health department requirements and in terms of how often they actually check they have a rest room within the specified limits, i'm not sure. >> could you, as the commissioner honda said, i think we're raising the intensity of our scrutiny on these permits because we're just getting them further and further and there seems to be a lot of shall we say space with regard to an interpretation and enforcement. could you come back with an answer or bring someone with you from the health department that can verify how they enforce, review, that in fact that the red sticker that they give at the beginning is actually valid and is enforced during the period of the permit, please? >> can i ask if that was

discussed because i believe i was out when it was a presentation on the mobile foods. was that discussed at that time? >> no, it wasn't. we talked about mostly the fire oriented rather than -- that question was not answered. >> ok, i'll ask him. >> thank you. >> ok. so commissioners, this matter is submitted. >> we're not going to solve these problems tonight. clearly there's recognition by all of us having heard a number of these lately that there are some major issues and legislation. i would be very happy next week, if you wish, during comments and questions to have a discussion about what steps, if any, this board should try to take to get to a different place.

so having said that, we have a particular application in front of us. my personal inclination, because i did not hear any objections to two out of the three locations, would be to consider granting the permits for the two on market street and to deny or restrict the one on drumm street. >> we didn't talk about the other locations just in regards to the permit. that is before us. i feel that it is not an under served area and that the department issued the permit in error. >> are you saying that for all three sites? >> give them all one permit? >> we never discussed the

alternative sites. that was never discussed here. but as far as the permit that we did discuss -- >> are they three separate permits? or is it one permit? that's a problem. >> but the board could do a commissioner -- no one is here protesting the other two locations. >> exactly. >> maybe i can talk to the department in regards to the other locations, mr. cohen. was there outreach or anything, i mean, to be honest, i'm personally concerned about notification at this point so if we approve one of the other permits for the other locations, i mean are we going to be the dart board? >> every location has the same requirement for the radius. not just for --

>> i believe the public works hearing i believe and the one. oh. >> ok. >> thank you. >> that would be fine with what conditioning it to the other two and removing this one from. >> if you have a question on the procedure i will entertain that. >> please come to the -- >> about the other two locations, we basically just like to be just come and to stay there and it's actually not like a place so we can work find

there. >> it's one drumm street and 979 market street and 1169 market street. one is the emmy cente ep tee cef density and even though i think we have to question, in the future, and i appreciate commissioner's suggestion that we have this further discussion amongst ourselves next week, i would not have -- because there's less density at 797 market and 1169 market. i would feel comfortable even with my feelings of lack of filtration on behalf of d.p.w. to go along with her motion. >> i want to say, i think that

there's a difference between the general commentary on mobile food facilities which we heard a lot about tonight and some of us have been hearing for a number of years and the specifics of these locations. where i'm making a distinction is that there were specific comments and none on the other eyes and i feel like these other issues have been vetted overtime and that's not what is before us. i am happy to make to make a m- >> before we do that -- i move a slightly different opinion. this particular case is different than the other cases that we've heard in recent times and passed upon. if we're raising the issue of where does d.p.w. have discretion and what criteria are they using, we should ascertain

that first before we make the decision on this specific permit and potentially damage that permit holder. >> so you are suggesting continuing on further information. >> aim afraid so. >> i somewhat agree. >> what process are we going to use to get to a definition of underserved? >> what process are we going to develop in our comments and questions? >> i have not talked about that but that's not relevant right now. >> in terms of determining how do you get these answers. on what basis? because of the adjacent property and business owners are saying or are you basing it on the fact that the director and his hearing officers errorred. >> i'm basing it on the fact to me the appellant was focused on one particular part of this

permit. i guess the comments, one of the appellants had general comments about food trucks and mobile food facilities. what i am saying is that i believe that applicable i don't have an objection with that permit. >> you also stated that you were going to deny the third one which is the app epi center of s discussion and i wasn't ready to do that until we run and get some sort of idea of where the

d.p.w. director has discretion or no discretion. see i am not convinced he has any discretion. i don't think the supervisors intended that the director of d.p.w. has discretion. not only on under served but on congestion. which is the subject of the next one. >> do you want to continue this? >> i'm prepared to act like you say on the two that is not under any objections and continue the one without a definitive answer. >> if we can do it. >> they're one permit. >> >> let me try this. condition the permit, grant the appeal, allowing the issuance of the two market street permits and holding in advance the third site pending additional information on the location.

>> just for clarity, if it turns out he does not have discretion, wouldn't that impact even the ones that weren't opposed, possibly? >> because he has the standard line in every one of his letters. at the discretion of the directs o. >> in my view, it was no opposition to the other two so i'm ok with that. whether he has discretion or not my view would be he abuses discretion. this -- i'm sorry this is easy for me in terms of the -- it was error and abuse of discretion if he had the discretion. >> it could be anything. >> the area around -- you got a

sense of my energy on this subject. the area around one drumm street, thank you to that person who gave me the number 42 restaurants in the area, 42 restaurants in the area and if you are not right, you are pretty close. the area around 979 markets with approximates 6 street and market and taylor does not have the same density of 42 restaurants and there's probably some but there's not 42 and the issues are not quite as and at the 1169 market you don't have 41 restaurants and due have that density. which would complai explain thef folks coming out and protesting it. >> what's your point? >> my point is, i'm in support

of commissioner lazarus that we need to pay attention to that and break that apart and would support her. >> i'm going back to my original thought and we can vote it up or down. >> to grant the appeal and condition the permit on the issuance of the two permits on market street and the denial of the permit for drumm street. >> on what basis? >> on the basis that the permit to be denied does not fit the criteria for mobile food facilities or carts. >> that is not in an under served area? is that what you mean? >> ok. >> so we have a motion by commissioner lazarus that it be

revised to require the denial of the permit for the one drumm street location and the issuance of the permit for the two other market street locations and the denial of one drumm street is on the basis that it is not an underserved area. and does not fit the criteria for the mobile food truck legislation. so on that motion, president fung. >> my vote is on the procedural issue that is i'm going to vote no. >> commissioner honda. >> no. >> commissioner wilson. >> vice president swig. >> yes. >> ok.

that motion fails with only three votes. >> the only reason i do think that is a good motion is just i think that we should keep control of this particular case because it affects other cases going forward. that's why i'm supportive of more what frank was talking about. they did error and abuse so if we just grant the permit it goes on. by continuing it, we get, is that what you meant? >> i probably agreed to you and it's not under served and i don't think the fact we have vetted out this process appropriately. >> what would your suggestion be. >> wait a minute. >> if you agree that it is not under served, then what does it matter what the what does matter

is trying to get a little bit further clarity and this process process. when the commissioner says how about we discuss and she has ideas and there are other people and discuss that next week. what happens there for the case that is on next week. >> except the case that's -- except the case that is before us isn't -- it doesn't turn on whether or not it does not meet the criteria. >> except the term under served is not in the legislation. it's in the findings.

right. so on what basis then is the director and his hearing officers reviewing these why are they putting that into their letter and why then are they referring to both discretion and et cetera. >> i get that part. >> so i'm saying that there's no more comments and if we don't get clarity and it will get popping up again. >> no. my thought following up on about what commissioner swig was not that we're going to come up with a solution or proposed something to the department, but that we come up with parameters to send to the board of exercises or d.p.w. is to how this gets clarified going forward? >> that's fine.

i wasn't specifying. >> not this permit. >> i get that, ok. >> this is a long range proposition most likely to get some changes made. i mean they had major changes when they did away with like foods and it was the 75 feet from the existing restaurants. >> now it's 75 feet from another cart. >> it was actually more. >> ok, but i'm just saying i think what i like to talk about next week is what we think about is the potential ask of other bodies so we're not confronted with this week in and week out. >> there's a present -- presence on this. i don't know a year ago it could have been six or eight months ago i forget time. and there was an ambiguity with

yellow zones and high traffic areas and we denied, i believe that we denied a permit and at the same time, sought clarification from either d.p.w. or m.t.a. on that issue which related to park north high traffic areas, although we took action to deny the feel and deny a permit and we also achieved sending a message and receiving back a clarification on the process with regards to traffic. so i see a direct comparison here because we can find today and get them into business and

we can deny the appeal. also, we can ask the department for future cases. to get some clarification and establish a policy. we've done this before is the point. >> we could ask the department to come back and discuss what level of discretion they have. >> we can. can we kick it -- >> no except that -- i guess my objection is having it run a long time.

what do you mean? >> i know where it will go. it has to go to the board of supervisors. you are talking about that. there are other special interests in this game that has a vested interest in how this legislation works. i don't see that as problem solving. a discussion with the -- it could be the director or his representatives or his city attorney provide on what basis they are making these decisions. >> let me try my point one more time. and we just may agree to disagree but with respect to this particular case, because the review isn't over, right. whatever the discretion is doesn't necessarily impact our decision. >> i understand that logic.

>> all right. >> you know i have to hate punting unless it's football. >> it bothers me that there's no consistency and this poor permity will be out something that he probably desires. versus you know, what happens in either previous cases or the next case next week which also will not -- >> or the case right after to be honest. >> so what happens here is if we can't make an agreement -- >> let me finish. >> you call the roll, i am actually support your motion. >> i called the roll you need to make another motion. >> want to make the same motion. >> i'll speak if that's

appropriate. i'll remake the motion i made earlier. >> ok. >> we have another motion. from commissioner lazarus to grant a the peels and issue the to require the denial of the permit as to the one drumm street location and the issuance of the permit as to the two market street locations and the denial is based on the fact that one drumm street is not under served and on that motion, president fung -- >> no. >> commissioner honda. >> aye. >> commissioner wilson aye. >> >> aye. >> the motion carries with a vote of four. the one drumm street location has been denied but the other two areas are allowed. >> two minutes before we hear

the last case. >> we're going to take a short break and i appreciate your patients for the parties to the

>> underneath the 75-foot rule it also states that the director of the dpw while making the decision to approve or deny a permit can also consider not only the 75-foot rule but they can consider if the operation is

being operated by an existing food truck. what is it, five feet, 15 feet, 75 feet? i would say that 15 feet seems like exact same location as our truck is permitted at. if we don't have the flexibility we can't secure parking. parking is our main concern because it will affect our ability to continue operations. some of those main concerns go over to 400 california because there is three foot trucks permitted at the same location as well but it doesn't affect us

as much and if there is nobody here, i will not touch that. we come up with recommendations for action that are in the brief on page 11. my first recommendation is to remove 332 pine street from this permit and also for you to consider 400 california as well because of the same circumstances for the other food trucks that are there. if you don't feel that is just, another location at 250 pine that the dpw can considered okay for them to apply for as well or for them to relocate their food truck to. i walk this area and they serve sa salad. and sandwiches.

there is 15 within a one-block radius that serve salads and sandwiches. it is getting oversaturated. we are setting a dangerous precedent for this area and for the rest of the financial district. like i said the recommendation is to just revoke 332 pine street from the permit. [bell ringing] and i could answer fo questions for what we have identified. >> thank you. >> is the permit holder here? you have seven minutes. >> my name is lorenzo, and i

would definitely like to address some concerns about the whole parking situation. theri think we can work together to figure out what we can do about the parking issue. the issue on 332 pine street was the -- it was like the similar foods in the area. we always have a changing menu based off from everything and it's not always sandwiches and salads and we have other great things as well and the initial menu has changed some as well, so we definite don't have similar foods as the others. as far as evan's recommendations of relocating to 250 pine

street, i am not completely opposed to that if the board is willing to accept that without me having to go through further permitting and the whole 30-day and the whole appeals process over and over and over again. that is something that i would like to dive into should 332 pine street not go through for us. then he also mentioned the public safety and concern and oversaturation. i don't think it's super oversaturated. there is currently in that block just the one food truck and according to dpw there can be three on one block whether on

both sides or one side, so having the second one is way under the three-truck limit there. i will answer any questions if you have any. >> i do. >> okay. >> so understanding that well, first of all, just pointing out being on this board six years ago, it was just brick and mortar fighting food truck and food cart and now we have food trucks fighting food trucks. what an interesting predicament. how do you address the -- do you feel you are under served for salads and sandwiches on that job? >> i do. there i >> we are talking about brick and mortar as well. there is only one place on that block that serves sandwiches and salads? >> correct.

>> and then, well, i guess that's it for me for now. thank you. >> thank you. >> now we will hear from the department. >> my name is brent cohen representing public works, and i will present a history of this permit for permit 17 17mff-0181. we reviewed the determination

and found them to be in the public works code of 332 pine street located on the north side approximately thirty feet east of -- street operating on tuesdays and thursdays and the second location is 332 pine street operating on wednesdays, saturdays, and sundays, from 11:00 a.m. to 3:00 p.m. on november 14, 2017. 2017 -- during the 30-day notification period we received two comments and the public hearing was scheduled and held on january 1, 2018. there was one testimony in

opposition during the public courts hearing. following the hearing the director of public wor works conditionally approved the hearing. on may 22, 2018. indiscernible. this brings us here today. >> so this one really in my mind flies to, i mean, i guess the director has discretion on this particular deal, but you are putting two trucks within 15 feet and at that particular location parking is already challenging, so in my mind, and i'm not a food truck owner, but i am imagining that how are two

food trucks going to get in there when there is other vehicles there on that same spot. does that mean you guys are saying why don't you guys show up at 5:00 a.m. to fight this out? >> no. the code allows them to operate up to two parking spaces, so they can shift. also in the order section order number -- >> but do the parking spots overlap? >> no. from the frontage you can see they don't. the duplicate could overlap potentially. >> that is what i am saying. there is no such thing as reserved. they don't get to reserve these spots, right? >> right. >> if there is a vehicle in there and that goes into overlap, and in past cases we

had people come in here and i am surprised no one from the downtown district is here, and they are complaining there is no yellow zones already and you have just given them two more and then you overlapped them. >> well, i think the appellant's truck is in a metered parking but the proposers is in the yellow zone, correct. >> for me personally, i don't see how this is going to work. you are going to pit two operators kind of against each other at the director's discretion. >> when you looked at that section where in this case the director has the -- but if you look at the 75-feet portion and then it says or location, and i think the appellant showed that

and we had looked it up also, or msf, does that relate both to the brick and mortar and the mff? in othei was asking what their interpretation of that is. >> yeah, what is the department's interpretation? >> so the requirement of the code is that it has to be 75 feet from the brick and mortar and primary entrance of the brick and mortar and if the brick and mortar has front facing windows then 50 feet or another 75 feet from that. if they meet that criteria and then they go to a hearing because of a complaint, then this section the director after the hearing or from the hearing

the director may consider the proximity to food trucks within 75 feet in making the decision. if there is no complaint then the permit doesn't go to hearing and they would just be approved without any hearing. >> so that portion is only after a complaint? >> for the mobile food facility, yeah. section 104.88. >> also if you look in the brief on exhibit e, you know, i thought that you were not allowed to put a mobile food facility or food truck in front of trees or planters. i see three of four of these in front of where it is supposed to go. >> the clearance we use that to push carts. >> doesn't your book say all, sorry to interrupt?

>> it does. >> all means all. all doesn't mean foot carts. >> right. >> so until you clear it up, it still says all, right? >> in practice we have associated -- >> you should clear up your writing. >> yeah. >> right now how could you issue it because it says that you can't be in front of a free and from where you want this to be according to your map, there is a big truck there, but i see street trees here. >> those are potted. >> furniture, so that means they can't be in front of them. >> you could consider parking meters furniture as well. >> specifically that is furniture, though, right. your language says that it can't be in front of street furniture, so how did you issue the permit? >> it says and it lists a number of things that would be included

as street furniture. >> would a tree in a plant be street furniture. >> just from past. exhibit h is probably a better example. if you look at exhibit h there is three big trees in pots, and i know from past hearings your language says that it can't be in front of any of this type of stuff. >> the trees are typically located between parking spaces and just like passenger loading and things like that because of the gap between the trees you would be able to operate. >> that is not what your language of your pi permit says. if the law saws 55 just because everyone does 58 that is not the law.

if the law say says 55 then it's 55. does your law in your book allow you to issue permits in front of street trees. please don't split with me. i'm trying to be nice right now. in your code book when it issues it, what does it actually say. does it say that you can put a food truck in front of a tree? >> it says six feet from the tree furniture. >> that doesn't look like it's six feet from the street furniture. that means your permit was issued in error. in error. that's what we have to do on a regular basis to change it to something that better reflects. when they wrote this legislation they wrote it in the books. >> i think what we are talking

about are the rules that dpw ordered pursuant to orders. their interpretation of that is the street furniture applied to the push cart permit. >> but their thing says all. >> where are we looking at? >> section 3. >> could you put it on overhead? >> it's highlighted in yellow. >> right before it, it says seven feet from a fire hydrant and they are also included in number three as well, so that is the reason that we do it. >> i mean i remember looking at this earlier, so according to their rules and regulations they shouldn't issue a permit unless the director has the ability to

override that and it's his or her discretion. >> fire hydrant is listed twice. >> all msf's right? >> looks like this is a drafting error. >> when it says shall and must it's not may. >> at this point several of the permits have been issued in error unless you amend your rules, i mean, i see your trees here where you want this to be parked so at this point the permit has been issued in error. >> before you make a ruling that would take that position, it could apply to pretty much every food truck permit issued in the

city because they are all within six feet of probably parking meters. >> the parking meters we accept and they should put in an exception but we are talking street furniture here. >> you can't just take out parking meters. >> includes parking meters in this. >> no question they should amend this rule for sure. >> i think they proposed a reasonable reading of that becauseth on a drafting error because they interpreted it in the past. they interpret the section that applies the street furniture to only apply to push carts. >> where does it say that? >> it applie?

>> a court would look at the department that has the discretion to enforce the ordinance, they would look at the interpretation as their own rules as carrying some weight. >> i agree, they should clear that up. if fact that it says it can't be in front of a parking meter is pretty critical. >> there was an issue of 250 pine street as being acceptable as far as the permit holder was concerned with to added proviso that they don't have to go back. i don't imagine that we can just change the location, can we? >> depend on where it sits in the radius.

>> i think that there would be some risk that the radius wouldn't apply to the other location. >> if they came back and asked for 250 pine, what is the amount of time it takes them to clear a permit? >> so they have 30 day notice and then assuming no objections, they would have 90 days to get their business license and everything else. if there is objection it goes to hearing and back. it came back here. >> okay, so we are moving on. i don't see members of the public. >> anyone from the public want to speak. [laughter] >> we will move on to rebuttal. th >> speak into the mic. sir.

>> that is a list of restaurants i located within one block, all sandwich and salad restaurants. >> maybe you should get a job at -- never mine, sorry didn't mean to interrupt, sir. >> if you look at exhibit e you can see what a congested day would look like. there is always delivery trucks, general parking, contractors. there is not going to be a way for us to figure out how to squeeze both of our food trucks in there. it is going to become a first-come, first-served basis. we have been there six years and we should have some protection. the ordinance needs some revision obviously, but when you look at an existing location of

mff already approved, i would argue strongly that we are already existing there and we deserve some sort of protection. we are only about 15 feet away from them. we will not be able to operate at this location on the same days. there will be days they can't operate on the same days. if they move up too far they will get close to another restaurant that's 75 feet. there is no ability to move back or forth. i like to show you for your own good. i am only appealing the pine street location, this is a list of all over locations within a 30-food radius. this is all within about 25 feet have four permits approved and two of them are overlapping.

on once there is one at 401 california and one approved at 430 california, which is in front of the 400 california foot truck that's going to be approved as well. we are going to start precedence that everybody can start to apply and this is off the grid. even off the grid shouldn't be down in this area. [bell ringing] >> you still have 30 second sir. >> it goes back to public safety and our lines get extremely long. who is really in control when our lines intersect and they cross paths and now there is no clear path to travel for pedestrians to walk by. am i in control of that or is the other operator. this is not a market.

>> you can finish that. >> the department said it was yours and his responsibility. >> right but nothing that says whose responsibility is it at the end of the day. >> thank you. you have three minutes, please. >> so i have here an exhibit f talking about intersecting lines. his goes down to right over here however when we are going to park over here, ours is going to go to the left, so that will be a huge fixture and solve that then and there. when he pulled up the date as well, i noticed that only a couple are on the same wednesday

of 400 california street. i think it is good on wednesday as well as -- intersecting lines i think we have that reserved and solved out same with 400 california street. i don't think there is any argue. about that right there. >> so what is your proposal that you two sort of work it out and share the space? >> correct. i spoke with evan before he went to the initial hearing that we should figure this out and work together and that way we can both operate the same days, tuesdays and thursdays on 332 pine street. >> is that as a tract calmatter

practical given the parking constraints? >> right. i definitely think it's something that we can fix and work on and join forces together on. >> you know i'm making a difference between being wishful and practical. as a practical matter with this parking structure, is that something that's practical or something that you would like to have happen? >> i would say both. >> to follow up, so there is enough for one truck and they are going to say it's okay evan, i'm beginning to drive home now. >> i would try to figure out a way that we can both operate. >> the appellant put on the overhead a list of all the brick

and mortar places within that truck and you just told me there is only one place. there is one place or 30 places? >> based on what i was able to see the brick and mortar that is down the street is one of the locations. >> thank you, sir. >> thank you mr. cohen. do you have anything to add? >> i did a google search for restaurants that is the location with a couple nearby. that is what i got from google. >> sorry, do you mind putting up

your phone on the overhead. >> when you showed that, what is your point? >> just saying there is that many. >> can't hear you. >> from a google search that i had, there aren't that many within the immediate area of a block. >> pine street? >> yeah, that is the location. google is showing just a couple around a one-block radius. it could be more. >> overhead please. that is quite a substantial list right there. > what is the radius? >> one block down to bush, up

to montgomery to mind to california. within a one block radius. >> that is quite substantial. mr. cohen. i know you googled that. >> when you zoom in and out it doesn't always give you everything. >> do you have a list? >> they give you a list here. it doesn't have a radius for these restaurants. maybe i shoulden hav shouldn't have presented them. >> you saw how passionate was

the last one, and when it comes before at least me, i would like to see a little more detail in deciding someone else's fate because to me personally, i don't see how the director could approve this permit looking at the amount of restaurants and i'm just talking about the saturation and overserve for the exact same menu. we are not even getting into the fact of whatever they pay for rent. this is not an under served neighborhood, so how does the director make the determination to put one food truck next to another around 30 businesses and it going to be okay? >> i will say what i said to

commissioner swig and he does not know the answer. >> nothing personal just expressing my views. >> commissioners, this matter is submitted. >> this case more than ever, i mean we did approve the last one on the fact that, i mean, this is a complete different case, but i think if you look at how this permit was issued whether the director has discretion or not, i think that this is not an underserved market plus the challenge with the parking. >> they are saying issues of congestion. >> thank you for correcting my thought mr. fung. >> pine and california? >> yes. >> there is