Skip to main content

tv   [untitled]    July 16, 2010 2:30pm-3:00pm PST

3:30 pm
was similar word of decisive and the commission's determination at the june 9 hearing. i would submit while those hearings were discussed, there were discussed extremely briefly and in the context of abandonment, namely whether the owner of the property and the permit holder had intent to abandon that use by not formally completed the permit application by the january deadline. we feel that any discussion of vested rights doctrine is a relevant here because it fundamentally -- is irrelevant here because it fundamentally is tied with the doctrine of the city that can somehow be stopped from having issued a permit. of course we know all is clear on that. -- of course, we know the law is clear on that. furthermore, it pertains to legal nonconforming uses.
3:31 pm
what we have here and what was it established clearly at the june hearing is this is not in any sense of the word a legal nonconforming use. at the intersection of the san francisco health code and the planning code made clear that in order to have used, you had to take certain steps to finalize the permit. but they were never finalized. under the clear provisions of the code, you therefore did not have any right to use. if anything, you are an illegal use, and vested rights did not apply to illegal uses. for those reasons, i ask that you deny the appellants request for rehearing. we have a full and fair briefing on this. thank you very much. president peterson: thank you. mr. sanchez? >> thank you. good afternoon, president peterson, members of the board. scott sanchez, planning department's staff. the department respectfully
3:32 pm
request the board denied this rehearing request. there is no new information presented this evening that is not available at the time of the previous hearing. also, the letter of determination holders, there is no manifest injustice. they have the right to go through and fulfill the use, at which they work properly entitled for. i respectfully suggest the discussion at a previous hearing and the decision was largely based upon the two issues of whether or not it was actually entitled properly in the first place. i think we thought it was not properly entitled and we did not have the permit and not unlawful mcd. the second issue, that they abandon the use by converting it and making significant efforts to convert it into another use. we believe the board properly heard that matter and we request you uphold the action and denied rehearing request. i'm available for any questions. thank you. president peterson: thank you. is there any public comment on
3:33 pm
this item? ok, seeing none, commissioners, the matter is submitted. commissioner hwang: i have several questions, whether of mr. miller or mr. sanchez. your brief, mr. miller, i wonder what citations you are referencing in the citation? i just want clarification. >> commission, out craig miller -- greg miller. commissioner hwang: specifically, on page 2 of the brief, the reference board practices without citation. i wondered where that came from. >> can you give me a line? commissioner hwang: 23. >> i am citing theire from this
3:34 pm
form rehearing request. if i may read into the record, "except in extraordinary cases and to prevent manifest injustice, motions for rehearing shot not be made by the board except where it is shown new or different material facts or circumstances have arisen, were such facts or circumstances if known at the time could affect the outcome of the original hearing." commissioner hwang: and on the manifest injustice standard, both you and mr. sanchez say there would be no manifest injustice. thank you. the manifest injustice that he believes it is satisfied here because there is no economic, potential economic harm? >> that is correct. if i may, the manifest injustice standard is admittedly a little difficult to pin down. it is something you see arising
3:35 pm
most frequently in the context of criminal actions, where a defendant is denied the right to bring forward certain facts that might have affected the outcome of a criminal trial. in civil matters, it comes up in the context of economic harm to the party. as i read, the document here from the board, and also just sort of based on kind of the general concept of land use and eminent domain and the rights of cities to control the rights of private parties use over property, this also would not arise as economic damage to the property owner. commissioner hwang: if it is not rendered economically valueless, phrased in the brief, then it satisfied that prong of rehearing request standard? >> yes, i would argue that is the case. commissioner hwang: do we have a
3:36 pm
counter to that? ok. commissioner fung: i think the counter is not directed to mr. sanchez, it is directed to the appellant. >> i have a direct counter to that law, but i would say the manifest injustice in this case and economic damage that arose was because mr. hunt had originally received approval from the zoning administrator and had five months spent considerable five months -- had spent considerable money to moving to completion of this project and effectively did not have anything new -- there was nothing we did not disclose in the original letter that had not gone towards the completion of the work, pending approval of this. in terms of economic damage, there was manifest injustice and why i think this case deserves additional scrutiny is because of this five-month time frame or
3:37 pm
mr. hunt spent a lot of money and time, paying rent five months, and had plans drawn up, went to the mayor's office of disability, hired an engineer, made a security plan, to all the steps. there were a number of issues that are not resolved. there was this january 21 deadline for completion of the permit where we submitted a lot of. net information that nobody rebut it, and it was state it that it was not an accurate. none of that was clarified at the meeting. i think this was an exceptional circumstance that should really be looked at because of the economic damage. mr. hunt suffered because of the error by the zoning administrator. commissioner hwang: thank you. nothing further. commissioner garcia: i will
3:38 pm
start, because i think mr. hallinan jr., and i mean that respectfully, suggested that the brief they had submitted dealt with the issues, first of the deadline, january 21, 2009 deadline, whether that had been breached and whether the zoning administrator had acted properly when he later -- and all of this has been confused by the fact we have had two letters of determination. it is unfortunate in happened, but it happened. iso i think the board is thoroughly dealt with the issue of whether the deadline had been met, the question about whether they could have -- tracked this. even though they had a threatening letter from public justice, they could have gone ahead and applied and not open
3:39 pm
their m.c.d. until that threat had been updated. then we got into the issue of even if they were still alive, because of these extraordinary circumstances, the government all action that was beyond their control, did abandonment happened? i think we went to that fairly and there was a fair amount of evidence naively or otherwise, the gentlemen who apply for this permit proceeded in a way that would lead one to think he had other intentions for that building. and then, my understanding of mr. hallinan's comments this evening have to do with the fact and issue arose over the fact that the operator, the person trying to this particular m.c.d.
3:40 pm
up and going, it has been suggested, would operate differently from the person who was previously there. i know i got into that. i don't recall whether other people did. i remember why i did. we had a letter in our package i assume everyone had on both sides, from supervisor mirkarimi's office. in that letter, he raised an interesting point, and i addressed it. it was an intervening variable to me. at was not a core issue -- it was not a core issue as to how i thought the case should be determined. the issue he raised was the fact that -- he did not even suggest there should be legislation to suggest this, but he raised the issue that when you change operators, that new operator should be vetted. particularly in this case, because time had passed, all these other circumstances we of
3:41 pm
just gone over. he, supervisor mirkarimi, someone from his office, possibly one of his legislative aides, but certainly a representative from his office also addressed the same issue. some discussion was given to that. my feeling is sometimes we go -- and i am guilty of this -- we go over the board and discuss things that are sometimes relevant, sometimes are not in an effort to satisfy the parties and various elements of the case to be considered. at any rate, having said that, i hope it is clear i feel as though the core issue in this was the fact the deadline had passed. the z.a. operated correctly when he stated that, therefore, we cannot accept this particular permit and this m.c.d. would not be allowed to continue.
3:42 pm
and even if that had not happened, it was abandonment. i feel like all of these issues were discussed, the opportunity to discuss them was here. therefore i find nothing new or extraordinary and i intend to vote to not grant a rehearing. commissioner fung: i am of a similar opinion. i know we talked about the issue of entitlements running with the property, and the core question was whether those entitlements were there, and i believe we addressed those. i went back and looked at the video, a little bit, not its entirety, i did not feel like sitting through another 2.5 hours, but i feel like most of the things that were brought out in the rehearing brief were discussed. iwhether it was clearly and fuly
3:43 pm
stated by the members of the board as to what exactly we accepted and not accepted is not always easy, in that we are sort of not writing the manuscript. president peterson: anybody to my left? commissioner hwang: i think there are some inequities at play here that would persuade me to grant a rehearing. in part, there were facts that were presented with respect to the permits that were finalized,
3:44 pm
post january, 2009, and the response to that was simply there were probably down an error. -- probably done in error. there was additional information in the appellants brief that these permits were already commenced and finalized subsequent to that deadline. i think that is kind of a key new fact, from my perspective. however, i don't know if other commissioners will go with me on this. but that is my inclination. vice president goh: i will go next. -- president peterson: i will go next. this was a very difficult case. we heard a myriad of testimony. most of it was given in the context of abandonment and
3:45 pm
previous ownership. i think that commissioner garcia said it, we all here try to take this all into account. in terms of economic damage, i think mr. hunt had an alternative usage in mind, and i think when all the factors as well as the legal issues of abandonment, we discussed that and i feel comfortable with where we came out on that decision. i would be inclined not to grant the rehearing as well. vice president goh: yeah, i was not here for the hearing. i reviewed the transcripts and some of the video. i did not see anything in the briefing, at any facts or exceptional circumstances.
3:46 pm
president peterson: i will move to deny the rehearing request. >> thank you. if you could call the roll, please. >> we have a motion from the president to deny this rehearing request. on that motion -- [roll-call votes] thank you, the vote is 4-1. the rehearing request is denied it and the notion -- the motion will be continued. >> thank you. if you could please call item no. 5. >> calling item 5, appeal number 10-0007, salem kaileh, doing business as quick star market, vs. department of public health. is the appeal of a 25-day suspension of a tobacco product sales establishment permit, imposed on january 13, the
3:47 pm
hearing held in closed on may 12, and the matter was continued to allow president peterson to participate in the final vote. president peterson: thank you. commissioners, at the last hearing, commissioner garcia moved to grant the appeal and reduced the suspension to 20 days. at that time, the board voted 3- 1 in favor of the motion. president peterson was the mission commissioner -- the missing commissioner. she has indicated she reviewed the matter in this record and has asked the motion be recalled. it is that correct? president peterson: that is correct. >> before we call that motion, is there any public comment on this item? are you just going to speak on public comment? ok, thank you. ok, if he could call the roll, please.
3:48 pm
commissioner garcia, are you comfortable with that? commissioner garcia: yes. >> the motion is to reduce the 25-day suspension to 20 days. on that motion -- [roll-call vote] president peterson: can make a comment. aye. in explaining my vote, i actually thought this was more difficult perhaps reviewing it on tape. the testimony seemed less sympathetic. i did not hear much testimony about preventative measures, but i wanted to thank the department for doing a follow-up, observing the business in terms of percentage of sales. and very much appreciated that. but on balance, i was persuaded by the opinions of my fellow commissioners and i vote aye.
3:49 pm
>> and commissioner hwang? commissioner hwang: aye. >> the vote is 4-1, the suspension is reduced to 20 days. calling item 6, appeal number 10-015, chong kwang chung, doing business as martel's liquor. it is also an appeal of a 25-day suspension of a tobacco product sales establishment permit, imposed on february 10, 2010. the hearing was held in closed on may 12, and the matter was continued to allow president peterson to participate in the final vote. >> commissioner fung move to grant the suspension and reduced to 20 days. this was after the board had gone into closed session to
3:50 pm
review confidential identification card and evidence pertaining to the minor decoy used in this case. president peterson was the missing commissioner, and she has indicated to me she has reviewed the records in this matter, including the confidential evidence, and asked the motion be called. commissioner fung are you comfortable calling your motion again? commissioner fung: yes. >> thank you. is there public comment on this item? ok, saying none, if you could call that motion. >> the motion is from commissioner fung to reduce the 25-day suspension to 20 days. on that motion to reduce -- [roll-call vote] thank you, the vote is 4-1. the suspension is reduced to 20 days. thank you. >> thank you.
3:51 pm
we can move to item 7, when you are ready. >> calling item 7, appeal number 09-144, westley hollis, forces municipal transportation agency, a division of taxis accessible services. it is the appeal of the revocation of taxicab medallion number 1022 and color scheme permit number 3032. the hearing was held and closed on may 19, and the matter was continue to allow both parties to submit additional information pursuant to the board's comments. president peterson: thank you. we will start with the department. mr. murray? to sell the parties understand, mr. murray, you have five minutes to testify. you'll have seven minutes, because of the additional briefing submitted by mr. murray.
3:52 pm
>> thank you, commissioners. the mta brought this revocation action to protect public safety and quality of taxi services for residents and visitors of the city and county of san francisco. the municipal code gives mta broad discretion of revoking its permits for public safety and danger. in order to help the board understand how we arrived at the decision, and revoked mr.
3:53 pm
hollis' medallion and color scheme, it is important board understand the allegations in this matter that were in the original complaint. some of the issues raised in the original complaint were not discussed in great detail at a previous hearing because it was not clear in a previous hearing whether the matter was being heard at that time. there was not any indication by the board that the hearing officer's decision to revoke the medallion and color scheme permit was erroneous or abuse of discretion. had that been the case, mta would have expected the issue to be remanded for another hearing officer or for a new hearing to be held to be reintroducing the appropriate evidence. because of that, some issues were not discussed and i am bringing this issue is now. primarily, simultaneous usage of the taxicab medallion. back in 2005, there were numerous complaints from various cab drivers that executive driver -- executive
3:54 pm
taxi was operating two or more vehicles simultaneously. under the transportation code, spare vehicles can only be operated when the primary vehicle is temporarily disabled or out of service. the medallion of the primary disabled vehicle is then placed in despair vehicle and the spare vehicle is allowed to operate accordingly. upon discovering this, the officers saw mr. hollis' vehicle at the airport, determined there was a problem, checked the cashier records for actual 1022. upon seeing mr. hollis' spare taxicab vehicle, discovered that mr. hollis was carrying a fake medallion. mr. hollis was admonish and cited for the conduct. however, the conduct continued and that is part of the problem. in 2005, it was determined 44 days out of the year there was simultaneous usage.
3:55 pm
2006, 13 days, to dozens 733 days, two dozen a, 44 days of simultaneous usage. -- 2008, 44 days of simultaneous usage. the same issue was workers' compensation, which we discussed quite a bit. that issue was mr. hollis did not carry workers' comp for his driver's for 40 months. the agency has an interest in only those companies that comply with all the applicable state and local laws. when a company like executive taxi fails in this regard, mta to revoke its permit. the board of appeals should therefore at least a pulled the revocation of mr. hollis' color scheme permit. mr. hollis explains away the simultaneous usage by saying that he repaired the car and is on apartment, at his own place,
3:56 pm
and did the work himself. this was also calling for the mta, but there was no indication he was a licensed mechanic. this is a public safety issue for us as well. that he is not a licensed mechanic performing this work, we don't know what will happen to the vehicle. it is a huge liability for him and the city. importantly, and because i am short of time and i understand the reason why, someone once told me that people follow rules because it is logical and right to do so. others follow those rules because they are afraid of getting caught and being punished. mr. hollis is in the latter category, afraid of getting caught and being punished. if mr. hollis walks at this room today without any form of discipline, the message that will be sent to the industry, for all those abiding by the rules and paying for their permits, taking care of their
3:57 pm
vehicles and drivers and customers, the message will be the transportation code is meaningless, sf mta is meaningless, please code is meaningless, and public safety is simply meaningless. the right thing to do is to have some form of discipline for mr. hollis. if you disagree with a verification -- with the revocation of his medallion, we believe the revocation of his color scheme permit our monetary fine is important and should be done. thank you. commissioner fung: mr. murray, part of the reasons why we continue this case, it was not clearly stated, at least for myself, we understood the fact that you brought ford -- that you brought forward with this particular medallion holder. what i was looking for was some type of nexus between the
3:58 pm
penalties that you have written a new statute verses what you have traditionally done in similar instances related to not only the workman's comp, but the other issues. and what you have proposed in your brief. i don't see that nexus. i have given you an opportunity, if you like to respond to that. >> >> so, i mean the way that i'm understanding the question is why were things done a certain way before and being done a certain way today? is that correct? commissioner fung: no. let me be more specific then. the statutes call for, there are some monetary penalties, up to $500 for a major infraction. i don't know how you
3:59 pm
characterize this particular -- it hasn't really been stated in your brief but i'm assuming you are thinking this is a major infraction. >> that's correct. commissioner fung: going toward rev ovation and -- rev occasion and not suspension. then you have proposed a number of potential alternative penalties ranging from suspension to -- of the color scheme to a fairly substantial monetary penalty. how do you correlate your alternative penalties versus what is in your books? >> well, the fact of the matter is that these regulations have been on the books for a long time. previously under the police code particularly section 1090, not carrying insurance, for example, was cause for mandatory rev ovation -- rev okation of the