. >> i think also there is another tower right around the block, as mr. sheldon, said on the at&t building that's directly across from steiner street at the church location. and they failed to address that. in fact i think it was admitted here by their own engineer that he isn't aware of any, and the fact that they didn't go out or they didn't look to see if there were other cell towers in and of itself should mean that this application should be denied. i think that they failed to comply with the procedures, they failed to address all of the issues. i think that the location and

the accumulative effects of these multiple cell towers justifies a denial of the permit, and i think it's just a historical building justifies denial of the permit. >> commissioner honda: are you done? i'm sorry. so i have a question. is that at&t more than 100 feet away? >> i didn't measure it. >> commissioner honda: 100 feet is usually about four houses away. >> yeah. >> commissioner honda: so that would not be in the report. >> if you look at their exhibit h, it is within that circle that they drew of what their circumference was, but i didn't personally measure it. i just took it off of their circle. >> commissioner honda: okay. thank you. >> clerk: any other questions? >> thank you. >> clerk: thank you. we will now hear from mr.

nagle. >> so address the appellant's rebuttal here, the church is designated as a historical resource. there's different levels of historical significance, different standards for different buildings. as the map shows, so the planning department correctly reviewed, you know, the location of the church and its designation relative to article 25, standards for a building of that type, you know, there wasn't a heightened standard for that building that would require the stay to change its regulation, so in that respect, planning did correctly review the facility as they're supposed to. and as to facilities nearby this at&t building, as part of our submission, we have to note facilities within 150 feet, and

there are none within the 150 feet, so, you know, if there are other at&t antennas or facilities nearby, they weren't within that 150-foot area, and they certainly weren't within the 100 feet that were required, you know, for the r.f. report. but that's all i have unless you have any further questions. thank you. >> clerk: thank you. >> commissioner honda: thank you. >> clerk: miss gilette, do you have anything further? okay, commissioners, this matter's submitted. >> vice president swig: you're the chair tonight, buddy. i'm asking you for your comment. >> commissioner honda: sure. so we've heard, and they heard the same thing all the time. this is fresh for you guys. we probably heard 4,000 wireless mobile facility cases before this board. this particular company has a very low amount of antennas they're putting in.

at&t had thousands and thousan thousands. g. t-mobi g.t. mobilenet had thousands, as well. the way that article 25 was drafted by your legislators, it really limits our ability to do anything. the few times that we have either continued it or have actually denied the case ended up in litigation to this board, which i believe we lost. so again, we are sympathetic. i don't see anything in this that would allow us to deny this permit. >> vice president swig: motion? >> commissioner honda: i hate making the motion on this. >> commissioner lazarus: i'll make it. >> commissioner honda: go ahead.

l>> commissioner lazarus: mov to deny the appeal on the basis the permit was properly issued. >> clerk: okay. we have a motion to deny the appeal on the basis the permit was properly issued. on that motion >> clerk: okay. welcome back to the december 5, 2018 meeting of the board of appeals. we are moving onto item seven. [agenda item read] >> clerk: this is permit

number 18-wr-0063, and we will hear from the appellant first. you have seven minutes. >> richard fall speaking for the clayton street neighbors. everything we have to say is in the document. i thank you for your time on this matter. >> commissioner honda: is there anything in particular that you'd like to explain, other than what's in the brief? >> the only thing novel might be obviously, you've heard tons of these cases, the indemnity issue, we put the copy in the -- >> commissioner honda: in the brief? thank you. >> thanks. >> clerk: okay. next, we'll hear from mr. nagle. >> commissioner honda: i've seen this guy somewhere before. >> good evening once again. for the record, my name is david nagle for mobilitie,

l.l.c. same as before, multiple city departments reviewed all required documentation for this facility under article 25, and based on that substantial evidence correctly found this facility to be in compliance, therefore allowing the permit to issue. in appellant's brief, they argued that the radio frequency studies submitted by mobilitie prepared by edison ignored an analysis. this is not so. the r.f. study demonstrated compliance with f.c.c. regulations. appellant erroneously relied on and presented out of context various f.c.c. bulletins and guides that i mentioned in the prior hearing are for

colocation, when you have more than one carrier on a tower. this is not the case here. sprint, our client, will be the only carrier on this pole. city standards do require us to take into consideration facilities within 100 feet. the city recently approved a verizon facility across the street on a street light pole. the effects on that were considered in our report, even though that facility has not been built yet, but based on the data, it was considered. so again, the r.f. study proved we were in compliant, and therefore, there's -- there are no grounds to uphold the appeal on the basis of the r.f. emissions. appellant also argued that the noise study failed to show potential contributions from reflected indirect noise. with the way this facility's

situated, the primary face of the secondary equipment enclosure is actually oriented toward the intersection of haight and clayton. just the side of it would be, you know, one side of it would be facing the building. appellant had raised this issue in their protest, and we provided a response from hemet and edison that clarified that based on the laws of physics that the noise levels if they reach the building will drop and be insignificant to the overall consideration of noise, and also clarified that the shape of the building will diffuse the noise and not amplify it. therefore, the report showed the calculated levels for the direct noise met city standards with the adjacent building approximately 10 feet away, and therefore, there are no grounds to up hold the appeal on the basis of the noise issue.

appellant raised an issue that the city's decisions so far to issue this permit are insufficient so far under topanga's association versusel. that is a local decision subject to judicial review under the california code of civil procedure, which would actually be the result of this hearing if either party were to challenge it in a court and not the issuance of the permit itself. therefore, it's irrelevant and should not be relied on in this instance. appellant also argued that this board has various conflicts of interests between commissioner

lazarus and commissioner swig. actually, if such a conflict actually existed, any affected board member should recuse themselves, however, neither vice president swig or commissioner lazarus have disclosed any conflict, and therefore have no disqualifying conflict of interest under the relevant laws. appellant was trying to stretch the laws [inaudible] >> -- constant state of rerema remand -- appellant also raised

the issue of a letter that commissioner lazarus's husband, jim lazarus authored on a matter that was subsequently vetoed by governor brown, but that bill has absolutely no effect on this hearing, and therefore, it's not a disqualify conflict of interest. therefore, there's no merit to what appellant advanced in their brief and therefore should be disregarded. the indemnity issue, the appellant argued if this is denied, the -- [inaudible] >> mobilitie's contractual with sfpuc for use of the pole --

there's no profit of contract between any such private property owners and mobilitie regarding sfpuc or the pole itself, making such a condition wholly inappropriate. furthermore, in position of conditions of approval on the permit under article 25 in line with the various city departments, not the board, and none of those city departments saw fit to impose such a condition, although they did impose 26 other conditions of approval that mobilitie accepted, furthermore, such a condition of approval has not been imposed on any other permit holders and therefore would being discriminatory under the law. therefore we ask that you deny the appel and uphold the permit as issued. happy to answer any questions. >> commissioner honda: counselor, regarding accumulative, i notice there were several poles within the

150-foot radius. when does that become a violation, i mean, as far as the health hazard? i mean, how many wireless facilities does it take? >> i think that would be better left to -- >> commissioner honda: i figured that. thank you. >> good evening. each facility is different. these are all low-power facilities. they all use different antennas, different equipment, and so each one needs to be studied separately, and including any facilities that are on the same pole or maybe 10 or 20 feet away. so i know that doesn't directly answer your question. >> commissioner honda: well, because we've heard thousands of cases, they say they're only this direction, and they're very low power. when does it -- when does it overload, i mean, roughly. >> yeah, let me try to answer the question another way. so the maximum calculated

output at this facility for the building which is about 24 feet away is about four times below the f.c.c. limit. another way of looking at it, on the same pole, if you had four such facilities, you would be close to the f.c.c. limit. so hopefully that gives -- >> commissioner honda: that gives a good measure. now not being a technical guy, but just being close proximity, if it looks as if there were five locations within the 150-foot range, when does that accumulative become a level that we should be concerned about. >> there's actually only one within 100 feet. all the others are 200 feet. some, much more than that. they're in the brief. there's something called an inverse square line. you may have heard of this before. this comes from basic physics. when you go twice as far away from the antenna, the energy

falls by the distance. so when you go ten times as far way, it falls by the square of ten or 100 times, so there's an exponential drop in radio energy in terms of distance. if i were to take this as an example. if i were to look at to proposal that's about 60 feet away, and i ad that to the 24% that i'm calculating. it goes from 24% to 24.4%, so it barely makes a factor whatsoever. >> commissioner honda: who needs to study in physics? i have you. thank you. >> you're welcome. >> commissioner honda: thank you. >> clerk: thank you. we will now hear from the department. >> thank you again, vice president swig and commissioners. again, thank you for this opportunity to present to you. i'm jillian gilette with public

works. article 25 requires public works to refer wireless applications to the department of public health, the planning department, and the recreation and parks department where applicable. in this case, both public health and planning determined that this application complies with article 25. public works subsequently issued a tentative approval on june 25 of this year, and mobilitie mailed and posted notice of this approval on june 25 of this year. public works held a public hearing on august 27 this year to consider protest of the tentative approval. following the hearing, the director of public works approved the permit, and notice of this determination was distributed to the public on october 4 of this year. the planning department is in attendance and can speak more regarding its review process if the board has questions, and the health department is also in attendance and can speak more to its review process if the board has questions, and

building department is here, of course, to answer your questions. >> commissioner honda: you'll probably refer me -- >> vice president swig: you'll refer me to planning, probably. down the street, there's another facility. i don't know if it's at and &t verizon, whatever. this is a commercial business. everybody has a financial stake in this. they all want market share, they all want to service their customers better, they'll come up with some contrivances that this is for the better good of man. forget the health side, this is about just numbers of facilities. you know, so sprint -- sprint

found a -- sprint found a pole. yahoo, and they glom onto that pole. and at&t's going to say well, we've got a hole. we've got to find ourselves a pole, and they found themselves a pole. and we've got to have another hearing, and all the 25 stuff gets handles, and verizon comes and finds theirs. it just started pyramiding as to the number of facilities that are on poles in san francisco. when -- when will enough be enough? what is the critical mass, what is the guidelines at which point you say, we've got enough of these machines, small or large as they are, on our poles? when do we stop? >> that is not a question for local government, that is a question that is governed by state and federal law.

>> vice president swig: so the proliveration of space junk on our poles is city of san francisco planning department, d.p.w., has absolutely no say in how much metallic junk or plastic junk is put on our poles? >> correct. >> vice president swig: huh. interesting. okay. >> commissioner honda: short and sweet. >> vice president swig: you live and learn. so when somebody comes to us and says -- this actually is really good. somebody's going to come to us and say there's too much junk on the poles in our neighborhood. and we're going to say to them, tough luck, go see your senator or your congressman or your legislator. okay. that's it? cool. thanks. >> clerk: okay. is there any public comment on this item? okay. seeing none, we will move onto rebuttal. is there anything further from the appellant? okay.

how about from the permit holder's attorney? okay. last chance. all right. commissioners, this matter's submitted. >> vice president swig: commissioners? >> commissioner honda: i did the last one. it's all yours. >> vice president swig: motion to deny the appeal on the basis the permit was properly issued. >> clerk: okay. we have a motion from vice president swig to deny the appeal on the basis the permit was properly issued. on that motion -- [roll call] >> clerk: okay. so that motion carries, and the appeal is denied. we will now move onto items 8 a, 8-b, and 8-c that concern appeal 18-113, 18-114 and

18-115. this is sass c-stores -- and does not meet any of the exceptions for certain new permits, and finally appeal 18-115. subject property is 3300 cesar chavez street, appealing the denial of august 13, 2018 of a

retail sales permit because the establishment is located within 500 feet of a school, and located within 500 feet of two other retailers with a valid sfdph tobacco permit, and the establishment is located within a supervisorial permit gap and does not meet any of the exceptions under the code. so since we have three appeals, appellant has 21 minutes total to present their case. and time in rebuttal, as well, nine minutes, as well. >> good evening members of the commission. i am the business owner of the subject business. my husband and i purchased the subject facility in 2017. we respectfully request your approval of our appeal for our tobacco license. we believe that our license should be approved. in reviewing staff report, we have noticed that many of the facilities that have the

license to sell tobacco are within 500 feet of other such facilities, and that some are within 500 feet of schools. tobacco products are a type of merchandise that our customers expect to be able to purchase at these types of facilities as ours. lack of ability to sell these products puts us at a disadvantage in trying to compete with other similar facilities. we have had many of our customers inquire as to why we cannot sell these types of products. also based on historical data, our facilities used to sell tobacco products, but i'm not sure as to why the previous owner was not selling these products. we run a small family business. these three gas stations are a major part of our family business and our not being able to sell these products has a financial impact on our business. we run a very tight ship. we have i.d. verification software on our cash registers,

and our employees go through rigorous training to ensure that they are not selling any of these products to any minors. we have other facilities in san francisco where we have tobacco licenses, and we have no issues with compliance. i appreciate your review of our appeal and authorize issuance of our tobacco licenses. thank you for your time tonight. >> commissioner honda: i've got a question, ma'am. >> yeah. >> commissioner honda: so when olympic turned to -- turned to fliers, because those are the stations that you're talking about. >> right. >> commissioner honda: so when olympic turns to flyers, and then recently turned from flyers to mobile. >> they went from flyers to tesoro, correct. >> commissioner honda: so that because the license changed hands? >> i don't know. >> commissioner honda: i'll ask the department. i am wondering why chevron's

running out of my brand of cigarettes, to be honest. >> when we took over, the tobacco fixtures were there. >> commissioner honda: yeah, i know. thank you. >> and thank you for not using all 21 minutes. thank you. >> commissioner honda: trust me, some people use -- someone used 35 minutes a couple weeks ago. >> we will now hear from the department. >> good evening vice president swig, commissioners. i'm appearing on behalf of the department of public health. this evening, you'll hear three appeals brought by the same appellant. all three appeals pertain to the department's denial of a tobacco sales permit for three separate gas stations throughout the city and county of san francisco. this evening you'll hear testimony from the department's

inspector, zil prado, who examined each of the permits. you'll hear about the department's policies, procedures or answer any questions you have regarding the tobacco program. so i'm going to address the applicable sections of article s-h that pertain to the three permits issued here. article 19-h prohibits the issuance of a tobacco sales permit for a location that's located within 500 feet of a permitted tobacco establishment. additionally, article s-h prohibits the issuance of a new tobacco sales application for a location that's within 500 feet of a school. lastly, article s-h prohibits the issuance of a tobacco

permit in a supervisorial district that has 45 locations already. the first one, the department denied the application because it was confirmed by the san francisco planning department that this is located within 500 feet of a permitted tobacco establishment. the second property at issue is the location located at 2000 19th avenue. now the department denied this application for tobacco sales permit because this location, too, is located within 500 feet of a school. the last location at issue here is 3300 cesar chavez street. now, the department denied this application for several reasons. this location is located within 500 feet of a school, it's located 500 feet with two permitted tobacco establishments, and it's located in supervisorial

district number nine, and at the time this application was submitted, this district already had 98 permitted tobacco establishments. now article 19-h provides for several exceptions. thig these exceptions will allow the issuance of a one-time permits when these exceptions are satisfied. the first exception deals with retail food establishments, tobacco shops, smoking bars, and cigar bars that are currently in negotiations for the sales of their establishment. that allows a prospective buyer to apply for a tobacco sales permit. that does not apply to appellant's three applications here, because appellant's property are all service gas stations. the second exception provides the child of an owner of a permitted current tobacco sales shop for a retail food

establishment that has a permit, it allows a child to apply for a permit at the same time location. the third exception allows for a retail food establishment that must relocate for seismic retrofitting. that does not apply here. the last available is to a spouse or domestic partner who acquires an establishment because of a death or divorce, and that exception does not apply here. i noted in all three of my briefs, appellant specifically acknowledged that they do not qualify for one-time permit exception in either of the three applications. article 19-h is clear, it does not provide discretion to the department or the board of appeals. the department nor the board of appeals may issue a new tobacco sales permit where the issuance would be contrary to local law.

in consideration of the briefing argument and evidence submitted, the department respectfully requests that the denial of appellant's three applications for tobacco sales permits at the three previously stated locations be upheld. the department now calls z zil prado. >> commissioner honda: may i ask a question. >> vice president swig: you want to freeze her time? >> commissioner honda: yeah, freeze her time. when was 19-h implemented? >> it was in 2017. >> so there may be a competitive gas station that was within 500 feet of a school, but they would be grandfathered in because 19-h came later, and they -- they were already there. >> yes. there's specific time frames that must be satisfied that will allow for that exception

to continue. >> vice president swig: okay. so when -- when the appellant raises the issue that well, others have it this way, the fact is yes, others have it this way, but the law changed, and others were grandfathered into the past situation with those not to cause them injustice, probably. >> exactly, and just to clarify, that first exception's applicable to retail food establishments, tobacco shops, cigar shops, and smoking bars that held a permit for x amount of years and had a subsequent buyer. >> vice president swig: okay. follow up question is so if i'm buying a gas station that has a core -- one of their core businesses is selling cigarettes, and i buy that gas station, is there a -- do i have to be a savvy buyer to -- to understand during my due

diligence period that i'm not buying that cigarette permit? >> i'm going to -- >> vice president swig: -- or is there a legal requirement for the disclosure that due to 19-h, you can buy the gas station and the gas, but you can't buy the license. >> thank you, vice president swig. i was going to save this for rebuttal, but there's no room or lee way for what consumers can expect to buy at a gas station. you know, we would expect a prospective buyer to do their due diligence and know that permits are not for sale. they need to see if they would qualify. otherwise, you would hope that any prospective downfall would be reflected in the price of the sale. >> vice president swig: so if you're getting into, again, it's really up to the nature of the buyer to be -- it's -- the burden is placed upon the buyer

of the gas station to understand, pun intended, the rules of the road to understand the permits not included with the purchase of the gas station. >> correct. >> vice president swig: thank you. >> clerk: thank you. is there any public comment on this item? >> at this point, the department is going to call inspector gill prado. >> clerk: i'm sorry. >> thank you. >> good evening, commissioners. my name is zil prado, and i'm with the health and smoking department in the health department. i will show you the map that the zoning -- planning? -- planning department generated.

when we received the application, we made a referral to the planning department. here, you see park shell gas station, and here, you see 2301 19th street -- avenue, i'm sorry. i did do research for this board of appeals today, and i actually inspected park shell in mar of this year. and i pulled the file. i thought, okay, if this wasn't here, we would be able to grant this permit. however, i went out in march, i verified that they were selling tobacco products. also, i checked today on our database, and we saw that there was no change of ownership or that it had gone out of business. so that -- that's the case with the first case. would you like me to continue with the second and third? >> vice president swig: and where is the school? >> no, this one -- park side

shell, it's a retail establishment within 500 feet. >> vice president swig: so this one, there's no school. >> no, this one is a retail establishment. >> commissioner honda: the nearest one is lincoln high school. >> i can continue with the next case. and -- let's see, this is the one with the school. i think i'll actually do it this way. so here is the s.f. mart, and here is the elysees de san francisco. and unfortunately, it's -- it borders that -- that mart.

and so for this one, i was kind of excited that we would permit the first one and the second one because the first one has, like, 43 retail tobacco facilities in that district. and in this one, district seven has 28. so i was kind of excited if this one wasn't here, again, that we would be able to grant that permit. and lastly, we have 115, and in this case, we have multiple issues. it just takes one facility for us to disqualify or not approve a permit. so in this case, as was discussed earlier, there's two

grocery stores, and then, there's the school that borders the facility. and i'd like to field any questions if you have any. >> commissioner honda: yeah, i've got several. to both of the locations -- actually all three of the locations have been serving tobacco for at least, i know, 33 years. >> correct. >> commissioner honda: and so there's no -- there's no transfer -- i mean, i'm just asking a technical question. >> no. so typically, when -- for the exemptions to actually take effect, there has to be a direct sale with the original owner and the new buyer. and in this case, the previous owner had closed the permit. they came in, they're operating from july of last year, 2017. and in all that time, they

didn't submit an application for tobacco permit. >> commissioner honda: so there was -- they would have been able to transfer that? >> no it's quite complicated, but there's no such thing as a transfer of a permit. the permit is for the name of a if a similarity. >> commissioner honda: but you said there's an exception for the original owner. >> right. so exceptions apply. so like miss valerie lopez was saying, if you have a retail food facility, if you have a tobacco shop, if you have a kr cigar bar smoking bar, those are the exceptions that you can do that. there's no exception for a gas station.

>> commissioner tanner: so you're saying if the previous owner had continued to sell tobacco, sold the business, that the new permit holder would have to apply for application, and there's no guarantee that they would be a -- >> no. >> commissioner tanner: say it again. >> the reason they're being denied is the reason there's a school or another tobacco retail establishment nearby. so in this case, if the school -- if that wasn't an issue, we would grant the permit because we got the research back from the planning department and it shows that. >> commissioner tanner: this thing is if it qualifies under those four categories and is within those boundaries, they could still get it under the exception, those exceptions within those buffer zones, essentially. 'cause what you're saying it there's a restriction -- is there's a restriction because of the school and other facilities within buffer zones, certain distances. however, there's certain

exceptions to that, of which -- those four categories, of which this is not one. >> commissioner honda: we had a seismic exception before you came before the board. >> vice president swig: for 33 years, tobacco is sold at these places, and then, 19-h was passed, and that changed the rules. so prior to 19-h, this -- this would have been a nonissue. >> yeah. i -- i used to do retail tobacco inspections back in 2004 when we certified tobacco establishments. they used to pay 38 dlsh a$38 issue a permit. >> vice president swig: if you'd like me finish. >> okay. >> vice president swig: during that time, 19-h was passed, and

the rules changed, and during that time, the rules did not apply inform them because they had an existing permit. but the moment that after 19-h passed, the moment that there was a transaction and that business was sold, all bets were off, that permit disappeared, and could not be repermitted because of the school and because of -- or -- and/or because there was a retail establishment 500 feet away. that in effect -- so this would have been 2013, or '12, we wouldn't be here talking about this. but because it's post 19-h, that's oh, well? >> so there's some other restrictions that we look at, as well, that it has to be -- the establishment needed to be operating between january 18, 2010 to january 18, 2015, so that's another requirement. so there's several check lists

and requirements that we have and that we do. so the school and the retail tobacco is just a small part of everything else. >> vice president swig: but fundamentally here, because the establishment was operating between '10 and '15, really, the core issue impacted by 19-h was the school and the retail establishment. >> correct. >> vice president swig: so in -- in this case, it would seem that the new buyer was impacted by a change of legislation that sideswiped then and knocked them off the road. >> yeah. like miss gonzales said, they didn't do their due diligence. i tell people that they should take a month or two, you know, so that we can make a full assessment before we can either grant or deny the permit. >> vice president swig: thank you. >> mm-hmm. >> vice president swig: is

there somebody else who's speaking on your behalf, a counselor, or is that it? >> clerk: thank you. >> vice president swig: okay. >> clerk: is there any public comment on this item? public comment? are you related to the party? okay. so you can speak during rebuttal. we're moving onto rebuttal now since there's no public comment. so you have a total of nine minutes. >> appreciate it. i'm assisting ronnie and tony, the current operators of the facility. going back for a second to give you a history, they did do their due diligence. the site, as indicated by commissioner honda, the site was selling tobacco for 33 years, and they did speak to the department. basically, the previous owner has to close their license in order for them to apply for a license. if this was -- we would understand that if this was a brand-new site, brand-new application, totally understand. the regulations are if you're

brand-new, these are regulations that you can't comply, and what have you, then you don't get a license. but this is a transaction where you have to close the old license, apply for a new license. as the gentleman indicated, it's not a transfer. you can't do a transfer. so based on what the gentleman's just saying right now, that means that every other gas station that's in that hashed area, no matter how much due diligence you do, you're going to lose your license, simple. it's unfair to do to the operators, to us, because there was nothing that was -- you know, nothing fell through the cracks. they had to close. they filed for their license, the state granted a license, which is number one, and then, you guys have to issue a license. now -- and they're a retail food facility. now, the retail food facility, it doesn't say it has to be 500 feet, 2,000 feet, it just

says retail food. they do sell food out of their building. this is a continuing operation. the site was granted a license. if they didn't purchase it, they would still continued selling the products. they had no -- you know, the previous operator didn't have -- as commissioner honda indicated, there was a previous owner before flyers, and when the flyers bought it, the previous owner was transferred, no problem. they're not being singled out, but unfortunately, the code doesn't allow for continuation of the license. again, we hope that you can consider the fact that, again, this was not a brand-new license, it's not a brand-new construction, it's not a brand-new application. it has history. it's been there, and they're good operators. as the gentleman indicated, the first two sites, they're not exceeding the 45 licenses allowed. we understand the third one, there's 98, and again, they did their due diligence.

it's not their first rodeo, trying to say, they forget. same as beer and wine, same as other licenses. there's not a transfer, you have to file for new. so if you could please consider that they have a history on this item. we're not creating or bringing a new license to these locations, we'd certainly appreciate it. >> commissioner honda: thank you. >> clerk: thank you. you still have six minutes in rebuttal if you wanted to add anything. >> one last thing is i would like to say is we are a c-store, convenience store. food establishment, i don't know what you consider a food establishment, but a convenience store is considered a food establishment in a way. we sell soda, we sell snacks, we sell, you know, anything that you would buy at a convenience store. so a chevron across the street is also considered a food establishment, as well as a

convenience store. >> commissioner honda: thank you. >> clerk: okay. so we will now hear from the department. you have nine minutes. >> thank you. i want to touch on a few issues that were raised in rebuttal regarding the application process specifically. the application is very similar to all three -- so the application walks through the permit -- process peculiarsi-- prospective permit. here, you'll see if it was acquired by a spouse or divorce.

it's marked no here. then, it asks what type of location is it, gas station? service station was marked, and then, it proceeds to give them directions to go and complete section e. because it's a gas station and not a retail food establishment, tobacco shop, smoking bar or cigar bar, it proceeds directly to section e, and in section e, it basically requires the permit applicant to check off their acknowledgement that no new permit shall be issued in a supervisorial district, one shall not be issued if it's 500 feet of a school or existing establishment. so it's clear, and the permittee signs off on this. regarding the issue whether or not it's a retail food establishment, that's not an issue here.

because article 19-h is clear, a new permit shall not be issued if it's within 500 feet of a school or an existing tobacco -- permitted tobacco establishment. the exception one applies to retail food establishments and/or a tobacco smoke shop, cigar smoke shop, which is unapplicable here. appellant is correct, the previous owners were in the business of selling tobacco products, however, it changed ownership over a course of time, and therefore, the exception that they are referencing, again, applies to retail food establishments also requires a duration of the original permit holder, and the original permit holder did not sell the business to appellants nor as a retail food

establishment. >> commissioner honda: i'm sorry, can you repeat that again? >> the original -- we've heard testimony that there was at least -- there was a change from the original owner to i believe flyers before it went into their hands here, so when it comes to the exception, we're talking about the original owner that changes hands to a subsequent buyer. and even if that were the case here, they needed to be a retail food establishment, tobacco shop, smoking or cigar bar. again, i just want to leave on the note there's no discretion here. even if the department wants to issue a permit to these three applicants, they cannot. with that, i am going to hand it over to mr. prado to make a

few comments. >> commissioner tanner: i actually have a few comments. >> commissioner honda: actually, you want to let them finish their time? >> vice president swig: well, it's in context. gary, can you knock off the time. so just following on, because i want to make it very clear. so because they were -- they are owner number three, and because of article number 19-h being passed recently -- relatively recently, the -- the rules are the rules. they could be the -- the operators of the century as far as the quality, service, reputation. it doesn't matter. it's black and white, cut and dried, and they aren't going to be given a permit for any reason. is that what you're saying? >> yes i am. >> vice president swig: and secondly, with regard to a food establishment, i noticed on

your check list, you've got a choice of checking one. so you're either a food establishment or you are a gas station. >> correct. >> vice president swig: request it would have been -- and it would have been unethical for them to check food establishment if they were a gas station. so again, this is really a matter of the law change -- it's like i've been going 45 miles an hour for years down that street, and, you know, the -- the speed limit changed to 25. it doesn't matter. 25, i get busted for doing 45, and the argument that i've been speeding at 45, doing the speed limit for all my life, it doesn't matter anymore because there's a new speed limit. is that a good analogy? >> i agree. >> vice president swig: okay. thanks. >> clerk: did you want to have your inspector come up? you have five minutes. >> yes, thank you.

>> i just wanted to clarify a few things. let's say that -- well, i won't go there. >> commissioner honda: wait, please. >> there's so many exceptions, it's crazy. i will say that it is an unfair business practice and -- to have a facility like c-stores incorporated to open up and sell tobacco products without a valid tobacco permit. so they were operating since last year, and unfortunately, cesar chavez, 3300 was officially denied a permit because of the density ordinance. that was, i think, two years ago, in 2016. as you know, the law became effective in 2015, and now, i found out when i was doing routine inspections that, i'm like oh, wait a minute, this doesn't look like it's in my route book. let me go and see if they're

selling tobacco products. so i go, and the two locations on 19th street are selling tobacco permits. the nice thing about the group that i'm working with here, they had wonderful, beautiful applications from beginning to end. i wish all my applicants were like that. they were typewritten. they were really helpful when i wanted to get information from them. unfortunately, you know, they were operating without a valid permit, and that's why i asked them to submit an application. ist excited when i saw it was in district four and seven. having said that, it's an unfair business practice when someone doesn't have a permit and the person across the street does. and the lady here mentioned chevron on 19th avenue. i went for the same reason, i checked to see if they had a permit, and they did not, and they were not selling tobacco

products. so they knew that they weren't able to get a tobacco permit, so they are not selling toe bad owe products at that facility on chevron avenue. and there's clear definitions on what a retail food facility is -- >> commissioner tanner: can you share the definition of what that is with us, what is a retail food facility? >> food served on-site, prepared on-site for ingestion. let's say that it's, like, a restaurant or a bar, that we can't give them a tobacco permit because there's food that's served on-site and served at that facility. so that's why bars and restaurants cannot be granted a tobacco permit. that's one of the grounds for denial for a tobacco permit.

i'm sorry, did you answer your question? >> commissioner tanner: i was curious what a retail food facility is. because it seems like the permit applicant, if they had checked, you know, food establishment, i'm assuming you do an inspection before the permit is granted, and you would have said no, this is a gas station, not a retail food facility, but what definition do you use to determine that it is not a retail food facility? >> i don't have the definitions in front of me, but we definitely have a food if a sill permit. we have a department health inspector from the food department that would ask for eye departmea permit for food. the podium is bigger than that space, so you can't imagine that they're not going to have groceries, produce, or anything like that. it's all going to be prepackaged food, it's going to be sodas, it's going to be, you

know, candy and tobacco. >> commissioner tanner: thank you. >> mm-hmm. >> clerk: you still have one minute, 50 seconds. >> i was just informed by the program manager that she could clarify a response to your question about the definition of a retail food establishment. >> commissioner tanner: that would be great. >> thank you. >> calla ward, i'm the program manager of the tobacco program, and i'm actually a former food inspector. so we have two sets of definitions, unfortunately, under the department of public health, a retail food facility is any facility that retails food, whether it's prepackaged at a restaurant, a convenience store. when we're talking about a retail food facility that cannot receive a permit, that is specific to the on-site consumption, so that would be a

food and beverage, including alcohol, so bars and restaurants. >> commissioner tanner: so bars and restaurants are not allowed to have -- >> no. that is post density. >> commissioner tanner: got it. >> so there are certain restaurants and bar that's have tobacco permits right now, and when the ordinance went into effect, they were able to keep their permits. but once the sale of their restaurant or bar happens, you may not issue one again. >> commissioner tanner: right. thank you. so that's kind of leading me down this road, but i want to make sure because the permit process is not clear to me, so i'm wondering how it would be clear to applicants, because it seems as they could say, i am a retail food facility based on the definition you just provided, and i am also a gas station, and it seems to me that could have been granted during a certain period of time the exception, but it is only the original, original pre-2015 permitld