that determination; right? >> yes. >> one would hope. >> so commissioner president lazarus are you president the parties to come to speak to the board on the question of the internal zoning applies and i feel a that's part of the matter roadway. >> not for me. >> no? i think we should hear them out in response to what we have requested from last time and precede rather than looking at to the it as a new issue i it would be helpful to find out whether it's formula retail >> we'll start with the permit holder for the first response. >> he requested a second swearing in he was not here at

the beginning. >> okay anything else? okay >> raise your right hand testimony you're about to give will be the whole truth and nothing but the truth? >> i do. >> thank you. >> thank you. >> not filament this is the 7 minutes. >> okay. thank you very much commissioner president lazarus and commissioners ryan patterson for the permit holder is health care foundation. i'll start by just briefly touching on the issue of the interim controls and ems for the permit holder organization to speak to the actual criteria for formula retail to show why it has innovates and is not formula retail which is what the board requested last time. i'll speak again briefly to the

issues that zoning administrator just raised. as of a they recalled matter it should be clearly made to the board the question before you tonight is a straightforward one whether the error and discretionary were issued when it was released as the suspension request. this is not a more act burgers question whether the permit should be issued under the rules of the board and the city charter it is an abuse of the discretionary review and i'll get back to that as a backdrop there are thousand plus hiv and aids patient that will be impacted. so this permit was issued on january 14th and the suspension

was on the 23rd there was no finding of the formula retail use. and if you see the highlighted portion of the suspension request it specifically says there's no formula retail and asked for additnal time for the open question of formula retail >> is there anyway to make that bigger please. >> this notice of decision i know you're asking for regarding the minutes from that meeting explicitly states the board is up holding the suspension requests as a related to formula retail that suspension request had no impact so they upheld the

suspension to clarify that issue. when the zoning administrator issued his zoning request it had no determination of formula retail use and in fact, it explicitly shows that is an open question and the board found in formula retail request if you review the boards decision and the boards minutes and tape you'll see that's not the case. so at this point the alternative points i'll speak to the formula retail >> hi dale with the bay area retail function whether we quality for formula retail under the name castro pharmacy will equal one, if the permit were e

restated typically the formula retail issue becomes mute but i'd like to address the array of merchandising is not standards listed we buy from a variety of manufacturers and your during drugs are different labels donate to the standardized. the facade of our building is different. this is the proposed site an orange color this is our pharmacy about 5 hundred feet away it's brown and this is the color of our current pharmacy a pail yellow. in terms of impervious this is our pharmacy on 18 street different than the 1 on church street 3 will be long and narrow building you'll have a couple of

buildings mostly walls and the color schemes are different we don't require the uniform of apparel this is our church street pafrm lastly wears a tie and the tech wear what we want. we supply company themed shirts for people during holiday parties. standardized signage again, all our castro signage is different because it's a new business. at the top where we at there you go. this is the logo this is the proposed awning on the outside and the black awning and the interior alcohol esteeming scheme match the logos we have no service mark this is unique

once the business is registered so we don't feel it meets formula retail that was intentional we were working to not meet the formula retail so we could get our facility opened. thank you >> thank you. >> so on the issue of those interim controls and whether there's a finding the zoning administrator suggested he made a determination they previous hearing but first of all, he did not opine on what he thought important importantly there sthfs under appeal you had the jurisdiction the planning, zoning administrator didn't have the jurisdiction to make the finding so as a formal matter it was impossible and as a practical matter it never happened.

this issue of the interim control there are did you processes and federal lawsuit pending to seek to invalid those controls and at the case of this board normally allows on this treld case explicitly states that this type of cases our looking to the zoning administrator to make the decision >> thank you very much. do we have rebuttal time >> yes. thank you. if you'll go back to that. that particular decision is brought forth a lot here with respect to what this board can and can't do during the course of the elective changes over and over control changes. your point there was that didn't

necessary apply that is different than what we've heard historically and in most cases commissioners you apply a standard of review to quote this case the question is whether the permit should be dpraptd that's the standard. in a case you're hearing an appeal from the zoning administrator decision the question is quote whether the suspended order of the permit had been laugh it's an error of discretion standard if the question is whether the person erred you're only allowed to look at the law at the time did he error when we made the

decision it's not a standard of review and the board zoning rules posted on your website that stated on page 5 so as a result there is simply no finding of the formula retail therefore the interim controls don't apply even if they didn't violate the permit holders rights and protection of law as an ethnic matter we're talking about more than one thousand hiv patients and - >> that's not the question. >> commissioners, i thought perhaps tide before we continue i'd like to ask the city attorney to weigh in on this. >> on that issue deputy city

attorney robert i'll ago that in a error abuse of discretion case you would apply the law at the time the administrator maids the decision i also say it's clear to the board if the zoning interim sgoen control resolution applies to this project because the zoning administrator or the planning department decided that the project was formula retail use eaten there are subsequent elimination of the formula retail use features and whatever decision you make on that issue before you now is going to be eir relevant because the city is required to follow the law in effect at the time and to whatever decision you make on the issue before you now that's

been spoken to will not have any effect regardless of the item. >> okay. thank you. so i think we're ready for the appellants to speak? yes? >> by the way, this might be the time to talk to the issue i think that's fair and good evening. i'm andrea the executive director for the castro upper market benefit district. we don't have any attorneys or access to attorneys we're not going to speak about the internal control swab elbow i do want to remind the commissioners

that i don't have the date for the letter from the department of department of building inspection but there was a letter from the department of building inspection that did state and kind of was reharshly the whole dates and the entire case and stated in the letter that did planning department determined this was formula retail and that the march 19 board of appeals that determination was upheld and in that letter i'm sure scott the zoning administrator has it. but i want to also speak to the fact that the reason why you say the zoning administrator changed his mind was because the project sponsor changed the plan and they changed the name of the pharmacy so that it would not as the attorney said they wouldn't be formula retail.

yet all the marketing going out about this currently nothing is mentioned about the castro pharmacy is all aids health care foundation, in fact, on their website roadway i don't know if you can see that i guess you can't >> we can blow it up. >> lilly have it here. it their website talks about, you know, helping them out, etc., etc. and then it says the aids health care foundation new castro pharmacy and incline and asked people it write letters for the pharmacy on castro street they don't call it the pharmacy but the new pharmacy on castro student we're appealing because we want a voice they

should go through the conditional use system and they have not taken a position go we say because the voters haven't had a say they said that we want to have a say on formula retail and the community is saying we want to have a voice and we want to have a voice in the look and feel of our neighborhood commercial district as the zoning administrator said this case is unique because in a very, very beginning there was an error in issuing the permit over the counter. if that error never happened this project would have gone to the planning commission. and it never would have seen the

board of appeals it would have gone straight to the planning commission because there's or there were conditional use questions and conditional use about the formula retail the planner at the counter made a mistake that's when they pulled that the permit and on suspension i think a mistake was made if that mistake was never made it would have gone to the planning commission may none of this wouldn't be here we wouldn't be here tonight when it goes to the planning commission there's a broader process and another process around public hearings and all the neighborhood organizations are notified there's a public notice so when commissioner fung asked

how come there was no one here from the aids community and asking that issue no one know about that there wasn't that broad notification and if it had gone to the planning commission if that first mistake wasn't made this is why it's a unique case because of the initial error in issuing that permit over the counter they realized there was a mistake and the permit was suspected and the permit sponsor appealed that. that's our understanding and i just want to let you understand we're here because we want a voice it's not because we don't like the neighborhood aids

folks. >> commissioners should we move into public comment i don't know if you want to give any more times to mr. sanchez do you want him to speak for broadly or take public comment. >> i'd like to have him address one issue. >> thank you scott sanchez i promise to be brief. but i think it's clear from the record and the recommendations made by the permit holder at the time the permit was issued in error this was, in fact, a formula retail and after the hearing that we had here on the suspension we argued that again, it was formula retail use they

did make changes to no longer be a formula retail it was changed in pharmacy to castro pharmacy that's not a formula retail i agree the changes they removed the formula retail defining features and we realized the suspension at the last hearing on this matter i pointed out that's the building application holder it's not a formula retail use. as noted by the council this matter is suspended so it's really before the board to consider is that a formula retail that's why what you asked him to give more information to prove there were not a formula retail since that time the information has become available submitted with the appellants

brief they showed a sign on the building advertised as health care aids foundation we're happy to share with our neighborhoods an aids health foundation 135ir78 that's how their advertising it you can consider that as a non-formula retail castro pharmacy or the something that's not a formula retail use or an aids foundation that's important. further the fact they were a formula retail use at the time the permit was issued itself grounds for revocation on the code to determine to have been at the time of application for a formula retail use that didn't identify the use as a formula retail use is it speak subject to revocation at any time

further adding to that discussion. i said earlier this is a unique matter and look forward to what the board has to rule. thank you >> mr. sanchez i wasn't here in june so a question which is relevant. is that really as easy as a name change to get out under underneath why wouldn't any potential kind of boarder line applicant do that with conditional use and everything else >> that's an excellent question it can be that simple surrendering that was that simple. over the past year we've been studying our formula retail controls and seeing how we can improve the controls looked at by supervisor wiener and this is something that he thought was a

loophole in the process to deadly weapon with those situations. we've seen it in other cases where something that was identified as a formula retail use made changes so they didn't make the thresholds >> made a name change. >> in some chaingz cases it is more it depends on the functions but in some cases change a color scheme and it depends on or in this case a name change. >> isn't it required to reincorporate under another 501-c is a separate entity. >> no, because we're not looking at the same structures and one of the issues with the formula retail use it came about the feeling of sameness so that's why it speaks to the color and signage and the names that's why those are the

criteria we have so in this case they can change the signage and the colors and the name and no longer be formula retail. >> i'm not sorry could you refresher me about the basis on which you determined it was formula retail. >> they had more than 11 establishments in the u.s. and maintain the service mark and have a standard signage with the logo ross the finding it's two or more so the service mark and the signage additional i referenced at the previous hearing it's possible the maintenance and stock and trade my trigger it but we didn't go further but my understanding they do get they might have different labels on the medicines but again, we didn't get p to that level. >> mr. sanchez i'm curious

about the following. in terms of you're thinking when you made the determination that the name change made it non-formula retail and therefore you realized the permit because when you brought up the paper which was an announcement type of thing one would expect even though there's a name change the checking account is the same and corporation is the same those things would have stayed the same regardless of the name change that is at the physical facility >> they represented they'll operate as the castro pharmacy. >> not separate this is. >> yes castro pharmacy we

didn't see castro represented by the h s fireman or pharmacy they were going to operate under the castro pharmacy no representation made they'd operate under an umbrella or h f and identify with them and in the previous hearing there was concerns it's born out through the process if we go out and find they're having the color schemes we'll find those things down the road but they submitted an affidavit they'll operated at castro pharmacy that's the basis for my decision. >> okay emergency room think about that. >> thank you. >> okay. so we can take public comment can i see a show of hands how many people want to

speak open this item? okay step forward i public comments are never allowed to close when people like you come up >> thank you for your consideration i represent san francisco aids foundation the cities largest provider of hiv services this year we'll deliver for hiv tests than any other nonprofit in the city. we have one hundred percent of our services are free we're from the process of moving 3 of our programs from castro into one and despite the level of support we seek a discretionary use authorization not because it was required but the right thing to do and in our case we have no pharmacy and no other project has been attempted and we have

learned by watching the h f we could have sliced and decided our project and get for things around the intents of the organization we serving the public and yes, sir. it took longer and costs more but in the end the feedback we've received resulted in a project that is more desirable to the neighborhood. as part of the formula retail the commission will listen to the public and decide whether the aids health care foundation is a necessary or desirable project for the castro despite renaming the castro the aids organization is a function s

that had several millions in revenue. should it be allowed to expand? castro that's a question that the people that live in the neighborhood should have a say i urge you to let the neighborhood to weigh in on this thank you very much for your consideration >> do you state your name for the record. >> james land use car. >> thank you. >> thank you. next speaker, please. >> hello, i'm aaron baldwin i'm coming here on behalf of the positive hiv community. that was noted beforehand the organization is not here is a formula retail it buys it's drugs in my places. i have a press release from the aids health care pharmacies in

conjunction with our madam clerk stated the nation's health care pharmacy purposing channel organization was pleased to announce, you know, their coordination together and they would be their primary purchasing power when i look at formula retail it is not the look and feel of the formula retail foundation it's the purchasing power at the beginning of this month they've opened their 35th clinic i in cleveland they've become a sponsor of cleveland pride and of the gay games an international event that happens in the situations like the olympics.

this is not what you expect from a look and feel it's not just the clinic it's the purchasing power and it's the look and feel. the commissioner asked at the lend of the last meeting you made a comment you said if you're an organizations that intends to serve the public what's the aversion to speaking with the public. since that time that's fallen only deaf areas that's advise being given in multiple times and locations we're the members of the clinic the issues of aids and hiv is important thirty to this neighborhood than other location in the united states we're asking to have a say in whose going coming into the neighborhood to provide those services.