hearing none. i call for a motion to adjourn. >> so moved. >> second. >> it has been moved and seconded that we adjourn the meeting. >> and thank you. >> meeting is adjourned. >> impede to the october 8, 2014, meeting of san francisco board of appeals presiding officer is

commissioner president lazarus and she's joined by commissioner fung commissioner honda and we're pleased to welcome bobby wilson the vice president will be absent to my left is deputy city attorney robert bryan for legal advice and victor is the legal have an opportunity i'm cynthia goldstein we're joined by representatives from the department that have matter before the board socioskoonlz is the zoning administrator representing the planning commission and jeff is the senior building representing the department of building inspection jean is from the department of public works and joined by sherry categorizing from the city attorney's office to advise the department of the public health mr. pacheco go over the board

meetings guidelines and swear in. >> the board requests you turn off the cell phones and pager please carry on conversation in the halfway appellants and department representatives have 7 minutes to present their cases and 3 minutes for rebuttal participant affiliated must complete their opinion and to assist the board members of the public are asked not required to submit a speaker card or business card to board staff when you come up to the appointed pens are available on the left side of the pronounced customer staefgs survey forms on the left side of the podium if you need questions answered

please speak to the board staff or call the board office tomorrow morning located pats 1650 anyone o on mission street broadcast live on sfgovtv cable 78 and dvds are available for purchase indirectly in sfgovtv thank you for your attention typed we'll conduct our swearing in process if you intend to testify and give your testimony weight mrrnd please note that any anybody of the public may speak without submitting a card under the sunshine ordinance. >> do you solemnly swear or affirm the testimony you're

about to give will be the whole truth and nothing but the truth? thank you. >> thank you mr. pacheco commissioner president lazarus and commissioners we have two housed keeping item item 4 regarding an excavation permit on caesar chavez street that was issued by the department of public works appraisal i appeal has been splisz because the permit application was wrong and item 7 which is a hearing request regarding stevenson street the parties to that matter have jointly requested that case be continued they're asking for december 17th date so we'll need a motion in order to be continued. >> so moved. >> okay public comment on this item seeing none, mr. pacheco can you call the roll please.

>> december 17th is the date. >> correct. >> on that motion from commissioner honda to reschedule the hearing request to december 17th on that motion commissioner fung vice president is absent commissioner president lazarus and supervisor wilson. >> the vote is 4 to zero rescheduled until december 17th item one general public comment this is for anyone that wants to speak on an item not on tonight calendar seeing none, questioning commissioners. >> i'd like to welcome and newest member bobby and congratulate the san francisco giants another great reason to

be here. >> i'd like to add my welcome so everyone present can appreciate the outstanding credentials our commissioner has bobby is a partner of the law enforcement of perkins queue u cow write i didn't primarily in the area of intellectual property that was recognized as one of the 50 american leaders she received her dpreg from columbia and queens college in new york and moved to san francisco after graduating from lamont lull in 1990 she worked literally case on behalf of low income members a member of the american board association and

served on the board for lesbian rights and in the marriage of quality cases and received the pro bono award and we're pleased to working with her over the term of her tenure. >> welcome commissioner to our short meeting. >> (laughter). >> okay any public comment on item 2 seeing none, then we'll move to item 3 possible adaptation of the meeting minutes for september 20, 2014. >> commissioner any changes or addition any approval. >> so moved. >> a public comment it on the minutes mr. pacheco call the roll please. we have a motion to adapt the september 17, 2014, on that motion to adapt commissioner

fung vice president is absent commissioner president lazarus and commissioner wilson those minutes are adapted. >> so with item had 4 dismissed item 5 doing business as as 711 the property on drum street it is appealing the suspicion of a tobacco sales permits 25 dies superstition for selling to minors start with the appellant or the appellants attorney you have 7 minutes to present our case. >> good afternoon the honorable board i would like to start with there are two components to our appeal i'm sorry julia james jan law

group i represent the appellant and i'll take on the respond the department of public health opposition and other issues i've raised the two issues looked like i i'd like to start with the second that is the matter of the san francisco police department using a decoy under the age of 17 years of age the department of public health did not sdrau disagree that the actions taken notably righted shields from prosecution that my minor that is participating in an activist adapted pursuant to the code section 22952 c and d that particular code section is struck only persons 15 or 16 years old maybe used as a decoy

regardless of whether the city has contracted the elements are still applicable if the city is to the compliant it's subsequently its on rules it who subject its own decoys to prosecution it must be in compliance with the c and d which direct that decoys must be 15 or 16 years old not 17; moreover, the penal code is the section f and starts that the city and county shall not adapt an ordinance or regulation n consistent inconsistent by using decoys outside the perimeter of state law their users the use of

17 years of age they have an ordinance in compliance they do dispute the city can regulate its own licensing and penalties and that is not preexempted by state law but the manner in which the decoy was used in turn and the business and code section is preexempted by state law they don't have the right to override this section city argues there are federal regulations regarding cardio anyone that appears under 27 yvenz this is eir relevant the gentleman does not say his employees explicit not look at the id by the use of de today that the appellant is changing

they advise the board not to view this railroad by the sf pd is a technicality that should be overlooked by an improper undercover decoy operations such as the employees are expected to follow the guidelines and they feel strong about the decoys to provide that provision in the law that aside from the fact that the particular decoy operation was not handled properly and other instances 15 and 16 argued because the city is aware of the decoys to be used regarding employer vs. employee when is the owner the 711 to do i ask the board to consider what more short of working as a cashier

twenty-four hours a day what's the use of the penalty to neglect or continually selling to mirandize to 0 try to make money off minors his actions were one hundred percent in the action of the law he has signs post and is undercover sting operation this employer has done everything in his power to avoid the sale of seblths to minor the gentleman suspended for an action who the everything possible this is not a business owner looking over his shoulder he did a no brainier computer system that employee has not been punished by anyone other

than the owner who let the employee go he didn't violate the section that is illegal for a corporation to knowingly sell cigarettes to minors a representatives of the corporation knowingly sold the cigarettes to a minor the only one that 92 knew was that employee if the employee sold drugs what the owner be a partner he's not responsible for all actions of the employee and the gentleman who would 0 not sell drugs he asks for the law of reason his construction does not merit this of a suspended

superstition we ask the board every goes a fine upon the owner or minimize the period of superstition to 7 days he's open to the board of suggestions what else can he do to prevent those employees from breaking and entering the allow u law he's done everything possibly and asks the boards consideration of all those factors thank you for your time. >> 15 seconds. >> there's 3 minutes important rebuttal. >> i have a question for you you indicated in your brief you have a scanning system is that how does that work? >> commissioner fung that works meantime an age restricted

product a sign is prompted novelist the person selling the product to verify the age of the customer and the age of the required age the data is flashed in the sign and that changes automatically it is actually a fool prove system. >> it's flashed where. >> on the screen anytime you scan a pack of cigarettes it is part of the exits a brief that clearly shows how the sign looks like and this employee simply over recited this particular function of the cash register because she just put in a random

date is it an expensive system. >> yes. $10,000 and either the employee is required to scan the id or put in the exact date thought that on the id into the cash register so there is no escape unless someone choose deliberating not to do it >> thank you. we'll hear in dph good afternoon, everyone. commissioners and planning department and council we're here today before you because of a violation under the health code section one hundred 9 point 61 that the conduct violating penal code section 308 there are

no allegations considering the state act into effect the city self-not use this it uses section thirty 8 grind with the be health department activities to sale for minors the focus here is on the act of this sale and unfortunately, the owner is here tonight that same section of the health and considered as a separate item at this or a future hearing. code sophisticates in the sale by the owner or the employee the consequence is the same the permit is suspended and admittedly if we're proceeding under the stack act it specifics that the owner bears the

responsibility for his employees conduct any questions? >> yes. i do so the product of the sale of take a look tobacco to minors has been before the board and noticeablely most of the decoys are 15 and 16 mostly 16 how many 17 years old do you use in your decoy. >> i do not know i think it's not that common but i think the critical fact is that federal law does require an establishment to card anyone under the age of 27 so here i have a decoy not 18 that is permissible sfaul. >> so the decoys under 17 does

not apply in this case. >> we precede meaning with the city precedes under section thirty 8 and no such requirement considering the 15 to 16-year-old decoys. >> our saying the statute constitutionally is not subject to that particular provision. >> right because that is one of the protocols under the state acknowledge it was clear in all conversations to appellant the city is proceeding under section thirty 8 there's no medication of this staked act in the conversations. >> thank you for your clarifying that. >> is this location had a history of other special - >> is had a violation i believe

in 2010 that was noted in a footnote in the patents e appellants brief it was dismissed. >> and the reason for it being dismissed. >> we were not able to determine the reasons. >> thank you any public comment on that item? seeing no public comment okay there is public comment step forward. >> good evening my name is with mohammed i'm a the owner the previous owner and the manager now of the delhi on

the street on the same block as this 7-eleven we sell cigarettes at your location i wish to say if this license is suspended i'm going to benefit the most as are in direct competition that 7-eleven i ask the board not to spending suspend the operations i observe the operation of the store and the owner for the past 10 years and all i can say is they've also taken a most care in preventing sales to minors they have a great training will program fewer program to prevent the underage sale times we've sent our employees to them to

train on their system gentleman has been a very responsible store operator and has also obeyed the law one bad action should not stunned suspend the license of one store operator i once again ask don't suspend the license thank you. >> thank you is there any public comment? seeing none, we'll have rebuttal starting with the appellant you have 3 minutes. >> thank you board julia as to the 2010 issue the owner employees checked the minor and

that matter was not suspended i believe it was not a valid identification or it was the identification had changed it was something that the board found the employee did, in fact, check the id not one in the steno years have a violation many other sting operations and their own sting operations with the department of public works their entire brief and their actions depends on section thirty 8 references the section they may not be krablth with the state but it didn't mean they're not under the provisions of the penal code and their brief sets forth and the police officers says under its under the penal code or the corporation

knowingly sells number 2 the business and professional code is the one that that has the guidelines for 15 or 16-year-old and if you're not following the guidelines they're our minor decoy is subject to prosecution that's why i believe one the exhibit is the city letter saying 15 or 16-year-old decoy came in your store not correct for whatever reason they couldn't find a 15 or 16 it was a will ta traditional i'll seen other reports not a 17 year-old because the respect addressed the knowledge we must abide by this business and code section i emphasis there is not much more that a business owner can do i

ask the board to punishment those who don't invest $10 in a cash register and don't beat over the head 15 minutes before that employee sold the sect we don't know why she doesn't deliberately comply. >> i'm not an attorney members of the board the punishment should match the offense this apply the real custodial pursuit her case was dismissed i'm looking at the devastation 20 percent of any sales come from tobacco products if this licenses is is suspend for 25 days i'll lists $40,000 once you

lose the customers it's hard 7-eleven is going to charge me the share of the lost products and it also a devastating situation i have kids in college the actions of one rogue employee has done this i've done everything possible open the job training and guidance and spending numerous expensive hours please i respectfully i have don't suspend the license in the board feels this is the way that justice is going to be served please kindly religious it to a few days instead of the 25 days that's disaster.

>> ms. jane on your series of who is at fault putting aside the decoy there's an admittedly violation of the code the city doesn't have a recourse against the employee. >> it does. >> how. >> miscellaneous charges it choose not to prosecute that employee the employee shall be given a certification and notice to appear the district attorney's office has better cases to prosecute realistically choose not to file charges against the employee and you know many relatively minor cases compared too on the don't get prosecuted their, their recourse in many instances they don't bring violation against the

employee so it didn't don't think but theirs recourts and an opportunity. >> you don't think the particularly has a responsibility. >> i think that the employer does have a responsibility under the license on licensing not necessarily the penal code but a responsibility inform have the proper signs and conduct you itself with everything it agreed to when it got the licenses and train their employees to do everything to make sure that its employees are in compliance he's gone above and beyond that. >> thank you okay. we'll hear 234z from dph rebuttal. >> i might have miss harder our question i think upper asking

why this board has any recourse okay. >> the city. >> okay. the city because again, this is an action those are the permit holders that concerns the suspension not prosecution of a crime and the language is very explicit in section one hundred 9 point 61 it's whether the sale by the owner or the owners agencies or employees that's the violation and there's no allowance or mitigating circumstances i appreciate that civil service corporate office probably has plenty of resources to make sure that it's franchise has the signage, has the equipment, has everything else i'm sure the owners in the establishment