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 posted at the

entrance that says no one under the age of 18 was allowed in the store quet yet the minor entered the store and purchased a device. they didn't offer any retraining of anyone, they didn't offer any changes in their operational procedures and the department could not verify the accuracy of their claim then the 20 day suspension would result in the business closing and in fact we have been conducting research going to the actual files looking at all of the cases, we researched 37 cases that's come before the board additional 8 tobacco cases and not one of the cases that i researched found that a business went out of a business while or nearly following their suspension. i would also like to mention that the director -- at the director's hearing, the electronic cigarette device was sold to a minor in order to

show the nicotine cartridges are attached but it was the director's feeling it is the device and even on the package of the device says that that product may not be sold to a minor and i did show that to the director at the time. thank you. >> do you want to respond to the comment made about the lack of clarity in the formal notifications from dph to the tobacco seller. >> i would be glad to comment. i think it is, again playing to the argument that they didn't understand the law governing my business so it's very clear in what was provided

that selling electronic cigarettes to a minor is illegal and the product that was sold was labeled electronic cigarette. the fact that it did not break it down to the granular level saying i'm selling an empty cartridge, i don't believe it's upon the department or the city to go into that level of detail when in fact the state law for five years letter?

>> i'm not able to answer that question. >> ms. young do you have anything to add to that? >> but, again i would say the burden is not upon the city and having worked with this client for many years they tend to do -- provide things and then more. >> okay. >> so i think if anything they were trying to get out as much information as possible

and educate the sellers so they wouldn't fall within this very same scenario. >> yeah, well, that's what i was trying to get to because that's what he was saying he fell under the lack of understanding from the first notification to the third notification. >> right. er >> alright, thank you. >> i have to ask a follow-up question and i really don't want anybody to laugh because i'm dead serious. you said -- you confused me you said anything that doesn't produce a vapor so a pipe doesn't produce a vapor. we talked about hukas, is that a vapor? can a kid under 18 or can a minor go in and buy a huka? there's -- where i'm getting in

conflict haoe, there's a new device called electronic cigarette that's new to us and rightfully so the state and the city has legislated that this is really bad for minors, and what's missing here is this other traditional type of smoking device which might be a pipe, which might be a huka, which might be any number of things that tobacco or other substances can go into, so it can be smoked and i think that's where the ambiguity lies. if you're going to legislate against electronic cigarette that is don't have the nicotine in them, then one might suggest there be clarity on the subject of other smoking devices that also come empty but will be stuffed with a substance that will create smoke in the case of a pipe, will create vapor in

the case of a huka and god knows what other people smoke. that's a confusion to me that be a consideration in the overall ambiguity or lack thereof of the information forthcoming from the health department. >> didn't the package say electronic cigarettes? >> yes, it says electronic cigarette and it also says not to be sold to a minor so there is clarity there. i'm not fighting the behavior but i heard conflict between the new age and the old age here. >> so, if i may, and it's true, i mean, there's an explosion that i think we all can recognize of various devices on the market that deliver nicotine fluid combined with other substances, but one thing and then i have, is it

lieutenant, lieutenant [inaudible] here who's prepared to comment as well. i don't want to read the actual definition because it states from 19n .2 that an electronic cigarette means any device with a heating element, a battery or an electronic circuit that provides nicotine or other vaporized liquids to the user in a manner that stimulates smoking tobacco. >> president lazarus, commissioner, lieutenant dave falza with the police department, regarding your dads traditional tobacco pipe, under those past lives no, unless the police officer could articulate that it was drug

pair fen kneel ya if they believe that person was buy hating traditional tobacco pipe for the ingestion of the narcotic absolutely, that would fall under drug fair fen kneel ya. the electronic devices is new legislation and they specifically prohibit minors from buying them and that's where the city attorney was just articulating the definition and i think it was designed that way to separate it from your scenario of our father's traditional tobacco pipe, but i suspect with all of this new interest in tobacco and alcohol access by minors, we probably will see a day when the traditional tobacco pipe, you'll have to be 18 or over to purchase it but i'm not aware of a law now, that's not a type of case we would be a licensee through, we're not sending you out to try to buy traditional

tobacco pipes, so i hope that helps you out. >> and i think the ignition point where obviously a pipe doesn't have an ignition component that -- >> correct. >> that's a big difference. >> your huka pipe example, from law enforcement's perspective, we are going the charge it differently if we have reasons to believe that it's to the ingestion of a narcotic, that can be the case, i think we're talking about smoke and vapor and vapor just like you said is using electronic means and batteries and so on but there is no doubt i'm sure the day will come when vapor technology is being used to ingest narcotics if it's not already related.

>> by the way, my dad died from heart disease from smoking those pipes. >> any other questions for the sdmpt >> okay, thank you, is there any other public comment on this item? >> okay, first person, please step forward. >> good evening, president and commissioners, my name is karen [inaudible] i'm with braoe cal foreign ya, i'm the co-chair of the san francisco tobacco-free coalition, you all might remember me from last week and you heard from the faculty control members of the importance of not selling e-cigarettes to minors, by now, you are familiar with the laws regarding this issue based on what you heard last week, you voted to uphold the environmental health decision i urge you to be consistent and

set that precedent, since you set that precedent already and voted with your vote on last week's appeal considering you're seeing the same issue this week and i urge you to uphold the environmental decision based on the same reasoning that you upheld their ruling last week. thank you for your consideration. >> thank you, next speaker, please. >> hello my name is [inaudible] i'm from the vietnamese wellness center and in 2013, some of the youth that were part of my program went to schools and collected data with the youth and their school about where they can go buy e-cigarette as you can see, it's pop lacer these kids, they love it and they have no clue what the harm does to them and then allowing these stores to sell cigarettes, e-cigarettes or anything to minors is just not a good thing it's unhealthy, it's not good for

the community, the kids have no clue what it does to them and these toxins can kill them, as you mentioned and i think you should uphold this and do not allow them to sell to any minors and i hope i made sense i'm a little nervous, i've never done this before, so yeah. >> thank you, next speaker, please. >> hello, president and commissioners, my name is natalie and i'm here add an advocate to urge you to make the decision you made last week and deny this appeal, you know why this is an important issue for public health and youth especially our lgbt youth selling cigarettes to minors is intolerable e-cigarettes should not be treated differently. thank you. >> next speaker, please.

>> hi my name is [inaudible] and i'm representing the san francisco tobacco free coalition, i'm a member and i wanted to urge you to enforce these laws to make e-cigarettes inaccessible to minors. right now, they're very easily accessible to kids, my niece tells me she can get them from school pretty easily and when it contains nicotine or not, it's dangerous, if it has nicotine tha, can cause cardiovascular diseases as well as respiratory and as well as if it doesn't, it does -- the device itself can be dangerous. the retailers will sell e cigarettes and it should be treat ted same as the sale of tobacco and according to the 19n, the law, because pair fe

kneel ya is bought to be used so that's what it's going to be used for. lastly, i wanted to show you a picture. i don't know if that can be seen in here. pair -- this is an example of e cigarette and is things that can look like e cigarettes, it looks like conditionedbacker candy. >> is there any other public comment? seeing none, we will start our rebuttal mr. st. pierre, you have three minutes. >> thank you, commissioners, derek st. pierre for the appellant. i wanted to address a couple of things, first off, we did

present at the director's hearing specifically after the incident on this, there was an employee meeting and retraining occurred the very next day. in essence, there are mr. habash and a single other employee that work there the two of them met the next day, sat down and were very specific about what needed to occur prior to any sales of either tobacco or electronic cigarette devices so that specific di did occur after the incident. i also wanted to just reiterate that there have been no violations whatsoever in the history of his operations of business and that associated with the sale of this device was the first violation that has ever been alleged and oddly enough in hearing from the police officer, the lieutenant, i believe, the gentleman said that if someone were to sell a pipe, this is not the type of case that we would enforce.

i agree the laws have changed, we have moved into 2015, but you have an individual who's been in the tobacco associated business for upwards of 20 years. you also have a department of public health who's sending out mailers would don't really clearly define the difference between an electronic cigarette with the tobacco juice versus the electronic device and i believe the remaining in march of this year reinforces the fact that the department acknowledged there were some clarity issues in termser of what their policy is. and finally, we're not standing before you saying that mr. habash has no responsibility he has september that responsibility -- accepted that responsibility and is going the serve his punishment that is deemed for this situation. what we're asking is a reduction in the suspension time from 20 days in order to

a, avoid any closure of his business and, b, i think it may be appropriate in light of the circumstances. the questions i do have from the city is of the 37 cases that were researched in terms of tobacco store suspensions there's no indication what other items that those stores sold and what i mean is we have a tobacco dominant business versus a convenience store per se where a convenience store is going to sell sodas chips and other items beyond tobacco. >> thank you. >> thank you. we can hear from the department if there's any rebuttal. >> good evening, commissioners, i'm senior health inspector genine young the state law says that an electronic cigarette is a device.

the local law say that is the electronic cigarette is the device. the packaging of the product says this is an electronic cigarette. the packaging also states it may not be sold to persons 18 years of age. luck 7 failed to ask for age, failed to ask for an i.d., lucky 7 had a sign that no one under the age of 18 should be allow ined the store. they didn't state that there was a training that occurred and the department could not verify the accuracy of their claim. when i said i did the research today i did look at tobacco shops that told 99% of tobacco products and those served 20 or

more sus expensing days and none led to a closure of the business. one of the tobacco shops had served a 60 suspension day for selling tobacco to a minor device in one year, so i do hope this board upholds the department's decision for the 20 day suspension. thank you. >> thank you, commissioners, the matter is submitted. >> i'm inclined to deny the appeal and uphold the department. >> it was a novel argument though, the fact that there is no actual product, you know, that was not what struck me so much, i probably felt some

compassion, lack of clarity in terms of spelling out exactly, you know, you're looking at legislation that's not always easy to understand, so i sort of bought that argument a little bit but i really don't see any basis for overturning. >> there's no other discussion, i'll move to deny the appeal and uphold the department on the basis that the penalty was appropriately issued. >> okay, thank you. mr. pacheco, when you're ready. >> there's a motion on the floor from the president to uphold this 20 day suspension on the basis that it was

appropriately issued. on that motion to uphold commissioner fung? >> aye. >> vice-president honda? >> aye. >> commissioner wilson? >> aye. >> commissioner swig? >> aye. >> thank you. the vote is 5-0, this 20 day suspension is upheld on that basis. >> okay. thank you. the next item is item 7, appeal number 15-062, anwar imtair versus the department of public health, the property is 3801 3rd street, suite 12, appealing the denial on the march 20 2015 of a tobacco sales establishment permit pursuant to the san francisco health code prohibition on new tobacco sales permits in supervisorial drinks where the total number of existing permits in the district exceeds 45. >> my name is marvin robinson i'm a lifetime rez didn't, this

is anwar he is the appellant in this situation and the argument with the department is the fact that in january of 18th of this year, it went into effect, anwar had a situation with the department where he had some issues with the city taxes that he paid on november 11th of this year and he proceeded with another situation he had with the landlord of the bayview plaza that did not permit selling tobacco at his particular establishment. he got a new lease that would enable him to do such in a condition that it's in a secure area behind the cash area, by the time he stepped forth to get his permit because he didn't receive it in the mail, he was 13 days behind the deadline of january 18th. anwar has been a merchant in

the bayview hunters point community for over 35 years he's one of the few middle eastern merchants who refuses to sell alcohol because of the negative impact it has in the community particularly with the young men and women standing in around these particular stores that engage in this particular product. in addition to that, with the ongoing redevelopment of a new community in the southeast sector of san francisco, the gentrification of not just the merchants leaving, the third street corridor which is one of the poorest corridors in san francisco. i lived there all my life and i have seen the days when we had italian merchants and asian merchant and is now you have store front we have 40 vacancies currently as we speak the san francisco board of supervisors had a moratorium on liquor license, they eased that license up to let fresh and easy neighborhood market in they stayed 22 month and is

they fled as well as a chicken with wing stop, they stayed 11 mothers and they fled, the competition that was against is the violence the drugs the alcohol, the homelessness and these other elements that is not conducive to foot traffic, it's not conducive to the merchants, there's businesses that have been closing that's around 20, 30 year, not just the ones we mentioned, he stuck here, as we look at the cap, we have no problem with the prohibition that's in law and in place the evaluation is coming up in two years by that time, the san francisco shipyard with over 2 million square foot of space will be let lg new businesses come through, so this man has been true to the neighborhood and we are asking this board to overturn the ruling that allowed him to sell tobacco products at his location. he has had no violations over

the years he's been a reputable merchant and he would be one that would lead as well as residents, a lot of the federal dollars coming into san francisco is coming into the existing residents of that neighborhood but the existing residents are leaving to other parts of the bay area because they cannot sustain the air y to move into the new urban renewal that is taking place, now the merchants are beginning to fee, so we all acknowledge a new neighborhood is being developed but let's not run away, the people who have been in the neighborhood all this time. er >> i want to thank each one of you for being here for us and listening to our problem, thank you, everybody. like my colleague testified, i opened an organic store next door from the location i had and stayed there about 8 months and i could not do it so i had

to close it down. then i ask my landlord to give me a permit to sell cigarettes, he would not grant me the permit because i was behind paying my rent there and the health department issued a permit for cigarettes, and by the time they issued the permit for cigarettes the landlord [inaudible] to give me the permit, so i closed that business and to the basis because of the my language i could not understand everything. i closed the business and transferred everything to next door business which i have it right now so i'm not trying to open a new business i'm going the add the cigarette tos the tobacco product to keep my business and [inaudible] i -- so please i want you to

consider my situation and i'm down to my last money for me and my family to stay in business because i love that neighborhood, i want to contribute and for the last 35 years to this neighborhood so i don't want to run from san francisco and close my business and thank you very much. >> one more thing to that note is the fact that i think that what's occurring here is that we all want to be in a situation where san francisco needs to be the city that knows how and this attempt to not only be able to give this man a permit to sell his product and to stay in business and that's the key, we're looking at urban renewal in an area that needs urban renewal and but we're looking at gentrification of merchants and residents who's been there all the time, they can't sustain the new and i think that's really unjustifiable that monies is coming into the city and county of san francisco