i would support the fact that there is a fine and if the going rate is on the second violation of $500 then i would support that. the other issue of suspension of her license, i don't find that there is enough information to make that judgment and i cannot support the suspension. >> i concur. >> and i do as well. >> obviously the police did not arrest or charge because there was no evidence of 637 b and so that can be the basis for either the fine or a suspension, i do agree to the improper attire at all times but i also agree that is worth the $500 fine and not the suspension. >> the fine is not before you,

and the board has no authority over the fine. >> in the case of the suspension, then i would grant the appeal on the suspension.. >> all right. i am of a similar mind, i think whether the department had a right to suspend on the basis of the inappropriate attire, and it is i think they may have that right, but i do think that it is accessive. and i think that there is insufficient evidence that the conduct at issue is illegal warranting any further penalty to the appellant. i would move to grant the appeal. >> do you want to state a basis? >> on the basis... on the basis that the suspension is unwarranted, and excessive, and i think that the fine and i

know that the fine is not before us, but the fine seems sufficient as penalty and that was not challenged and also as i just stated i don't believe that the conduct, based on the testimony presented in the facts and in the record there is insufficient evidence before the board, or in my view to find that the conduct at issue was considered illegal. and for those reasons i would grant the appeal. >> we have a motion. >> the motion was from commissioner >> or president hwang. >> okay. >> the motion from the president, to grant the appeal, and to over rule the 60 days suspension with the finding that the suspension is unwarranted and excessive ask that there is insufficient

evidence in the record to find the subject conduct as illegal. correct? >> correct. >> on that motion, to grant and over rule with those findings, commissioner fung? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus. >> aye. >> commissioner honda. >> aye. >> it is 5 to 0, the suspension is over ruled with those findings. >> thank you. >> bewill move on to 13-061. nancy luo dba "clement service center", appellant(s) vs. dept. of public health, respondent appealing the revocation on may 13, 2013, of massage establishment permit.

director's case no. msg-13-23. for hearing today. >> and we will start with the appellant who has seven minutes. >> attorney for the appellant and the service center and my co-counsel is sean falehi eh. and i have been discussing this with the city attorney and a continuance this has been additional information and represented. and they have indicated to me that they would not object going over to the next hearing and that is suitable with the president and the members of the commission. >> could we hear from the department? >> good even. i discussed this with the health department, and they would be fine giving the appellant another month to review the information that has been provided to them. for some reason they did not have a chance to look at the papers yet. >> and excuse me, there is a chart apparently that the city attorney wants to use and it is just shown to me tonight.

and so i would like to be able to review all of that and make copies of all of that. >> what is the content of the chart? >> we have a pretty as i understand it a very full calendar next week. >> have all we did if they brought up the other locations which are not relevant to this particular hearing, is go through the documents that they were provided under sunshine requests, and weeks ago, and to distill that information into one page. >> it was a summary of the other venues that they brought up in their brief, saying that they have been singled out and so it is just as like i said it is the loss of all of the information that they received pursuant to the public records request and to instill that information and we were going to offer that on rebuttal if they are raising some kind of discrimination. it is not new information. >> we would like the same

opportunity as the law student has to go through the information and come up with our own conclusions so we are requesting next month if that is possible? >> could you proceed without that? >> but, would i like to have that, because that is part of my argument that i have seen that the commissioners have received my brief. >> okay. >> thank you. >> if there is an interest in entertaining a motion to continue, i could ask for public comment on that. >> i will. i will make a motion. to continue it. >> okay. >> so is there any public comment? >> okay. if you could step back. >> thank you. >> okay. >> so there is a motion by the president. >> i mean i am not. on the basis, and the only reason that i would entertain this and make the motion is simply because the department is not objecting to it i would

praoerp that courtesy and for that reason if both parties are not going to have a problem with that, we will go ahead and move it. i will make a motion to move it if my commissioners are also in agreement. but... i have been trying to think of a date. >> august 14th? >> or the 21st. and the two opportunities in august. >> okay. >> both are pretty heavy. >> i would prefer the second date in august and august 14th is my son's birthday. >> sure. >> we would prefer the 21st also. >> okay. is that okay? to the matter is continued and we will make a motion to continue the matter. >> the calendar looks about the same any way. >> i will leave it to that date. >> president hwang, any additional briefing? >> no. >> the chart was not submitted as part of your materials, right? >> it was going to be, you provided it... >> in the rebuttal if you brought up all of these other.

>> it has not been submitted. >> no further submissions please >> we have a motion then to continue this to the 21st of august with no further briefing, if you could call the roll. >> on that motion from the president to reschedule august 21st no additional briefing allowed. >> fung. >> aye. >> hurtado. >> aye. >> lazarus. >> aye. >> honda. >> aye. >> thank you. >> the vote is 5-0, and this hatter is reschedule to august 21st. thank you. >> okay. >> the next item on the calendar is appeal 13-060.martin dean, appellant(s) vs.

dept. of public works bureau of street-use & mapping,75 mars street. protesting the issuance on may 14, 2013, to david maxfield otto living trust, minor sidewalk encroachment permit. permit no. 11mse-0436. for hearing today >> and with the president's content, we can hear from the parties regarding a request by the appellant to continue this matter to a later date. >> all right. >> we can give them two minutes. >> this is opposed >> good evening, my name is martin dean and my taught me that when you inconvenience others the first thing that you should do is apologize. i want to apologize for all of you for requesting this continuance, this is the basis that i have done this, i have prepared a brief it was the understanding of certain facts that had been included in the decision of the dpw. but were not or were then added to in the dpw response to my original petition. and i'm not going to address

the petition here. all that i am going to do is request a continuance. and what is the reason for my continuance is that the response to my brief by mr. elsner adds facts that were not originally heard at the hearing. those facts are on physical page 4. and the first four paragraphs of his response. and here is the issue. this is a park let at the corner of mars and corbet it is abandoned piece of property. the park that has been approved by all of the neighborhood, i currently represent nine of the neighbors who are very, very unhappy about the grant of a portion of that for the private use of mr. auto. we didn't know that this permit was going to grant private use

to him until mr. elsner's response of brief was filed last thursday. it took me four days to get my people together and testified last time we were here and i filed a request for a continuance on monday. and neither party has consented to this continuance. the problem is that we needed a chance to research what the consequence is and the statutory basis is. and that is what the board will have to find to be able to give mr. auto private use of public property. and i need a chance to be able to do the research and that is the basis for my request. >> you have directed our attention to page 4 of mr. aelsner's... >> yes. >> i see, but the last page, right? >> furthermore around article 15? >> no, ma'am, in his brief, 15 is mistaken. >> okay.

i am in the wrong. >> because i have it, am i wrong? >> maybe. >> but that is the third page as i have it. >> are we missing a page? >> i see. >> yes. okay. >> i would like to read it. first paragraph begins in this brief. >> i got it. >> so you have had no time no the last seven days? >> i was not even in town this weekend. ma'am, it is not just me. there are 7 neighbors who need

concerning this petition. and it was necessary to get them together and we couldn't do that until sunday, and therefore, i had to write this brief on monday. and so we worked as fast as we could and it is not just me, i can give you the names of the people on the committee that have testified in the main... >> are they here? >> two of them are, yes, ma'am. >> now,... >> i don't have a question. >> okay. >> your time is up on the continuance. >> okay. >> i would like to hear from the other side. >> could i hear from the permit holder now? >> no? the permit holder does not want to speak? is the permit holder here? there is not private about the property and they go to the side door of the house and they are there now and the remodels

house has the stairs again. i am responsible for the land and there is a stairway that is going to be for public use and put on the land. and when that happens, i am going to want to be able to walk out and see what is going on just like anyone else in the neighborhood is able to do. so there are not really any changes, and there are no private areas in this property. and the more, transparent the property is, the safer it will be. and so the whole plan is to leave it open. and so i don't know what they mean by private even. >> so i object to these continuance. and hearings, and i don't know about something that has been approved. >> okay. >> thank you. >> i have a question. >> sure. >> mr. auto? are you aware of this proposed park let to be installed? >> the proposed park let that they are speaking of in regards

to. i am aware of it, we have made four presentations for the neighborhood which this gentleman has attended one time. we have had a neighborhood meeting of which this gentleman did not attend and swre been transparent all along. there is nothing that this person can read that says anything about private. and it is access. and it is zoned for access. but once again, with me and the land is not to, but the problem is to build the stairway and the adjacent property owner which is me is responsible. so we have done it with architect and engineer and with lighting engineers. and we have done this in a way that is totally transparent and available for anybody to see. we will come to the meetings and see it. >> and do you support the proposed park let? >> it isn't the park let. it is the wrong definition. it is not a park let that is his develop definition.

>> it is dpw land and i am responsible for it. >> i will get the clarification. >> thank you. >> okay. and for the department? >> good evening, commissioners, with the department of works and bureau of the mapping and i would like to correct a misnomer this is not a park let as defined by dpw and planning, it is something that we will be reviewing in the next item. but this is in this particular instance this is an unimproved portion of public right-of-way and based on section 723.2 of the public works code, mr. auto as the fronting property and as the adjacent property owner to this land and unimproved right-of-way, he is already

responsible for the area maintenance rise and as it exists today. and so granting an encroachment permit for private use is no different than a standard enroachment permit that we would use or issue to any private property owner to access their garage or a front entry stair or a door that happens to be adjacent to the public right-of-way. with regard to the continuance we don't have a position. >> the objection came from mr. auto. >> i see, thank you. >> and could you help clarify the basis for the continuance as i understand it is a paragraph in your letter. >> yes. >> that emphasizes the public stairway noting that the appellant is mistake en, could you help to clarify that issue?

>> yes, the public stairway meaning, the public right-of-way. >> okay. >> meaning anybody from the public could use it guests to the house, and anybody, you know, walking down, or walking down that portion of it, and anybody can use it and it can't be fenced off. the fact that it does lead to the owner's side interest, happens to be it is in the public right-of-way and it is going to be for right of use. >> so the section also specifies that encroachments may be granted to the property owners to the use and enjoyment of their properties.

>> this is the basis for the continuance here, why did you decide to emphasize this point? >> the fact that because mr. dean was specified in his brief that it was a public stairway. and what is it, what are the implications, from your perspective of it not being a public stairway? >> not being a public stairway? >> i don't understand. >> you are pointing out that it is a mistake and it is not a public stairway. >> right. >> it is on the public right-of-way. >> it is in the public >> it is open to the public and so pointing that out is a mistake and what is a

significance is that to us. why did you do that to like i am trying to understand your point. >> because i just wanted because that seemed to be the focus of mr. dean's appeal. >> how does it make any difference to us? >> and i am probably missing something and i am asking for you. >> yes, i know, i fully understand it. >> i fully understand it. >> and we felt that the nature of the appeal was the fact that mr. dean was not appealing the entire encroachment, it was just this site and this stairway, that was misinterpreted to be a public stairway.

if there is a motion to continue we can take public comment on that otherwise we will proceed with the hearing. >> it does not like there say motion to continue and then mr. dean you can start with your 7 minute presentation. >> there is an park let before he bought the property and there is an encroaching part

that was constructed illegally and should not be used for the next stairway. it is a beautiful, thanks. >> i am used to it. >> i get that from my family all of the time. this is what mr. auto proposes to do because there is no real access around the corner, part of this triangle has no sidewalk. there is a lot of new families in the neighborhood, crossing the street has become a problem. mr. auto volunteered to build a beautiful cement covered curb stairway from one street to the next so that the people would not have to cross the street. everybody in the neighborhood loved the idea. but we didn't understand until about almost too late that mr. auto has also planned the two side entrances to his next home. and this is a home that is on mars street and i don't know

what the entrances are there. and this is a home that fronts on corbit street and i don't know what the entrances are there and there is a planned and approved entrance from the park let down to the corbin street where the door just enters on to the walk of the park let. >> and it is objectionable from the drawings is a stairway that starts down from mars street about 15 feet down and it has a house on the left as you head down and on the right-hand side is a fence and at the end of this stairway is a fence. and the only way that you could get out of that stairway is by entering mr. auto's house. and mr. auto has built the largest house on the smallest lot on mars street, i think that he has opportunities for entrance that he has now the opportunities for entrances in three places. one, at the bottom of the o, on

mars and now he wants to build an entrance off the mars street and that only can end at his house. and if that is public access, i am very confused. i want to park station and i talked to the law enforcement folks and i said this thing is going to be a landing 15 street below street level and cannot be seen from mars or core bit and they said that we don't like that idea very much, it presents a public safety issue, elsner is great, tom and i went to see him and i have gone to see him. he has explained things carefully it me and he has been immensely patient with me and corresponded with me by e-mail over and over and over and over again. he is a city employee of whom we are all proud of really. but here he raises an issue that i didn't know about it and nor did any of the other neighbors know about. this was going to be not a public access property. this is a private piece of

property and i think what i get from his brief, although i have not done the research is because it is private, mr. auto is going to be required to pay $3 a square foot to the city every year, and the bottom line folks is that the police department says that this is a danger, mr. aelsner says if someone gets killed we will fix it. and in his brief he said, if we have a problem, with this stairway, and no one can be seen we will put in more lighting. the bottom line is that folks nobody in the city will be able to take care of this property once it is built and we have the same problem across the street and why build it so it is a danger and why even put the stairway in. and mr. auto has the opportunities for stairways on two sides of his house and did not object to another entrance on to this park let but we don't think that there is any statutory basis and the hearing

decision does not, if you take a look at the hearing order and you take a look at the findings, 1, 2, 3, on page 2 of the documents and he does not address the problem. the problem is that this stairway is unique, in the sense that it gives him mr. auto private control over that portion of city property. the hearing officer specified no gates and no fences and

prohibition. the bottom line is that you are giving the guide a stairway that is now city property. and he could have built an entrance to that big stairway, but that did not or was not enclosed on three sides. and he chose not to do that. he chose instead. to do something which converts our public property to his private use and there was no necessity shown, mr. auto says that i need to do this so i can go to my house and look at people. he just said that is what i heard. if a person cannot reach his garage and cannot reach the front door and cannot get to some part of his house, and then in city should let him cross the city property and

perhaps fence it or put in a walk. and they have chosen not to put the stairway where all of the others and the steps and all of the stairs and all of the stairs in our neighborhood from the top of the street to the bottom of the street along the house. >> okay. first of all, i bought this property in 2007. this project has been going on

for 6 years now and from the very first plan presented in that little house, in which he attended the side entrances were on the plan. all that he had to do was look at them he is the one that did not come to the meetings and did not operate. that is not my fault. we made out reach and every possible way that we could. and the second thing is that the stairway is part of a total solution that i thought generously would make sense for the whole community. because it is a very steep slope that it is true in the sense that there is no access to that piece of land because it is 30 percent still. for them for different stairways of which this final one is the only one that could properly go down from top to bottom at an angle that would not be too steep. this is one that is there that

was there when i brought the house and allows me access to the side door and a minor encroachment basis but it has nothing to do with the stairway for public use that goes down the center of the property. at angle that cannot be addressed from the side of the house because of this steep grade. the two-side entrances were always there. now one entrance and the second entrance is for the lower unit and the lower apartment, because the zoning is two units and that is what this will be in the single family home. finally. i just want to say that i should have the same right to walk out on that property as ever neighbor in the neighborhood has. if you walk down the old stairs or side stairs and all of that land adjacent to those stairs belongs to the city and you will see a gate with the wood and you will see a gate and they are always see through and open. they cannot put a barrier