the project sponsors and the architects for determining the building process as of right whether it's subject to the conditional use project. jack spade currently has 10 domestic stores and has no leases or present intentions to lease any locations other than 3166, 16th street san francisco. the written affidavit from real estate construction arrived today. mr. sanchez received a copy of it. if it pleases president hwang i have level copies for you commissioners. >> tell me what it is again? >> it's the affidavit that states i phillip being sworn stated under penalty to perjury as follows. i over see the real estate for all jack's stores.

it's part of my responsibility and writing of all stores. at this time there is 10 jack spade retail stores. at this time we have neither written nor signed any loi's. we have no -- apparent signed leases. at the completion of the store in san francisco, we'll be operating a total of 11 jack spade stores in the united states. sworn before in connecticut this morning we have the documents from the zoning administrator. >> did it say sworn under penalty of perjury? >> yes. >> i don't need it. you read

it. >> so, all the arguments about the similar features that's out the window. you need 11 existing stores plus two features. that's the law. it's not two features, three features, four features, it's 11, plus two. so we heard from the pell appellant, it's the kate spade stores. the kate spade new york stores should be added to the stores. kate spade new york has this sort of an appearance as you will see from the overhead. as you probably know there is a kate spade store in the west field center. there is a kate spade store on grand avenue close to main and the appellant would have you

believe that a spade is a spade. the kate spade new york would move into 3166, 16th street. this is quite a stretch. 703.3, we talked about the letter of the law and we know the appellant has already told you we are within the letter of the law. the spirit of the law and i was involved in the formula retail discussion 10 years ago with the president working with supervisor tom, was to keep the neighborhood unique and that was based on visual factors. on all the visual factors, standardized array of merchandise where women's wear could be men's wear. that one is a stretch. standardized facade, total stretch, standardized decor which you are not going to find in these

stores. this is what the build out will look like when it's completed. the merchandise in there is not remotely in resemblance unless you see it that way to kate spade. that's what the interior looks like. if you have been inside a kate spade store, it looks nothing like that. in terms of signage, trademark, jack and kate it's jack spade. so there is no common visual features between kate spade new york and jack and kate spade. they are trying to lump the two of them together and this holds absolutely no water whatsoever. the appellant realizes that.

it's preposterous to argue that it's the same here. they were telling you last week that they share the same accounting systems and the common headquarters and we should take that into consideration, but in the spirit of 70.3. you don't see their accounting system, logistic systems. you see their storefront and you see the merchandise and employees and their attire and you see the trade marks. you do not see all of these back office type things. for the letter and spirit of 703.3. a spade is not a spade. the board of appeals is therefore respectfully requested to deny this appeal and reinstitute this building permit. i get telephone calls from the contractor, when can i retire the workers working on the site when they were pulled off of this suspension. you

will happy new year from -- hear from the store manager and would appreciate the opportunity to get back to work. i would like to now in the remaining time pass this over to the vice-president from jack spade, melissa who has come out here from new york to speak to you. >> can i interrupt you because before she goes on i have a question on the spirit of the law. i think you stated something about having worked on, if you can go back, i don't think i heard about tom, tell me about that. >> from time to time we receive calls from supervisor am yann oh from 2004 when i was a president of the association. tom tells me there was a consideration on putting a ban

on chain stores in the mission district and what was i thinking on that. we said let's do a theoretical. let's say there is somebody selling yack milk in among -- mongolia and they want to do that, we can't even discuss it. then we took it from there and said, okay is there some kind of magic number, is there some sort of magic geography and then the board of supervisors and the rest of the community had years and years of discussion before prop g came out and what came out of the whole thing, 703.3. the no. 11, the united states was given the geography and these visual features came out. >> did you participate in any part of the legislation other

than the conversation with then supervisor? >> we had them come to our meetings and discuss with our membership these ideas, yes. >> okay. thank you. with that i will hand this over to melissa. >> good evening, everyone. thanks for hearing us tonight. my name is melissa and coleader of jack spade. we followed all necessary paperwork to affirm we are not a formal retail store. we did everything to ensure we did everything correctly. jack told us to seek from the zoning administrator and we learned we are not a formula retail. we were as of right. we've been transparent all along. those that are familiar with our plan know that we are completely different, that kate spade

completely different from kate spade and store design our real estate selection criteria and all visual features apparent to our customers. it's these customer things that are relevant from 70.3. we never intended to misrepresent ourselves and helping restore the street and the beautiful facade of the mission. we choes this particular section of 16th street because we fit well with neighbors, and so many other great businesses that already exist on this street who you will hear from later. we are a neighborhood retailer through and through. no two other stores alike and our customers love us. there is nothing different about the product. we fell in love with the

uniqueness. the fact is we get more of a quest from our san francisco customer than in i where else in the world asking us to open a store. in regards to our growth, we see a bright future for ourselves, but our growth comes in four ways. lastly and i can reconfirm to the written affidavit we submitted to you, we have no other stores planned. we ask that you allows us to rumor construction. we would like to hire our local construction workers and ask our manager to begin her new job in the store. thanks for your time today. >> question. could you elaborate a little bit on how you came to acquire this

particular building. on how you particularly picked this neighborhood and how you acquired the lease -- on this building. >> i have lived in san francisco for a time and was familiar with the areas and fell in love with the mission just based on where we have the stores like venice beach and california and just fell in love with this facade of the building, the kind of food that's going on there and the

gentrification going on. >> good evening, my name is marlene. i'm the store manager. i have a personal relationship with the mission. my first department in san francisco was three blocks from the store location. i love living there and while i now live elsewhere in the city i continue to shop at the restaurants and shop there. i also give my time in the community as a volunteer. for over two years i have been a mentor to a student on valencia. the area of the mission has gone through, valencia street looks and feels amazing. more people than ever seem toen jo i this section of the mission. 16 street tells another story and i'm happy to the contributing to the enhancement of the street. i

love this system of it's why i was hired. not to run a big box store of disgruntled employees, but a store that actively participates. going through this process has been extremely beneficial to me. it illustrates the commitment and passion that drives this neighborhood and the city and further motivates me to be a contributor and active partner. i'm invested to ensure that this r e -- remains a unique place to live and work. thank you. >> we yield our remaining two minutes. >> mr. sanchez? >> good evening, scott sanchez

planning department. the property at 16th street as noted at the hearing last week. the property is located within the valencia street district in the mission district and it's a tenant improvement at such property. it proposals to be retail. there is no other expansion or anything. it's just simply changing from one retail operator to another retail operator. the question before you raise the concern by the appellant whether or not this is a formula retail as defined in the planning code. for the sake of consistency, i will refer to section where it began. under planning section code 703, it says under the definition of the formula retail uses, a formula retail use is defined as a type of

retail facility or establishment which has 11 or more other retail establishments located in the united states. in addition to the 11 establishments the business maintains two or more of the following features. a standardized array of merchandise. a standardized facade, a standardized d.c. -- decor and color scheme and trademark. a standardized array of merchandise shall be defined of 50 percent or more of in stock merchandise baring uniform marking of a word trade symbol or design or combination of words or phrases that identifies or distinguishes the source from others. these are

the two that are relevant in this case. the appellant has a very compelling argument that is being made in terms of linking this as a formula retail use and i would acknowledge that this is a bit of a unique situation in terms of formula retail and we have seen them and categorized them in the past. i can't recall something this similar, but what is key here is that there is distinct trade marks in the two entities. kate spade is a different trademark than jack spade. i went to the u.s. patent and tradeoffs you can search trade marks and if you looked at spade, there are 229 separate trade marks under spade and various combinations of spaechld you can register

jack spade multiple times and look into areas and get watches and bags and clothing etc. under the 229 or so spade trade marks, about 70 or so are related to kate spade and various variations of kate spade including kate spade saturday and then there are about 25 or so for jack spade. there are more than a hundred spade trademarks that are unrelated. when reviewing this and when determining this and i did have a conversation with the appellant the other day and discussed the meaning of the planning code and we did go through some hypotheticals. i agree with all the representation made to the board and i did express very clearly that we are not dealing with hypotheticals in the case

and the facts that we have are that there are at this point 10 jack spade stores in the u.s.. there are kate spade stores, but with the jack and kate spade trademark there are 10. this would be their 11th establishment. subsequent to the establishment, if we would say that you have 11 or more other establishments, you are formula retail. but at this point, it's my opinion and reading the planning code and interpreting the planning code that they are not formula retail. i would note, there are other cases, but i failed to inform the board about other items that have been before us that i have made calls on. oscar was one that was before you. the board put forward the very well reason argument that

it should begin atd least the question of the birth of the retail establishment. we have applied that and as noted have submitted an affidavit, after the board issued their decision i september -- sent them your decision because i knew this was coming up. they have acrossed that hurdle that they did not have the threshold of number of stores. looking at this i believe they have not net threshold. other examples athletea is one that was a letter of determination that was issued for generally i don't think it was property specific. they were not formula retail at the time. athletea is one that is established in 1998. the gap bought them a couple years ago and formed them into new stores. now they are a formula retail but in san francisco they were not. a

store that is the most comparable here and has the most compelling argument, the appellant's argument is black flees which has been mentioned here before. blacks flees by brooks brothers and they have come in for a store. there was no letter of determination no written letter on this item but they did go through a conditional use process because their name was black flees by brooks brothers and they did have more stores, there are more than 11 brooks brothers stores and they fell the products within those stores. i don't think it is quite comparable to this case. i went and looked at their website side by side and compared the merchandise. i understand their argument about the array

argument, they are both selling the same array, they are not the same array with 50 percent of more of stock merchandise from a single distributing bearing the marking with jack spade and kate spade. if the jack spade sold more than 50 percent merchandise of kate spade, that would be different. if kate spade saturday i have seen that as a formula use, kate spade is the name. the argument is they both share the name spade, but in my opinion given the distinction between the stores and the misdemeanor offered while the primary distinction is gender based, there is a difference and that and the trademark find that this is not formula retail. so,

i'm available for any questions if the board has any. >> a question. is the threshold then the store count and if you don't cross that threshold, the rest is basically not applicable? >> that would be the first thing and it's a good question because there is a much put on the no. 11. this is not carbon stone anywhere. it's an arbitrary number. it's the array of merchandise, the form of apparel, the criteria, there are other municipalities across california and across the u.s. that have formally retail controls and they have general criteria, but the number can be different and fairfax and cal stoeg an is doing research and they don't have a threshold, a

number. >> but san francisco does and it's 11. once you determine there is not the existence of 11 stores, then you don't feel compelled to go and analyze the rest of it? >> in this case we did because we did receive the letter of determination. once they have more than 11 of these jack spade stores, then yes, they would be. now it is the determining factor at this point is the number. some municipalities include worldwide, we do not. at their proposal, 9 proposals to make various changes. this would be formula retail if it's globally. >> i understand that, currently the criteria. >> i don't think it's formula retail. >> i have a question, your

letter does not specify the features that they meet assuming we got beyond the threshold of 11 stores. which two features are you saying? >> they definitely have the standardized ray of merchandise and trademark. i don't believe they have uniform apparel. i don't think they wear the uniform. >> so apparel refers to what employees wear but not to what is sold? >> correct. signage, they would have signage because the jack spade sign is the same with the same markings and they would use those three color scheme. from what i have seen at some of the other stores, they seem

to be pretty unique like in a single family dwelling. at that point you have the standardized array of trademark. >> thank you. >> mr. greko. >> tony greko chief building inspector. the department of building doesn't have much to add. they went through normal reviews and they were issues. if you have questions related to them, i can answer. thank you. we are going to take public comment. can i see a show of hand how many people plan to speak. >> after public comment there is rebuttal.

>> i would like to ask you to do a couple of things. first if you want to speak would you be so kind to fill out a card. it's not required, but it's very helpful. i also ask if you are able to lineup on the far side of the room to move along as quickly as possible. you can start your line there by the podium. if you want to step forward and the first person can come up and speak. how many minutes? >> 2 minutes. late hour and the number of people who want to speak is the basis for the 2 minutes. >> please begin. >> okay. good evening commissioners, thank you for this opportunity. my name is gabriel medina and speaking on behalf of the m igs development agency which is a community based organization working to sustain local business and the mission district to empower residents and to empower businesses. i'm here to oppose

jack spade. jack spade i think was very clear in the presentation earlier violates not only the letter but the spirit of the formula retail ordinance and i would urge and i was very impressed with some of the gymnastics that we were being made that it didn't violate it. one of the things i felt inconsistent was that, well, it's okay if kate spade saturday and kate spade have different trademarks but we still rule in the same. if jack spade and kate spade have different trade marks, we are going to roll them different. that's very inconsistent. there is a huge epidemic going on in the mission distribution. this would accelerate that ten fold. they actually displayed adobe books long time of local business from the business. they had entrepreneurs from the

community and kept their money here. this store is a park avenue new york store with over a hundred location worldwide. i'm a san francisco native. my grandfather sold newspapers at 16th and mission. it's very clear. this is not a san francisco mission. this hurts us at mission and local businesses because it will raise rents and it hurts the spirit of local community businesses. if you want to buy a pair of jeans there is over $300. latinos are not going to be able to shop there. please vote against jack spade. >> good evening, i'm paul stole. owner of the piercing

studio. my business is 24 years old and located here for the past 19 years. i'm thrilled with the prospect of jack spade coming to my neighborhood. i'm shocking my neighbors but it's true. i don't feel it's a formula retail. the opposition from the jack spade campaign submitted to you a list of sponsors in support of their cause. i'm on it. i never supported it. i don't know how i got on it. please make that correction. now as a small business owner i feel the rise in rent in property value. my landlord allows me a raise in rent every 3 years. if anything, i see very clearly that the presence of a more substantial business and will drastically help my neighborhood. many of this comes from valencia street. the

sidewalks literally sparkle and clearly benefit from all the highly polished businesses called the valencia corridor. we call ourselves 16th street b. i have been waiting for the green machine company come back and repair our broken sidewalks. we have graffiti, garbage dumps. it's a home to many boutiques and i feel jack spade will fit pretty well. if we had like walmart moving in, it would kill all businesses. i went to see their store in new york and was completely charmed. made in the u.s.. this is exactly the