things happening on the phone where people call in and ask, how do i find this information? we say, go to this website and they go and get the information easily. >> a picture tells a thousand stories. some say a map >> good evening and welcome to

april 24th, 2013 meeting of the san francisco board of appeals, the presiding officer is board president chris the wang, she's joiner tonight by an lazarus, commissioner frank fung, damper honda and arcelia hurtado, to my left is mr. brian, he will be here for legal advice tonight and at the controls is victor pa chico, i'm gloria, we're joined by representatives that have cases before the board, scott sanchez is there, he's representing the planning department, roger duffy is here representing the building inspection and john quan is here, he's the manager of public works, bureau street and mapping. at this time, mr. pa check koe, if you could go over the board

meeting guidelines and conduct the swearing in process. >> the board request you turn off all cell phones and pagers, please carry on conversation ins the hallway, the board rule of presentation are as follows, appellant, permit holders and department representatives have 7 minutes to present their cases and three minutes for rebuttals f, people affiliated with these parties must include their comments within the 7 or three minutes, they have up to 3 minutes each to address the board but no rebuttal, 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 bh you come up to the podium, speaker cards are available on the left side of the podium. your board also welcomes your comments and suggestions, there are comment forms on the left

side of the podium. if you have questions about requesting a rehearing or hearing scheduling, please speak to board staff or call the board office tomorrow morning. the board office is located at 1650 mission street, room 304, this meeting is broadcast live on san francisco government television, sf gov tv, cable channel 78 and dvd's of this meeting are available for purchase directly from sfgtv. thank you for your attention, at this point in time, we'll conduct our swearing in process, if you intend to testify at any of tonight's hearings and give the board to give your testimony evidentiary rate, please stand, 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 pursuant to the rights under the sunshine ordinance in the administrative

codes. thank you. >> please stand if you're going to take the oath. anyone else? okay. thank you. do you solemnly swear or affirm that the testimony you will give will be the truth, the bhoel truth and nothing but the truth? thank you. >> thank you. so, item 1 on tonight's calendar is public comment, for any member of the public who wishes to speak on an item that is not on the agenda, is there anyone who would like to speak under general public comment? okay, seeing none, then we'll move on to commissioner comments or questions? okay, there's no commissioner comments or questions so then we'll take item number 3, adoption of minutes, they're

the board minute meetings for april 10, 2013. >> i'll move their adoption. >> okay, is there any comment, public comment on the minutes? seeing none, then mr. pa ka khaik koe, if you could call the roll please. >> on that motion pr the president to adopt the april 10, 2013 minutes, commissioner fung? >> aye. >> and commissioner hurtado? >> i was not present, so i will abstain i think. i've looked at the minutes and i will vote yes. >> thank you. >> vice-president lazarus? >> aye. >> commissioner honda? >> aye. >> the vote is 5-0, those minutes are adopted. >> thank you, so then we'll call item number 4 which is appeal number 13-012, tra pham doing business at faith sandwich versus the department of public works bureau of street use and map lg, the subject property is at 560

mission street appealing the denial on january 14, 2013 of mobile food facility permit, sale of vietnamese sandwich, various meat, rice plates and bowls, vermicelli, spring rolls, sticky rice, vietnamese goi, chips cookies, coffee, tea, soda, juice and water, application number 12mff-0095. stepford, the appellant, the appellant's representative, you have 7 minutes. >> good evening, thank you for this opportunity, we're here this evening because tra pham, our client has been wrongfully deprived to start her own business, a food cart serving vietnamese sandwiches. my name is michael mur ta*, thank you, as i'll describe

below, the department of public works declined her [inaudible] namely an incorrect like foods analysis and a finding there were too many other mobile food vending facilities in the area, before we get into all the legal reasons why this permit should not have been denied, we want to give information about ms. pham, she's been in this country for four and a half year, she lives in east bay, ms. pham is sitting back here today. ms. pham has two children, she would like to start her own business to help support her family but he's been unable to to, she filed this application in may last year and since then, she's been unable to start her because because the permit was not yet approved. to get into the two reasons why it was denied and those reasons were incorrect, the first is the department of public works found there were too many

businesses serving like foods in the area and we submit that was incorrect. first, mixed greens was listed as one of the businesses that served vietnamese food in the area, specifically vietnamese sandwiches, if you look at exhibit e to our brief which we filed, exhibit e is a copy of mixed greens menu, there is simply no vietnamese sandwiches on that menu, there are other sandwiches on that menu but they are not vietnamese sandwich, exhibit f to our brief contains a more detailed description of what is a vietnamese sandwich and that's not what mixed greens is serving so first mixed greens should not have been considered, second, parila, well, second and third i'll take together, parila and fresh roll are out of the 100 foot radius, if you look at exhibits g-h, we have copies of maps that show where they're both located, fresh roll is almost a

half a mile away, about 2200 people and pr*il la is awhat i from the 100 foot radius, none of them want to be protected from ms. pham's food cart serving vietnamese food, so from our perspective, the first finding that there were like foods in the area is just completely false. now, second, if you look at the next finding, that there were too many mobile food facilities in the area, the four mobile food facilities are vk, bombay boulevard, then you have man han catering and john's catering, well, there weren't four or there aren't four now because man han shows that man hang is not there, so man hang should not have been considered.

the next, you have bombay boulevard, bombay boulevard, not granted, not approved. the status here does not show that it's ever been approved, it still says it's been requested and that's exhibit j, so those are two, the next two if you want to evaluate what we understand to be there are, you have john's catering 6:00 to 7:00 in the morning serving soda and sandwiches and other things and this is not -- this is at 6:00 to 7:00 in the morning, ms. pham does not propose to be open at 6:00-7:00 in the morning, they don't conflict in terms of hours and their distinct names do not conflict with this soda that's being served by john's. then you have the final one is cast ta indian eat ri, that's a food truck operating nearby but it's serving indian food and we submit that is an area that can

easily support another food cart. this is the area right near 560 mission street, the j.p. morgan chase building is there, this is the headquarters, ernst and young is there, dla piper, one of the largest law firms that i'm aware of is there and golden gate university is right next door, this is with 700 law students, that's all in exhibit a of our brief, so it's an area that has a lot of people in the afternoon looking for some lunch, quick lunch, and it's an area that can easily support one more restaurant. now, sorry, not one more restaurant but one food vending establishment, a small food cart. there have been some objections, we acknowledge there's been some objections to ms. pham's request, but we don't think they should carry any weight, there's been

objections along the line, people said mixed greens serves vietnamese food, not correct, casa indian eat ri is around, not correct. ms. pham's permit if granted would impose some negative problems on people nearby that it would create a lot of crash, that it would create -- that it would be too noisy, that she would make a mess and not stop people from eating at other tables, that's not a view that we perceive as being a problem, now, if the permit is granted and that eventually becomes a problem, there is a whole procedure to deal with that and specifically vpw order number 171044 provides for so-called good naibl policies and if a permit is granted and somebody's abusing a permit and putting pardon me on others, that's permitted but it's not a reason to stop ms. pham to have

the opportunity to have livelihood now, there's been complaints about unfair competition. now, again, this is somebody who's just trying to open a different kind of business in an area that can clearly support another business and we really -- we wlao*ef that there's nothing unfair about this. all of the other businesses got their start in some way or another and this is a spot that can easily support another business, unless the board has any questions, i'm done. >> counselor, your maps and the radiuses, do they conform to the department's means and methods of establishing distance? >> we understand them to. we don't know there's any problem with these maps. is there something -- i mean, is there something that you would like to discuss about the maps? >> no. >> i mean, we went to a company called notification maps, and we asked notification maps to

help us make maps of this area. >> o*blg, thank you. >> so, we're very comfortable with these maps. >> thank you very much. >> thank you. >> any other questions? then i'll sit. >> thank you. >> okay, mr. quan? >> good evening, commissioner, john quan with the department of public works. the appellant is eloquent in his statement about the concept of like food, their interpretation of like food differs from the department's view of like food as well as saturation which is one to have reasons that we had denied the permit on these two item, as it relates to like food, they're suggesting that number one, the immediate restaurant that's mixed on 560 mission street which serves food does not serve like food, that a second

location which is approximately based upon them drawing 335 feet away serves like food that because it is just here at oak side, a 300 notification direction that we should not evaluate from that perspective. one thing that in the department's evaluation as it relates to like food, we took an early decision by this board specifically and it related to vk industries in one case where they served indian, they served indian street food, one of the proposed locations was on baoel street and one of their foods was an indian wrap, and there was a restaurant there bho suggested they also serve a mediterranean wrap and this was a permit that we had approved that was appealed. it was in this specific case

that the board when he evaluated determined that, yes, even though the ethnicity is different, it's still considered like food and that location was denied specifically this board overturned the department's position in this specific case. our evaluation determined using that criteria, the evaluation of the department determined there appears to be like food at 560 mission street and it was definitely like food at 510 mission which is slightly beyond that 300 foot area for notification, however, we believe it is sufficiently near to create the situation that would impact the competition and as it relates to the tenant, and the intent of the law as is established. the follow-up question, comment by the appellant was that the

idea that other food trucks are being served at this point and it is not a level of saturation, overpopulation, again, there has been many appeals to this board as it relates to food trucks in the immediate area of the financial district and others, and the continued complaint by the community has been the oversaturation of facilities again and again and again, the additional trucks coming in, one might be okay so we did take that to heart in our evaluation to determine whether it is an appropriate location for ms. pham. the department believed its evaluation was judicious and we do not believe veered in our evaluation, i'm here to answer any questions you may have. >> mr. quan, same question i asked the appellant, you

referenced the maps that they produced, do you disagree with the distances that they have incorporated into their brief? >> from a cursory level, the department does not disagree, however, given that it is a food cart, it can maneuver up and down the sidewalk depending upon the situation at hand. if there's some obstruction or something happening in that immediate area, it doesn't prevent the cart in this case from moving potentially 20 feet, one parking space one way or another in these kind of cases. >> it looks like the radius was based upon the mid block standard that you folks have. >> that is correct. >> with respect to parila, was there any notice given to that entity since it's used in part as a basis for the denial of the permit? >> i do not currently have the

notification of all the properties in front of me so i can't speak to it, however, the requirement has been either 300 feet from -- in this case, for the cart is 300 feet from the property corners of where it fronts, so parila may have been contacted, i am uncertain because based upon the radius, it's right on that borderline so it might have been missed by maybe 5, 10, 15 feet. >> and prior to coming to this board today, this matter, what are the underlying proceedings, were there -- was there a hearing at which time others could object? >> that would be correct. >> and [inaudible] wasn't present at that prior meeting? >> no, i don't believe so. >> is there any way today standing here today you are unable to confirm whether or not parila had notice of the

prior proceedings, is there any way you can check with your office? >> i will go back and check with staff as --. >> could you do it not -- can you do it after you sit down? >> staff may not be -- >> i'm curious about that, thank you. >> thank you. is there any public comment on this item? three minutes. >> good evening, commissioner, i'm david silver glide, i'm with mg restaurant, we offer four restaurant ins the san francisco financial district, i wanted to address a couple of things that came up in the attorney's opening comments there, first this was characterized as a starter business for ms. pham, that is not the case, there are

multiple faith sandwiches, they make a habit of locating them close to our locations because we do a very brisk business, second, we do certainly have a sandwich that is characterized as a vietnamese sandwich called the saigon, i'm not sure which example they used, it was presented to the dpw when we objected, it is a seasonal sandwich, it is not on the menu all of the time but it fits all of the requirements for a vietnamese sandwich. we also serve chips, cookies, coffee, i'm sorry, not coffee, tea, soda, juice and water. we also deal with vk industries, another food truck that is parked outside of 560 mission which would add more saturation to this. being a food cart and not a truck means that these are not self-sufficient operations, they have a portable generator, there is a park outside of mixed greens, any name is

brad collins represents the ownership of the build, this is to protect the leasehold interest of our tenant, our brick and mortar tenants, our tenants being mixed greens and murphy's deli, these tenants paid hundreds of thousands of dollars to build out their premises and bring in another cart to place them right in front of -- and operate right in front of an existing brick and mortar tenants is not good business in my case, not only for my tenants who i'm looking out for but as a building interest, as competition grows, rent receipts become an issue when you have increased competition, in addition, there's issues with -- that the building owner of course would have with the liability creating established on this premises the sidewalks are

maintained by the building owner, there are no indemnification requirements from a cart operator to indemnify the building owner for any accidents that may be caused as a result of spills created by the cart operation. we would -- the building would be responsible for any liability as such. claiming -- cleaning is always an issue as well, do they have the wear with all to clean up afst thing to address the existing congestion, there's not a lot of room to begin with, casa food truck is out there now with the faith sandwich, i don't believe there's enough room to handle that. >> thank you, is there any other public comment? okay, seeing none, then we will move into the rebuttal process and we will start with mr.

murtah. so, you have three minutes. er >> thank you again, so we just have a few points, with respect to the government statement, to the department of public work, first of all, they didn't file a brief, this is the first we heard from them that they believe being outside of 300 feet is still sufficient to be a like food that can require denial or can support denial of the permit, and that's something that they didn't file a brief, they didn't say that and it's flatly inconsistent with the rules, the department of public works is supposed to apply the rules that say that they have to be considering like foods within 300 feet and i can pull that up, but that's what we cited in our papers at page 3 to 4, that's section

184.88b1 of the public works code, so this idea that being outside of 300 feet is sufficient is news to us and it's not consistent with the rules. now, second, and additionally the standard of review is de novo so all of the discussion of what the board did below and whether the board properly -- there's a lot of discussion from the government that the board made a fair consideration and thought about these things and we agree that the board or not the board, the department of public works tried the first time but we don't believe they reached the right result and we don't believe that any deference is necessary. the representative from mixed greens has shown up and said there's something called a saigon sandwich, it doesn't appear on his men you -- menu but it is a sandwich, this

wasn't filed in his objection he filed last week. we just looked at the menu on the website and we have to say, even if there is a saigon sandwich that's a seasonal sandwich as it was termed, that does not require denial of any food permit. different types of sandwiches and similar types of sandwiches can co-exist, the menu that we cited, exhibit e which we pulled off of their website at the end of march has no saigon sandwich on it. finally, the representative of the building seems to be complaining just generally about food trucks, not about this particular one and how it will harm this business. there are plenty of differences between food trucks and between a sit-down restaurant, but those differences do not mean that a food truck cannot be had in this location, this is a different kind of business model for different customers and we submitted some exhibits in our -- with our brief,

that's exhibit m, and exhibit l discussing how food carts and food trucks can help people, can help other local businesses nearby. finally, one note, there was a suggestion from the government that ms. pham might move her cart, that's just speculation. thank you very much, unless there are any other questions. >> counselor, does your client have additional food venues? >> i have just spoken with ms. pham, when that was discussed by mixed greens, and jack informed me that, no, there are no other ones, no other, ms. pham has no other location. . er is it possible there are other faith sandwiches but they're not owned by ms. pham, your client? >> that name could be used elsewhere, i have no idea about that but i just asked my client and we were told no.

that also never appeared in any of the prior objections filed by either of the two objectors. unless there are any further questions, i'll have a seat. >> thank you. >> thank you. >> mr. quan? >> good afternoon, commissioners, good evening, commissioner, john quan from the department of public works again, for president hwang, i did check our file, it did turn out that my staff did place a copy of the notification map as well as the notification information, i want to point to the map as shown on the overhead , can you zoom out a little bit for me.