refinances it and put secondary loan behind it. there are some out of the box ones that we are working on and the city is going to create our own pros, a mellowroos district. they are able to krau -- draw from the city to pay for them through property taxes. it's an interesting option because the loan travels with the property as opposed to the individual. >> did i hear you say that you are an allowing the owner to a hundred percent path -- pass through? >> to go back to one of your

comments, you indicated that in the area of other code requirements that maybe triggered by this and the only one you mentioned was the 20 percent for ada or accessibility purposes, is that the only one? >> to our knowledge it's the only one. there may be some issues to deal with there. they have been very diligent. miss the ancillary work could not be part of this. if you say 20 kitchen bathroom remodels. that's to keep things very simple on the process an compliance side and to ease the burden so they are just looking at the soft story retrofitting and not plan checking anything else. >> the additional structures may have an interface with some other code issues and i don't know whether that has been

thought out? >> you are correct, things like gas meter relocation or things of this nature maybe triggered but because they are limited to the ground floor, there is no need to disturb the upstairs, unless there is ways to change the board >> and the other possible concern is that the on the soft story retrofit especially on the corner buildings which are going to require. so that would be a potential appeal that the tenant is now losing the parking space because of the mandatory retrofit? >> you are correct. i think it would be a very rare situation because having been out there in the field a lot recently looking at these types of retro fits, for the most part it is attached to the retrofit wall.

all the once that i have looked at in the last few months, it hasn't caused it to relocate. if there are issues that will come up that would be where they are centered around. >> they are going to give more parking. >> if there is no other questions, i would like to say thank you very much for the opportunity and if you need anything else or if there is a question after this, feel free to shoot me an e-mail. i will be happy to respond. >> thank you. before we move on to the next item i would like to see if there is any public comment on this item. seeing none. we'll start with item no. 5. item 5: appeal no. 13-035 gerard darian dba "roostertail restaurant", appellanttss vs. dept. of public health, respondent 1963 sutter street. appealing the denial on march

14, 2013, of noise limit variance.none. we'll start with item no. 5. sf 51234 project is at 916 sutter street. this is on for hearing today. we'll start with the appellant. please step forward. you have seven minutes. thank you. >> my name is gerard, this is my wife tracy green. we are owners of the hotel restaurant at sutter street. we took over an existing restaurant that had been there for over 20 years. we've been there about 15 months. we are asking for a noise variance. simple as that pretty much. you guys have our documents that we submitted. we had a health inspection. we passed our final inspection. we've gone through all the permits and process. we've done everything right. our first

health inspection, the noise inside the complaint ants building passed clearly. there is a fan that goes through a light well that is a few decibels over and that's why we are asking for a noise variance and also our operation hours is not 24 hours, so the noise isn't always there. we are open from 8:30, we turn the fans on and off until around 10:00 at night. >> the noise variance is in the light wells. so that's where we were over a few decibels. wasn't in the actual apartment. and again, like gerard said, we passed all this originally. wong did the initial inspection

and to be honest we are not sure why we are still here. to have it be brought up again, the complaint ant, we have been here before for a patio. we were in compliance and we do practice all procedures out for us from the city. the health inspector is for us continuing and was against this whole

having to come out and do the inspection and backtrack and do it over again. >> we also had a meeting with the department of health about a month ago and their initial response was just turn the fans off which we agreed to. we are asking for three decibels over which is not much sound it not 24 hours a day. >> we are also in a mixed use neighborhood. >> we are a restaurant. it's a tough business, we are trying to do our best. >> i have a question but i don't want to interrupt your presentation.

>> what changed between the first and second test? >> the first test was done in the apartment in the owner of the building and we were well below compliance. the second, the person that owns the building came was really in my opinion looking for a problem with us and wanted to have the noise measured in the light well in the property line. >> in your restaurant you only had one test? >> it's not in our restaurant. our initial inspection through city planning was on the roof. they had new equipment. we took over, >> so it was after your remodel. >> yes. and everything passed. >> the second test was in the light well? >> the second test was done by

the health department for a noise complaint in her unit >> i'm asking about your light well? >> that was the third inspection. she called out the health inspector again and they did a light well test and with the fans on and ambient noise we were a little above like three decibels over. >> is it the same equipment? >> same equipment. we have upgraded the entire hood and all the equipment. it's in our report. >> all the equipment was done by an hbac engineer. we had to put a specific hood and all

that was done to city specifications. >> i see there is a recommendation that if you built some barrier around the exhaust system that it might reduce that a few decibels. would you be able to do that? >> well, we've spent upward of $40,000 on this and to be honest, no. i mean, it's coming back to this we complied with everything that we were supposed to and we passed. and now we personally just believe this is another measure to have us -- to come after us to be honest. >> we are a struggling business. we have to keep paying more money out. >> so you are saying it would be a financial hardship?

>> yeah. we spent thousands of dollars dealing with this person on our patio to get that open so we can have outdoor seating for our customers which is what people want in san francisco and that ate up thousands of dollars and everything comes at that extreme cost towards us when we have complied all the way through with the city at every point and we just believe that measuring the sound in the light well is a step to just come after us for no reason. >> why would you think that someone was trying to come after you? what facts do you have to support that? >> because it's been happening since we remodeled and open our

business. >> you think that's why these complaints are invalid. >> there is multiple complaints for our contractor and they immediately sent letters of apology. there was one person who didn't want that going on. that was the person we are dealing with today. >> did you find out why? >> they had a meeting with the task force. we didn't really come to a conclusion. >> you didn't understand why someone didn't want you to have a patio? >> no. the back is a parking lot. not really, i understand noise and all that. we don't have a building behind us that

we are disturbing. again we all know this city and some of the patios that are existing and tenants right above and all that. that's not our situation. so, know we really didn't understand. noise and things like that, being clean and stuff was of worry some. we scored a 98 on our health inspection and keep it very clean because it is our business. we with respect to sure why we were. >> i think we are concerned about the neighbors and we don't want to be -- we want to be in that neighborhood and we feel like we are a good part of that neighborhood and we have neighbors that support us and are happy with everything that we've done. it's just a tough situation. >> have you sat down with them

and had conversation? >> we have tried and with other people mediating. >> so you have sat down with them? >> we have sat down with this person. the issue of the noise in the light well, we have not discussed. >> why not? >> we've been -- i don't know. >> back to your remodel. so you remodeled and got the equipment was it producing more cfm or more airflow was that in comparison to your prior? >> yes. >> and the exhaust that was in the light well, was that exhaust fan always at that location? >> it was always at that location. the old exhaust hood

was a fire hazard. >> there have been shown proof that there had been a fire in the old system when we opened the wall. so this is fully an upgrade for the neighbors. >> i inside. what my question was that in upgrading your restaurant, that's the recommended and was required and it's producing little more sound than prior? >> possible. yes. >> according to this it says 6 d b. >> it says 3 over. >> 3 over maximum? right? >> yes. >> the light well faces -- her

window doesn't face our light well. it's opposite our building. so so there is no ability to go inside the building of the complainant? as i read the materials i think there were double -- >> we are in compliance. >> they had to buy reinforced double pane windows. >> that's not facing the light well. that's in her back. >> when the sound testing was done, where you passed where it was taken from inside the complainant's unit were the double pane windows in or out?

>> i don't know. >> okay. i will ask them. >> you didn't do any testing of your own? >> the light well it closed. >> did you do any of your own? >> no. >> okay. thank you. we can hear from the department now. >> good evening. i'm the director of environmental health. i don't come before you very often. i don't know if i have ever had to respond to an issue around the noise code or variance. we don't issue variances in san francisco since i have been here. i think i want to sort of explain some aspects of the noise law first because there is different

standards. and i think the different measurements that are being discussed are related to different standards. there are indoor standards and outdoor standards. the noise that is in violation was an outdoor standard. the purpose for providing the noise laws was to deal with the mixed use joining. it was based on joining code in 1974 which we don't use. we have to sort of tier what was allowable noise to what an existing ambient was. one was for commercial use and one for residential use. if you are in a residential use and you have ventilation equipment, you can make 5 decibels over the ambient noise

level at every property boundary. if you are commercial use you can make 8 decibels over the ambient at the property boundary. that's the outdoor noise standard. as applied to both residential and commercial areas, we don't apply it to the area, we apply it to the use. we have been applying it that way since 2008 in a fairly consistent way. in this case, the noise measurement at the boundary was a level over the ambient, 3 over maximum allowed. i'm not here because of the complainant. we measure noise and enforce this code for two reasons, one to protect the neighbors from ambient noise and their harm but to also keep

ambient levels down in the city. we have a very noisy city, many parts of the cities have noise levels that are very high for health and protection. so we are trying to do what we can to keep the noise levels down. there were several measures taken at this place. so my staff did take a measure outdoors near the equipment on the roof and they found the noise level to be compliant at the time. a measurement taken at one point in time doesn't speak to its compliance on all times. since it's the ambient noise level and varies at different times at day, you maybe compliant in the daytime and not in the evening. we did

an indoor measurement and that was in compliant. that is not what is at issue. we came back into the situation not because of the complaint but because we received a noise analysis done by charles and associates an acoustical consultant and took a noise test and taken at 10:15 at night. that explains the later at night you maybe more out of compliance. so, we've taken measurements and an acoustical professional has taken measurements and both demonstrate clear violation of

objective quantitative noise standards. we have taken the measurement in the light well because it was the closest place to the property boundary. in fact that noise measurement in the light well would be lower than it would be at the actual kind of roof boundary and that's an appropriate way and we have regulations that we have published that are on our website. there have been a number -- we sympathize with this situation. we are seeing more and more cases where restaurants are expanding, new restaurants are coming in and putting new equipment on the roof and the equipment is creating a violation as soon as it's being turned on. this should be prevented. we are trying to work with the building department to get them to pay more attention to this issue to get them to alert people though this issue. but

it's not in our control. the restaurant in this case responsible party has given us a plan showing that there is a feasible solution. yes, arguably it does have cost. they have argued that they have gone through the process of renovation and they shouldn't have to do this again. i feel bad about that, but the builders and the acoustical professionals should not have installed equipment that would be in violation of the noise standards. they have cited financial hardship and unfortunately the department doesn't take into account financial hardship. we are instituting this code exactly as we are supposed to with quantitative instruments and taking the measures exactly as we are supposed to. in meeting

with the responsible party we have academy -- acknowledge their challenges by saying to let us know when they complete this correction. we want to see good faith frog that point. i think that's all i need. >> question for you. what instrument is used to measure the decibel level? >> a noise monitor. it's a hand held instrument with a microphone. >> okay. what's the margin of error for that equipment? >> small. less than a decibel. typically less than a decibel. and there are two measurements in this case. one at 11

decibels and 14 over the ambient. it's a noise meter. so we are taking ten minutes of the measurement. while one measurement might have some variance over 10 minutes, there is an almost infinite number of measures and collectively what those measures would have a very very low margin of error because they are average of a very large number of measures. >> i have a question about that timing and i think this is in your documents. they had an inspection in october of 2011 which they passed. >> the inspection was a general inspection of their food safety conditions. at the time, it is not necessarily the protocol of the -- this is done by a plan

check inspector. the plan check inspector is not a noise specialist. the plan check inspector did a noise measurement on the roof and said at the time it was in compliance, but compliance agendas -- depends on the ambiance and it varies. >> it was a year later when the complaint was raised. so did they go a year when it was in compliance with the noise ordinance? >> i think it's safe to say. we do not go pro actively when restaurants are in business to check noise levels. because there are limited resources, we are trying to take proactive action when we have a plan

check process in the department of health to advise the restaurant owner to look into the equipment and not put equipment in places where they are going to generate noise or buffer it with a sound wall. >> could you describe in the light well is it going to meet st standards? >> there are two entirely different standards, an indoor standard that is protecting the resident in their living units. there is no violation of that standard. there is an outdoor standard that is intended to prevent the cumulative contribution of noise affecting the ambient noise in the city of san francisco. it is not intended to protect the individual. >> to clarify what you said, are you saying that you have

been in your position since 1998. you've never granted a noise variance. are you saying that you wouldn't grant it at this level or you would never grant one at 2 decibels >> 1? >> we have measured 11 decibels over the ambient level. not 2. >> the limit is 8. >> the limit is 8 above the ambiance. the measurement is 11. it is 3 above maximum allowable excess noise. >> right. my question is are you saying you would never grant a noise variance at this level at 11. would you grant one at 10 or 9?

>> if it is a mixed use area if there is equipment, there is a wide variety that you can put in, you can put it springs or boxes around it. the technology we keep -- we spent a lot of time with this standard. i would not -- support undermining the standard by granting variancesful it is a puzzle to me that if we are enforcing the law by a quantitative standard that that is something that is subject and we are not granting the variance on that law. the quantitative standard that is subject to a variance is a legal puzzle to me. the only one instance that we have grand in my 15 years of the department that is a situation where the food bank was

operating food delivery services in an industrial area. they have been doing that for decades. along comes a residential building built right next door against the food bank and raises concerns about a noise violation. the noise standard was not intended to address industrial zones and that's why we grand the variance in that case. >> you understand the question is the system of the variance implied is a flexible standard not an absolute other side we would have no variance. >> we would grant a variance in -- let me give you an example. if let's say there was a