normally have for these types of violations. the problem is that the counter veiling concern is the proximity to the schools and schools where kids want to get cigarettes. and if they think they can sneak one by, they're going to keep trying. and i do also believe that a 25-day suspension is significant reduction from what the department can effectuate on a first-time offense from 90. so, my inclination is [speaker not understood] two minds, but i think my greater concern about the school children being nearby would outweigh my sympathy in this particular circumstance having a trainee make a mistake. >> for me, i mean, i was leaning towards maybe reducing this based on the fact that i thought it was an honest mistake. but the difficulty for me is that this employee has been

there for three years. he's not a new employee. >> i think the three-year employee was training a brand-new first day. >> the person who did the sale was the three-year employee, right? [inaudible]. >> who is the person who conducted the sale, the three-year employee, correct? yes. >> oh, i see, thank you. yes, he was training the new employee same day. >> so, to me, i wish i had more information on how long the ids have been in this format. they are easy to read, especially for someone who has been working there for three years. so, i wouldn't be inclined to reduce it at all. so, r i would move to deny the appeal. ~ >> okay, you can sit down. thank you. >> mr. pacheco, if you could

call the roll, please. >> motion from commissioner hurtado to deny this appeal and uphold the 25-day suspension. on that motion, commissioner fung is absent. president hwang? >> aye. >> and vice president lazarus? >> no. >> and commissioner honda? >> no. >> thank you. the vote is 2 to 2. the motion fails. however, four votes being required to overturn or modify departmental action, the 25-day suspension would be upheld absent another motion unless there is another motion. >> okay. >> the 25 days is upheld by default. thank you. >> thank you. >> want go to* go on to item number 5, which is appeal

number 12-109, appeal no. 12-109, richard winer & mary marzotto vs. department of building inspection, 483 guerrero street, protesting the issuance on august 28, 2012, to kamal barbhuya, permit to alter a building (add hood to approved coffee shop/limited restaurant; maximum 15 seats). this matter was continued from an earlier hearing to allow time for the permit holder to prepare code-complying plans and for dbi and planning to conduct research on the change of use. and i think we will start with the permit holder to give us an update. mr. marzotto, you'll have three minutes to give an update. i think it's for the benefit of everybody, this project has been going on for almost a year and three months. my client ran out of money and i would rather revoke the permit and go back to the original coffee shop which has been there since '85.

so, we would rather stay with the coffee shop and walk away from loss. i take a loss and walk away. >> okay. thank you. thank you. >> we can hear from the appellants. good evening, president hwang and commissioners. richard and mary winer. we appreciate candor and ask the commission to grant the appeal and revoke permit. to that end we submitted proposed findings for your consideration and we feel that's the appropriate substitute at this point. my client may wish to say a few words. thank you. good evening. my name is richard winer. my wife and i live next door to the subject property. we've been there for 27 years.

first of all, i want to thank everybody involved in issuing the correction notice to have the duct work and the light [speaker not understood] abated as that work has been done. it is unclear to me whether the hood in the premises has been removed because i've not been in the premises. it's also unclear to me whether the restoration work involved in the moving -- the duct work was ever inspected and i'm hoping to get further information about that here this evening. i'd like to ask you to revoke the subject permit since the time giving the sponsor to submit new plans has lapsed and he has not done is. sounds like they don't have an issue with that. it's also my understanding you know, that the property's landlord was not amenable to anything they were doing, you know, putting duct work and [speaker not understood] on the roof seemed to be in the dark. she didn't even know they planned to open a restaurant rather than a coffee shop.

the unsuitability of the property for the sponsor's intended use is now i think clear, as is the fact that the premises was never legally converted from a retail use to a cafe prior to them trying to bootstrap it into a restaurant. virtually everything that my team and i have said since the inception of this has been borne out. these guys intended to illegally operate a restaurant in a space not currently permitted for such purpose and illegally made life-threatening improvements to the property that had to be abated. and it's clear to me that in their action -- within their action with the city was to mislead and escape what they were doing to avoid having to give notice and to avoid any oversight. now, i tell you, i spent the last eight months and nearly $40,000 of my hard-earned and very hard-saved retirement money to bring these matters before you and it's unclear to me why that burden fell to me and why that expense fell to me to do that.

i've kind of been forced into this situation in order to protect my home, my family, my tenants, being my income and the value and safety of my property. and i think that i can tell you unequivocally that if it were any one of you in my shoes here today talking to you about this, that you would be more than a little irritated. >> thank you. >> mr. [speaker not understood] nothing? mr. duffy? good evening, commissioners. i went to the property after the last hearing to verify that the duct work had been removed and indeed it had been removed. i spoke to some tenants in the upstairs units in the building and they seemed to be happy that it was gone. didn't speak to any of the neighbors, but the detect work is definitely gone. i can confirm that.

they reroofed the area and put a skylight in. they just probably need to get a permit for that work. and it was more my interest to get the duct workout of the way to be honest with you because that was really offending everyone it appeared since the last meeting. so, it's gone. and i did receive a complaint by the department, i received a complaint and i ended up dealing with it. for the use of the building, and we did issue a correction notice asking the permit applicant to provide documentation of the last legal use of the property ~. and according to the documentation that came in with the complaint, it appeared that it was retail at one point, the last legal use in our permit history is retail and had been used as a coffee shop for a number of years, but we don't see a permit to convert it to the coffee shop. so, we issued a correction notice. we haven't heard back from them yet with any further paperwork. so, i'm available for any questions. >> so, you're saying that the previous usage would be a coffee shop? >> no, sorry.

the last legal use was a retail, according to the permit history. but it has been used as a coffee shop for a number of years. maybe not the proper change of use permit. it's an easy permit building code wise because you're basically taking a very small space and you're applying for a permit to change the use, which has more to do with the planning department and their 312 notification. 312? yeah. so, it would have to go through that. building code wise, it would not be allowed to be done. you're just really changing the use. >> okay, thank you. >> is there any public comment on this? please step forward. good evening. my name is shirley johnson and i live at 17th and guerrero around the corner from this property. and i'm here just to thank you very much for, first of all,

hearing this case and being very careful to ensure that the proper permits are followed, to make sure that the duct work was removed which was put up inappropriately. so, i just want to thank you and thank city staff for upholding the zoning rules and making sure that everything was done properly. thank you. >> thank you. next speaker. [speaker not understood], you can't speak now. your time was taken up by your agent, sorry. please step forward. hi, i'm charles gagnan and i live directly downwind from the subproperty on 17th street. so, my building abuts into the air stream of what this property was going to be doing. and i also want to kind of second what mary has mentioned

about the consideration that the city has given to our concerns here. and, so, i won't elaborate on that. the only other thing that i would mention is i understand while this thing was being considered as being a 15-seat restaurant, it actually what was -- the actual real purpose was a wholesale operation and that this was going to be used as a, as a restaurant to supply direct home delivery. so, there might have been a small little cafe with a few tables there, but the actual operation was designed to be a wholesale thing. and i think if they should want to consider establishing a currie factory, they should consider putting a currie factory delivery on 3rd street or some appropriate industrial area. anyway, thank you for your consideration. my name is bruce lions and

i work with mr. ba non, i'm his insurance agent. there was no such thing as a currie factory. i think that's a rather ridiculous thing for someone to come up here and say because that was not the intention. there was a coffee shop there before. mr. pagan filed $100,000 to put a restaurant there on the condition he got a building permit from the city of san francisco. and it seems rather ridiculous he would go and spend $100,000 and then afterwards the next door neighbor decides this is an illegal thing and the building department didn't even know that. it would seem correct that the city of san francisco would refund him the $100,000 that he spent to put a restaurant in there and this gentleman here his $40,000, a rather ridiculous system that the building department doesn't know the correct laws before he puts this in. and he wasn't going around anybody's back. he has a restaurant on 9th avenue and he was wanting to

have a second restaurant. so, that's all i want to say. >> is there any other public comment? okay, seeing none, then, commissioners, the matter is yours. >> i guess unless there is any other comments, i guess i would move to grant the appeal and revoke the permit. >> would that be on the basis that there are no code complying plans? >> yes. >> okay. mr. pacheco, you heard that? >> yes. we have a motion from commissioner hurtado to revoke this permit with a finding that there are no code compliant plans. on that motion, commissioner fung is absent. president hwang? >> aye. >> and vice president lazarus? >> aye. >> commissioner honda? >> aye. >> thank you. the vote is 4 to 0.

this permit is revoked with that finding. thank you. >> thank you. and before i call the next item, mr. pacheco, i'm wondering if you could call down to the control room and see if they can get the in-room closed captioning to work. so, we'll call items 6a and 6b, appeal no. 12-169 and 12-170, both appeals are protesting the issuance on december 12, 2012 to peggy man got, a permit to alter a building, replace foundations, create internal stair from first story to basement -- >> excuse me. can you take your conversations outside the room, please? >> add bedrooms, bath and living space to lower level, remodel kitchen and create new bath at upper level of bottom unit.

this is application no. 2012-09/12/95 16. we'll start with mr. malley. you'll have 7 minutes to present your case. good evening. i'm terrence malley -- >> one second. we'll restart the timer. go ahead. i live at 1244 treat, i've lived there for over 12 years. the renovations to this building will affect me by moving my second, second story exit called the egress exit going from my apartment down to the basement corridor to an exterior door. ~ interior corridor the owner claims that this property is an r-2 occupancy

code with four dwelling units, but it is a single-owned -- the property is owned -- 1244 is a single property. years ago it was a dual -- it was owned dually with 12 46. 1248 is a different individual, [speaker not understood]. two different owners. claiming this as a four dwelling unit is erroneous. it is a process of faulty records in the city and county of san francisco assessor's office or whatever. it's an r-3. the argument against me is that only one exit is accorded by law and [speaker not understood]. the second item is discussing

removing my private laundry room in the basement which i've had since i lived there which has been there for 40 years. it was something the client put in when i had my washer and dry er put it in. it's two single-family dwellings. in the early '70s, mid '70s, they renovated each property to have a second floor apartment and first floor apartment. anyway, it's now owned separately. i think i made my point. the laundry room is basically -- has separate electrical and electrical boxes. my water hookups are there, my

washer and dryer which i provided a receipt i bought, the most recent one was in 2012. peggy man got claims it is a common area. apartment b, the other unit has its own private hookup and private laundry room. there is nobody else to share this in your common area unless it's the other two phantom dwelling units that she claims she has. the last thing i didn't have in my original brief which i'm going to include tonight is about noise and stress and it's estimated to be a four-month construction period which in san francisco you can double that easily. ~ to 8 months. i'm a cancer patient. i have leukemia. i have a compromised immune system so i'm home all the time. i go out infrequently. [speaker not understood] 90% of the time. i go home, that's it.

there is no consideration for my living condition being disrupted or the stress this is going to call me. in fact, peggy man got told me it is not even within consideration to be [speaker not understood]. there is an issue about rental agreements, et cetera, et cetera. i found yesterday after hours of looking for an original statement by joseph romo who was the father of the family that owned the property who is now deceased and his -- he basically rented me the property. what i have is a 20-year old piece of paper that basically lays down the [speaker not understood] who to mail it to, et cetera. i have copies of it which i can give to you and put it on the overhead projector. >> go ahead and put it on the overhead, please.

it was originally a white piece of paper. you can see now it's a yellow piece of paper because of its age. and basically i've lived in san francisco for 40 year. i've never had a rental agreement that detailed every square foot of the building, what was mine and what isn't mine and it just -- the laundry room was mine. the exit leading downstairs is mine. as i note in 1994 or '95, we had two fires in one week in this building, the other joint property, 12 40, and 1244 treat which if i hadn't called the fire department, ~ at the initial onset, the whole front of the building would have been consumed by fire. and if i didn't have the second

exit, could have perished and end up in potential fire. so, that's why just about every apartment in san francisco has a second exit. once again, the 10 21-2 tarp that peggy uses to claim exemption is based on what i consider a faulty r-2 classification and 4-2 dwelling unit. thank you. i do have documentation of my illness and the rental agreement if you'd like a copy. >> we'd be interested in the rental agreement. they're all together. >> i just want to see it closer. it's in the third page. yeah, they're all stapled together. >> is this the one for the permit holder? i have the rental agreement for the permit holder, yes.

>> okay. we can hear from -- i think there's a few seconds left. i don't know if there is anything more, mr. malle , yes. yahoo! no, i'm finished. ~ >> [speaker not understood]. 7 minutes. >> okay, go ahead. >> anyone else who came in late? >> do you solemnly swear or affirm the testimony you are about to give will be the truth, the whole truth and nothing but the truth? yes. >> thank you. [speaker not understood], commissioners. >> would you please speak into the microphone? my name is [speaker not

understood]. i was surprised one day i received this notice. there's a permit issued by the dbi and approved and they're going to do something about [speaker not understood] and without notice. so, nobody has come to us before saying we're going to do something about the foundation. peggy man got is the homeowner. i have 1244 [speaker not understood]. she is the homeowner between like 1240 and 1246 and we all share like a common wall and foundation. and on their original proposed

when they had to remove the common wall and the foundation and had to work on our side of the house, that is not going to be possible for us. and we are not asked permission for them to do that. and second thing, after the appeal has come -- the owner has come talk to me and they kind of like revised the plan a little bit. they are going to build a retaining wall on their side instead of removing the whole foundation. that we thought is not going to be secure because instead of the foundation like an upside down t, then it will be like an l-shape. so, it's not going to be like stable.

and, yeah, we also have -- i also looked at material they submit for the permit approval. and we kind of like the plan [speaker not understood] like two separate walls. anything based on the wall. that's kind of misleading dbi. and also there is the shared sewer line, too. and on their plan, it's like a [speaker not understood] doing the construction. so, do not know what is going on. we cannot use any water or sewer by that time. so, that's kind of disrupting our daily life.

that's going to be not possible. now, this three houses build like, i don't know how long the house, like -- >> i'm sorry, could you speak just a little closer to the mic? oh,yes. this old house build like many years, i don't know how many years. but they are kind of like for this many years, they are stable now. and if they make the soil loose, it's going to be not safe for the other house. and also the plan, revised plan they did for the l-shape foundation, it's kind of like only benefit their side of the house, but not on our side.

also on their revised plan, the engineering kind of lists some calculation about retaining wall [speaker not understood]. and the use of -- calculate low and doesn't input outside the house. so, inputting outside the house is going to be like a lot more force on the ground. so, that's not incomplete information or miscalculating. also, for their plan, kind of have some [speaker not understood] impact, too. like the city record a four-unit building, increase another unit on the basement.

so, some parking concern or and already be crowded because it's kind of low-income dense area. parking is always problem. and to summarize the appeal, one, if the homeowner and the other engineering, they submit like income or false information to the dbi for the permit, it is kind of like cheating. with our like submission or grant to work on our side of the building or house, it's kind of like impossible for them to do it and we don't want any disruption. also, during the construction we kind of consider -- oh, how

to compensate us. and if the construction going to be like affecting our house, then it will be kind of insured. yeah, and there's a lot of construction noise, too, the construction kind of like annoying and we don't want any disruption. and, let's see. also, like -- i had like i had went to their side of the basement to see the outside wall is like my outside -- i don't know what they call it, the wood cutting. so, i kind of -- >> put it up on the overhead.