tv [untitled] September 10, 2012 8:00pm-8:30pm PDT
by christina olague. could you reese item one? >> hearing to consider issuance of type 40 license to the roxy at 3117, 16th street. >> thank you, mr. clerk. we are joined by inspector lazar. >> good morning, supervisors. >> your report. >> the applicant has filed for an application with the abc, seeking an original type 40 on the sale of beer for 33131716th street on the south side of 16th between albian and valencia streets. for the purposes of this hearing, the california department of alcoholic beverage control, abc, seeks a determination with the board of supervisors as to the approval or denial of this license. police calls for service for august 2011 to august 2012, 29 calls for service.
police reports during that same time period, no record. this promise is in lot 413. the high crime area is defined as 215 or more reported incidents in a plot. this plot has 472 reported incidents recorded for 2010. this is over the high crime area definition by 257. the applicant premises is located in a high crime area. this premises located in the census track 202. on sal license authorized by census track is 22. active on sale licenses, 37. the applicant premises is located in an undue concentration area. letters of protest, no record with the abc. letters of support, no record with the abc.
no opposition from mission station. the police department alu recommends approval. the following conditions have been recommended to the abc. number one, sales, service and consumption of alcoholic beverages shall be permitted only between the hours of 11 a.m. and 1 a.m. daily. two, sales, service and consumption of alcoholic beverages is permitted only on days the theater has a bona fide theater performance or movie. three, sales, service and consumption of alcoholic beverages shall be permitted only to the lobby area, as depicted in the abc257. four, sales, service and consumption of alcoholic beverages shall be made only from stationary bar or waiter-waitress services and shall not be sold to customers by individual
ambulatory vendors. five, the petitioner shall post signs measure nothing less than 12 inches with lettering no smaller than two inches in height that read, no alcoholic beverages beyond this point at all permitted exits and entrances to the theater seating area, as depicted on the abc257. six, any employee or security guard shall be assigned the responsibility of ensuring all alcoholic beverages stay inside the permitted lobby area whenever the privileges of the abc license are exercised. seven, the sale of alcoholic beverage for consumption off premises is strictly prohibited. eight, beer shall be dispensed, sold and served only in containers being no larger than 16 ounce capacity. these containers shall bear
distinctive markings, making them easily discernible from other non-alcoholic beverages provided by the licensee. nine, no person may be served and/or shoulder more than two containers. ten, the petitioner shall remain responsible free of litter the area adjacent to premises they have control, as depicted on abc 257. 11, loitering. that is defined as standing idly by, linger without lawful business. is prohibited on any sidewalks or property adjacent to the licensed premise under the control of the licensee, as depicted on the abc 257. 12, no noise shall be audible beyond the area under the control of the licensee, as defined by the abc 257. 13, the exterior of the premises shall be equipped
with lighting of sufficient power to illuminate to show conduct on all premises. lighting should not disturb normal privacy and use of neighboring residence. 14, inther your lighting maintained shall be sufficient to make discernible appearance and conduct of all persons and patrons in that portion of premises where alcoholic beverages are sold, served, delivered or consumed. thank you. >> thank you, inspector. the project sponsor is here. any comments? don't need to if you don't want to. no objection to the conditions. okay. no objection to the conditions. is there any public comment on this item? seeing none, public comment is closed. mr. gibner, could i ask you to explain briefly the -- if this is a new method or how you suggest we move forward? typically we would just say we will adopt the
recommendation but your suggestion now would be to do what? >> don gifford, deputy city attorney. the department of alcoholic beverage control recently sent alert to the clerk's office informing us that going -- the board essentially under state law has the authority to make a finding that the license would serve the public convenience and necessity or would not serve public convenience and necessity. up or down or yes/no decision but the board does not have the authority to make a yes decision with conditions. yes, we will make a pcn finding if -- that doesn't mean that the department won't listen to the board's suggestions, but the department has indicated they will take them only as suggestions. so going forward we would
recommend that the board either adopt -- include that the license will serve public convenience and necessity or not serve public convenience and necessity. if you find yes. yes will it serve public condition convenience and necessity and want to attach conditions, you adopt those as recommendations as opposed to conditions on your yes vote. >> and mr. clerk, you understand that as you draft the motion that will be in front of the full board? >> yes, sir. >> seeing no public comment, public comment being closed. is there a motion? >> i will make the motion this does serve the public convenience and provide recommendations as articulated by our department and to send the item forward. >> we can do that with recommendations. seeing no objection, that will be the order. mr. clerk, are there any other items in front of the committee? >> no more items.
we have a quorum. the next item is item b, the oath. will all parties giving testimony today please raise your best and -- raise your right hand. you may be seated. each appellant and staff has seven minutes to present their report and then there is public comments. each side is allowed three minutes for rebuttal. the next item is item c approval of minutes. is there a motion? second?
all in favor? >> aye. >> is there any public comment on the minutes? the minutes are approved. >> please note reverend mcrae has just joined us. >> the next item is item d, continued appeals, orders of abatement. case no. 6752, 1743 12th avenue. owner of record and appellant alla dubrovsky. attorney for the owner, heather wolnick.
action requested by appellate: to reverse the order of abatement. >> good morning. i am the attorney for the owner of the property. i am here to ask for a continuance of six months. this matter is being handled through the courts. we have gone through arbitration. there has been an interim order issued by the judge gunn monday. that would require us to go back to the judge for refinement on the details of the award. that will probably also require us to submit new plans, which we anticipate will take several months. we think, realistically speaking, a six-month continuance would allow our client to hopefully complete the
project. but it is in the works. we are getting closer to resolution. >> i would like to hear if staff has any objections to that. >> we came this morning with the intention of not recommending any continuances, but having heard this, we would concur with that. >> i just want to clarify there are no life safety hazards, have the department clarify that. >> so the order from the court is about who is responsible for doing the work? could you explain to me what the order currently is? >> it is much more complicated than that. in a nutshell, the court has ordered that there be a wall
built between the two properties. as to what kind of wall, the court order specifies that as well, but in addition, there will be a need to survey the properties to determine what kind of wall will go there, depending on the typography. we need to assess the elevation on both sides of the property. >> but there will be a wall. your client will be doing it, i understand. >> my client has agreed to build a wall two years ago. however, the story is very long and i do not want to burden you, but ultimately there was a dispute between the parties as to what kind of drainage would
have to happen. since then, several plants have been submitted to the city. we have plans approved, went back to arbitration, and now they have given a final award. before we had a settlement agreement. now we have an arbitrator's award. but the arbitrator's award contemplates going back to him for final plans, refining the plan. in conjunction with that, we are going to need to have some homework done, mainly service of both properties, and submit new plans reflecting the award. we believe that will take some time. then if you at the time for construction, that is why we are asking for a six-month continuance. >> one other question. did the court determine the
property line that both parties agreed to? >> that issue is not a problem because of the settlement agreement the parties had reached in august 2010. at that time, my client had undertaken the responsibility of building this wall. that is not an issue. >> has the court suggested to you it would take an additional six months or are you just requesting that? >> we are requesting that. the court has not been involved in these proceedings. they are just aware that these proceedings are going on. however, they have not given any opinion, one way or the other. has the court suggested to
you it would take an additional six months or are you just requesting that? >> my concern is that in six months it would be december, right before the rainy season. that and that is a concern of my client. that is why earlier i said hopefully. there are a lot of things that have to come into play. that would be the goal. we tried to give you a best estimate. i do not want to make any misrepresentations here, because some things are outside of my clients control. we anticipate that would give us enough time to get things done. >> this. >> this is not a question, more of a discussion. should i do that now? i wonder if we could uphold the order and then hold it in abeyance, for six months, so
i would hope the court would take that into consideration. >> i appreciatethat there is a e for this to end. we have issued now -- this would be the fourth. we have issued three continuances,that there is a dee my, to submit the order to uphold the order and then hold the action in abeyance for six months. >> is that possible? >> the concern i have is we need to hear from the department. if the appellant would like to weigh-in if it is a safety hazard. >> should we hear from the other neighboring parties first? >> sure. >> good morning. i represent james wong, the owner of the lower line property affected by all of this.
as the board may know, we also preferencehave an abatement or. we did not file, to submit the order to uphold the an appeal because we thought it would all sort out and felt that the assessments were based on the reality and the existence of a perceived nuisance and danger. we could not dispute that both sides had that, so we got to the point where we did not appeal, with all due respect to ms. dubrovsky's right to appeal under the rule. that being said, i concur with what tour-sarkissian has presented. we do have from a judge and appointed arbitrator, interim
arbitration award which calls for the parties to meet and confer, but the award itself has not fairly fixed parameters, and we are dealing with color, kind, location, some of the amenities, how to implement this interim award into a final award. the award is binding, so we are not going to be appealing it. i do not think the dubrovsky parties will appeal because i do not think it is appealable. i think there is enough in there, in my experience. six months seemed like an inordinate amount of time, having come before you three times, but the process started, as your records reflect, in
about 2007, with an abatement notice. that was continued with the department's good offices to allow for mediation which formed an arbitration. i have been practicing law for 40 years and this is the most curious time line i have had without having an actual trial, appellant, supreme court decision. so to avoid all of that, i guess
we have all the dignity but none of the glory. six months seems long, but given we have 30 days to meet and confer, the award came out monday. we are going to go to our respective people, architects, engineers, have them read it. there have been significant changes in topography over the last few years that need to be looked at, in terms of plans showing grades in elevations, showing whether they are approved or not, as the case may need to be redone, not withstanding what goes on top of it, just the underlying foundations. the may need to be adjusted. we want to get it right. with that in mind, probably 30 days out of getting back to the arbitrator. certainly, i would not think that more than 45 days we would be back. then there will be, on ms. dubrovsky's side, tweaking, adding, subtracting plans, getting them through the city, bidding on them, and then building.
i think everyone here is much more experienced on a regular basis of how things do and do not go down when you have bits. it is true, we will be at the far end of the weather, but we hope we can get it all done. if we cannot, we will come back to you on hands and knees, it will be the weather. thank you. >> i think you basically voiced our sentiments, too. at this point, we think we can do this in six months. i would prefer to come back in six months. we are working together, as you can see. it is not like it is going to go back into the courts at this point. just to refine and get this
done. the intent is to get this done. it is in both parties interest to get this wall don. >> great. could we hear from staff? -- wall done. >> would it be appropriate if you grant the six-month continuance, to report to you in writing at the next scheduled meeting so that you would at least know the arbitration decision was made by the judge? i would concur with the six months because, as you mentioned earlier, it has been tabled in number of times. we received one continuance, and maybe we will get two more continuances. i hope this is the last time. >> with regard to the life
safety, any concerns there? >> the two affected parties are before you and they are in agreement, taking on any concerns there. that gives us some comfort level. >> we are willing to give you a progress report on what is going on at the arbitration level, in terms of plans and executions, if that would convince you to give us that time.
we are shooting for six months, and we are hoping to achieve that. so we are asking for one last continue as of this matter. >> i would like to give a continuance. i think everybody pretty much agrees, but commissioner walker expressed something below bit different. i did not hear you make a motion. did you want to? >> i would tend not to do a continuance, coupled the order, hold it in abeyance -- to uphold the order, hold it in advance and then maybe have a check-in. let me ask the city attorney, if we uphold the order with the six months old, can we add to that, if we need, within that six months' time? if there is an emergency delay or something? >> i am not sure. i would have to check. you would then modify the order of abatement to allow the six months to complete the work, is that when you are saying? >> yes. >> if it came to you within six months, the question would be
then, could you re-modify it? i think you can but i'm not positive. i would want to take some time to get that answer. >> given the fact that the goal is to do this wall, i would say a six month continuance for us to come back -- neither the wong's or my intentions client is to have the wall not being done. it is in the intention of both parties. you have to understand we are doing this as fast as possible. our hands are tied because of the process, arbitration, because of what is going on there. i would plead that we did the six months continuance. we would give you a progress reports in the meanwhile so you know where we are going with this, and then come back. >> i might give maybe a two
months continuance. maybe then we would have more information in order to actually make a final decision. right now, it feels like there is not a final agreement with the arbitrator's, but i would like to see something more concrete sooner than six months. >> if that is your inclination, realistically speaking, it will take us about a month and a half to get back in front of the arbitrator. i would foresee that it would take another month for as to come up with new plans. >> so three months? >> that would be much more for us to figure out, in terms of time lines. >> commissioner walker, what is going on here, i believe this is a genuine effort to resolve this year whether they come back in three months or six months -- to me, by giving you the six months, that t.