director goldstein: good evening, and welcome to the

september 14, 2011, board of appeals. we are joined by president kendall goh. commissioner tanya peterson will be absent this evening. we will be provided with legal advice this evening, and we have the board's legal assistant, the victor -- assisted, -- assistant, victor pacheco. i am supervisor daly -- director goldstein. we have others with us, and i believe that scott sanchez will be joining us momentarily. we also have a representative from the department of public health.

at this time, mr. pacheco, if you could go over the guidelines and go over the swearing in process? secretary pacheco: please turn off all devices and carry on conversations in the hallway. all of representatives, each has seven minutes to present their cases and three minutes for rebuttals. members of the public who are not affiliated with the party set up to three minutes each to address the board and no rebuttal. -- who are not affiliated with the parties have up to three minutes. submit a speaker card or business card to staff when you come up to the lectern. speaker cards and pens are available on the left side of the lectern. the board also recommends -- welcomes your suggestions. there are survey forms on the

left side of the lectern, as well. if you have questions about requesting a re-hearing, please speak to staffed during the break or call the office tomorrow. -- please speak to the staff during the break. this meeting is broadcast live on san francisco government television, sfgtv, cable channel 78, and d b d -- dvd's are available directly from sfgtv. at this time, we will conduct our swearing in process. if you plan to testify and wish to have your testimony given evidentiary weight, please stand, raise your hand, and say "i do" after you have been sworn or affirmed. there are rights pursuant to the

sunshine ordinance. thank you. again, if you intend to speak, please stand and raise your right hand. do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? thank you. director goldstein: thank you. moving to item number one, which is general public comment, is there someone who would like to speak on an item that is not on our agenda this evening? seeing none, commissioner comments and questions. commissioners? and item number three which is the adoption of minutes, those are before you for the august 17, 2011 meeting. commissioner goh: comments, commissioners? i move their adoption. director goldstein: is there any public comment on the minutes?

seeing none, if you could call the roll, please, mr. pacheco? secretary pacheco: commissioner fung, commissioner hwang. those minutes are adopted. director goldstein: item number four is in closed session. this is about litigation, superior court number 10-510365, and before we move to go to closed session, is there any public comment on item number four? ok, seeing none, then we can entertain a motion to move into closed session. commissioner goh: so moved.

director goldstein: ok, if we can take the role -- roll on this. vice president garcia: how long will this take? director goldstein: no more than 20 minutes. vice president garcia: ok. secretary pacheco: the vote is 4-0. the board shall go into closed session. if the public could clear the room? room? thank you. director goldstein: welcome back

to our september 14, 2011, meeting of the board of appeals after returning from a closed session. a vote to disclose or not to disclose the closed session? commissioner goh: i make a vote not to disclose. secretary pacheco: ok, mr. pacheco, if you could have a vote? secretary pacheco: on the motion not to disclose, commissioner peterson, commissioner garcia, commissioner hwang, and commissioner peterson is absent. the vote is 4-0. director goldstein: which i am would you like to call next? -- which item would you like to call next? commissioner goh: item number

six. director goldstein: all right, we will call item no. 6, katherine viranyi and khaled hegazy, on 829 geary street, with the reason of suspension of smoking in enclosed area without an approved exemption from dph. this is on for a hearing today, and we will start with the appellant. please step forward. >> hi, good evening. we are appealing the decision because we are in small business. my name is katherine viranyi.

we are appealing this. we are a small business, unlike some that have restaurants or bars. we do not have anything else to sell. we opened this at the end of december 2008. there was an exemption for places that were prior, opened prior to 2009, december, which was the year. we were not informed that if we would have moved to a commercial building, which we would have done, we would be exempt from all of this. we found out about that in 2010. they sent us a letter, which was already too late for me to ask an exemption. we got the permit and everything in 2008. 2009. no one informed us to move into a commercial space. so this is a small business. we are trying to relocate.

to a smoke shop with an outdoor area, which is very difficult to find, so it is taking us some time. we are not going to be opening a bar with an outdoor space, which is another exemption. so i am just asking for a delay with the suspension. commissioner hwang: before you sit down, when you are asking for a delay, a delay until 1? -- until when? >> may be 30 days. we are still looking for places to move to.

commisoner hwang: a suspension to be effective in 30 days? so when you moved -- >> i am trying to follow all of the rules. when we opened in 2008, we were not prepared -- allowed to sell water, coca-cola, nothing. there is nothing that we have. commissioner hwang: let me just understand. you want to delay the suspension so that in 30 days, you will not be an operating concern? >> so we will be moved, in another location. commissioner hwang: 2 be suspended at another location? i am not following. >> it may take me longer than 30 days. commissioner hwang: i do not understand the reason for the delay. so you would no longer have your shop >> probably. meanwhile, there are other places that are operating. commissioner hwang: thank you. thank you. >> i would just like it to be

fair comment to all of the businesses -- to be fair, to all of the businesses, not being singled out. commissioner hwang: thank you. director goldstein: the department. >> good evening, i am with the san francisco's city attorney's office, and i am here on behalf of the san francisco department of public health. we received a notice of appeal in this matter and were not aware until the owner just spoke with the grounds for the appeal were. -- what the grounds for the appeal were. that they would like to sell tobacco products, that was the

stated reason for the appeal, and it appears now that the owner would like to delay the suspension, and i am just restating it to frame the issue, because she wants additional time to vacate the premises, and it appears that that is do that she is claiming she did not receive notice as to what she should do. i should note that this ordinance has been in effect for some time, dating back to 2010, and it was passed by the board of supervisors on march 16, 2010, approved by the mayor, march 25, 2010, and as part of that legislation, the exception that would be applicable in this case was set forth, and is contained in the health code. this particular piece of legislation receives a lot of attention -- received a lot of

attention by the press and by those that had smoking in their buildings or in their enclosed premises. the owner in this case was made aware. you received a brief that we filed, a notice to comply, setting forth the relevant code sections. she received that back in december 2010, december 15, 2010. that is exhibit a to our motion, and then you can see from our motion that there were a number of opportunities to be heard as to what their issues she had with the process -- whatever issues she had with the process. there was a notice six months later when smoking continues, back on june 18, 2011. there was an intimate conference with dph.

-- there was an abatement conference with dph. another meeting. the owners had an opportunity to explain or to develop whatever their concerns were, the difficulties were, with respect to operating. i understand that the owners in this case would like to be able to have their patrons smoke. however, the health code expressly prohibits that. what complicates matters further, the smoking is taking place in a mixed use building. there is residential space immediately above the premises, and there are a number of tenants in that building that have complained to the department of public health regarding second-hand smoke, and they are present. there are representatives of dph

that can speak to specific complaints, but it is my understanding that residents of the way up to the 10th floor have talked about the secondhand smoke. commissioner fung: are we listening for a case for a continuance? we did not approach this as a case, right? director goldstein: we did. we just called it out of order. commissioner fung: we did proved so we are hearing it? -- we did prove -- we did? so we are hearing it? >> there are a number of occupants who are here from the building who want to speak and also representatives from dph, and the inspector there has been in contact with the tenants -- and the inspector who has been in contact with the tenants. i am willing to step away and

have the tenants or representatives from dph address the questions. commissioner goh: any questions, commissioners? commissioner fung: no. >> or in the alternative, it appears that the owner in this case is not disputing that the business is in violation of the health code. in this case, we have requested a 30-day suspension. i do not believe that there has been good cause established to request a continuance or to request that the suspension be held in abeyance. we were not provided with any specific time frame or specific things that necessarily needed to be done for her to facilitate her plan, and in light of the

vagueness that has been offered, i would respectfully request that the board go ahead and a firm the suspension that dph has imposed. director goldstein: thank you. ok, we can take public comment. vice president garcia: i am sorry, but i feel poibly the same way that commissioner fung does. initially, this was taken out of order for someone to make a case about why they wanted a continuance, so unless i hear from the appellant that she feels she's sufficiently covered the ground to make her case, it appears you are not going to get a continuance. why this suspension should not be upheld? or are you making a case for why

this should be delayed? you have to come up here. >> i would have just like the delay, -- liked the delay. vice president garcia: i asked a question. when you spoke initially, did you make a case for a continuance or a case for why you did not want the suspension to be upheld? ok, can we vote on that? and then we get to hear her case? i do not know if she was given a specific opportunity -- sufficient opportunity. commissioner hwang: i met with her in the office yesterday, and she was not clear if she wanted to come and argue her case. i asked her to let me know in advance what she wanted to do, and i also spoke with the

president about taking this case out of order in order to facilitate the department of public health representatives and members of the public so they could leave the meeting quickly instead of sitting through the other items, so the time she came up to the podium, it really was not clear which of those two things she wanted to do, and then when she spoke, it arguing her case and not asking for a continuance. vice president garcia: i do not want to be argumentative. as you know, manner director, -- maddon director, this was stated that this was going to be held out of order -- as you know, madam director. the possibility of a continuance. not that we would grant a continuance. i am just worried that a case, regardless of how strong it is, that the appellant possibly thought that she made an argument for a continuance and

not an argument for a suspension, and i want to give her more time to do that. commissioner goh: well, i heard an argument, and the commissioners heard an argument for a continuance, and just to clarify that the appellant was asking for a continuance, so given that, i think we should hear public comment on the issue of continuance and then take a vote. commissioner hwang: i would just like to ask the appellant, do you know what a continuance is? what does that mean? >> being opened for business. commissioner hwang: a " continuance" is that you do not want to have the hearing today but that you want to come back in weeks and have been heard then. that is what we mean by "continuance," and