the planning department requires either a good review of linnean and new apartment. that did not happen. you feel the general advertising it is complex, and adequate review rarely could take place at the counter. we are told they have 30 sons in san francisco. i think it is interesting to note is that they did not take now on board the fact that they

did not have the visual displays they are required, so i find that interesting. i think it is also of note the resolution states that a permit that is not signed is just as valid as one that is. the permit was not required. i think we all agree to this. and ms. oswood's remarks they did seek the permit to clean up the paperwork. i would only say that i have not known anyone in the city to ever seek a permit when it wasn't required.

it is not something people take on without motive, i think i would say. and commissioners, there's a lot of other issues here, but i think i'll leave it at that for now and make myself available for your questions should you have any. >> mr. sider, i'll ask you the same questions i asked the appellant. on the notice to a property owner for an abandoned sign, is that a mandatory notice or is it a friendly notice? >> it is our practice when a legal sign appears to be abandoned, it is our practice to notify the parties involved. >> ok. >> it is not something that

appears in the planning code or elsewhere. >> mr. duffy, anything further? no? ok, then, commissioners, the matter is submitted. >> commissioner's, thoughts? >> i have some thoughts on it. in recognizing that the issue of whether the sign was abandoned or not is not before us. my question is related to notice just to see what exactly administratively procedures frame this kind of process. and the only real definitive

process that i see here is one that was assigned -- a signed permit issued in 1999, in essence is a building permit, issued and controlled by the building department. the building department's processs are slightly different than the planning department. their process is -- their processes relate to a fixed time frame that potentially is a little different than the planning department. but both departments have time frames in which something has to be acted upon and finalized. so my take is in this particular instance in 1999 a permit was issued legally, it was entitled at that point in time. the permit, however, wound up lapsing because all those time frames by either department do not run to the extent of 10-12

years. and the statement made by the department that a renewal permit goes with the original permit and would entail -- and the basis for the original permit was gone. so i don't see how the renewal permit is valid, and i believe it was issued in there. >> i'm just struck after all the fanfare over signage that we've been accustomed to reading about both here at the board and then in the public for this to -- the renewal to be treated by over the counter means and to be largely ignored for at least two months and the

landowner not to receive notice is concerning. i don't mean to penalize the city department out of kind but it seems the error should not be placed either on the media company or the property holder. >> i appreciate commissioner peterson's concerns but am

leaning to commissioner fung's issue of the permit having lapsed. >> this is difficult case. i think the facts and the particular circumstances make it challenging to offer a -- a decision with great certitude here to what the right path is to go. i have to say i am leaning to the arguments of the media company which is -- wouldn't fly with my normal course here but i think given what we've been presented with and that

would be where i would lean. >> further comments or a motion, commissioners? >> i'll move to overturn the department's revocation request. >> on the basis that it erred or abused in issuing it? >> right. i think we're going to have a stalemate. >> ok. mr. pecheco, if you could call the roll on that, please. >> we have a motion, then, from commissioner peterson to overrule this zoning

administrator request for revocation on the basis the zoning administratorered -- straightor erred or abused his discretion. on that motion, commissioner fung? >> no. >> president goh? >> vice president is absent, commissioner hwang? >> aye. >> thank you. the vote is 2-2 to overrule. absent another motion because four votes are needed to overturn any departmental action, this request for revocation would be upheld. >> by operation of law. president goh, should i move to the next item? >> yes. >> ok. we will call item number 7, then, which is appeal number 11-034, antoinette lama doing business as chuck's store versus the department of public health, property at 24

cortland avenue, an appeal of a 25-day suspension of a tobacco sales permit imposed on march 9, 2011. reason for suspension, selling tobacco products to minors, case fd-011-16. and we will start with the appellant. step forward. you have seven minutes. >> i do have this for everyone, please. oh, i am sorry. hi, i'm antoinette lama. hello? i'm antoinette lama, the store manager and co-owner of chuck's store at 24 cortland. i was -- i have for you a context of appeal. my documents that i put together. and with your permission, i'd like to submit them for you. there are some pictures on there.

they're very basic, actually. >> you submit a brief? i'm looking. did you not submit a brief on your -- >> i did submit a brief but also was told when i came here to the appeal i could bring something else. and i have just a few pictures. >> you can make reference to them and put them on the overhead or if there's a motion to accept them as additional briefing, we can vote on it. >> ok. >> looks like a big stack to me. >> it's actually because there is one for each of you. ok. first, i want to make sure the city attorney, they did not deliver to me the response of the department of the health department as stipulated in the special instructions. and want to make sure it's delivered to me on time and

would request you not consider this letter as part of the brief since it was untimely. i received it on friday 13. it was supposed to come to me on the 12th. it was too late for me to be able to do anything and respond to it. >> can i stop you for a second? >> yes. >> would you want to have a continuance? >> no, not really. i really feel that, you know, i've been in business 37 years. we own our business. and we really run a very clear, clean policy. >> no, just on the issue -- >> no. >> you don't want a continuance? >> no, i would like if possible to end this today. >> all right. thank you. >> the decoy came into my store. the decoy came in with a california i.d. that i had never seen before. it is my understanding that

january 1 of 2011 new california i.d.'s were issued for minors. we were not notified. there was no notification sent to any store. i checked with many grocery owners. no notification was sent to us through the d.m.v., alcohol beverage and control, not the department of health. not from anyone for us to know this. when the girl came into my store and submitted the i.d. to me, i had six customers in my store. i looked at the i.d. and i was a little frazzled because it said california. it didn't look like anything i had seen. it was january 22, just so you know, they had been in circulation for about a week. and i was looking at it to be -- if it was actually a card or not. it was. it looked real to me, looked

legit. she also run into friends of hers within my store and i do have a picture in here where she's talking to people, and she -- the people she was talking to were 22 years old. i didn't see -- very briefly i looked at the i.d. and looked at the birthday, she was born 1995. and my sticker on the counter said 1993. with the confusion and people in the store and the card looking different i said ok, 1993, you were born 1995, we're fine. three minutes later, officer gordon came in and told me i had sold cigarettes to a illegal person -- to a minor. and i said absolutely not. we don't do that here. so another thing i want to bring up which also is in my statement is the fact that nellie gordon's statement of inspector nellie gordon, her statement was incomplete, and it did not state all the facts.

therefore, i don't -- i think she should have been here. in the statement it does not say i had sold cigarettes to a minor. she actually feel bad for me when it happened. i just need to make sure that, you know, that we know that we've been in business so long. i have children. i'm a mom. we don't smoke at home. you know, i have no cigarettes praphernalia or anything in my neighborhood. i don't sell 24 ounce beer. i run a very respectable business and if you've been there, you've seen it. and to be honest with you, i made a mistake, but it was a human error. and i feel that the penalty of 25 days is extremely excessive which also brings me to my next point. when we all went to the department of health briefing, there were about 30 arabs and

chinese people who owned weisses -- businesses. there wasn't one person who was caucasian. and i found it very odd that all of us were caught on the same day. i know the girl who came in was the decoy, she was the doctor of an officer because i did card her even though i haven't seen her i.d. again, that was my original statement. and he was my captain in my neighborhood, you know, in engleside. there is no way i would have sold cigarettes to his daughter being a minor. it was totally accidental. it was human error. i own it. i accept it. i understand that i need to be penalized. but i find that 25 days is extremely excessive for my first offense in 37 years. and, you know any questions?

>> you have photographs you want to show us? you can put it on the overhead. >> yes, the overhead. there is a photograph right here. can you see? >> yeah. >> ok. right here is the decoy, she was talking to the three girls. you can see the tallest girl. if you have my pictures you'll see much clearer than what you'll see right there. she was talking to people. it was not like a decoy sting that went in. there is also pictures right here that this is the -- i don't know if you have seen it. this is the actual california i.d. i had to go to the d.m.v. website to know what it was. and i did it after the decoy had come in. and, you know, we pay taxes, we

pay san francisco to you, i pay about $250 a month in taxes for my cigarette selling. i feel that, ok, you're taking our money but on the same token, why are you not educating us to be able to uphold the law. i feel that all the state department is corruptible on this. i should have gotten a picture of this in the mail. i should not have seen the decoy having it the first time. this is just a picture of my store to show you my counter has no paraphernalia. is that better? >> yes. >> right here is my 1993 logo, the decal that i saw. i was behind the counter. pnd and i saw it backwards. and when i did her i.d., i did 1995 and i looked at 1993.

and you know, i did the math very quickly with all the commotion going on. you know, i really feel i understand what you're trying to do, trying to stop people from selling alcohol and cigarette to minors. but, you know, really we do our part. and we're very proud of what we do in our business. this was human error, and i'm at your mercy. >> i have a question. so in the past when you've asked people to look at their i.d., they would show you the i.d. that was horizontal like the old -- >> horizontal always. >> and the difference that this is now printed -- >> it's vertical. >> but still the date of birth and whatnot? >> it's actually different. it is actually different. and is stripped for the underage. the red is much smaller anded

birthday date is not as obvious. where before if you look at the other ones that were sent before right here, you see the little red line is the one that says she's a minor. >> i see. >> so it was not obvious. i think if i had just been sitting there i would have seen it but the fact there were so many people in the store, the fact she talked to people that were 22 years old -- >> ok. thank you. >> how did you know the other children -- i mean the other -- >> the other girls were -- yeah, whatever, were 22, sorry? >> i grew up with their fathers. they are the grandchildren of my next door neighbor. i've been in that neighborhood 37 years. >> how did you know they were 22? >> because she was dating my nephew who is 24. >> ok. >> sorry. >> ms. lama? >> yes, sir. >> what percentage of your

total sales is tobacco? >> it's about 30%. and to be honest with you, for me to not sell cigarettes for 25 days, it will hinder our sales. now, we have three families that live out of that store. we own the building. we don't pay rent. therefore, that helps us a lot. and that's the reason we can support three families out of it. for me not to have that kind of a sale and to have that loss of income, it would really affect us. >> thank you. >> thank you. >> what do i do, leave? >> sit down. >> ok. thank you. >> don't go far. >> ok. >> dr. ocho? >> commissioners, good evening. representing the san francisco health department. there's no doubt that the

appellant did sell cigarettes to a minor. i was looking at her briefs. the argument that she presented in her writeups saying that she does not display any cigarette, no signs and no ads, and i'm afraid how -- her customers are able to know that she's selling tobacco, to claim that 30% of her sales are from tobacco is very difficult for d.p.h. to believe. it is true that section 1009.66 of the health code allows the department to suspend the permit for up to 90 days for the first offense. we only suspended it for 25 days. i think the department has been very generous. it is the appellant's

responsibility to make sure that she checks the i.d.'s properly before the sell. apparently the minor looked her age at the time she went to the store. whether or not the appellant is distracted is not something the d.p.h. wants to ascertain. so i think the 25-day suspension is reasonable. the department will respectfully ask the board deny the appellant and uphold the 25-day suspension. thank you. >> could you talk a little bit about the new i.d. and any efforts on your department's part to educate about the vertical versus horizontal identification? >> i've seen it, you can read it. i don't know whether the tobacco free project, the one that do outreach program for us

, i don't know whether they sent any information to the operators of all the different stores. but i think when the inspectors go to all these sites, every time they do emphasize the need not to sell to minors. they check the display of the tobacco, and when each operator got their license, they are provided with a copy of the laws stating what they should do, whatnot to do, how to display the cigarette, so i'm very sure the appellant is very knowledgeable. it's unfortunate she did not have time to read the minor's i. dmpt -- i.d. properly before the sale. thank you.

>> thank you. one moment. is there any public comment on this item? ms. thompson, i don't know if you're aware of the board's rules, please go to the microphone, regarding agents speaking on behalf of their clients. i don't know if that's your relationship with this individual or not. >> no, my relationship is not as an agent, although i have read the brief and have assisted in providing ms. lama with information about the process of the appeals board. >> but not on a paid basis? >> no, absolutely not on a paid basis. >> thank for you clarifying. >> my name is barbara j. thompson, a resident of bernel heights and a homeowner since 1979 and feel i have intimate knowledge not only about the operation of the business but about the reputation of the business in bernel and know they're members of the board that live in the neighborhood. and this is not a store that has any advertisement despite

the assertion from the department of public health representative of any kind of tobacco tobacco sales, such sponsorship, etc. there is when you walk in the store absolutely no visibility of tobacco products. all of it is controlled by the shopkeeper and that is factual and wouldn't be making that statement to you if it wasn't. i don't think i -- i feel compelled to also say that i'm really taken back by the process of the department of public health. i know antoinette lama put in her appellant brief regarding the request. i made a sun shine request because i can't believe there was a delegation of authority for who should conduct quote, unquote director specified appeal by charter. there is no delegation of authority, and i've seen nothing the department has

presented that authorizes the hearing officer in this proceeding. on that very fact this was an inappropriate and improper proceeding with the department of public health. this board is making determinations on violations of the penal code and is totally outside their jurisdiction. if they wanted to address conduct that would be one thing but they're acting improperly and not in conformance with the charter or administrative code by making determinations about penal code. there's no authority for that. and i note i see nothing from the city attorney's office in disputing that fact because they do know that is the case. i don't understand because i'm a mother, my son doesn't smoke. he's a three-time all athlete runner but i don't understand why the department of public health is not making a more aggressive stance about the sale of tobacco by informing these merchants and you have more here tonight, there were 30 something when antoinette lama was at the hearing with

the department of public health. if we're serious about stopping minors from smoking, and by the way, no minors smoked in this incident because no tobacco was consumed, it was turned back over, or the minor was a decoy who wasn't smoking the items. if they're really serious, why aren't they sending out these new licenses, they're completely different looking. i don't understand, until you read the code and you appreciate that the only reason for the operation of this unit with the decoys is by fines. so their intent by design is not to educate the public which should be the mission and the safety of the public's health for the department of public health but it's to preserve and keep the functioning of this enforcement unit. thank you for your consideration and please take a look at what is happening here regarding abating cigarettes to minors. >> thank you. congratulations on your son's success. is there any other public comment?

>> thank you. >> he was hit by a car last year but that's another thing. >> ms. lama, you have three minutes of rebuttal. >> i just wanted to touch on what the doctor just said, how can my percentage be so high if i have no display? well, there is many things that affect that. first, my customers when they walk in, if they don't see what they are looking for, i catch them at the door and say, can i help you, what were you looking for? oh, you don't sell cigarettes? i'm like yes, i do. why are they not out? because we're a child family friendly store and because i don't allow the cigarette companies to tell me how to run my business. and in order for me to be able to do that, i don't take any money from any of them. i do sell a lot of cigarettes. i'm right in the heart of bernel heights on cort land. on