>> welcome to the meeting of the san francisco board of appeals. the presiding officer this evening is michael garcia. joining him is -- to my left is the deputy city attorney. she will provide the board with any legal advice this evening. i am the board's executive director. we are joined this evening by representatives from the city departments to have cases before us. they are here representing the environmental help regulatory program of the department of public health. at this time, if you would please go over the meeting

guidelines. >> the board request that you turn off all cell phones and pagers. please carry on conversations in the hallway. the board's rules of presentation are as follows. appellants, permit holders, and department representatives have seven minutes to present their cases and three minutes for rebuttal. people affiliated with these parties must include their comments within the seven or three-minute periods. members of the public not affiliated with the party have up to three minutes each to address the board. the number of bottles. to assist the board any accurate preparations of minutes, members of the public who wish to speak our past, but not required, to submit a speaker cards when you come up to the podium. speaker cards 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. if you have questions please speak to board staff during a break or after the meeting. the board of this is located at 1650 mission st., room 0304. this meeting is broadcast live on san francisco and government television. dvd's are available directly from sfgtv. we will conduct our swearing in process. if you intend to testify at any of tonight's hearings and wish to have the board did your testimony evidence here wait, please stand and raise your right hand. please note that any member of the public may speak without taking this oath.

thank you. do you solemnly swear the testimony you're about to give will be the truth, the whole truth, and nothing but the truth? thank you. >> thank you. we have one housekeeping item that has to do with item number seven. that appeal has been withdrawn and will not be heard this evening. we will take public comments from anyone who wishes to speak on an item that is not on tonight's calendar. please step forward. >> good evening, members of the board. i stood in front of you on january 18 when a neighbor

appealed the construction project begun at our building. that night, we were all told that the back sunroom porches would not be reconstructed or remodeled. the staircase would be carried out swiftly. plans were unfurled at this very podium that had highlighted remarks stating that no work was to be done to existing porches. each permit also denied the demolition or remodel of these enclosed spaces. on february 2nd, i arrived home after work and the sun porch as had been totally demolished. when i opened my back door, that it was a 2.5-story drop without warning. complaints were made. fire inspectors came to the building and demanded a timeline.

fire inspectors and tenants were told the same over and over, the stores will be completed in a week or two. -- the stairs will be completed in a week or two. he pointed out that the owners of the building and their attorney and property manager and architect for in the process of potentially it lying about what the board of appeals gave him permission to do. he misrepresented the is built condition. it is a tactic used to build a structure that would otherwise be on permeable. e were denied the a. we brought the two issues, onea. was prior offenses and attempts at constructive eviction. we're requesting that you take

preemptive action. the second, i thought, was more actionable. mr. epstein was asked questions regarding the adult construction. they promised -- as built construction. when questioned about the windows and the permits to build, they said it was not necessary to have these permits. they're not able to rebuild these rooms. the permit for bade them to do so. what happened? these rooms were demolished in less than four hours. we were told by some construction men that they plan to reconstruct windowless rooms, void of natural light. thank you for your time. >> thank you.

>> is there any other general public comment? we will move on to item number two. it is commissioner comments and questions. commissioners? >> i am going to be absent on may 9. business obligations. >> i will also be gone on may 9. not with commissioner hwang. >> my next meeting will be my last meeting. i will be submitting my letter of resignation and it is possible that that might happen before i get to come here again. hopefully, it will happen next time we meet. thank you. >> thank you. any public comment on this item? we will move on to item number

three, the adoption of minutes. considers -- coaxing no comments, i move that we adopt -- >> si no comments, i move that we adopt. >> any public comment on the minutes? call the roll, please. >> on the motion to adopt the april 18 minutes -- the votes is 4-0. the minutes are adopted. >> thank you. we will move on to item number four -- 4a, a jurisdiction

request. refusal to accept color scheme permit application by sfmta division of taxis and accessible services. we will start with the request your. mr. alexander, you have three minutes. >> we filed this as a regular appeal because we thought he was denied a permanent. -- permit. this appeal also shed light on what is a dangerous practice of the mta adopting an in regulations. a medallion is a permit that is given to operators of motor vehicles for hire.

all medallions or permits. not all permits are medallions, however. the mta gets those confused. a color scheme permanent is something, for 30 years, the holder of the medallion could apply for if you wanted to run his own business and not have to affiliate with one of the companies he may not wish to affiliate with. it was not just a matter of right, it was a part of the concept in giving medallions to individuals rather than to companies. the request your went to the mta in february of this year and said i would like to apply for a color scheme permanent. they said, we are not issuing those at this time. the ultimate question, what is the source of this rule? in papers filed as recently, the

mta cited a resolution 10-029. it deals with the medallion pilot program. that is what they were doing for the last three years. by the way, anything you have been doing up to this point, february of 2010, you are absolved. it is ok with us. it did not say, you could go on into the future and have regulations that are not written. to the contrary, the enabling legislation of the mta regulation of the taxi business says that once adopted, agency regulations will supersede prior law, if they conflict with the prior lot. -- law. you cannot have a regulation without a hearing. what is the regulation they rely on for denying mr. aryan his permit?

>> [inaudible] >> some day, we may have a hearing of which we will decide whether or not we will decide to limit permits. imagine if you went down to the building inspection department and said i want a permit to remodel my kitchen. and they said, we will not issue those. that is the box they put him in. they have not made a decision and they have not held a hearing. you have a regulation that is on britain. president garcia: thank you. >> good evening, commissioners. mr. aryan did come to our office seeking a color scheme permanent

and we did not give an application -- permanent and we did not give an application because the mta has been tasks with reforming the taxicab industry. one of the main things we are doing is changing how we adopt permit regulations, a color scheme regulations. as a matter of fact, there will be a lot of new changes to the color scheme regulations as we move forward. we are looking at changing how they accept credit cards, how the process credit cards, held a structured leases. all those things are being done through our office. before anyone can receive a new color scheme permit, the rules will change underneath his feet in the next three months. beyond -- that being said, i do not think this is the appropriate body to handle this particular issue.

that is because what we have done is a policy within the mta. it is much like if the m.t.a. decided that there is only some may driver permanence that we can have. -- permits that we can have. they would not come to this body and say, give me a driver permanent i want to drive a taxi. they would need to take it to some other forum. this would not be the appropriate forum. it is the same as a liquor license. you have to purchase an existing one. we have allowed that within our rules to purchase an existing color scheme, but not to create a brand new one. with all that being said, this is not the right forum.

any change that this body makes to grant a color scheme permit would go against the rules and regulations adopted by the mta. if the board made that rule, we would need to go back to our board and see that change, allowing mr. aryan to obtain a new permit. thank you. president garcia: why wouldn't sfmta just except applications and not decide on them until the policies? >> we already have a terrible history with wait lists.

with our medallion list, there are 2800 people on it. that list is now 15 or 18 years long. part of the reason we have to change some much. if, for whatever reason, the m.t.a. decided to fillsale all medallions and someone said, i cannot afford one. this would not be the appropriate body because you have to change the policy regarding the selling of medallions. they would need to take it to a different body, likely the superior court. president garcia: it would seem reasonable that someone be allowed to be in a queue. >> well, we do think we have a rational basis for the decision we have made.

to allow to be some -- it starts as creating waitlists again. we will start to have this issue of determining who gets to start their color scheme first. there will be competition. at that level, will start deciding, ok, do you have the funds to open a color scheme? to sign up on a list and there is no contract or property. which vehicles are you going to obtain? we will issue more medallions of the summer. are you going to go after those medallions stocks, there will be a lot of things involved. are you going to go after those medallions in a vault? there will be a lot of things involved. >> how long has mta not excited -- not accepted these

obligations? >> it has spent, so far, about -- it has been, so far, nearly three years. >> is this the first denial of the application? have there been others? >> there have been others, this is the first challenge. >> i think mr. alexander's analogy to building permits is compelling. they could say, we're going to stop issuing permits -- the best way to have mta pass a regulation or policy that says we are not issuing color scheme permits, letting the public know they should not apply. has that been done? the board of directors made that finding? have they made a policy

statement? >> it is a staff policy statement. there has been no specific hearing regarding color scheme per mets. >> how do you respond to his analogy? they can get around this rule. you cannot appeal the building permits because we're not issuing them. >> my reply is simply our basis for not doing so is that we have not developed the rules and regulations for what makes an appropriate color scheme. when the mta to go over regulations, there were already color schemes in existence. moving forward, we are going in front of our board to discuss issues of how will the color scheme take credit cards? will they be required to use the back seat units? that will be a huge expense. we will go over processing credit-card transactions because our drivers are asked to pay 5%.

there may be some changes to that. that comes through the color scheme. there may be some issues regarding direct permits to drivers. that will also affect the color scheme business. there are lot of things that will affect the business. >> when will those new regulations be emplaced? or at least proposed? >> the first week of june. president garcia: why would this not be considered constrained trade? >> mr. aryan is currently a permit holder. >> if someone wants to open a business and they have such businesses and they are barred from opening the business -- >> he could become an owner or operator. i forget what a company he is weds. the only thing you pay for is

the usage of the dispatch radio. you pay that nominal fee, you purchase your own insurance, you obtain your own drivers. you obtain all the other things that you need in order to run that business. you will make a deal with your company to purchase a vehicle. you can be your own business within the current framework. he would be using the trade name address of the existing color scheme. >> is that it's easy to do? are there other color schemes willing to allow individuals to do that? >> we have 28. >> when the rules are finally enacted, will they reply -- apply retroactively? >> yes, they will. >> that would raise the argument that whatever changes were made would apply to whoever would have gotten a color scheme within those three years.

>> that is correct. assuming he were to get one today, we would be in front of you -- we would be in superior court if there is a change that he does not like. he would say, when i signed up, this is not what i had to do to operate my business. president garcia: if it is etched -- if it is retroactive, everybody with a color scheme is going to be -- going to have the same complaint. >> they have been in existence for so long. 20 years or more. president garcia: that eases the pain? the fact that they have to adhere to a new rules makes it easier because they have been around long? >> because they are well established. we do not want to put him in a position where he will fail. president garcia: i hope that i did not appear argumentative. i thought there were a fair number of color schemes that

were marginal. >> in terms of size? president garcia: operating expenses and profits. >> we are trying to handle those as well. there are lots of it -- there are a few color schemes to have a difficult time complying. we're having to work through those issues in determining whether those color schemes need to exist any longer because they cannot keep up with our regulations. president garcia: thank you. >> the color schemes that currently exist, if the appellant would have been able to utilize, would they be grandfathered under the new regs? >> that has not been determined yet. there has been some discussion. that has not been determined. >> can you provide me with some

other examples of policies enacted by staff since the passing of the resolution? >> certainly. one of the policies was be closed of the wait list, for example, for medallions. that way list is still currently at 2800 people. we cannot take any more. ballast is currently 15 -- that list is currently 15 to 18 years old. we cannot add to that any longer. in terms of general policy, driver permits. there are times so we have too many drivers. we have 7000 drivers in the city. technically, only 5000 at a time could really work. we've reached a critical mass of drivers. we have cut off new applications for drivers for several months until we see who has renewed,

new has not renewed. we reach a certain level and we say, ok, let's reopen it again. cut these policies that -- >> these policies are enacted in connection with the resolution, that you cite in your brief, are they policies enacted in connection with the resolution? >> yes. the color scheme change -- >> other examples. the driving permits that you close if there are too many or your reopen that was always something that you could do. >> right. >> ok. >> your policy, i feel that the

word is being used loosely, are they written anywhere? >> regarding the colors can change? they're not. -- regarding the color scheme change? they're not. >> thank you. >> thank you. is there public comment on this item? >> three minutes. >> good evening, commissioners. i am formerly the director of the san francisco taxi commission. i can tell you as a former director, i think i learned that staff could not make policy. that is what mta is trying to do with their staff decision. mr. alexander has articulated some really good arguments. i do not feel like i need to repeat them. they have been hurt.

-- heard. the resolution is in applicable in this case. i would like to give you some additional good reasons why this board of appeals may take jurisdiction, but also why you should take jurisdiction. specifically, people seeking to open a taxi company are quite often minority business owners. those minority business owners have been supported by the city government. by refusing to allow new companies to open, mta staff has stifled contra premiership at a time when we most need it. mta staff may be in violation of statutes that pertain to government interference with business. hypothetically. san francisco has traditional 30 taxi companies.

it is a disingenuous argument to say that we can have an owner operator company because those owner operator companies are not their own taxi companies. they cannot become a to do zero or 10 or 50 taxi company. -- 2 or 10 or 50 taxi company. much like liquor licenses are being transferred, out with the existing permit to operate a taxi company, the existing permits have become quite a valuable on the black market. they are going for as much as $250,000. this administrative action, a refusal to issue a new permanent -- permanent, interferes with business with no policy justification.

a denial of a permanent is within the purview of this court of appeals. that would be under the san francisco charter section 4.1060. this could go to superior court, but that is a costly position for the appellant. it is not the best argument for this body to take a matter on, but also in the past, w to superior court, they may have resulted in mta later ratifying a staff action. thank you. >> the citation you gave us to the san francisco charter. >> that is listed in respondent brief. san francisco charter section 4.1060.