhere else to purchase everything else they want at one time instead of coming to me for sandwiches and going somewhere else for cigarettes, they'll just go

somewhere else. so it is a inconvenience for my customers as well as everybody else in that business. and i just want to see inspector fong and ask him a couple questions regarding this matter and was hoping to see him here. i don't know how that works out. but there are a couple of questions for him that i would like to ask. but he's not here. i don't know if there's any way we can get him over here or i don't know how you proceed in that situation. but there's a couple of things he said that just doesn't make sense to me. and it's just -- you know, he stated that my employee checked the i.d. and sold to a minor. my employee never had a chance to see the i.d. it was dropped on the counter and picked right back up. the place was busy, i'm sure he

was, you know, trying to get everybody out in time and -- but i would like to speak with the inspector regarding how the i.d. was submitted to my employee and why it was taken away so abruptly. i don't know the psychological effect this being used is used as a protocol on the way they handle this type of situation or not, but, you know, a psychological matter like that has a lot to do with the way somebody goes ahead and does business. when you walk in and ask somebody for an i.d. and they give it to you, they drop it and there's a lot of pressure on this person. he was new at the time and can understand when he was going through and didn't want to look bad and wanted everything to go nice and smoothly but it didn't work out for his behalf and that way, no. but i would like to speak to mr. fong, inspector fong regarding a couple matters over here but he's not here.

do i have to reset a date or i don't know what -- how to do this. i want to go ahead and face my accuser in something so horrendous as this, to me it is. we do nothing but support the neighborhoods. we always donate to the schools, we take care of the kids, we do our best to run a clean operation, as you would know, i don't know if you're aware of silver and san bruno, it's not an easy area and we do the best and have had great luck there and we try to uphold the law. i have a lot of friends in the police force and there's no way i'm going to embarrass myself or my business in doing this type of action in this place of business. so if there's anything lower or a fine but taking away that license for that long is really

unwarranted in this case. so if you can reconsider anything that would be great. and i would like to speak to inspector fong. i don't know how you want to -- thank you. >> i have a question. is there a school near you? >> absolutely. quite a few. there's thurgood marshall and martin luther king. there's also the old phillip burton on mansell. lot of children, a lot of children. and we do our best, a lot of kids come in and some are hungry, i will feed them. sports, i will take care of the sports. we do whatever we can. we are not bad people at all. we just try to work and live and make sure everything is done legally. my employee was there and his job was at stake as well. >> are any of the schools high school? >> i'm sorry? >> are any of the schools the high school level? >> absolutely. thurgood marshall is high

school, phillip burton is a high school. >> the other question i have is in your statement, you wrote you estimate approximate 20 to 25 attempts in the past three years failed. >> absolutely. >> do you receive letters? >> absolutely, from the police department congratulating us on a job well done. but i never kept them because i never had a reason to. i've been there since i was 14 years old and we never had any problem like this and we try our best, we really do. >> you're aware they come in and try to catch you. >> absolutely. absolutely. i don't blame them. i'm in an area where there's a lot of kid. i really don't blame them, you know. i really don't. >> thank you. >> sir, you indicated that your employee was in some sort of hearing? >> for what? >> april 5 for selling to a minor. >> so he appealed -- >> no, he had to show up >> for the citation? >> yeah, absolutely. >> is he here tonight? >> no, he's not. but i have my other employee

here who was at that time and observed the dropping of the license and the taking it back and the commotion. >> why don't i hear that, he was an eyewitness, he was there? >> absolutely. >> can i hear? >> sure. lou. my employee louie shahada. >> my name is louie. i was at this time in the store. i making sandwiches. the guy, he asked for the i.d., the lady she dropped the i.d. on the counter. and after she take the i.d., he asked her how old are you and she answered. this happened. i see that. >> ok. thank you.

>> if you could do that at your seat we can hear from dr. ocho. if you could fill the card out at your seat so we can hear from dr. ocho now. thank you. >> commissioners, dr. ocho, representing the health department. there's no doubt that the appellant agent did sell cigarette to minors -- to a minor and the truth as revealed by the operator said that sure, that there are schools close in the neighborhood. they actually deter these mistakes.

the appellant was not willing to take responsibility for the action of his agent by saying they should not sell cigarettes and accept consequences of his employee's negligence. i would say he was acting on the appellant's behalf and that it's his responsibility to ensure that his agents are very much aware of the law. i think 25 days is reasonable. we could have gone higher because the law says we can go up to 90 days for the first offense. and just 25 days, if we keep on watering it down, it makes it no longer effective. it will no longer serve as a deterrent. but the supervisor knew the consequences of the sale of cigarettes to minors.

that's why they went ahead to pass the law that says we can suspend the permit for 90 days for the first offense. so i will respectfully ask the board to uphold the 25 days suspension. thank you. >> i have a question. we heard from you before in other cases but the department has resources to check to run decoy operations maybe once a year if that. and we see and we heard from appellant that d.p.h. enforcement attempts had been made numerous times, approximate 20 to 25 in the past three years an average of six times a year. could that be right? >> at this location? >> yes. >> i doubt it. the police department does not have -- we have i don't know how many thousands of shops. >> i know we heard that from you before so i was curious about this. ok. thank you.

>> dr. ocho, this is the first time i've heard of the employee actually going to some type of a hearing. >> the hearing he's referring to is the citation the department just went to the hall of justice for the hearing for the citation because he's required that they appear. >> so every employee that has been on every case here also attends a hearing in addition to the owner of the store? >> yes, commission. >> and that is separate from the issue of the permit holder. >> i have another question on the subject that president goh raised on the enforcement efforts. does the department or would it be local police station that would issue a letter of hey, we

tried to nail you and you passed, i mean, the type of letter that concombrats -- that congratulations a merchant for not having -- >> i've never heard of that except if he's referring to his food permit. do you sell food? ok. we do have a certification that we issue to restaurants and grocery stores that sell food, not really a grocery store with food prep because food prep, a lot of the foods are prepared in restaurant, cooked consider that a potentially hazardous foods and if we conduct inspection and you, i think if you receive a -- about two consecutive 90 scores, we

encourage operators to continue the high standard and continue to protect public health, that is why we issue that certificate. to encourage them to continue to do a very good job with the food prep but not the issue of violation -- >> not for decoy operation? >> not for decoy operation, no. >> thank you. >> is there any public comment? >> mr. pacheco, make that one minute. and i'm reducing public comment to one minute because we're going to lose a quorum by losing another commissioner. so please. >> i don't know english, can

you help me or not? >> is he here to translate? >> i'll translate. >> somebody help me today. >> that's fine. >> yeah, ok. i can talk a little bit. i am ani fallah. >> does he -- i am abdo saleh. >> does he understand this is not his case. >> that's the next case. >> if he wants to speak during public comment for this case, he -- that's not it. ok. ok. >> i don't know if i understood him properly that i'm not willing to be responsible, i am. i am willing to be 100% responsible for my operations, but all i was saying is the way

it happened, you know, just the dropping of the license and the -- just the commotion that was going on, my employee going and having his charges dropped and all that is all i'm saying. i'm not saying i'm not trying to, you know, get out of responsibility whatsoever. not at all. thank you. >> thank you. >> dr. ocho anything further? then commissioners, the matter is submitted. >> commissioners, comments? >> i'll start. i'm disinclined to grant the appeal and modify the 25 days in this case for some of the reasons stated by dr. ocho. the decoy not presenting the i.d. in a particular way i did

not find persuasive and the allegation -- or the suggestion that they had been challenged or a decoy operation had been run many, many times on them when it doesn't sound like that's possible given d.p.h.'s comments and their resources, so i'm not inclined to grant the appeal. if there are no other comments i move to uphold. >> i have a comment which is my leaning is in -- to be upholding the department as well, simply because i think the facts of this case, with all the schools and children of high school age in particular, i think there needs to be a higher level of scrutiny with respect to the review of the driver's license that was submitted. and with children or teenagers, for that matter, if they throw down an i.d., i wouldn't be

surprised if that type of behavior in general, but that would be my inclination. >> all right. just a brief comment. i really see no difference between this case and the previous case. >> there's a motion on the floor to deny the appeal and uphold the 25-day suspension. mr. pacheco, if you could call the roll, please. >> on that motion to deny and uphold the suspension. from the president. commissioner fung? >> no. >> the vice president is absent. commissioner peterson? >> aye. >> and commissioner hwang? >> aye. >> thank you. the vote is 3-1 and the suspension is upheld. >> ok. then i'll call item 10, appeal 11-042, doing business as u.s.

smoke shop versus department of public health at 415 ellis street, this is appealing a 25-day suspension of a tobacco product sales teabt permit imposed on march 9, 2011. the reason for suspension is selling tobacco products to minors and this is director's case fd-011 h5n1 19. mr. aldohmi, you have seven minutes. if you need a translator, you can have more time. >> ok, my name is saleh aldohmi. >> please bring the phone down. >> i'm here for the first time. my customer, a lot of crazy people. nobody come in underage. some come in underage, this is not a smoke shop, get out. but come in the morning, i wake up, i'm open -- the first day i hope 5:30, he come, he talk me

marlboro lights. i not i.d. him but he told the lady, he looked tall the first time i do it. my customer, too much problem, a lot of crazy people, homeless , good customer, nobody do nothing. [inaudible] >> now a good day i make $200, $250. my family ain't got no nothing. this is all the payments. i can't pay for all $2,500. some $150 with the payment.

a lot of people no good. nobody come mess in my store. i just told them. what to do now? he come from the city, he talk me. [inaudible] my family and i got no money. a lot of people, a lot of homeless on site, a lot of crazy. [inaudible] >> and off the street, nobody

come do nothing. [inaudible] >> there has been only that taxi cab come from the outside. [inaudible] >> and the people outside, nobody come messing. >> are you finished, sir? >> huh? >> are you done? >> i have a question for you then. this is a difficult area. what do you sell in your store?