se, the property owners understandably is frustrated with the amount of money and time and also like you said, public health issues. >> mr. buck, looking at the [inaudible] of the property wouldn't the old sewer lines be made out of a terracotta or clay material more than likely? >> exactly. >> it's clay. >> whereas the new one should be cast iron? >> cast iron or terracotta where you put in a sleeve. >> i have a question just to clarify something i thought you said which was -- and maybe we're talking a chicken and egg situation here, that once those sewer pipes were repaired that there shouldn't be another issue because it was some problem with the sewer pipe na allowed the tree root tos get in? >> we oftener use the example

of someone having a hole in the roof and you take a branch and put it in the hole and say look at what this tree did. it starts with some defact with the sewer line and it could be a crack, we have earthquakes settling things like that, trucks rumbling and then just the age and terracotta pipe, it's going to have little cracks in it. what i do worry about is let's say you repair a certain section of sewer line, where they join, again tha,'s not my expertise, i can visualize where thae join maybe 20, 40 feet over, where they're attached isn't drummed tight and 5 or 10 years late e you start getting dripping or some kind of leakage, it is hard to guarantee to anyone that tree roots are not going to get into the sewer incensing it begins with an issue with the sewer line first usually. >> just one more question if

the tree removal is granted, then the procedure would be that they would have to apply to have it -- and noted fi casing be given on the tree, correct? >> so just to clarify the removal process, we have gone through their tree removal notification process and as the appellant stated, we can verify, there's been no public protest, there's been no ver cal or written protest against the removal and what we would do the decision of this commission would be final and we would be able to grant a permit for removal with replacement so there's no more notification required at this point in time, and if approved for removal, we would just recommend that a 24 inch box side tree be replanted. there's interest on the applicant to install some landscaping and my recommendation would be to install landscaping in the sidewalk towards the curb side,

they have a setback that may be on private property where there's opportunities for landscaping but it looks like there's opportunities to install a larger landscaping plot towards the curb, so perhaps a 24 inch box replacement with sidewalk landscaping plot would be a way to add back a little more greenery. >> thank you. >> thank you. >> is there any public comment on this item? seeing none, then we will take rebuttal pr -- from the appellants, you have three minutes. >> so i want to thank chris buck, i think that their department has acted very professionally, he allowed us to change the date which i very much appreciate, we look forward to working with them in the future.

this -- at the first hearing, i do want to point out that the only criterion that they ever used was nothing that we brought up but only whether the tree could be saved only whether it was viable and there's a whole host of other issues to be weighed in this case. it's a one off one of a kind case, it's resulted in the loss of two tenants and we do everything to be compliant. our inlaw apartment is 100% legal we've lost two tenants because of that and then of course a lot of frustration. when the toilets overflow, it's like this violent, usually we get some kind of hint ahead of time from the shower floor, but then when the toilets overflow maibt's because an upstairs toilet was flush and had there's a lot of exhaust into the hou raw sewage has come up, it's come up into the apartment, all through the

apartment into the carpet hall, we've had to replace cart, we replaced the side sewer on our side, supervisor mar got the dpw out to dig up to their heads to go out and fix one of the holes on the side. since that time, fulton has been resurfaced. we've spent tens of thousands of dollars to mitigate the noise and all of a sudden when they resurfaced fulton, it got so much quieter because we weren't hearing every truck going we're very concerned that if there is another need to go under the street, it's just going the be replaced with a patch and the patch will create noise again. anything else? >> just that it's our understanding that the sewer has just been temporarily fixed that this is bound to happen again and whether it starts at the sewer line or

whether it starts with the tree root, i don't know that we can say that definitively haoe but it's an interplay and it's bound to happen again is what our understanding is. >> in our plan, we discussed this with sunset concrete we were originally going to bring the same arborist out, but what they have proposed is we're going the replace the entire sidewalk so it doesn't look like a patch work quilt that's what the people next door who tried to spend as little money as possible, na's the cheapest way to do it we want to replace the entire apron all the sidewalk put an attractive tree like an architect would select and we look forward to working with urban forest, we want them to specify the size of the tree basin, specify the tree and we hope we can get to something that works. >> go ahead. >> what about mr. buck's

proposal of expanding the basin won't that sort of cure the problem? >> what that would do is decrease the amount of damage just to the surface sidewalk because there's more room for roots to come up and push. it wouldn't have any bearing at all on the sewage problem. it also -- we pointed out a number of problems also that the tree to us is very much out of proportion with the house it impinges on the lines above we'd like to put in something that looks like an architect's plan or new construction and nurture that tree as best we can. >> and also the basin would just solve part of the sidewalk problem. there's still sidewalk that would extend beyond the basin that still would be affected by the tree roots and damage the sidewalk. >> thank you. >> when you -- excuse me, when

the side sewer line was replaced was it repaired or replaced? >> we don't know what the work entailed. it was done by dpw, they dug a trench that was about maybe 6-8 feet deep and went down. they showed us the old -- some of the pipes that they pulled out, you could not see any light whatsoever, it was completely blocked and they said it's just a matter of time it's going to happen again -- >> was the material clay tile? >> you know, i'm just -- >> was it reddish in color? >> it was black with black sewage. i couldn't really tell i'm sorry. >> and then some repair work was done on the street? >> yes, we brought a lawsuit against the city that the city

settled because of some of the damage and you know, it's just -- we think it involves liability. >> was the street work a replacement of the line? >> they appear to have replaced a portion of it. >> and do you know what -- >> i don't all i know is we were very eager to hear them say, this is going to fix things and they said exactly the opposite. this will fix things for a while but it's a matter of time before it happens again. >> okay i have a couple of questions too. do you live at the property? >> we do. >> okay. the second question is when's the last time you had an issue with the sewage? >> it's been -- >> waxer maybe 18 months, something like that. >> after the resurface of

fulton? >> so, it hasn't required digging up since then. >> our current tenant is a baker and he's not there very much because he works baker's hours but to your question it has not happened very recently. >> according to your briefs, the last receipt was back in 2008. >> the last receipt? >> yeah, for work being done for damaged sewage or repair? >> no that would have been 2014 maybe. because a lot of the work that was -- when this happens, we have to go through a chain of behaviors where we had to first get a private plumber out there to assess everything. he usually runs a snake runs it out through our site into the street site and says i'm afraid to go any farther

because it's roots and i'm going to lose my snake. then we have to call dpw, if they're not inundated. >> i'm going over your brief of receipts that were submitted. >> no, it's happened since then, this has happened in the last couple of years. if you have access to dpw's records, you can probably find upwards of 50 calls for service. >> okay. >> to them, and they've been out about 10 12 times, yeah. >> okay, thank you. >> there's a power shot that we take the sewage out and let the flow go through it. >> okay, thank you, we can hear from mr. buck, his rebuttal. >> good evening, chris buck with public works.

no rebuttal other than to just add that i do take the history of the sewage backup very seriously. it's not the goal of the urban forestry for someone to go through that amount of backups so with that we acknowledge that without a doubt and i want today start my presentation with acknowledge hating and with that, i don't have any other rebuttal. >> mr. buck, do you have any logs of dpw's actions that were done at the property? >> i don't have -- well, we have access to is our own urban forestry inspections and i didn't find any notes or calls from the property owner which is not unusual, i'm sure they were dealing with the department that's going to address the damage out in the road and my sense is that would

be the puc. i'm not sure which department that it would be that they're working with directly. unfortunately, there's not a lot of communication, it's like we're separate world ts they deal with replacing a sewer line, so there's not a lot of access to those records that i would have. >> okay, thank you. >> thank you. >> commissions the matter -- commissioners, the matter is submitted. >> it would be interesting where the [inaudible] are going to go with this, i've been very consistent. i think there is a need for renewal of our urban forest and i've been quite supportive of private efforts to renew that. i probably would be more interested in -- should the vote go that way to see if we

can get as large of a replacement tree as possible. >> how about what the representative recommended regarding an additional landscaping in front since it's a large frontage? >> i don't recall reading that. >> 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