within the past few years with the tobacco control program. it is a market. they sell organic produce, juices. they do have alcohol and they sell some tobacco products. this is a major hub in the city. the minor purchased it at --

at the hearing, they failed to offer any explanation and they have not offered a solution. i did not do the in thiinitial investigation but i did go to look at the store and see if there was any changes. i did not see any to date. i mentioned earlier, it is a transportation hub that brings a lot of high schoolers in the area. even today, i was walking into a high school and i asked where they were from. there was a large group from herbert hoover.

the business has not offered any solutions. i request that you support the department's decision and uphold the suspension. >> the 20 day suspension, it seems to have gone to a more lenient place than the 25 day and i understand that it can be up to 90 days on a first offense. >> correct. >> what happened? >> i did not present the case at the directors hearing. i did present some cases today. the director, he took this into consideration. he takes into consideration first-time offenders. he takes it into account whatever information at the time. i was not there that day.

>> this is not hold any information about the record. >> how was dr. --, we have not seen him in a while? >> it is there public comment on this item? seeing none, we will move into rebuttal. if you have anything to say, you have three minutes. >> there is a have a penny, take a penny. it talks about the age limit, what your you should be. when reborn. -- when were you born. a large number of use, it was

talked about that it does not happen every day. some high school is when to go see a movie called the hunger something. if i had that kind of crowd, i would be a very happy person and i would not be here now. the whole school went to see it, 300 or four murdered people. -- or 400 people. i don't know what else to say. we are very careful.

by the time someone uses a credit card, they charge us 50 or 60 cents. i am an ex smoker and i am ready to stop 20 years ago. that is all i have to say. >> thank you. miss young, anything further? >> thank you, commissioners. i would like to reiterate that when i visited the store, i did not see anything that suggests a change in procedures. this area, this is an area that we would hang out a lot when i was in high school. everyone is aware of that.

thank you. >> it is an interesting location. i would assume that it was a good location for a retail store. i had a similar question as to why the department was changing their standard from 25 days to 20 days credit i am sympathetic, however, given the economic climate. not that i would support the sale of cigarettes to minors. i would support a reduction in the penalty.

>> i would agree. i would assume because of the nature of the violation, it seemed like it was an accident or a mistake by a very young clerk. perhaps that factored in a more lenient time. for the suspension. i would be in favor -- and also based on the testimony. i believe that he understands and believes that we should not be selling tobacco to minors. no one, i am sure, supports that. i would be inclined to reduce the time of the suspension.

>> i was just going to comment quickly. normally, when we see a 25-day suspension, there are similar comments. because it went down to 20 are ready, i am disinclined to extend that further. i do think there may be some circumstances that might -- i think the problem i am grappling with, i do not understand why there would be no new changes, as we heard from the department, that would put neon flashing something to whoever is dealing with the customers to ensure that it never happens again.

it does create a hardship. that makes it a little difficult. because the department did go down to 20, i would move to -- i would be inclined to uphold. >> i would be the same. we have the ability to do a 90- day suspension. we did a 20-day. i would support the department's recommendation of a 20-day suspension. >> i am usually the one to argue most strongly for production. if -- reduction. this is not -- this is not the owner who sold the tobacco. i am sympathetic to that. for us to uphold, we have never

known what the economic effect this might have on an operator. with the appellant, he is talking about the fact that the problem -- the product is less than it would be for a candy bar. i am not as sympathetic as they might ordinarily be. i have been encouraging -- please try to weigh what be up -- economic effects on an operator. i would suspect that it is possible that this individual, who was caught selling liquor to a minor, might pay the fine. he is suggesting is not that great, and out of gratitude, for having something -- for having done something i consider to be

more reasonable, i will move that we uphold the department and stick with the 20-day imposition of penalty. to not be able to sell tobacco for 20 days. >> is that on the basis stated? >> thank you for that. >> we have a motion from the president to uphold this 20-day suspension on the basis in the dph order. on that motion -- [roll call vote] thank you. the vote is 3-2. this 20-day suspension is

upheld. >> thank you. we will move back to item 5c. the subject property is on judah street. the appeal is protesting the issuance of a letter of determination to tenderloin housing clinic on november 19, 1997, that find no legal nonconforming use of the property as a tourist hotel has been established. at this hearing, the board failed to -- on april 1, 1998, the board voted to continue the matter to await action by the superior court.

this case was returned from the college your calendar and with the consent of the party. the president has agreed to give each party five minutes and we will start with the request. >> let me explain to people. both sides -- five minutes is more than a person would ordinarily get, not less. " good evening, commissioners. i am the attorney for the request. unlike the prior two cases, this case does present new facts. these are new facts that command the grant of a rehearing after these many years. the main fact that we rely on in requesting a rehearing is the issuance in 2002 of a

certificate of use and a permanent to convert what the city had previously considered to be a residential hotel to a tourist hotel. the permit was issued after application filed by my client from my office. after review by the department of building inspection, and the planning department, the property was approved to be a 20-room tourist hotel. contrary to the arguments made by the determination holder, the permit to convert that was issued does involve a review of the planning code. the permits specifically cannot be issued without a determination that the proposed use complies with the requirements of the planning code. that can be found at section 41.15c of the san francisco administrative code.

specific permits and certificate that was issued to my client in 2002 was subject to both review by the planning commission and by the board of appeals. that right was found in section 41.1 at six of the administrative code. no appeal was filed this board in 2002. the time to file an appeal of this particular certificate is long past. he could have appealed that determination, tenderloin housing clinic could have appealed that determination. the certificate and per cent that was issued in 2002 is now final be determined that was issued in to dozens to is now final. this board needs to offer a rehearing. i think the board's inability to muster a decision shows how difficult this case was for the

boards, how complicated this question was for the board. we think is fairly straightforward. if you recall what occurred, it was a motion made by commissioner to uphold the determination. that motion failed 1-4. when a substantive motion was made, one of the persons who voted against it to uphold voted against the determination to overrule. we had a person who voted no on the same issue in the same case. not sure why that happened. we regret that it happens. that sense some signal to you that this is a troubling case to the board. more importantly, it has been overtaken by events. case has been heavily litigated through numerous court proceedings involving but the city and the tenderloin housing clinic. the case was tried for rape court here in san francisco --

the court -- the case was tried for in court here in san francisco. the result in that case could be viewed as a mixed in terms of penalties that were awarded, the court refused to issue an injunction. that case went up to the appellant court and the appellate court affirmed that decision. that decision is final. the city filed a lawsuit trying to stop the operation of the property as the hotel. raise issues under the planning code, under the hotel ordinance. the city abandoned that lawsuit and chose not to proceed. here we are. in the last 15 months, the superior court has dismissed that lawsuit. we left with the certificate of use and the operation of the property over the last 10 years as a tourist hotel.

there are significant other legal questions that we raised in our brief. at the end of the day, it comes down to a question of fundamental fairness and trying to avoid the manifest injustice. in this particular case, allowing the kinds of inconsistencies that we see incident -- we see in this city decision making to happen. it had the effect of shutting down his business after 35 years. allowing that to happen would send a poor message to our citizens. i ask that you correct that injustice. >> you represented him in the hearing that took place before this board? >> i have represented them since 1996 in every proceeding before the city.

>> to make something clear, when there is an lod, it is not a hearing. someone requests a letter of determination, that is not a hearing. >> correct. the only hearing is when an aggrieved party files an appeal to this body. i suspect the question may go to the question of whether advice was given by the city attorney's office. >> you can go wherever you want to go. i am trying to get somewhere. >> there was no hearing when it was issued. there was a request for information. the information that we obtained determined that the determination was wrong. it was sitting in the planning department's files. we did not even know about it. >> you might be answering the next question. it was going to go towards why

were you on able before this board to demonstrate that this business had been operating as a tourist hotel since 1957? >> the city did not bother to look at its zoning file. this happened in a 30-day period. we were in court with the tenderloin housing clinic. we were defending ourselves against a whole array of claims. by the end of the day, at those records turned up in discovery in the litigation with the city. could we have found it? perhaps i should have been more diligent. the zoning administrator, when he issues a decision that was shut down a small business an intact family, should have looked at is on file. >> you are going beyond the question.

the next question has to do with -- never mind, i will wait. >> i very much appreciate your time. >> i know you like cases that span many years. the certificates of use that was the principal part of your president -- presentation, you cited the section that talks about what is involved in that. in this specific case, it in the issuance of this certificate, what review was there? >> i am not certain exactly how much review occurred. i do know that i would be very surprised if the city attorney's office did not have a look at it. i do not believe whether there

was a planning department review of that determination. >> there is no categories where there are signatures required? >> the application does have a procedure. it should. it should. the code itself requires that a review and requires that approval in order for the permit to issue. i think that is fine on now. this determination is not final, which creates two competing decisions by the city. >> even though this hotel -- hotel, motel, which is it? >> motel. >> it has operated as a motel ever since then, it was never a residential -- >> that is correct. >> some procedure in order to

satisfy some administrative need of the courts or the planning department? >> involves the effort to trump the requirement of the administrative code. the property had to be withdrawn from the residential market. i do not believe you will see any names, no evictions, nobody was displaced from the property when that happens. i do not believe there is any evidence of any substantial residential use. of course, people do live in motels. this property has been operating commercially since day one. there was a mistake made. i mean, the form was sent to the wrong place. it never got returned. when you ever owned the property before my client, the form never got returned to say, no, we are not a residential hotel.

by default, at this property was classified as a residential hotel. we reminded that with our litigation. -- -- we remedied that with our litigation. i hope this board does the right thing and perhaps this inequity. >> not that i want you to lead me where this court might i to go, but with that represent the fact that it was never anything but a tourist hotel? without lead one to think that -- with that lead one to think that it should have been overturned based on manifest injustice? >> it should have been overturned based on the facts in front of the board. four of the commissioners refused to uphold this. >> you did not try to have it

overturned -- >> we are here now doing that. >> when i went back before the board in 1997, that was not the plea? >> the plea was error of law. the facts did not support the determination. that is the only facts in this record. i do not know if you've had a chance to look at it. if you look at the rapiecord, there are no facts of this hotel was -- did this property was ever operated as a residential hotel because it was not. >> there is no record when it was constructed and those permits were issued that said it was being billed as a hotel? >> it is a motel, they are in the records, yes. there are also fell and broke records. -- there are also found a book

records. this is a motel. >> y do you think a the zoning administrator did not take this into the account? >> they were involved with litigation with a property owner. the determination was part of a litigation strategy. the city attorney was prosecuting that litigation and appeared here in front of this board and gave a presentation in an effort to get that determination of put. it was being done as a part of a litigation strategy that failed. >> is the documentation -- did it show up in the rehearing process? >> we did not have any access to it. thank you very much, commissioners. >> i have a question. i am looking at your papers on page 6. it seems to me that commissioner

fung was asking questions, the focus of your view, the the certificate of use, right? >> it qualifies for a rehearing under your specific role. it was a new fact before the board. >> ok. the second paragraph under 0.3, page 6, 2002 certificate postdates 1998 determination. therefore, to the extent they are in conflict, the certificate should be deemed to supersede the determination. is there any authority for that? >> when you have a final administrative decision, not appealed, a permanent trumps and non-final one. that is a straight forward

doctrine. i hope that is correct. that doctrine comes from traditional law. >> i do not see any citations of any law, that is why i am asking you. >> i think it is a very straightforward and -- >> it ise mcman case. i would be happy to get you a citation on that. where there is an appellate process, to challenge something, that process is not taken advantage of by somebody wants to come back later and challenges. there has to be some finality of a permanent. >> the basis, related to the desire bite your client to dig out of the business of right -- by your client she gets out of

the business of renting? >wasn't related to evidence submitted with respect? >> that happened years earlier. >> that was the basis. >> the certificate had to be issued. >> that is what you submitted in support, correct? >> one of several things i submitted. >> i have nothing further for now. >> thank you. >> good evening, commissioners. on behalf of the tenderloin housing clinic. i want to address -- i would like to touch on one matter. if i could have it on the screen. .