there was a newspaper notice about the dpw hearing in march. that provided constructive notice to the entire city. also in a due process case, the issue is whether an individual is going to be deprived of the an interest in life, liberty or property. none ever those are the case here. they are coming here and telling you there is an issue with due process. they are not provided anybody who is arguing that. they did that last time when they thought royal exchange was a problem, but they haven't this time. so the same issue is the 300' walking distance. that doesn't change no matter where the due process -- the notice is coming from. again, we have done everything right. we have done everything in good faith and consistent with city policy up to this point and radius service policy and dpw policy and we request that you issue the permit. >> thank you.

before you sit down, one thing that you are speaking very quickly and i recognize that you are short on time here? >> i'm sorry. >> the first argument set out by counsel for the appellants relates to the language in the code regarding assessor's block and block face. and you ran through that. your response very quickly. can you re-articulate your argument and his response slowly please. >> i think his argument is that because it does not specifically say "assessor's block," and therefore. >> the code section that is relevant? >> this is not the code actually. this is a guideline from dpw. >> thank you. >> and because i believe his argument is because the code -- i mean, i'm sorry, the guideline does not say "assessor's block," that should not be how its interpreted. >> it says "block face," right? >> yes. >> my position it's open for interpretation by dpw.

it does not say that you cannot use assessor's parcel number, just as the 300' distance has no quantitification on it. it's up to dpw to decide how to administer its parents and it does so evenly and it did so evenly and consistent with its own policy, when it took the radius maps that were given by expresso subito and prepared by radius services in conformance with the guidelines >> thank you. i want to give you an opportunity to articulate your own position. >> i did not refer to the guidelines. i referred it to the public works code section 184.88. where it uses "block face," if you know the address ever the cart. for it's a push cart and you don't put an address, then you go to assessor's block, in which it's a bigger area, because you haven't listed an address. it's very clear, one uses block face. the other uses assessor's block. >> so no address, assessor,

address specified, block face. >> correct. it's not defined necessarily in the mff code, but it's defined elsewhere in the public works code as basically being surrounded by four streets. >> okay. >> in this instance, they just got it wrong. they got it wrong >> thank you. >> i need one minute. >> no. mr. kwong. >> excuse me. >> are you sick already? >> i'm starting to come down with something. >> sorry. >> good evening commissioners, john kwong from the department of public works. in the rebuttal, when i was listening to rebuttal, it strikes me as interesting of the argument again of the 300' radius, the block face, and all the associated really detailed related to both the ordinance

and how we process permits it's relates to mobile foods. the statement on one hand stated that when we evaluate for like foods we should use the 300' radius as established per the notification. however, in the same vain vein, it doesn't make sense to the department how it should be interpreted. we had always interpreted it assessor's block. you are seeing the notifications for the food trucks that happened, adjacent to, i believe it was on speer street which was one appeal. all of these were defined by the mid-block of that block defined by the two major

streets. that is how we always interpreted it. i will go back and revere if i with the city attorney's office additional clarification, if that is the will of the board, but our practice has always been to treat it from that perspective. again, there is notification requirement as established under the legislation. the evaluation as established by the dpw or the providing guidelines were saying 300' in these kind of cases, like food is one of the many factors that we do consider. and it is weighted. the closer you are in terms ever of having like food to the truck, the more heavily it's weighted. whereas as i stated, starbucks

was approximately 280-290' away when we measured. it so in terms of evaluation, the department is based upon the guidelines established and as legislation is established to make that evaluation. and we believe that we acted appropriately in this case and i'm prepared to answer any questions that you may have. >> i have a question. the appellants have stated that starbucks was against this coffee truck. have you guys had any conversation or to verify or not verify that that was the case? >> in this case the department received an email, as stated, by both part ies. it's stated whereas they don't

have objections to subito's itself, the concern is about the path of travel and accessible to the sidewalk leading to their facility. so it was evaluated on how wide the sidewalk is also. our minimum requirements are 6' path of travel at all times, perour regulations. i would like to find out from the gentleman who showed that picture from senor sigs of that location and the time it was, so we can notify that mobile food truck that they are in violation, based upon how it was set up, the permitting requirements in this case. >> because of the email, would you follow up on that, or does your department normally follow-up on emails regarding dispute or not dispute? i don't know if i'm saying that right. >> in this case the email, along with the documentation

is submitted during the director's hearing process. >> did you get any feedback from that email, or the department decided that they weighted and decided not to follow-up? >> i'm uncertain if the hearing officer followed up. >> thank you >> thank you. commissioners the matter is submitted. >> who is going to start? >> i have an opinion. >> i always have opinions. >> go ahead. >> commissioners, it's interesting that both sides spent so much time arguing -- not arguing, but detailing out

their position on notice and that portion of due ?

>> thank you and commissioner honda? >> aye [tpwhr-rbgs/] . the vote is 4-0 and this matter is continued >> i will [ gavel ] >> we're resuming the board of appeals meeting for january 16th, 2013 and i'm going to call item 12, appeal no. 12-142, poa with an kothari doing business as as the chai chart versus the department of public works bureau of street use and mapping. application nato 12mff0083.

is the appellant in the room? i do not see the apellant in the room and we have not seen the appellant here this evening. we have the department here. if you would like to have the department speak? >> sure. >> good evening commissioners. john kwong from the department of public works once again. in this specific case for this permit for the service of chai tea at 79 new montgomery, the department denied in it this case for like foods. in the evaluation there is a starbucks coffee and jumba juice, who serve similar types of drinks it's relates to tai

chi or chai coffee in this case. we denied it and we believe in the evaluation what was appropriate based upon the guidelines. thank you. >> thank you. is there any public comment? i'm going to give you two. i'm barry hearing it right now. >> eke. i also have 102-degree fever. i would like my three minutes. thank you. >> i have to give you two. >> you can have three. let's not fight about this. go ahead and take your three. >> i wasn't notified about the chai cart at the new montgomery. >> state your name record. >> my name is allison rowe. they are within the 300' radius and only tonight is the first time i heard of it. referring to the overhead projector we have chai latte on our morning beverage menu.

i find it odd that the chai cart was rejected because jamba juice with cold drinks had chai on their menu and therefore it would be a competing product. what we just heard on 2nd street, [ inaudible ]. so if a juice store has chai and is too much, why is a coffee street across from a coffee cart not too much? i wasn't notified. i agree that consistent application of guidelines should be practiced by all departments of the city. and this is a really egregious, i think is the word, bordering on arbitrary. thank you. >> thank you. any other public comment? >> anybody else? thank you. >> thank you. i'm jim patrick with patrick and company of we have a store which is very close to 79 new

montgomery street, probably 150'. i don't know 200'. we were not notified and the first thing i heard about this is when i saw it on the agenda when i got here. what is going on with the notification? it just seems like it just doesn't exist. thank you. >> thank you. >> mr. kwong, anything further? commissioners the matter is submitted. >> i am inclined to deny the appeal, uphold -- i'm sorry, deny the appeal, and strike the permit. uphold the department. sorry. based on what was presented. >> i agree. are you making that a motion? >> yes. >> i will second that motion. >> the motion then to deny the appeal and uphold the department? >> yes. >> so on that motion from the president to deny this appeal,

up hold the denial. and it was on the basis of the testimony presented? >> on the record. >> by mr. kwong. >> thank you. >> i think i would prefer it's on the basis of the department's analysis. >> i will take that amendment to my motion. i will accept. >> so again, on that motion from the president to uphold this denial. on the basis of the dpw's analysis. on that motion, commisioner fung? >> aye. >> and commissioner hurtado is absent. vice president lazarus? >> aye. >> and commissioner honda? >> aye. >> thank you. the vote is 4-0, with denial is upheld on that basis. >> we'll call item no. 9, appeal no. 12-101,shumei fang doing busne