>> is it a box or a slot? >> yes. >> i would assume that a package would not fit. >> if it does not fit in the box the carrier will come to my office. >> so that would be a proper place for delivery, okay? >> okay. >> i have another question going back to notice, i mean the time frame, within the jurisdiction that was filed. i don't, i think that i'm not following the chronology. and some time you are stating at the time of the renewal notice is when it was discovered or you waited for the renewal in order to appeal the renewal. and that was, when? march? >> it was in february of this year, i believe, we contacted the department and you know, the way that the dpw issues currently in such a way that often they have a time frame, and they are for a certain period of time whether it is for something like this or a

street closure or anything and when it comes up for renewal and on its face you can actually take issue with that renewal. >> typically that will be the case but what dpw has stated in this enstance is that the position is that they do not accept any, even though there was a renewal required and that it would have reupped the inquiry, they basically take the position in the absence of any sort of complaints on the part of the person who holds the permit that... they almost take a position... >> what is the time frame? >> so that was in... the renewal of the permit was not timely when we were contacting the dpw originally in february of this year and so that when what happened was they had been issued the new permit and it was issued i am sorry. and i apologize. and it was issued on february 20, it was issued on february

20, 2013. >> so when did you learn that your appeal would not be appropriate on an automatic renewal and taking it to the board of appeals you were rejected based on lack of jurisdiction, when was that? >> we filed the appeal and we submitted a written protest of the new permit to dpw prior to the issuance on the 20th and in response the dpw stated that it did not have grounds to request a public hearing because it was in violation of its rules and less that we can solve an appeal with this board which we did. and so that was on february 22nd was the date by e-mail that the dpw informed us in writing that we could not appeal. >> when you were informed by this board. >> and so they said wait until you get the issuance of the new permit and so we got issuance of the new permit on march 12,

2013 and we appeal that within two days on march 14th to this board, and this board initially took the jurisdiction and subsequently informed us that you didn't have subject matter jurisdiction. >> and i am just trying to find that in my notes here. >> when i read the record there was a bit of a lag time. >> between that and the jurisdiction. >> right. >> why? >> right. so it was... and then what happened was that we then we discussed it with your staff and we thought, okay, the only thing that we can do and the only course that is available to us is to do what we are doing tonight and then we at least filed that and originally calendared it a little while ago and at the respondent's request they saw a continuance for a 6-week period and i can't remember exactly. >> we said that was fine and we pds. >> continuance prior to the actual filing of the jurisdiction? >> we filed this with you, and

you took this, you accepted this request for jurisdiction and then... >> when? >> the respondent? >> when did you make the request? >> may 13th. >> okay. >> and but, so that was over a month. >> right and then the respondent requested this additional time. >> i am just thinking about the time when you had knowledge that you could have taken jurisdiction and you didn't. >> we filed an appeal to this board in two days. >> and you learned that it was not the appropriate method by which you could get this heard before. >> in april, of >> in april of this year, you informed us. >> and then you waited a month. >> and i don't believe that it was a month, and it was april... it was over a month. >> let's see. okay, about a month, yeah. >> do you know why there was a lag? >> well, we were, we had no, we had absolutely no opportunity to be heard on this matter and so we considered it and talked with the client about it and

said that this is a late filed appeal and it was an error and it was not anybody's fault but as a matter of principal and this is an expensive proposition for everybody and this is an odd thing for west field to be pursuing it to this level and it speaks to the issue of that there is not adequate communication between dpw and the art commission or the owners of the major properties in the area and that if this is going to, and the city is going to have these sorts of programs and policies they need to afford people some opportunity to participate in the process. and so we thought this is a long shot. we need four out of five votes here but we thought that it was worth bringing to this board's attention and we do not bring them blame upon this. we understand that they are innocent and we are trying to manage what is going on in front of the center and it is very chaotic situation out in

front and so we would like to have the opportunity to be properly noticed on these things. >> go ahead. i have a couple of questions. >> miss murphy, i believe that you said that tenants of the building could reasonably expect that the landlord might respect their interest. >> i believe that some of the tenants did appear or right letters in opposition. how does that square? >> were they not any of your tenants? >> right. they were not any of our tenants. >> counselor i have two questions. first on i think that you

alluded to in your brief that you disagreed that this was not within the subject matter jurisdiction? but you did not expand upon that. >> would you like me to right now? >> if you would do it shortly. >> i will do my best. >> yeah, this board and i respectfully, i mean obviously you understand your jurisdiction better than anybody, but i believe that this board has always had the opportunity to have the denova review of the permits that are issued on many capacities from many different agencies. and you really are the board of last resort, when the other boards and there is a mechanism for originally showing this to dpw and their response to us actually did not... it seemed odd to me that it is typically the case that the board of appeals can hear all permits, except for the conditional use authorizations. but i think that it is within the purview of the board to

hear the appeals of granting or the denial of the permits by the other city agencies and this will be an example of this short of thing that would be within your jurisdiction, and it is really the renewal of the permit and it does come under a permit number for some odd reason. >> this is within your jurisdiction and we disagree with the original decision that you did not have subject matter jurisdiction, but in light of that our best recourse is to come before you today and explain the situation that we never got notice and hope that you agree that it met the standard of the error really. and it was just not anybody's fault it was just a weird, error and we would have appealed this if the opportunity had afforded us to the proper notice. >> that was not a short answer. >> i understand your position.

but the question that really came up and it was partially along the lines which is why there was not a jurisdiction request last year? >> actually, we didn't... >> before the renewal. >> way before. >> we were under the impression, if you look at the law with respect to the foot permits that they are appealable and you go to the dpw, we knew that the renewal were coming along and soon as it was issued the new permit as we call it in our papers, we immediately appealed that. we were not... >> i understand that, but you know, the west field representative indicated that they were aware of this operation the minute that they started over a year ago. >> and i am wondering if they were aware of the authorization and then they must have had a

position as to whether they accepted it or did not accept it. >> our understanding of the situation was at the time was that we would have this opportunity to take issue with the renewal of the permit. because we knew that it had to be renewed at a particular date. >> perhaps that was misreading, it is going through a set of revisions as you know and thes not a common place but it is not sort of old hat as a lot of other processes and we were very surprised when dpw said that they would not accept our protest of the renewal of the permit. we had understood that we would have another opportunity to address the issue, and that is why we waited, although, you know, honestly it was already going, so the point was that it has to be renewed and we will come forward. >> did anyone from dpw, are you finished? >> did anyone from dpw inform you that you needed to wait and

that at a renewal, there could be an opportunity to appeal? >> you know, i have to apologize, the person from the office that interacted with dpw had a baby two days ago and she is not available to answer that question. i don't have direct knowledge of the conversations. >> i will ask the people at dpw. but the reason why i am asking that is i am wondering where in the code it is unclear to you that this automatic renewal would not be subject to an appeal. the way that you read it, because it is not a new thing if you go back to the statute, is there a section that suggested that you would have the right to appeal under the certain conditions? >> if you piece together the food permit, and the ordinance, and you look at the appeals

rights that are afforded within that. and the way that we, i believe that you can read that and that is the way that we read it is that it would be, once the permit was over and the first permit was over and the new permit would have to be issued and we would understand that we would the opportunity. >> could you tell me what the code sections are so i could read it. >> i don't have it with me. >> the interpretation can you made? >> well, it is in section 184-88 of the public works code. but i would have to get you the exact quotation on that. i don't think that i brought it with me, a poll guys pologize about that. >> let me see here. if i can find that. excuse me for just a moment.

>> the issuance of the mobile food permit of someone who could be directly affected by that can protest the issuance of a permit. and how that would be applied, and what we understood was at the time, that the permit was issued and then had a date, you know, sort of an actual shelf life and it would have to be reissued and so we understand that to be a new permit and they viewed it as a renewal that was not covered by that and so i don't have the specific code section right in front of you. >> 184.83 d.

>> permit renewal. and subsection four. >> right. >> are you familiar with that subsection >> i read it but i don't have it on the top of my head. >> those renewals, i think, automatic renewals where there are certain conditions are not met, that would potentially allow for a renew and potentially an appeal those are automatically renewed without the notice normally and that you even knew about it was because of the interaction with the dpw. >> yes. >> and you were going to dpw for the purposes of trying to find out when you could appeal it? >> right. >> and so, i am trying to find the place where it would create the confusion and you went to 184.88 b and i don't have that language in front of me and so i wanted to hear at how you could arrive at the conclusion

that you did and you had to wait for the automatic renewal. >> respectfully, madam president, i apologized and i expected to be out of here by now and did not expect that we would address the merits of the case. >> so with the apologize i should have been prepared issue i did not expect to join the issues. >> the issue as to whether we can hear the jurisdiction. >> i understand that, i understand why you are asking that question and my apologies and i would have anticipated that you would have asked that and that is my failing for not having brought that section tonight. >> but i will tell you that the strong recollection and i am doing this for memory and i am 53 years old and so with all due respect to my cognitive abilities i remember looking at the sections and concluding, and perhaps erroneously that we

would have the opportunity to appeal that and that was not articulated in our opinion in the code that we would not be afforded the right to appeal that. the ship had sailed and we were already doing business the thing to do is to appeal the issuance of the permit. it may be that we are not the best you know perhaps we have not read the code carefully and i am so sorry to not have it before me tonight but i do strongly recall that we thought that the right course of action would be to wait until they issued the new permit and then appeal that and then we were very much johnny on the spot with that and i do want to say that i think that west field and our firm, it feels, you know, very awkward about the situation because we understand that kettle corn and they are honest and hard working people who tried to follow all of the rules too. you know, we actually understand that this is a difficult situation and that we are very sympathetic to them and we feel that very strongly, notwithstanding that we are here today before you because

we think that the fundamental issue is that the process is not very clear and i think that the sophisticated landlord like west field can miss the opportunity to address things that they think are important for the business, it suggests that there is something in this and it may have been the way that we interpreted it, but we have been diligent in trying to do the right thing and even if you disagree in the way that we interpreted the law. >> okay, we can hear from the permit holder now. >> madam president, and members of the board, good evening, my name is jack wynn and i am the on this for the permit holder, and as you have read the brief and i am going to summarize the finer points as i see it, the jurisdiction request from the appellant lacks permit and

sufficient grounds and should be dismissed by the board of appeals. the formal process followed by the permit holder as outlined by dpw, the health department, fire and police department, allow them to operate without harm. and the lawsuits have already been incurred by the attempted appeal on march 14, which was properly dismissed due to the lack of subject matter jurisdiction, there is no way to warrant a request for a subject matter dating back to may of 2011. when the original letters of intent were mailed out to the businesses within 300 feet of the proposed location. and the notification company, radio services collected all addresses from the public source, san francisco county data base and verified it against the addresses from usps and also performed a physical verification of the site. and nearly 700 businesses,

including 148 mall tenants received a letter of intent for the location 65 market street and 845 market street. and only three written objections were sent to dpw none of which were from the west field mall management. a public hearing was held on november 2, 2011 in which the hearing officer approved the permit. more over, when the initial dpw permit was granted, on july 17th, 2012, the 15-day window for an appeal on our approved permit transpired without any objections, that meant that the permit holder operated for a two-week period in front of the mall and they did not raise an objection with the dpw or the board of appeals. the mall has no jurisdiction over the public right-of-way. >> dpw has deemed the program to be the proper use of public

right-of-way. it has the endorsement of the mayor and a proven to be a great success in other cities as well, and they went through the process as outlined and passed all codes by the health, fire department as well as dpw and has continued to operate according to code as made no amendments to the approved permit and has continues to revitalize the streets of san francisco and the over all experience of the public. i thank you for your time and consideration. >> mr. wynn. would you indicated in your brief that the service that you procured to develop the mailing list, physically visited? >> yes. >> let me finish the question. did they verify every address? or did they do something less

than that? they go to the site physically and cross that against the address itself and presumably every address. >> every address, the address that they had. so the first cross check they pull it from the sf data base and they cross check that against it. >> and i am familiar with that. >> was there a physical address for... >> no. >> there is no physical address for that >> no. >> i mean not physical address, i mean physical facility reflective of box a? >> when i looked i didn't see, when i checked and i checked on their website myself, to try to find you know the mall management office themselves and i spent 20 or 30 minutes and i could not find anything.

and you know, it seemed like you had to sent in information to receive information from that web page so it was not very apparent, the mall management office. you know, it is our point that it should not be incumbent upon the notification company, you know, to seek out this information if it is privatized. you know? and if the management office chooses to be private and hidden, then they should realize and accept the fact that, you know, you are not going to be opened to, you are not going to be apparent for public surges for information. >> i have a question. do you say that the permit holder set up the cart virtually the day after receiving the permit? >> we set up that saturday. so... >> but within a day or two? >> we were there been the 15 days. >> yeah, we were there for two weeks and there is ample time

for the public including the mall management, to voice any objection or decent. and may i also mention that the two stores that we are directly in front, i mean they love us out there, they also signed the petition to keep us out there. >> okay. i wanted to ask, sorry. i'm looking in your brief for statement of the damages or the time or the amounts of the loss of business he stated here. and i'm looking for any calculation of that loss. did you... do you have a number? >> i did not put a number down. we were not there for, they filed a permit on march 14th, to seize operation. >> for how many weeks? >> until april 2nd.

because that was when we received notice from the board of appeals that the appeal was dismissed due to lack of subject matter jurisdiction. >> okay. and so for that period of time you were not operating? >> not there, no. >> okay. >> okay. how many locations does kettle corn star have? >> we have two, >> where is the other one? >> the other one is further down by coffee bean on fourth street and the address is 773, market street and so that is like 500 feet away. >> okay. so no others in the city? >> no. just those two. >> what was the cost incurred when you got the permit? if you can give me a ballpark? if you know? >> there were a lot of fees

involved. >> right. >> you have to pay the health department fee >> you have a ballpark ago arrogate? >> a few though dollars. >> how many people work at the cart? >> it is me and my wife. >> okay. >> thank you. >> thank you. >> thank you. >> we are going to hear from the department now. >> good evening, commissioners, from the department of public works, a little history behind this permit, on march 17, 2011 we received an application from the permitee in approximately that time we also sent off the 30 day notice through the mailing and the notice was provided to us through the radius services. we have a copy of the all of the addresses that this was mailed to and the requestor for

the jurisdiction would like to hear that address was not listed on this mailing. and one thing to note, is that the legislation is set up for all of the businesses are notified and so i am not... i am not certain, how the business is defined through the radius service and through the affidavit when they make that initial finding. and what happened is that during this 30-day period the department did receive the objections from the neighbors in the area, and we did provide notice through the newspaper of a public hearing over the merits of this location through the san francisco newspaper. and we had a hearing, a director's hearing on this case and in november, of 2011, we had the hearing in march of 2012, we released the hearing results after careful,

evaluation to approve it and the th and fire department certificates and we approved the permit in july of 2012, quoting the sfaf the business day that we operated shortly there after. and in february, towards the end of february we received an objection from west field llc. >> it was approved what day? >> july? >> dpw approved the permit july 17, 2012. >> and you got an objection when? >> february 20, 2013. >> okay. >> and we renewed the permit march 11, 2013. and that was on the 14th, the west field appealed the permit to the board. and what happened was we received some requests and we wind up having to check with our council from the city attorney's office, who determined that as stated, that these permits automatically approved and normally it would

not be appealable unless it is overriding reasons, and there are several cases where we actually had people objecting to the renewal and we do hold a public hearing additionally pending the final decision. in this case, again, the objection were again, based upon previous objections of similar foods, odor, congestion which has previously been discussed upon the hearing and upon the director's hearing back in november of 2012. the information that we have shows that we did provide notification, and based upon radius services it appears that there are over 40 letters that were sent to various occupants within west field mall.

and there as stated we have a notification through the newspaper agency, as a public notice of a hearing. and that was posted, that was also a public record. so we believe that they were sufficient notification in this place to the general public. >> okay. >> we don't believe that we did anything wrong. >> okay. >> do you? are you finished? >> yes. >> all right. >> when i first glanced through the brief, i saw the map and i said, i thought that the location was on holiday plaza, and when i read through it, and i find that it is not there, it is actually across the street from the radius, the 300 foot radius, does that make this application defective? >> as it relates to the appeal

for west field, i will suggest not. because they were notified, specifically in this case. >> i don't doubt that. but, just thinking in and i am not trying to create problems for the permit holder, but the fact is that you know the application is predicated upon a certain notification requirements. you are correct, but in this case the location was across the street initially and through a variety of reasons it moved from one side of the street to the other and further moved the proximity another ten to 15 feet further east and so the location changed. >> i see, it was correctly radiused? originally? >> correct. >> okay. >> so would that require an additi n