>> commissioners, any thoughts? >> i heard from the appellant some real strong and constructive reasons why this action should take place health reasons and in having grown up i remember i grew up on 29th avenue, i remember when they planted the little trees. i go back to the street where i grew up those trees are monstrous and they were like little lollipop trees when they planted them and i honestly don't think when they planted them 50 years ago, nobody expected them to be as large as they ever grew, i'm not an arborist but what i heard was there was no selfish reason

that the appellant is doing this other than to fix a real bad problem which is a health problem. there are related issues related to light safety, but what i heard that was a constructive solution to that problem, the volunteerism on behalf of the appellant to make it right as best they can with a replacement. i also heard from mr. buck a solution that he would be happy with should we move to accept this appeal, so i would find with the appellant and suggest with the condition that they go with mr. buck's solution to that issue. >> do any of my fellow commissioners share mr. buck's concern about sharing a dangerous precedent? because in our urban environment, and i know i asked the question but in our urban

environment we will run into this problem again. >> you know, i didn't bring it forth, but the appellant's case is not the only one that's been in front of us with a similar effect or what has occurred to them. we have heard not that many times but we have heard before of sewage backup and those kind of issues historically -- >> and? >> and most of the cases that involved trees here, the appeal was voted down. >> but this is a new board and this is a new board. and although my tenure is short being only three years i would say what the commissioner has said, in the past, the tree usually wins,

but a new board. >> i would go along with replacement with the landscape bar as well as the 24 inch replacement. >> well, let me ask one more question to the old timers. >> that would be these guys? [laughter]. >> on the right side. >> yeah. >> what mr. buck spoke about about that we have to take into consideration the difference between having a newer tree as opposed to a fully developed tree, what does that fall in for us for us newbys? . >> he's right the only thing he didn't mention was the visual aspect and the thing is

environmental benefits are greater than that of a small tree. i'm not going to get into the social aspects, although the visual aspects have been brought up by the appellant they want to see their home and out of their home a little more so. >> so i'm sorry i'm just trying to understand, so what makes this -- back to the precedential issue, what makes this case then different nan the cases the board has seen before where the tree usually wins? >> board members? >> i think it hasn't been that many times where the effect of the roots have been so great as -- most of the times on the tree removals it seems like

esthetic in nature, the vast majority of the cases we get, i recall the last one we had was two palm trees on south van ness which they wanted to chop down because it was covering part of their billboard and that didn't win. >> that wouldn't have won for me either. >> yes. >> we -- the department fights very hard and that's their charge x the question is whether we only look at one element of it or whether we look at multiple elements that are impacted by the tree and its removal. >> i think here where i heard the department saying -- proposing a solution, you know, in a compromise, nobody likes the compromise, and that's where compromise is the best

thing but here the department has posed a solution that there's specifications then i hear that you gave mr. buck specific specifications that would not make you ultimately happy which would be the sustaining of the tree but in case the tree had to go away, you have a solution to that. did i hear that? you can step up and say that. >> yes. >> and given that you posed a reasonable solution, something that you would consider sustains the integrity of what your department hopes to achieve, i think that for me -- it's not the palm tree issue it's sustaining the integrity of the program and this would sustain the integrity of the program. >> could you elaborate more on the landscape bar as well. >> yes, chris buck with public works. my recommendation is to open up -- so if the tree is approved

for removal, i think a 24 inch box side is recommended it's not installing a driveway or a high rise, so i don't feel like the property owner needs to be penalized for what they're seeking, and so to add to that, if we want to look at making up the environmental loss, instead of just a 3 by 3 or 4 by 4 tree basin earlier in the evening, i was thinking much larger like 6 by 12 but even a 6 by 9 sidewalk landscaping plot that the replacement tree is centered in would require a $250 permit application fee, it's a one-time fee, no annual assessment but a sidewalk landscaping plot that they just min tain to have more permeability during rain event if we get rain eventually, that's what i'm proposing, so specifically it would require that they obtain a sidewalk landscaping permit open to a modest side, bear minimum 6 by

9 along with a 24 inch box replacement tree. >> and i think that's very appropriate given the width -- excuse me, the depth of the sidewalk is greater than many places. >> commissioner wilson, as well, we've -- i know i have on certain occasions gone with the appellant when we read the responsibility that's all on the citizens so until such time taz city absorbs these responsibilities, i think if we're asking nem to take on an undue burden and there's a relief for that, that's a reasonable approach. so, are we near a motion? >> i want to make it. >> i'll make it i'm going to move to grant the appeal, allow the removal of the tree and

condition it na the replacement tree be a minimum of 24 inch box species to be determined with the department and that they include a 6 by 9 planting base for the tree. >> do you want to state a basis for your motion. >> so, they don't have garbage in their homes anymore. >> so that there's no garbage? no sewage? >> no sewage. >> i won't go there. >> to prevent sewage backups? >> yes, thank you. >> the procedural question that comes to mind is on this other landscaping plot.

>> he didn't mention that in his motion, he said a 6 by 9 basin. >> you didn't say the plot? >> i don't know if that's how you want it commissioner fung or not. >> i would like to make it a landscaped basin. >> so upedbacker you want to condition the permit on them obtaining a sidewalk landscaping plot permit? >> yes. >> okay. >> obviously with the idea that they would then landscape and maintain the landscaping is that right, commissioner fung? >> that's correct. >> okay.

>> okay, so to reiterate, we have a motion on the floor from commissioner fung to overrule the denial, issue this permit on condition that -- several conditions, that the replacement tree be of a 24 inch box size tha, the species be determined in consultation with the dpw and further condition that a landscaping blot permit be obtained by the appellants, no less than 6 by 9? >> yes. >> okay. and all of this is on the basis so as to prevent sewage backups. on this motion, overrule the denial and issue this permit with all these conditions, president lazarus? >> aye. >> vice-president honda? >> aye. >> commissioner wilson? >> aye. >> and commissioner swig? >> aye. >> the vote is 5-0, this permit

denial is overruled, on that basis with those conditions. thank you. >> okay, thank you. so we'll move on then to the next item, item 6, appeal number 15-026, hanna habash, doing business as lucky 7 smoke shop versus the department of public health, the location is 1838 divisadero street and this is appealing the suspension on february 35, 2015 of a tobacco sales establishment permit, 20 day suspension for selling electronic cigarettes to minors. er >> good afternoon, commissioners, good morning, my name is derek st. pierre, i stand here with mr. habash, before i get into the specifics of this manner, a history of regulation of these cigarette ins san fra*bs these cigarettes are relatively new device which have been regulated by the state of

california and the city and county of san francisco and the city and the responsive papers as exhibit a were kind enough to provide you with a copy of the 2014 mailer that went out on this actual subject matter regarding electronic cigarettes, and if you take a look at actually this 2014 informational sheet it does not really provide an explanation of what an electronic cigarette is. further, in terms of recent mailing that have gone up mr. habash just received a copy dated march 12th of this year and i have additional copies if the board would like copies of it, but in essence, this is an updated mailer from the department of public health outlining e cigarettes and the only real reference to that is

on the back where here it does in fact define tobacco products and listed in the long list along with cigarettes, pipe tobacco, cigar, it describes what an electronic cigarette is also permitted from being sold. the reason i bring these up are the fact that electronic cigarettes are different than traditional cigarette, electronic cigarette, this is an example of one electronic cigarette. this is in fact the electronic cigarette at issue that was sold to the minor the way i illustrate it if you notice, this is the actual smoking device, charging device, it does not contain anything in this package whatsoever that is consumable. this right here is called the e-juice or vaping liquid and that is a separate item that would have to be purchased.

separate item that would have to be purchased and inserted into the device. the reason i bring this up is to illustrate that there's a bit of a lack of clarity in the mailers given out to the tobacco retailers in the city and county of san francisco and specifically 19n of the san francisco health code is the language that defines electronic cigarettes. that text was never in the 2014 mailer or in the 2015 mailer. now, turning to what actually happened in this instance first off, let me give you history of the operator mr. habash has been operating the specific smoke shop since 2009 and previously worked in a convenience store with his farther in hay's valley since 1993, he's been in this industry for over 20 years. he has never had a single violation either while work at

his father's shop or since he's been operating his own shop. the incident at issue occurred in september of 2014 and what was sold in that transaction like i illustrated before was the actual device without any consumable liquid whatsoever so when the minor walked out of the location, they walked out with what i would call the equivalent of a pipe without tobacco and i'm not doing this to minimize his actions but to explain the situation of what occurred and that there could be a little bit better information and education distributebacker distributed by the department of public health as to what is and what isn't regulated. on this specific instance he did transact with a minor did not ask for identification however, the minor in seeking the product did specifically ask for a specific product, pointed to this individual

product and expressed the degree of familiarity with the actual product. mr. habash then made the sale and shortly thereafter, the police officer came in and they had a conversation about the incident. he was cited never actually had to appear in criminal court but had to appear before the department of public health and director aragon. on the date in question you know, and i did outline this on the brief and i don't want to focus on it on the date in question mr. habash had suffered an unfortunate incident where he had to take a good friend of his to the hospital so he wasn't in his traditional state of mind and perhaps but for him being in a different state of mind may not have ever made this transaction. what actually did happen tat hearing, there was a suspicion

ordered for 20 days and i want to talk about the hardship that would occur if this suspension would occur, if you're looking at the sale of tobacco product, that's 50% of his sales e cigarettes is 60% of his business you're going to ask him to shutter his business in order to -- i mean, a suspension would be a shuttering of his business during that period. the other thing that i found a little bit unusual in this circumstance is that at the actual original hearing on this matter, multiple other vendors were found to have violated the sales of electronic cigarette tos a minor, however, each and every one of those vendors

voluntarily opted to cease any and all sales of e-cigarettes to minors or any sales to e-cigarettes in exchange for receiving no additional punishment which i found to be a desperate decision and a desperate punishment. if the board has any questions, i'm happy to address them. >> could you repeat that last line, i'm not sure i understood that. >> in essence, what i was saying at the original hearing on this matter, as you may know, department of public health hearings have multiple vendors who are seen and have their matters called before the director of public health on the same date in question. there are minimum 7 other hearings on that same date, each and every one of those violations were associate witched the sale of electronic cigarettes and each and every one of those individuals were found to have violated the 19n

which is the provision prohibiting sale of electronic cigarette tos a minor, instead of receiving a suspension, what other vendors opted to do is to voluntarily agree to cease selling electronic cigarette and is in exchange the director was willing to waive any suspension or any punishment in exchange with that agreement and i just believe that mr. habash is receiving an unequal punishment in exchange for the situation, and my request just so we're clear is for reduction in the amount of the suspension time from 20 days. >> let me ask a clarifying question so was that an offer that was made to those different folks about -- was it a -- in other words did the director say, look, you can keep your -- keep selling other

tobacco products, but you have to give up e-cigarette products, and did your client get the same opportunity and did he -- or did he voluntarily to do the same? compare apples to apples. >> i understand your question just so we're procedurally clear, where my client appeared on the calendar was roughly the misleading of the calendar we were there from the beginning to the end of the calendar opted to say and watch all of the hearings that occurred that day. the issue aof a voluntary revocation -- i guess a voluntary decision to cease selling e-cigarettes did not occur until at least the end of the calendar when one of the gentleman says, look, i don't want to be selling these things and i'm being punished for it. at that point in time, the director made an offer well, if you want to stop selling e-cigarettes, we will not iing ewe a suspension, and then what ended up occurring is several

of the other individuals that had had their matters heard prior to that actually came up and said, i too might be interested in trying to avoid my suspension by voluntarily agreeing to ceasing the sale of electronic cigarettes. >> i take it you did not? >> no. >> okay, one other question so liquid nicotine that you showed using is it your argument that had the decoy for lack of a better word purchased that in addition to the -- what you equate to be the pipe, your client would have asked for i.d.? is that your argument? >> do you want to address it yourself? >> yes, my name is hanna i'm the owner of the smoke shop. >> can you answer my question. >> they caught me off guard and like my attorney says, that day i had a little situation, i'm not denying that, i'm

responsible. >> okay, but i asked a particular question. >> yes, i would because what he asked for is just -- it could be a metal thing a battery, if he asked for the nicotine then it would dawn to me that i would have to ask him for an i.d. but -- >> okay, thank you. >> i would just like to follow up with that, as i read the excerpts from the code that are in the letter explaining the suspension, california and san francisco health code define electronic cigarette as the device, it doesn't say anything about the liquid. >> i agree with that, i concur but i would ask you if you might turn your attention to the 2014 mailer that is sent out specifically by the department of public health that is instructing tobacco

retailers and tobacco permit holders thousand comply with 19n to have san francisco health code and there is no single reference or definition in there and in fact it wasn't until the 2015 submission that there was additional clarification submitted by the department, and

when i cabined the business owners, i do ask them to meet me at the site. with we're at the site, we do discuss the incident that occurred i provide the business owner with all of the

documentation proving that the violation did occur. i also provided them with a copy of the educational mailer which you have seen and i also suggested to the permit holder to continue present toing the hearing officer any changes in their business practice to ensure repeat violations do not occur in the future. now, after we've been conducting these hearings since january, 2015, and i will be glad to provide you with the results of our hearing so the san francisco police department visited 80 businesses between the months of september, 2014 and december, 2014. out of the 80 businesses, 15 had sold an electronic cigarette device to a minor and out of the 15 businesses that sold an electronic cigarette device to the minor 4 cases are currently being scheduled for upcoming hearings four

cases were ordered by the department to serve a 20 day suspension, one case was ordered by the department to serve a 15 day suspension, one case was ordered by the department to serve a 10 day suspension and in the last five cases the suspensions were waived because the businesses voluntarily elected to no longer sell electronic cigarette devices for as long as the permit holder held the business. the businesses asked the department to consider that. lucky 7 was present when four of the business -- four out of the five businesses volunteered so cease selling electronic cigarette devices, the reason for the suspension, the factors that the director considered in issuing the suspension, he considered whether or not the person responsible for selling the device asked for an age or

any identification. he also considered that they had retrained the staff as well as the permit holder, he also considered if the permit holder implemented any operational changes like installing the scanner, that actually reads the age, and he also looked if the business had a list ri of selling a tobacco product to a minor the one for a 10 day suspension, the permit holder retrained everybody, the permit holder installed a scanner that would read the age and tlfps no history of the permit holder ever selling a tobacco product to a minor so this was a first-time violation, so in the case of lucky 7, they failed to ask for i.d., they failed to ask for age and in the police report itself, it stated that there is a sign poste