the way he was told, the clerk was told that the minor was not 18. he went ahead to sell the cigarette. i think they should take responsibility for the action of their agent. i am going to respectfully ask the court to deny the appeal until probably 25 days have closed. >> commissioners, the matter is submitted. vice president garcia: i am tired of hearing myself might the same argument over and over again. ever since this ceased to be a police operation and became department of public health, i

think department of public health for some reason has blinders on when it comes to the economic effect of the penalties that are assessing on these particular businesses. i think if the facts as presented were accurate, the police department made a mistake, in that the decoy should have said i am not of age. it is not a lie of commission, but a lot of omission. but beyond that, i hope it resonates somewhere in the department of public health but the actual fine is to this particular business. even if we were to have that -- even it were to cut that in half, or a quarter, and decide that based on the number of years this gentleman has been in business, the fact that he has 7-eleven doing their own checks

because he is a franchisee and there remain a partner of his, based upon the fact that he is going to the expense of hiring beverly services inc. in order to be more diligent about not selling tobacco to minors -- granted, the court should have asked for her id. but there are times when they do that and make a mistake. there is an agency issue. it is still very difficult to think somebody deserves a fine of $8,250 when they are very conscientious about trying not to sell tobacco to minors. at $8,250, compared to what happens during the alcohol and beverage control if you say -- if you sell alcohol -- maybe that is not high enough. that could be a reasonable

argument to make. but relative to what goes on in tobacco and the fact that you were supposed to be 21 in order to buy alcohol, relative to the number of deaths that happen on the highway because of alcohol -- granted, there are serious problems with smoking. i do not think there is anybody in the world who thinks it is a wise idea to provide a smoke to the individual under a team. but to find an individual the first time a $250 at the least is totally, totally unreasonable. -- $8,250 at the least it is totally, totally unreasonable. commissioner hwang: i am a bit unsympathetic, given the business is located so close to a school. we have heard different types of cases come forward where clerks

have asked for identification. that is a bare minimum standard for me, and that was not met here. my inclination is to uphold the department. commissioner fung: the question has been asked a number of times, purely on the economic side. it is perhaps an aspect of it, but only one aspect as compared to several of the other issues we looked at in these particular cases. it is interesting, the proportions of these stories. it appears that most of the stories that come in front of us for these particular cases of selling to minors are not

grocery type stores. they deal in these types of products that are a little higher margin. that aside, besides the interest in the economic model presented , it is the fact that this will be the first time the will not support the appellant on smoking case, and purely for the reason that there was no request made. commissioner peterson: initially, reading the brief, i thought 25 days was perhaps an inconsistent penalty for a first-time offender. but as i pointed out in my remarks, i think this is the first time where i have heard a

clerk not ask for the identification. mr. patel seems a very specific -- a very sophisticated business person, as well as 7-eleven, which is a well-healed company. it is unfortunate the franchise agreement is written as such. there is almost something blase about of holding these rules. i would support the proposal of the department. president goh: i do not have anything to add. commissioner peterson: i would move to uphold the department. >> do you want to base that on a finding that the sale to the minor occurred and the court did not ask for identification? >> if you could call the roll on that, please.

>> the motion is from commissioner hwang to uphold the 25 days suspension on the basis the sale was made to a minor and id was not requested. commissioner fung: aye. president goh: aye. vice president garcia: no. commissioner peterson: aye. >> the boat is 4-1. the 25 day suspension is upheld on that basis. >> thank you. call the next item, which is kalesilassie bebresilassie --

gebresilassie versus the municipal transportation agency appealing the denial of a taxicab medallion. the matter was continued so it could be considered when all five board members are present. mr. alexander, you will have three minutes. >> three minutes? madam president, mr. vice president, when we were here last, the question was, if given the opportunity to do so, would we be able to show he complied with the current driving requirement for consecutive years. we did not know it would take this long. when we were here in april, he

was prepared to show that he can and has complied. he has continued to be driving, while we were waiting for this hearing. the mta does not dispute that. he has met the requirement. he is a full time driver in every sense of the world. this has now been pending since 2008. his record is spotless. he has had other apparel people help him. he has complied with every purpose and regulation that has ever been in place. the most fundamental purpose of all regulation -- it is clear the public will be well served if he is admitted to the ranks of medallion holders. conversely, no conceivable public purpose will be served if he is further delayed, denied, or made to produce further proof

that he is a driver, fully qualified to be a medallion holder. all practical purposes, if he is denied, he will not have another chance. one of his last act, when we were here in december -- the taxi commission expressed the m.t.a. would find another way to resolve this. that way is now at hand. the mta does not appear to have serious opposition to the board taking action, reversing the decision, and awarding the medallion. you have the power to do it. i urge you to please do it, because only good can come of it. vice president garcia: what is stipulated to buy a taxi for your client? >> from 2008 through april 2011. vice president garcia: so he has already met 11 even though we

are only -- >> yes. he has made it in spades. he is still out there driving. he had made it by april. vice president garcia: thank you. >> mr. marie? -- murray? >> jarvis murray, taxi services. what mr. alexander has said is basically correct. the mta position is that when he came up for his medallion in 2008, he did not qualify. there has been no evidence he qualified during that time. at that time, he needed to drive three out of four bang years to show he qualified.

-- three of four years to show the qualified. he did not. if the question is whether he qualifies if he were to come up today, as mr. alexander stated, he would qualify. there is no debate he has given since 2008. in to the five and 2006, he did not drive enough hours. in 2007, he was not in the country and did not drive. 2008 was the only year he presented at that time where it could be shown he had badly driven. for the mta, the issue for us -- if you would like to choose that he is eligible as of today, that is one story. at the time of his application, that is a different issue. we are not prepared to unilaterally allow the wait

time. if you choose to do so, the mta will not question that decision. commissioner fung: your last brief did not rehash 2008. you are in concurrence with the appellant that in 2008 he grove -- he drove the requisite number of shifts. >> it was said by the previous hearing officer that it satisfied requirements. commissioner fung: in 2010, the appellant's brief indicates he did not drive the requisite number of shifts, but you indicate he did. you stand by your numbers? >> in 2008? commissioner fung: 2010. >> i believe he had turned into us -- we have him at 890 hours.

we stand by those numbers. commissioner fung: his brief indicates it was less than that. >> i do not recall the numbers mr. alexander dave. commissioner fung: but according to your records, you stand by those numbers. >> correct. >> thank you. is there public comment on this item? seeing none, the matter is submitted. vice president garcia: i personally find it reasonable to apply the current transportation code to this particular case. there were interesting things presented to us in the papers having to do with the original intention of proper k, written by then-supervisor copp.

moseley had to do with trying to eliminate medallions from passing to the hands of people who were not drivers. i think the account has demonstrated he is an actual driver. he is making his living as a taxicab driver and has tried to meet the requirements. were we to apply it to our transportation code, he certainly has met it. that is in terms of the driving requirement. i would personally want the mta to grant it. commissioner fung: it is interesting because this case has dragged on for a while. there was some incentive in order to be able to -- that said, i would support it.

i would also state that as far as i am concerned, for mta purposes, perhaps, in my own thinking, this is not as acceptable to me in the future to put something drag out until someone conforms. commissioner peterson: i do not have anything different to say, except the fact that he is trying to conform in the and to show he has a certain understanding of what is required. that would help my decision. also that we are in safe territory to apply the current transportation. i do not think i am clear on what mta's position is.

>> our position is that when he became eligible for his medallion, he did not qualify to receive one. commissioner hwang: the m.t.a. position is to deny the medallion? your position as the agency would be for this board to apply the standard at the time he applied? >> correct. vice president garcia: that is not exactly what you said the first time you spoke to us, is it? >> i am sorry? you mean today? vice president garcia: just moments ago. >> that is what i said. i said our opinion is that when he became eligible for a medallion in the fall of 2008, when his application on the wait list came up, he was ineligible.

vice president garcia: do not add that were the board to apply the current transportation code, the m.t.a. would not be opposed? >> i did add that. commissioner peterson: thank you for that clarification. commissioner hwang: on principle, i do oppose using the standard of the day, simply because there is an incredible incentive to get driving quickly, when the whole idea of the standard that was implemented prior to the current was to allow full time -- existing full-time driving workforce taxi drivers to get the medallion. now, that is benefit from the privilege to the city. notwithstanding this, i do agree it is the current standard. moving forward, i would be more inclined to allow this,

especially getting clarification that mta does not oppose and would not oppose the application of the current standard. president goh: i do not disagree with that strongly enough to vote against it. i am more confused by the comments about the mta position, but i will not stand in the way in this case. is there a motion? vice president garcia: in all fairness, i think mr. jarvis wants to address the board. president goh: do you have a comment to make in response to my comment about my confusion? >> i want to note that in this particular situation, even though it has dragged on for so long, we are not necessarily opposed, if the application of the current coze is used today.

however, for future reference, we are using that for this particular situation. this is not something we expect on going. we have cleaned up the situation quite a bit. in that vein, because of the various things that have gone on in this matter, we are not necessarily opposing it. however, there was a statement that made it appear we would not oppose it in the future. we would absolutely oppose it in the future. i just wanted to make sure that was clear. president goh: is there a motion? vice president garcia: i would move this board overturn the denial of the application for a medallion, based on grounds that -- go ahead. >> we are overturning the decision. given the various comments by the commissioners, the unique situation of this case vice president garcia: with findings to be written at a later date.

>> we have a motion from the vice president to overrule the denial, at issue this medallion, with the adoption of findings at a later time. on that motion -- commissioner fung: aye. president goh: aye. commissioner peterson: aye. aye. -- commissioner hwang: aye. >> the appeal is granted and the denial is overruled. adoption of findings will be scheduled later on. president goh: we are going commissioner fung: you know what works. >> welcome back to the august 2011 board of appeals. we are: item eight. golden valley neighborhood association, shirley jacobs,

jeffrey lee, and megan chechile protesting the issuance of a permit to alter a building, a revision to exterior patio and submitting planning code 312 notification. the public hearing was held june 22, 2011. it is on for further consideration. the matter was continued to give time to review additional noise negation measures. additional briefing was allowed. we are going to hear first from the permit holder or his attorney. you will have three minutes. >> ok. i did not do it. i am sorry. vice president garcia: before we

go, i think most of these people were not in the room when we had the original swearing in. whether or not you want to go up -- go through that again is up to the director and you. president goh: i think it depends on who -- i am sorry. it depends how many people are intending to speak. maybe we can cross that bridge later. >> there are 59 of us. that is including myself. i do not think any of us were in the room. president goh: why don't we go ahead and do it, if you don't mind. >> if you intend to testify and which the board to give your testimony evidenciary wait, please stand and raise your right hand. do you sell the swear or affirm

the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? >> before you begin, i wanted to give the president an opportunity to put on the record, since she was absent from the hearing previously, that she watched the video. president goh: i did watch the video, the whole thing of the previous hearing. >> go ahead. three minutes. >> i am the operating manager of the brickyard. during our last hearing, we hired an acoustical engineer to conduct additional sound analysis and identify changes of reduced noise. we retained a local acoustical engineering firm that has worked on numerous city projects, including the young museum. on friday, july 8, the current principal conducted sound readings at the brickyard. they confirmed the findings of

the previous entertainment commission reports that the proposed use of the patio conforms to the noise ordinance. mr. salter also shed light on two points mentioned by appellants at the last meeting. specifically, sound readings taken from street level are accurate, because the city of san francisco considers the property line to be a plane extending into space. was levels at the second and third stories would be the same as those measured at street level. the brickyard interior does not act like a trumpet projecting sound out of the front doors. architectural features of the venue, such as sound absorbing wall and ceiling panels, and help control noise buildup within the venue. mr. salter is here today to answer any questions you may have. this is three separate sound readings by experts that confirm the conditions are adequate to maintain the noise level below

the required ordinance. this is a permitted use in the commercial district. we have an open 14 months and the appellants maintain we have done nothing to address their concern. this is not true. we explored many options to address noise concerns. this work resulted in conditions for use of the patio that we volunteered, including closing the patio and doors by 10:00 p.m., limiting use to 12 seats, restricting doors that open, and installing a sound-absorbing awning. none of these conditions were in place when we first opened in 2010. yet the appellants are still using examples from this time to make their case. with these conditions in case come out -- in place, the planning commission unanimously approved this patio in january. the brickyard has taken more measures to address noise than any other businesses in union street. we've tried to work within the existing physical structure because changing it would result in construction costs and cause

further financial strain on a struggling business. noise ordinance compliance is not dependent on physical structure in place. it also requires responsible management. if it were physical structures alone, no venue would be allowed to have windows or doors that open to the street. giving the existing structure with the conditions in place, there will be no violations of the noise ordinance. we are responsible business owners and neighbors. we do not recommend additional changes. in closing, thank you, we do not recommend changes for the physical structure. we request the board denied the appeal and upheld the conditions imposed by the planning commission. vice president garcia: i have a question for your acoustical expert, mr. solomon. there seems to be some dispute about what the base ambient noise level should be. would you tell me what they are

and whether -- but whether what you think they are agrees or disagrees with the entertainment commission? may be shed some light. i intend to as the other side also. why does waa state it very differently? >> the ambient noise measurements -- my name is ethan halter. the measurements of background noise that we took on the evening of july 8 were noted in our report. they were higher than those noted in the wia report, but similar to the ones noted in the entertainment commission report. vice president garcia: is that formulary? it seems as though when i was reading the papers that were you to want to know about ambient noise levels in a given block

there is some more you can go and a chart that would tell you what that is. it is not an independent reading taken by someone such as yourself or someone else. there is an exact, absolute number that exists out there. is that inaccurate, my impression? >> if i may say, there are guidelines to typical background noise levels in a variety of different types of neighborhoods. indeed wia report, they show a graphic that shows everything from rural farm land to right next to train tracks. those could be considered reasonably representative of a typical neighborhoods of that type. there is also the on-site measurements approach, where you actually go to the site in question and conduct measurements of the noise levels that exist there. vice president garcia: so for