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tv   [untitled]    January 16, 2014 8:30am-9:01am PST

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this is just behavior on behalf of the owner. and that's the big thing for us here. >> i've got a question for you mr. murray. so no matter what the circumstances that the medallion holder wants to transfer, do you have law or legal standards on why you're denying the transfer as far as sfmta's concerned? >> it is -- i believe the statute does say subject to sfmta approval. when they transfer it's not that they just go somewhere and it's done. they have to submit information to us and we obtain information from the other company on how it's going to be operating, things of that sort,
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so we gather all of that material and base the decision on that. >> it seemed like she based it on a legal standard that certain things were required for refusal of a transfer. >> attorneys, help me out. i think in the code it may specifically mention administrative probation 'cause that's an absolute in terms of if you're a company -- if the accepting company is on administrative probation then it absolutely cannot go to that company so in terms of that standard yeah, there is an absolute there. now, admittedly it's a bit of a low standard. we have to make sure we have all the information necessary to ensure proper compliance when your vehicle goes to another company, which includes insurance, operational program
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and vehicles. we have to know as well the vehicle that's going to be used, same vehicle, different vehicle, we get all that information. >> so sfmta stands by that standard for not transferring it okay, right? how do i word this? the sfmta is comfortable that the standard has been met that this permit holder has not met the standard to transfer his color /skhaoep. scheme. >> it's a public policy standard that the owner of a company has decided that his own taxi can no longer work at his own company so it's going to go to a different company because my own two vehicle taxi company, i can't maintain. to us, that says you can't maintain your business, you're
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having trouble maintaining your business. we are the regulator of your business as well so we have to make sure our companies can comply with our rules and regulations. >> what was mentioned earlier is maybe their dispatch system is not capable or competent to attract that business and that they want to move to a larger company -- >> they have that ability to do so to change their dispatch. we have 28 companies but only 10 or 11 dispatch companies so only 10 or 11 are dispatching companies throughout san francisco. desoto, the company they'd like to go to dispatches only desoto vehicles. if they were to go to box city or arrow or and they can do
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that without moving their medallion to that company so they could transfer dispatch. it's a bit of a red herring. this is all after the fact /o*efpb even with the argument that i wanted less driving. thanks for telling us now after we've cited you and submitted this paperwork to inform you of this. >> i think you answered my question. >> no further questions then, commissioners? >> no. >> then the matter's submitted.
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>> what i saw today was -- i see nothing to suggest that this should be overturned. >> we have a motion to deny the appeal and up hold both revocations. >> commissioner tile. >> i.
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>> commissioner honda. >> i. >> the vote is five to zero. both revocations are upheld. >> thank you. we'll move on then to item 7a, b and c appeal numbers 160, 161 and 162, all a filed by at&t california against the department of public works bureau of street use and mapping. they were at the properties located at 194 and 210 randall street, 364 roll of street and 360 street surface mounted facility permits. they're on for hearing today. we'll start with at&t, the appellant because there are three appeals, you have 21 minutes to present your case. >> great. >> don't have to take all 21 minutes. >> i won't.
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>> can i ask you to hold for one minute. ? madam director and perhaps our city attorney wants to come in. it's been challenged that this is not appealable to us to discuss that situation first before we spent 21 minutes here. >> i think that was to you, but i would agree and i'm glad you raise that question. it seems to me that that issue alone should be to address that issue. >> should i address that? >> yeah, if we're in concurrence. >> give me one second and find that part of my notes here. >> sure, take your time. >> president fung. three minutes each on this issue? >> sure.
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aside from the hearing on min utes -- hold one more second. we have another question on process here. >> if i participate in that mart of the decision making process, can i do that if i'm not going to participate on the merits because i do have to leave at 8:30 today. >> yes, i think yes, right? >> i wanted to hear confirmation. >> if you think so i'm happy to do it. >> the commissioner raises that point because she has to leave at 8:30. >> understood. good evening madam president, commissioners, my name's mark blake, i'm the regional issue of jurisdiction a dpw exerts that this because at&t has not been denied any permits. dpw cites to shall hear and
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determine appeals with respect to any person who has been denied a permit or license and the city /kpharter does not define what a permit or license is. dpw argues that /s-s not denied a permit or license because the order and because we haven't
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had permission to file for an excavation permit and this creates a catch 22 situation where we are being told we can't appeal because we don't have a excavation permit and we can't apply for one because we don't have approval to apply. at&t cannot take such an approach because the order prohibits as i stated and section 4a 1 -- if i can put that up there --
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>> the city's interpretation is actually correct and proper because we do not approve the location that does not prevent at&t from submitting an application because the site has not been approved in this case. this is very similar in many ways to the previous that went to the board for appeal. it
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was based on the excavation permit, not for the approval of the site on 22 avenue so the department's trying to be very consistent in our interpretation of that portion of the dpw order. we suggest that at&t can apply for permit. it will be administratively denied and that will up to them to appeal the decision of the department. >> so dpw never stated to the appellant that they do not have approval to apply. they've sort of jumped over that stuff and said there's no point in applying because there's going to be administratively deanied. denied. no one has ever stated if you have never applied don't apply. >> no. >> if they appeal the denial of
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the excavation permit, with that also allows them to -- wait, that would be no site, never mind. okay. >> in case excavation permit or not we will back it from this commission to go over which is the approval of the site. >> okay. go ahead. >> you have asked for an interpretation from the city attorney representing your department? >> actually, the program manager requested that from the office that was provided. >> i just want to -- just one point. is there a clarification request. there's a public comment and we
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have a chance. >> i was going to recommend we have public comment but limited to this issue. >> that's correct. >> would you rather do that first? >> let's do it that way. >> is there anyone that would like to speak specifically to this issue whether these appeals are right at this time? the question is we will take public comment not on the substance of the appeals but whether these appeals are ready for the board to hear, whether they are in a -- it's a procedural issue, technical. this is not on the merits. >> i'm going to try if i'm not addressing -- >> yeah, let me try to restate
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it. i'll back off. thank you. so the question that we asked the representatives and the parties to address is a very specific question relating to whether our board can even hear this matter based on a procedural issue. this is been argued -- i don't know if i need to go into this. it's been argued by the departments that it is not properly before us to be heard until another procedural step has been completed within our department. if that's complete edd then it's ready for us to hear. the appellate has argued that whoa weren't even allowed to go to the next step so let's hear it now. that fair? if anyone in the public, we welcome your comments on that specific issue. e weren't even allowed
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to go to the next step so let's hear it now. that fair? if anyone in the public, we welcome your comments on that specific issue. >> i'm a property owner er at 196 randall street, make sure that the process worked and make sure the locations were selected. i don't understand how at&t can claim that they were denied a permit when all the dpw did was suggest that they go back and look for an alternative location at which time when they find one that works a permit will be granned granted so i find their argument strange and don't understand why they made the appeal in this manner anyway. that's all i wanted to add. >> thank you. all right. >> you want to allow time now for -- >> we have a public speaker.
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>> thanks. >> i'm addressing the issue at 620 and the issues are similar to what this previous speaker said. we were in the midst of trying to finds alternative locations when we were surprised. in fact, mark even instructed his people to work with us and then cut him off and next thing we knew there was an appeal so we -- that's basically the situation and we had some ideas, but those ideas have yet to be vetted. we've never had an opportunity to have secondary conversations. >> thank you. any other public comment? okay. >> i'm mark with at&t. i withdraw the that dpw administers. each one of those sections explicitly states that -- >> can you wait 'til we get to
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that? it's an exhibit, the dpw order you said? >> yes. >> g in the dpw order. >> what subsection? >> it's on section 2a on page 3 of 23. also looking at 381. >> i need to get to the first one. >> okay, i'm sorry. >> okay, page three -- >> three of 23 in the dpw order
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dating august of 2005. >> what section? >> section two, letter a. >> okay.
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>> in an analogous context in an appeal to a court from an administrative decision california courts to not require the appellant to exhaust all administrative remedies if doing so would be futile and administrative agency was clearly declared on a particular case and that's in the city of dana point case where the outcome of this is clear. we cannot apply for an excavation permit and if we do we will be denied because we haven't got the smf approval so i would argue this is ripe for the commission to review it right now. >> understand what at&t is suggesting, however, within an order of denial we have always been consistently stating and
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informing the at&t that the reason for the denial was we request at&t to identify internal facilities from all indications based upon review from staff. this is the only location for all three permits. these are solo locations so the suggestion from at&t is in these kinda cases you're required to approve it, there's no alternative, regardless whether it's public comment, objections or not, unlike what has happened previously that was appealed at this board on 22nd avenue where alternative location was identified working with the community. >> in these kind of cases the department suggests that in order for it to be fully effective that the process
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needs to be followed that there should be this approval of an excavation permit in this case, a denial excavation permit to effectuate this similar process as we did to the previous matter that came in front of this board for surface facilities which was the appeal of the excavation permit as it relates to the findings of the department of the citing of the surface facility in this case. >> okay. >> are you finish /stph-d >> yes. >> with that logic then should have led to completeing the other steps before there's a denial, shouldn't it? >> that is correct and we had requested at&t to work the community to come up because the order was very specific that would allow for additional 20 days. >> this approval came from you folks. >> excuse me. >> this approval came from you
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folks. >> yes, it did. >> before those steps were completed. >> i mean, if you -- if they don't move on it then it just sits, nothing gets done, . >> but you triggered it by your disapproval process; is that correct? however -- >> understand. >> however, had the department choose not to take action of either making final decision, a decision on the citing, we would still be back at this body -- >> i understand that sequence. thank you. >> thank you. all right -- >> can i jump in first? >> of course. >> i'm not sure i'm in
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agreement with dpw's position for the following reason. permits and license have been in the charter for 80 years and we have on other occasions done additional things or heard additional appeals for cases that did not involve a permit or a license and so i will give you the following examples. one would be a letter of determination, another would be a major project authorization. none of those involve an actual entitlement. >> right, but there are other code provisions that give the board authority to hear those type of matters. >> you're saying that's specifically stated and allowed.
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>> by legislation, yes. >> i'll ask our city attorney opinion on this. a: are you? >> yes, into the microphone please. >> my view on it is that on the charter, the board of appeal has jurisdictions over the decisions regarding permits, the issuance or denial of permits and i understand the frustration that's been expressed on the other side, but until we know what the permit is, then -- and until the permit has been denied, then i don't think it's here yet so there should be an application for a permit. it wouldn't necessarily -- if dpw makes it impossible for at&t to file a formal application for permit then i think at&t should send a letter to dpw that satisfies the requirements for an application for permit requesting that the permit be granted so that we know what the permit at issue
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truly is that at&t has satisfied all conditions of the permit and dpw has a chance to say we are denying the permit for reasons one, two and three in this letter or this application, then thosish shies would come before you for /aeu analysis and appeal. >> i think what our city attorney just state d makes sense to me because the permit that will ultimately be denied is the permit which we have jurisdiction to hear and it will be included in that as the matters that you brought today on appeal. so we will get there. i agree, this must be frustrateing, but that is part of the city process. i understand your argument on the law, but i don't want to mess with the city process because i don't want to operate
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outside our current jurisdiction. >> i heard something a little troubling, and i don't know that this is germane to the particular issue. the represent said that at&t was asked to go out, meet with the neighborhood and identify alternative sites and it looks like they're trying to circumvent that. it seems like there was an opportunity to find an alternative site and that's being looked over. >> for the process, i think -- i think we are so inclined to take a vote on the question of jurisdiction because i think once -- if it goes away that we're leading here, i think it will determine the outcome on the rest of the appeal on the
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merits so i'm going to make a motion to deny the permits based on lack of jurisdiction. >> could i suggest maybe instead of denying the permit -- so are >> sorry, reject the appeals because we have no jurisdiction to them. >> i'm curious also if you want to have us refund their appeal filing fee. >> absolutely. i would as part of the motion. >> so to reject the appeals and refund the fees for basis of lack of jurisdiction? >> yes. >> when you're ready. >> the motion is from the president to reject all three appeals for lack of subject
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matter jurisdiction and refund all three appeal fees. $900 refund. on that motion to reject for lack of subject matter jurisdiction, commissioner fung. >> i'm going to disagree, no. >> commissioner tile. >> i. >> lazarus. >> i. >> honda. >> i. >> thank you, the vote is four to one, these appeals are rejected for lack of subject matter jurisdiction. thank you. >> there's no further business. the meeting's adjourned. wedn.
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happy new year commissioners and welcome back to the new calendar year please silence all electronic devices. that may sound off and when speaking before the commission please state your name for the record. placing. commissioner wolfram. commissioner hyland. commissioner johnck. commissioner antonini. commissioner matsuda.

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