approved plans, so that will be dealt with in the next few days, and i can add to that complaint to make sure there was insulation put in. when he was talking about extra insulation, i think he was talking about the rules level. i can certainly add that to the complaint we got a couple days ago. you can rest assured there was insulation required. that is something you can rest assured will be looked into. >> the problem is these plans are not very extensive. they are extremely simple.

thermal insulation is not going to give you much acoustic value. >> it would not be required by what i know of. >> can i suppose something? i propose we continue this for one week. the time to do this is now before the elevator is in. if they want to put in insulation now, now is the time to do this relatively inexpensive operation.

once--- was the elevator is in, it is going to be difficult. >> i am going to oppose that, because i do not feel those types of details for him to have not applied for an appeal or take it anywhere else. that is not an issue for this board. i do not think there is any reason to grant it. i am going to oppose it. >> i am disinclined to extend the time for making a decision on this request for similar reasons.

i do feel sympathetic in operating with good faith, but i think a threat has been made to bring legal action, i am sure a very real threat. >> i appreciate your efforts i think we are in the same boat. >> i did not make the motion. >> motions for continuance always take precedence, but i am going to move we not grant a restriction.

-- not grant jurisdiction. >> on that motion, and the ninth jurisdiction. [calling votes. president goh: no. >> the vote is 3-22 to deny jurisdiction. >> we will call item no. 5 which is 11-036. this is for the property and building 146 on treasury island, and it is an appeal of an extension of a tobacco product sales and establishment permit non march, 2011. now this is in regards to case

fd-011-17, and we will start with the appellant. you have seven minutes. >> i am the attorney. the request is for the 25-day extension for the sale of tobacco items. this store was in treasure island. it was opened in 2008, and prior to that, it was on the island. the appellant has had his license for 26 years. he has never suffered one citation, which speaks volumes for his commitment.

he did on one occasion half and an employee -- have and employees of some cigarettes to an undercover police officer -- an employee sell some cigarette to an undercover police officer. i have represented this family for 21 years. this is pro bono. they cannot afford a presentation. two families subsist in the store. the household are the principal employees. they have spent many hours selling items out small profits. the one feature is the coast treasure island as many people from torus countries. people show up with licenses and passports from various countries.

the store has all of the posters, including this one, which you may recognize. they have rather a effective training routine with employees, but the person who did the selling in this incident was the son of the owner who was visiting and did not benefit from the typical training the store has. in 26 years of operation, he has never suffered no citation, and there has never been any citation of a complaint. 36 individuals are in these families, which really make a living from this store. a suspension would be a rather severe economic hardship. we calculated a proposal from the appellant -- i am not sure it is something the board would consider, but he estimates he

earns a profit for 30 days, $2,025. he would much rather pay the money then be suspended, because it is difficult to build that clientele. also, there are tour buses, and it is difficult to plan for it, so that is essentially what i would like to point out. we have had somebody much committed to doing this properly, many years of operating without a single, a rather unfortunate incident involving a son, and the economic hardships that will ensue, and was this is mitigation here. thank you. -- on less this mitigation is here -- unless this mitigation

is heavier debt to. crossers greater -- thank you. >> what are the hours of operation dominant -- operation? a >> 7:00 until 10:00. >> did i read in your breeze that -- your brief that the employee was fired? is that right? >> i do not recall, but i think a more adequate description that he is not an employee. he is the son of one of the owners. he is not an employee. it is an extended family -- yemenis, and they operate these convenience stores gregor often, they have family members pitching in.

>> thank you. >> i actually have a question. you said this is a tourist- heavy population. are there other stores in the vicinity? is the primary clientele tourists? is that the reason it was inserted in the breeze. >> to point out is a rather impressive record to not be cited before, because the id you typically get -- this is posted in liquor stores. people turn up with a dutch license, a passport from bolivia. it is sometimes difficult to look at a month and the date -- it is not to make was a thing about it. it is tuesday and -- it is just

to say -- that is a good point you make. >> i was understanding it differently in terms of its significance. what percentage of the sales come from cigarettes, tobacco? >> 25% to 50%. it is not necessarily universal, but at that location. >> thank you 3 good -- thank you. i am asking you a question. if you were to take a $2,500 and decide that is an average month , and you extend that figure, we

are talking about a $2,000 fine proposed, and i guess if you extend that -- let's assume you make a $1 a pack. that means you're selling 800 packs a day. is that great, or am i wrong about it being only $1 in profits? >> i think this gentleman can insert. -- can answer. he is saying, how many do you think you senll? every three months. that is how they ordered and report, so 800 cartoons her courter, so they are selling 800 cartoons every three months. >> then it would seem more

likely that profit is close to 2000 per quarter rather than in 25 days three good >> 30 days extends by those numbers -- in 25 days. >> 30 days extends by those numbers. >> what would the profit the on a single pack of cigarettes? >> more than $1. >> thank you. >> we can hear from the department now, mr. lee. >> he is here to represent the department, but he was not able to make it today. i would like to say it is clear the appellant sold cigarettes to a minor illegally.

we can suspend his tobacco license for 90 days. we are asking for a 25-day suspension. we ask that the board of holvis that penalty. another thing i want to clarify is that we are just so spending tobacco sales license. it is not a food permit -- we are just suspended tobacco sales license. it is not a food permit. they cannot sell cigarettes. >> is there any public comment on this item? seeing none, we will move into rebuttal. if you have more to add, you have three minutes of rebuttal. >> i just want to make sure everybody understands there was just one sale. they do not do this over a long time to see if there is an

inclination or a habit by the operator to sell. we do it one time, and we site you. the regulations allow up to 90 days, but is discretionary to the board. >> anything further about manama -- anything further? >> we do not know how often this store region where they were 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