officer, but beyond that, we felt that the answer was inadequate which was typically somewhere along the lines was it was a mistake or i don't know. >> just to clarify, exhibit c is pretty much a complete list of all the so-called mistakes that you found, is that correct? >> correct. >> thank you. >> can we hear from counsel for the appellant on that issue? where did she go? oh, there she is. >> i'm sorry, you repeat the question? >> the question was what was the justification for the discrepancies and the file laj -- mileage for instance. er >> apparently everyone makes mistakes, clearly we've shown that mta has made a lot of mistakes in their investigation and they have a perfect situation of people who have

advanced degrees, who are working in lighted rooms, who have calculators, who have computers, etc., mr. kipnis is out driving on a busy friday and a saturday night where he's yelling at people and trying to keep it together and trying to keep a record at the same time, and honestly, you know, ultimately we have no objections to the weigh bills that were flagged being thrown out because in the worst case scenario, there would still be 80 weigh bills for that year even if those were all thrown out. >> i count 28 findings of mileage overlaps, duplicate dates, etc., it seems to be more than just a couple of mistakes. >> for a one-year period for a driver, it's not that unusual, and again, we believe that a

system of progressive discipline should have been used here if it was a matter of not keeping good records, if it's sloppy bookkeeping but the department has really failed to show any additional evidence, and throwing in the arguments that some weigh bills were too pristine or handwriting looks different from this date to that date is really pushing the envelope and actually, i think it looks bad on the department's credibility. >> do you have anymore questions? >> no. >> thank you. >> okay, we can take public comment now if there's anyone here who would like to speak on this matter, please step forward. okay, seeing none, then we can move into rebuttal.

>> good evening again, commissioners. as was stated, apparently everyone makes mistakes including mta and while we don't necessarily have dna samples that exculpate mr. kipnis, we do have a declaration from his driver showing he saw him regularly driving his taxi in 2009 and that's just one example of evidence that could have been drawn out in this investigation that showed he was actually driving. mta has failed to prove fraud and the evidence of overly pristine weigh bills, etc., is not that persuasive, an admonishment would be more appropriate in this case, not revocation when mr. kipnis has been working in the industry for 28 years and about half of

that time as a medallion holder. so, in closing, you know, in the worst case scenario and for lack of additional evidence to support sfmta's claims, mr. kipnis should be facing disciplinary charges for sloppy bookkeeping and even if the specifically affected weigh bills were flagged, excluded, the 19 duplicates plus 8 weigh bills with long numbers and the mileage recorded, he would still be left with 80 weigh bills which is the exact number he needs to meet his full time driving requirement and he will not run the risk of [inaudible] they're under mandate to switch to electronic weigh bills by the end of this year, so we would urge this commission to extend that time in mr. kipnis'

driving record so that he can get into that system and can show the mta a more definitively that he drove and not have to depend on sloppy bookkeeping or weigh bill records. >> thank you. >> i just have a question, i'm sorry, is there -- is mr. shamis here? >> yes, he is, he's here. >> my name is boris shamis. >> my question is you prepared this declaration for the appellant's attorney? >> yes. >> and from what i take it from reading your declaration, you're stating that you know that mr. kipnis has been driving at least every saturday night? >> and friday too. >> and friday for the last

year, i believe it is? >> for last at least 10 or 12 years, i don't know exactly numbers, and i'm very surprised if mta was making such a big issue of this, why don't they even ask me about it because we was working together for 12 years and i know all the shifts, what he was working. >> okay, so in 2009, the relevant year here, you're stating he worked saturday and friday nights? >> yes, saturday and friday nights. >> with the exception of one or two times? >> i don't remember exactly the numbers of the days three years ago, it might be one or two, maybe three, i can't tell, but i know that he was working more

than it's supposed to be on their rules. >> and you signed this declaration under penalty of perjury? >> yes. >> okay, thank you very much. er >> you're very welcome. and may i ask one question? actually, it's a question to this guy who is investigator? >> i think we have sufficient information. >> if you have a question of mta, you should ask them separately. >> i just want to know if he ever work in the cab? >> okay *, thank you. >> mr. murray, we can take your rebuttal now. >> i wonder if you could call the building management to see if they can set up an overflow room for people waiting in the hall. thank you. >> thank you, commissioners. just really briefly, again, mr. kipnis had two opportunities,

we had two hearings, mr. shamis, his statement, i mean while he says he's not sure, he can't remember 2009, he had two opportunity tos bring mr. shamis to a hearing, he could have roughening -- broukt him to the 2010 or 2011 hearing to discuss his driving record. >> please, it's not your turn. >> and as far as when we're looking at -- when we look at the weigh bills, we have to look at every single thing, and mr. leon's job is to determine all the discrepancies and the issues involved with all of them. by pointing out to you the handwriting, we weren't pointing out mr. kipnis' key strokes or anything of that sort, we were just looking at, there is a naked eye difference between his cursive and his print and it calls into

question some issues, but beyond that, mr. kipnis had two separate hearings represented both times to present all the information. we reviewed all the information, the sfmta objected to the introduction of the new evidence of 07, 08, and 09, and the hearing officer allowed that in and we still stand by our objection to that information but assuming that that information is in, all the discrepancies lead to the conclusion that -- or to a reasonable conclusion that if 29 of these are inaccurate and i don't mean just a let r or two off here and there, but duplicate dates, overlapping mileage, columns where your from and to are simply reversed on a separate weigh bill but the exact same fares, that to us demonstrates at least a

reasonable standard that those weigh bills were not made while a person was driving, those weigh bills were manufacturer after the fact. so, we again stand behind that material and believe that this appeal should be denied. thank you. >> i have a question of mr. leon. in your declaration as part of the submission by your office, paragraph 6 references a prior admonishment. this is a declaration -- sorry, this is exhibit a to your declaration, sorry, this is exhibit a which is an excerpt or is your declaration and it references a formal reprimand from march of 2000, it's paragraph 6. >> yes. >> you didn't attach that

formal reprimand, but what type of penalty did that involve? >> i believe based on the record, it was again a failure to satisfy the driving requirement, but it didn't specify this specific shift, it was just provided by the taxi detail at that time back in 2000, those are the records that i gathered. >> do you know what the penalty -- i mean, admonishment is a warning letter, a reprimand. >> yeah, it was just like a warning at that time back in 2000. >> and do you know whether the practice was you would get a couple of warnings or a couple of admonishments and then revocation? >> well, in the past practices in the taxi detail, they would not audit the weigh bills every single year. >> instructor: but since 2000, you did.

>> they would audit the weigh bills once every few years but not once every consecutive years, so based on mr. kipnis' records, those were the information i got. >> so, paragraph 6 of your declaration, i might be reading it wrong, it says the taxi section have conducted prop k audits almost every year for mr. kipnis since 2000. so, you did it in 2001, 2002. er >> no. >> so, the next time you conducted an audit was 2007? >> yes. >> thanks, i have nothing further. >> commissioners, the matter is submitted.

>> well, i am of the opinion that there was no fraud here, and i understand we don't have to make a finding that that was the case, however, what i believe is that there was some sloppy bookkeeping going on which i don't think we are all immune from on occasion, and i find that given the long extensive service that mr. kipnis has provided the city as a taxi driver, i don't find this sloppiness particularly egregious particularly given the circumstances of being a taxi driver in san francisco and i also find the statements

of mr. shamis to be persuasive to me in terms of establishing that mr. kipnis was in fact driving the required amount of shifts and time, so i would -- the other thing i also find persuasive is that there is only one year at issue here, and that to me is not egregious as well and also that the system is going to change as i understand it to keeping track of these records in an electronic format so hopefully we won't have these issues going forward, so i would vote to overturn or grant the appeal and reverse i guess the revocation of the taxi medallion. >> i'm similarly sympathetic to

the appellant. i think having an admonishment in 2000 and then having the department come up with allegations later found to be not proved for 2007, 2008 shows that this is a difficult process and procedure for determining using weigh bills that are handwritten as to whether a particular driver has satisfied the driving requirement and i agree with many of the other sentiments stated by my co-commissioner, and i'm a firm believer in giving individuals notice before you revoke their main source of livelihood. i wouldn't necessarily liken to capital punishment but i think it is serious to take away

someone's sole source of revenue after working in this industry for that many years. >> so, you're making a motion to -- >> i don't know what you're leaning on, we would do our normal practice, continue, because we would need three votes to overturn the department. >> i wanted to clarify, if that motion passes, does that allow the medallion to continue to be held by the fine stays in place? >> good question. >> i think the fine is also dropped along with the revocation. are you looking for -- >> i don't believe we have jurisdiction. >> we have no jurisdiction over the fine. >> if there's no basis for revocation, i don't think that's a -- >> that's going to be an issue for the mta and the permittee.

>> i think the mta will have to make that determination if the permit is not revoked. >> okay. so, on the basis that we stated earlier, i would move to grant the appeal and reverse the revocation. >> okay. >> so, could i just suggest that on that basis, there was insufficient evidence to support a revocation? >> that's correct.

>> we have a motion then from the president to grant this appeal, overrule the revocation and thus reinstate the medallion. i believe the finding was that there was insufficient evidence to support the revocation. on that motion to overrule with that finding, the vice-president is absent, commissioner hurtado? >> aye. >> commissioner lazarus? >> aye. >> thank you, the vote is 3-0, the revocation is overruled, the medallion is reinstated with that finding. thank you. >> okay, president hwang, i'm

inclined to call the next case which i think will go relatively quickly, or if you would like to call a break. >> the next item is number 6, appeal number 12-087, the subject is 114-124 noe street, it is protesting the i issue yans of july 12, 2012 to the department of public works, permit to remove and replace one tree. we'll start with the appellant. you have 7 minutes. >> greetings, president hwang and fellow board members, is there anybody from the department of public works present? >> yes, there is. >> oh, there is. >> ms. short is here. >> we were promised by se seal ya at 1650 mission at apartment 304, informed me that notices of a public hearing would be

posted regarding this. i live one block over and the only notices that i have seen posted regarding this hearing were posted by a private citizen. i would like to request continuance so as to have the notices posted as i believe are required by law. >> we have a requirement to -- if you could stop the clock, we would have done to the posters and occupants of all those addresses. >> could someone provide me with proof that that was done. >> i believe that mr. pacheko is looking for that right now. >> thank you.

>> there is in the file a certificate of mailing signed by our senior clerk typist, se seal ya wong dated august 13th, 2012 that postcard notices were mailed out to owners and occupants within 150 feet and attach today the certificate of mailing is a two-page list from the radius company with

probably 70 to 80 mailing labels. >> okay. >> i was under the -- >> do you want to see it? >> no, i believe you. i was under the impression that the notice would be posted near the tree. >> you might be referring to departmental notice from the dpw, but board of appeals has never posted notices near a site. >> i was under the impression -- >> do you still want a continuance, sir? do you still want a continuance? >> no, i will withdraw that, thank you. >> okay. >> my arguments are the documentation, i asked for some on the tree limb failure which was one of the things that was brought up by the department of public works and none of that was provided to me whatsoever and there is no visual i can see on that tree that there's any limb failure.

none on who requested the dpw to remove the tree because we were told that the dpw would not remove the tree for limb failure unless so requested by a member of the public, and the -- se seal ya, is senior clerk typist said that that would be provided to me at some time prior to this hearing, that was not provided. sidewalk access, it seems to be adequate. there's only a planner blocking access and i don't know whether that planner belongs to the city, is it a private or can it be moved and if it's moved, i mean, there's plenty of access in that site as far as i can see, sidewalk damage, sidewalk damage is sited is one of the reasons why this tree get removed. there is much more sidewalk damage between -- on sanchez,

one block over between 14th and market by several trees, debose and 14th by other trees and there is sidewalk damage outside of a housing complex for a senior residence that they have been asking for years to have removed because of the extensive damage to the sidewalk. if they don't want to remove that tree, why do they want to remove this one? replacement, replacement within a reasonable time. this is one that i really did not understand. the department of public works has stated they will remove the tree for the fact that it is diseased and in danger of limb failure and will replace this "within a reasonable time". they did the same thing near 152 church street and removed two tree, i attend the church

there and watched the removal of those two trees over a period of two or three days. those trees were promised to be replaced within a reasonable period of time. that was three years ago. where are those trees now? they don't exist. they're not there, there's holes in the sidewalk where those trees were. if they're going to remove those tree and is replace them within a reasonable period of time, was a reasonable period of time, that's vague or false or misleading to me, and my request is to set aside this permit for removal as dpt is not responsive as to limb failures, requestors or sidewalk access, none of which they seem -- they have been able and my humble upon to uphold and provide, and that's all, thank you. >> thank you. >> ms. short?

>> good evening, commissioner, carla short, department of public works, bureau of urban forestry. the tree removal was initiated by the department, although we did receive a number of requests since 2008 from the community to remove the tree. since 2008, we have inspected the tree a number of times and we have always been of the opinion that the tree was in sufficiently good condition to warrant monitoring it rather than removal. we did receive a request in january of 2012 after the tree had lost another limb to reinspektd the tree and afterthat inspection, we determined that at this point in time because of the pattern of limb failure and is because of the sidewalk damage and the narrowness of the sidewalk

which makes it difficult to repair the sidewalk without having to remove some -- what we perceive to be likely structural roots, we felt that the tree at this point in time should be removed. i'll show a couple of photos on the overhead that give an indication of the degree of sidewalk damage. as you can see, this primary pedestrian's through way is rather narrow and we have to leave a min number of 4 foot access. whenever it's possible to expand the area around the tree well and fix the sidewalk and hopefully avoid or minimize cutting of structural roots, that's always the department's first choice of action and so perhaps some of the other cases where people have advocated to remove trees, our option has been to create a larger basin

for the tree roots or if it's possible to repair the sidewalk and sever some roots without compromises the health or the instability of the tree, we would not perform that work in some cases but we would require property owners to maintain the trees. if i could just go on and show additional photos, you can see it has three primary scaffold limbs and i'll show, this is where one of the limb failures did occur and i do have some documentation about those limb failures. i would like to note, i'm not sure if the appellant was requesting through the board's office for this documentation but we did not receive a request for this documentation directly. i didn't bring additional copies, i'll put them on the overhead and i'll be happy to provide them, so this is just what we found when we inspected the tree in january where one of the limbs had broken off recently and then i don't know

how clearly you can see this, but this is one of those three primary scaffold branches that has almost no foliage remaining, that seems to be an indication that the tree is in decline, that it has lost foliage in one of the branches and that one branch would be removed, that would be a substantial removal of the structure of the tree. it's the combination of factors that have led us to the conclusion that the tree should now be removed, it's a combination of the loss of limbs and we have documentation of two limbs that failed, one of which was hanging in the tree but removed by our crew but it did break, one of which came down on the sidewalk area and then weapon had an additional limb that was cracked that was removed before it broke, so the combination of this type of