it's whether the sale by the owner or the owners agencies or employees that's the violation and there's no allowance or mitigating circumstances i appreciate that civil service corporate office probably has plenty of resources to make sure that it's franchise has the signage, has the equipment, has everything else i'm sure the owners in the establishment has in fact stood before you and had training i've done everything i can but unfortunately, a strict liability where the permit holder is the one ultimately accountable regardless of whether the conduct of the sale was ethnic or intentional.

>> thank you would you remind us of the maximum allowance of the superstition and 90 days. >> i have a question too so if there's no prosecution why is it taken issued why is the citation issued. >> that's a good question for the district attorney's office and the police department so they cite the violation as an infrastructure and decided no to pursue it. >> have they in your capacity as the head of the department have they ever prosecuted from - >> not that i'm aware of. >> okay. so the tickets are issued with the intention of no prosecuted. >> right the offer riding intention to stop the sale of

cigarettes to minors okay. thank you i think the as a reference by the appellant the letter from the department to them does mention the age of 16. >> right. >> is that a stock letter. >> i'll have to say yes, it is it's acknowledged in our belief a miss statement it emphasiss it's enforcement action under thirty 8 no mention of the stake act. >> okay commissioners the matter is submitted looked like i'd like to ask the people in the isle to please take a seat the fire code asks that for safety thank you.

>> well, you know the vast are majority of those appeals related to improper and illegal tobacco sales are from employees upgz be very few of those appeals come from the mom and pop's where the actual owner runs the store and works there 12 or 14 hours a day so we've seen that as a traditional pattern or excuse me. as a historical pattern to those types of cases i would say, however, that as we've struggled with what i have nexus that the place in terms of the penalty which i think there

should be some level of penalty here i feel that 15 days was a better nexus than the department is proposing. >> i agree with my fellow commissioner the store or permit owner has some responsibility but the fact that there boilerplate says 15 to 16 rather than 15 to 17 aborts me as well i mean, i'll be in argument with a lessor penalty. >> i would move to grant the appeal on the condition that the suspension is reduced from 25 days to 15 dies. >> on the basis? >> on the basis that it is the

appellant's first offense. >> okay. >> we have a motion from commissioner fung to reduce the suspension from 25 days to 15 days on the basis that it is the appellant's first offense on that motion to reduce to fte days vice president is absent commissioner president lazarus commissioner honda commissioner wilson. >> 32 thank you. the vote is 4 to zero the suspension is reduced to 15 days on that basis. >> calling item of for do i hear a motion to approve the minutes? vs. the appellant at sutter street protesting the

roller-coaster tail of a noise variance from the mechanical exhaust system at the restaurant so on for hearing the appellant starts with 7 minutes. >> good evening, commissioners i'm the appellant in this case before i begin i wanted to introduce my team this is bruce of bonding care associates and eric i'd like to say a few words and i'm going to turn it over to mr. bonding care the noise has been impacting the quality of my life for 2 and a half years everyday from about 8:30 a.m. to 10:30 i here vikings inside my home it's physically and e motor vehicle i feel tense and agitated i come before you with a hope that the mitigation in my

brief will be enforced so i can enjoy my home thank you for your help. >> i'm bruce i'm an architect and hell helping the lady with this appeal most of you know this case was before you a while back when the project sponsor roller-coaster tail restaurant appealed the decision by the department of public health and you supported the department unanimously at the time we're back because now the department has changed the way in which it is defining things and endorsing it's code they've granted a variance in this case without any substantive change in the performance that is

exited in the accuseal performance in the vicinity are the extensive noise that is problematic is remains on the the residence and is measurable in the amount of light well as well i've provided for you the first time if you can see it a floor plan, which shows the relationship between let's see if you can see that this way maybe if i turn it this way? you can yous the residence and the position of the roller-coaster tail light well those are areas of specific concerns to the department of public health and to my client

that is the on her kitchen and living space open to iron another here and i'm sorry those are the 3 ducks that are of concern one of which has been wrapped as a result of the medial work i have copies florida for any reason you want to look at that in addition to the data that's been presented to the by the department of health has to the department of health by us we have new data that demonstrates the problems inherent in this project are not airborne or

majorly structure born and not mitigated in terms of wrapping ducks and call it a day there is a connection that's been demonstrated if i may - can we your honor, it the other way so it's up and down like that you can't? >> mr. pacheco could you dark even it a little bit. >> okay in the demonstrating here is what's called a spectre analysis of the enjoys the gaga are at the right side and what this spike shows a total hum as a result of vibrations called by the ductwork and the assembly of

fan and addict work on the adjacent building charley sullivan take care told me this is something that can be addressed not necessarily expensive but it is not the normal kind of airborne noise and not the normal way we address those issues let's see we've that sent this data this witness to the do i hear a motion to approve the minutes? and to roller-coaster tail we've been as transparent in dealing with that, in fact, we've attempted to settle that and proposed a settlement to contribute towards the remediation costs they've rejected that settle offer we've allowed them in to hear the sounds despite the fact they have no expertise and measuring

capacity so, yes we were willing to have them listen to the sound and be as open and aboveboard as possible in dealing with them i'm sorry this brief is somewhat deceptive on how it responded to ours they said that the lady has go forward the rooftop noise where there is measurable noise and indicated that she's holding their her that neighbors hostage and misquoted mr. yee from converges or answers you might have we find that that's

problematic noise variance process provides 7 criteria the do i hear a motion to approve the minutes? needed to identify they were very, very shall we say thorough that in their response in terms of the identification we can get into those with an opportunity on q and a >> excuse me. which of the 3 deducts was wrapped sullivan take care can discuss that in more expertise i can thrill that the exhaust duck there's a supply and a dish washer duck that's different the exhaust duck that's been wrapped the supply duck has not been

wrapped. >> what's our suggestion. >> that the problem that has been evidenced by the specific electro study there is some sort of a connection between the vibrating assembly whether in the duck or fan we don't know because sullivan take care has not been grant permission to go onto the property there's some physical connection between the amount of building we need to separate that condition according to mr. sullivan take care it can be done it's not that we're asking for something that's impossible to do. >> before we hear from the department i wonder in the permit holder is mere and would

like to speak then hear from the department afterwards thank you. >> good evening. i'm jerad the chief owner and we have done everything that the city has told us we don't want to be a noise problem reason why he said that they haven't been accessed to our roof is charles sullivan take care that's sort of cost to go out and find out the problem we sdp haven't gotten to the point of denying access to the roof i want to say that my wife and i since building out the restaurant have done everything

correctly the public health department has begun into the unit and the city told us what to do the department of public health told me what to do we drafted a certain amount of feet that wasn't adequate so we did it again, i want to say there's a point i went into the residence and this information came to me yesterday this new information i haven't had time to look at it i went into the residence on monday a few days ago you know i don't hear the noise she hears it's there but not loud noise that's it we're working with to do everything we're told to do

in the process and it's keep costing me more and more money we want to get it all strained out. >> sir, did you install the exhaust fan. >> no. >> it was there before. >> well, the existing exhaust fan was pretty much a fire hazard we had to redo the hoods on top and the ductwork that goes down the light well is completely new and replaced. >> the exhaust fan was replaced. >> yes. >> do you know whether there's vibration isolatesors. >> yes. it was there should be pictures but on the hood system was put on a plaything on the roof with isolateors on it this

should be in your brief. >> go ahead sorry. >> so when i believe you took over in 2011 correct. >> yes. >> so you removed a single fan and added the 3 ducks at that time. >> i believe it was 2 ducks originally because there was the third duck is a round the city requires all dish washers to have a hood system and as far as i know what sullivan take care told me round ducks don't create the noise as a square duck so we added the wrapped duck it's directly in front of her window at the light welling well, that's the duck from the kitchen hood up off the roof and another duck behind that one that brings in air to

balance everything in the restaurant. >> okay. so when you did those are moivengsz which did it come to your attention from the appellant arthritis where the noise was not right now after opening it came to my attention we invited the neighborhood to come for a brief open what a with we were we were planning to do the appellant came to that and brought the noise so it was the health department came out and did a measurement and found no violations. >> did you try to remedy with your neighbors. >> going no, because i wasn't told i wasn't compliant.

>> okay. thank you. >> okay. now we can hear from the department thank you. >> thank you, commissioners i'm sherry categorizing deputy city attorney with the department of public health i want to starter by noting once responses to noise is subjective a noise for one person to put up with might not be noticed on nos is by another person i think that that is a bit of an issue here i want to put it in context the noise levels we're talking about so the focus really for dph in determining whether or not there's a public health it's not to make everyone subjectively comfortable but the noise didn't

say effect the public health so the noise for comboirn residential that level of noise not to exceed 25 decimals and not 45 decimals at night between 7 and 11 in the morning what i am well it is a average radio san francisco to 65 is communicational speech so it's much louder than that about 60 decimals is a sound of an air conditioner and 50 is normal office noise or a quiet stream or the sound of your refrigerator and 40 is about the sound level of a private officer with its door closed or the hum of your computer thirty is a

whisper you can't hear around you so the appellants interior residential spaced had their measure and the ordinances is concerned with the areas that the people they're living space and bedroom it is not so concerned with the halfway by the window to the noise source is open to twice dph has muttered the interior 0 noise levels with the window opened with the gentleman's fans in the middle of the die not at night with the 45 limit applies the first time for both the living room and the bedroom the measurable noise level with the

gentleman's mann fan on was less than 48 decimals it's in between below a computer hum a humming consulting computer and a library second time again midday and opening the noise source they've measured the sound in the living room at 38.8 below computer hum and the bedroom at 48.6 below the computer hum i understand that disturbs some people i'm sensitive to noise i get that but here we're talking about the application of the department of public health to endorse obviously public health at codified if the noise ordinances and looking at the only noise violation on the rooftop nonetheless the department of

public health has been respond to the ladies concerns about the noise into her home and the personal effects it has on her what the department of public health has asked the owner to do is at its own expense graft a duck an acoustical laughing you can't do it requires scaffolding and 8 thousands of work this is to address a noise violation that is on on the roof that the lady can't here so the department of public health is using its authority as the noise ordinance enforcement agency to help the ladies get her concerns addressed and to do it in a way that her consultant suggests it's effective now it appears at the end of the day despite the gentleman's effort those

mischievous were not as effective hass as she hoped but at some point the going of the nightclub restaurant to mitigate the noise that is not a violation has to end and dph buildings there is no significant reason to hold the gentleman accountable for a violation on the rooftop for a noise level of 60 decimals the level of him speech that's the noise coming from the rooftop and nonetheless the gentleman is held accountable and down with dph asked of him but no public health concern in the ladies spaces and the gentleman has gone above and beyond to deal with her concerns and in this

situation i think a variance is clearly warranted in the discretionary power it is charged with the public health noise to grant it in this situation i ask you to uphold it. >> did the department look at the vibration issue. >> well, the article 29 find police code requires the sound be measured in dose malls it's not a violation ordinances to the extent that the violation causes noise that will be enforced and maybe the violation is exorbitantly through dbi not part of the noise ordinance.

>> sowing okay. if the noise is not tuff yusuf why is the vierns required and the variance is required for the noise level open the roof base for commercial location there can't be offer the commercial property line an increase in noise that's greater than 8 decimals over the ambient noise levels. >> you're asking it to be increased for the roof area. >> i'm sorry the ambient noise is measured; right? so the difference is more than 4 decimals that steesdz the level by the noise ordinance for example, the roof when dph last went out there with their measurements the ambient noise was 56 decimals so it would have been permissible for the

gentleman to have 58.6 and still be win the noise ordinance is instead .5 decimals above the level of communicational speech. >> so has the gentleman been in compliance since 2011 it's opening. >> i am not aware of a time when it was measured on the rooftop that mr. tail was in compliance with the application. >> is that a yes or no. >> there was no measured time it could be that mr. tail was compliant before measurement were taken those on the roof but we are not able to get the multiple on the roof until january of this year no safe

access to the roof and dph was not aware it could access the roof until the lady said there was a ladder to access it. >> and since this case is before us. >> prior that's why we vote unanimously u amazing. >> why i can't say what you were thinking but the argument was that there was a violation of a light well, at this point we had not measured the rooftop and dpav was mistaken in relying on measurement in the light well, that can't be the basis by law of a violation but that's where is the violation ways they said in a mixed use area like this we don't make expectations we want the city to stay quiet and a we don't want resident to

be bothered by noise so we also are concerned when the equipment was installed it wasn't installed in such a way that the noise remained below the thresholds in the noise ordinance but keep in mind that applied to the light well which is not legally amenable. >> would that be the specific reason the director overturned the boards decision. >> and explicit but based on facts and circumstances the day with had the board upheld the prior decision the decision isn't a pure question of law but what is happening at the site and since there mr.