>> good evening and welcome to the march 20, 2013 meeting of the san francisco board of appeals. preceding officers this evening is hwang and joined this evening by commissioner fung and honda. at the controls is the board's

legal assistant. >> i'm cynthia the board's director. and we are also joined from members who have matters before the board and scott sanchez is here, and city administrator and also representing the planning department and commission. joseph dufy is here representing the building of inspection. and we are joined by derek smith he is a health program coordinator at the department of health tobacco free project. >> if you could go over the meeting guidelines and conduct the swearing in. >> the board requests that you turn off all phones and pagers so they will not disturb the proceedings and carry on the conversations in the hallway. the board's rules of presentation are as follows, appellant's and permit holders and department representatives each has seven minutes to present their case and three minutes for rebuttals.

people affiliated with these parties much include their comments in the 7 and three minute periods. the members of the public who are not affiliated with the parties have up to three minutes each to address the board and no rebuttals. to assist the board in the accurate preparation of minutes, members of the public who wish to speak on an item are asked but not required to submit a speaker card or business card to board staff when you come up to the podium, and the speaker cards and pen are available on the left side of the podium. >> the board welcomes your comments and suggestions there are survey forms on the left side of the podium, if you have questions about requesting a rehearing or schedules, speak to board staff during a break or after the meeting or call the board office tomorrow morning. the board office is located at 1650 mission street, room 304 between duvos and vaness avenues this meeting is broadcast live on san francisco

television, sfgov tv, cable channel 78 and dvds of this meeting are available for purchase directly from sfgov tv. thank you for your attention, at this point in time we will conduct our swearing in process, if you intend to testify at any of tonight's hearings and ask the board to give your testimony evidentiary weight, please stand and raise your right-hand and say i do after you have been sworn in or affirmed. please note that any member of the public may speak without taking this oath purchase pursuant. >> do you swear or affirm that the testimony that you are about to give will be the truth, the whole truth and nothing but the truth? >> thank you. >> we have two housekeeping items, first with 5 a on the cal endar which is a rehearing

and it has been withdrawn. and the second has to do with item number nine, 13.004, i want to make sure that the parties to the matter are here, could i see the hands of the appellant and the permit holder? they have requested that this matter be continued and with the president's content we can give the parties to speak to that to see if we are going to hear that case. if we could have the parties come forward and we will start with the appellant, and three minutes, madam president? >> yes. >> you will each have three minutes to present to the board specifically on the question as to whether or not this case should be heard on a different night.

>> it is the appellant's request? >> that is correct. >> i requested the alternate date because i have a second permit that i also appealed and it is for the address 2130, the second appeal has a hearing day of may 15th, it was for renovations of the interior done by the future tenant. and since this involves the same things as to whether the store, this is a retail store, i wanted to merge the two cases together. the second permit was passed by that time in the commission.

the first was not given to the timing commissioner. so, there is a question of two different yeses and nos. but, again, in both cases, i am asserting that this is a formal retail store for that reason. >> thank you. >> good evening, everyone, thank you very much for your time. my name is cristina tan, i am the property manager. we heard that she wants to combine it for the same property, but i want to stress is that although those permits were filed for the same property, the rational behind

this permit is different, the first is to perform seismic upgrade. this on fillmore street has been occupied by a permit and was build in 1900 and has a brick foundation and the landlord has not been able to update the foundation because based on contractors they said that it would saying significant remodeling and efforts there is no way that work could have been done. >> this is the first opportunity that they have to make this building safe. this is related to public safety. it is really important to the landlord that this building is safe, for not only the dozen or so people above the building but the hundreds of people that enter into the retail space on a daily basis. i have included pictures, i guess this does not show it. but any way, i have included

pictures and exhibit. >> on the overhead. >> back where you had it. >> okay. >> it takes a little time. so i have included pictures of the foundation, it is a brick foundation. i have reports, contractor reports which is included in the exhibit, that state that this is a permiter brick foundation and it has nothing to do with oska, alleging that the two permits are related because it is related to build out of oska. this was filed regardless of who moves into the space, the landlord would have applied for this permit. so it could have been who knows, any company that wanted to move in. so again i kindly, urge the board to give us this opportunity to present our case. i think that we have very good evidence to show that this is really for public safety and has nothing to do with oska and we would like that opportunity today to continue with the hearing and allow us to present our case and you will see that

it is clearly about public safety. i live in the building. i am a native of san francisco and i lived through the 1989 earthquake. and i want this building to be safe. for not only myself, my two dogs that live in the building and everyone else that enters this building. thank you very much. >> thank you. >> anything from the department, mr. sanchez? >> thank you, good evening, president and members of the board, scott sanchez. the permit that is for tonight was not reviewed by the planning department because as noted in the scope it is to do foundation up grades, replace the water damage, studs and also ada up grades of the front door and a separate permit which has been appealed from the change of use to oska. that is formal retail use and we found that it is not retail use that is a separate permit to the tenant to establish the use and that is controlled for appeal as noted on may 15th. >> thank you.

>> mr. sanchez, if we took action tonight, and the filing of the second appeal would not have been because it is a separate permit would not effect this permit; is that correct?? >> they are separate scopes of work, so if you were to take action tonight and approve the permit. then the structural up grades would be performed and you would still have the ability at the hearing in may to deny the permit for the use that is proposed to go in there and they would have to propose another tenant to go in there. >> thank you. >> okay. >> we can take public comment on this is there anyone that wants to speak under public comment? >> okay, so seeing none, commissioners, if you have a motion, it can be entertained otherwise we can just move back into our regular calendar. >> there is no motion. >> this case will be heard in order then. there is no motion to continue

it. we will move to item number one which is public comment on any item that is not on tonight's calendar. is there a member of the public who wishes to speak on that item, please step forward. hi, i'm jim patrick and i like to talk about an upcoming item that i believe that you going to take testimony on. >> is it on tonight's calendar? >> yes, it is not the place. >> i heard that you will not take testimony, i think that is what came up in the last board meeting. >> i have no problem waiting,

mind you, but i want to be sure that the testimony gets in. >> we are going to have a moment here. >> okay.

>> given that this is a matter that it pending on the docket for today, we will not be accepting public comment. >> all right. i want to talk about it now. >> right. and it is our practice as a board not to accept public comment on a matter that is currently agendaized. >> that is not right. >> that is our practice >> on the instructions to public comment, which is right here, for everyone to see, it says, when the agenda item has already been reviewed in the public hearing at which members of the public were allowed to testify and the board has closed the public hearing,

which i believe applies to us you are your opportunity to address the board must be exercised during the public comment portion of the calendar. the way that i read that is that we are allowed to dress the board during the public comment. we are willing to defer until later. but the way i read your own instructions suggests that we can make public comment right now. >> okay. thank you for pointing that out. >> let me momentarily take a moment and look at it again. >> how many people wish to speak during public comment?

>> okay. if you are sort of hedging now and may speak later, could you raise your hand, i would rather over include rather than have a small number here. if you think that you might possibly speak during public comment, please raise your hand. >> i believe the issue. >> no, sir, let me do this. so 9 people, i am going to limit you to one and a half minutes each, or actually one minute. >> all right. thank you very much. commissioners. i have wanted to bring new data to you representative to appeal 12-226, not brought up at a previous meeting. number one i have worked hard with the public health department and it is clear that the measurements to the bathroom are from the front door to the bathroom door. i have an e-mail which from

eraes who is the inspect at ther and given that it is more than 200 feet this should fail on the face value. number two is... >> 30 seconds. >> okay, number two is the forms, that were filled out for the application were not complete and as i looked at the file, and they are still not complete and as i got an e-mail she said yes they are not complete. but of course, they know what they mean and it deals with the waste water dumping. this application was not complete when it was filled out, a permit never should have been issued. thank you. >> thank you. >> good evening, my name is allison row, referring to the overhead, we have given the department's maps of the location, there are three potential locations of this truck. the fire department, the fire

marshal, the health department, and dpw all have different addresses. the dpw very own permit lists conflicting addresses both 84, second street and 49 feet northwest of the corner, 49 feet which is so confusing and we talked for a year is 92nd street that is on the dpw very own file that we just saw a half hour ago. this 90 second street makes bathroom further away no matter how you measure, the department of public health or works does not understand to tell us if they have approved it with sidewalk service or, interior. they have a statement that the sidewalk service is not allowed and it is highlighted in yellow. thank you. >> thank you. >> thank you for hearing our comments. can i just have it on the...

please state your name. >> charlie you. could i have it on the overhead the whole time. >> so my beef with dpw is that there is a 300 foot notice requirement and they have been using the mid point for the block to draw the radius, when they should be using the mid point of the block six. what occurs is that businesses that are 500 feet away from the food truck get noticed and businesses that are 100 feet away don't get noticed that makes no sense, the block face is defined through the code and even on the website tool it draws the radius the way that i want them to draw it but they choose to move it a block and a half up. and dpw's application of the laws is arbitrary and mr. hwang

said that it is 300 feet away and how could that be, they are doing something weird. >> thank you, next speaker please. >> hi, my name is keith, and i am not affiliated with any business in the neighborhood. impart of the neighborhood in the sense that i walk and drive those blocks frequently to get from the financial district to my facility. i know that you don't make policy decisions but this is public comment but i will note that the last thing that this block needs is another coffee per vaier particularly a truck that blocks the sidewalk, and it can con gest the traffic further. i am happy to know that there are things that you could deny this application and i hope that you do, you know, pay attention to what you are going to do and hopefully at the end of the day this application

will not be allowed to exist, thank you very much. >> next speaker please? >> hi, i'm gary, i'm the applicant. i have gotten no rest in 15 calls from the department of public health over the last week. >> and i have spoken to reyes at length about every single issue and we are in compliance with the department of public health and the department of public works. >> thank you. >> my name is deborah lane and i'm gary's wife and also an architect. i would say that measuring is not always perfect, different people get different measurements it all should be the same it is not an exact science. and the codes, specifically states that the zoning that dpw

may consider, its not written as an edict and it is a big difference, most zoning code is written as shall. this is written as may consider. but it is also, we have complied with the dpw's regulations as they are written. thank you very much. >> thank you. >> any other speakers? >> hello my name is karin smith and i manage the property in san francisco that houses four restaurants that wanted to put a food truck in front of my building and we successfully were able to appeal it and deny the permit. and this is exactly what is going on. this truck wants to be in front of an existing restaurant. the applicant said 84 second, but the dpw says 92, so we have a conflict of where this truck is actually going to be parked.

we found that the health department that it is says it includes prepackaged food instead of just coffee. so what is it? where is it? what is it doing? where is it going to go? no one knows. the ordinance was revised to establish food and underserved area, this is not an underserved area, thank you. >> thank you. >> good evening, debbie, representing (inaudible) and i just wanted to go over a couple of things. first of all as it is noted that the health department has been called up several times and the measurements they are concerned that they have independently verified them and okay with the measurements. second of all we have gone through this a number of times

but the code, my client has tried his best to comply with all of the code requirements. he has done his best to do that. he is complying with the policy as it exists now. we understand that there may be changes in the future. he understand that this is the policy, and he went through an entire procedure for that. i understand that there there are notifications questions, as to notification, but that nobody has been affected by it because on the walking distance from the store, even if it were done wrong and we spoked to the media services after that and he said that he has done dozens of notifications exactly in that same manner, but the 300 foot walking from the truck is the same no matter what. >> thank you. >> is there any other public comment? >> patricia boyd and it is not on that subject. there are several things that are going to come in front of

you in the near future, and one of them is this changing to rental units into a house and the planning department has to have 65 percent of the second one in the basement. well the way that they are doing it is to eliminate the walkway from the backyards. so that there is no second means of egress coming on these buildings. and from the back, and this is something that is going to be coming up loud and clearly pretty soon. and another thing that is coming up is formula retail and there has been some new legislation here that will straighten some of it out. but what the formerly retail people are doing are hiding some of their businesses until after they get a certain number of permits. and there will be appeals on this. thank you.

>> thank you. >> is there any other public comment? >> good evening, commissioners, my name is (inaudible) and i just have one, if someone can clarify for me this. this schedule of the location says that it is the truck is going to be parked at 84 second street. and simultaneously there is a truck located 49 feet northwest of second street. this if you measure it, this actually builds up to be not 84 second street, this is 96nd street. so where exactly is the truck going to be parked is the question over here, it is very ambiguous. the process has not been completed properly. thank you. >> thank you. any other public comment? under item number one?

>> okay, seeing none, we will move on to item number two, which is commissioner comments and questions? commissioners? >> seeing none, we will move to item 3, which is the adoption of the minutes for the board's meeting of march 6, 2013. >> entertain a motion? >> so moved. >> if you could call the roll, please? >> we have a motion from vice president lazarus to adopt the march 6th minutes. on that motion, commissioner fung? >> aye. >> president hwang? >> aye. >> and commissioner hurtado? >> aye. >> commissioner honda. >> aye. >> thank you, the vote is 5-0, and the minutes are adopted. >> so we will take item number four which is a special item. commissioners, representatives from the department of public health tobacco free department contacted the board for an

opportunity to make a short presentation to you on the work that they do to dissuade owners to sell to miners. we have derek smith from the department of public health and given him ten minutes to address the board and of course he will be available to answer any questions that you might have. >> there you go. >> good evening, commissioners, derek smith, the department of public health, the tobacco free project and i hope to speak to you on a non-controversial issues the number of sales to tobacco to minors. i have given you some, as well as some that we offer from the department of health. there is a lot to be said and i will spare you that and let you read it.

and just a base line to let you know that tobacco is the number one cause of death on earth. since we are talking about the matter of sales of tobacco to mine minors, keeping down the impacts of alcohol use verses tobacco, it is the number one cause of every cancer in fact. additionally there is research that shows to proximity to tobacco is related to youth. and it shows that schools that are surrounded have students that smoke at a higher rate. >> additionally, the sales to minors has decreased, as they introduced a permit ordinance in 2003 and began to implement that through enforcement practices which i will talk about in 2004. so, as you see, this is just

kind of an overview of graphic of sales to minors in san francisco, as you see, 2003, 2004, there, is when the ordinance that makes every retailer apply for the city and the department of public health for the privilege and the opportunity. and when the enforcement began with the police department and you see there is a dip in sales to minors and we keep it around at 12.8 percent at the moment. the state has had a drop from 37, selling one out of three, more than one out of three to right now at the state level only 8.7 percent are illegally selling when there