either operate pursuant to the original conditions of approval or limitation on the hours of operation and also the limitation -- they have not done so. they can also file a conditional use authorization to seek changes to the previous conditional use authorization. this has -- has been continued twice already but those continuances were stipulated in an agreement we had with the project sponsor and the appellant. they would file a conditional use authorization. they have not done so but they have the ability to do that. typically, it takes six months to go through that process. had they responded earlier, they could have been operating as it would like to. they have had that ability. we have not been keeping them from filing for the conditional use authorization to operate as they see fit.

the appellant raised issues about the 2005 stating that somehow that supersedes the previous conditional use authorization. that is not the case. they did not apply for it. any changes to the previous conditions of approval. there were not granted any changes to this previous conditions. they argued they had -- i would appreciate their argument. i understand the current owner'' frustration at finding this out. this was not brought to our attention until last year, until december of last year. the had been operating in violation of their conditions of approval. had this brought to our attention when there were operating we would have initiated enforcement action for failure to comply with conditions of approval. we wanted to address this when this was referred. we perspired -- responded with what the requirements were in

the entertainment commission did not attach those to the authorization. with that, i will be available for any questions the board may have. >> would you look at appellant exhibit c. and explain, it is the second to last page. it is the last page. no. 8 that was referred to earlier. where does appear as though some reference was made to amplified music even though amplified music is not to be allowed? >> that is a standard condition of approval that we use, conditional use authorizations. it is unfortunate it is not here but it does not authorize a change in the type of entertainment they can have their in terms of having amplified music. there is no mention anywhere in this motion that -- that is one

argument. the second is the hours of operation. at this point here, it does not say anything about hours of operation. it is the standard condition of approval. >> we will go on to other things. did this have to do with not going above the five visible level, amplified or on amplified? >> there is that noise ordinance. they cannot exceed the requirements of the noise ordinance. this should have said not amplified. it did not. it does not change the previous authorization. >> i looked carefully through the papers and could find nothing that even though it was referenced -- i forget the delmon's name. -- gentlemean's name. i will ask them when they're

back up here. what about the percentage of floor space that should be devoted for a bar and for food? it has been alleged the food at best is prepackaged food. they're not in compliance with that. >> that is a separate issue independent of this matter. they have been subject to both state and local laws. at least 51% of proceeds have to be from food, not from alcohol. once you get beyond the 51%, you are no longer in -- a qualified eating place. you have to have 51% from food. we do not want to seem more than 49% coming from alcohol. >> the last issue has to do with -- but gollothttgehe issue.

>> the fact is the conditions of approval from the pot -- planning commission motion remain in full force and effect. they cannot be superseded by a clerical error. the permit that was properly issued had these conditions of approval. >> would you grant that his actions were somewhat misleading? >> whose actions? >> paul. >> i think he was misinformed

when he responded saying it did not appear that there was any entertainment authorization for the property. they look like there had been passed entertainment use. there is no reference to hours of operation that made reference to the planning commission motion that talked about entertainment but there is no mention in that e-mail about hours of operation. >> his lack of response would be taken as conceding the point? >> maybe she did have the facts. >> which should have happened in 2005? -- what should have happened in 2005? >> i would say that two things should have happened. we would -- should have been much more explicit in the conditional use authorization in referencing the past case. that is something we should have done.

the second thing would have been to given the appropriate response, the correct response to the entertainment commission, informing them of both conditional use authorizations which we did do in 2011. we did inform them of the limitation on the hours of operation. >> we can take public comment on the item before we start. i would like to see a show of hands on how many intend to testify on this item? >> before we do that, a lot of you might be satisfied for us appear to know how many people are in favor of tupelo and its issue so we can get account of that. standup, if you would prefer it is pretty much the room. -- stand up. it is pretty much the room.

hopefully everyone understands what the issue is. you can tot-lot anything you want. it is a rather narrow issue -- you can talk about anything you want. it is a rather narrow issue. one motion superseded another motion. whether or not there was actual authorization and to be able to point to that, it would have allowed tupelo to have hours of operation b or c. because there are so many people in the room, i am giving two minutes each. >> what i would like you to do, if you would please line up against the far wall for us and that will help the process move more quickly. whoever wants to speak first can step up to the microphone. we would ask to help us in the preparation of our minutes that you provide us with a card if you care to identify yourself. you can do that at that time. if you have not done that, you can do that afterward. you have two minutes. >> thank you.

i am a song writer and artist, performer in the city since i moved here over 25 years ago. spent 48 years performing music, writing and learning. i have played at the venue numerous times. on grant street. i believe a music venue is very important. especially in a concentrated area where there are several. i think it is of huge importance to not only the artists in this city but to the tourists who come and come to a collective area to find so many diverse artists and performers. i think knowing teague for as

many years as i have a lot who is a great artist himself, the city needs more places to play. more places for people to earn a living. not only the artist but the people he would need to employ to handle all little more revenue. i think change is great. i think one thing that should change is the stipulations that stop people from employing more people. i think that is really key right now. thank you for your time. i am the ideal starving artist. i would like to have a little more revenue so i am not laid on my ranch. let's get this going. thank you. vice president hwang: thank you, next speaker.

>> good afternoon. i am a san francisco resident and a patron of tupelo in support of this project. i wanted to address the items that were presented concerning the fact that the findings were not available in the 2005 conditional use authorization allowing for the proposed change use. they had findings from the planning code that is incorrect printed it is the requirement, the standard is 303c5b. to be operated in a way to minimize noise. it is fact, not findings. those facts are available in the record. the facts that condition no. 8 to allow for amplified music, it had to. they had to go and get testing. they're required to get testing. they did that. the had the test, they submitted

the testing to the city. the city argued that i took that test in. they also are required to have facts present in the record that they are mitigating any disruption -- to minimize disruption with respect to noise and crowd control. the other element is crowd control. the noise is taken care of by condition 8. if you go into the exhibit f on page two, #5 from the minutes of the former cu hearing, the address the issue of crime control. this is from the ca. the critics sponsor shall not establish any waiting area outside the -- the shot establish any waiting area outside the venue. this whole chain of events was allowed to happen all these

years based on these facts. everybody involved from the planning department, the planning commission, the entertainment commission, everyone route -- relied on this. >> that might have been the second. >> thank you. vice president hwang: thank you. next speaker. quex good afternoon. i am a san francisco resident and i am a business partner as at the san francisco based investment banking firm. >> are you saying that you are part owner? >> not of the bar but i am a business partner of two of the principles. >> unrelated trade you have no financial interest? >> i have no financial interest. we're the co-founders of the san francisco-based investment

banking firm. i have also known gene kiernan. i would like to testify to their character. they worked as stellar members of the business community in san francisco for many years and specifically in the highly regulated environment of investment banking which -- where they demonstrated an ability to stay within the confines of that highly regulated industry. equally as important is the genesis of tupelo as i have witnessed was to go out and create a reputable and respectable establishment that was a positive addition to the north beach area and music was at the center of its fame. a key part of that concept in the business plan was to provide a venue to showcase local talent. i am sure that the three of them as i saw them put this concept together of creating tupelo would not have invested all the time in capital into the bar had

music not been a central part of what they're trying to establish -- accomplish with the new established. i recoiled at the concept of the city can go back and attempt to reach in the files six years ago and struck the current business of assets they had purchased as part of their initial agreement. i hope the city will stand behind them as they attempt to upgrade what was a venue of -- that was not the quality that they had built and add value to the north beach neighborhood. thank you. vice president hwang: thank you. please step forward. >> i am a business broker in san francisco for 22 years. i represented mojito's in the started this business. i sent a letter. i rely and going through the process when i represent the buyer and seller to gather all the correct information when someone is making a decision in buying a business. that is getting the proper

permits and licenses. when the business has the proper permits and licenses, we realize we rely-- we rely but the city is issuing permits. that it will make a decision to make a substantial business, create jobs, taxes, to run a business. the city did issue these licenses and permits. we relied on this information that was issued from the city. it is not an easy process to go through this to get a permit. if you even look at this situation, the first thing they do is you fill out an abc application with the planned operation and they had a planned operation they submit. there will have live music, patron dancing, amplified music. it will be open till 2:00 a.m. you bring this to planning. the planner fills about and gives his name and information

and to go to the abc and say this is the planned operation. you start the cu process. if you look at the intermission, the zoning administrator was very much involved in this process. he apologized during the hearing when he read the conditions to -- at the hearing. he apologized to the person in charge because they had a heated discussion and he apologized because he thought he was inappropriate. he was involved in discussions and involved in negotiations. thereafter a month later, he sent out a letter basically clarifying the approval and conditions. and then they came up three months later and they used this exact same arguments that they're doing today when they were issuing the entertainment permit. his argument was made at that time in 2005 and the license was issued.

it is clearly obvious that the zoning administrator at the time had this argument and made the decision and how is has operated for five or six years. thank you for your time. vice president hwang: thank you. next speaker, please. >> hi, folks. i share a business with teague in the city. i understand the frustration they must feel, the efforts to get the official approval from the entertainment commission only to have rescinded by planning dreadful efforts and availability -- the -- rescinded by planning. i think it is a fantastic

venue. it has been known to provide good music. amplified or life or by -- live or by dj. the new -- they expected the venue would provide them with a profit. thank you. >> i have been a north beach resident for seven years and i am employed at tupelo as a bartender. >> as an employee of the company, you are not allowed to speak under this part of the testimony. just to be clear, i am sorry for interrupting fox three people who are employees -- and trucking folks. people who are employees -- otherwise, general members of the public who are not affiliated with the party can speak now.

next speaker, please. >> hello. i am a musician. a long time musician since 1999. i have played at waheed del -- mojito many times and i have eaten there many times. i was a little concerned about something written down about packaged food. yeah, no. they had some really good food there. tupelo has awesome food there, too. you should try the catfish and the po' boy, just sing that. as a musician i played there many times at various times of the day. during the afternoon and evening and up until 1 am or what ever, 1:30 a.m. it is a great, great and

important venue at north beach dreadnought just because of the wonderful and awesome food they sell and offer credit provides entertainment and life and art and creativity to the neighborhood and it allows people like myself and like teague to have a place to express themselves and to allow people to come and be part of san francisco. having a lot of venue is being closed and shut down for various reasons just because none of them seem to be around the fact that people dislike having entertainment is very sad. i for one am looking forward to playing at tupelo. because yes, the fact is if the

supplement my income as well and i like to be creative and still eats improve. thank you. vice president hwang: thank you. next speaker, please. >> hello. i am a mother and a property owner at bob kaufman alley, seven steps away from grand ave. we purchased our home in 2001. we fell in love with north beach because of the culture and history and the book p.m. -- bohemian-ness of the city. it was not until we bought our house, 2004 or 2003, our favorite noises from the savoy

was shut down. grant avenue was not the same after. businesses shut down. there was no -- the lower part of grant, the flavor and the field -- feeling of my neighborhood was not alive anymore. i come here today because as a mother and the culture and why i moved into the neighborhood and bought a home is too short of our special part of san francisco and the flavor, i do not want the flavor to go away. the sounds and the feeling of that grand avenue street and all the vitality it brings. for business owners, too, i strongly recommend the music still live. now at the savoy the only play music on sundays. that is quite sad. thank you for your time. vice president hwang: thank you.

>> i have no vested interest. i have lived 50 years in the city. i love live music. it is getting harder and harder to find it. i know plenty of musicians and none of them have any money to speak of. i have known him for 10 years. he is a stand-up guy. he gave up a very lucrative position at a sports bar. he has great food, the burgers are the best. i manage an apartment building. one thing that seems clear, all of the people who want to live in san francisco, they are born in the suburbs. they want entertainment.

they did not come here to relax. you can go to monterey and relax. north beach has always been the heart and soul of the city. one by one, those places are going by the wayside. i realize that it is not lucrative. the folks that want to provide music for us. i see no good reason -- by the way, this place is amplified. it is not allowed. you do not have to struggle to be heard. -- it is not loud. you do not have to struggle to be heard. the fact that it will be amplified does not mean that it will be glaring. -- blaring. i do not see any good reason to deny the appeal. vice president hwang: next

speaker, please. >> i am a resident of san francisco. you have heard a couple of people talk about the culture of the area. there is a lot -- the area has changed a lot. now we have strip bars. all the things on broadway, dilapidated. nothing is coming back. there is no class anymore. they came in to try to put in established -- a real establishment with some local talent. that is what this is all about. we went through the character of to these people are and how good they run a business. at the entertainment hearing in october. i do not understand why we are coming back to do this again. they should be helping the city

grow. thank you. vice president hwang: thank you, next speaker, please. >> thank you for your time. my name is kelly edwards. i am a 17-year resident of san francisco and have been doing parties and events for a long time. i have been to mosquitos many times. i have been there many times. it warms my heart when i think about tong sutupelos. i have to say, they have always been family oriented.

i would like to see this continue in san francisco. vice president hwang: thank you, next speaker. >> hello. i am a chef in the city. i have been in the city for eight years. i moved here from monterey because it was too relaxing. i moved here because, you know, but be, great music -- upbeat, great music, great food. four years ago or so when the bubble burst, business was down 15%. it resulted in a lot of lay

offs. even though we are slowly recovering, there are thousands of unemployed. by denying tupelo full license to operate, you are denying the creation of more jobs. thank you. vice president hwang: thank you, next speaker. >> i am the executive director of the california music and culture association. we are representing a broad coalition of individuals and businesses. this issue seems to be about fairness. it appears to be an arbitrary technicality is used to provoke an entertainment license from tupelo. it makes it look like they are being targeted. our membership and all the small business owners in san francisco need to have some sort of certainty that all r a