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tv   [untitled]    May 15, 2015 6:00pm-6:31pm PDT

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you made last week and deny this appeal, you know why this is an important issue for public health and youth especially our lgbt youth selling cigarettes to minors is intolerable e-cigarettes should not be treated differently. thank you. >> next speaker, please. >> hi my name is [inaudible] and i'm representing the san francisco tobacco free coalition, i'm a member and i wanted to urge you to enforce these laws to make e-cigarettes inaccessible to minors. right now, they're very easily accessible to kids, my niece tells me she can get them from school pretty easily and when it contains nicotine or not, it's dangerous, if it has nicotine tha, can cause cardiovascular diseases as well as respiratory and as well as
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if it doesn't, it does -- the device itself can be dangerous. the retailers will sell e cigarettes and it should be treat ted same as the sale of tobacco and according to the 19n, the law, because pair fe kneel ya is bought to be used so that's what it's going to be used for. lastly, i wanted to show you a picture. i don't know if that can be seen in here. pair -- this is an example of e cigarette and is things that can look like e cigarettes, it looks like conditionedbacker candy. >> is there any other public
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comment? seeing none, we will start our rebuttal mr. st. pierre, you have three minutes. >> thank you, commissioners, derek st. pierre for the appellant. i wanted to address a couple of things, first off, we did present at the director's hearing specifically after the incident on this, there was an employee meeting and retraining occurred the very next day. in essence, there are mr. habash and a single other employee that work there the two of them met the next day, sat down and were very specific about what needed to occur prior to any sales of either tobacco or electronic cigarette devices so that specific di did occur after the incident. i also wanted to just reiterate that there have been no violations whatsoever in the history of his operations of business and that associated
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with the sale of this device was the first violation that has ever been alleged and oddly enough in hearing from the police officer, the lieutenant, i believe, the gentleman said that if someone were to sell a pipe, this is not the type of case that we would enforce. i agree the laws have changed, we have moved into 2015, but you have an individual who's been in the tobacco associated business for upwards of 20 years. you also have a department of public health who's sending out mailers would don't really clearly define the difference between an electronic cigarette with the tobacco juice versus the electronic device and i believe the remaining in march of this year reinforces the fact that the department acknowledged there were some clarity issues in termser of what their policy is.
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and finally, we're not standing before you saying that mr. habash has no responsibility he has september that responsibility -- accepted that responsibility and is going the serve his punishment that is deemed for this situation. what we're asking is a reduction in the suspension time from 20 days in order to a, avoid any closure of his business and, b, i think it may be appropriate in light of the circumstances. the questions i do have from the city is of the 37 cases that were researched in terms of tobacco store suspensions there's no indication what other items that those stores sold and what i mean is we have a tobacco dominant business versus a convenience store per se where a convenience store is going to sell sodas chips and other items beyond tobacco. >> thank you.
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>> thank you. we can hear from the department if there's any rebuttal. >> good evening, commissioners, i'm senior health inspector genine young the state law says that an electronic cigarette is a device. the local law say that is the electronic cigarette is the device. the packaging of the product says this is an electronic cigarette. the packaging also states it may not be sold to persons 18 years of age. luck 7 failed to ask for age, failed to ask for an i.d., lucky 7 had a sign that no one under the age of 18 should be allow ined the store. they didn't state that there was a training that occurred
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and the department could not verify the accuracy of their claim. when i said i did the research today i did look at tobacco shops that told 99% of tobacco products and those served 20 or more sus expensing days and none led to a closure of the business. one of the tobacco shops had served a 60 suspension day for selling tobacco to a minor device in one year, so i do hope this board upholds the department's decision for the 20 day suspension. thank you. >> thank you, commissioners, the matter is submitted. >> i'm inclined to deny the appeal and uphold the department.
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>> it was a novel argument though, the fact that there is no actual product, you know, that was not what struck me so much, i probably felt some compassion, lack of clarity in terms of spelling out exactly, you know, you're looking at legislation that's not always easy to understand, so i sort of bought that argument a little bit but i really don't see any basis for overturning. >> there's no other discussion, i'll move to deny the appeal and uphold the department on the basis that the penalty was appropriately issued. >> okay, thank you.
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mr. pacheco, when you're ready. >> there's a motion on the floor from the president to uphold this 20 day suspension on the basis that it was appropriately issued. on that motion to uphold commissioner fung? >> aye. >> vice-president honda? >> aye. >> commissioner wilson? >> aye. >> commissioner swig? >> aye. >> thank you. the vote is 5-0, this 20 day suspension is upheld on that basis. >> okay. thank you. the next item is item 7, appeal number 15-062, anwar imtair versus the department of public health, the property is 3801 3rd street, suite 12, appealing the denial on the march 20
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2015 of a tobacco sales establishment permit pursuant to the san francisco health code prohibition on new tobacco sales permits in supervisorial drinks where the total number of existing permits in the district exceeds 45. >> my name is marvin robinson i'm a lifetime rez didn't, this is anwar he is the appellant in this situation and the argument with the department is the fact that in january of 18th of this year, it went into effect, anwar had a situation with the department where he had some issues with the city taxes that he paid on november 11th of this year and he proceeded with another situation he had with the landlord of the bayview plaza that did not permit selling tobacco at his particular establishment. he got a new lease that would
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enable him to do such in a condition that it's in a secure area behind the cash area, by the time he stepped forth to get his permit because he didn't receive it in the mail, he was 13 days behind the deadline of january 18th. anwar has been a merchant in the bayview hunters point community for over 35 years he's one of the few middle eastern merchants who refuses to sell alcohol because of the negative impact it has in the community particularly with the young men and women standing in around these particular stores that engage in this particular product. in addition to that, with the ongoing redevelopment of a new community in the southeast sector of san francisco, the gentrification of not just the merchants leaving, the third street corridor which is one of the poorest corridors in san francisco. i lived there all my life and i have seen the days when we had
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italian merchants and asian merchant and is now you have store front we have 40 vacancies currently as we speak the san francisco board of supervisors had a moratorium on liquor license, they eased that license up to let fresh and easy neighborhood market in they stayed 22 month and is they fled as well as a chicken with wing stop, they stayed 11 mothers and they fled, the competition that was against is the violence the drugs the alcohol, the homelessness and these other elements that is not conducive to foot traffic, it's not conducive to the merchants, there's businesses that have been closing that's around 20, 30 year, not just the ones we mentioned, he stuck here, as we look at the cap, we have no problem with the prohibition that's in law and in place the evaluation is coming up in two years by that time, the san francisco
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shipyard with over 2 million square foot of space will be let lg new businesses come through, so this man has been true to the neighborhood and we are asking this board to overturn the ruling that allowed him to sell tobacco products at his location. he has had no violations over the years he's been a reputable merchant and he would be one that would lead as well as residents, a lot of the federal dollars coming into san francisco is coming into the existing residents of that neighborhood but the existing residents are leaving to other parts of the bay area because they cannot sustain the air y to move into the new urban renewal that is taking place, now the merchants are beginning to fee, so we all acknowledge a new neighborhood is being developed but let's not run away, the people who have been in the neighborhood all this time. er
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>> i want to thank each one of you for being here for us and listening to our problem, thank you, everybody. like my colleague testified, i opened an organic store next door from the location i had and stayed there about 8 months and i could not do it so i had to close it down. then i ask my landlord to give me a permit to sell cigarettes, he would not grant me the permit because i was behind paying my rent there and the health department issued a permit for cigarettes, and by the time they issued the permit for cigarettes the landlord [inaudible] to give me the permit, so i closed that business and to the basis because of the my language i could not understand everything. i closed the business and transferred everything to next door business which i have it right now so i'm not trying to
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open a new business i'm going the add the cigarette tos the tobacco product to keep my business and [inaudible] i -- so please i want you to consider my situation and i'm down to my last money for me and my family to stay in business because i love that neighborhood, i want to contribute and for the last 35 years to this neighborhood so i don't want to run from san francisco and close my business and thank you very much. >> one more thing to that note is the fact that i think that what's occurring here is that we all want to be in a situation where san francisco needs to be the city that knows how and this attempt to not only be able to give this man a permit to sell his product and
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to stay in business and that's the key, we're looking at urban renewal in an area that needs urban renewal and but we're looking at gentrification of merchants and residents who's been there all the time, they can't sustain the new and i think that's really unjustifiable that monies is coming into the city and county of san francisco, hundreds of millions of dollars to improve an area and those of us who have live ined the area will not be able to sustain in that particular area, physical and physical fight leads to police activities, on the 8:00 news, you may hear about some killing on the third street corridor, it's an ongoing thing so this is one exception and we're hoping you can take what we have spoke here today under consideration and grant him a permit. thank you. >> one more thing i can add, i sent the check for the city, for them to cash the check, when i spoke to the supervisor,
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they said this check was cashed by mistake, we can give you a refund right away, i said i don't want the refund, i want you to grant me the permit and when i open the organic store can i show it to you, please. >> you're out of time but you can show us that on your rebuttal time. >> excuse me, one question. your initial comments you said something about 12 days off. >> almost 13 days off the deadline. it was january 18th is when the cap went into play of no more permits in the -- >> in the application, this one? >> yes. >> [inaudible]. >> okay, we can hear from the department.
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>> lida [inaudible] on behalf of the department of public health. so, i didn't hear anything in the appellant's presentation that would support reversing the director's decision here. in fact, the director didn't have discretion, the cap in the bayview of 45 permits had been reached. there's 69 permitted establishments so the director couldn't make any exception
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specific to appellant and -- yeah, i'll stop there. >> good evening, i'm june wine trop, i'm the manager of this regulatory program. this is the first case that you are hearing for the amendments to 19h that were inbacker enacted in january, and i will say that you are correct, there was no heads-up given really to anybody that the law was going to be passed and that there was going to be a date at which this density level would start to be enforced. it's a complicated law and we are working hard to come up with some consistent guidelines. this case is actually very clear to us though, so it's nice that there is some level
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of clarity and i'll explain to you why. we -- first of all, you should know, we had approved a tobacco retail permit to mr. imtair to the grocery market in the same complex. >> the timing on that, please. >> we approved the permit sometime in october, 2013. >> 2013. >> 2013. we never abing humbly issued the permit because he didn't pay, so that is our strategy and once we receive payment, the inspector goes out, delivers the permit and actually explains the rules that go along with the permit. he informed us that he closed the business it changes depending on records i have, but in may of 2014, and in october of 2014, he actually
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asked us to waive the penalties and fees associated with that because there was never a permit actually issued so this is just at the other business this is not at the designer fashion's location. when mr. imtair came to us the inspector as well, asking for a permit, we actually spent quite a bit of time explaining to him how the law that had been enacted, it was passed unanimously by the board in december of 2014 and enacted in january, so that was the date. mr. imtair asked us if we could make an exception because of the previous permit and also the closeness to the deadline and we explained that we thought the law was very clear but we suggested that he go
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ahead and make an application to us we waived the application fee and we said, you know, at the staff level we were not in a position to do any interpretation of the law, we thought it was clear but that we would give him an opportunity to discuss with the director so we timely disapproved the application which we had told him we would do and went quickly to the director's hearing and is at the hear, dr. aragon actually agreed that in this particular case, the law is clear that we cannot issue to sell tobacco at that location even if the density falls below 45 in the bayview neighborhood, the supervisorial district which is how the density is accounted, this location will not ever qualify because the law is clear that we cannot issue permits to any location that
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has never held a tobacco permit before january 18, 2015. that's what the law says, so at the hearing, dr. aragon suggested also that mr. imtair could use some of the resource that is available in the city to explore some alternative methods to improve the viability of him closing the shop. i think it was new to me to see some of the correspondence in the exhibits that showed the correspondence between him and his landlord kind of trying to discuss what was appropriate for that particular location and i also want to just mention that immediately after the hearing, i spent a great deal of time discussing this with mr. imtair and i encouraged him to appeal to your authority since we as affirmed by our
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director felt that our read of our responsibilities under the law to deny the permit was clear but that this might be a venue. >> okay, may i? >> may i finish? >> excuse me, i thought they were, but maybe not. >> i just want to make clear that the commission is bound by the law, you don't have the discretion to change the law, the law has a cap and the cap applies to you as much as it does to dph. >> if you two are through, i do have time. i believe part of the appellant's argument was he had a permit which he was then not able to effectively use because he couldn't stay at the market but i understood you to say he never got that permit because
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he never paid for it. >> correct, and also i would note that was at a different location it's in the same complex. >> okay, thank you. >> they provided a copy of their check and he said something in their presentation about it being cashed. was that not a formal acceptance by the department? >> my impression of what happened was that mr. imtair, this was after we had cancelled the fees and had cancelled the penalties even, he subsequently appeared at the tax collector and paid the fee and the tax collector accepted the fee. ibacker i don't know why they did, but they said that they realized that they had made a mistake and i'm not sure how
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they realized that but all of this happened subsequent to -- i can show you. i'm not sure if you can see it well enough. this is dated october 15, 2014, and -- sorry thank you, and this is between inspector kestle and myself, he's saying the tax collector wants to know if the 2013-14 bill for mr. imtair attached to the account, he close ted business as far as we know in may, 2014 and i don't have my reply here but i went ahead and waived that, weed asked the tax collector to remove the obligation. >> i'm seeing something that's dated in november. >> between me --
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>> no mr. imtair received a bill with the charges and it says -- i don't know what it relates to but it's talking about fiscal year 2014-15, then there's date next to it november 3, 2014, and then it shows he issued a check on november 5, 2014. >> right so that -- >> is that the same check we're talking about? >> i'm not sure because that's a transaction he would have made with the tax collect torx i know the amount due on the 2013-14 bill i have was $240.87. >> we're talking about the same one. >> sorry? >> we're talking about the same one. >> i think we must be. >> so you can see there the
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h31 tobacco sales that's the type of perm, 13-14 that's the period for which he was billed, the penalty started accruing on 12/1/2013 because it wasn't paid, the fee itself is $108.50, the penalty and surcharge are exactly those things, and then so the total as you good across that he owed as of i would presume ak humbly december 2013 was $240.87, i don't know why he paid this on november 5th after he had asked us to waive the fee and to close the business, so i don't know the answer to that question. >> do you have any idea whether this check was cashed? >> no i don't know. >> okay, let's go onward with a
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couple of other questions about this particular change. as i understand from their brief t two locations are right next door to each other, so you're licensing for tobacco sales is not to an owner it's to a specific location? >> correct. >> okay. >> that's correct, and there's -- sorry to interject, [inaudible] on behalf of the department of public health and there is a provision which provides that a permit cannot be transferred between locations , so what this really comes down to and i think the appellant's going to submission that was apparent was there was
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an ongoing dispute with his landlord. >> in terms of them your statistics on 69 establishments selling here and only 45 allowed, was mr. imtair one of the 69? >> that is an excellent question. i don't know the answer to it. i would presume that it wouldn't be because as i said, since he never paid for it, it was never actually issued, so in our accounting, i don't believe that we would have, but i can try to -- >> if you can check, but how are they treated, they're like a nonconforming? >> i'm not quite sure what you mean by not -- >> i'm looking at it from a land use -- >> i realize that, they're
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either -- the district is either a district that is below the cap or they fall -- the applicant applies for a new permit such as the appellant here for the new location will only be able to obtain a new permit if he falls within some very limited exceptions that don't apply here. >> presumably there was no grandfather is what you're getting at. >> i guess a form of grandfather but it's interesting that even though he had a license to sell at a previous location he can't get one at this location because they changed the rules on that. >> they indicated he could never get one at