>> 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 been waiting especially. my apologies. >> but as before you begin i just want to mention to those

who are interested in speaking, if you are affiliated with one of the appellant companies you are not allow to speak, your time to speak is under the time a lot to the party. >> good evening, john from the department of public works and mapping. i was unable to provide a brief to the parties because we received the appellant's brief on last thursday. so we didn't know the content of the appeal, specifically. so we have had since gotten a copy of the appeal through the applicant and we have reviewed it and we want to address the concerns that were brought up to this commission, to this board. in this specific case, i think that there is a misnomer under the concept of like foods which appears to be estimated by the applicant is about the type of

food. the applicant sells coffee products espresso specifically. what we have looked at is the composition of the menus, among all of the businesses around in many cases, except for two, which is petes coffee and starbucks, those two companies through the majorty of the revenue through coffee products i don't think that is disputed in any case. in these other cases they do, many of the merchants sell coffee, but also sell other food products throughout the day. so, the evaluation from the hearing office determined that yes, while coffee is one product, it is not the majority of the specific and that is why they need to be deemed not like food. we did go back, based on the concerns to revalidate. as noted at the 84 second street location.

if we take a straight line as the bird flies distance from the location of the proposed food truck, to the entrance of pete's coffee, the distance varies between 219 feet to 244 feet. what that implies someone who is walking from the food truck to pete's coffee would have to jwalk through second street and mission street. whereas if we followed the pedestrian walkway and go through the crosswalk the distance is 350 feet. there is a fairly fine distinction from that perspective that remains to be a challenge from that case. star buck coffee is approximately 243 feet away. we did not receive an objection from starbucks coffee. if we had received an objection from starbucks coffee, we would

be here and most likely to be deemed in this specific case that there are like foods and most likely would have denied a permit at this specific location. just purely based on location? >> purely based on location, per, the director's order. and the information provided, we are looking at the entire composition of the menu, specifically >> let's not go that far yet. >> okay. >> you have standards for how you measure and we had the long discussion previously on those issues. your method of measurement is based upon walking distance and not by radius, is that not

correct. they is indicated a half a dozen to eight restaurants, some of them much closer than starbucks and can you, confirm at this point in the hearing, the location of those with respect to the 300-foot radius? >> i believe, excuse me. in many cases, these dinners and restaurants are within 300 feet. of the proposed food truck, specifically in this, or along second street.

>> yeah. >> at this point we are trying to get the facts. >> yes. >> i would i think that we can go on from that. i see that, you know, from the map supplied by the appellants there are obviously restaurants closer to this location than starbucks. >> that is correct, sir. >> isn't the department's position in this case exactly the opposite of the position that if took with a lot of exotic food, they served coffee from africa and whether that was likes foods with respect to other institutions within the 300 feet? >> that would be correct, commissioner >> how is it distinct this time? how do you reconcile the two decisions by the department? >> right. in this specific case, based upon the decision by this board, it appears that the

department was given specific directions of how it should be evaluated. and based upon that decision, we made this decision. >> okay. >> so you took the instructions from the board from the last hearing. >> that is correct. >> okay. >> and so the timing is and the permit came in with the board's decision. >> that is correct. >> that is helpful. >> thank you. >> okay, now we will take public comment. people interested in speaking, please step forward. president hwang how much time? >> how many speakers? >> okay, three minutes. >> my name is jamie patrick and i am here with patrick and company in san francisco. i am speaking on behalf of or

as a business owner with retail within the second street corridor, property owner. owning four different properties on the second street corridor. as well as a landlord with restaurants within that second street corridor. my family has been operating a business at that location just after the earthquake. and i can tell you every day, i have been working there 15 years, every day, another coffee place opens on that second street corridor. whether they are specifically coffee, or they have or sell other things, from 6:00 in the morning to 10 in the morning their primary business is coffee. and the more that we take away and add businesses such as a coffee cart or a coffee truck, my fear is that these companies that are paying for property

tax, that are paying for high rents are going to go out of business and to me that is a shame. how would someone that only has to pay a small fee and a parking a couple of quarters for parking, how is that fair business practice to those brick and mortar businesses that struggle every day to pay wages, property tax, insurance. so, you know, if we want to talk about a 300-foot radius, you know, there are a few businesses that are actual coffee places that are not being discussed here and one of them is muffin, muffins. they have been there for years and years and they are from within a 300 foot radius and that is what they do is sell coffee and muffins in the morning. to me, i think that we are going in the wrong direction in terms of coffee carts. we have got, our food trucks, and food trucks are designed to

service those areas which are not served by restaurants, and downtown, san francisco, right in the middle, we do not need continuing to approve permits for food trucks. and i have this quick little thing here if i can show it. this is an area that i am sorry the red dots are all places that serve and focus coffee from 6:00 to 10 in the morning. i did not include anything above market street and there are an additional four or five on the market street and second on the north side of market street. so as a business owner, i really oppose another coffee cart in the area. >> thank you. >> thank you. >> next speaker, please and if you have not filled out a speaker card, already. we would appreciate it if you would do so when you come up or after you speak.

>> good evening. >> the appellant's attorney has asked me if the board could double check. she believes that some of paoement that people in line to speak are part of the second street merchants. >> oh,. i am not sure how to check other than to reiterate that that is people associated with the second street merchants and i can name them off if you don't know who they are should not be speaking under public comment, your time is speak is under the time for the appellant. >> does everyone understand that rule. we ask that you honor it, thank you. >> good evening, honorary members of the board my name is monet josen and i own a 711 down the street and nowhere close to second street