truck alternating between the two locations if the second one comes through he will use it at the original site. >> mr. hwang? >> good evening, commissioners, once again. the departments procedures as it relates to mobile food has always been fairly transparent. through our director's order. it is posted on the website for the general public to review. there is in our process a notification requirement by mail to all merchants and businesses within 300 feet of the proposed location as i have repeated several times to the members of this board. we also are required under the law to also provide

notification if a merchant is working after hours, specifically. and in certain cases check with the san francisco police department to ensure that these facilities are appropriate. in this case, we believe that we are follow our procedures correctly and processed the permit accordingly. and also this specific decision was also a measured response in many ways to the previous decision through what was coffee and then to director given by this board itself. i really have nothing else to add. i am prepared to answer any questions that you may have. >> thank you. >> i am not sure that i would have equated you know, all of this coffee with quite with what we are talking about. i would say a more appropriate

example is the discussion that we had on the hamburger truck nearby on what was it beal? or somewhere nearby. any way, that was more recent than the guiradelli square. the question that i have for you is when you look at the previous... some of the previous cases and locations, you did a fairly substantial review of the menus and of the or what was being offered to make a determination whether it was like food or not in some of those cases. in this instance, the organic espresso that was being provided by the permit holder,

did you do a similar analysis, comparing that to what was being offered in the other restaurants of the area? >> the review, happened and... we were directing this hearing when we received objections there were over 30 objections in this particular location and many the merchants came out during the director's hearing and said that they do so espresso but have not specified specifically as it results to the beans or how they go about producing it. the objection, that we received through the hearing, was exclusively that i also show espresso at this time and that is the definition. that was their belief of like food. >> but what about the department based on this decision did not feel it was like food here in this instance. >> correct. in this specific case, because

we have to look at the entirety of the menu that is provided by the merchant. >> so, you did perform a detailed analysis. ; is that correct?? >> that is correct. there are lunch menus and other types of menus associated with many if not all of these. >> i just want to know if the department did that analysis. >> yes, we did. >> okay, thanks. >> thank you. >> thank you. >> commissioners, matter is submitted. >> you know, commissioners, we have heard a number of these cases and it seems like it is possible that we may hear even

more. in contrary, i think to what was generally stated by a number of the speakers, is you know, their issue really is with the policy position decisions that came out of the board of supervisors, and not by... and this board has very little to say about the over all policy issues. you know, we can only react to individual permits. what is interesting about this case and how it relates to the others that we have heard is that when we look at how we can produce some level of equity, you know, within the law that has been produced by the board of supervisors, we are faced with the criteria that has been established by this department. and we recognize that the department's criteria has been

in development and to some degree, or some level of evolution during the course of their administrative and to a certain degree, perhaps a little bit manipulation occurred from the cases that were heard here. i remember last time, that there was an issue with how they established distances and it was based upon, you know, the sender of a lot. and if they had a specific address, and let's say that the lot was, very small, you know, then it would... if it was a 30-foot lot like probably 84 seconds street is, you know, if you have the center line of that, but the previous instance it was a very large lot and the center line of the stretch for

almost a half a block and you know, and that led us to then, certain other things which occurred. and i recall specifically, that if that particular product which was a hamburger then, it not been in such a large slot, and therefore, it came in within the 300-foot radius, or excuse me, 300-foot distance factor it was considered like food to other restaurants who had a variety of foods. and i think that you know, the only basis that i can look at, is when i look at the equity issue of that particular law is that we have to have these criteria conformed to for a while so we can reach a threshold and see what the impact is. we don't know whether all of the brick and mortars are going to go out of business. we don't know whether there

will be even a proliferation of food trucks because based on the criteria there is going to be a limitation on. so on that basis, i am going to make my own determination, which i think that the espresso is like food and it comes within 300 feet radius and i have to vote against it. >> i would be inclined to support you. it seems to me that the type of coffee is a little bit of splitting hairs, as to what is like food and what isn't. and i appreciate some of the arguments about being able to walk right up to a truck and not having to stand in line. but it does seem that there is like food within the radius. and to i feel the need to adhere to that standard for the time being. >>

>> i am of a different mind. i think while i agree with some of the other comments of vice president fung, with respect to the equity and the policy question, i think that is for the board of... it is for our city's board of supervisors and that needs to be brought before them. i think that many of the concerns raised are compelling and real. and however, i do think that it is within the discretion of the department to have made a determination here that the food is not considered or the coffee is not like food with respect to the other businesses. and i don't think that the

300-feet distance is a mandatory. it is not sort of... it is not sort of the dispositive factor here. and i think that that has been factored in and it... i think that when i thought about the coffee which was already a done deal here, and i mean, it is not before us today. but it was something that i think needed to be considered then in another subsequent appeal. i think that is within the department's discretion to make that determination. others, they are bound in and have no authority to do the review, and then the analysis that they are required to do in coming up with their conclusions. so for those reasons i would be disinclined to over turn the department.

that is where i am at. >> i think that i would agree with commissioner hwang. i think that it is not like food because i am persuaded by dpw's statements that they did consider the entirety of the menu. so i would vote to deny the appeal. >> question? >> so, i would move to deny the appeal, based on the dpw's finding that this was not like food. >> we have a motion then from commissioner hurtado to deny this appeal and to up hold this permit on the basis that the sale of espresso is not like

food. >> on that motion, vice president fung. >> no. >> president hwang of >> aye. >> and commissioner lazarus? >> no. >> the vote is two to two, the motion does fail, however, because three votes are needed to over turn or modify any departmental action, this permit would be upheld by default unless there is another motion. >> okay. no further motion, then we are done with this item. >> permit upheld. >> thank you. >> so commissioners, the last

item... if i could ask the folks to please clear the room, we have additional business to attend to this evening. thank you so much and thank you for your patience throughout this evening. the last item on your calendar is the board consideration and possible adoption of your annual report for the fiscal year 2011-12. the city charter requires that all boards and commissions adon't an annual report and this is designed to fulfill that mandate and also designed to educate the public on the work of the board and the accomplishments in the past fiscal year. i thought that i would briefly talk on the highlights of the report if you could bear with me and i would be happy to answer any questions that you might have. i know that it is a late night. the report does cover the fiscal year from july 1, 2011 to 2012. during that year. the board held 25 meetings for

a total of 28 hours. you schedule 28 meetings but because of the lack of board members we had to cancel three. the board heard 114 cases, that year and that was actually down about 20 percent from the few years prior. and i think that was the number down a bit, both because we were unable to hold as many meetings as we, had in past years and the number of matters was also down 12 percent. and now, that goes to all new matters filed but not for new appeals filed. the board actually held steady with the number of new appeals filed in the fiscal year, the same as pretty much the same as it was true for the three years prior. but still that is down significantly. if you look at the ten-year average, down ten years from the norm. >> looking at the year to date numbers, i just thought that it would be interesting to see where we are this year in comparison to where we have been in the last few years. it does seem that the new

appeals are coming in slightly faster than in prior years. although it is still a little early to tell where we are going to end up when the year is finished. so it is not clear to me whether what we are looking at is now the new normal for the board or just really a reflection of the continuing economic struggles that the city has been facing. as you know the report provides a break down of the appeals for looking at issuing departments. where the original determinations come from. and as is typical for the board, the majority of the cases heard are land use related and over 60 percent. i do think that it was interesting to note that the number of zoning administrator determinations was down kind of significantly from when we look at the recent history, we only had 6 appeals. that is about a third of what we would have had on in other years, so i don't know if people are just agreeing with the zoning administrator more or if he is not making as many determinations or maybe it is a

fluke year. >> yeah. >> we also had fewer appeals of dph and mta related determinations but as was true this evening, we had a definite uptick in the related appeals particularly associated with the food trucks, which in my opinion comes from the fact that there is a new truck permitting legislation that is allowed to increase in the number of permits issued. so that was actually up 80 percent from the prior year. >> the board, the report also includes a map that provides a picture of the locations of the appeals and once again, the majority of the appeals filed seem to be in the northeastern quadrant of the city and it also looks at the out come of the determinations that you made. this past year, the board upheld, 32 percent of the appeals filed. and over turned or modified, 56

percent. so the number of determinations that you over ruled, actually was increased from prior years. and of those, you placed conditions on 90 percent of the matters. so only 6 percent were actually flat out over turned. but the majority of the cases where you took action to change what the department decided really was to place conditions of some sort. looking at the budget, the board of had a relatively calm budget year, especially in light of the recent experiences that we have had. as you know we have two funding sources for charges and filing feels. the surcharges came in at projected levels, the filing fees came down. that was not a challenge for us and we definitely did much better in revenue than we have in the last few years with really only down less than 1 percent as compared to 6 percent last year and 9 percent the year before and 16 percent

in the 2008 year. but because of that experience, we definitely worked to reduce the expenses where we could. we had salary savings from a vacant position on someone out on an extended family leave and we are able to spend less on what it takes to run the board. so the sfgovernment television costs or the neighborhood notification went down slightly. we decreased the utlyization of the studio work order which saves us a significant amount of money and allowed us to reduce expenditures by 20 percent. >> so we did end the year with a significant surplus for us of $180,000. and i am optimistic that the next budget year will also the one that we are in will also prove to be a relatively calm one for us.

the money that we spent goes primarily to salary and fringe benefit and 13 percent goes to paying the salary and benefits of other employees in the city, other work orders that we have, city attorney costs, the sfgtv and other it personnel that provide support to the website. >> and you just pay contributions for the benefits? >> we pay and give a contribution to the departments and basically pay for the services. >> it is not a line item in our budget that it is our particular fringe benefits. it is just a work order money. that is the biggest chunk of our budget, we also have 4 percent for infrastructure and the two percent for the services that we use from outside vendors and the interpreters and the neighborhood prep people and about a one and a half percent

for materials and supplies. we are just about a third of wait through, just a little more than a third of the way through the current budget year and we have already collected about a little more than a third of our projected revenue, so i am as i said optimistic that we will be doing well this year. it is still early to know, of course, and we are doing what we can to monitor our expenses so that we can stay on budget. we did reduce, you may remember, when we looked at the budget for this year, we reduced the city work order to try to have it reflect more of what our actual expenditures were so the cushion that we have had has diminished and it is important to do what we can to try to monitor our expenses. i, did hear a few comments from vice president fung about the report. he had suggestions that one revision that needs to be made is that the dates that we have

in the report for commissioner hurtado were reversed and it is not in the same order and i would like to make that rescission and suggested that we made a revision to the litigation session where we used the word victory. and i was going to suggest upheld and that might be better. i am up to the suggestions to improve the report or the work that you have done in that year. in reading this report, i did not appreciate vice president fung's edits and i agree with the to have the different word choice on victory, up held is fine with me. i think that the outstanding job to our director. for putting this together. and the work of victor and everyone who was on the team.

and in the office and i think that my sort of i enjoyed reading it. so, it was laid out presented very nicely. so i think on the litigation section, i was curious as to the extent to which this is a higher volume of lawsuits or fewer. and then the next question is, to what extent if at all, does that impact our budget? >> i don't actually know how this level of litigation compares over more years than the last few since i have been here. ... >> the new filings. verses continued. >> it seems to me pretty average. >> okay. >> the number of new cases. >> okay. it just seemed like we received information like notices in

rapid succession over the last six weeks. >> more than the norm. >> i don't know if that was a trend or just a coincidence. >> the types of decisions that were made. >> in terms of the cost to the board, the costs associated with defending the board's actions are not in our budget. >> okay >> and it is something that is born out through the city attorney's budget. >> okay. >> and no additional costs for the or your work or your time? >> there is some small administrative costs ta we need to prepare the administrative record in cases but it is not significant. >> okay. >> i just had a some what related question about litigation and wondering whether you know what the rate of affirm ans or denial is compared to other years? it seems that there is a lot of affirm anses and what you cited here but i don't know how that compared to prior years. if you know. >> i don't know. i am not sure what was tracked

prior to the recent reports that i have been preparing. but, it does seem to me as well that the cases that are resolved. that there has been a positive out come for the board. >> thank you. >> now, no other comments from me. >> okay. >> other than wonderful job. >> thank you. >> yes. >> i would ask for public comment, but we have lost our public. >> do you want to say anything? >> have you read it victor? >> have you read it? >> don't put him on the spot. >> he did read it. >> he proofed it. >> yeah, and i also indicated to the director that i thought it was very professionally done. >> yeah. >> and so i do need a motion to adopt the report as revised, >> i will make that motion. >> okay. >> so we have a motion then from the president? to adopt the current fiscal

year, no sorry. fiscal year, 2011, 2012. >> yes. annual report. >> yes. >> as amended. >> on that motion, vice president fung. >> aye. >> and commissioner hurtado? >> aye. >> and lazarus? >> aye. >> thank you the vote is 4-0. the annual report is adopted as amended. >> so there are no further items. >> we are ajournd. >> we are ajournd. thank you. ♪ from coast to coast, cops are cracking down... on seat belt violations. buckle up, dand night, or expect a ticket. it doesn't matter who you are or where you live, they'll be on the lookout.

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