>> good evening, welcome to the july 16, 2014 meeting of the san francisco board of appeals, the presiding officer this evening is board president ann

lazarus and she joined by hurtado, frank fun and brian will provide us with legal advice and joined with the city departments who have cases before the board, scott sanchez is here and the city administrator. and joseph is here representing the department of building inspection, and short is here for the public use of street use and mapping and young from the envier menal section of the department of public help, if you would please go over the board meeting guidelines and conduct the swearing in process. the board requests that you turn off all phones and pagers so that they will not disturb the proceedings. appellants and permit holders and department representatives each have 7 minutes to present

their cases and three minutes for rebuttals. the people affiliated with these parties must include their xhepts within the 7 or 3-minute periods, members of the public who are not affiliated with the parties have up to three minutes to address the board but no rebuttal and 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 require to submit a speaker card. and the board also welcomes your comments and suggestions and there are customer satisfaction survey forms on the left side of the podium. and if you have questions about requesting a rehearing, board rules or hearing schedules, speak to the board staff after the break or after the meeting or call the office tomorrow morning, the board office is located at 1650 mission street.

this is broadcast live and dvds are available for purpose directly from sfgov, tv and thank you for your attention. we will conduct the swearing in process. if you intent to testify at any of tonight's hearings and wish to have the board give your testimony evidentiary weight, please stand raise your right and. any member of the public may speak without taking this oath pursuant to the rights under the sunshine ordinance in the administrative code, thank you. >> anyone else?

item number 1 0. and this is dealing with a permit for the hillside drainage and the parties have requested that the matter be reschedule to november 15, 2014 to allow time for dbi committee to review the proposed work plan we need a motion. >> so moved. thank you, any public comment, seeing none, if you could call the roll, please? >> commissioner honda? >> president lazarus? sorry about that. >> we have a motion then from the president to reschedule item ten, 13.142 to november fifth. >> fifth. yes. the fifth.

and the vote is 5 to 0 and this matter it recelled to november 5th. >> thank you, item number one is general public comment. adoption of minutes for july 22, 2014. >> so moved. >> is there any public comment. push on the mission to adopt the minutes, fung. aye. >> hwang. >> aye. >> hurtado. >> aye. >> lazarus 6789

>> aye. >> 5 to 0, those minutes are adopted. subject property at 399 fremont street. letter from thomas tunny, attorney for 399 fremont llc, requestor, asking that the board take jurisdiction over the issuance of a project development fee report regarding bpa no. 2006/05/16/1774 by the department of building inspection. the appeal period began on june 13, 2013 and ended on june 28, 2013; and this jurisdiction request was filed at the board office on june 18,

2014. project: erect a 42-story building with 452 dwelling units and three basement levels. >> okay. and so we can start with the requestor, and the requestor's agent, or attorney? >> you have three minutes. >> good evening, president lazarus, and members of the board. my name is tom tunny council for 399 freemont, llc. and requesting that this board take jurisdiction over a development impact fee dispute. i think that we can all agree that this matter presents a very confusing set of facts and procedures. but, i would submit that it is that confusion that justifies the board taking jurisdiction. and i know that we are short on time and in a nutshell here is the dispute. and the city's position is that the project sponsor was required to file an appeal of its development impact fees, within 15 days of the issuance of the site permit, which

happened in june 2013. at a minimum, the city argues that the appeal had to be filed within 15 days of the issuance of this site permit, first addendum to the site permit in february of 2014. and the city's position, overlooks a preliminary procedure, to filing the appeal with the board. when a dispute arises over development impact fees, the project sponsor is required to seek to resolve the dispute with the fee collection unit. and in this case, no dispute existed until may, 2014. when that dispute became apparent, we filed a letter, with the fee collection unit as required, may 9, 2014. the fee collection unit denied our argument and we requested reconsideration, which was again, denied and then the next day, sought to file our appeal with the board of appeals.

now i understand that the board's ability to grant jurisdiction is very narrow under these circumstances but these are the type of circumstances that the procedure was designed to address. it was through no fault of the project sponsor that this appeal was filed late if it was late at all. our position is that it was filed timely. and for that reason, we request that the board take the jurisdiction over the dispute. thank you, for your attention to this matter. >> appreciate your time. >> anyone that mr. sanchez is representing the department on this? >> okay, mr. sanchez.

and just a couple of points on this, and i think that the appellant and the jurisdiction requestor did not state what it was but my understanding is that it is the calculation that we used indexing and so under the planning code 409, and also the building code, the fees which are assessed for these projects are indexed annually beginning on january first. and so, under the planning code we do, or under the building code we provide notice of that and in this case, the project was received, three, fee reports. and the first on april 19 of 2013. and the second on june 14, 2013, and parks and the site permit was issued and then one again earlier this year in january, when the project part of the first addendum which is when the fees are collected, the january 2014, and included the increased fees, and it was after january first of 2014, and the dispute between the departments and the project

sponsor is that they don't believe that they should pay the indexed fees, and they believe that they should pay the fees that were in place in 2013. and however, the department's possible that because of the indexing requirement and because the fee was not due until 2014, that that is the appropriate time to pay the fee. and the note about indexing is listed very clearly on all three of the fee reports that were submitted to the project sponsor, and i don't think that there is any dispute about informing them of the requirement and the requirement for an appeal to be filed within 15 days of the site permit is in the building code in section 107 a,.13.9.1 and establishes the procedures for the resolution of the issues with the fee collection unit and they did not file within 15 days, and nor did they even file within 15 days of receiving the january, fee report with the updated information and they have since, informed us, the city that they dispute this, and they have also led a lawsuit against the city on this matter.

but we would submit to the board if there has been or if this is a jurisdiction request that there has been no error on the part of the city and that deprived the project sponsor of any of their appeal rights and they clearly stated in the planning code that it states the issue about indexing and we don't see that there are any issues that justify the granting of the jurisdiction request and i am available for any questions that you may have. >> mr. sanchez, the city does not dispute that there is a dispute. well, they have said, and they, yes, they happen to have a dispute and they filed a lawsuit and i think that the fact that they see the city indicates that they have a dispute with us. >> okay, because there is documentation to us. and it does not show anything, and they redacted any type of numbers and that one could compared to see if there was an actual dispute.

>> well, they reapplied the planning and the building code appropriately, and we have assessed those fees, and they disagree with that amount. >> what is the differs between the 2013 fee for the 2014 fee. i don't have the exact number and the project sponsor, can better answer that. >> okay. >> and being that it is in the fee reports that were submitted as part of the brief and they are listed on in there if there is a difference between the 2013 and 2014 and but i want to compare the numbers exactly. >> you have to be very careful not to put in any of the areas in, and redacted it from the actual forms. >> is there any public comment on this item? >> okay, seeing none, then commissioners i don't know if you have any other questions. >> i do have a question of the requestor, counsel? >> so, your position that the

dispute did not arise until you created it in march of 2014? >> may of 2014, and in march, we wrote to the city and we paid the fees. and we wrote to the city saying, rising the question, we believe that the wrong fees were applied. and we did not get a response from the city, until early may, 2014. and in my view, then, receiving that response from the city, a dispute existed. >> okay. >> and before then, there was no dispute. >> we thought that we, we thought that we were paying, we thought that we were to be paying the 2013 fee amounts. >> isn't what the filed in march of 26, on march 26 of 2014 a notice of protest? >> yes. >> and is that... >> that is... >> does that suggest that you are creating a dispute. >> under the mitigation fee act

and it is a required procedure. that you, and it is called a notice of protest. >> okay. >> which indicates that you dispute. >> in our calculations the city could have conceivablely said we agree. in ebut the note that you were protesting just using the language of the form, was what was originally issued as the fee. >> yes. but... >> and you are disputing it. >> there could have been mistaken or a misunderstanding. >> but you are disputing what was issued, correct? >> yes. >> and i think commissioner fung you had questions? >> i did and something more along the lines of the questioning. the code talks about the resolution of dispute or question but it does not require the generation of dispute. it is the question about the fee that is about to be exacted.

>> it is that, the requested. >> it is a question about the fee. >> or a dispute. >> yes. >> okay. >> by the way. >> okay. >> and so, are you done? >> can you answer my question? what is the difference between the 2013 fee verses the 2014? >> the total fees are over 30 million dollars and it is approximate and over a million dollars. >> the difference? >> the difference, okay. >> thank you. >> they have indicated that they don't think that we have

any jurisdiction over this particular case. it is not fully clear to me exactly what, and i will leave that alone in terms of whether we have jurisdiction or not. the question before us is whether the city errored when i look at the time lines, it appears that they have prepared the initial letter of protest, that they were aware of the situation. and therefore, i don't think that they satisfied the requirements for us to take jurisdiction. >> yeah. >> i would agree, that i am not persuaded by the requestor. >> i agree and i don't have anything else to add. >> motion? >> move to deny jurisdiction on the basis that the department did not err,.

>> on that motion to deny this jurisdiction request? >> commissioner hwang. fe. aye. >> hurtado. >> aye. >> lazarus. >> aye. >> honda. >> aye. >> and the vote is five to 0 and it is appealed and no appeal shalling filed. thank you. >> item five is appeal number 1 4-100. alex kim doing business as its market, verses the department of public health. and the department of 1561 fillmore street and an appeal of the suspension on the may 19, 2014 of a tobacco sales establishment permit permit and selling tobacco to minors and we will start with the appellant or his attorney, and you have seven minutes, thank you. >> i am robert comings and i

represent alex kim and this is the sole port support of his business and he has paid all of his taxes to the board of equalization and the board and the irs and his permitting and licensing up to date. and as you will see in the brief, he has posted signage, warning that under aged sales to minors will not be acceptable on his premises and there is signage posted outside, as well as when you first walk in and all over the counter where the cash register sits and there is reverse

signage that tells the cashier exactly what to look for in the identification and how to check the ids. and he daily on a daily basis, speaks to his employees about receiving identification from each of the customers that look to be under 30 years of age. he has trained them to do this as well and received a score of 98 percent and run a clean operation and his daily business is accountable for his employee's wages and his tax and his rent and his mortgage and he is here seeking lean antsy, the 25 day suspension will be catastrophic to his business, the cigarette business for well over 40 percent of his business, and if not, all of it.

the 25 days that this will put him out of day will be severe to his employees, his family, and his ability to maintain his business. he had an employee working one night, he was suffering from a cold and flu symptoms and a friend brought some home remedy and was behind the cashier's thing, and he had lost, and had become distracted in a decoy came in 17-year-old, and there was a sale of cigarettes to the under aged minor, that did not include receiving identification. he has rep manneded that employee. and that employee has been prosecuted and received a version through the community court and wrote a letter of apology in recognition of what he has done wrong.

and mr. kim is laboring to make sure that no under aged sales of tobacco occur on his premises and he is here seeking lean antsy on the 25-day suspension, and seeking, you know, potentially enhanced fines or something in lieu of that but the 25 days will be catastrophic to his business and here to seek the lean antsy of the board. >> thank you. >> before you sit down, i am reviewing the tax returns submitted under one of the exhibit tabs. is there an did that line item amount that reflects the sales of tobacco products? >> which exhibit are you referring to? >> i think that it is 4. exhibit 4. >> exhibit 4? >> i don't think that it does. but i am just wondering. >> the total gross sales?

>> yeah. >> is there any subtotal anywhere that it would reflect that the tobacco... >> how much is actually cigarettes because you represented 40 percent. >> he is referring to exhibit 1. >> okay. >> number of cigarette packs sold during the period covered and that looks to be a quarterly report. it looks like 8703 cart tons of cigarettes that are sold. packs. >> packs. >> yeah. >> not car tons. >> yeah. >> and 8,000? >> i believe that is packs, right? >> what exhibit are you on? >> one. >> okay. >> and if you look at exhibit 1 at the top on-line one it says number of cigarette and packs sold during the period covered and that is for the three

months ended or the first quarter. >> 1740 dollars? >> that is the fee. >> oh, sorry. >> that is the abatement fee that is due. >> is 20 cents on each of those. >> thanks for clarifying. i am just trying to understand if there is any document reflecting the gross sales of tobacco products in any of your exhibits? >> thank you. >> if you are talking to me, rather than your attorney. >> you do not specify. >> okay. >> how do we know that it is 40 percent? >> speaking with him and his business. >> how much of your business? >> 35 to 40 percent of his business. >> yeah i know the percentage that you are saying. but where is that coming from? that number? is there... how did you calculate that >> it is coming from mr. kim and his records. >> and does it say on a monthly basis what his gross and what

percentage are the cigarette? s do you know that number? >> offhand. >> one-third. >> and how much will that account for? >> but we, i don't have those numbers, broken down, at this point. >> yeah, maybe you can get them on rebuttal. >> certainly. >> i will speak with my client. >> any other questions? >> no, thanks. >> president is members of the board my name is alex kim and i am the owner of the store. my employees make a mistake this year that was my responsibility.

and that is one mistake all, 4015 days and eleven years. and i am not... the law, i obey the law, i am sure that you are investigate in my personal account, and i never even have it and i never even have the (inaudible) and any kind of a violation, like personal background and i respect the law and i obey the law. i have made mistake, and my responsible, over 11 years. first mistake. thank you. >> okay. we can hear from dph now. miss young? >> good evening, president lazarus and fellow commissioners, i am the senior health inspector of the department of health and environmental health and i have worked with the department for

over 20 years. and the department of health requests that we up hold the 25 days suspension of this market on 1561 fillmore street for these reasons, according to the summary report that we received from the police department, on march 27, the police department officers with the 17-year-old minor actually visited 7 businesses within three miles of its market. and on march 27, the minor was able to purchase a pack of cigarettes only from one store, and that is its market. and at its market, the employee not only violated the california penal code of section 308 but also the permit requirement by selling that pack of cigarettes to the 17-year-old minor. and according to the police department, the store employee failed to even ask for

identification. he did not ask their age, he did not ask for identification. so, when the officers confronted the employee after the sale, the employee said that he was distracted. says that you know the department of public health has a strong enforcement policy when it comes to sales of minor cases because the law has made it illegal for retailers to sell tobacco containing products to persons under the age of 18 years of age and that was enacted in 1891 refining that the youth surveys are reporting that youth who are seeking to purchase, tobacco products know exactly where to go. and thener then in fact, in 2010, the healthy kid survey that pulled san francisco unified students and that reported that 51 percent of 9th graders and 58 percent of 8th graders say that it