realize that, they're either -- the district is either a district that is below the cap or they fall -- the applicant applies for a new permit such as the appellant here for the new location will only be able to obtain a new permit if he falls within some very limited exceptions that don't apply here. >> presumably there was no grandfather is what you're getting at. >> i guess a form of grandfather but it's interesting that even though he had a license to sell at a previous location he can't get one at this location because they changed the rules on that. >> they indicated he could never get one at this location

because there was never one there before. >> right but it's also the fact that he never had the permit because he never paid for it. >> i think they actually are both interesting but -- i'm sorry they're both interesting but they're not related, but we are addressing it because the applicant brought it up, but truly the fact that any individual has a permit in any other location is not going to affect our ability to grant a permit on a different location. >> especially a location that cannot have one. >> do i stand corrected that even if it falls below i'm asking about the new law the number, you can't get the permit if the location hasn't ever sold tobacco, so let's say it falls below to 20 for some

reason, then you're just aout of -- out of luck. >> so then let's look at the supervisorial district where there right now are 69 let's say that 30 of them close over the next five or ten years which is what the purpose of the law is meant to be i think then you have 39 and which means that 6 are available, so now in deciding whether to grant or deny an application we number one say, is it less than 45 yes. the second question has there ever been a permit at this location, so those -- we would only issue -- it wouldn't be just those 30 because certainly there have been additional establishments that have sold tobacco permits over the years before this slice of time in

2015. the other criteria that are in there also is that even if it was a location that had a tobacco permit and we're talking about a sdrik that has fewer than 45 if it is within 500 feet of a school, we would deny it and i thought there was another 500 -- so yeah, it's -- and just as an aside we are working on rules and regs we're going the issue for public comment because it's a complicated law. >> so, there's no true grandfather provision then? normally when you change a law and give people about a month you put in some mechanism so folks have either some notice or some way because you're affecting people's livelihoods. >> i agree.

>> agreed, and i will say there was two years of discussions with the arab american grocers association which of course isn't everybody in the city but does represent a contingency representing the small grocers that do have their livelihoods invested in their businesses. i will also point out that the law like i said, it was passed without any heads-up and in fact included a piece that is turning out to not have that much relevance in our permitting decisions but that said that only applications received before december 9, 2014, so at the board of supervisors this was discussed and passed on december 18th and it included in it sort of a backtrack date so it's sort of the opposite of grandfather but

what is in there for the grandfather perspective this series of requirements for mentions so we are going to be allowed to issue permits to locations in districts that are over 45, to locations that are near a school if the current owner the owner of record as of the date of the law passing in december in january of 2015 has owned the business for five years previously and can show due diligence that this is a transaction that they're making in good faith to pass on the business so it's just for your preference, 19h6 through g are the exceptions and i suspect we will be talking about them with you again in the future.

>> one more quick question. so does the fact that he was having this sort of back and forth with his landlord does it give you guys any discretion to consider that, or is it simply not something to consider? >> no. >> thank you. >> and i just wanted to clarify the part about no permit for an establishment that never had one, is that old law or new law? >> that is in the amendment. this was newly amended. >> okay. >> okay, thank you then, we'll take public comment, if there is any on this item. >> no i'm sorry. >> you'll get a turn. >> good evening, again, [inaudible] i'm karen gaboli with the tobacco brief coalition i ask you to deny

this applicant, there's a certain retail stores in certain density neighbors, san francisco passed the [inaudible] with the unanimous support of the board of supervisors and signed by the mayor this was a six year process negotiation with community members and grocers at the grocers association this [inaudible] of tobacco retailers, tenderloin, chinatown and the mission neighborhood, higher density and higher minority populations [inaudible] who are already at risk for negative h*ement outcomes which struck me when the appellant was talking about this business was going to contribute to a healthy community, i have to ask the question how has selling tobacco ever helped a community? as june mentioned, the arab

american grocery association a 300 plus family owned businesses was a key partner in developing in ordinance to ensure it was a pro business the aaga came to testify in support of this ordinance, youth advocates led by the youth leadership institute they testified in support of this ordinance and even collected over 900 endorsements to committee members. i urge you, the board recognizes this as a significant issue facing many communities and has adopted this ordinance for this matter. please support this new law. thank you. >> next speaker, please. >> hello again president and commissioners, my name is natalie and i'm here today as an advocate from brief california to urge you to uphold the retail tobacco license, which exceed 45 permits, in this particular case, there are over 45 tobacco

retailers in this area, we want to see a reduction of tobacco retailers and [inaudible] to step back from youth and community led efforts to pass the density ordinance and promote health. this law would pass for a reason in making exceptions for others causing the law to lose its impact. please uphold the law for the sake of environmental just and for fair business practice. thank you. >> next speaker, please. >> hello bargaining my name is patac and this time i'm less nervous and with what everyone's saying i think you should not allow them to get that permit because they already have 67 in that neighborhood. the chinatown has a lot, the tenderloin has over 75 if you allow this, then someone else in tenderloin would take the same issue and try to open up a new one right next door to what they already own and maybe expand it bigger so if you give

them this, it will be open a new door for other people and it should not be allowed because cigarettes is not healthy. how does that help the neighborhood? that's all i have to say. >> next speaker, please. >> hi again so i just want to kind of say about the law, the reason why it was passed because research shows that higher density leads to higher usage and it has unhealthy behavioral of merging and leads to increased of smoking due to increased access and saturation of tobacco use and advertise ining the community. bayview hunters point already is 21 tobacco retailers over the cap, we don't need to add another one there. thank you. >> next speaker, please. >> i'm larry [inaudible] i'm a medical marijuana advocate and i say district 6 in the tenderloin, we have enough cigarette stores there, one

thing i want to point out, cigarettes cause cancer, if you look at all the books back in 79 and 78, they had all these great black and women advertising cigarettes, new ports for ginger slim, even the marlboro man is dead, they need some wholistic, something healthy out there putting another cigarette place out in an african american chinese dominated people of low-income neighborhood, i already got the smokestacks from the chemicals from the navy out there so i think this is not a healthy alternative opening up another store in the neighborhood that's already distressed and remember i was working one night i worked at the [inaudible] i said the world was going to end and it was revelation 24, it said god gave

us water and green trees it said take the green tree leaves and use as medicine a man must have said that, they don't read the last chapter of the bible even in genese, we don't use all the natural stuff cigarettes have a lot of chemicals, those are chemicals that you never know what your body is getting into, so i don't think you need a number 46 cigarette smokers, bayview needs a medical marijuana out there if you're going to approve something, edmund juicy and it's my birthday and bay breakers weekend. >> happy birthday. >> any other public comment? seeing none, then we have mr. robinson and mr. imtair,

minutes. >> the response was the license included in the 69, the answer to that question is yes. here's the document right here that's dated from october 12th of -- october 12-15 of this year to october 11th of next year, so the count when you talk about the 69 this man's store was counted part of the 69 dissemination of information, if the board of supervisors approve this in december and went into effect in january, we checked, there was no other merchants that knew about this law that we checked with public radio, we checked with commercial radio no public service announcements, so lack of knowledge we all perish, so i'm not saying that one way is right another way is wrong but for staff quos up here and says, they are not decisive themselves, they're winging it it's law, it's law but the fak that you didn't give anybody a heads up of what to do and not

to do, then we're winging it and making decisions, the deck is stacked and i think it's only fair to be able to play both sides of the fence and get an opportunity to talk about the issues, to debate the issues, those are individuals that are against, that's alright, it's ao free country to have a different opinion, but in this particular case, they did not -- the department of public health did not disseminate information they did not hold meetings and it went into law immediately expeditiously and this man found out about it after it was law and you can hear they're going along ingesting the rules as they're going along because we're in unforeseen waters here, this is the first protest of this particular law that grants this man this permit. we didn't say that selling cigarettes make the neighborhood healthy we're saying there's 106 store fronts, the economic disaster at bayview hunters point can't survive, there's no foot trafficker from the first and

the third, when you get the social administration checks, after that, it's a ghost town, we have merchants closing and shutting their shops so here's another merchant who's been in the community for 35 years and his reward is he has to go tao, it's about the urban renewal of the neighborhood, his business should be able to live as the new community develops. >> and something also, in that area, there is a shopping center and there's nobody close to me that sells cigarettes within 500 or more and there's no schools around me. my area where i am it's not residential it's an industrial air y, like 5:00, 6:00er, you don't see anybody in that neighborhood after 5:00, 6:00 and my intention to open 6, 7 o'clock, there's no business after 7:00, so i want your help

on that and i have [inaudible] july 2, plus i have the permit for the cigarette smoke shop for next door. thank you. >> thank you. and from the department? >> [inaudible] on behalf of -- responding on behalf of the health department. so i'm just taking aback that this law is being presented as a surprise or a bomb shell on the business community because there were months and months after meetings with different trade organizations including the arab american grocers

association concerning this very ordinance and the limitations in the cap on new permits, so there was a lot of leg work that went into working with the community, working out various amendments that would be acceptable and essentially getting the word out, so it shouldn't be presented as a surprise and that's really not relevant here. the director has no discretion. he cannot grant that permit. >> i don't have anything further unless you have any questions. >> i'll go back to the same questions. what the appellant presented in

their rebuttal was their state license to sell tobacco. now, the question then is whether you have found out anything else related to whether they were part of the 69. >> no there's differing opinions. i have to -- i would have to go back and look at the density, but can i try to understand why we want to know the answer to that question? because it could help me answer it even though i don't know the exact answer. >> i've asked the question if you don't know it that's fine, okay. >> any other questions? okay, thank you. so commissioners the matter is submitted. >> i have a question for the city attorney. is there any notification

required regarding to the new legislation or the new law, could the board of supervisors pass a law today that's effective tomorrow? >> well, there's a process for passage of laws where the board passes the a law, then the law by the city's terms effective would be in 30 days after the passage, but it's accepted when it's accepted there's no requirement that the law has a tail or a lead in it it's effective when it's effective. >> and of course if i might add, it does go through multiple hearings during the legislative processes, i'm sure the commission is aware first it's heard by the full board then it's referred to a committee for yet another public hear, then it goes to the full board twice.

>> thank you. >> any thoughts? >> well, i'm pretty well read on local government and i've never heard of this, but that's neither here nor there. it is interesting that, you know, part of their -- the people that they worked with on the legislation are the ones who own probably the larger number of these licenses so -- but that's neither here nor there whether my opinion as to the fairness of this legislation is also not important, the question is what is the law while we're acting upon it and i think i'm stuck. >> stuck meaning nothing we can do? >> stuck meaning that i have to agree with the department. >> as to why?

>> i agree, i don't think it's perfectly fair, but i don't think that we have -- i don't see we have any other alternatives. >> do you want to make a motion? >> i'll move it. we can continue our discussion, but i move to deny the appeal on the basis that the permit was -- that it was denied appropriately given the current legislation.

>> there's a motion on the floor from the president to uphold this denial on the basis that the permit application was denied appropriately given the current legislation. >> yes. >> okay. okay, again to uphold the denial on the basis that this permit application was denied appropriately given the current legislation. on that motion to uphold the denial, commissioner fung? >> aye. >> vice-president honda? >> aye. >> and commissioner wilson? >> aye. >> commissioner swig? >> aye. >> thank you, the vote is 5-0, this denial is upheld on

>> we are resuming the may 13, 2015 meeting of the board of appeals and we're calling items 8a and 8b appeal number 15-036 and 15-07 the first one's filed by michael dans and the second one by fd ryan with planning department approval both o*f these regarding 1055 ashbury street, progressing the issuance of february 17 2015 to chris durkin to conduct a four storey single family dwelling with 700 square feet of ground floor area, the public hearing was held on april 29, 2015, i eats on for further consideration today and it was continue today allow time for the permit holder to submit revised plans showing a setback at the rear of the top flee. we're hear first from the permit holder who has three minutes to provide information to the board.

>> and madam president, i have to recuse myself on this, i was not a member of the panel that the time and i have not had the opportunity to properly prepare and review the hearing, so i'll take my leave briefly. >> thank you. >> please step forward. >> thank you, good evening, members of the board tom tutney of [inaudible] counsel for -- >> sorry. >> i need to make a disclosure, i have a [inaudible] with are you ben ingenious and i can hear this case without any prejudice. >> thank you. >> i'm counsel for the permit holder chris durkin, project sponsor, just to clarify for the record, this is a three storey single family dwelling

proposed it extends two additional floors in the rear and that really goes to the issue before the board tonight. a couple of things i wanted to clarify from the last hearing. there was a question about the residential design team's review of the project to of course happen before the discretionary review, i'll read from you the discretionary review full analysis from the staff report, the rdt staff report stated that while the rdt found that while it is recognized the project proposes a tall rear facade the proposal is not extraordinary due to the established pattern of tall rear facades on the subject block so we really feel our proposal is consistent with other properties on the block. i have a cum -- couple of photos i would like to show

because i know the other issue was what's the physical context here, what's the topography, so hopefully this will help. so if you look at the photo the subject property is up here, you can see the vacant lot. one appellant lives here and another is here, and this is the steep down-slope of the block, and you can see this is a five storey rear facade here, these are four, this one adjacent to the subject property is 4.5, four storeys across the street, so there really is a minimum effect with the presence of this new single

family dwelling on the properties down below large trees provide shading already. there's a large tree here that provides shading, we really don't think that the home will have much effect. nonetheless we have proposed a three foot setback, we submitted the plans, you can have a quick look at those. we think the three feet is reasonable considering it is also the distance that the planning commission and the zoning administrator required to be reduced when they granted their approval so three feet from the planning commission and the zoning administrator, we think three feet is appropriate here. it really is the most we can do given the constraint floor area we're already dealing with. >> counselor, just to clarify,

the setback only occurs on a portion, a larger portion of the rear top floor? >> yes. it extends 13.5 feet from the property line was as far as we could go. if you see the floor plan, there's a bathroom on the far side of that floor that can't be moved. it's the -- the next bathroom's two floors down and we have the stairwell as well on that side and it just -- because of the design of that floor we couldn't move those but we feel like that provides a lot of relief, as it is it's a big cut in the top floor and it should give the light and air access that the neighboring properties were asking for. i will point out, that's three feet on that floor but as the

distance both horizontally and then vertically, that the adjacent properties are from this structure, the effect of that three foot setback is much greater for them. >> thank you. >> i feel that's reasonable. >> thank you. so we can hear from the appellants now. they're sharing their time or speaking one at a time? >> yes, you would have six minutes. >> three minutes each. >> hi again, michael dans, [inaudible] clay to*n street, for these homes that he shows are all uphill from us and

their particular home is to the south as i showed the photo before, it's blocking a lot of light even though my house is three homes down. the other apartment building he showed, that's to the no*frt of me it has no effect on my light because we live in a northern climate on the south so this issue -- so about the floor plan, let me just show here, let me project this, so this is the top floor that they're proposing, so this is all they're proposed to do is put this three foot deck in and here's the bathroom they say they can't move because i quote the next bathroom is two floors down, this is completely untrue two floors down is the garage, one floor down is the kitchen, living room and another bathroom so the house without this bathroom would already have three bathrooms