>> good evening. welcome to the june 22 meeting of the board. we can do some of our routine and housekeeping items. the presiding officer is michael garcia. chris long will be present. kendall goh will be absent. at the control is the board's assistant. i am cynthia goldstein. you wilscott sanches is here. the building inspector is here and dr. johnson is here

representing the board of health. if you can go over the guidelines and conduct the swearing-in process. >> the board requests you turn off all funds, beepers, and pages of that will not disturb the proceedings. please carry on conversations in the hallway. the rules of presentations are as follows. each have seven minutes to present their cases and three minutes for a bottle. people affiliated with these parties must include their comments within the seven - oare-minute period. to assist the board in the accurate preparation of minutes, members of the public who wish to speak are asked but not required to submit a speaker card or business card to board staff when you come up to the lectern. speaker cards and pans are available on the left side of the podium.

the board welcomes your comments and suggestions. there are customer satisfaction survey forms on the left side of the podium as well. if you have questions or requesting a rehearing or rules or hearing schedules, please speak to board staff after the break or after the meeting. the board office is located at 1615 mission street, room 304. this meeting is broadcast live on san francisco government television, cable channel 78, and dvds are available for purchase. thank you for your attention. we will conduct are swearing in process. if you intend to testify, please stand and raise your right hand and say, i do after you have been sworn in. or firm. -- or affirm. do you swear that the

testimony will give will be nothing but the truth and nothing but the truth? thank you. >> we have won high skipping item -- one housekeeping item. a protest appeal at 3355 pacific ave. the parties have requested this matter be rescheduled to allow the more time to continue with discussions. they have requested a new hearing date of july 13 and with the motion, we can move it to that date. >> does that say you, madam director? >> it seems the board very well. >> so moved. do we need to hear from any parties? >> we need to take some comment if there is any but we do not heat -- need to hear. is there public comment? we can call the roll. >> on that motion to rescheduled to july 13,

commissioner fung. >> aye. >> the matter is rescheduled to july 13. >> thinking. moving to item one. public comment. is there any member of the public would like to speak on an item that is not on today's calendar? seeing none, we will move to item two. commissioner comments and questions. commissioners? >we will move to item three. the adoption of minutes. for consideration before this evening on the board meeting minutes of june 8, 2011. >> if there is no comment, move to adopt the minutes as written. >> thank you. is there any public comment? seeing none, if you could call roll. >> on that motion from the vice-

president to adopt the minutes, commissioner fung. >> aye. >> commissioner peterson. >> aye. >> hosemann it's are adopted. >> we will move into the addendum items. a rehearing request. the subject property is to 49 cour -- 249 corturtland avenue. we will start with the request yotor. max was not here when this was originally held. i did watch it on streaming video so i am able to

participate. >> thank you. >> that goes also for the next item. >> i would like to note for the record that i am a resident of bernal heights and i have been at the palin's store. in no way will that enacted -- impact my ability to view this impartially. >> i am the manager at 249 courtland. i appeal the suspension of tobacco issue. the for granted my appeal as you know and i was still punished with a 20 - da-day suspension. the stipulation is that when the

board -- the board shows a summary in writing. the board did not provide me with a summary required by the charter is, nor was the summer provided in the minutes of the may 18, 2011 appeal. this was adopted by the board. i contacted the board of appeals staff and was informed i would not receive the summary of the decision until after the time had elapsed for the filing of an appeal. this is a manifest of injustice. i submit this practice not only violates the charter but will require me to file for a rehearing and pay one had a $50 to protect my time under the board rules. although the board granted my appeal not to uphold the findings of the department of public health in this matter, i must appeal the imposition of a 20 day suspension of the permit

for the sale of tobacco. to uphold the appeal that penalizes the store is an injustice. the testimony provided at my appeal was false and misleading. i only recently learned that in actuality the department has performed any training and the revisions in this item. of the 2011 new driver's license. if the intent is to stop sales to minors, why did they not inform the retailers of the changes as we can enforce the law? please note that the city attorney provided the board with

a document that is not currently the driver's license i am referring to. i also attempted when i came here on my last bill to provide the board -- although this is acceptable practice outlined in the board rules, the president did not allow me to give this to the board. again finding some determinations -- some of the findings are not factual. the department of public health does not have authority to determine for me or anyone else that i violated the penal code. that is a matter for the court and not the department of public health. they are not a court of law. i have a little more, i am sorry. may i continue? >> does any commissioner have a question? no, it may not. >> ok.

>> thank you. >> thank you. dr. ojo. you have three minutes. >> thank you. i do not think the appellant has provided any new information that will warrant a rehearing. i do not think that the court nor the san francisco health department has done anything to accept the issue that we have done anything badly unfair. the laws are very specific. the law requires they sp-- suspended for 25 days. the board was kind enough to reduce it to 20 days. the appellant also assumed that

we have -- the health department has the legal responsibility to train the operators. we do not. however, the tobacco for project sent out -- sends out a package every year to permit holders in four different languages. in arabic, english, spanish, and chinese. advising them on how to comply with the law. the issue of the fake i.d. is not within the purview of the san francisco health department. it is a state issued id and there is no city or state law demanding dph to educate or

anybody what to provide such changes on state issued licenses to any of the retailers. i have a document obtained this afternoon as i was about to come here that shows the sign i was talking about. it says -- it is a document that we send out, the tobacco for a project sends out every year advising permit holders on how to comply. that is the english version. that is the arabic version. this is the chinese version. and this is the spanish version. i was happy they also sent out

the new california id. i think we have done everything within our power and i respectfully ask the board denied the rehearing and uphold the previous suspension time. thank you. >> thank you. >> is there any public comment on this item? >> would you swear her in before she testifies? >> she chose not to stand and be sworn in. >> to you solemnly swear or affirm that the testimony will -- will give will be the truth and nothing but the whole truth? thank you. >> i want to confirm that you are not a paid adviser. >> that is correct. i am not a paid adviser. i have been a resident since 1979 and i am a mother. i know that the store owner as a

-- i know the store owner as an honor for 20 years. >> there were -- the department of public health is taking to inform retailers about law. i wrote the department of public health and ask for that information. i believe that the information that dr. ojo presented was not presented to retailers in april 2010 because i have a copy of that document and it does not have the current license. the next mailing was not until april 2011 and that was four months after the matter before you was that issue. i am appalled that the department of public health reports to this board and to the public that it aggressively

wants to do something about the sales of tobacco to minors but it does not take any responsibility specific to this other than what california gives them grants to do to form businesses and the reason they do not send it out before april is that is what the california it cracked according to representatives have told me. -- california grant according to representatives have told me. as you know, i spoke to issues previous at other meetings. the department of public health does not have jurisdiction to determine that an individual violated the penal code. it has only jurisdiction to determine whether there is conduct that could have violated and as you know, there are attorneys on the board. there is an intent and a willfulness that is included within the penal code for misdemeanors and felonies. the department also does not

have a practice of having proper delegation of authority for something that is assigned to the director. the director is to hold a public hearing and there is no delegation of authority that i have been able to glean that should occur when it is a charter requirement. there is little respect for the law from my perspective and humble opinion in the department of public health and i am taken aback that the presentation would be presented as it was current and not from april 2011. this is an incident that occurred in january 2011. i do not know why this misrepresentation occurred. thank you. >> thank you. is there any other public comment? seeing none, commissioners, the matter is submitted.

>> i am happy to start first. i think she raises interesting points but it ignores the basic law here that selling cigarettes to a minor is illegal for 100 years and here we're being asked to assess whether there are new or extraordinary circumstances and this is the second time we have for this matter. in this case, i struggled last time with the acceptance of a new identification that look strange to her but she took it anyway. it was that of a minor. it was fair for us to come down to 20 days. it could be up to 90 days. i know you have children. this is a lot and we're not to sell cigarettes to minors. i am comfortable with the decision we have in the previous hearing.

>> i also find the information that was provided is procedural in nature and i see no new information that represents a manifest injustice. >> i have nothing to add at all. it seems as though when i watch this, the arguments i heard that when i went back to brick -- they are the arguments i heard when i went back to review this case. there is one question i would have. before i ask the question, i would make the see how in any w our not having done so would represent that this injustice and the question is, there is a requirement that this board

provide findings when we overturn but i do not know about how well -- how that would have affected it. i fail to see how that would be prejudicial to the appellant. do you or the city attorney have any comment? >> there has been no decision and a decision would not be administered until this meeting is considered undecided. >> is there a requirement that would provide findings or is there a practice? >> there is language in the charter that says when the border returns, there should be findings made. it does not require separate written findings adopted at a separate time. there are many occasions when we will add -- the board will add language to the motion to

clarify the basis for its decision which is findings we include in the decisions we issue. we kept this that 25 days. there would be no need for findings. >> that is right. >> also having stated their reasons, they -- the commissioners having stated reasons, that does not constitute implicit findings? >> each individual commissioner's reasoning would not necessarily represent the reasoning of the full board. that is why it is done through a clarification and. >> haven't had that discussion, i still feel the same way. i do not think anything was presented that would cause us to grant a rehearing and i would so move. >> no, you may not. >> i have no further comments.

>> if some commissioner wants to entertain further comments, i do not want to unilaterally decide that. >> shall we call the roll? >> on that motion to deny this rehearing request. on that motion, commissioner fung. >> commissioner fung: no. >> another hearing request. 1524 silver avenue. the board received a letter, requesting rehearing of the appeal. doing business as white palace liquor. decided on may 18, 2011. the board voted to deny the appeal and uphold the 25-day

suspension. we will start with the requestor. >> i appealed the 25-day suspension issued. the board denied my appeal and i am here to request a rehearing because of findings and determinations of the department of public health are not factual. they do not have the authority to determine that i or anyone else to violate that the penal code. that is a matter for the courts. i have acquired information that i did not have the time of the hearing. i believe this information would impact the board's decision and the board granted appeals of others at the time. i appealed the suspension of the tobacco sales issued by the department of public health providing the penal code and the sales of tobacco to minors.

i do not to sell to minors, we do not do that. the board denied might appeal but granted appeals to others and this is a n inequity. testimony by the department of public health was misleading or false. they take affirmative efforts to educate on the laws pertaining to the sales of tobacco. i learned that the department has not performed any tradi ining. they make efforts to inform retailers in the [unintelligible] the intent is to stop sales to minors. why did i not be informed to

stop changes in the id's so we can enforce the laws and train our employees for the new identification's that we're having hard times with? the city attorney provided the board with a document that is not currently issued driver's license. this is what i was sen. -- sent. to find the determination, the public health department does not have the authority to determine whether i have violated the code. that is a matter for the courts. there is no evidence to support the finding that i sold tobacco to minors. there is no evidence that we willfully violated the code. there is not -- this was provided for you. the inspector did not have direct knowledge of what occurred nor were they present at the time of the incident and

did not complete the police report. the police report provided to you is not accurate, either because the officer was not present. [bell] ok. he said he had personal knowledge. >> your time is up. >> this is not enough time. this is not enough time for somebody's livelihood. the respect for myself, i have been having a hard time sleeping the past month because i have to face these people. these are children i have known since they were babies. these are parents and uncles and grandparents. this is not right. they are showing that i did this and there's a big sign posted. i am not doing this. these are kids coming in to my place, they call me uncle ray. i cannot face these children or these parents.

i appreciate what the department is doing. in fit -- enforce the law as much as i can and i have never been cited. there is no way i would do this. i have children of my own. i could not sleep for the past week. this is affecting mentally. >> i appreciate -- i am sympathetic. we have rules that we have to abide by and we're asking you to please abide by our rules. >> absolutely. ok. >> dr. ojo. >> thank you. >> commissioners, representing the san francisco health department. i do not think that the board nor the san francisco health department has done anything

that is plainly unfair in terms of the judgment that was rendered on may 18, 2011 when the department -- the permit to operate was suspended for 25 days. i want to emphasize the state law does not remand the department to provide training or information or provide any mailing to tobacco retailers but the tobacco free jot -- projected to that. it is the responsibility of the tobacco retailers to ensure that they do not sell tobacco to minors. none of the cases we have had tonight show that and they denied that they did sell

tobacco. the judgment that was rendered is accurate. i have seen the steps that the department of public health steps to make sure they complied with below is accurate and i it ask the board to deny the request for hearing. thank you, commissioners. >> thank you. is there any public comment on this item? >> i am barbara thompson, i was sworn in previously. i do not have any business relationship with mr. yassir, i am familiar with him. i hope this board will take a look at what i have seen