members, sorry to intrude on your evening in this matter. however, i think there is something that really needs to be addressed on the punishment phase for this type of violation. >> before you begin, would you like to state your name. >> my name is howard hibbard, i'm an attorney. what is so important about these proceedings is that when i attended the other hearing, almost every single violation received the same 30-day suspension. when you commit a serious felony or even serious misdemeanor, many times the matter is referred to the probation board to do an investigation to have punishment fit the crime. this is not done in this case and it seems to be arbitrary and capricious assignment that for this violation is a 30-day suspension, period. regretablely, this 30-day suspension, my client informs me, would be peril lus to her business. what i would like to recommend

is that the punishment be changed or modified, there be a fine or the 30-day suspension at the election ever either the board or the defendant. when you have a small store like this, people come in and buy cigarettes and then they buy other things. there's certain things that lead people to want to come into the store. they will do what we call leaders in the retail business. regretiblely, in this store one of the most important leaders it has is tobacco sales. i'm not going to comment on whether people should or should not be smoking, i'm only going to comment that it is legal and it is a way that people will actually go into the store and buy not just cigarettes but other items as well. this it's really important when there is a violation, yes, the violation should be addressed and it's a serious violation. what i'm questioning is that there should be an alternative to both fine and/or the

suspension. the suspension in certain cases can lead to a punishment which is far worse than what would appear to be on its face. like in this case, my client pretty much tells me if she has to go through 30 days, she rather doubts her store will survive. people will find cigarettes in other stores and people will continue to go to those other stores rather than her store. so it's as if you had, we were in merry olde england whereby if you committed a felony for more than $100, they hung you. as societies modernize we find crimes can be much more taylored and the more sophisticated the society to actually fit the crime. what i'd like to recommend here is that a fine be imposed in the alternative rather than a 30-day suspension. does the board have any questions? >> are you finished with your presentation? >> that's correct. >> i have a couple questions. in your brief you make a

reference that the financial impact of this suspension was not discussed at the hearing. >> that's correct, sir. >> did you present any information on the financial impact? >> i was not offered -- allowed to present anything. we just appeared, they read the charge and they assigned the punishment. there was no, other than -- indicating that i was present, that's all i was asked. there seemed to be no, no assignment during the proceedings for me to present that type of evidence. >> do you want to present a nexus between the suspension and her financial impact? >> i misunderstood you, do i want to present what? >> a nexus between survival of her business with the suspension. >> if the board will allow me more time i can probably gather the financial data. on the other hand, it's really difficult to show when you have

a leader, people buying, i don't know if there's any way to collate from her cash receipts other than common sense observation certain types of products in stores which people will continually come back to, to buy at a certain location and then they buy other things other than that type of sociological observation, i'm not sure what i could prove economically other than my client's opinion that if she's forced to do a 30-day suspension it will exact a much more substantial hardship than will appear on its face. >> thank you. >> we can hear from the department now. >> good afternoon, board

members, larry kesler, department of hub health, retail tobacco program. this was based on a police report back in april based on sales to a minor. we did have a dph hearing due to three months later due to some summertime postponement of these hearings. at that time the permitee was there and his attorney, my recollection is he did speak, he did talk to the hearing officer at that time. he was given, from what i remember, ample time to explain the situation. the hearing officer did uphold the 30-day suspension of the original notice. basically, after i read the brief, i did, i inquired at other counties

what they do regarding these and what i did was i took the most successful rate of reduction in sales to minors, which was out of los angeles county, and asked what they do. they do have that in their ordinance this they can charge these monetary penalties. because of the success rate i was interested in what they did and they strictly do suspension of permits. and our ordinance here in san francisco, the way we read it, it doesn't allow for any kind of monetary penalty. clearly a violation of california penal code this section 308 only allows for us to do a suspension on the permit, which was what we did in this case. >> how did you arrive at the 30 day determination? >> i took over this program. actually this was the first round of cases i received when i took over this program in

april. i continued the policy that had been in place, my understanding, for years of a 30-day suspension. so i just continued the existing and standing policy the department of public health has. >> 30 days for first offense, even though you could suspend up to 90 days? >> correct. the hearing officer, of course, can reduce or increase up to 90 days or reduce to one day based on the discussion at that hearing. in this case he didn't reduce it at all, nor increase it. >> are you finished? just one question. historically, a number of years ago when these appeals first started showing up here, there was a lot of discussion between the financial impact and in some cases there were data

presented as to how the tobacco sales would impact the economic viability of those stores. and after a lot of discussions here there was the general suspension wound up to be around 20 days and then it slowly crept up to 30 days now and i'm wondering as mentioned, i'm not exactly sure how 30 days correlates, whether that is a meaningful suspension based upon a first-time offense. perhaps -- can you expand on that discussion as to what the department is thinking about?

>> well, we've done a slight alteration since i first -- as i said, this was the first round where i took over this program. we have made some slight adjustments to it. if it is at this point moving forward if it is a first offense and they asked for identification and simply we don't know what happened, we weren't there, we do -- the original notice is now for a 25-day suspension. going forward, after this first round, in seeing how things proceeded through these hearings that was a decision we made. my understanding, again, i think the overall goal of the health department is a reduction in these types of violations and i really can't tell you the history of why 30

days was started at some point. sounds like it's been see-sawing back and forth a little bit, perhaps, but in talking to just a comparison, los angeles county they have had an excellent reduction in these types of events and they do a -- my understanding was they do about a 75 percent of the maximum penalty, which turns out in los angeles county to be about i think it's, like, 23 days or something like that. >> so their ordinance is a little bit different than ours. >> yes, they also can charge what the appellant was saying, to charge the equivalent of maybe monetary loss based on cigarette sales or whatever it is the administrative officer decides they are allowed. it's not in our ordinance. all we have is the suspension. >> did you check the amador county referenced by the

appellant in his brief? he indicated they had a monetary fine. >> the list i have, october, 2012, i don't even have amador county as even having an ordinance. i'm not saying they don't, they may. the list i have of facilities, of klts and cities that have these retail tobacco permitting -- i'm not clear where that information was gathered. >> thank you. is there any public comment on this item? okay, seeing none, then you have 3 minutes of rebuttal. >> first of all, i really appreciate the board's interest in the economic impact of these sales and in the fact that

there really isn't any rhyme or reason to the 30 days. also, yes, it is true the way your statute is written, all you have is suspension. however, the party can elect to pay a fine outside of the suspension to avoid the suspension and just a personal agreement or as a side agreement with regard to the violation. there's nothing prohibiting that at all. i think more importantly if there is going to be a suspension that's upheld, and let's just go back, this store has been here for 20 years without any violations at all. this is the first violation it's had. i think it's appropriate at a minimum that the time be at least cut to 15 days or that the board determine some kind of fine and my client will elect to pay the fine because he's so worried about the catastrophic impact of the suspension. unless the board has any other questions, i have nothing else. thank you.

>> well, i just have one more question. so you don't have any evidence to present to us today on the financial impact; is that correct? >> that is correct. i can have my client testify to that effect. she doesn't speak english very well, but from my understanding of what she has told me or her husband has told me, she has been running the store over 20 years, the impact would be quite substantial. it's substantial enough they hired me to come down here and file this appeal and have it heard. and i think if you tie that in to the fact there's really no rhyme or reason for the 30 days, they are not even applying a 30 day rule, they are applying a 25 day rule and los angeles has a 23 day rule, i think reducing the suspension, appropriate. >> and what do you feel would be an appropriate fine? >> $5,000. it's not the amount, it's not the amount of the money, it's what the impact

is. if my client is willing to pay that, then he's willing to pay it. >> thank you. >> mr. kessler, do you have any rebuttal? you have time if you'd care to use it. no? okay. then, commissioners, the matter is submitted. >> five thousand is a lot of cigarettes. >> i don't think we're, we have jurisdiction to impose a fine in lieu of suspension or in addition to a reduced -- i was surprised to find absolutely no justification or excuse presented in the papers or oral presentation, absolutely no acknowledgement of the conduct at issue and any attempts to remedy it from happening in the futurement and for that reason i think the 30

days is appropriate. i think it's, if that was what the department decided and they could have gone up to 90, i think that's well within a reasonable amount of time. . >> i do find it troubling that we don't have anything presented to us. is it true that we don't have jurisdiction to convert this it a fine from a suspension? >> i would be careful about that in light of what's been said by the department of health. at this point i'm just not, i'm reluctant to say you do have jurisdiction over that. >> well, i think regardless, based on what was -- the lack

of evidence that was presented tonight as to the financial impact, i would have to agree with president hwang and uphold the 30 days suspension at this point. >> commissioner hartado, that discussion on monetary fines has come in front of this board many times. and previously some of the arguments were that if one sold liquor to a minor, the penalty is $300. there is no suspension involved by the state of california or local law. i would argue slightly differently. given the nature of the economy now and the fact that we actually have seen less appeals of this nature in

recent years, i would give them a little bit of a break and wonder whether we would accept a suspension of 20 days. >> i mean i guess i could be persuaded of that. i think the suspension needs to be meaningful so as to act as a deterrent. the number of days does seem somewhat arbitrary and again we don't have enough data to calculate the impact. i could offer 25 and split the difference. >> i'd be prepared to make a motion. i'd move to, in light of where we are with the economy i would uphold the department -- excuse me -- accept the appeal and uphold

the department and reduce the suspension to 25 days. >> shall we call the roll on that, commissioners? mr. pacheco. >> on that motion from the vice president to grant this appeal and reduce the suspension to 25 days. on that motion to reduce,. (roll called). >> the vote is 3-1, the suspension is reduced to 25 days. >> thank you. moving on to item no. 7, appeal no. 12-103, paul antono versus the department of building inspection, the subject property is at 1123

folsom street for construction work done without a permit. on for hearing today and we can start with the appellant. >> good evening, my name is paul antono, the appeal that i am working off here, it was not that the construction was done without a permit. on august 9, 2012, that's when i picked up my permit to do, to convert this space which was a 15-room motel into a two-unit -- two condos. the original notice of violation was received in 1996, 15 years ago. we had purchased the property in 2005. when we purchased the property there was nothing on the title report that had said there was a cloud on the title or there was an abatement. the abatement actually

occurred in 1998, director's decision 3.998 and there was an initial bill paid in 1999 and we didn't find out anything until 2010, september of 2010, that it was going to be referred to the city attorney's office. as soon as we received that, i actually went to the housing department and i spoke to anthony leppe to figure out how -- what was going on, how to fix this problem. so we construed a notice of vial violation, he came in and did the property, i had an agreement with the tenants. it remained vacant until 2009. i rented it to commercial tenants. it was an agreement they needed to move out so we could correct the 2006 violation and convert the building, but the fees that were assessed on the 9 times

fee was based on anthony leppe's two code violations which he said there was to hand rail and fire ladder. so i have a contract that i have with a contractor from october of 2010 just to maintain the fire ladder and to put wooden railing, installation materials for a thousand dollars. i paid in 2012 i paid $25 times the fee with the job card, when it was approved. >> you paid based on 25,000. >> exactly, we had to do a 314 notice, which we had to get around to all the neighbors. it took a while to get the people out, to notify the

neighbors and submit the permits, submit the architectural plans and permits, structural, so anyway, i paid based on $25,000 and it's more of a -- it's not a lot of money that was paid, but i don't think it was warranted, especially when it was only these two items involved, which was the ladder and the fire escape. >> did you request the department to take a second look at the valuation? >> i did and they said to file an appeal. and that's what i did. >> okay, we'll hear from the department, then. >> good evening, commissioners, joe dunphy from dbi when i was looking at the

brief i couldn't find the notice of violation that had the penalty on it, it was president part of the brief. so i made some copies of the notice of violation that has what the inspetor wrote it up with. i'd like to pass that up. >> that would be great. >> basically we have a notice of violation issued on september 17th, 2010. the legal use of the building is a

15 guest room hotel approved by permanent application. the hotel is located on the second floor of a two-story building over a ground floor commercial. there have been changes made to the original floor plan, rooms have been removed, there is a new bathroom with extensive electrical outlets installed. permit research shows no permits have been taken to perform any of this work. so basically it is a notice of violation for work without a permit. inspector lappe put 9 times fee on $25,000 so it doesn't say on the violation when the work was done or who-done-it, it just notes that there is definitely work there. i did look up the 96 notice of violation. it actually was very, i wasn't able to get that many details on that, but it seems this issue may have been an old one but nothing was done

on it. so when the inspector went back in 2010 it was still an issue and he ended up writing it up. that's where the $25,000 penalty came from. obviously the new owner came in and i'm not sure what happened with that, but the penalty would have been on the work done without a permit. so i'm available for any questions. >> mr. duffy, this 2010 nov, is it referring back to the 1996 violations? >> that's a good question and i can't figure that out myself with reading through and i went today to get the housing inspector, i was unable to get that. one of the questions i wanted to do as part of my research but i didn't get that. typically if the work was done by a previous owner, we do have some discretion with that

because they are obviously taking care of it now. i'm not saying not to reduce it, but it was work done without a permit, it wasn't taken care of. the inspector did the right thing at the time. your point about talking to the department i always think is a good thing to do. if they tell you to go to (inaudible) better to talk to some of the deputy directors so you are not coming here to do that. i'm not sure what happened, i was president part of that. i don't know if it was part of the 96. i suspect it was because i looked at permit history today and i didn't see a permit to take care of anything relating to 96. >> because the work he's talking about, a hand rail and stuff, none of it is listed here. >> i know, and when you look up the notice of violation in the brief, that's all that talks about. i couldn't figure that out either when i started reading it and then i was able to find this notice of violation. there wouldn't be a 9 times penalty for fixing a hand rail.

>> i wouldn't think so. >> only work that was done without a permit so i think the question would be who did the work and when did they do the work? >> would you like to have more time in meeting with this gentleman and come back to us at a future date? >> i'd like to have spoken to inspector leppe, absolutely, before tonight but that wasn't able to happen. if you'd like to, i can try and resolve it, maybe, at a department level. >> commissioners, i'd like to have a correlation between the scope of work and the valuation so we know exactly what's going on. >> the inspector went there in 2010 and could not determine when the work was done. that might affect the penalty and i'm not sure, the penalty would have been put on by someone in our department at the time prior to the issuance of the permit, so i don't know how that discussion went. he may have used someone else to pull the permit and didn't realize it, just gt a bill and then

realized there was a penalty on this. if you hire someone to get a permit, they are going to go ahead and pay for it, to get the permit. maybe that's what happened. >> how much time do you think you'd need? >> two weeks. >> madam director? >> i would say if you want it on in november i would suggest the 7th over the 14th. >> november 7th allow you an opportunity to visit with the department and see if you can clear this up? you need to come forth here if you're going to speak. i think you would go through first mr. duffy. if that's all right with you, commissioners, then i will move to continue this to november

7th. >> so that's to allow time for the parties to discuss a resolution and if that doesn't work, then for dbi to do additional research. >> right. >> on that motion to continue from the vice president to november 7th. (roll taken). >> the vote is 4-0, this matter is continued to november 7th. thank you. >> then we're moving on to items 8a and 8b, which shall be heard together. 8 a is appeal 12-090, 8b is 12-091, appellants are carol seligman