>> the only thing that we don't

want the suspension, a liquor store without cigarettes does mant. we want to keep it to support our family. >> we ask to keep our permit and that is the only thing that i can say. >> it is the first time that it happened and we are trying to do the best that we can. we now, we are trying to take all of the time. we bought something to check it to, and we are trying to work hard on it. >> how long have you been in business? >> well, i have been in seven years but together is three years and a half because i have another liquor but then we decide to be a partner. and >> what type of training did you give to your employee?

>> well we tried to explain him and to train him like a month and nevers. and >> how old is he? >> he is 42. >> okay. >> thanks. >> anything further? >> did you want to speak? >> no. >> okay. okay. we will hear from the department, now. good evening, the commissioners, laerry kesller, manager for the retail tobacco permitting program. we received a referal from the san francisco police department that on may 19th, 2012, a clerk at aone liquor and grocery sold a pack of cigarettes to a

minor, through their decoy program. based on this being a first offense, and that they did ask for id from the minor, dph ordered a 25-day suspension of their permit which has been kind of a standard policy. at the dph director hearing on november 12th, the order was upheld by the officer, i am happy to hear that they bought a device that helps. it sounds like they bought a device that would help from now on in making sure that the identification matches the age before they sell the cigarettes that is the system that they purchased that helps a lot. and that is indeed what they did. >> and if you have any questions? >> >> thank you, is there any public comment? >> seeing, none, do you have anything further?

>> no? >> okay. and anything further from the department? no. okay. commissioners. >> i have a question for the department or the appellant. >> the location of your business is what is the actual street location? >> could you stand up in >> erving and the cross street in >> 42nd avenue. >> is there any schools in the vicinity? >> no. >> well not close to two blocks. >> do you get the students coming in from the schools nearby? >> not really. thank you. >> i guess that it is... you

know, we understand the law and the law has been there for quite a long time. and the question that we always raise when we hear that the tobacco cases, the sale of the tobacco to minor cases is how to equate the penalty within that law and yet, recognize that perhaps it is i little

difficult time for not only the economy in general, but for the small business owners. it is not my intent to ever totally wave a penalty, based upon the law and program, but i... maybe for thanksgiving, i am willing to reduce it the penalty. i would like to reduce it to 15 days. >> i am a little torn too because there was an infraction and i think that there needs to be some penalty for that.

i also know that this is their livelihood and i would be enclined to go lower, 10 days. 14 days, is that? would you do 15. >> i said 15. >> then, i am okay with that. >> thinking about work weeks. just state for the record, on principle, i believe that 25 days is an appropriate penalty. i understand that it is the first time offense, and that the department has up to imposed up to 90 days. selling to minors is a problem. and i think that my understanding is that the type of enforcement has been actually effective in deterring this type of conduct. notwithstanding the fact that i do agree that it is difficult for a small business owners to manage suspensions of this nature. i think that it will, you know,

deter future violations. >> well, i guess that what i would say is that because it was a first-time offense and i believe that it was a mistake. i guess that i would be inclined to reduce the penalty to ten days, perhaps. as my fellow commissioner had suggested. i do wish that and maybe this is the case that i don't know. but i do wish that part instead of issuing penalties, perhaps, there should be some sort of public education, or public or some kind of training component that the department could impose because it does seem that perhaps it is a lack of training and how to read these licenses and we see a lot of these mistakes. and that i believe are honest mistakes happening especially with some of these first-time offenses. so apart from that, i do wish

that we could see that in the future rather than financial penalties for some of these business owners that are struggling in this economy. but my inclination would be to reduce it to ten days given the circumstances that i have heard. >> do you have a motion, commissioner? >> yes, i would move to grant the appeal and reduce the suspension to ten days. >> call the role, please? >> we have a motion from commission to reduce to ten. >> hwang, aye. >> >> no.

>> three to one and the suspension is reduced to ten days, thank you. >> so item number eight was dismissed and will not be heard this evening and we can move on to item number nine which is appeal 12-136. second street, merchants. subject properties at 150 california street and 84 second street, protesting the issue ans on september 28th, 2012 to expresso subito llc of a mobile food facility permit for the sale of espresso permit number 1 1 mff-0167. it is for hearing today and we will start with the appellants who have seven minutes to present their case. >> excuse me, going to put a timer here so i don't jam myself up.

>> we will do it as well >> clever. >> i need your card. >> sure. >> it must have fallen on the floor. all right, we will start over, again. >> okay. >> shall i proceed in >> yes, go ahead. >> thank you. for allowing us to present our point of view regarding the permit relating to the espresso subito department order 180199. i am jay walsh president of the 122nd street corporation and speaking for the association. recently my wife asked me why we are responding to the same matter that we had addressed in march my reply was that we can't appeal every case, but in

this instance, the approval based on this information or on the current legislation has been approved with no apparent verification of the real facts, like for like, the density of the businesses in the area, and the 300-foot radius clause and we want to know what bathroom access, will provide. and we are not aware that adequate notice or any such notice had been provided to affected businesses and business owners in the 300 foot radius. our program is the same as presented in the march hearing, for many years, at least 6 businesses and brick and mortar businesses offered espresso coffee in that radius of 84, second street which is the address in question. an mff operating there, thus violates the radius clause code

of pw section 148.88 paragraph d. action that we ask is to please over turn this approval for both second street and 150 locations whereby they will be in less than 150 feet of starbucks and many others, to do so will restore balance to the permitting process and in the confidence that the interpretation of rules is consistent. the items that i wanted to address, like for like density, radius clause and the bathroom access and adequate notice. like for like, in the hearing of march 28th, mr. hearing officer kevin day found for each of the two remaining sites, i quote, paragraph d, sentence, there are no like foods espresso within 300-foot radius of 84 second. this opinion, closed quotes, this conflicts with the facts

that that the 50 restaurants on second street corner serve coffee. the important distinguishing thing here about like for like is that 8 percent of the sales in the morning before 10:00 o'clock are coffee. that all of these quick service restaurants. and so, anybody. >> eight or 80? >> 80. >> 80 percent, is coffee before 10:00 o'clock. and people are coffee addicts i got to have my coffee. so therefore, a truck on the street, selling coffee is in direct competition or like for like. the radius clause, there are six of these restaurants within the 300-foot radius. bathroom access. what bathroom access will espresso subito provide. we ask the question because our group must comply to

regulations to health and ada issues and the increase in mff results in our group having to turn away walk-ins from the street. asking to use the bathrooms. our just to use the table and chairs to sit down and eat what they bought out on the street. last, adequate notice, we are not aware of adequate notice or any such notice that had been provided to the effected business and building owners within the 300-foot radius, if proper steps had been taken, perhaps we could have shorten the discussion of these above issues. please, over turn this approval for the second street and 150 california locations as they will be within the 300-foot radius of starbucks and many others. in doing so, restores balance to the permit process. i have another statement for a person who had to leave. shall i end mine and begin the

next one or sit down and someone else speak? >> you still have time. go ahead. >> good. >> this is for deborah sellers of sellers market. also, at stevenson and second. 240 feet away from 84 second. her points that she wanted me to make were the landscape going forward for the city and downtown area and risks to us all. right now, there are in this, and some of this information that i got from a documentary on trucks in san francisco last week. how timely. 75 mffs from the downtown area, and reported 350 in the city. and on the tail end of the report it mentioned, only one health inspector for those 350 vendors. and that could be verified but that is what i heard.

but if you do the math, a normal restaurant has four inspections a year. so if you do the math on 350, that is 1400 inspections a year, for one health inspect or, if this is really what is going on, it is putting the consumers at health risk. that is point one, like for like, again, restating that 80 percent of all business before 10:00 o'clock is coffee, if you don't have coffee, you don't sell anything during that period of time in all of the restaurants along the second street corridor and my building, i am involved because i have a building on second street and i am very aware of the neighborhood. and also, i want to mention that pizza is also part of this appeal and starbucks is included in this whole discussion although they are not a part of this appeal. our measurements as far as where those businesses differ

from what was on the report. and last item, which is ties in to the ongoing discussion, the legislation for these trucks was meant for under served areas and not the heavily populated downtown areas. thank you very much. for your attention. >> thank you. >> if you have any questions? >> sir, i have a question. your brief talks about the second street location and your closing comment brings in the 150 california. >> i understand that the permit is for both locations. >> are you folks objecting to both location? s >> yes, thank you. >> any other questions? >> thank you. >> thank you. >> okay. we can hear from the permit

holder now. >> mr. president, and vice president and commissioners of at peel board good evening, my name is gary gold stein and i am the owner. i was previously wholly bagel expanding to three locations. while operating, it starbucks began their san francisco operations. targeted bagel shops investing in my competitor. whenever it opens by wholly bagel i worried, in every instance my business increased. they knew that opening up to complimentary businesses created synergy. ni have worked within the guidelines set forth by the city and the department of public works and the health department and hope to continue

to partake of the free enterprise system. i adhere to all criteria and my permit was approved. at the hearing, i shortened my hours, cut back my menu, and withdrew one of my applications. i operate only from six to ten in the morning. i open long before most of these businesses even open. i close shortly there after they open. i do this to appease any protestors and my permits were granted by the hearing officer. i sell only beverages, coffee drinks and esresso. i don't operate during the lunch hour. if there is ever enough of, or long lines at the coffee houses, in the financial district as you evidence each morning.

we intend to provide a convenience for the morning hours for the commuter traffic that people that don't want to wait in long lines. i have invested a great deal of time and money. based on our adherence to all of the criteria set forth with the city and the department of public works. i spent many months researching the locations that will fit their criteria frankly i am e haufted and a great stress is placed on my family and finances. this permit process is now in the 14th month. i will be buying all of my products locally, i sell milk from this area from dairies and i buy my beans from a small run family. i respectfully ask that the board up hold my permit. my attorney will speak to other issues as regard to the appeal.

thank you. >> i am debbie with the law firm, and i have hired espresso to provide a coffee cart and we had good experience with him and his business and we are helping him out. we are hear to asked that you up hold the permit approval as is with no new conditions. as you know, a permit has been issued that would allow them to operate a truck only during the hours of 6 a.m. to 10 a.m. on weekdays at two alternating locations in downtown san francisco. this decision came after a public hearing during which he made major revisions to his proposal as he described to you earlier, he went from 11 hours to only 4 hours per day. i wanted to draw your attention to a couple of things that the

guidelines say. the hearing officer may consider which the operation is located within 300 feet of an established business which has been done and they go into a lot of detail as to what constitutes the same type of food or like food. >> as you can see, a lot of variety of factors that can be taken into account including the ethnicity of the food and composition of each menu along with anything else that is sold. as you can see the example that was given in the guidelines is a coffee cart should not significantly effect a traditional diner just because it also offers coffee on its menu. none of the businesses with the exception of starbucks, within that 300 feet of the second street site provide a menu that is focused only on coffee and that goes to the 150 california

site. we have included many of menus in exhibit g to our brief. the only is starbucks because the pizza is outside of the 300 feet. walking distance. starbucks has not to our understanding shown up for any appeals and don't seem to be worried about it. perhaps we will find out differently but that is my understanding. they also sell their brand and they don't sell their coffee, but it is based on their brand. it does not seem like it is a big concern to them. >> they don't specialize in locally roasted and organic fair trade coffee which is what they do. it is a specific niche of coffee that it sells. >> starbucks sells, many, many other types of food and beverages it took me forever to printout all of the pages for the brief. all of the food businesses have much longer operating hours. i put together a very, rough,

comparison of hours for you to see, the top one is the espresso's hours and the rest of these bars, show the operating hours for all of the different restaurants that we believe were concerned with the appeal. a harvest and row cafe operates six hours a day. pizza opened five days a week, starbucks, 15 hours a day, so espresso is proposing to operate four hours a day three days a week on second street and four hours twice a week on california street. they have also raised other issues regarding the path of travel on the site and we would be happy to address those further if you have any questions. and some, he has done exactly what he was supposed to do, he canvased the area and complied with the guidelines and received his permit we ask you

to ep hold that permit. i am going to quickly show a couple of pages of petitions, signatures which were gathered that i would like to show to you as well as two letters. we would like your permission to submit them to you into the record. may we submit them in to evidence. >> we got into it late in the game. and he was not aware that it had to be submitted before. >> the letters support the application. >> fine with me. >> thank you, very much. >> thank you. >> >> is there any public comment on this item? >> okay, you can step forward. remember if you are an employee of one of the appellant departments. i am so sorry. before public comment, he has