have. >> -- the dph policy -- if you could repeat your statement. >> president hwang: i felt that the arguments -- the dph policy to avoid allowing the appearance of permitting smoking in restaurants is compelling. >> vice president fung: was that clear? >> yes. i'm waiting for mr. pacheco to write it down. >> this is a motion from vice president fung to deny the appeal, uphold the suspension on the basis that the ordinance

prohibits smoking in restaurants, and on the basis that the dph policy to avoid having the appearance of smoking in restaurants is compelling. on that motion, president hwang aye. commissioner hurtado is absent. commissioner lazarus, aye. 3-0, the suspension is upheld on that basis. >> president hwang: thank you. >> i'll call item 7 (7) appeal no. 12-089 henry johnson, appellant(s) versus police department, respondent. 1195 quesada street. appealing the denial on july 23, 2012, of tow car operator permit for hearing today. we will start with the appellant, mr. johnson. you have seven minutes to

present your case. >> good evening to you all. i'm here today -- the decision that they made due to a fine that my first permit i should have kept, and instead of the second one. i don't want to waste too much of your time tonight, but i have a family to feed and this is what i do here in san francisco, tow cars for the last 17 years. and never had no problems here. so that's what i'd like to say. >> vice president fung: sir, i was a little confused by what is really before us in this case. you applied for a tow driver -- you submitted a tow driver application for a new company named nelson. >> no. for bay ridge. i have previously held one for

numerous years, just until i branched off to get a second job with a second company. >> vice president fung: and what's the name of that company? >> the company was named bay bridge. i previously held a permit for like 15 years, already, before bay bridge. >> vice president fung: okay. perhaps i got to hear from the department. i'm still confused but we'll straighten this out. >> okay. >> good evening, commissioners. officer fenaris appearing on behalf of the san francisco police department, permits division. the reason for denial for mr. johnson's tow car permit was it's actually two-part. it's basically the municipal

code -- he has municipal code violations and it was an incomplete application. i have evidence but i will show it to you on the overhead. he applied for a new tow car application on december 14 of 2011. however, he did not submit his fingerprints as required by municipal police code section 3003(b). i called mr. johnson on his personal phone, and his current place of employment at that time, which was nelson's, as well as bay bridge, i talked to his employers, left messages for him on his phone, to submit his fingerprints to complete his application for a tow operator. after numerous requests, mr. johnson did arrive and that took until april to get him to come back in and submit his fingerprints. a criminal history check from the department of justice revealed mr. johnson had two arrests in september of 2007.

and he was convicted on those in 2009. these were arrests for 23103(a) of the california vehicle code which is reckless driving and 594b1 which is vandalism. his was specifically to a vehicle, malicious mischief to a vehicle of the municipal police code. i requested a copy of the incident report from mountain view police department, case no. 07003090, and it confirmed the arrest of johnson. i'd like to show you just a page or two of the police report, just to confirm that. if you can see here, officer

revis transported and booked johnson into the main jail for 594a3b vandalism and for 23103a reckless driving. and the report is kind of long so i'll go to another page of the charges. basically mr. johnson, he was actually filmed on video, for reckless driving and he deliberately swerved side to side, causing the vehicle to roll over and he was booked into the main jail and these are his charges, 594a vandalism over 5,000. the other thing that kind of disturbs me about that is that was a 16,000 pound vehicle -- truck. let me go on. so basically mr. johnson failed to appear for numerous hearings after i called him and told him

that he would have some municipal code violations. only after a letter on may 10, informing mr. johnson that he needed to appear or his application would not be processed, he did appear. i informed him at that time he was in violation of the municipal police codes. and i'd like to show you which codes those are. i'll put those on as well. first one is going to be just a section that says that he must complete a set of fingerprints by the police department for his application. the second one is the municipal police code 3004a which basically states within four year the day of the application has been submitted, there is no convictions of burglary, robbery, theft, receipt of

stolen property, removal of stolen parts from vehicles and malicious -- to a vehicle. also, on his application, he also neglected to list the arrests, which is also a violation of the permit. when you apply, if you can see right here, basically it says failure to provide a full information relative to prior convictions guilty pleas or no contest pleas may be cause to deny the permit. he has listed down one arrest in 1987 for possession. so basically, at the hearing where mr. johnson did arrive, he spoke for a brief moment regarding the matter. he said he never was arrested in

2009. however, the criminal history check reveals that he has been. he was arrested in 2007, but his conviction was in 2009. mr. johnson then was informed by the hearing judge, mr. cogin that his application would be denied for those municipal code violations as well as the code section 2a80 which basically -- get that as well -- states that -- basically chief powers stating that we didn't -- he did not find -- to be suitable for a tow driver at that time. and that basically states that the chief of police may refuse to issue any permit that is subject to police department investigation or issuance if it shall appear the character of the business or applicant requesting such permit does not warrant the issuance thereof. so, you know, the main thing basically, there's a couple of

things going on. and in all fairness, i have other applicants that fall into that same category. they have to wait the allotted time, which is -- could be three or four years, depending how long that takes. so it's kind of not fair to them. i explained to mr. johnson that november of 2013 he would be able to reapply. >> just for clarification, this is a permit denial, not a revocation, correct? >> denial. >> in conjunction with the bay bridge company. >> he currently held a permit for another one. the problem was when mr. johnson came in originally he wasn't fingerprinted. i've been there for a year and a half. while i go there i go by the municipal code which says every new applicant will be fingerprinted. so maybe before i was there he might have not been fingerprinted but now it's consistent with every applicant. >> i think i'm not really clear here. is the the application was for a

permit -- an original permit, a new permit. >> yes. >> correct? >> yes. >> for bay bridge towing company. >> it was a revocation and a denial. because when he was fingerprinted he fell into that category of that municipal code. >> president hwang: so he had an existing permit, and he sought a renewal of the permit? >> he had an existing permit, and he wanted to transfer to a new company. >> no, i didn't. >> vice president fung: wait, you'll have a fans. >> president hwang: or additional gls. >> additional permit. >> president hwang: in addition to not granting in addition to denying the new permit, the police department revoked an existing permit? >> yes. >> president hwang: that was not at issue. >> i don't believe that's on appeal before you. >> president hwang: right. >> it was revealed then that he had had the arrest and conviction. >> president hwang: that's not before us. okay. thank you. >> vice president fung: officer, you're required to submit an application for every

company you drive for? >> yes. >> vice president fung: so your letter of denial refers to applications derived for nelson towing? >> it refers to nelson towing and bay bridge. >> vice president fung: no. just nelson is what the letter states. >> i can show you the letter from mr. cogan, basically was the hearing judge. >> vice president fung: well perhaps i don't -- i'm looking at -- is this the official letter from your department, notifying mr. johnson, dated july 23, 2012? written by william cogan? >> yes. >> vice president fung: that's the official letter to him, right? >> yes. >> vice president fung: it says denial of sfpd issue tow truck driver application to

drive for nelson's towing, only. >> that was probably for the revocation. he never received a permit for bay bridge. that was -- his application for bay bridge was denied. the revocation was for nelson's and i believe nelson's expired but i believe it expired. >> vice president fung: you know what this is? this is a denial of the appeal of that denial, i presume. >> yes, i believe you're correct. >> vice president fung: okay. the original application was for bay -- >> bay bridge. >> president hwang: again, if i could just clarify, the statement from the appellant states on may 30, the bay bridge tow permit was denied. on june 20, the nelson's tow permit was revoked. >> i'd have to check the

records. i just know the one from bay bridge was denied at the hearing. the revocation on the other one probably... you're probably correct on that. >> vice president fung: in the -- his original application then for the one that was revoked, did it have the same requirements? >> same requirements, yes. >> vice president fung: as this ordinance? >> yes. >> vice president fung: it just did not have the fingerprinting requirement, therefore there was no history check? >> there always was a fingerprinting requirement. i can show you that. actually i did show it to you but i'll show you again. there always was one. i don't know why there wasn't one on that one. and that's what it is there, basically the applicant shall be accompanied by a fingerprint fee, which they're charged typically. maybe he wasn't charged that at that time. he didn't have a set -- a

complete set of applicant's fingerprints to be taken by the police department at that time. and that's for all the applicants that are tow drivers or owners. >> vice president fung: right. but in his previous application, was there any fingerprints in his file? >> i didn't see any fingerprints in his file, no. >> vice president fung: so you reviewed his entire file then. >> president hwang: well take public comment. is there anyone wishes to speak on this item? okay. seeing none, then we have rebuttal. you have additional time, if you'd like to speak. mr. johnson, you can speak now. you have an additional three minutes. >> excuse me. number one, my nelson permit wasn't never -- it's valid. it's still valid now. i was -- i only came back to get additional permit from this

gentleman, right here. i come in every year to take pictures, to renew every single year. i've gone coming to this department for the last 15 years, before this gentleman started working here. i just had renewed my nelson permit prior to this incident with the bay bridge. i had just renewed it. everything was fine. i took -- i had fingerprints prior to this, with nelson, i had fingerprints prior to this, and with the bay bridge, it was some new, so he opened, maybe take fingerprints again. there wasn't nothing i never was hiding because every year that you go in there, you bring a dmv printout, valid pictures, so everything -- everybody know exactly what's going on. i mean this new thing that he started doing, this wasn't -- it wasn't a problem five years,

i've been holding this permit for the last -- since 2007, each after this incident happened. even after 2009 i was convicted i still came in here to renew and there wasn't a problem until 2012 when this gentleman right here, it became a problem. but my permit was always valid. and it's still valid, until the problem that i'm having now. i just think it's unfair for him to go back and take another permit that i previously already had, and to characterize me, he never worked with me, he maybe should ask some of his -- his fellow officers, like carolyn -- that's been working with me for the last 15, 20 years. i just met this guy a year ago -- i mean a few months ago. i didn't work with officers here in san francisco for the last 20

years. first time i met this gentleman. >> vice president fung: mr. johnson, you indicate then that, in your renewal of december 2011, you submitted all information required, including fingerprints. >> i submitted everything that i was supposed to submit in december, because it wasn't nothing like i was hiding. i know the city requires that you carry two permits. i work for two different companies, so it wasn't no -- trying to -- one permit on one company. i took the right option to go the right way was to get another permit, and when i went to try to get this other permit he winded up taking the other permit i previously had. i mean i was only trying to go about the right route and he seemed like i was trying to hide something, which i never was. >> mr. johnson, the officer says that they requested fingerprints at the end of 2011 and it was not until april that you submitted them. is that correct? and if so, why?

>> ma'am, in 2011, at the end of the year, what i had done was i just went in there and renewed my bayview -- i meanmy nelson permit. 2011 i went and renew with pictures, my dmv printout, paid my money. then in january i was going to this other company to work for a time to make some more money and then i went back again. i never hired from this gentleman, or never anything like that. it was just at the time that we done it, you know. i always -- when he call, or contact me, i always respond to anything he said. but it was never nothing like that. i mean i've been working here for the last 17 years. they got my record down there at the city. >> commissioner lazarus: but do you disagree that there were numerous requests and a lapse of several months between the request for fingerprints and your submitting a fingerprint? >> ma'am, it wasn't never no

request. what he's saying is untruthful. there never was a request. when i stepped to the window and he request i get fingerprints i go straight down the hall and get 'em. it was never you send me a letter to go somewhere. i denied it. when you send me down the hall, i went straight down there and done it. so what he's telling you is untruthful. >> i think -- you know, i think that the issue regarding fingerprints only relate to the request for the new permit for bay bridge. is that what your understanding is? rather than the existing one. for nelson. >> yes. but i'm still trying to understand what happened with meeting or not meeting the request in a timely fashion. >> okay. >> but he's not -- i think -- and tell me if i'm wrong, mr. johnson. you're not requesting any -- you don't object to the denial of the bay bridge permit at all. >> no. i don't deny -- i mean i'm not

denying the bay bridge permit. i can understand that. >> it's the existing one. >> this is my existing permit, and all my eggs is in one basket. >> i understand. >> i got no way of providing for my family. >> i get it. i think i get it. >> questions relating to -- >> correct. >> thank you. officer fenarus you have rebuttal as well. >> there's a letter i sent mr. johnson back on -- looks like april, informing him that if he failed to appear at his last hearing in may -- >> this is for the denied permit in bay bridge, right? >> this is for, yes, bay bridge. >> i think we're on the revocation of the nelson permit. so do you have anything on that, in terms of applications or -- >> you know, that fell into the same category as bay bridge,

basically there were no fingerprints and once he was fingerprinted he was in vials of the municipal code. >> do you have any documentation -- >> i don't have that here. >> wanted to double check. >> okay. as far as hiding, i don't think he was hiding anything. the application was just incomplete. i explained to mr. johnson he would be eligible to reapply in 2013. >> for the new permit. >> for the new permit. >> i think all we're talking about today is the existing nelson permit, that the department revoked in conjunction with the denial of the new permit. >> okay. >> that's how i understand it. i'm getting nods from the appellant. >> okay. and again that falls in line with the municipal code, the law is very stubborn. i have other applicants that fall into it as well. >> but you don't have with you the application for the renewal of the existing permit, do you? >> not for nelson's, no. >> vice president fung: perhaps we should hear the rebuttal, and then -- >> okay. i just -- it's been so back and

forth, i just wanted to make sure we're all talking about the same thing. >> vice president fung: officer, you still have time to make your rebuttal if you like. >> sure. on the nelson permit because that's what we're talking about. >> i believe nelson's is, at this juncture, mr. johnson you can refresh me, but i believe it was -- it should have been expired. he was applying for the bay bridge. so i think it will be over any way by the time this year is over. >> okay. thank you. >> when i'm looking at what was appealed and what was given to the department, the letter issued by the police department seems to be crossing wires. it refers to a denial of a permit for nelson's towing. it does not say revocation of permit for nelson's towing that's why our caption says denial of permit. so i don't know if they have issued a revocation letter -- >> vice president fung: that's why it was confusing to all of

us. >> right. >> mr. johnson seems not confused. at this point in time do you understand -- mr. johnson, could you stand up. at this time, do you understand that you have an operable license to tow trucks, to operate a tow truck? >> yes. >> you have a license. >> yes, ma'am. >> under nelson's. >> yes, ma'am. >> so you have not been issued a revocation. >> no, ma'am. >> but your brief, your letter, indicates that you're appealing the revocation. >> well, ma'am, i don't -- i think it might be confusion, but i -- >> may i just read from the letter. >> sure. >> this is your letter, sir. it says on june 20, 2012, the police department made a decision to revoke my existing tow permit under nelson's tow which has been in effect since may 2007. >> i don't mean to cut you off

but that's what i thought he was trying to do and that's what i thought i needed to address because i thought it was taking everything that i got, and i got a family it feed. i mean i got to go to the end with it because i've been working here for the last 15 years, no problems. so i thought that's what was going to, to take the existing thing that i have, to work here in san francisco. >> okay. and that's because, at the top, as mr. pacheco's pointed out to us it refers to nelson's towing. the top of the letter from july 23. >> right. >> it says denial of tow car operator permit for nelson's towing, not bay bridge. >> right. >> is there a way to clarify, i would think there would, whether he has an existing valid permit. >> my permit is valid because i just renewed it 2011. they accepted my money and it's valid. >> is there anything before us?

>> there's no document before us. i don't think that the police officer has disputed that fact. i mean you can ask him, but i thought in his testimony he also said that the permit had been renewed, and -- >> then i'm lost as to what's before us. >> well, in my interpretation is that this is the revocation of the nelson's towing permit and even though it says denial on the letter. >> okay. >> but i'm happy to be corrected by the department, if that is not what they intended to do. >> okay. >> vice president fung: if that's the case we need to see -- >> officer. >> i'm looking, yeah. so that is corrects. nelson's towing was to be denied. the revocation was on bay bridge. does that make sense? >> no. it's just the opposite. what are you looking at, the actual revocation? >> the revocation to be denied he held a permit for bay bridge which was to be revoked. that's the way it should be.

nelson's towing, he applied to work for nelson's he held a bay bridge towing. >> no, i didn't. >> that's what it says on this list here. >> okay. >> either or, one is revoked, one is denied. >> continuance. >> vice president fung: that's what i was leading to in my comment. i think what we need to see is the original letters that were appealed, whichever one was appealed, but we need to see the original letter of action on a revocation, and on a denial, and what the heading was on those. and then put it together with whatever occurred at the appeal of one of those decisions. by reading this letter here, it appears that only one of those actions was appealed. but i not sure which one. >> yeah. well it was for the most recent, the most recent from what i understand was he wanted to work

for bay bridge. i can take a look -- >> vice president fung: i think we need to see what occurred with both actions. and i think the appellant needs to see it too so he's quite clear in his mind what he's appealing. >> i might suggest, if you do -- >> he might have -- >> continue this matter -- >> i think he thought that we were denying nelson's when it was actually bay bridge. that's why he wrote that on here. >> the letter itself refers to nelson's. >> yes. >> that might be -- >> i think that's the confusion. that's what he currently holds. >> understood. thank you. >> it seems unclear as to what actually the -- mr. johnson would need to appeal at this point. >> right. >> so perhaps we should -- we might consider continuing the case to allow time for the police department to issue a clarifying letter that would make it more specific what it is that's on the table here, and perhaps allow both sides to

submit additional -- a briefing. >> okay. >> i think that's a great idea. okay. great. >> vice president fung: how much time does the police department need to gather up this information? >> okay. >> vice president fung: madam director, do you have a recommendation? >> i would suggest we move this out to november so that there's opportunity for briefing and also because the board's calendar is quite full until then. >> vice president fung: and for the appellant to be able to review. >> so if you pick for instance november 7, the -- i would actually suggest that the police department be required to provide a clarifying document in the next few weeks and then there can be time for both parties to brief under the regular briefing schedule. >> vice president fung: