having -- we do not know where they were having under cover of people coming, so it may not have been that often. that may be why they were never caught before. >> the figures of about once a year -- to you know? parks are no sandford cisco is probably 1200 tobacco and permits. -- >> in san francisco, it is probably 1200 tobacco permits. i am not sure if they get to that many each year. >> conditioners? the -- commissioners bowman -- commissioners? >> vice president garcia, were you about to say something? commissioner garcia: i wish the department would do an analysis of how this works out in dollar figures for an individual

operator, and let's take an assumption that all the figures are exactly correct your year of 30 days was decided -- are exactly correct. 30 days was decided. that might seem reasonable to some people, of the fact that it is the first offense, and we can all assume they did not just kesse and the first time they sold cigarettes, but we should assume that. they said they have never done it iaside from this time, and then you compare the find is someone who sells liquor to a minor region -- compare the fine to someone who sells liquor to a minor.

my memory is it is something like $100, so we are saying -- maybe some people feel like this, that tobacco -- the sale of tobacco, which does not require the same kind of licensing that liquor dose, so we have to say that our government is wrong to require all the things we do for a liquor license because when it comes time to find someone selling liquor to a minor, the offense is so much less than it is for tobacco, so if we are as a society so concerned about the sale of tobacco to a minor, maybe we should have some sense for who gets to sell tobacco and who does not, and repeatedly, every time we get the case, the reason i and other commissioners feel like it is a rough issue is

because it is cut and paste. we get the same statistics about -- which are not scientific in the least thibit. it should be mostly adhered to, and it is troubling to me and what impact that might have on individuals, when let's hope that one time somebody does something and they come before us and they realize how severe that is and we're serious, we give them something that will not put them out of business or seriously affect them. i guess there are other members of the board could not share that opinion, but if it were up

to me, i would certainly uphold the department. commissioner peterson: i feel strongly that we should uphold 25 when there are nearby schools. vigilance is needed. in a tourist area, i have not heard any evidence of school-age children. i think it is important that this board support the department, the law, and we need

business owners to take it serious. president goh: i am interested in supporting the department in this case. i found the notion that we had an employee who did it, the employee was fired, and then finding out the employee was the son of one of the owners, i found that interesting. and that the department could have gone to 90 days and only did 25 i seem to think is fair. if there are no other comments from the commissioners? commissioner fung: you know, they asked for an extension. we gave them one week of discussion time. if they had come on last week, they would have more than likely gotten a five-day

reduction. their case is no different than the other two cases that were there. and i would support that. it could have been bigger, but i don't think we will be able to get a larger reduction. commissioner hwang: sorry, were you finished? commissioner fung: i am done. commissioner hwang: i think the last hearing we had, there were other matters. the matters with tobacco suspension licensing did not go in that way, just to clear the record. i think one received a reduction, and the other did not. commissioner fung: two out of three received a reduction. commissioner hwang: i don't

think that is true. and i was here. perhaps i am not remembering. in this case, i am more inclined to go with the president's position, in part because of what she stated, but also, i think the fact that the employee, if it was a < 30 day employee, did not even look at the card or ask for it or shut any type of suggestion this was something they need to consider as part of the obligation of the licensor. for those reasons, i would be inclined to uphold in its entirety. ivice president garcia: if i ma, commissioner hwang, in the draft minutes, it reflects we had four

cases. one of them was continued, three were held. two of them, not the penalty was reduced to 20. commissioner hwang: okay, thank you for clarifying. just for the record, i did appreciate the clarification and the doling out of punishment on these types of offenses between alcohol and tobacco. it is not our place here to make the policy change. i would stick to my sentiment. president goh: is there a motion? vice president garcia: suspecting it will fail, i move that we will uphold. >> you are going to grant the appeal? vice president garcia: grant the appeal and reduced the penalty to 20 days. >> ok, thank you. if we could call that motion, please?

>> on that motion from the vice president to grant this appeal and reduced the 25-day suspension to 20 days. on that motion -- [roll-call vote] thank you. the vote is 3-2. four votes are needed to modify any department all action. so the 25-day suspension would be upheld. >> should i call the next item? president goh: yes. >> appeal number 6, appeal number 10-26, richard rabbitt

vs. the department of public works. protesting the issuance on october 29, 2010 to the university of san francisco minor sidewalk encroachment permit, a chain fence and retaining wall encroaching 6 feet onto the sidewalk right of way for a distance of 389 feet. it public hearing was held on january 19, 2011, and for further consideration today. on january 9, 2011, the matter was continued to allow for the p.w. to submit additional information pursuant to the board's comments. on march 23, 2011, the matter was continued further to allow time for the permit holder, usf, to provide the board with copies of permits obtained for the retaining wall constructed in 2004. we will call the permit holder first. mr. o'brien? >> commissioners, my name is harry o'brien, here on behalf of

usf, and we are here to request a for the continuance of this matter. we have had some productive discussions of a settlement with mr. rabbitt as well as other members of the neighborhood. i think we have an agreement in principle, although we need some additional things to be confirmed. richard, if you want to join in that request, and anything that you would like to add, i think it would be to request that you continue this matter for perhaps another month or so and hopefully we can resolve this. >> commissioners, i just wanted to echo what mr. o'brien said. i believe we have an agreement in principle on the settlement, and what we needed is we needed dp debbie to cooperate with us, because it is -- dtw to

cooperate with us, because it is contingent upon them as the department that granted the permit to agree. with the terms of the sidewalk issues and the tree issues. one of the things that we would ask the board to consider is to request dpw cooperate in the settlement process. the second thing i wanted to check was to see if the board was interested in hearing the general outline of the settlement. i would be happy to go into that, or if not, happy to skip that as well. vice president garcia: my only comment would be the reverse of the way that you phrased it, and that the agreement conforms to the wishes of dpw rather than asked dpw to cooperate. >> i understand, commissioner. obviously, if dpw does not agree, it all three parties

cannot agree, then we do not have an agreement and we would have a different discussion at the next hearing. i understand that you cannot commit dpw, but we are asking they engage in a dialogue with us. we have had some e-mail with usf, productive exchanges, but i sent 3 e-mails to dpw and i have received no response. it is the context of that. president goh: thank you. >> commissioners, i am john from the department of public works. in these cases when there is a settlement between parties, as long as there is no expansion to the encroachment, the department would typically reissue a minor sidewalk encroachment, rescind the previously issued a permit, and describe what the new it encroachment would be.

there is very little from that perspective that dpw would need to participate in the discussion for. it is an agreement in place between the parties and all we do is validate in this case that the encroachment has been reduced and not expand ied. so there may have been some miscommunication in this case in terms of the request made of the department compared with what we typically do on these types of encroachments when there is a reduction or modification. president goh: would you be willing to respond to an email or other query from the parties? >> yes, commissioner. they contacted me right before this hearing and informed me of the continuance and of a potential settlement, which may involve the evaluation of some existing street trees and the public right of way. i will coordinate with both parties, as well as the urban forester to evaluate any

potential impact to the relocation of the fence and the existing street trees and issue a new encroachment permit to finalize the settlement if required. president goh: okay, we still have to vote on a continuance. >> i would ask for public comment first, if there is any. commissioner fung: i have a question for mr. o'brien. there are a number of other people who have submitted various types of concerns and thoughts with respect to this case. are they knowledgeable of what is being proposed? >> richard may be a better person to answer that question. the discussions have involved numerous members of the media community. i think everybody else has been an active participant. commissioner fung: in the discussion? ok. same question.

>> i would just address that, there are three other neighbors in the immediate neighborhood involved in this, and they can speak in their public comment, but i believe those three neighbors have all been involved in this and are all ok it in principle tonight. obviously, i cannot speak for the broader public interest of everyone in the city of san francisco. vice president garcia: there is a woman who was involved with us, what san francisco, and i don't know she is a neighbor or not. at its sheet involved? >> she has not been involved in the settlement discussions. >> a she involved in this? >> she has not been involved in the settlement discussions. >> is there any public comment? >> hello. my name is chris schaefer.

i spoke in january opposing any change in the configuration of the fans because it had actually the face fines which were the only landscaping. i am the one neighbor of the four in my view from my living room is the baseball field. in essence, have worked with my neighbors on the issues that are relevant to us. there are two -- one is the appearance, as well as an issue for all four of us, which is returning as much of that sidewalk back to the public so it is walkable. in the solution we have worked out together, we propose to have more sidewalk return so that in essence there would be more sidewalk that is walkable, and as well a re-planting of the trees. why we need dpw is in that solution where there would be public trees placed in the public right of way, we have to

make sure that would not hurt the trees and the public area, and therefore we would like dpw and the urban forester to make sure we are not the one against the recommendation or what dpw would have. in essence, we get more sidewalk, more trees. we feel that is win-win. >> thank you. is there any other public comment? >> good evening. my name is mcintyre, and i give up a dinner with my granddaughter for this. i feel obligated to say something. i have been a resident of university terrace since 1979 and san francisco since 1963. as a citizen of san francisco, i endorsed this agreement and. sybil reached by the appellant and permit applicants -- i

endorsed this agreement in principle reached by the palin and the permit applicants. with respect to the fences and the sidewalk encroachment. as i understand it, the role of the board of appeals is to adjudicate possible errors by the permit authority based on the law, and i am happy to say that in order to get to the full facts, you have had to continue this hearing twice. hopefully you'll be patient and continue one last time. until now, i have been somewhat critical because it seem very difficult for an appellate to get four votes out of five, but i hope and expect that the outcome will meet my goal of seeing the law applied equally to both parties. thank you for your patience and careful attention to the facts and law, which make this

agreement possible. thank you. >> thank you. next speaker? >> hi, i live next door to richard rabbitt. the reason why i support the idea of having dpw involved, and not just them involved but consulting with the neighbors, the one thing we all want it was 6 feet on the west end. the reason why there has been some uncertainty about that is dpw was the entity that said that trees could be harmed if they cut branches. not knowing how much of a compromise would be achieved by the time you came here, i did take pictures of trees with no branches near the bottom.

i am just hoping that as part of our discussion in principle that the neighbors can bring up items such as this and have an opinion stated so that i can trust that the compromise will be something that most of us can be pleased with. i think the compromise has gone very far, and i would appreciate an extension. thank you. >> thank you. is there any other public comment? then, commissioners, the matter is a minute. commissioner hwang: i will make a motion to continue the matter as requested by the joint party. >> commissioners, if i may be so bold to suggest that the june 29, there has the best availability, which is about a month out. commissioner hwang: be bold,

yes. i will accept that to my motion. works for everybody? june 29? ok. than any other commissioner comments before we call the roll? please call the roll. >> on that motion from commissioner hwang to continue this matter once again to june 29, 2011. on that motion -- [roll-call vote] thank you, the vote is 5-0. this matter is continued again this matter is continued again until june 29. >> will come back to the may

25, 2611 meeting of the board of appeals. we continue now with item number 7, appeal number 10-131. the subject property is 3506 16th street, a.k.a. 282 sanchez street. appealing a notice of violation and penalty dated july 13, 2010, regarding an allegation of illegal commercial activities at the subject property. f. public hearing was held on april 6, 2011. for further consideration today. on march 23, 2011, the matter was continued to allow time for the appellant to review the subject property owner's brief. on april 6, 2011, the matter was continued further so the missing commissioner could participate in the final vote. there was no motion on the floor the last time this matter was before the board, so we can

return to deliberation. there is no further comment to be made by the parties unless there is commissioner question and no further questioning by the public. commissioners, the matter is before you. president goh: we are in deliberations now? >> correct. vice president garcia: madame president, i was the missing commissioner and i watched this on streaming video and i am prepared to participate. president goh: my note was that we continue to allow of vice president garcia to participate. the somebody want to make a motion? vice president garcia: actually, it is not just my vote, it is a motion to vote. the commission of only took a straw vote. president goh: ah, understood. vice president garcia: i beg

your pardon? it appeared, by reading that happened, there were some commissioners to reluctant. commissioner hwang: reluctant to reduce? vice president garcia: to the minimum. and i would say my reasons, how i feel about a reduction, and where we proceed from that would be up to the president. but i watched the streaming video, and i also read the papers. i guess my comment would be that i think it was mr. sanchez had made some comment about the fact that appeared to him, or maybe he had some other evidence beyond the fact that appeared to him, that a business decision was made, and the decision was that the operators of ike's had decided maybe it would be better

off paying the fine and continuing to operate. there seemed to be a little lack of some sort of cooperation, and my interpretation of it was that the seriousness of this and working as well as they could with the department. but the other side of that, according to the papers, 20-40 people worked at this operation. there is ongoing concern for them. at one time, the ultimate landlord had agreed the process to go forward, then changed his mind. my feeling was that to shut down at a viable business until an alternative is found would probably be a serious financial burden, certainly on the operators of ike's as well as the people who work there. i am definitely for a reduction. i guess the discussion, at least from my point of view, is how

much to reduce that, bearing in mind we can only reduce it to a figure of $100 today. i don't think i am prepared to stick with the $250, and i don't know if i am prepared to go as low as $100. commissioner hwang: vice president garcia, i appreciate your summary and refreshing my memory. i was present and i am inclined to reduce it to $100. president goh: i support a reduction as well. is there a motion? vice president garcia: is there no other comment? commissioner peterson: i support a reduction. i think a was at $100, as well. commissioner fung: i don't support a reduction. commissioner hwang: i remember

that. vice president garcia: and what would your reason be, if you don't mind? commissioner fung: 1 was to address the complaints puckering in the neighborhood, and second was after they had been served notice of the regulatory requirement by the department multiple times, nothing occurred. vice president garcia: what would you consider to be, knowing the feelings of at least three other members, what would you consider to be reasonable reduction? or any at all? commissioner fung: i don't think there should be a reduction. vice president garcia: i think there should be a reduction. i think $250, having to do with the economic impact on san francisco and this operation, on the people who work there, i think it was reasonable for them to make the efforts to continue to operate. i don't care for the way they chose to continue to operate, and therefore i would suggest

and maybe move that the finding reduced to $150, rather than $100. president goh: okay, that is fine. i would support 100, 150. >> should we call the roll? >> we have a motion from the vice president to grant this appeal and modify the notice of violation and penalty to $150 for the tunnel they. -- $150 for the product. on that motion -- [roll-call vote] thank you, the vote is 4-1. the appeal is granted and the notice of violation is modified to $150. thank you. >> thank you. calling item number 8, appeal number of the