with, but again whether this properly belongs before this commission. and i would move to deny the appeal. >> well, my only comment is that i'm not changing my vote from the last time. i looked at the city attorney's opinion. i continue -- i went through it in detail at the last hearing. i continue to believe it does not support the position that we are without jurisdiction in this type of permit appeal, so i would still vote to grant jurisdiction. >> okay. i am -- would love nothing more to hear this appeal, the merits. unfortunately i think i'm unable to get around the fact that i

hold the few that this say policy decision, and understanding further the distinction between the type of permit that this policy would address versus the medallions that the people on the applicants' waiting list would be entitled to is helpful for me to get some clarity around. i think that i'm -- i think unfortunately because -- it's unfortunate for me because i care a lot about the issues that the people here raised tonight. very articulate passionate speakers. i appreciate your voice. you need to organize and keep pushing. this is not the forum for that in this particular case doesn't hinge on what we decide here, your rights and ability to move forward

with your own agenda and needs. it's not what we are here to do today for us. that's my view of it. i know i am taking a view that's a more strict reading of the code at issue, but i think in interpreting what has been presented before me that we do not have jurisdiction, so i would lean in the direction of commissioner lazarus. >> do you have a motion? >> there was a motion made by commissioner lazarus to deny the jurisdiction request, so we can call the role on that if commissioners are ready. mr. pacheko. >> we have a motion from commissioner lazarus to deny this issue to not invoke subject matter jurisdiction over the mta's resolution. on that

motion vice president fung. >> no. >> president hwang. >> aye. >> and commissioner hurtado. >> no. >> thank you. the vote is two to two. three votes would be needed to grant jurisdiction, so a jurisdiction is denied over this resolution. >> so commissioners on this motion fails just to be clear unless another motion is made and no jurisdiction is granted like was said. okay. so hearing no further motion president hwang do you want to call the next item or take a break? >>i would like to take a break. >> okay. thank you.

>> welcome back to the november 7, 2012 meeting of the san francisco board of appeals with president hwang's consent we're going to move around the calendar and take item seven. which is paul iantorno versus the department of building inspection. we're taking this out of order because parties have negotiated a solution and this is about the property on folsom street and construction work done without a permit. the matter was heard by the board and continued to allow the parties to discuss a resolution, so i will ask both parties to come forward if you will and tell the board what you agreed upon and the board can decide what action to take. >> commissioners, i was at the last hearing and spoke to inspection staff and our department is happy enough to

drop the penalty down. it shouldn't have been put on. i will the applicant was working with the department, but had someone do the permit and we're happy to drop the penalty to two times. >> , can you state whether you're in agreement with that. >>i am in complete agreement. >> thank you. is there any public comment on this item? seeing none the matter is submitted commissioners. >> commissioners, i would move to overrule the department and reduce the penalty to the lowest which we can which is two times. >> okay. is there any other commissioner comments? okay. if you could call the role please. >> we have a motion from the vice president to reduce the penalty to two times the regular fee. on that motion president

hwang. >> aye. >> commissioner hurt hurt. >> aye. >> and commissioner lazarus. >> aye. >> thank you. the vote is four to zero. this penalty is reduced to two times. >> thank you. we will move back to 4b and jurisdiction request at the subject party is at 488 guerrero street and the requesters ask that the board take permit application over this case which was issued on march 13, two 027. the appeal ended then and a request was filed at the board at november 9, 2012 and the project remodel a restroom for coffee shop and 15 seats and no food preparation and prep area. we will start with the requesters'

attorney. mr. zacks. >> good evening. i am andrew zacks and i represent the owners on the property at guerrero street. we are asking you to take jurisdiction over a permit that pursorts to accomplish a conversion of the property from a cafe to a restaurant. there are a series of permits that we are concerned about, one of which is already before the board. that's a permit filed in may of this year and two months before the subject permit. the history of this property -- if you turn the overhead on for me victor. the history of the subject -- >> [inaudible]

>> great. thank you. >> (inaudible). >> okay. thank you. the history of the subject use shows that most of the last 10 years the subject use was actually a retile art gallery. this was demonstrated in the application filed last year to legalize the arts gallery as a cafe shop. cafe shop is retail use and no food preparation. it's not considered to be a restaurant. several months later in march of this year subject permit that we're asking for jurisdiction over was filed, and that permit request the establishment of a coffee shop, a coffee shop -- it shows that the legal use is a coffee shop. at the same time this permit was filed the permit i showed you before was filed on the same day. this permit is

clear and shows there is no food preparation in this use so the intent of the operator of the property -- of the applicant no food preparation. it would not be a restaurant. two months later in may, a third permit is filed for this particular use, and that permit somehow shows that there was a creation of a restaurant which is shown here on this application, and that the current use is a limited restaurant, and the proposed use is a limited restaurant, and if you see on this permit crossed out on the bottom of the permit is change of use from coffee shop to full restaurant so we go from a art gallery to a coffee shop to a restaurant with no notice to my clients the adjacent property owners. it's my belief the board should grant

jurisdiction to have this permit and application heard at the same time of the one that was filed in may and before you in december. there is no harm before the plblghtant because the project is before you at that time. it's on hold because of the appeal. we believe it's important so the full board can make a decision with all the information before it and clearly a failure of notice in this situation. >> counselor, what is the other appeal? what is the nature of the permit on the other appeal? >> i have that actually in front of you and that was to install a hood to accomplish the food preparation that is intended in this restaurant, so that hood is -- the feature that completed the conversion from the gallery to the coffee shop to the restaurant. without the hood they couldn't prepare the food. >> all right. >> we can hear from the permit

holder now. >> i'm sorry . i am just a little confused. sorry. the permit to convert to a coffee shop was withdrawn on the same day that -- can you do that chronology again? i am confused. >> we have a march 6 rewithdraw, the permit filed in october. that withdraw the application for the use of coffee shocht the same day it was filed showing it was a coffee shop and create it that point. >> and that's the permit to have jurisdiction. >> we believe it's important for the board to have authority over that. thank you. >> okay. >> good afternoon. not true. let me tell you why. the coffee shop has been there since 2000. mr. sanchez can verify that. the coffee shop has been there. the first permit that was

pulled on that project to remodel for handicap accessibility because they left it in very bad shape. my client went there and did the permit to comply with ada accessibility and they start working on that project which is march -- according to this march 6. now, there's an ordinance came after mr. wiener's office -- scott wiener's office. they decided to convert all the coffee shop because a coffee shop -- it has very bad -- you can't cook the food. you only have to be wrapped in aluminum foil or plastic and displayed. you cannot cook on the premises. now with starbucks and the

other companies tried to change that and they went there and we change to three items. one call it a coffee shop. if anybody before march -- i think march somehow -- if you have a coffee shop, bonified coffee shop you are already a limited restaurant which means you can cook but only certain seats. my client has 15 seats and put the hood in there so he went there and did the second permit and they appeal it and we under the appeal until december the seven. we will have it in front of you. automatically went there they talked to my client, and the neighbor went there and over here and move it this way, so my client has no idea what he's doing because he's a cook. he's not a contractor. they moved the work in front of their

building. i took a picture. i am a general contractor. i did the drawing. i knew exactly what was going on. they stop him not to give him a hard time. he had two stores and he pulled money to invest in this one. nine months he has been in this limbo situation. he can't do anything. he needs somebody to help him out. we start two weeks ago. their office called and don't file anything. we go to the scott wiener's office and get the mediator to what to do. i called scott wiener's office four times and finally a meeting friday in his office. i don't know why they stopped the project. they already stopped the project but my client can't wait anymore. >> thank you.

>> sir, that definition for limited restaurant. is that codified? >> yes. can explain. the document is right here. he can explain to you what it is. >> okay. >> thank you. good evening president and members of the board. scott from the planning department. the subject party is on guerrero street and residential zoning district. it previously had been an art gallery and retail use under the planning code defined in the code which is general other retail uses. they had in 2005, and i believe it was the current permit holder under the business sought approval from the department of public health to

self service restaurant and two requests and for that and a full service restaurant. we noticed they would have to go through conditional use authorization or community notification. they didn't pursue that. there was another one in 2006 for a full service restaurant and they didn't pursue that. in 2007 we received a referral that dealt with a coffee shop, and under the previous planning code definitions retail coffee stores are the same section as a art gallery, so under the planning code there is no change of use and principally permitted in most zoning districts but it had strict limitations on what you could do. drinking use only. you could have prepackaged sandwiches but no microwave and

restrictions that people thought were ridiculous, and i think over time the rus fraigz was apparent and scott wiener introduced legislation that took more than a year to go through the process. i believe it started under a previous supervisor and a year and a half that supervisor wiener worked on it. it went into effect in may of this year and took the retail coffee shops and considered them to be limited restaurants and up zoning of those uses and allowed food preparation in those uses, and again in 2007, and again in 2009 had approved permits for retail coffee at this location. i know that the jurisdiction requester has stated concerns they might not have been abiding by the requirements and preraring food during that time. i can't find complaints in records related to that or in department of building inspection so with that they're

retail coffee under the planning code. now they're seeking to add food with the current zoning. that's why they're adding the hood and on appeal and heard by this board next month. i spoke to the neighbor and my knowing is most of the concerns were not with preparation of food but the smells of the hood and the board could deal with that at that hearing. i am available for any questions. thank you. >> so in the eyes of the department and the cafe store authority has already been in existence. you're just not aware of the extent of operation they had. >> that's correct. and we twice approved referrals from the health department authorizing the use as a retail coffee store. >> okay. >> thank you. >> do you have anything?

>> commissioners i would just like to add that the permit seems to be approved by the building department when it come in for the review, and i noted on the inspection history that there are three inspections that have been performed, so the projects obviously started. i am available for any questions. >> is that involve mechanical inspection? >> no. it's a sheet rock nailing and corrections required, so nothing mechanic along that. >> so the work is predominantly related to the ada restaurant? >> that's the way it seems, yes. >> okay. >> thank you. is there any public comment on this item? okay. seeing none then commissioners the matter is submitted.

>> commissioners, based on the what was indicated as one of the primary reasons to be against the project which is the venting into the light well and smells. i believe that will be covered under the next permit. i am not sure that we want to stop the ada restroom effort. it does say "no food preparation" on it so i am prepared to not take jurisdiction on this case. >> do you want to make a motion? >> move to deny jurisdiction. >> okay. is there any efficient commissioner comment? seeing none if you could call the role please. >> we have a motion from the vice president to deny jurisdiction. on that motion president hwang. >> aye. >> commissioner hurtado. >> aye. >> commissioner lazarus.

>> aye. >> thank you. the vote is four to zero. jurisdiction is denied and no appeal shall be filed on this permit. thank you. >> all right. thank you. we will move to item five which is appeal of inge dhillon versus the department of building inspection with planning department approval and rosemont place and issuance of with -- joan jonathon withrington building and this matter was heard on april 18, 2012 and on for further consideration today and allow time to search for alternate housing. is there someone here? anybody here representing either party?

>> did you receive any communication? >> there was briefing allowed but no briefing was submitted and i have not received anything. have you heard anything from the parties? >> no. nothing, and the file shows it was continued to today from an august 1 hearing. there were no subsequent reschedulings so all the parties were in the room when the board continued it to today. >> you may recall that the appellant was represented by community organization. >> yeah, i think mr. jim fay of legal systems to the elderly. >> i'm going to move to up hold the permit. >> okay. is there any public comment on this? okay. seeing none -- >> also just add for the record that i did review the video from the august 1 hearing, so i can vote. >> in addition at that last

hearing we indicated that the time was approaching that this board was going to make a decision. >> okay. thank you. if you could call the roll please. >> on that motion by president hwang to up hold this permit. vice president fung. >> aye. >> commissioner hurtado. >> aye. >> and commissioner lazarus. >> aye. >> thank you. the vote is four to zero. this permit is upheld. >> we will call item six and henry johnson versus the police department, 1195 quesada street is the subject address of a tow car permit. public hearing was held in september 19, 2012. the matter was continued for the sfpd to clarify its action and

additional briefing was allowed and commissioners as you know there was additional briefing in your packets. >> could we allow for additional comments? >> yes. if you like, and you can -- typically we hear from the appellant first but if you would like to hear from the police department first it's -- >> let's hear from the appellant first if you have anything. >> mr. johnson please step forward and you have time to speak, three minutes of additional time to address the board. >> yes ma'am. good evening 789 i want to put a document with that paper. >> >> to show what is really going on about what i feel -- what he feel -- he don't feel that i show substantial documents about my honesty. i got a document here -- >> the taxi case -- somebody left a document in the window.

>> yes. >> (inaudible). >> yeah, i would like to show this document to the public. this document shows that this is what i gave this gentleman. the document i gave him when i went to his department. it shows everything about me, all my convictions and everything about me which is straight honesty, so what he said i have been dishonest is not true. he judge by character all the time about how i drive and who i am. i never suspended for dui, conviction of nothing, illegal nothing. my license hasn't been suspended or revoked. but this incident he's talking about -- i have one of the highest licenses. i have a class a license. i can drive anything with wheels on it in san francisco right at this point. his character is so much to judge me. i have been around before this officer even been

-- before he was probably a police officer. i been around basically since 1997 and this permits shows here right here since 1997. i have upheld a permit here in san francisco -- i have upheld a permit here in san francisco for all these areas and i can prove. i have held a permit since 1997. all these permits here -- i am holding one here basically since 1997. every permit that he said i don't have i have here valid, and let me get this one that i have. i marked every one of them. every permit i have. >> turn it the other way sir. >> all these permits i have they're all valid from day one where he's at. i have permits when this gentleman wasn't even working in this office, so he have a disease. the disease he

have -- i don't know what it is but it's not me doing anything wrong. i don't see how he sleep with himself taking an honest job from him. everything is valid and legit and i showed everything and if you didn't see what is on the paper you didn't do your job and actually -- right here. he took $700 of my money and you took $700 of my money on that day, and i showed you this paper so how can i be dishonest and another fee of this money, so i don't understand, so i will like him to go ahead and speak and tell his lie and the gentleman that isitting with him is the officer that i spoke with one time before. he has sat in my face and told me and my son personally, the gentleman on the side with him and was in court with him that day. he told me and my san "yeah, a man want to

work should be allowed to work". i feel it wasn't right but i talk with him, so you have an officer on the side that disagree with what you're doing. >> thank you. thank you. >> thank you very much. >> mr. johnson, the first page that you showed us which shows your history you showed them at which hearing? >> sir, i bring this every time you report all this down there. they make you bring a dmv print out. every time i show up on the office i bring this that is on the screen. he had the form with the money in his hand. by him being a police officer -- >> mr. johnson, thank you. you answered my question. >> and the police report. >> okay. i would refrain from further disparaging comments. thank you.

>> [inaudible] >> good evening commissioners. i am the hearing officer that was the second hearing before the police department. the rules pen permit rules allowed for a permit hearing and then at that time if the individual is dissatisfied with the decision he has two options and one is to appeal here. second option is to appeal back to the police department and have the matter heard before a second hearing officer. that's what -- that's the hearing i conducted. i just have -- i think -- i hope that you reviewed the letter that the officer sent over. i think it clarifies the procedural mistakes, i will call them, that were made by the police department, and i apologize for that, but at that point in time i had recently retired.