to the property. >> the trees are in contact with the wall. recommendation owners to trim the trees away from the wall to prevent excessive moisture build up on the right wall. the excessive moisture suconducive to fungus and damages.

we don't want to take responsibility for the new owners. last point they don't want to prove anything they are not responsible for. if they are a new plantation they cannot maintain it. the previous owner tried the best to maintain. when the cleaning sign was hit. they requested a new one. metal fence damaged. they requested the city to fix it. they pulled weeds and maintained a better attraction on that side. >> thank you, ma'am. >> who is the owner? >> sorry, i didn't hear. >> who owns the property. >> mr. ing. >> thank you. >> we will now hear from the appellant, mr. lanzi. >> overhead, please.

>> thank you, commissioners. this is what the trees looked like after they were illegally topped. as we discussed at the last meeting. this was not an unintentional act. there is no way someone could do this to the tree. there is no way that is the out come anyone who cares about trees would result in. the other thing, i totally agree this is not an ideal place for a tree to be planted. over 67% of the trees have been removed there. aren't ideal places to plant. when the development was built it was built to specifications of 1978 which allowed the trees. they are no longer suitable. we can't say the neighborhood should not have trees left because of the rules that now exist. as i asked the commission last time, i repeat the request that the condition be added to the

permit, that replacement trees of suitable nature be planted at the same location. >> thank you. any public comment on this item? commissioners, this matter is submitted. >> i had a question for the department, mr. buck. >> me, too, after you. >> chris, using the previous owners. the liability should change to the new ownership. why is the previous owners having to deal with this right now? >> i am not familiar with the current ownership status. when weshired the fine, it was prior to prop e where the city started maintaining the trees july 1, 2017, last summer. our code in that proposition

said property owners were responsible for conditions prior to that date so. >> i understand. the question is since the property has transferred to a new owner, i would imagine that any fines would also transfer. you couldn't go back to the previous owner. no reason why the department is dealing with the previous owner of the property. >> i wasn't familiar with that until the last week or so. generally my thought is if the previous owner doesn't disclose the outstanding issues associated with the property, one is the new owner would have a cause of action against the previous owner for not disclosing. my since is that they are trying to guide this through to conclusion. >> perhaps. >> your question along the same lines to the city attorney. who has responsibility now?

with this directive? >> who has the liability on this? >> it would be the new property owner. if the new property owner wasn't fully disclosed in the transaction, then it would go back. >> that is between the new owner and old owner. >> the city shouldn't deal with the previous owner. all negotiations as we hear the concern was the amount of time this took and the appellant brought forth a very compelling statement of timelines this has taken a long period of time to happen. now as we get to later stage, now we find out the city is dealing with someone that has no control or say over the property. we can't instruct the previous owner to do something to the property. that is concerning as far as i

look at it. >> when i pulled up the property information what is available to the map viewing software. it has lydia chan's name. i do check those from time to time. >> at one point, i would imagine that the previous owner would say i don't own this, why are you calling me? now it is hard for us to enforce something on someone that is not here. that doesn't own the property. >> i understand. we have plenty of folks we never hear from. we send registered mail letter after letter. short of yanking someone out of the home which we will not do. this is someone clearly involved with the current property trying to move forward. >> even if you negotiate they don't have the ability to negotiate. they are not the owner of

property. if they agreed to plant or not plant. it has nothing to do with them. if i want to work on your car and i say paint chris' car red, you are not going to be happy with that. that is how i look at it. >> i think we asked the question of council and give them a chance to speak. are we dealing with the right people? is this valid in any way, shape or form. thal appellant is appealing against not the right person. >> it is not clear to me whether the woman here today does not represent the current owner. do you represent the current owner of the building? >> speak into the microphone, please. >> i represent dan they and

stella who were fined for this. like you mentioned. at the time when they were fined they were still the owners so this paid the bills, they followed what was requested to remove the tree. at the time we posted the sign, they were still the owners. >> do you have any authority to enter agreement on behalf of the current property owner? >> i do in a sense. but i am not part of the case, i should say that. i agree if there is any future planting, you should take it up with the new owners. >> can you clarify for me. this is like concentration. we are playing a game here. let's get to yes, no, black and

white answers. the person who was fined is no longer the owner, true? >> true. >> when did ownership change. >> in may 2017. >> so mr. buck, the way to find the person to whom you should be chats is probably doing a title report and then verifying through the assessor's office, i would guess. i would find any discussion tonight, i think, we are dealing with air until we, in fact, find the rightful owner, and, therefore, the rightful owner of the space occupied by the trees so we can move forward. is that a fair assessment? >> that would be the safer course, yes. which would lead to another

continuance. >> not necessarily. chris, you have the authority to reissue notices from buf related to the specific property. what has been appealed is your previous authorization for removal of two trees which has already been done. >> the trees have not yet been removed. >> they have not? >> no. one thing we can do is issue the permit. if, in fact, the current owner is not who submitted the removal application, that is a potential challenge for us. we wouldn't want a permit to somebody not legally able to take that action. that is new information as of tonight.

when properties change hands, we aren't always able to go after the new owner. i would have to check in with how we would handle that. would we direct the new current owner to remove the trees or does public works have to -- are we advised we can't do that we need to pursue removal of the trees on our own? those are questions i would want to ask my own team. >> you want a continuance? >> yes, probably want a verification on that. >> it looks like we may go in that direction and you will have more time, i believe one you have the discussions that we had last week was the affirmation it is going to be hard to find a tree to go in such a small space, and that your suggestion was the planting of appropriate

vegetation, which may be a bush type item present elsewhere in the neighborhood. can you ponder that and make some discussion on that when you return as an option for us to go? >> yes, we will definitely pursue that booth with, you know appellant and respondent. i would like to get, you know, what is challenging for public works, this is not our bread and butter tree planting site. removal of the trees with replacement trees public works can enforce in the future. talking with lydia about the guidelines around planting trees in narrow spaces. where are the guidelines, show me the restrictions. that is where the 90-degree parking issue came up.

to some degree my wish is for the current property owner to plant something appropriate for that space. that doesn't necessarily commit public works to a really long lengthy issue for us to be out there policing for a long time. that would be the ideal. if we continue to verify ownership and what public works can do, whether we believe we could issue the permit or whether we need someone to start that over or does public works need to remove the trees to avoid the el issues? those are what we will consider. it is getting the parties together to see what we can agree to. if current ownership is willing to say, yes, we will get something back there. i would love that to do voluntarily. >> it seems like the young woman

behind you is very familiar with the situation and could guide you to the person to speak with. if not you will find out with the title search or going through the assessor's office to get there anyway. the answer may be sitting right behind you to make that path a little smoother and be able to have a conversation appropriately. >> we will work on that process. >> i have another question for ms. chen. the property was sold over a year ago. you have been working with mr. buck and your parents since then. why did this come up the property changed hands they should peak with someone else? >> i mentioned a couple times i was not at the hearing the last time to clarify with you guys. >> how much time do they need, chris?

>> we should just require a couple weeks of additional time to check in with assessor and recorder's office and city attorney's office related to property ownership and our application. i check understand the last week ownership, the assessor and rye corder we work -- recorder we work off the mapping database. there are times when it has taken awhile to update. >> our schedule doesn't look good until january. >> that's correct. i would prefer january 23rd. >> that is fine. >> i hate to see the trees there that long. >> it is okay. i was just going to say that

understanding development and this is not the first tree case before us in that terrace and because of the sidewalks it no longer is applicable to install new trees to. the previous owners, i would negotiate with the current owners to get out there so that when you come before the body again we are able to make a decision. >> january 9th, it won't take too long. >> does the schedule affect ms ms. chanand mr. lanzi? >> the testimony is over, ma'am. >> will we need to new property owners to request a permit? the permit owner is for somebody

who no longer has authority over the property? >> it will defend if they consent to being part of this proceeding or not. >> do we have a motion? >> motion to continue to januar. >> a motion to continue to january 9th. (roll call). >> that motion carries. we will see you on january 9th. we are moving on to item number 6. this is appeel number 18-120. yahya aldabyani doing business as 7-eleven health versus department of public health. appealing the 7 day suspension of the retail tobacco products

to persons ages 18, 19 our 20 observed and recorded on the notice of violation dated may 25 and the june 21 environmental health notice of initial determination. case smk18-01. permit t-64960. we will hear from the appellant first. you have seven minutes, sir. >> good evening. when i hire new employee, i make sure. first of all, i really appreciate what the department of public health is doing because i am concerned, too. i don't want to sell tobacco products to anyone actually, but i have to have it for the business.

i don't want my kids addicted because of easy access. that is why i make sure before an employee goes behind the counter to serve the public that they get extensive training on how dangerous is the toe back could products and -- tobacco products and how the smokers get addicted before they get to the age of 18. how many people die he praually because of smoking? >> the training covered a lot. what their responsibilities are, and it is not only because of law but because i am concerned, too. i trained them before they start working. i retrain them every six months,

and i am almost paranoid. every month i send someone to check. they never pay it. now, if i have someone to mop the floor and they are not happy about it, they are able to destroy my business. to shut it down. why? because they are not happy about it, about what i told them to do. i do not know. if they use some circumstance, but i do train the people. i understand how dangerous the toe back could is, and i never

neglected my responsibilities. that is all i would like you to know. thank you. >> thank you, sir. we will hear from the department of public health. >> good evening, commissioners. >> we have a new team from the department of health. >> i am deputy city attorney valerie lopez appearing on behalf of the department of public health. mr. yahya aldabyani seek to appeal the seven day suspension as a result of selling to be could to a person under the age of 21. it is a violation of not only state law because it is a misdemeanor. it violates article 19h.

this authorizes is director to discipline. to date mr. yahya aldabyani has not disputed the fact his establishment engaged in the presented to about could sale. in march of 2018 he was cited for selling to -- tobacco to an underaged customer. they sited the employee. you will hear testimony from the department's inspector who inspected mr. yawn's establishment as a result of the complaint they sold to a person underage. current law authorizes the department's director to suspend a permit up to 90 days for first time violation. the department has recognized that such suspension may cause financial hardship.

as a result promulgated rules and regulations automatically bringing down a 90 day suspension for first time violator to 25 days. there are additional measures to allow them to further reduce the 25 day suspension to practically zero days if they engage in mitigation measures. you will hear from mr. prado who will talk about the measures mr. mr. yahya aldabyani agreed to bring the suspension to seven days. now. mr. yahya aldabyani is seeking to avoid a suspension. allowing him to avoid a suspension brings unfair business advantages to other

establishments that currently follow the laws. the department seeks to have the director's order of september 5, 2018 upheld because it ask affirming the seven day suspension. with that the department calls officer mackie. >> good ev evening. i have been employed for san francisco police department for four and-a-half years. since 2017 i am with the abc unit with migh minor de coy. prior to the operation our decoys produce a valid california id. they are to tell their real age.

on march 7, 2018, for this incident i participate understand the decoy operation at 4850 geary boulevard in the city. i was operating as close cover officer where the close cover officer it is my duty to protect the decoy and witness the interaction to see if there is any violation of to about could being sold to the minor. he was 20 days old. prior to that i was verifying the average by checking the california id and providing the marked city funds for the operation we are going to use. when he entered the 7-eleven store he engaged the cashier.

she had a conversation. i noticed the clerk reach behind the register, a green box hande to the decoy. there was more conversation. i saw the decoy provide the marked city funds and change was returned back. he walked out. i intercepted. he tells me what went on. i take the change from him, the newport cigarettes. i go back in and introduce myself as a police officer to the clerk and let him know he was in violation of selling tobacco. after which point i explain why he is sited and the clerk understood and agreed to sign the citation. at that point he was cited for being in violation. that is where we are at now.

>> thank you. you have a minute and 20 seconds left. >> the department calls the inspector prado. >> good evening, commissioners. i am with the retail and smoking program with the environmental health branch. when i was preparing on may 25th. a week before i e-mailed mr. yahya aldabyani the compliance agreement and the guidelines for reduction in the days for the suspension. then i followed up with a phone call and asked if he had questions, if he received the e-mail. i wanted to make sure he was prepared for the inspection. i wanted to focus that on my

inspection, i went and did the inspection, and the entire family was there present. i was surprised that they were there. they were interested and motivated, and in implementing the strategies. the owner decided not to implement all three strategies. it was just two of the three that he implemented. he could have reduced his suspension to zero days. >> your time is up. i have questions. >> sure. >> in the past we have had quite a few tobacco suspension was 25

to 60 recommendation days of suspension. what are the guidelines to reduce from 25 to 7 and 7 to 0? >> with those with the permit? >> with original suspension was 25 days, now it is 7 because you gave him guidelines. >> he implemented two three strategy to reduce from 25 to seven days. >> any prior violations at this location? >> no. not for sales top under damage. >> i don't think you answered fully the question. what were the strategies that would have? >> four strategies available? >> what are the strategy to take this from seven to zero? what did he refuse?

>> if he put an opaque cover so you can see the tobacco, that would give him the days off to make it to zero days. he decided to do two out of the three so he had seven days. he could have gotten from 25 day to zero. we know 90 days is a hardship for the operators so we have implemented the rules and regulations. taking into account the community stakeholders, regulated community. we listened to the board of appeals the suspensions of 90, 180 days and a year is too much. we implemented the pilot project so it would be fair, equitable transparent and clear. >> is it a closed issue or is

that strategy up for acceptance by the appellant at this point? >> absolutely if it is fine with my supervisor, it would be fine with me. >> when were the new measures to reduce implemented? >> i gave the operator a week before about the compliance agreement. then while i was i gave him another two weeks to decide and to implement the strategies. when i came back two and-a-half weeks later for the follow up inspection, june 13th. he had implemented one of the strategies, the educational part. he was also wants to do the

tobacco advertisement removal which he did on the spot. he removed the tobacco adverti advertisements and chose to keep the tobacco products in full display of the customers. >> the reason i asked the question is because and as commissioner honda mentioned. we used to have a lot of these on a weekly basis. we haven't seen it for a long time. perhaps the guidelines are having some effect, and the primary question we used to ask and we never could get a good answer to was the creation of the nexus between the penalty and the infraction versus what other infractions in dealing with underage purchase were.

as an example, abc first infraction is $200. >> what? >> abc. you sell liquor -- sell the liquor to a minor first infraction is $200. we could never establish the nexus between the penalty done by the department with individual cases. >> which looks to me you bridged that gap as far as i am concerned. >> we tried really hard to listen to the community and the stakeholders and board of appeals. i plead you to uphold di to up e susspecks in this case. >> mr. yahya aldabyani you have three minutes to address the

board. >> i see in the case that it is my lively hood is in danger because of this isolated incident that never happened before and will never happen again, and i am under your mercy. thank you. >> a question to make it clear. you made a conscious trade between you were given the option to have no penalty whatsoever if you would put up the opaque shield over the cigarettes or take a seven day suspension. you reviewed to put up the

opaque shield and accepted the seven day penalty in lieu of the opportunity to do otherwise. i just want to ask. were you clear on that option? >> no. >> so if given the opportunity to you do it again and put up an opaque cover over your cigarettes. that is why i asked the question to the health department. is it still open? given the opportunity to put a shield in front of the cigarettes or take the seven day penalty are you open to putting up the opaque shield over the cigarettes? >> on the cigarettes. it is like placing a restriction on me. >> that is a yes or no question. are you willing to do that for the seven day trade or are you

not willing to do it? >> no. >> okay. ms. lopez. three minutes. >> i want to touch on the main argument. mr. yahya aldabyani you argued it would cause great financial danger. he had options available to him, and this chart here is attached as exhibit d to inspector pra ado's desk coloration. i highlighted the suspension the appilllant faced in this case. given he trained employees and decided to remove advertisement and lastly his clerk asked for identification before he engage understand the prohibited sale of tobacco. all of that brought it down to

seven days. i will highlight for the board that he refused to cover the tobacco products with opaque covering. he is left with a seven day suspension. we ask the court of appeal uphold the director's hearing affirming the seven day suspension. thank you. >> thank you. this matter is submitted. >> if we don't as this board if we don't uphold with full recognition this is painful for the small business operator and if this was an abc case where somebody serves booze over the counter to a kid, it is the law. it is the way it stands. this board is particularly compassionate on how we look at these things.

but if we take exception to what is clearly the law especially when the option to take that suspension pozero was waived and i confirmed that. if we say no suspension because he is a nice guy and small business operator and he deserves our compassion, then i feel we create an exception. if we create an exception. we will be asked for an exception from everybody else, we under mine the health department, under mind sfpd and that is dangerous territory. i am very sorry for the small business owner. we have to be consistent and support the law. >> as president fungistatted we

had many, many cases. it was often we would have a tobacco case every week. the normal suspension was 90 to 180 days. as vice president swig said we are very sensitive to the needs of small businesses in san francisco. the department has brought in a 25 day suspension and given options to bring it down to zero. that is very, very fair. i would support -- deny the appeal and support the department on this. >> i agree,y. >> is there a motion? >> a motion to deny the appeal and that the penalty was implemented appropriately. >> we have a motion from vice president swig to deny the appeal and uphold the seven day suspension of the permit on the

basis it was properly imposed. on that motion. (roll call). >> that motion carries and the suspension is imposed. we are going to. >> good evening. welcome back to the november 7, 2018 meeting of the board of appeals. we are on to item 7. this is appeel 18-122. potrero launch affordable versus department of public health. 2235 third street. suspension of the swimming pool spa permit to operate for failure to maintain maintenance records and logs and maintain adequate disinfectant and maintain ph levels for the spa

in violation of the san francisco health code article 15. this is permit c-18088. we will hear first from the appellant. >> good evening. my name is jay hundred. i am representing the dogpatch area of the city. >> speak into the microphone, please. >> this is regarding the spa at the property which is on the rooftop. on may 2 of this year, the health inspector came out to the property to perform the testing of the ph balance as well as our logs. on that day he informed us they were invalid and we did not have

the logs maintained. this prompted us to go to a hearing with the health director on july 19 of 2018. which we were then informed we were in violation of the code and that we failed to maintain maintenance logs of the spa. >> hold on. could you move the mic closer. >> secondly we did not adequate the disinfectant and ph levels of the spa. i am here today. i like to say we would like to reduce the suspension period. we were sanctioned for something that happened three and-a-half years ago. this is prior to my time so i am not sure of the entire details of the failure to maintain the logs, but on the day of the hearing july 19 we did provide a

one-year worth of maintenance logs which is exhibit 1 showing the daily logs of the ph levels and that they were in accordan accordance. that is all i have to say. >> the department indicates that it was missing the last couple of weeks for those logs. >> they were missing? >> yes, from what you had presented at the hearing. >> they were not missing. he could not find them. they are always in the same spot. i attach exhibit 1 which is a copy. he could not find them. so on that day we had our spa van tor we had -- vendor we had for three years. it tested normal. he came back the following day and tested normal.

he was able to find the logs just fine. i don't know why on that day the inspector was not able to. it has always been in the same spot. >> thank you. >> do you have anything further. >> no. >> we will hear from the department of public health. >> good evening. i am a senior and manager of swimming pool and several other programs at the san francisco department of public health environmental health branch. i have been with the department 17-years. i have been the manager of this program for a couple of years. i have with me senior inspector corey chris man, and he will be available to answer questions. he also has some information to

provide you about the logs and the importance of them. i do want to just explain to you even though i have been the manager of the program for two years, i am very familiar with the long history of our excellent enforcement and ability to achieve compliance in the swimming pool program, and as you know, this is the first case he has ever heard. it is the first time we have ever taken a case to the point where we recommend suspension. as you learn by reading our brief, you can see that there was a lot of difficulty getting this party to comply even from the beginning when they first opened the spa at the new apartment building, and as a result of that in 2015, the program brought the property to our abatement conference, which

is one of our progressive enforcement strategies we use in environmental health. at that conference which you have the results in exhibit c. you can see doctor johnson was very clear with them. they needed to take specific steps to comply with the law and that if they had a reoccurrence of the specific violations of maintaining the chemical balance and/or maintaining the logs we would bring them to the director's hearing and remember suspension. it was effective for some time in getting them to comply. when the inspector went out in may, he once again had kind of a daafeeling of the way they were

before. we recommended suspicion as we had said we would -- suspension as we said we would. in the materials i provided i described the public health importance of maintaining the chemical balance and the records. it is intuitive why it is important to maintain the chemical balance. it might not be as obvious why we care so much about the logs and the ability to find them in the place they are supposed to be when we go to inspection. i will give senior inspector chris man a chance to explain his perspective on that. >> good evening, commissioners. corey chrisner, senior inspector health department. logs are important for familiar reasons. it is the first avenue for

electrical has guard discards, p -- hazards, without noting logs you are telling us maybe potentially no one has checked the ph or chlorine for the readings. it is imperative the log are maintained and diligently kept on a daily basis. i will be happy to answer your questions. >> could you explain what happened on that afternoon? we are getting two different occurrences. >> i am shadowed with a on site personnel and test in front of them and ask for locations of the logs. they are kept behind the spa.

they have their own logs. i review both of them. i think the vendor's logs were there. the on site maintenance logs were not kept there. >> can you explain the difference between the vendor log and on site logs. >> state law requires you test ph chlorine in temperature of a spa. typically vendor logs are more detailed with what chemicals they added. >> what is the frequency of the vendor log verse the on site log? >> most facilities is once a week. this place is three times a week. >> thank you. >> it was characterized all over again. what was your da moment.

>> i have closed this facility four times. >> what length of period, time wise? >> 2013 through 2018. >> more. >> every other visit i am closing the system. >> thank you. >> in terms of the logs that they did submit at the hearing and the copies we have here, did those logs look okay to you? >> yes except for the last two weeks. they couldn't come up with those logs that is the vendor's logs which i think are three times a week. >> thank you. >> you still have three minutes if the department would like to speak further. >> okay. thank you. any public comment on this item? >> seeing none, we will move to rebuttal. miss ch un g, you have three

minutes to address the board. >> on july 19, we had provided a copy of this exact maintenance log and the vendor's log. that was not evaluated. we believe the finding os that day were prejudiced. secondly, because our vendor, who has been checking our ph levels for the past three years was able to test that all of the chemical balances on that day were normal. we believe there was an error on the inspector's part which could very well happen. i just wanted to say that based on the findings of that director on july 19 we are definitely prejudiced. because basically they are saying that because the past three and-a-half years we may

have not had the correct records or, you know, failure to keep up with maintenance of the logs. i believe the suspension of 30-days is the detriment to the operation of our business. we would like to have the cancellation of the suspension or to have that reduced. >> are you done? >> yes. >> can you walk me through the inspector has said this has been an occurring nightmare since 2013. which did the management change and can you tell me like he is still saying a problem with the last two weeks of logs. >> if you could speak in the microphone it is difficult to hear you. >> management is the same since the opening of the building. i know there were many turnovers in the actual manager. i have been there since april. i cannot speak prior to my time.

since my time there, this has been the first incident. >> then the inspector says there is usually he does the testing with someone on site. were you the person he was with when he was testing it? >> i leave it was the -- believe it was the maintenance supervisor. >> and he witnessed him doing the check? >> thank you. >> the department has three minutes.

>> you have never had one that has been suspended. this is the first. how would we relate, whether the penalty fits the size? >> one way to think about it is it is one 12th of a year.

they have put their residents at risk. it could easily be one 12th of the time. so that's a way to think about it. >> can they pick the time? >> i don't see why not. especially -- at this point, we are using it as a punitive measure to make sure that they continue to take seriously the threat of it. as part of our progressive enforcement strategy, we are following through on our threat. we would like them to pay attention and not have to come before you or us again. >> i thank you got their attention. >> most importantly, we would like for people not to get sick or drown. >> okay. thank you. >> i have a question for your technician.

your inspector, sorry. you'll have to move that microphone up because you are kind of told. again since this is the first case that i've heard in six years, the permit holder says that they have a professional company that maintains it three times a week and then when you took your measurements -- i respect you are a professional and your equipment is correct, what was that measurement? what did indicate? she might have said there was too much chlorine in the water. >> there is 13 and a half or 12 and have parts per million. >> i don't have my google on. what is that? >> state law says you have to do three and ten parts per million of chlorine. chlorine is the means to get to hypo clark asset. it reacts with water to make hypo cloris acid. >> and they had too much? >> they had too much. at that point, you start to bleach people's clothing.

thank you. >> i have a question. the maintenance logs and the on-site mac logs, are those maintained by the private company or is there an on site persian -- person testing daily or is there someone testing three times a week? >> i can't answer for the appellant but the maintenance logs are typically done by a vendor that they are paying for. >> but there is two different logs that are required or only one is required? >> it says it should be ph chlorine and test -- temperatures to be tested daily. >> thank you. >> i would also like to note that every time i test outside state law, there is a minor suspension. so they have been suspended four time so far 41-3 days, typically >> thank you. >> thank you. commissioners pack this matter is submitted. >> would like to start? >> i will start