and do i ha good evening and welcome to the june 6th, 2018 meeting of the board of appeals. commissioner bobby wilson is absent tonight. to my left is deputy city attorney brad who will provide the board with any needed legal advice this evening. at the controls is the board's legal assistant gary. i'm julie rosenberg. scott sanchez, zoning administrator representing the planning department and planning commission. joseph duffy, senior building inspector representing the department of building

inspection. patrick, assistant director for the environmental health branch and the department of public health. and we have the acting principal inspector with environmental health branch of the department of public health. the board requests that you turn off or silence all phones and electronic devices so they will not disturb the proceedings. please carry on conversations in the hallway. the rules of presentation are as follows, appellants, permit holders and department respondents are given seven minutes for their case and seven minutes for rebuttals. members of the public who are not affiliated with the parties have up to three minutes each to address the board and no rebuttal. please speak into the microphone. you are asked but not required to submit a speaker card or business card to board staff when you come up to speak. speaker cards are available on the left side of the podium.

the board welcomes your comments and suggestions. if you have questions about request a re-hearing, the board rules or hearing schedules, please speak to board staff during a break or after the meeting or call or visit the board office. we are located at 1650 mission street room 304. this meeting is broadcast life on sfgovtv and will be re-broadcast on friday's at 4:00 p.m. on channel 26. now we will swear in or affirm all those who intend to testify. please note that any member of the public may speak without taking an oath pursuant to the rights under the sunshine ordnance. please stand, raise your right hand and say i do after you've been sworn in or affirmed. do you swear or affirm that the

testimony you're about to give will be the truth, the whole truth and nothing but the truth? thank you. commissioners, we have one housekeeping item. this is item number nine. this is appeal no. 17-184. the parties have requested a continuance to september 26, 2018. requesting that bpa numbers 2(016)081-1483 be suspended for the reason that the condominium constructed on the property in 2016 was not completed in accordance with the final approved plans permitted.

is there any public comment on that motion? seeing none on that motion. [roll call] that matter is moved to the 26th. we will now move on to item number one which is general public comment. this is the opportunity for anyone who would like to speak on a matter within the board's jurisdiction. but that is not on tonight's calendar. please take a speaker card and line up against the far wall if you plan on speaking. gary, can you turn the microphone on, please? on april 18th, there was a hearing of the pioneer monument. after the hearing was over, i

went out to the hallway to go to the bathroom and the previous speaker who spoke before me approached me. he said he was an investigator, a private investigator. and i said oh, really? show me some i.d. and he said he didn't need to. so i found that odd. then he approached me again and he said he was from the manhattan d.a.'s office. so i said okay, show me your shield and some i.d. and then he proceeded to berate

me. i did write a lengthy public comment for the re-hearing on the 13th of this month and i hope you read it and consider it. i filed two more applications and anne, once again, couldn't get it together. it's really very shocking. i don't want anything to do with them. thanks. thank you. any other general public comment? okay, we'll move on to item number two, commissioner comments and questions. i would like to welcome back our zoning administrator, scott sanchez, from his four month sabbatical. welcome back, sir. any public comment on item number two? seeing none, we'll move on to item number three. the minutes of the may 23rd,

2018 board meeting. we have a motion. any corrections or additions? i move to adopt. commissioner lazarus moves to adopt the minutes from may 23rd. on that motion? i'm sorry, really fast, any public comment on that motion? apologize. we have an aye from president fung. that motion passes and the minutes are adopted. we will now move on to item number four which is a jurisdiction request issued on march 8, 2018 by the san francisco department of building inspection. the appeal period ended on march 23rd, 2018 and the

jurisdiction request was filed at the board office on may 9, 2018. the permit holder is mariano guadalupe llc. for jurisdiction request, each party gets three minutes with no rebuttal. madam director, i noticed that the representative from the building department is not here yet. okay. so maybe we should wait till he arrives. i know that he does plan on being here. we will move on to item number five, thank you. and we will go back to item no.4. item no. 5 is appeal 18-030. abdalla joseph dba save mor mart versus the department of public health. appealing the denial on march

2nd, 2018 of a tobacco sales establishment permit pursuant to article 19h of the san francisco health code. the board voted 5-0 to continue this matter to allow time for the department of public health to provide information regarding their destiny cap analysis. each party will have seven minutes. we'll start with the department of public health. good evening. as you may recall, you've heard this case before. but let me quickly remind you of a few key facts on why the department of public health denied the sales permit in this instance. there are essentially three provisions in the san francisco health code article 19h which bar the department of public health from issuing a new permit for 4522 3rd street.

it should be noted that any one of these three would be sufficient to support a denial. the health code specifies that no new permit can be issued in a district where there are 45 or more establishments with tobacco sales permits. this address is located in district 10 which has about 57 existing tobacco permits. the health code also states that no new tobacco permit may be issued within 500 feet of another permitted tobacco retail store. the health code also prevents permits from locations which was not previously occupied by a permanent establishment since the location at 4522 3rd street was not a previously tobacco establishment, we will not be

able to issue a permit. the last hearing the board requested that the department of public health respond to a provision in the health code, article 19h, i have acting principal genene young to summarize the department's position on that. good evening, commissioners. i'm genene young. i submitted a couple of graphs to you to evaluate what happens with tobacco permits in the city. this is a downward trend that's happening.

section 19h in the health code provides that if the staff evaluates that we are not trending down, maybe the trend is flat lining somewhere or permits are going up, the department has the ability to make recommendations to the board of supervisors. this graph was very busy looking. but what it actually shows, the number of permits on a quarterly basis.

i also provided a graph of numbers. and i simplified that for tonight. what this final graph is showing is before density, the set of permits by district, that was taken in the quarter before june 2014. and then i just selected the first year after density. the first quarter was april. the report was april 2015. and then april 2017. and then our most recent quarter. and what this is showing is as permits get below the 45 cap, right now we have two districts. districts 4 and 7. that's in the area that we can issue new tobacco permit that is meet all of the density criteria. and if you have any questions about the assessment that we do on a quarterly basis, i'll be glad to answer any questions. i would like to introduce larry from the office of economic

workforce development. we'd also like to share with the board what work that the city is doing to support our businesses. good evening, commissioners. i'm the bayview project mana r manager. the save mor store will get a full redesign from our program. if you guys are unfamiliar with our program, what we do is we do conversions for corner store markets and help them provide healthier products. save mor was selected because it's the ideal store for the 3rd street corridor and all the work that they do. their new store is an ideal location. and historically, each business

owner who's been adapted into the healthy retail program sees an increase in revenue because of the new products for the residents in their area. normally, we see a 5-10% increase in revenue for each and every retailer who becomes a part of our program. i'm here for any additional program -- questions for our program and how it relates to save mor. in the document we received, it lays out a number of bullet points of the assistance that's provided. is that guaranteed, is that kind of the standard, if you will, contract with these retailers that enter healthy sf? yes, on average, that is what we've been seeing across the board. we collect the pos data on a quarterly basis from each and every participant. i'm sorry, i wasn't clear. where it talks about the three years of technical assistance,

new equipment, marketing campaigns, etc. is that sort of the standard program? that is the standard. so that's essentially guaranteed once you enter the program? yes, we do have lower tiers, depending on the store. but all tier one stores, that's the standard. okay, thank you. thanks. regarding tier one, is there a finite number as far as what participation level the city will be in? currently right now, it's different for each and every store. each and every store needs a different level of equipment and construction and marketing. but right now, save mor is at 35,000 for the city investment. for the re-design community engagement, consultants and marketing material.

are you finished with your presentation? i have a question for you. can you put the last chart up, which was just a numerical analysis. the summary? yes. i think you indicated the number is the same for every district? the density cap is at 45 for every district, yes. so it was never prorated between the numbers that are currently in each district? so, when they were first k a lotting at this, it was really driven by the community group youth leadership. part of their research, they looked at the number of tobacco permits at the time. it was almost 1,000, when they were doing their research.

and through discussions with community groups and with board members, they came up with 50% reduction in the city. they also considered one of the districts that had the lowest numbers of tobacco permits at that time was about 35, i believe. i have to look at the original report. and so they selected 45 per district based on information and data and collection and what was happening with the tobacco tpermits at that time. is there then also a correlation between the total number of districts roughly equivalent to what the previous count was minus the proposed reduction. by the time we reach the cap, we'll be at 495 permits in all districts. that will be the total number

of permits. we are essentially reducing our number of tobacco permits by half. last question is is there any correlation between the pricing for those products, which is more than double than the previous legislation? and therefore sales are less because the pricing mechanism. unfortunately, i won't be able to answer any questions about the pricing out there. i don't think -- i haven't done any research myself and we will probably need to get in groups that maybe have been doing research and looking at pricing issues. i can say that the state of california -- the cost of tobacco has gone up. the state of california board equalization license is now 265 annual fee a year, which did not happen in 2014. the state of california passed

a $2 tax on each pack. does anyone have any other questions? thank you, sir. thank you. we will now hear from jeremy paul, agent for the appellant. good evening, board members. jeremy paul on behalf of save mor market and the joseph family. i'd first like to thank the more than 50 different individuals from the neighborhood who have come to the various hearings before the

planning commission and this board in support of the save mor market and hoping that they would succeed because they are such an important community member, such an important glue that holds this part of the view intact. but tonight's the dubs, go dubs. a lot of people treat this like a religion, so they can't be here tonight to express their support. i'm sure you'll keep their thoughts and prayers in mind as you proceed with your decision tonight. we have several things to consider about what's happening to save mor. they did lose their lease and there is a provision in 19h for relocation that is required if there is a seismic upgrade

being proposed. the application is on hold currently with the department of building inspection for that conversion of use. in the past, change of use like this has required seismic upgrade. on that basis, it could permit the relocation of the permit 45 feet up the block to 4522.

the ordnance was adopted by the board of supervisors allowing a business to relocate. it took considerable resources for a very large and very expensive cigar store to relocate from one location to another. but the circumstances are very different for save mor. the community being served by save mor is a very different community. the economic resources are not available to this. just to

throw this up on the screen for the benefit of the conversation, you can see that this was approved unanimously at every reading at the board of supervisors. and the ordnance specifically states that it was intended to exempt the humidor from four prohibitions.

you've heard enough exceptional material about this store that would not make it a precedent for this board to act. i understand that you heard from another person seeking a tobacco license that was frustrated by 19h. you heard from a man during public comment. his circumstances were very different. the circumstances of the save mor market are becoming despera

desperate. i asked an accountant to give me information about their gross sales. april 2017, we're 97,40 $97,40. the healthy retail sf program is important and will help save mor move forward. but those numbers don't count, don't include the loss of an important source of foot traffic. those other stores didn't lose the tobacco in most cases. it wasn't a situation where they gave up something that

brought in the foot traffic. foot traffic is gonna be an enhancement to the healthy retail sf program in this situation. we need the tobacco to bring in the customers that they've always been a part of their community. we want them to come in. we want them to buy healthy groceries for their families. we want them to get to know the new store 40 feet up the block. thank you very much for your consideration. if you have any questions, the family is here and i'm here. have the store owners approached their district supervisor? yes, we have. unfortunately, the district supervisor has been approached by both the store owners and many members of the community. she's been involved in a very contentious political campaign over the past several months and has not been available to weigh in on this situation. consuming the exceptions,

is there a dollar amount for that seismic retro fit for the prior location, or is it just in genera just in general that the building permit application specifically indicates the change and use of the property. okay, thank you. okay, so we can move on to public comment. if you would like to speak on this matter, can you please line up against the wall and provide a speaker card. thank you. you can fill out the card afterwards, ma'am, if you want to go ahead and start. you have three minutes, thank you. honestly, i was here last time and i wanted to talk about the data that they actually presented to you guys in the response, in the letter, which was incorrect. and i don't know where they got

the data from, but if one part of the data is incorrect, you have to think that you have to question the rest of the data. on page four of the letter in response to you guys, i don't have it here. i didn't print it out. i'm sorry. it says that the number of stores from october until january 2018 remained the same. however, in district two, however they left in november 2017. so the number would have had to have gone down. so i question if they actually did the work. i honestly do not believe so, because they reiterated everything they said in the previous meeting that we had here in this letter. and that's pretty much all they did. i should also say, i requested this data. i requested a map. i couldn't get anything from the city, like anything. and basically they told me that

i would have to look it up and go to the next record. i don't know, it's this convoluted system of trying not to get you information. but how do you trust what the department of public health is saying if their data is incorrect just based on just the one store. you have to question the rest of it. if you asked them to do something, i mean this is just straight business. if they didn't do it correctly, how can you believe anything they say? they didn't do their due diligence. therefore, i feel like you have to allow this store to go on. it's really for the life blood of the community, really. i understand where the healthy san francisco and everything is coming from. but honestly, i don't see how that is gonna bring that much foot traffic. we know that they have not had grocery stores, large ones.

quite honestly, that will fill a small gap. but it won't conquer what really needs to happen in the neighborhood. and by shuddering this store, it's really not gonna help. thank you very much. thank you. excuse me, i got a question. in inquiring and trying to get information, which department did you speak with? i talked to her. i went online and the person that did her job previously is the person that's listed as the person on her job, right? so i had to do quite a bit of searching. she said she was gonna send me a link to next record. it's the san francisco system. maybe they will be able to tell you, but obviously not. [laughter] but i never got the link. i had to actually look it all up on the system. i put in the request online. i've never even gotten a response. don't worry, i'll ask that question for the department. thank you. thank you. you can come forward.

hi, my name is mary armstrong. native san franciscan. i am a native bayview district resident also, born and raised. known the joseph family for 40 years. in my trials of my life, i have lost two husbands within three years. and i've lived across from the joseph store that i met them at. and i had a 2-year-old daughter and no job. i worked with the joseph's mom, angie and with her husband joe, who's been really affected with his health by this. and i just want to let you guys know the type of people that

they are. they got me both my jobs. i hadn't worked in ten years. and i had four young daughters to take care of on my own after my two husbands had passed away. they got me a job just by looking through the newspaper for me. i worked at their store, i would do shopping trips with the sons to make sure they got the right ingredients to fill the store with. and then i also got a job with the san francisco giants and 49er's because they were looking out for me. all of my daughters are a part of this family, too. i also want you to know that the small business board about to award them a certificate and an award of legacy. they are the only store, expect

for one, that i don't even know if it's still owned by the original owner, that has been in this district on the 3rd street corridor this length of time. no troubles, no killings, no police activity. i trust my daughters to go there. i trust myself to go there where i will not go to other stores on the 3rd street corridor. and my biggest point about this today, after the election, let them come in on equal ground. seeing that proposition e has passed, let them come in with no menthol, no flavored cigars, no hookahs. let them start there like everyone else is gonna have to do now, thank you. thank you. next speaker, please.

good afternoon, commissioners. i was before you at our last meeting, so you know my stance. mary has said everything that i would say. this group should be given an award. what's happening right now, they have a beautiful new spot. but if you're hooked on cigarettes and you can't buy them at that store, you're gonna go to the -- all the rest of the stores on 3rd street can do that. they can sell cigarettes. so i'm gonna go there and i'm gonna buy my cigarettes and everything else i need. that's what's happening. so it's taking away from their business. i'm 85. i've been in bayview all these years. they have been -- if you are a

customer of save mor, you're family. that's who they are. in as much as they've had that business, they're being treated like a new business. that license should have been grandfathered over. and i spoke to the young lady at our last meeting about amending that, and she told me if we could get a supervisor to do that. everybody was running for something, so i was not able to get that taken care of. so i'm hoping you'll grandfather their old license to the new spot. thank you. next speaker, please. good evening, my name is andre. i've been a member of bayview for 22 years.

and there is no other store like this. i go to every other store, it doesn'tl thesame. this is bayview's store. every time i go in there, they ask me how i'm doing. they joke with me. i know that they're genuine and they care. every time i go to another store to buy a tobacco product, whatever, it just doesn't feel the same. i'd rather support this store. this store is in the community and they're doing everything right for the community. and like she said, it's not fair that they don't have their's. it feels like y'all trying to make a standard now. trying to criticize them, i'm not sure the word to use. but i feel like they should get theirs and go warriors. [laughter] thank you. yes, go warriors. how y'all doing, commissioners. my name is queen vanessa. i'm glad to be here again with you all on behalf of the save

mor store. so i'm a regular customer at save mor store and i'm also like family to save mor. they adopted me and my family during a hardship in 2001. and it's really, really heartbreaking to be inside the store and watch ten people, i count every time i'm there, come in for one thing. then they go oh, i forgot you guys don't got tobacco. i'm afraid, because they're not able to service the community with the necessity needs of the community, the store is gonna sink and go into a hardship. because on friday nights in the bayview, it's really, really getting dangerous out there. we just had two shootings, besides the one in april where there was a murder. there was just two shootings on oakdale, back to back.

i don't know if it's a gang, a rival going on out there right now. but the only safest store we have is this store. and on friday nights when people are trying to enjoy themselves, kick back, it's devastating and it's heartbreaking to me that i also had to only can buy alcohol out their store. then i also have to walk up to buy tobacco products. that's heartbreaking when you gotta do that to them. we need to support them. it's really devastating that we have to do this. and i wish you guys would find it in your heart, san francisco is a sanctuary city. keep in mind that they were just relocated not by choice, but by force. so they had no choice. so please keep in mind that they is about the safest store in our community. and if y'all really, really care about us as san francisco being a sanctuary city, y'all would put our safety first and everything else, as far as our

health, we can take care of ourselves when we can help our local stores, thank you. thank you. next speaker,plea. it's crazy on 3rd street.

this is the only store that stays open until 2:00. if you need anything after that, you have to go way to the gas station shell way down 3rd just to get some milk or anything like that. it's devastating seeing the store sink like the titanic. we've already seen it happen from the last couple months. if we just keep the tobacco, everything else will get to rolling. the healthy food, it will all come into sync. that's what would happen. if you could just take into consideration that part and grandfather over their license, i think it would be a better place on 3rd street for

everybody. thank you. thank you. next speaker, please. i do believe that you can't take the foundational capital away from a small business, especially an immigrant-owned business that is working within specific means. because then you won't be able to see them expand. you won't be able to see them grow. my family has been able to grow our corner market into also a deli. you also ordered lunch from

there the other day. thank you very much for supporting. the save mor market is a legacy business on 3rd street. there is no us versus them. we need to break that dichotomy. what's happening right now is instead of trying to transition an entire sector of the economy into something better, we're doing a peace meal sanction. and it's a domino effect and people are losing their businesses left and right because of the redundant restrictions on licenses. i believe that there's legal merits in regards to some of the fees levied on the tobacco licenses that have not had their nexus studies reviewed. save mor market is a perfect example of how these all collide and you lose anchor

businesses. 3rd street does not need another business misplaced. as mr. paul said, there is already precedence for these exceptions. i believe that as a whole, we need to look at this sector and all the fees, including laws like 19h and what just passed, proposition e. we need to look at how these are confounded and we need to talk about maybe buying back licenses programs like the medallions for people who aren't able to sell their businesses or other compensation for the loss of income during this time. because the city brokered a deal with them and now they're going back on it. miss, i have a question. has your organization proceeded with any other types of efforts

to modify this legislation? article 19h? yeah, we sat down and negotiated it at one point. there were no sub substantiative amendments that were made. the conversations that were had early on were never followed up on the outreach that was promised. it never happened and we had been trying to work with them to do that because it's fallen on us to explain this policy.

thank you. is there any other public comment on this item? seeing none, commissioners, this matter is submitted. is there any dollar amount for the structural or seismic work required for the property that they previously were at? are you aware of that project at all, mr. duffy? no, i'm not aware of that one, actually. i just looked up the permits and the plans for 4522. but what i'm hearing is it's going from a retail to some sort of educational use. that would be a change of use in occupancy and could be a b occupancy or an e occupancy. the code section has changed a

bit in the last couple years. the term complied with requirements of this code for such division or group of the occupancy as used in this section shall remain in compliance with the lateral force provisions of section 301.2. so section 301 and 329 are where they're telling you what to do structurally. i can read those sections as well. but i think the 10% of the

occupant load of the entire building of the structure. so, you know, just from listening to mr. paul, it might be a good idea for them to ask for a determination from technical services division on that. if the plans are submitted. but if it's going from an am occupancy to some sort of a more increased one, that increases it by more than 10%. commercial is what, 250 for occupants? and educational is 100? there's a factor now, 60 is one of them and then 20 for educational. 60 for retail. they've changed that in the code as well. it used to be easier, actually.

but they've made it a little bit more -- supposed to be easier, but i find it more complicated. factor is 60 for existing retail. and then a factor of 20 for an e occupancy. that would be 3-1. but without looking at the drawings and figuring out that out, you'd easily do it if the plans were here. it refers you then to minimal lateral force for existing buildings. that's what 301 is. then it gets very detailed. it's a whole analysis that they're doing. i'm sure it's gonna show

some type of seismic. if we see a change of occupancy at dbi, i've seen a lot of changes of occupancy, more increased occupant load. even the e-occupancies, they're very strict on those as well. thank you, senior inspector. when i started looking at this one, i was looking for chapter 34-b myself. they now call it the san francisco existing building code. they've cleaned it up a little bit and moved it to its own section. has this permit been issued?

i was looking at 4522 3rd street. i didn't research. i was looking at the other ones. can you look that up, by chance? i can. just for myself, for the panel, for the public, can we have clarification that if seismic is required in the change of use, then the license can be moved legally. i think that's where the department -- that wouldn't be us. i was gonna ask that question after we're done. so it's critical if the answer is seismic is required, then a license can be moved.

then it's really critical the laws are pretty clear in this case. if we can't get that clear, we're kind of forming a manifest in justice by making findings based on insufficient evidence. that's why my thought was mr. paul could approach dbi and ask for a written determination from that and get it from dbi, rather than me giving it here tonight. if those plans are with dbi, you're gonna know if the seismic is required on that. that could be done if there's a permit application z -- i

don't think anybody in this room wants to see them put out of business. i'm just reading out the section in the code. . i'd like to speak with a representative from dph. i'd be happy to.

she requested a map and information about the number of active permits that we have. and i basically told her that i would send her a link. it has a very well coordinated system. everything basically goes on a web base. it's very -- we love it because it really helps manage our record requests and provides a custodian that communicates with the requester and inform them of our progress or any challenges that we may have. especially since we don't have a clerk and i have a staff that's gone, so we have just me. so i told her i would send her the link and she sent me an

e-mail the same night. i spoke to her in the daytime and i responded around 8:00 with the actual link as well as the department of public health web page about our process and procedure. and i also notified the custodian records to enter the information so that the requester would not have to. the custodian record contacted me the very next monday and told me we had abouted ten days. i had no idea she wanted the information for this hearing. had i known that, i would have actually -- i did not. i would have provided her the same information i provided with this board.

we actually notified the applicant that they needed to get the information from the department of building inspection. because we could not determine, nor could they determine whether something qualify ed q under that section of the code. what is the process from there? then we'd have to reevaluate the decision.

we need to hear that in writing from dbi. they'd have to wait because when they pay the license fee, the permit and the license is billed from the tax collector's office. is it billed on demand or is there a quarterly or yearly? to be honest with you, the tax collector has changed their process. under this new process and new system, they're still working that out. i'm not quite sure how they're handling our billing, but the

bills are going out. if this goes forward and that work gets done, i don't want the tax collectors saying that we billed once a year and it was last week. no, they don't do that. we have businesses starting throughout the whole year. they don't do that. it's usually between 2-4 weeks. they've been really great. we have direct communication with the tax collector licensing office. thank you.

>> he took it upon mself to seek with the board of supervisors, and the supervisors exacted an ordinance and it was full of support. we did respond to part of the file. it is a letter from the department of public health. the department was not in support of the ordinance change analyst at the various reasons. the board of supervisors, you know, went ahead and voted unanimously for the ordinance. >> so it was fundamentally politically influenced that somebody of stature had with their local supervisor who decided to champion it, and in this case, a supervisor has been

busy doing other things, and has chosen not to champion it. that is the difference of that business getting their way, and this business not getting their way. is that fundamentally what it is? >> i can only answer -- >> is that an apt description of what happened? is that a supervisor took it upon themselves to champion a business means, and the supervisor, in this case, did not choose to champion it's because they were otherwise occupied or didn't choose, for no reason. just chose not to do it. is that fundamentally what happened? >> commissioner, i was not part of this conversation. i can only address the action i have taken. >> vice-president swig: was it supervisor peskin? >> yes, it was. >> vice-president swig: that is really good information for me. >> you are welcome. >> vice-president swig: so, the reason i bring this up, countless times