mr. commissioner commissioner lazarus can take them and mr. sanchez you have provided those to the other parties. >> instructor: i don't have many comments but the board will understand their powered and they have the ability to turn the planning commission and you understand that you have the ability to over turn the zoning administrator and i learned that on several occasions and i did review the revised plans and i shared some of the surprise that the neighbors had as well because there was a summary that i received that outlined the change and it was not clear from there that there was an expansion from the rather and there was a rather yard calculation and they were doing a straight 34% and now averaging the adjacent properties under the code and so that is something that is still allowable and also, there was that chink in the height which i didn't notice until today. there were two points in regards to the plans and we will go ahead and accept these plans, but as noted by the permanent holler, they can have that balcony on the third leve

commissioner lazarus. >> do you have a motion? >> there was a motion made by commissioner lazarus to deny the jurisdiction request, so we can call the role on that if commissioners are ready. mr. pacheko. >> we have a motion from commissioner lazarus to deny this issue to not invoke subject matter jurisdiction over the mta's resolution. on that motion vice president fung. >> no. >> president hwang. >> aye. >> and commissioner hurtado. >> no. >> thank you. the vote is two to two. three votes would be needed to grant jurisdiction, so a jurisdiction is denied over this resolution. >> so commissioners on this motion fails just to be clear unless another motion is made and no jurisdiction is granted like was said. okay. so hearing no further motion president hwang do you want to call the next item or take a break? >>i would like to take a break. >> okay. thank you. >> welcome back to the november 7, 2012 meeting of the san francisco board of appeals with president hwang's consent we're going to move around the calendar and take item seven. which is paul iantorno versus the department of building inspection. we're taking this out of order because parties have negotiated a solution

commissioners, the matter is submitted. >> president hwang: go ahead. >> commissioner lazarus: mr. burton, i guess, i am confused about what nile cafe claims to be. is it a cafe? i mean you can't be a cafe and a tobacco shop, as i understand it. so what is it? >> well, in terms of what it does, it does -- >> commissioner lazarus: it operates under a license as something. >> right. it operates under a license as a restaurant, is the main license. but it also has a tobacco license to sell the product. >> commissioner lazarus: but it's not a tobacco shop, is that -- >> under the -- the department is arguing that you cannot be a tobacco shop and serve food at the same time. that's the language of the statute. >> commissioner lazarus: well, if they're arguing it because it's in the statute, then -- >> i'm just telling you -- i'm not saying one way or the other. i'm just telling you their position. >> commissioner lazarus: and is it legitimate to argue that while there may be some ambiguity allowing someone to continue while it gets resolved you can make a similar argument that it cease happening while it is being resolved? >> i'm sorry. >> commissioner lazarus: continue to smoke in this gray area of hukas? >> i would also like to correct the assertion that this is in any way smoking. it's inhaling a vapor