Planning Commission - Regular Meeting

you recording in progress

Ms. Carrell, we're ready.

One minute. Okay, we're ready.

Good evening. And welcome to the Planning Commission meeting of the City of Hayward. We are holding a hybrid meeting with some participants in the council chambers this evening and others who have joined virtually via Zoom. This meeting is being webcast on Comcast TV Channel 15 and also livestreamed on the city's YouTube channel and on the city website. If you are able, please rise for the Pledge of Allegiance. Ms. Carrell, will you please call roll?

Commissioner Hammond.

Present.

Commissioner Hardy.

Present.

Commissioner Lowe. Here. Commissioner Myers.

Here.

Commissioner Stephens.

Present.

Commissioner Yergo.

Here.

And Chair Goodbody. Here.

Public comment. The public comment section provides an opportunity to address the planning commission on items that are not listed on tonight's agenda. The commission welcomes comments and requests that speakers present their remarks in a respectful manner with established time limits and focus on issues which directly affect the city or within the city's jurisdiction. As a commission is prohibited by state law from discussing items that are not on tonight's agenda, your item will be taken under consideration and may be referred to staff for further action. Speakers shall not use threatening, profane, or abusive language with disrupts, disturbs, or otherwise impedes the orderly conduct of a commission meeting. The city is committed to maintaining a workplace free of unlawful harassment and is mindful that city staff regularly attend commissioned meetings. Discriminatory statements or conduct that is hostile, intimidating, oppressive, or abusive are per se disruptive to a meeting and will not be tolerated.

Our first item is PH26- Chair Goodbody, there is three people on Zoom that have their hands up for public comment. The first speaker is Sol. Can you test your mic, please?

Hello, good evening.

Okay, Sol, your three minutes start now.

Okay, so here's here's my husband, he's gonna speak for us. Hello. So your statement about the complaint. Go ahead. Just a moment, please. You have three minutes. Here it is.

Just read it. Right, so I have some concerns about the data center campus. Beginning with the diesel generators, they produce well-documented health hazards. Diesel particulate matter, which is classified as a toxic air contaminant, nitrogen oxides, Let's see, it's near a residential neighborhood, and it's also near the bay. So there's a concern about the environmental impact. The ecological reserve, too. Right, the ecological reserve that's right beside it. Diesel generators create carbon dioxide, black carbon, and other cloud-warming pollutants. It's going to need continuous cooling and power for that project, which will increase local electricity demand. and require more fossil fuel generation than elsewhere on the grid. The facility's water and energy use might conflict with the city's climate action goals and also the statewide decarbonization targets. Hayward has committed to reducing greenhouse gas emissions, as has California. And so approving a project with a large diesel backup capacity undermines those commitments. The third item is the noise pollution and various quality of life impacts. Backup generators and cooling systems produce a lot of noise. They can reach industrial level decibel ranges that can affect any homes or schools nearby. There's also wildlife in the preserve that would be affected by the noise. Let's see. Yeah, it would be basically chronic noise exposure for the neighbors and the wildlife. um number four is the issue of water use and strain of the local resources data centers require a lot of water for cooling and depend on on the technology used we've had a lot of droughts you know as like montrose california and making large industrial water users a long-term concern increased water demand make strain municipal systems and require costly infrastructure upgrades Wastewater discharge from those cooling systems may contain chemicals and high temperatures that require management. And there's the question of where all that water is going afterwards. If it's going into the bay, that'll affect wildlife.

Your three minutes are expired. Could you wrap up your comments, please?

Yes, so I just ask the City Council to prioritize the health and well-being of our community by thoroughly evaluating the data center campus and ensuring that any approval is contingent on strong environmental concerns and safeguards.

Thank you so much. I just want to add also that I'd like to find out where we can find all the data from the studies, whatever impacts were done. Yes.

If you wanna speak, please go ahead and sign up. We're gonna move on to the next speaker, Mr. Tyler Dragone. Tyler, go ahead.

Hi, can you hear me?

Yes, we can.

All right, so yeah, this is also about the data center and putting aside what Sol and her husband said, and then also putting aside that essentially the data centers are gonna talk to the flock cameras and the flock cameras are eventually gonna talk to our phones. So putting aside also that, this planning commission facilitated the building of the Panopticon. And if you don't know what Panopticon is, I'm sure you've read 1984, essentially the facilitating of the security state. So putting that aside as well, it really was disappointing to see the planning commission completely abdicate their role in advocating for the residents and even the city of Hayward. The benefits package was absolutely paltry. San Jose and other cities have gotten 35, 50 million. I've read about a hundred million dollar benefit packages for these data centers. And it... And I seemed that I've read that some of you were uncomfortable getting any sort of benefit for the city of Hayward and its residents at all. That is absolutely disqualifying. It's disqualifying for a planning commission seat. It's disqualifying for city, a city council seat. That is absolutely horrendous. The city is in a $30 million deficit and you're uncomfortable asking some of the most profitable tech companies to to do business in Hayward. I mean, it's just remarkable. And the environmental impacts alone, next to the bay, we have a natural gas power plant. Now we're putting this data center. We get some of the most clear, clean water in the world. contracted into the Hayward water system. And it seems like this planning commission really didn't take into account anything like that. Did any of you actually do any research for those that voted for this data center? Did you actually ask your neighbors you're appointed and i was appointed member of the eden municipal advisory council for five years that made me want to go talk to neighbors even more because i did not have a mandate to be up there i was appointed by somebody else so you need to go and talk to your neighbors if you don't know about a situation you need to get more perspectives you need to ask more people because it's obvious the way in which that data center was approached was completely reckless Thank you.

Thank you. Our next speaker is Mimi Dean. Hello. Go ahead.

Hello, can you hear me now? We can hear you. wonderful all right so i'd like to pretty much echo what both of the other speakers said you know um this whole debacle with the data center i was one of the two people that did come to the meeting last march and said this is ridiculous that we're gonna allow this thing to come into our community um you know i cannot understand why we would allow something like this in our community and so close to people's homes. If you do the radius of how close that data center is to people's homes, there are tons of people's homes within a one mile radius. It is absolutely ridiculous. And I really agree with Tyler. Like, did you guys go out and talk to anybody, you know? It's just crazy that we're putting in this data center. I drove past it the other day and I can see it's well underway of construction. And that was the same day I went on a walk down at the Shoreline Adaptation Center with Dr. Quack from East Bay Regional Park District. And we were looking at all the turns and all the endangered birds that are down at the shoreline. So my big question is, Why are we putting things in, once again, for people that do not live in Hayward, they do not live in our communities, and we are once again allowing land use decisions to be made to benefit people that do not live here. We are throwing our residents under the bus. We're throwing our animals under the bus. We're throwing our habitat under the bus. I really hope that you guys understand what you have done. And I know that all future data centers will be out of your hands, but it really saddens me as I have sat on other boards and I currently sit on a different board. You gotta do your homework, you gotta understand what all the implications are, and I'm really sad that you guys voted 7-0 to approve this data center. So please, I hope you're gonna think about your votes in the future, and you're gonna think about the people that live here, not the people with the money who do not live here. Thank you so much. Good night.

Thank you. Ms. Corral, are there any other speakers in the chamber that would like to? We have not received any cards. Okay. All right, I'm gonna close public comments, see no.

Oh, sorry, Chair Goodbody, one more person has raised their hand. Okay. The speaker's name is Belen. They just raised their hand.

Please approach the podium if you wish to. She's on Zoom, sorry. Okay. Go ahead, Belen.

Belen, can you hear us? We can hear you. Can you test your mic? It seems she left, or let me.

Belen, are you there?

We also have two more speakers. The next speaker is James Anthony.

Mr. Anthony.

Oh, there we go. Hi, I actually want to address a matter that it's unclear if it's on the agenda or not. You have your tobacco hearings, but before you have the tobacco hearing, I have a request for a continuance of the Hesperian Boulevard item.

You can address that during the tobacco hearing.

but it is not part of the eight minutes. It is a procedural matter before you begin the hearing. But any way you want to do it is fine with me.

Okay. Once we call up the item, then you can address the commission during public comment for that item.

Okay.

And then we have Belen back on. Let me see. Belen, can you test your mic? It doesn't seem like it's working. And then the user Sol also raised her hand up again. I'm not sure if it's the wife who would like to speak this time.

Just want to check, Belen, are you able to check in? Can we hear you? We can't hear you right now. All right, we'll come back to Belen. Let's go to Sol.

Hi. Yes, thanks for allowing me to participate. I'm very new to these situations and I'd like to know what kind of due diligence in terms of impact studies were done and how can we get access to that information?

We are not able to respond to public comment, but we can refer your question to city staff.

Yeah, I'd just like to know, I would appreciate it. I already had sent a email about this, trying to see what this planning commission used as data to make their decisions.

They will contact you offline separately.

Okay, well, thank you very much. That's all I wanted to find out.

And then, Sol, just for the record, could you state your husband's name since he was a separate speaker? Yeah, Carl Mills. Carl Mills, thank you. And then you are Sol?

Sol Solorzano.

Okay, thank you so much. Thank you. And then we have another speaker, Tatia's iPhone.

Hello. Hello. Tatia, go ahead.

Hi, I also would like to speak to the data center issue. I was actually sent by Francisco Zermano, the state planning, the report that was done. And some of the numbers actually conflict other state, California State Energy Commission, their information online. And I just wanted to speak to everyone else's point that I can't believe that all seven of you guys made such a huge decision for the future of our city. I understand that we already have data centers here, but this data center in particular is planning on using 56,000 gallons of water a day. Um, And like a previous speaker said, we have this beautiful clean water in this city. It's like, do none of you even live here? Like, why would you just decide, just seven of you, that we can trade our clean air, our clean water, for what, a $2 million benefits package, which is basically like crumbs, considering what they're giving everybody else. It's like... purposefully putting us on the map to say, hey, data centers, come here. We're cheap. We don't care about our people. Like, it's really disheartening that only seven of you, and I read that Commissioner Roberts, I read your statements that you don't think we deserve a benefits package at all because it'll stop other data centers from being built here. We don't want data centers here. I just don't understand why you would think that. It's a 72 megawatt capacity. That's like 1,612.4 megawatt hours. Like the average house only produces 20 to 30 kilowatt hours. Do you guys go over these numbers before you make these decisions? I honestly think it would be best for all of you to resign. Like this is ridiculous for our children, for our community. This is ridiculous. And I have nothing else to say. Thank you.

The next speaker is Belen.

I think she actually exited the Zoom, so there are no other speakers. Thank you.

Okay, that concludes the public comment section, and we move on to the first agenda item, which is PH.

Chair, I will need to recuse myself from this item because my firm does business with the applicant, so thank you.

Thank you, I've noted that Commissioner Stevens is recused from item one. And now we have item PH26-033, Eden Ranch. And we will go to staff presentation.

Thank you, Chair. Good evening, commissioners and members of the audience. I'm Steve Kowalski, senior planner with the planning division. This is an application for a vesting tentative tract map, density bonus, and site plan review to subdivide a 4.8 acre site to allow for the development of 72 three-story townhouse style condominiums, including eight affordable units at 29312 Mission Boulevard. For several decades, dating back to the 1950s, the subject property was occupied by a mix of uses, including a single family home, a couple of small warehouses, a tavern, and a contractor's business with an outdoor storage yard. In December of 2017, the Planning Commission and ultimately City Council approved a major development project at the site referred to as the Mission Seniors Project, which featured 200 market rate condominiums for seniors that would have been accessed via Mission Boulevard, as well as three new single family lots fronting on Overhill Drive at the top of the site. Due to financing challenges, the Mission Seniors Project was unable to move forward, and after several approval extensions were granted by the city, the entitlements for it ultimately expired in June of 2024. Shortly thereafter, a third party purchased the portion of the site fronting Overhill Drive and completed the approval process for the three single-family lots. Around the same time, Citi Ventures, our applicant tonight, entered into contract to purchase the remainder of the site and in August of 2025, submitted the application that's before you tonight. The project includes the provision of eight total affordable units with seven affordable to low income households and one affordable to moderate income households. This exceeds the city's minimum requirement This exceeds the city's minimum requirement, which in this case is the provision of four low income units and four moderate income units. In exchange for this, the developer is entitled to one concession and an unlimited number of waivers under the city's and state's density bonus laws. You guys have heard this before. Tonight the Planning Commission is charged with reviewing the proposed tentative tract map, density bonus, and site plan review application for conformance to the general plan and for compliance with the subdivision and zoning ordinances. The Commission will soon hear that some aspects of the project's design do not comply with the applicable development standards. However, under density bonus law, the developer is entitled to use an unlimited number of waivers and up to one concession to waive those standards as long as the use of said waivers and concessions do not result in a public health or safety risk or a significant environmental impact. Furthermore, the use of waivers and concessions does not constitute inconsistency with the zoning ordinance and the commission could not use a finding of inconsistency because of those waivers to deny the project. This is an aerial photograph of the subject property. The site consists of three contiguous parcels outlined here in red, totaling a combined 4.8 acres. The land is currently vacant except for the foundations of some of the old buildings that previously occupied the site, as well as two existing trees growing in the back half of the property. The site is surrounded by recently built multifamily and mixed-use developments to the north and south and across Mission Boulevard to the west, single-family homes uphill to the east, and an auto glass repair shop next door directly to the north. The land is zoned Mission Boulevard corridor neighborhood, 17 and a half to 35 units per net acre, and is designated sustainable mixed use in the general plan. Multifamily residential development is permitted on properties with these zoning and general plan land use designations at a maximum density of 35 units per net acre. The plans feature nine three-story buildings containing between six and nine units each for a total density of 27.7 units per net acre. All 72 of the units will feature a minimum of three bedrooms and three full bathrooms and range in size from 1,200 square feet to 1,760 square feet, with 29 of the units capable of accommodating a fourth bedroom on the ground floor. Each unit will be provided with a two-car garage and a designated bike storage space within that garage. As I said before, seven of the units will be offered for sale at rates affordable to low-income households, and one will be offered at rates affordable to moderate-income households. Access to the subdivision will be provided via a system of private streets and alleys with a single connection point to Mission Boulevard, which you can see here on the left of the image. The rearmost 1.5 acres of the site will be permanently preserved as open space through the recordation of an open space easement when the subdivision is finalized. And that's the area back here that has some green and brown shading. The subdivision would require the formation of a homeowners association that would be responsible for the ownership and maintenance of all of the common improvements, including the private streets, landscaping, stormwater treatment areas, and the permanent open space at the back of the site. as well as the establishment of a set of covenants, conditions, and restrictions, or CC&Rs for short, that would contain the governing provisions and joint and individual responsibilities of the HOA and each of its members. The developer is utilizing waivers for eight different development standards that would normally apply to a subdivision of this nature that does not qualify for a density bonus. This slide lists those standards. It's important to note that the underlying reason for most of the waivers is due to the developer's intentional effort to avoid cutting into the hillside at the rear of the site to create additional level land upon which more units, setback buffers, and common open space and amenities could be developed. The developer is hoping to minimize the disturbance of that hillside at the back of the site. The project features eight units that are designed to be accessible for disabled occupants. And these units feature entries that are flush with the finished grade. So there's no step or two steps up into the house. These units do not meet the minimum 12-inch finished floor elevation requirement of the zoning at this area. Also, while new buildings have a maximum 24-foot setback from the street in this zoning district, the frontmost building is set back 40 feet to accommodate a large stormwater treatment basin in the front setback zone, since that's the area that is the lowest point of the site and makes the most sense to have the water drain into and be treated before it discharges into the storm drain system. This treatment basin also precludes the ability of the project to meet the minimum building footprint encroachment into the front ZEPPAC zone. The zoning code calls for buildings to be up pretty close to the street. In this case, the frontmost building isn't able to because the developer's having the stormwater treated there. Additionally, the project does not meet the minimum 12-foot landscape buffering requirement for all new buildings that are significantly taller than existing buildings on neighboring properties between proposed building six and the building next door that contains the auto glass repair shop because there is insufficient room on the site to comply without reducing unit sizes or cutting into the hillside at the rear of the site. The plans also do not achieve, I'm going down each of these one by one, but I'll wrap it up here pretty quickly. The plans also do not achieve the minimum 200 point score required for open space amenities using the values from a table in the municipal code. But it is staff's understanding, some good news here, that the developer is maybe willing to provide additional amenities for the commission tonight. And he'll touch upon that when you guys, when he talks to you. The architecture of the buildings does not comply, some of the buildings does not comply with the minimum massing breakup standards for buildings that are longer than 125 feet because strict adherence to the standard would require significantly reducing the size of several units in each building and potentially eliminating some units altogether. The plans also do not comply with the parking requirement for new residential developments located within one half mile of the South Hayward BART station and that they actually provide two spaces per dwelling unit along with six guest spaces when the code prescribes a maximum of one space per unit and no guest parking. So you guys will probably be pretty pleased to hear that. The developer wishes to provide two-car garages for each unit because they believe it will significantly increase the marketability of the units in the project. And finally, the project does not meet the minimum 25-foot separation required between multiple driveways on a single lot. This is due to the fact that the parcel containing the auto glass repair shop next door currently benefits from an access easement that runs across the project site out to Mission Boulevard. This easement and driveway leading to it provide shops only access to the public right-of-way. And as such, it must be maintained in perpetuity even after the development of the proposed subdivision. The developer does not want the project's residents to have to share the driveway with the auto shops traffic and as such is proposing a second new driveway 20 feet away instead of 25 feet away. If the second driveway were required to be the full 25 feet away, it would result in the loss or severe reduction in size of several units due to the need to shift the main entry driveway an additional five feet to the south. The developer is also utilizing one concession to avoid having to provide a looped water supply system for the project because doing so would require connecting to existing recently constructed systems in two large adjacent multifamily developments. directly to the north and south of the site. And this would be cost prohibitive since it would require cutting through retaining walls along both property lines, tearing up streets that were recently completed in those developments, and connecting to underground water pipe water lines in those two developments. Concessions can be used in cases like this when they result in significant and identifiable cost savings for a project, and when they do not adversely impact public health or safety, harm historic property, or break any laws. The looped water system, while desirable from a redundancy standpoint, was determined not to be necessary to meet minimum domestic and fire water supply requirements. As a compromise, however, the developer has agreed to tap into both existing water mains in Mission Boulevard to minimize the burden on the larger line and to provide some redundancy. Staff reviewed the proposal for conformance to the general plan and for compliance with the applicable zoning and subdivision standards and determined that it complied with all other standards excepting those for which waivers are being utilized. And it is consistent with a number of goals and policies of the land use and housing elements of the general plan. I won't read each of them, but four key ones are listed here. finally to conclude staff is recommending that the planning commission approve the vesting tentative track map site plan review and density bonus application based on the findings in attachment two and subject to the conditions in attachment three as well as the revised condition number 72 in the addendum to attachment three that you should have received earlier today. And that concludes staff's presentation. Thanks and sorry for the lengthy presentation tonight.

Thank you, Mr. Kowalski. I wanted to add that for this agenda item, the decision of the planning commission is final unless it's appealed. And the appeal period is 10 days from the date of the decision. And if it's appealed, a public hearing will be scheduled before the city council for a final decision. So now we can move to commissioner questions. And do we know if the applicant is here?

Yes, he is.

Okay, fantastic. All right, does any, any commissioner questions? Commissioner Myers? Yeah, Myers.

Thank you, Chair. Thank you, Planner Kowalski. Okay, so I have a few questions. So the first one, I believe, is for staff.

Sorry, Commissioner Myers.

You're good. I'm going to pause your questions right now, Commissioner Myers, as the applicant would like to

He's available to answer questions, but he did not bring a presentation. Sorry for the confusion.

Never mind. Go ahead, Commissioner Myers.

Thank you, Chair. My first question, on staff report, the first sentence says that they will be subdividing. Could you explain a little further what the subdividing is, first off, before my next quick question?

So it's, the units will be, they look like townhomes. from the outside, but they're actually going to be condominiums, which are airspace ownership units. And let's see.

Does that answer your question, Commissioner Myers? I think so. That alone, I think, does. So what you're saying is each independent one will be subdivided, not the whole lot, like into just two spots or three. You're talking independent, right? I think... I think we're good. Correct.

This type of subdivision isn't a fee simple subdivision, which is sometimes what we see in a traditional single family neighborhood where there's lines and yards around the properties and you own both your house and the yard around it. This is more similar to what you would see in like an apartment style condo building where the inside of the units and sometimes the patios and balconies would be owned by the individual homeowners, but the rest of it is collectively owned by the HOA and maintained by the HOA.

Excellent, I think my question was originally originating because I wanted to know if you were gonna build on only half of it and then if we still met that units per acre, but totally totally makes sense to not be simple The open space the 1.5 acres will that be something that's accessible to the general public I

It will not it could if it were to be made it accessible to the general public the developer would have had to make it accessible to disabled. For disabled users and that would have involved. Quite a bit of work that they didn't they didn't again they didn't they wanted to minimize the disturbance of it and I think that was going to be a pretty cost prohibitive. Effort to. Originally they contemplated having a path up to one, to like an observation point and a halfway up. But when we, the city told them that path would have to be made accessible to somebody in a wheelchair or with a walker, and it proved to be too difficult and too costly to do that.

Okay, yeah, that makes total sense. Eight of the units will be at ground level. Does that also mean that the interior doorways will be at 36 inches to accommodate for ADA?

I think it was more than eight. Oh, the units that are at grade? Yes. There will not be a threshold. They will be, I'm sorry, could you repeat the question, Commissioner Meyer?

Sure, so I'm assuming that's for ADA, and once they go in, does that mean all of the doors will be expanded to 36 inches to accommodate? Do you know the answer?

The developer's nodding his head at that question. I wasn't certain.

Okay, excellent.

That's what I was hoping for.

And then... It looks like there's going to be two main transformers at the entrance there or a little bit in. Those, I'm assuming, will be underground. Is that right?

I'm getting both nods. Yes, they will. Are they not going to be undergrounded?

Commissioners, thank you for having me. My name is Keon Malik. I'm with City Ventures. Thank you for having me back. Actually, in one of the conditions of approval, it explains that when possible, we will underground transformers. However, it's broadly known that in the Bay Area, because of PG&E, they are very strict and they do require pad-mounted transformers. Unfortunately, I have not had luck in any jurisdiction undergrounding transformers. In addition to that PG&E hurdle, there is a global shortage of underground transformers as well, making it completely prohibitive to provide those. So you'll see language as one of the conditions of approval that says, if feasible, undergrounding will be provided. However, the city acknowledges that pad mounted is most likely gonna be proposed for this project. Okay, thank you, Mr. Miller.

Thank you. And the city agrees with that verbiage, right? That it's when feasible?

Yeah, it's condition 102, 102 on page 16. Okay. It says the city prefers it to be undergrounded, but if it needs to be pad-mounted.

Got it. Okay. Thank you for that. Excuse me. And also, regarding the chargers, charger-ready, can I ask, are we just going to do a NEMA 1450, or are we going to actually just have the wires there, or are we going to be able to hopefully install a level 2 charger there?

The, every garage, there's two spaces in each garage. Each space will be provided with the electrical wiring in the wall adjacent to the space to support a level two charger. the developer will not be installing level two chargers. Does that make sense?

I see, yeah, and I understand that's our minimum. I was just hoping that maybe we could use that reach a little further in that reach and maybe install some chargers. Is that something that might be possible?

I'd like to also add that we will be including a charger in one of the surface stalls, in one of the six surface stalls, there will be a level two EV charger, actual charger provided. But the homes will be provided with level 2 EV ready, which means there'll be the plugs like Stephen mentioned. Thank you.

Are you referring to the staff report? Sorry, Commissioner, or my presentation. I meant they're all, yes, sorry about that. Okay, I apologize.

Thank you, Commissioner Myers. Are there any other Commissioner questions? Commissioner Lowe.

Thank you. Thank you for your presentation. I think my questions will be pretty quick. I wanted to know, are there any assessable units that are below market rate? And what's the reason for that?

Just to repeat the question, or just to answer it really quickly, we are not proposing any of the BMR's Blumacher units as ADA units. For the most part, it's tough for the HOA just to manage when a home buyer comes in and they're looking for an accessible unit. It's not, there's options that they're able to be provided to them and managing those options differently with different affordable buyers can be challenging. So for the most part, we typically stay away from combining both of those. They're typically separated throughout the project. So they're usually not layered on together. They're dispersed throughout the ADA units, which there are eight of, and then the affordable units, which there are seven of.

Thank you. Why don't you stay there just in case? If it's not from me, it'll be from somebody else. Trust me, somebody else will have a question. I hate for you to do a marathon. So what is the strategy that you use to determine where to put the moderate and low income units?

I WOULDN'T SAY THERE'S NECESSARILY A FINANCIAL STRATEGY OR ANY TYPE OF, YOU KNOW, LET ME RESTART. WE ARE FLEXIBLE ON WHERE THE MODERATE AND THE LOW INCOME UNITS GO THROUGHOUT THE SITE. SO WE WILL ACTUALLY BE WORKING WITH HOUSING ONCE, IF THIS PROJECT IS APPROVED, WE'LL WORK WITH HOUSING ON THE BELOW MARKET RATE AGREEMENT AND THAT'S WHEN THE LOCATIONS are completely finalized. We do have a conceptual location right now, but that's something that we can, if staff has preference on where those are located within the buildings themselves, we are flexible on where they go. For the most part, we have selected at least the buildings that they're going in, and so hopefully that answers the question.

Yeah, the reason I asked is just because I noticed that they seem to be in just a few of the buildings, and there are other buildings where there are none. And I just was trying to figure out what the thought process was behind that. Would cutting into the hill, I understand it's a cost benefit analysis, would cutting into the hill affect your ability to provide the moderate and lower income units?

I think one critical component that has not been mentioned is there's a fault zone in the middle of the hillside. So it's just another added layer of complexity with a very steep hill. Cutting into that is just extremely cost prohibitive. We actually already are cutting into it pretty quickly. as far as we can right now to make the site as flat as possible to create those 72 units. But again, if it was a completely flat site, this would be a different story. We would probably maximize, but that's likely why the Mission Seniors project didn't come to fruition because they really pushed far up in the hill and that's extremely expensive with podium type product.

Thank you. And then my last question is actually for Mr. Kowalski. Has the city determined that any of the waivers requested have any environmental or public safety impacts that we need to be aware of?

No, we haven't, and they do not.

Thank you both.

Commissioner Hardy. Thank you, Chair. I guess my first question for staff, and thank you for your presentation, if South Hayward BART were to close, would that have any impact at all, just since it came up in a question from the community, does that have an impact at all on this project?

It certainly would, but it wouldn't change the standards that are in place right now. If the South Hayward BART station closes, the city is going to have to scramble and probably change some standards that apply to new developments within a certain radius of that BART station that always assumed it would be there forever, that people would be able to walk or ride bikes or do a short drive over there and hop on a train. If it were to close in the near future while this project's getting built, it wouldn't change anything for the plans. The developer wouldn't be required to do anything differently.

Thank you. And then the question for the developer, thank you. So I did want to ask some questions about the voluntary amenities maybe that you might be willing to add for the open space and just maybe could you speak to what's being offered now and what else you might be able to do or be considering?

Commissioner Hardy, thank you for passing that message along to Steve, who passed the message to me. Yes, so what I'd like to read on the record is that if you're looking at sheet L3, there's an open lawn area. That's honestly the perfect place for more passive amenity space or structures and trees. So we're gonna be including one shade structure, one shade tree, a barbecue island, two picnic tables, four Adirondack chairs, and one lounge table. The Adirondack chairs circle around. And two benches along the furthest most private walk that's nearest to the hillside as like a nice viewing place to view the hillside and off the bench. Thank you.

Thank you so much for doing that voluntarily, and I don't know how many points that would bring you to, but that is really appreciated that you would voluntarily add that for the benefit of the community. And then just one last question, just because it also came up from the community around the bike lanes, and I don't know really much about this, it just came up pretty late. Is there any potential to think about inclusion of a bike lane? I don't know what that would take or, how difficult it is?

Sorry to interrupt, Commissioner. That's more of a question for city staff than it is for the developer. I think we have Steven Chang on the call. He's our transportation planner. But it's not... that simple just to require one project that comes in to build a segment of a bike lane along a street-like Mission Boulevard. There's a long-range plan that the Transportation Planning Division, I'm sure, has been working on and has grandiose plans for the boulevard. But Stephen, are you on the call by any chance?

I am. And yes, to piggyback on what Steve has already said, you know, a bike lane on Mission Boulevard is a long-term planning project. It's something that we would be working on our regional partners with. We certainly don't want individual developers coming in and striping just bike lanes right in front of their properties because that would end up with sections where there is no bike lane and that's not safe for bicycles.

Thank you for the answer. No other questions for me. Thank you.

Commissioner Hammond, you have questions?

Sure, thank you. I want to thank staff for the report and Citi Ventures for investing in Hayward. Some of my questions have already been asked by my fellow commissioners and answered by staff. So a couple questions here. So this is for City Ventures. Would the removal of Building 6 to accommodate the 12-foot buffer zone next to the auto shop still make this project financially feasible? The space could be used to create more open space and landscaping to meet the open space compliance and this would also satisfy the need for your 20 foot to 25 foot driveway separation.

Commissioner Hammond, just to restate what you said, building six, we're utilizing a waiver for building six because it's about six feet away from the property line and there's a requirement for about a 12-foot buffer there. If we do provide a 12-foot buffer, That building, we won't be able to propose that building. We lose about, I believe it's six to eight units. That would make the project not feasible. However, we are utilizing a waiver for that reason, because the project wouldn't be constructible at this density that we're proposing. It would actually be at the lowest end of the range, too. So it's a little bit of two-fold, I would say. Not financially feasible, but mostly not constructible, which is why we're utilizing that waiver.

Sure, I thought that might be it. It's a quick question. Is this site also located in a flood zone?

I don't think so. I think it's too far up away from the bay and up kind of at the foot of the hills. But I'm wondering if one of our engineers on the call is able to verify that. We do have a couple of staff engineers.

Good evening, this is Said Seibi and this project is not within the flood hazard area. It is in the designated flood basically as X, which is not considered AE or other sort of flood hazard areas that need specific conditions.

So I guess kind of my question leads into the need for the storm drain system at the front that you need the waiver for for the setback. Is that, it's not possible to move that storm drain to a different location and still achieve what you're hoping for?

Commissioner Hammond, you're referencing the storm drain at the bottom of the property, and the reality is the way storm drains work, the way just water works, it likes to be at the bottom of the hill. From a civil engineering standpoint, that design, makes the site most efficient to provide this many units. Once you put this storm drain anywhere higher up, you're going to have to start splitting these basins across the site, across hillsides, bringing them together with pumps, and you're going to start losing more and more space. And so this is, it's the low point of the site and it's the best area to put a storm system. I do wanna mention, we are using the waiver for that setback. However, these basins, they have planting, they're very green. It actually provides a really nice, landscape buffer to a project that has 72 units. So I wanna make sure it's a nice to have, there's planting in it. It's not just like pure function, it looks nice too. So I just wanna mention that.

Okay, thank you. And then a question about the closed water loop system waiver. Is the city at a disadvantage granting the closed water loop system? What's the city's preference?

The city's preference was to have the development tie into either the adjacent developments, water systems, or go all the way up the hill to Overhill Drive. A water study was completed using the city's I'm not sure what you call them, but an engineering firm that mapped all of the city's water lines. The developer financed that study. It was done in partnership with the city's utilities division. Utilities division preferred to see a looped water system, but it wasn't deemed necessary to provide the necessary flows for both domestic water for people cooking in the kitchen, taking showers, and going to the bathroom, or providing water for fire sprinkler systems. So the way we describe it is it was a nice to have thing, but not necessary. And that's exactly the type of thing that a developer can use a concession to avoid having to Okay, so you guys are okay with it? We're okay with it. I mean, is the utilities division happy? Probably not that happy, but they realized that it wasn't necessary to have a loop system in this case.

And are all of the proposed trees native adaptive to Hayward on this site?

I do not want to attempt to answer. Do you happen to know, Kian? I'm sure they are, but I don't know for sure. So I don't want to attempt...

The trees that we will be proposing during our permit drawing process will all be drought tolerant and meet the California state and willow standards. They'll also be California native as well. They won't necessarily be all Hayward specific native, I think is what you mentioned, but they'll be California native. Yeah, a portion will be California native, yes.

Okay, very good. I was hoping to hear that. And then for staff, is it possible to divert some of the park impact fees to help develop more affordable housing?

So affordable housing is... is only required to pay 50% of the rates that a market rate unit would have to pay. So that's kind of the perk for providing affordable housing. Could we do more than that? We would have to probably do, Elizabeth, you want to try to chime in on that one?

Just to clarify, is your question some of the money collected for park impact fees, could that instead be used to develop affordable housing?

Yes.

The simple answer to that is no. There's strict rules about the Mitigation Fee Act and the Quimby Act, which is how we collect our park impact fee money that says exactly how that needs to be used, and that's in developing new parkland.

Okay, thank you. Let me see. I'm a little unclear about the advantages or disadvantages having Jihad or the developer in control of the open space on the hill. Can maybe, you can?

I'll have Senior Engineer Saeed Saeed respond to that one. Saeed, did you happen to hear Commissioner Hammond's question? About that?

I missed the question. Can you please repeat the question?

So I'm just asking for some clarification about the advantages or the disadvantages of having Jihad or the developer in control of the open space on the hill. Would it be better for the city if the developer took control of the land and maintained it? Or would it be better for the...

I can provide some clarification on that. So as far as the condition in regards to the GATT, the developer's preference was originally and initially to maintain that area as an open space. And because this area is close, almost 500 feet away from the state-designated alquist pre-yellow, and there is significant basically a slope there. We were thinking or staff was thinking if this is needed to be annexed to GATT. We do understand that we don't have public infrastructures there. We don't have utility lines that necessarily basically leads us toward GATT. So we came up with the way we wrote the condition to investigate this a little bit more potentially consult with the GAP managers of the City of Hayward and get their insights to see if this is needed to be annexed to GAP. Otherwise, as we have written the condition, it's going to be an open space maintained by HOA in perpetuity.

Okay, thank you. So is it possible if City Ventures in the future wanted to develop that hill that they could? No, he's shaking his head no. Okay, anyway, that's all my questions. Thank you very much.

Thank you, Commissioner Hammond. Commissioner Yordoff.

Thank you, Chair, and thanks to staff for the presentation, to the applicant for coming today. Just to quickly clarify, you mentioned that we now have a map of all of our water lines in the city, like the entire city?

I believe so. I'll have Saeed or Kathleen or one of you able to answer. Do you know the answer to that question?

The answer is yes.

that's pretty remarkable thank you um and then secondly uh regarding the affordable units um it's great to see those included um i know that the marketing plan for those will be reviewed by the city ahead of the completion um will the hoa ultimately be responsible for selling the units or will the city have an active role in that um i think we have doris tang from the housing division on the call i'm going to take advantage of the opportunity to

Send that one. Doris, did you hear Commissioner Yorgos question?

I did. Good evening, commissioners. So the developer is responsible for marketing and doing the initial eligibility screening for the affordable units. The city does have a role in that. We are the final reviewers for approving buyers for the affordable units.

Thank you. And as a follow-up question, in the event of a resale of those units, would the city have the same role of approving the buyers?

That is correct. So the sellers would, or the home buyer that currently owns the home, would start that process with their realtor. If there were multiple interested buyers, they would go through a lottery process. And the final approval for a new home buyer, the city would review that.

Thank you so much. And that's it for me, Chair. Thank you.

Thank you, and that concludes commissioner questions. And at this time, we are gonna move to the public hearing. And Ms. Corral, do we have any participants on Zoom or in the council chambers that wish to address the commission?

I don't see any on Zoom and we didn't receive any speaker cards. One person just raised their hand. Give me one second. Ro Aguilar, can you test your mic? Can you hear me?

Yes. Yes. Thank you, Planning Commission members. I would like to speak in support of this application. I have several points of why I am supporting this application. Number one, it helps the city meet its RHNA requirements, which, as you know, the city is lacking. in several categories, very low, low and moderate income and housing in those categories. So this development helps the city meet those requirements. Number two, the application of a density bonus to this development aligns with the current legislative direction to address the housing crisis by relaxing some of the more stringent requirements that have prevented housing from being built. And number three, and maybe most importantly, it's consistent with the city's goals and policies, the general plan. And I would hope that the city could highly incentivize developers to build more of this kind of housing, specifically directed at the housing policy H3.1, diversity of housing types, prices, ownership, single family types, townhouses, single family uses, townhouses, apartments, condos, transit oriented, live work units. We need all kinds of housing that serves low, very low, moderate income. And it would be great if those varieties of housing or types of housing could be included within a single development so that there's opportunities for lower income to access higher income amenities. Thank you.

Thank you. Are there any other speakers that wish to address the commission on this item? There are none online. Thank you. Seeing none, I am closing the public hearing and moving on to planning commission discussion. Commissioner Hammond.

So just for the record, I'd like to say that I like the fact that we're adding more native trees to our inventory, but I would have liked to see a little more open space for this project. I'd also like to take the opportunity to encourage a more robust public transportation system along the Mission Corridor. Perhaps a trolley system, Uber lanes, protected bike lanes. But the most practical would be to increase AC transit to shorten wait times and provide more reliable service. I find that the project will help strengthen the Housing Accountability Act, although I would like to see more low, very low and low income projects being approved by the Planning Commission in the future. I will vote to grant the eight waivers to make this project work within the parameters given. I approve the Vesting Tentative Track Map and its findings. I approve the Site Plan Review and its findings. I will approve the density bonus application with some reservations so that this project can be approved. And I find that the project is categorically exempt from CEQA. Thank you.

Thank you, Commissioner Yoroff.

Thank you. Yeah, I just want to say thank you to the applicant. It's wonderful to see even more homes coming to Hayward. It's much needed. It's great to see affordable housing for sale available in our city. And yeah, just seeing the continued development and growth of our city with variety of options for homeowners and residents of Hayward is great. So excited to see this move forward. Thank you.

Mr. Hardy. Thank you. So I also want to thank the applicant and thank staff again. I really appreciate this project, the investment in Hayward. I was really happy to see the craftsman style of the design, just that it looked really nice. the diversity, again, of housing type, as the comments said. I really appreciate the voluntary amenities that were included. And for that reason, I'm motioning for approval of the vesting tentative track map, the site plan review, and the did see bonus application, and find that the project is categorically exempt from CEQA pursuant to CEQA guidelines based on the findings in attachment two and subject to the conditions of approval in attachment three.

Second. Motion has been moved by Commissioner Hardy and seconded by Commissioner Yorgoff. Commissioner Yorgoff? Okay.

But you verbally seconded, do you want me to withdraw so that I?

Madam Chair, the developer just wanted to make sure that the revised condition number 72 in the addendum that was distributed to the commission this afternoon gets included in the record. And I assured him that it would, but I think he just wants to hear from the commission for peace of mind. With the revised condition 72.

So I will add to my motion the revised condition.

What is it?

Condition number 72.

Condition number 72. As revised in the agenda. Thank you. As revised.

Thank you.

Thank you. We can go ahead and move to votes.

Do we need another second?

Do we need another second for the?

Yes, it would help to just, if the seconder confirms that.

Commissioner Yorkel has seconded. Thank you.

And the motion passes. Thank you very much, congratulations. Okay, the next item is is item ACT 26-034, City Initiated Revocation Hearings. This item includes proceedings for tobacco retailer licensees for four commercial establishments and properties within the city of Hayward, where license holders committed three or more violations within a five-year period pursuant to Hayward Municipal Code Section 10-1.2794. The Planning Commission will consider each tobacco retailer's matter separately. All who are providing testimony tonight shall follow the general hearing rules outlined in attachment seven to the staff report. And they include, all testimony shall be given under oath or affirmation if sworn testimony is taken. The technical rules of evidence do not strictly apply. However, evidence must be relevant and reliable. All materials presented at the hearing become part of the official record. The retailer has the right to be represented by legal counsel or another authorized representative. Time limits will be enforced. The chair may extend time in unusual circumstances at their discretion. And the time limits for this item is eight minutes for each retailer. And cross-examination of the witnesses will not be allowed in this hearing. Statements provided by non-attorneys in relation to each case will be taken under oath. And If Senior Assistant City Attorney Vigilia, if you can administer the oath to all the potential witnesses at this time.

And then just for the record, Commissioner Stephens is back in the chambers. He returned at 8.12 p.m.

Thank you. Welcome back, Commissioner Stephens.

Okay, thank you, Madam Chair. Is there anyone in the audience who is not an attorney who's going to give testimony on behalf of a business this evening? If you could just stand up. And also, this is gonna be for any city staff who's gonna be giving testimony as well. Can you all raise your right hands, please? Do you solemnly affirm under penalty of perjury that the testimony you will give in this matter will be the truth, the whole truth, and nothing but the truth? Okay, thank you, they've been sworn.

And I just wanted to add that for the second item for Smokey's Smoke Shop and Gifts, they have requested a continuance of their item, and then we can consider that as the, when they come.

And for the two gentlemen in the audience, if you could give the clerks your name for the record so that they could record that, that would be helpful. Thank you. Thank you. OK. If you could step forward and say your name on the record so that the court reporter can record it, that'd be great.

Haroon Ahmed.

Is it Dean Ali?

Is that everyone?

I'll ask city staff to identify themselves as well.

I believe is it Riz QA, are you a business owner?

Yeah, hello? Yes, I'm representing Hayward Gas and Food.

Okay, were you able to hear the administration of the oath, sir?

Yes, sir.

Okay, and so you are sworn. Could you state your name for the record, please?

My name is Rizk Alkrizi.

Thank you.

Is there anyone online that is representing any of the retailers? Okay.

we will now be moving to um sorry chair good body someone just raised their hand james anthony yeah i just want to clarify that uh i represent um sna Trading Inc. on Hesperian Boulevard, but I represent them as their attorney. I will argue and I will reference the facts. I don't think I need to be sworn, but I'm not sure what your procedure is. So if you like that, let me know. And I'm also waiting to hear the names of the staff that were sworn. Thank you.

Yes, thank you. Attorneys do not need to be sworn, and I'll ask staff to quickly identify themselves, those who are sworn in.

Jesse Prince.

Christina Morales, Deputy Director of Development Services.

Gabrielle Wright, Senior Vice Intel Detective for the Hayward Police Department.

Thank you, everyone. We're now gonna move to the staff presentation, and this will include a general, an overview presentation on the general purpose and then our process of the other revocations of the tobacco retail licensees.

Thank you very much. Good evening, Chair and Commissioners. My name is Jesse Prince, Code Enforcement Inspector II with the City of Hayward. The item before you tonight is a tobacco retail license review involving city-initiated revocation proceedings for tobacco retailers that have accumulated three or more violations of the tobacco retail ordinance within a five-year period. These proceedings are being conducted pursuant to Hayward Municipal Code section 10-1.2794. Before discussing the individual retailers, I will provide a brief overview of the purpose of the Tobacco Retail License Program, the ordinance requirements and the city's compliance and enforcement efforts before moving into individual cases. The city's tobacco retail license ordinance was adopted to protect public health by reducing tobacco use and its associated health impacts. The ordinance is intended to reduce youth access to tobacco and nicotine products, prevent the initiation of tobacco use amongst young people, and restrict the sale of flavored tobacco products and electronic smoking devices that have historically appealed to youth. The ordinance also helps ensure compliance with local, state, and federal tobacco regulations while providing a framework for inspections, enforcement, and accountability for tobacco retailers operating within Hayward. Retailers who repeatedly fail to comply with these requirements may be subject to penalty fees, special assessments, and ultimately revocation of their tobacco retail license. Before discussing the individual cases, I would like to briefly review the portions of the ordinance most relevant to tonight's hearing. The City's Tobacco Retail Ordinance establishes operational standards and licensing requirements for businesses that engage in the sale of tobacco products within Hayward. Section 10-1.2783 outlines operational requirements related to licensing, product sales, packaging standards, advertising restrictions, and other regulated activities. Section 10-1.2785 requires retailers to maintain a valid tobacco retail license and prominently display all required licenses and permits within the business. These include the City of Hayward Tobacco Retail License, City Business License, California Tobacco Retail License, and California Seller's Permit. Continued licensure is dependent upon ongoing compliance with these requirements. Since implementation of the city's tobacco retail licensing program, code enforcement staff have conducted annual inspections of licensed tobacco retailers throughout Hayward. These inspections serve both as enforcement and an educational purpose. Staff routinely review ordinance requirements with business operators, provide educational materials, answer questions, and offer opportunities to correct violations. The city's goal has consistently been to achieve compliance through education and outreach whenever possible. Despite the city's educational efforts, compliance assistance, and opportunities to correct violations, some retailers continue to accumulate violations over multiple years, resulting in the revocation proceedings before the commission tonight. This map displays all currently licensed tobacco retail holders within the city of Hayward and there are currently 104. The six retailers currently before the commission for potential license revocation are specifically labeled for reference. The purpose of this map is to provide a visual representation of the geographic distribution of tobacco retailers throughout the city and to illustrate the locations of the retailers under the review in relation to other licensed tobacco retailers. As shown on the map, licensed tobacco retailers are distributed throughout Hayward and serve a variety of commercial areas and neighborhoods. The retailers before the commission tonight are likewise located throughout the city and are not concentrated within a single geographic area. This slide is intended solely to provide geographic context before staff discusses the individual cases. Despite ongoing education and compliance assistance, the following retailers continued Continued violations that meet or exceed the criteria for revocation under Hayward Municipal Code section 10-1.2794 requiring that their tobacco retail licenses be revoked. Mobile Hayward Gas and Food, attachment three. Smokey's Smoke Shop and Gifts, attachment four. Master Shell, attachment five. And the Great Smoke Shop, attachment six. You may hear one or more of these retailers claim they did not know flavored tobacco or other illegal substances such as hemp, cannabis, and shrooms are illegal to sell. However, lack of knowledge is not a defense to violations of the tobacco retail ordinance. The responsibility to understand and comply with all applicable tobacco regulations rests with the tobacco retail license holder. You may also hear one or more of these retail owners claim that they were unaware of the illegal conduct of their employees and therefore should not be punished. However, a business owner's claimed ignorance of what occurs at their business is not a defense to revocation, it is evidence supporting it. Business owners have a duty to ensure their businesses operate lawfully and they are charged with protecting the community. An owner's admission that they do not know what is happening on their own premises does not excuse a violation. It confirms the very failure of oversight that revocation exists to address. This same lack of oversight explains why the violations have recurred and demonstrates a likelihood that they will continue absent revocation. Ultimately, the issue before the commission is not whether the violations were intentional, but whether it is more likely than not that they occurred. The city has provided ample evidence that these violations have recurred over multiple years and will continue unless these retail licenses are revoked. This pattern of repeated violations over numerous years demonstrates that no lesser penalty, such as brief suspension, will correct the problem. Revocation is necessary to protect public safety and the safety of the youth in Hayward. The staff report before the commission includes compliance histories, documented violations, inspection records, and photographic evidence collected during inspections. These materials document the enforcement history for each retailer and provide the factual basis supporting staff's recommendations. I'm also here to answer any and all questions the Commission may have and to respond to any arguments raised by the retailers during their presentation. Next, I would like to briefly review the order of proceedings for tonight's hearing. Each retailer matter will be considered separately and will be deliberated independently by the Commission. For each matter, staff will provide a summary of the evidence and the retailer's violation history. Commissioners will then have an opportunity to ask clarifying questions of staff. The retailer or the representative will then be provided up to eight minutes to present their testimony and any information they would like the commission to consider. Following that presentation, commissioners may ask clarifying questions of the retailer. Staff will then have an opportunity to respond to any factual matters raised during the retailer's presentation. Once all testimony has been received, the commission will deliberate, consider all motions, and then take a vote on that specific matter. After the Commission has concluded its deliberation and vote, the process will be repeated for the next retailer. This slide summarizes the legal standard that applies for tonight's proceedings. Under Hayward Municipal Code section 10-1.2794, the city bears the initial burden of proof. Staff must demonstrate by a preponderance of evidence that a retailer committed three or more violations within a five-year period. A preponderance of the evidence means it is more likely than not that violations occurred. In other words, the evidence shows that the violations were more likely than not committed by the retailer. If the Planning Commission finds that three or more violations occurred within the applicable five-year period, the maintenance code provides that the tobacco retail license shall be revoked unless the retailer demonstrates that a lesser penalty is warranted. At that point, the burden shifts to the retailer who must establish by clear and convincing evidence that a lesser penalty should be imposed. This is a higher standard of proof and requires evidence that creates a firm belief that a lesser penalty is appropriate under the circumstances. Possible lesser penalties may include suspension, abatement measures, administrative citations, or penalty fees. Staff's presentation this evening is intended to provide the evidence and documentation necessary for the Commission to make these findings. The following slides address each retailer individually. After each matter is presented, the Planning Commission will have an opportunity to ask questions and deliberate. Each matter will be considered separately before proceeding to the next.

Chair, if I could before we proceed on the first retailer. So I just want to orient the commission as to sort of the different roles of staff here. Myself and Ms. Blanton are here to support you in your role as decision makers this evening. We don't have any involvement with any of the presentations. that you're gonna hear a separate attorney from my office, Ms. Rothman is on the line and she is supporting staff with respect to those presentations. So if you have questions regarding process, procedural issues, Ms. Blanton and myself can try to answer those. If you have questions about specific cases, those will be directed to staff. So I just wanted to make sure that was clear for the record, thank you.

Thank you. And which is the staff member from your office?

Amy Rothman. And she should be online.

Thank you. Okay, now we're gonna move to, thank you for that very thorough presentation. We're gonna move to Planning Commissioner questions. And at this point, the questions of staff about general purpose and process of tobacco retail license revocations, this is the time that we would ask them. And then specific questions, about each of the retailers will be allowed later on as they, following the presentation of the retailers. So these questions are just for general overview and process questions for staff. Commissioner Hammond.

Yeah, a couple clarifying questions. I guess I had from the last time too. In general, how much city or state revenue is lost due to out of state purchases of tobacco products?

Staff does not have that information from them at the moment. I can get you that information on a future date.

Okay, thank you, I appreciate that. And then how long does a retailer need to wait in order to reapply for the TRL after relocation?

It's my understanding that the revocation of the license is permanent. Also, all of the business owners that currently have a TRL under the ordinance would require a conditional use permit. So they're currently legal non-conforming uses and revocation of the license, they would lose that status as legal non-conforming.

So once it's gone, it's gone.

It's gone.

Okay, thank you.

commissioner lowe thank you um so my question is for the city attorney who's here for us and you just described the process where uh you're here for us uh miss blanton's here for us and then there's a separate city attorney who's advising staff um and i just want to make sure for the record for all of the public to hear what is the current state of the law as it relates to having the city attorney sort of divide itself in that way as opposed to having an outside firm, for example, advising one or the other.

Yeah, so it's done for due process purposes. And as long as the two attorneys basically don't, what we've done is basically walled each other off from our duties. So as long as there's separation within the office between the attorneys who are handling the different duties, that's been determined to be consistent with due process by the court. And that's what we've done with these cases.

Thank you. My other question about the process is one of the letters that we received today in the packet that we received after four suggested that eight minutes for the retailer wasn't fair. Can you address how staff came up with the hearing procedure and specifically the eight minutes?

Yeah, I think that it's somewhat, so it's within the discretion of the commission to sort of set limits on presentations. The eight minutes is somewhat consistent with how we've, the time limits that we've given to developers with projects. So that's how we came up with that number, is typically it's three minutes for public comment, things like that. Developers on development projects, we've often afforded them a longer time, so we sort of use that as a guideline.

Do the retailers have an opportunity to provide written materials to the Planning Commission before the hearing?

Yes.

And are there limits on how many or how the volume of what they can provide to us?

I don't believe so. We've never limited that.

Okay, so every developer here had an opportunity to provide as many written materials or documents, submit that ahead of time if they wanted to.

Yes, correct.

That's all the questions I have right now. Thank you so much for your patience.

Commissioner Yolkoff?

Just a quick follow-up to Commissioner Hammond's question. So the revocation prohibits a business from receiving a future license, but is that the LLC, the business itself, or is it any business owner associated with that LLC as well?

I think I'd have to review the ordinance in more detail, but I do think it includes the business entity or the proprietor, and it's clearly defined in the ordinance, and I think it does include the members of the ownership entity, but I would have to review.

Okay, thank you.

Commissioner Myers.

Thank you, Chair. I have a few questions here. So I think you said we had 104 smoke shops or that type in Hayward, right?

104 tobacco retail license that have been distributed. Oh, okay.

And then I'm wondering, have you gone through pretty much, do you do like three a year? Or I mean, is everybody equally inspected?

Yeah, so the City of Hayward Code Enforcement inspects each of those retailers at least once a year. Unless a complaint is received regarding that specific location, then it will have its own inspection for that complaint.

Okay, and then is that done by our staff code enforcement or HPD, or who does that?

That's done by staff code enforcement.

Okay, and is that, do they know about that before you come, or is it just a pop-in?

Typically, it's just a pop-in on a random day during business hours.

Oh, okay. Excellent. And then when the business owner initially gets their license and establishes this company, how is the information conveyed to them that should they create more than three violations in five years that they will be possibly revoked?

I believe the expectation here is that, as Jesse actually pointed out in his presentation, that it's the responsibility of the business owner to understand the laws that are associated with the operation of their business. So while code enforcement did go out and provide lots of education regarding what is and isn't allowed at the beginning of the implementation of the legislation, It is the obligation of the owner to understand what regulates their business.

Okay, and I think the Hayward Municipal Code goes without saying that that goes along with the business owner, correct?

Correct.

Okay, and then I guess it does say it's permanent. That was one of my questions. I noticed quite a few violations where there was no license hanging. Is that typically because, and I know we can't, it's not all cases, but is that typically because they just forgot it, it's in the drawer in the back, but too late, you didn't put it up? Or is it because they just haven't paid and don't have it?

Speaking personally as a code enforcement inspector who does tobacco inspections, If a retailer has a copy of that license, whether it's in a drawer on their phone and they're willing to print it out there on the spot and hang it, that will be considered a past inspection given there's no other violations. Typically, it's an expired license or just a missing license from the business where it should be posted publicly.

Okay, thank you. That's all.

Thank you.

Commissioner Hardy. Thank you. We spoke about this the last time we were talking about this a couple weeks ago, but could you again speak to the difference between a tobacco license and a business license? Because there seems to be some confusion around shutting down a business and revoking a license.

So correct, this action tonight only deals with the tobacco retail license, so that would affect their ability to sell tobacco products in the city of Hayward. They could still operate their business. So if they have a business that is both selling tobacco and is a mini market, their mini market business would still be allowed to operate. They just would not be allowed to sell tobacco from that business.

Thank you, and then this may be for staff on this end. Could you speak to the presence of the court reporter, just because we didn't have a court reporter here previously?

Yes, I think she's here for one of the businesses. I believe counsel for one of the businesses requested that she be here, so she's here for that.

Thank you, and that was all.

Commissioner, any other commissioner questions? Commissioner Stephens.

Just to confirm, during the inspections, there's a bit of leniency initially. You go to the sites, you look at them. They might get a citation, but they don't necessarily receive a fine. Is that how that operates?

Because businesses are paying into the, to have a tobacco retail license, it's assumed that they have the understanding of the municipal code that pertains to the tobacco retail license. Any violation of that constitutes a fine upon finding a violation and documentation.

If I may, Commissioner Amy Rothman here on behalf of the Code Enforcement Division from the City Attorney's Office. I think perhaps the inspector misunderstood the question. A lot of education is provided by inspectors before retailers are cited. A lot of leeway is provided. Perhaps Inspector Prince can touch on that a little bit more. I think that's kind of what was being asked.

Yeah, I apologize, I must have misunderstood, misheard the question. Typically, when a tobacco inspection is ensuing, the education aspect is typically heavy. When I'm going through, I'm showing them any violations that may be present and explaining why. I'm showing them how to use tools such as the California Department of Justice unflavored tobacco list to potentially identify products that are prohibited within the state. There's a lot of education that occurs on these inspections. I attempt to work with the businesses to either pass the inspection if there are no violations or help them pass the next inspection using the education that I provided them during that inspection or during phone calls or emails after that inspection.

Thank you, that's exactly perfect. Just one other question. Can you provide a brief overview of the regulatory landscape? It looks like maybe there's a federal government, state government, plus at the local level, there's like a licensing requirement. How does the state and the federal government pertain in this whole system?

Right. Commissioner, I think the question goes to sort of some of these joint, are you asking about some of the joint task force inspections conducted by the state department along with the code enforcement team?

Yeah, I'm just curious if the state or the federal government does its own inspections separate from the city, or is that a joint operation thing?

Jesse, are you able to provide some information about some of the joint inspections and how those happened?

Yes, so I appreciate the clarification. The California Department of Tax and Fee Administration is a state department. They have a tobacco branch that regularly does tobacco inspections of tobacco retailers and enforces state tobacco law. We reached out to the CDTFA for a joint inspection and therefore we were able to do multiple inspections of retailers specifically in Hayward and that's how the, at least the joint inspections occurred but they do have their own tobacco branch and do their own inspections as well. I cannot speak to the federal level myself though.

Thank you very much.

Thank you. I also had questions about education, but they were answered in this last few minutes. My question is regarding the fees. Where are the fees, the violation fees allocated?

How are they allocated back to the city? All the fees are paid back into the general fund.

Thank you. Now at this time, are there any other commissioner questions? Commissioner Hammond.

Just one more question. So if the retailer's tobacco retail license is revoked and they still maintain their business, does code enforcement typically go back and do follow-up inspections to make sure that they're still in compliance?

So yes, that would need to occur. Staff would have to go out and do inspections of the business to ensure that no tobacco products were being sold after revocation, if that were to occur. Great, thank you.

Any other questions? Okay, at this time, we are gonna move to public hearing. And the public comments on, we'll accept public comments on the general purpose and the process of the tobacco retail license revocations that the staff presented earlier. This would not be the time for comments on the individual retailers. We will get to those later. when the items, when each individual retailer's license is considered. Ms. Corral, do we, or Ms., yes, Ms. Corral, do we have any?

We do, we have two speakers online. The first speaker is Sarah Archuleta.

Go ahead. Hello, can you hear me? Yes.

I just wanted to really commend the city to code enforcement and just this action that seems really just a great thing for the community. I was here at the last hearing. I reviewed the current hearing. And I think it's a good thing for our community to be addressing this issue. I think it's easy to just kind of let it go, you know, be sympathetic to retailers. But I think that the position of like, it is their responsibility. They, you know, having this license is a privilege. These are harmful things. harmful products to our community, especially to youth. And so having retailers that are responsible and holding them accountable and not letting them be like, Whoa, hey, my, you know, my, my, my staff didn't know, I didn't know, that's just not an excuse. And I think that having that hard line is something that should really be commended. I, like I said, I was here at the last hearing, I was really happy to see the strong enforcement. And I think that it also sends a signal to other retailers that you need to be in compliance or you're going to lose your license as well. And so, like I said, I'm very much in favor of the revocation of these licenses and of the process that's being taken. So, yeah, thank you.

The next speaker is James Anthony.

Mr. Anthony. Hi, what are we looking at? Three minutes and I'm restricting myself to sort of what's just been presented on the sort of overview of the regulatory and enforcement system. I think going backwards through my notes from the latest exchange, and I do wanna thank the commission for the careful questions of staff. I think it was Jesse, the code inspector, uh was talking but also some of the other staff i mean it's part of the thing with zoom is i can't really tell who's who or who's talking uh but possibly excuse me jesse's supervisor that there seems to be a fair amount of confusion as to what is education, and it's great. We're glad that they're educating. That was certainly what was happening at other times, but there's the education, and then there's the notice, and then there's the compliance. They come back and do another inspection. And then when you start getting pieces of paper, it's not clear what they are. It sounds like they don't feel that they have to say that, hey, three strikes in five years and you're out, right? It sounds like they send something called an administrative penalty and fee notice. um so it's not clear what counts as a violation jesse mentioned that you know he tries to work with them and so if the license isn't hanging up if they can print it out and hang it up then he'll consider that a past inspection but it's hard to tell Maybe he might wanna count that as a quote violation because hey, it wasn't hanging up and it's supposed to be. So what counts as a violation? What counts as notice and then correction later for compliance? So then that doesn't count as a violation. I'm confused. Also, just because your attorney mentioned that eight minutes comes from what is given to developers, That's a very different standard, right? Developers are asking for something. They don't have anything. They're asking for a CUP or a permit or a variance. And so you can give them less due process. But in this case, nobody is asking you for permission to do anything. Rather, staff is asking you to assume a judicial function and terminate a right The retailers currently have rights, not privileges, and it just seems that if you're going to terminate a right and shut down a business, that you owe them more than you owe a developer who's just rolling the dice, right? Maybe I get a CUP, maybe I don't. That's... how that works. And in that case, you're sitting quasi legislative, you're deciding, yeah, yes or no, we can give it to them or not. But in this situation, you're deciding, oh, we're going to take out a 15 year old business. Thank you. I think that's my time.

Thank you.

The next speaker is nay.

If I may, Commissioners, before we move to the next comment, on behalf of the Code Enforcement Division, we would object to the attorney representing one of our one of the retailers using the public comment portion of this to surpass the eight minute time limit given to all retailers. So we would just put that on the record. Mr. Anthony is not a member of the public. He is an attorney representing one of the retailers and we believe he is misusing the public comment process. So thank you.

Noted. Nate.

Hello, can you hear me? Go ahead. Good evening, members of the Hayward Planning Commission. My name is Nimyo Ji Da, and I'm a student researcher at Loney College studying tobacco control and tobacco retailer policies in Hayward. Thank you for the opportunity to speak today. I'm here to express my support for the consistent enforcement of Hayward's Tobacco Retail License Ordinance. As outlined in the staff report, these cases involved repeated violations over several years, some with the sale of prohibited tobacco and nicotine products, sales to individuals under 21, failure to verify age, licensing violations, and or the continued possession of prohibited products. These regulations exist for a reason. They help reduce youth access to tobacco and nicotine products, promote responsible retail practices, and create clear expectations for every licensed retailer. And when businesses repeatedly fail to comply, it undermines the purpose of the ordinance and places responsible retailers at a disadvantage. Consistent enforcement helps ensure that every retailer is held to the same standards and that the ordinance is applied fairly across the city. It also sends a clear message that repeated violations have meaningful consequences and that protecting the health and wellbeing of our community, especially our youth, remains a priority. So I respectfully ask the Commission to uphold the intent of the Tobacco Retail License Ordinance through your decision today. Thank you.

The next speaker is Douglas Perez

Go ahead. Douglas, are you there? Hello? Yes, go ahead. Can you hear me? Yes.

Awesome, okay. Good evening members of the Hayward Planning Commission. My name is Douglas Perez. I'm a student at Chabot College and a Hayward resident. I'm here to share serious concerns regarding local tobacco retailers that appear to be violating the tobacco retail license ordinance. I wanna bring attention to tobacco retailers in Hayward who are not following the TRL ordinance by selling items like vape devices, flavored tobacco, hemp and cannabis products, imitation and psychedelic mushroom products, and out-of-state menthol cigarettes. On top of that, some retailers are selling to people under 21, not checking IDs, operating with expired or unposted licenses, skipping out on TRL fees, and hiding prohibited products on site. As someone who lives and studies here in Hayward, this hits close to home. When these violations go unchecked, it makes it way too easy for young people to get their hands on harmful products and honestly undermines a lot of the work the city has already put into public health. I've talked to classmates and people in my neighborhood about this, and it's something a lot of us have noticed and care about. Overall, what I've observed suggests that some retailers may not be fully following the tobacco retail license ordinance, which raises concerns about how consistently it's being applied and what that means for youth access and community health. I appreciate the work the commission is doing and encourage continued attention to supporting clear, consistent implementation moving forward. Thank you again for your time and consideration.

That is the last of the public speakers online.

Can we take a break?

Or if the vice chair could take over briefly.

So we've heard from public speakers, so now I guess we'll be... You can see if there are any public comment. If there are any more speakers? Yes. Sorry.

There are no more public speakers.

There are no more public speakers?

No.

Then I guess we'll be moving on to hearing on specific businesses. Do we have a staff presentation for the first retailer? Yes, thank you.

I will now begin with attachment three, Mobile Hayward Gas and Food located at 391 West A Street. This matter is unique because the property owner has fully cooperated with code enforcement throughout this investigation once they were notified of the code case. Upon learning of the retailer's continuous violations, the property owner worked with code enforcement staff, provided photographs and videos documenting prohibited vape sales occurring at the business and is currently pursuing eviction of the tobacco retailer due to these repeated violations. Many of the photographs presented today and included within attachment three were provided by the property owner as part of that cooperation. Mobile, Hayward, gas, and food accumulated a total of six violations within a five-year period and was inspected on multiple occasions by code enforcement staff over that time period. Over the course of those inspections, staff documented repeated violations involving prohibited tobacco products and licensing violations. The retailers violations included flavored tobacco products, electronic smoking devices, vape products, hemp products, discounted tobacco products, and expired or lack of displayed licensing. The business was also cited for, excuse me, cited by the United States Food and Drug Administration or FDA in August 2025 for selling a flavored vape product to a person under 21 years of age and failing to verify identification during a compliance check. In February 2026, the business was again cited by the FDA for selling cigarettes to a person under 21 years of age during a separate compliance check. These two FDA violations occurred approximately six months apart and demonstrate that the retailer continued violating federal law even after receiving prior enforcement action. No appeals were filed regarding any of the documented violations. The violations before the commission occurred over a three-year period between May 2023 and April 2026 and demonstrates a continuing pattern of noncompliance with the city's tobacco retail license ordinance. Code enforcement initially documented violations involving prohibited flavored tobacco products, hemp products, and licensing deficiencies. Subsequent inspections continued to identify prohibited vape devices, electronic smoking devices, discounted tobacco products, and additional expired or not posted licensing violations. During a code enforcement case initiated in response to an anonymous complaint regarding vape sales, staff became aware that the retailer had also received two separate citations from the United States Food and Drug Administration for unlawful sales to a person under 21 years of age during compliance checks. Because the city's tobacco retail ordinance requires retailers to comply with all applicable federal, state, and local laws, those FDA violations also constituted violations of the city's ordinance. The April 2026 investigation also confirmed that the prohibited vape sales were continuing. With the full cooperation of the property owner, staff obtained evidence demonstrating that vape sales were being sold from both inside the business and eventually from vehicles located on the property, resulting in additional violation. Taken together, these documented violations established a continuing pattern of noncompliance and resulted in six violations within the applicable five-year period, making the retailer eligible for tobacco retail license revocation proceedings before the Planning Commission. These violations are documented in attachment three of the staff report. The photographs displayed here provide examples of the prohibited tobacco products licensing violations and evidence collected during the investigation. The photographs also document a transaction in which the sale originated inside the business but was deliberately completed outside the storefront. After a customer requested a prohibited vape product inside the business, a store employee exited the premises, retrieved the product from a vehicle associated with the employee, and distributed the vape product to the customer outside the business. This conduct demonstrates more than an isolated mistake. It reflects an intentional effort to continue selling prohibited products despite the city's tobacco retail license ordinance and after prior enforcement actions had already been taken against the retailer. The photographs presented today were collected by code enforcement staff during inspections and were also provided by the property owner as part of their full cooperation with the city's investigation. Together they form part of the evidentiary record supporting attachment three. Despite years of inspections, compliance assistance, educational outreach, and opportunities to correct violations, this establishment continued to violate the city's tobacco retail ordinance. The business owner of Mobile Hayward Gas and Food 391 West A Street has accumulated six violations within a five-year period, meeting the criteria for revocation of the tobacco retail license under the Hayward Municipal Code section 10-1.2794. Staff recommends that Planning Commission finds that Mobile Hayward Gas and Food located at 391 West A Street has committed at least three violations in a five-year period and revoked the tobacco retail license for Mobile Hayward Gas and Food. This concludes staff presentation regarding Mobile Hayward Gas and Food. I am available for any questions from the Commission.

Any questions from commissioners regarding this retailer? No questions. Okay, we will now move to the retailer presentation. Is there somebody representing Mowell Hayward Gas and Food?

I believe it's RISQA. I'm allowing them to speak and they are promoted to panelists. Can you turn on your screen?

Hello?

Yes, we can hear you.

Good evening, commissioners. I appreciate the opportunity to speak today. I just want to let the commission know I'm representing Hayward Gas and Food and then that we have made the decision. Can you turn on your screen, please? Doing business at this location. And our last day of operation is going to be June 29th of 2026. So in about four days on Monday.

Excuse me.

Yeah.

Can you turn on your screen, please?

I have no presentation. I don't know.

I believe as part of taking the oath, we have to be able to see the person who took the oath.

Oh, you have to see. Okay, sure.

Can you see me? Yes, we can.

Yes. So as I was saying, we have decided to cease operations at this location on June 29th. So the business asks if we can voluntarily surrender our tobacco license on that day. That'd be all.

Does that conclude your presentation?

Yes.

Okay, now we're gonna move to Planning Commissioner questions of staff or the retailer. Commissioner Hammond.

Well, I guess to ask the question, can he?

If I may respond, the sale of tobacco would need to cease at the moment the revocation is, at the moment the commission moves to revoke the license, so they would not be able to continue selling through the 29th. Sales would need to cease immediately.

Okay, thank you.

Commissioner Hardy. Also just wondering what the implications would be of surrendering a license versus revoking a license in terms of like this location versus other locations and kind of the discussion we were having earlier. And I'm just wondering what that would mean, if anything.

I don't identify anything in the code that talks about surrendering of the license. It doesn't seem to be contemplated, so it's something that we would have to research. Given the statement by City Attorney Rothman, I think the The answer is that the ordinance specifies revocation based on three violations in a five-year period. So it doesn't really give us an alternative except for a lesser penalty if the Planning Commission determines that it's warranted.

And if I may add, we would not recommend allowing the business to surrender the license. We would recommend revoking the license on the record based on the evidence being presented and based on the fact that the retailer has not provided any opposition. We believe the revocation makes it clear for the record that this business has conducted illegal activity. Um, and we believe that the actual revocation is required as a deterrent, um, as well as the punitive measure for the actions, um, taken on top of the fact that it could provide legal protections if this retailer were to attempt to, um, reestablish, uh, tobacco licensing business in Hayward.

Any other questions? Commissioner Stephens.

So if their license becomes invalid after revocation of the Planning Commission's motion, what happens during the 10-day appeal period? Are they not allowed to sell? Or if they do appeal, how does that work?

That's a great question. Christina, did you want to take that answer?

Oh, I was just going to say my understanding is the license is revoked immediately unless they appeal within that 10 day period. So the presumption is, is that it's revoked unless we receive an appeal. Correct.

So that's, that's what I was going to say too. Thank you.

So they still can't sell until city council makes a decision?

So if the decision is not appealed, the revocation is immediate at the time the commission moves to revoke. So it would be immediate starting tonight. If within the 10-day period the decision is appealed, it's likely that the revocation would be stayed until city council can hear the appeal in September.

Thank you.

Any other commissioner questions? My question is, I just wanted to jump back on Commissioner Stevens' question, is that given, if there was an appeal following a revocation, and if it was stayed then until the city council could hear it, what, in terms of process, does code enforcement then just default back to their inspections to ensure compliance, or how, what? happens in terms of staff activity during that period?

Typically when any violation is appealed, all enforcement activity ceases because we still have a pending decision regarding the status of the license. So I don't believe that we would conduct our regular inspections at that time. But I think we would still have to evaluate because this is not typical like our code enforcement cases where we're looking at correctable violations. These violations, they occur. You can't undo having sold an illegal product to a minor. So it's a violation that happened. it's it's static in time you can't correct it like you could go back and fix a water heater in rental housing and then you've addressed the problem so this is a different nature of the violation so I do think we would want to evaluate with the city attorney's office whether or not during that period while we're waiting for the hearing with the City Council whether we would continue ongoing inspections it's a good question

And I can address that. We would continue ongoing inspections, especially with the retailer who has, you know, violated the ordinance numerous times. And a clarification I'd like to make on the record is that these violations occurred over years of periods of years. Each violation was appealable 10 days after the retailers received notices of violations. That's the time when these retailers had to come and contest these violations. At this point, none of these violations can be contested by the retailers. The time to appeal the citations has long passed. As you'll hear, one of these retailers did appeal, but I think that goes to a better understanding of how this process worked. What we're doing here is just confirming that there were three, at least three violations. This is not about relitigating the violations. Once a revocation is ordered, even if the, retailer appeals we would still continue to inspect and enforce the ordinance um and so they could accumulate more violations in that period more penalties um and actually at this point i think the question of whether or not the revocation um could maintain could maintain could be could continue during the period between this hearing and the appeal is one that potentially Senior City Attorney Vigilia should respond to. It would be our position that the dispensaries should be prohibited from continuing to sell tobacco while waiting for their appeal, which likely will not be held until sometime in September given the council closure. And I think perhaps that's something the Planning Commission can decide, but that's a question that I think Senior Assistant City Attorney Vigilia would need to respond to. Good questions, though.

Can you restate the question?

My question was, if a retailer appeals the revocation of a license, what is the staff activity between the, during the time that the license is revoked and the appeal hearing of the city council. Does the city continue its enforcement or during the stay? I mean, we're talking about two, two and a half months.

Apologies, Commissioner, that that's one that I could answer and we will continue to enforce the ordinance. I thought that you were asking whether or not the revocation order would be stayed during the time between now and when the appeals will be heard. But yes, the code enforcement team will continue to enforce against these retailers as long as these retailers are continuing to sell tobacco.

Got it, thanks, and I did ask, my first question was about if it would be stayed, if the revocation would be stayed during the period between the decision and the appeal hearing. So yes, thank you. Commissioner Yorgoff.

Thank you, Chair. If I could just ask a quick follow-up question. So if none of the specific offenses are at this point appealable, and the language of the statute is that three separate offenses over a period of five years are grounds for revocation, does the Commission have, what would an applicant need to demonstrate actively in order to qualify for a lesser punishment if each of those offenses has already been proven?

So things that you've been hearing from retailers are what they're, you know, retailers can present kind of whatever they would like to in order to show that potentially revocation is too harsh of a penalty. And you'll hear some of that argument today from some of the different retailers and attorneys, but That's the issue here today. It's what the penalty will be, not whether or not there will be a penalty. It's whether or not the license will be revoked or a lesser penalty will attach. The question is not whether or not the violations were correctly, were lawfully noticed or inspected. That time for challenging that has long passed. Did that answer the question? Okay, great. It did clarify.

Thank you. And that's it for me, thank you.

Any other questions, commissioners? Okay, at this time, I wanna open public hearing. And these is an invitation for the public to comment on this specific business, the mobile Hayward Gas and Food. And Ms. Corral, do we have any speakers on Zoom or in the chambers?

I think we do. We have Sandra Archuleta.

Ms. Archuleta, go ahead. Hello? Go ahead.

Okay. So I think there's a couple of points here. The first one I'd like to make is I definitely agree with not letting the retailer surrender his license. I think that it is very important that the license is revoked so it does go on the record. Because part of the revocation I think that is important for this enforcement action is that these retailers are not allowed to set up shop somewhere else. this retailer in particular, has like a very big pattern and of violations, I think, at this point, think flavored tobacco vapes all that has been um uh the law changed like a long time ago right it's been a few years i work in prevention i'm part of the alameda county tobacco prevention coalition we do state conferences so this has happened a long time ago retailers have the knowledge at this point And so for this retailer to continue to to violate and have these serious violations sell to minors, that's one of the big ones for me, because Kids know the retailers that are going to sell to them. They share that information amongst themselves. And one of the biggest issues in our community around tobacco is accessibility, right? It's easy for kids to get it. You look at the California Healthy Kids Survey. It literally says it in there. Kids all say how easy it is to access tobacco, to access these flavor, the vapes, all of that. And so... when you have a retailer that is knowingly selling these products selling to minors just rendering their license with the potential of setting up somewhere else is something that we should really not discourage and i also want to say that these retailers should not be allowed to operate while they are on appeal they have proven that they are harmful to our communities and the fact is they've had they've had this pattern of behavior for a long time and so i think it's really important that we do close these retailers that are accumulating all these violations that are selling to kids that are selling products that they know are illegal you can say education you're going to hear them say that but It's been several years now that the laws have changed around these issues. And I'm telling you, I, my family, you know, we had a beer and wine license. We owned a restaurant. When you have those licenses, I heard someone say it's a right. It is not a right. It is a privilege. And that privilege comes with a lot of responsibility. And you have to know every single year's laws change. A good retailer knows when those laws change and they talk to their business and their I'm sorry, their staff. I know it because my family owned restaurants, we had one of those licenses, and there are good retailers out there that do things right, and we need to stop these retailers that don't. Thank you.

Thank you. And just a clarifying question, Ms. Archuleta, are you speaking as an individual or on behalf of your employer?

I am speaking as an individual, but I am a prevention professional. So I'm here as a community member. You know, my kids go to high school.

Thank you.

I'm a mom, so that's it.

The next speaker is James Anthony.

Mr. Anthony, did you have comments on this?

Yes. When I last spoke as a member of the public regarding the initial staff presentation, the prosecuting attorney, Ms. Rothman, then objected to my speaking, and I was not given an opportunity to counter that objection. Although I did try to raise my hand on Zoom, one of the many infirmities of Zoom. I do want to note that as far as I know, I'm a member of the public. I don't know if the Hayward Planning Commission has some kind of definition of who is public enough to be public.

But if so, I'm not aware of it. This is for the retailer. Do you have... comments, especially for this retailer.

What's happening here is that this discussion is bouncing all over the place. For instance, the issue of whether or not a retailer can stay open after the Planning Commission decision, during the 10-day appeal period, after they appeal, right? All of that is on the table. So I just want to weigh in that those are very important issues, and I'm glad that the Planning Commission is asking them. It would be great to hear from your attorney and you will hear from me again.

Thank you. Do we have another speaker for this retailer?

We do not.

OK, now we will move to we will close the public hearing on this item and go to planning commission discussion.

I'd like to make a motion. I'd like to make a motion that the commission finds that Mobile Hayward Gas and Food located 391 West A Street has committed at least three violations in a five year period and thus their tobacco license should be revoked.

I'll second that.

It was moved by Commissioner Stephenson, seconded by Commissioner Hammond. And the motion has passed. The decision of the Planning Commission is final unless appealed. The appeal period is 10 days from the date of the decision, which is tonight. If appealed, a hearing will be scheduled before the City Council for a final decision. Now we can move to the second retailer.

Oh, the applicant, sorry, the business owner from the first business has their hand raised. Oh, he just lowered it, okay.

So now we move on to the second retailer, Smokey's Smoke Shop and Gifts. And I wanted to also just remind the council that this retailer has asked for a continuation of the hearing on their item. So we are ready for staff presentation.

Thank you. I will now move on to attachment four, Smokey's Smoke Shop and Gifts, located at 25088 Hesperian Boulevard. Before proceeding, staff acknowledges and appreciates the numerous public comments submitted in support of this business. Many commenters describe positive customer service, friendly staff, and the business's contributions to the community. While these comments speak to the retailer's relationships with its customers, they do not alter the requirements of the city's tobacco retail license ordinance. Compliance with the ordinance is mandatory for all licensed tobacco retailers, regardless of customer satisfaction or community support. A business's reputation for good customer service does not authorize the sale, storage, or possession of products prohibited under the city's tobacco retail ordinance, including flavored tobacco, products or imitation mushrooms, nor does it exempt the business from enforcement when violations are identified. Smokey's Smoke Shop and Gifts accumulated a total of five violations within a five-year period and demonstrated continued noncompliance despite multiple inspections conducted by staff and years of leeway. Violations documented during inspections included flavored tobacco products, vape products and electronic smoking devices, hemp products, CBD products, prohibited cigarillo packaging, and most recently, imitation mushroom gummies. The business demonstrated an ongoing pattern of noncompliance despite inspections, compliance assistance, and opportunities to correct violations. This retailer previously appealed a violation issued by the city in 2022 for selling flavored tobacco products, parts, components, or flavored tobacco paraphernalia, electronic smoking devices, electronic nicotine delivery systems, e-cigarettes, vaping devices, including all parts and components, electronic smoking and vaping products, and vaping paraphernalia, including but not limited to devices, parts, and components, E-liquids, concentrates, waxes, et cetera, and CBD or hemp products or any products made from derivative of or containing any amount of cannabis plant intended for human consumption. After the city presented evidence, the hearing officer upheld the city's citation, finding that the business was in fact in violation of Hayward Municipal Code section 10-2783. At that time, the business also filed a lawsuit against the city claiming that the city's tobacco ordinance was unconstitutional. In those proceedings, the business was represented by the same attorney appearing on its behalf today, a case in which the city ultimately prevailed. This further demonstrates that as of 2024, both the business and its attorney were fully aware of the sale of illegal tobacco, cannabis, and other substances at this business was unlawful. Yet as the evidence herein demonstrates, they intentionally disregarded that knowledge and continued selling illegal products that target youth. At the time this report was prepared, approximately $1,500 remains owed in penalties from a prior tobacco enforcement case. The photographs shown on this slide were taken by code enforcement staff during inspections and depict prohibited electronic smoking devices, vapes, edible hemp products, and edible CBD products that were observed being offered for sale in violation of the city's tobacco retail license ordinance. The violations before the commission occurred between 2022 and 2025. Violations documented by staff include flavored tobacco products, vape products, and electronic smoking devices, hemp products, CBD products, and prohibited cigarillo packaging and mushroom gummies. Several inspections in 2020 identified substantially similar violations after prior enforcement actions had already occurred, demonstrating a continuing pattern of noncompliance despite repeated enforcement efforts and educational outreach. These violations are documented in attachment four of the staff reports. The photographs displayed here provide visual documentation of the products and conditions observed during inspections. These photographs depict examples of prohibited products identified during enforcement activities. Included are flavored products, excuse me, flavored tobacco products labeled with characterizing flavors such as sweet, prohibited cigarillo packaging that does not comply with applicable packaging requirements, and edible mushroom gummies that imitate psilocybin, a schedule one controlled substance under federal law. Products that imitate controlled substances are prohibited under the city's tobacco retail license ordinance. The photographs illustrate the range of violations identified by staff during compliance inspections and enforcement activities. The photographs form part of the evidentiary record supporting attachment four. Staff finds that this retailer accumulated five violations within a five-year period, meeting the revocation criteria under the Hayward Municipal Code section 10-1.29, excuse me, 2794. Staff recommends that the Planning Commission finds that Smokies Smoke Shop and Gifts located at 25088 Hesperian Boulevard has committed at least three violations in a five-year period and revoked the tobacco retail licenses for Smokies Smoke Shop and Gifts. This concludes the staff's presentation regarding Smokies Smoke Shops and Gifts. I'm available for any questions from the Commission.

Thank you. Do we have any Commissioner questions on evidence presented on this specific retailer? Commissioner Myers.

Thank you, Chair.

I noticed in 2023 there's none. Does that mean that there was no inspections done or no violations that year?

That just means there were no violations that year.

Okay, and then when it says in 2026 to be determined, does that mean that we have yet to do an inspection on that property?

That is correct.

Okay, and finally, no notice sent, unpaid TRL. So no notice sent means that they were in violation, but they weren't told that they were in violation. Can you kind of clarify that?

Within the documentation of that specific case, there was no notice sent informing the business or the property owner of the violation and therefore was not counted as part of the total count of violations against the retailer.

Oh, I see. Okay, so they kind of got a free pass on that one because of that. Okay, thank you.

Commissioner Low.

Thank you, and thank you again for your presentation again. My question is, under the law, does the retailer, and this is obviously more for a city attorney, I think, but under the law, does the retailer have the right to have their lawyer appear in person, or is a virtual appearance sufficient?

I can handle that. We've given all... retailers the opportunity to appear in person, but the opportunity to appear remotely is provided as an accommodation in case lawyers are unable to appear in person. Was that the question?

The question is really more, does the retailer have a right to have their lawyer appear in person? Or if the lawyer is able to appear virtually, is that sufficient under the law?

That is sufficient under the law. There is no absolute right that an attorney be here in person. And I'm happy to touch on some of the statements provided by Mr. Anthony um and some of the communications that i believe were sent um at a time when the commission um would welcome that um i have a lot of information i have a lot of responses to some of the issues he raised would you like me to present that now well i haven't oh sorry go ahead

I think we should go through commissioner questions first, and then perhaps maybe we can call on you to clarify things during our discussion. Perfect.

So then my next question is, what are the legal rules or regulations regarding continuances of these hearings?

So the continuing an item, any item on an agenda for the Planning Commission that's within the discretion of the commission. And it would be subject to the typical way that you take action, which would be by a motion and a second. Thank you very much.

Any other questions from commissioners?

I have a question.

Commissioner Hardy.

Thank you. Is there someone from the retailer, or is it just the attorney who is present? Because I have a question for the retailer. The owner is here. The owner is here, okay. I'd like to ask a question of the owner.

Can I add, there will be an opportunity for additional Planning Commission questions following the retailer's presentation, so that might be the more appropriate time to ask questions of the retailer and or their representation.

Okay, I'll wait for that question then. Thank you.

Are there any commissioners who wish to ask any questions of staff at this time? Commissioner Hammond.

Does the continuance mean that the retailer can still continue to sell tobacco products?

If I may, it would be the city. So that decision would be up to the Planning Commission, I believe. It would be from the prosecuting agency's side, we would object to any continuance without the obligation and requirement that the retailer be ordered to cease all tobacco sales in the interim. FOR NUMEROUS REASONS WHICH I'M HAPPY TO EXPLAIN. IT IS AND SENIOR ASSISTANT VAHILLIA CAN RESPOND AS TO WHAT THE PLANNING COMMISSION MAY DO BUT WE WOULD OBJECT TO ANY CONTINUANCE WITHOUT THE CONDITION THAT RETAIL SALES CEASE DURING THE INTERIM.

THANK YOU.

ANY OTHER COMMISSIONER QUESTIONS FOR STAFF? Commissioner Stevens.

I'm just, I'm confused. I'm confused by, so if Planning Commission makes a motion to revoke the license, doesn't the applicant have the right to appeal this in front of City Council, which would give this applicant more time to prepare? Isn't that how this works?

That's correct. As with any other planning commission decision, there's a 10 day appeal period.

So city councils out in July, they're out in August. So this wouldn't be heard likely till September. Yeah, most likely. So that seems like there'd be plenty of time to prepare for that. To an appeal for an appeal. Correct.

Yeah, that's a decent amount of time.

And I guess I also don't understand this term cross-examination of witnesses. That doesn't make, I don't understand what that means.

It's a legal term. It's a term that describes a certain type of questioning that an attorney will do, usually directed towards witnesses for the adverse party. So what we want, typically the way we want it to, that the, Hearing would run is we would want just presentations made directly to the Commission And not have it be any type of adversary Traditionally adversarial process that you would like see in the court Staff makes the presentation to you Retailers and their representatives make the presentations to you everything is directed to the attention of the Commission So that's how that's how

we structure the proceeding. So just to clarify, the applicant had several violations. They appealed one of the violations and lost, is that correct? But the other, it looks like one, two, three, four, five, there were five violations. They could have appealed the other four too, right? if they felt that the inspection was improper or some process was followed incorrectly, they had four other opportunities, correct?

That's correct.

Thank you.

Any other questions for staff? All right, at this time, we will move to the retailer presentation. Is there someone... Someone here on behalf of the retailer?

We have James Anthony. I just unmuted.

Mr. Anthony, you have eight minutes to- No, no, no, just a moment.

I do not wanna start running that eight minute clock. I am not yet appearing at the substantive part of the hearing. We are still dealing with my procedural request for a continuance, because as you can tell, you can't see me, I can't see you. This is a completely unfair method of extinguishing a right. There is a property right here. and therefore due process requires a higher standard than if you're just deciding to grant or deny a CUP. Your lawyer, Mr. Vigilia, keeps talking about, oh, it should be like developers and we don't want it to be adversarial. It is necessarily adversarial. You are trying to deprive developers the owner of a property right. You are sitting quasi-judicial and hopefully your lawyer can explain that to you. It is very different from when you are sitting quasi-legislative just deciding to give or not give a a permit right because you don't have to give them a permit right but in this case we're not asking you to give us anything staff is asking you to take something away that is a very very different standard and it's what i explained in my emails first to your staff and to your attorneys who refused to hear my request and instead made the same sort of nonsensical recommendation that Ms. Rothman just reiterated, which is that, oh yeah, give up your right before your hearing and then you can have a continuance, right? That is not how due process works. We get notice and a hearing before the deprivation. And that is what we are asking for. So if you have more questions about that, it's covered in the email I sent you last night and also this afternoon. It's just a matter, and Mr. Villegas, I think, did mention that this is at your discretion. You can consider whether or not to grant a continuance, and you can also decide what level of process seems reasonable to take a right. You are not married to eight minutes. I think Mr. Vigilia will say you could make it seven minutes or nine minutes, or you could order a full hearing and give it however much time it needs and allow cross-examination. When we did appeal just a suspension and we went in front of a hearing officer, I got to cross-examine. city staff, including Amber Green, who is all over the staff report and who apparently is no longer with the city. And yet we need to clarify with her whether those were educational correctable notices is how Mr. Ahmed will explain to you he understood them. or not, right? And again, I object that you are running this eight minutes. I need you to pause that timer and reset it and make a decision on the procedural request for a continuance. Please check with your attorney, Mr. Villaglia, on how to proceed.

Chair, it's up to you how you want to

We will consider the continuation after the public hearing. So if you wanna run out your remaining four minutes on your presentation.

No, I apologize, Chair. I have not yet agreed to appear at this hearing. I am challenging your jurisdiction to proceed without proper due process. If you are violating the Constitution, as I allege, you cannot hold this hearing and I will not appear at it. So I need you to decide first, will you give me a continuance, in which case we are fine, or if If you have decided not to give me a continuance, then please let me know and let's start the eight minute clock so I can make my substantive presentation. Please check with your attorney.

Mr. Anthony, this is your presentation on behalf of the retailer.

This is not my presentation on behalf of the retailer, and I don't mean to be argumentative, Chair, but I need a clear record for appeal because we are going up to Superior Court to require you to follow the Constitution, and I need to reiterate that I am not appearing. I am still talking about a pre-hearing procedural issue. Do you have jurisdiction or will you give me a continuance? However, if you're telling me that you are going to cut me off in three minutes and 35 seconds, then having lodged those objections, I will continue. I will just remind you that as Mr. Vigilia said, this is all at your discretion. Again, I object to the absence of Amber Green and I also sent you all a questionnaire about possible bias because as we know, smoked tobacco is addictive and deadly and it has impacted millions and millions of families American families, including my own and possibly including some of yours, I would like to know if that's true, right? If your grandmother died of a smoking-related illness, as did mine, it might be difficult for you to be unbiased in these hearings. I know it would be difficult for me. Let me see. I want to point out that, yes, the understanding for the 2022 violations, while the city and the various tobacco retailers were sorting out how did the state law work, how did the local law work, what counted, you know, multiple... Flyers went out listing different pictures of what was legal and what was not illegal, and then another one would come out and they would contradict themselves. And if we had Amber Greene, she could tell you what was happening here in 2022. So I would ask that you disregard those three violations, which leaves you with two, which is short. of what you need. Now, I want to save a minute for the owner, Mr. Ahmed, so he can confirm all of that. I want you to look carefully, though, at the bottom of the staff report at page 209. Take a look at that And here, I'll pull it up for myself. Again, I can't see any of you. I cannot tell if you are listening to me, if we are connecting, if you're rolling your eyes, if you have questions, right? I would never ever appear in a courtroom this way or in an administrative hearing, and that is what this is. You are about to take away a property right. Okay, so to my invisible decision maker, take a look at page 209. This is the 2015 so-called violation. It doesn't say violation on top of it. It says administrative penalty and fee notice. And if you look down through it, it does say, okay, violations, corrections, corrective action, and a compliance date of December 10th. How does a business owner look at that and not think, okay, we're still figuring it out. You know, imitation mushrooms are a new thing, legal under state law, apparently not in Hayward, whatever. But they're going to come back on December 10th and I will have already, you know, disposed of all these things. I'll start right now while Jesse is standing there in the store. How are you to know that this, right, is gonna lead to this, to this notice of violation? Mr. Ahmed, please confirm what I've said and talk about how confusing this is, the definition of education and compliance and corrective and violation. Sorry, you've got 15 seconds.

I'm sorry, but the clock has run out.

Yes, and it is at your discretion to allow him to speak.

I will allow you three minutes. Turn on the microphone so we can hear you. There we go. Thank you.

So on that day when I was notified that those items needed to be removed, I removed those right away. So and even for the inspection process, re-inspection, code enforcement came and everything was clear. So I did not know that that item was going to lead to a revocation. And going back to 2022, in 2022, our store was very involved with code enforcement in figuring out what was gonna be allowed, what wasn't gonna be allowed. If you look through the staff report, there's areas where Amber documents that notice of violation provided an effort to provide additional clarity and direction for compliance. There's over here, it's documented, that Green will not be inspecting the property as scheduled to not interfere with the hearing. So throughout that whole year, we were figuring things out on what was gonna stay, what wasn't gonna stay. At the end of the hearing, when she came and I would complied with everything, and this was all peacefully, a lot of her notices Like at the moment, there weren't violations. And on today's date, like when this revocation letter is sent, I'm being hit with them as violations. At that time in 2022, when this was going on, she would actually visit my store frequently. She actually used my store as like an example store. She would take pictures, take them back to the city and go back and forth. In the staff report, If you look at the pictures taken in 2022, those pictures consist of the whole store, of even down to an ashtray, lighters. Those pictures are not just only a vape product or a tobacco product. So she was actually using my store as an example, and the information was brought back to the city, and that's how things were ironed out. When the hearing process was completed, She came and inspected my store and we were clear after that. And if you notice from 2022, all the way up to this 25, there's zero violation. The one that stated is 23, that's probably the inspection date that she came and cleared my store. So before city council makes any decision, I'd like them to look into what really happened in 2022. And in 2022, like for me at that time, we opened in 2011. I've been in business 15 years. So in 2022, when we did this appeal, I started as a smoke shop, then vaping came around. Then we became a full vape shop. Now in 2022, when we went through this appeal.

Please just finish up your comment.

When we went through this appeal, these violations that are showing for 2022 should not be held against me. This was actually a learning process for code enforcement. So Amber would come by and I would tell her what these items are and we would go back.

Your time has ended. You know what I mean, right? Thank you, yes.

And then I shouldn't lose a business for appealing something.

All right, we're going to now move to Planning Commission questions. And this is where we can ask questions of staff and or the retailer. Commissioner Hardy.

Thank you. So I will now ask my question of the retailer. So if you could come back up to the to the microphone. Thank you. So you were just talking about the hearing that you have in the appeal. So could you just speak to Just a little, I don't really understand why if you just went through that whole process and had the appeal, why when you were reinspected, there were even more things that were discovered with like the mushrooms and things later on. It seemed like that would have been a learning experience. And there would have been less. Yes, in 2025.

Yes. So in 2022, there was no product like that. There was no mushrooms. Those are imitation mushrooms. Those are legal to sell. But these are not the psilocybin ones. You have to make that clear. And these products came along later. They were being sold at liquor stores, convenience stores. I've even seen some mushroom products being sold at the Dollar Tree in the snack aisle. So it's like these items weren't around in 2022.

But then there were still also the same items that were on the list from when you did your appeal.

What items?

The list, it looks like it's the same list plus additional items.

You need to identify those items because a lot of the pictures, the way the presentation was put, a lot of the pictures that were being shown were from 2022, not this 2025. Thank you.

It looks like flavored tobacco was still being sold. It just seems that if you went through all that with an appeal and you learned from it, that there wouldn't have been the same things found again in 2025. So I just wanted to know what your take was on it. So thank you. Some of the items were just an honest mistake.

Thank you.

Any other questions? Commissioner Stevens.

So I'm confused. I couldn't find page 209. So Mr. Anthony or the owner, I just, is it the notice of violation that's confusing? Because I see a series of notice of violations of tobacco retail license to Smokey's Smoke Shop. It seems pretty clear to me what the violations and corrective actions were. I'm just, I'm lost.

Commissioner Stephens, are we looking at attachment four, 25088?

Yes, that is correct.

Okay, so that on my copy is a total of 218 pages. And starting on page 209 is what is titled administrative penalty and fee notice for November 17th. And it has a next inspection date, December 10th. which is also referred to lower down as the compliance date, just underneath the corrective action. So this looks like a notice to correct, which is what he did. And he also agreed to pay a $1,500 penalty, thinking that that was what was being asked of him. He did not, in addition, call me his sometimes very expensive lawyer. It's not like I sit around the smoke shop waiting for jobs. He has to come to me with money and hire me. And so when he thinks he's just being asked to correct something and comply, he doesn't come to me and spend money on an appeal. And that seems to me like another complication. honest mistake and frankly you know Jesse is very charming and hangs out in the store and says all this has to go that has to go I'll be back in a month I'm sure it'll all be fine and then he turns around and sits up there and tries to take out a fifteen-year-old business and end run that your planning code describes these businesses as being legal nonconforming. So this entire process is an attempt by staff to end run a constitutionally protected land use right. Just a thought.

Could staff clarify this document and how it all fits into the whole mix here?

Can you clarify which document is that, the administrative penalty and fee notice? Correct. An administrative penalty and fee notice is typically sent when it accompanies an invoice with a penalty fee or administrative fee. In this case, an administrative fee was administered due to the violations being present during the inspection, and that's why they received that specific notice. it still constitutes violations that were observed and documented.

Thank you.

Any other commissioner questions? Commissioner Hammond.

So are there still fees due?

I still owe the $1,500.

And is there any particular reason why you didn't pay that before you showed up tonight?

Can he speak into the mic?

I'm sorry. Just short on budget, trying to budget things.

But knowing that you were up against having your license revoked, wouldn't it have been prudent to have paid that fee to show that this is all in good faith?

I have the notice with me. That's one of the things that I was going to state that that 1500 bucks is not a problem and I can clear that out, but I just haven't gotten to it.

But given the gravity of this decision, why would you not have taken care of that earlier?

Just I guess budget constraints. Right now I had to pay a lawyer and all these things. The business, I mean, we have some slow times too, right? We have to pay employees and this was not expected. This 1500 bucks was not expected to be an expense. And when this popped up, but I can promise that it will get paid.

Okay, thank you.

Commissioner Myers.

Thank you, Chair.

So it looks like in 2022, is the bulk of the violations. And I may be paraphrasing wrong, but I believe the owner here stated that in his eyes, they were never fully violations that should be marked against him. And if it's not for those, then I only see one violation. Can you guys speak maybe, code enforcement, on the validity of that understanding maybe?

You know, I can speak to that. I was around, I handled these. This business was in noncompliance on numerous occasions. Our code enforcement division had to spend an ample amount of time at this business conducting inspections, educating the owner to make sure that these violations did not reoccur. That the owner did not know that these were violations is, again, not a defense, but it's also just not credible at this point, given the way that code enforcement inspectors handle inspections. Again, these particular inspections were actually appealed and heard by an independent neutral hearing officer, an administrative officer. As you heard Mr. Anthony say, he had an opportunity to cross-examine the inspector about all of these issues that are now being raised. at that administrative hearing. The neutral hearing officer heard all of those arguments and found that the violations occurred and should be upheld. I would also note that the way that the code enforcement team issues violations is very lax. Every product that they saw at the store could have been counted as an individual separate violation. Inspector Greene and the way that other inspectors enforce, the goal is to get compliance. It is not to punish. And so they did not do that. they would visit, they would see violations, that would be a violation there. That does not mean though, that the violation does not need to be corrected. And I think what's happening is that this retail owner is saying that he thought that because he corrected these, that they were not violations, but that is just not the case. um and again these these arguments were in this case actually heard by an administrative hearing officer at that time um and then again these the the entire ordinance was appealed to the uh superior court by mr anthony and this retail establishment and the court heard this um so i you know we would disagree in the way that the inspections are being characterized we would note that the city did not learn from having to go and conduct these inspections. It took a lot of staff time, a lot of oversight, and a lot of handholding. And what we see today is that nothing really came of it as the illegal activity continued into 2025, at which point this shop is now selling imitation mushrooms, which are illegal in Hayward. And so I hope that answers the question, but if not, hopefully there's additional information the inspector can provide.

No, I believe that answered it perfectly. Thank you for that. I guess I just have one more quick question for the owner. I actually, I've been in your store quite a few times and it's a very nice store. I'm kind of a fan of your store and I hate to see you in this position. Should your license get revoked today Will, you sell a lot of other products. Will you still be able to, I mean, without the smoking, are you still okay in that store? I know it won't be as lucrative. I'm not saying it's lucrative.

No, I don't think you'll be able to survive at all. That's the reason I took photos of the store because I wanted to show the commission if they ever seen it, they know what they're talking about. If they have a visual, maybe they can make a better decision. if I can pass these around, the amount of tobacco products and then these.

Can you please go back to the mic and then you can also project the images as well so that the public can see it.

Yeah, it would be impossible to stay in business without selling tobacco. A smoke shop is a smoke shop because of tobacco. Otherwise, you know. And another thing I'd like to just throw out there is there's people opening just gift shops and then they're selling everything without any license. So taking a license away I'd like to request a lesser punishment.

Can you speak into the microphone please?

Okay, this is our tobacco area and this is easily about 25 feet of the whole wall is just tobacco. Just this picture itself, this shows about 30 grand worth of tobacco.

This is our storage area.

And just all the stock right here, this is easily probably another 20 to 30,000. This is a picture from standing in the back of the store to the front. From the back of the store to the front, this store is easily 50 feet long. And wide is maybe 30 to 40 feet wide. That's a picture of one side of the wall with all the products. And the store is fully inventoried. Combined, we're maybe talking about $200,000. So without a tobacco retail license, without being able to sell tobacco, it would just kill everything. There's just a few more pictures. This is standing from the front to the back. This is also standing front to the back. I wanted to show you these pictures because maybe the council doesn't know what we're really talking about. If they haven't seen the place, you can't tell. And it's always kept clean, nice. And I try my best to follow all the rules. If something I don't know or a mistake, then I admit to it, but I can't lose my whole business over mainly all the violations that are being shown is for 2022 when I was in that hearing process. So should I lose the business because I went through a hearing? And at that time, that was an adjustment in the TRL. The TRL really started in 2014 or 15. And at that time, there was no such thing as vapes. And that was the TRL. at this point in 2022 is when they made modified it. So this is when vapes were made, were banned and stuff.

Because before that there was no vapes. Commissioner Myers, has he answered your question?

Thanks for those pictures, I think that is helpful. And I do believe you that you, are in good faith trying to do the right thing. I'm just a little bit challenged because even though you've had those 2022 violations, you also failed a couple of years with your license posting and renewal. No, no. Oh, that one, I guess you gotta pass on that one. Yeah, no, no.

I've never had my license expired or not posted.

Okay, so then I guess in 25.

And that was maybe a fee, but I was never aware of it, and that's a $400 fee. If I knew I need to pay it, I can pay it.

Right, right. And then again, I think Commissioner Anika mentioned in 2025, you did have repeat issues. Do you care to speak about how that came by?

So the first picture, So those items is the first picture. It's the three pack. On that one, my fault. I do take fault. It's a three pack. It should have had five cigars in it. The part where that's flavored, those are not flavored. Those are the strain or the origin from where the tobacco came from. Now, the tobacco company makes the packaging all colorful, and that's not on me. But my fault is that instead of having five cigars in the package, it had three cigars in it. And there's another pitcher that is pipe tobacco. And for the rest of the whole California, pipe tobacco is exempt. There are flavors and blends in it. But for California, I mean for Hayward, I guess it's banned. But I removed all those products as soon as he told me to. And how those products got to the store is we have our supplier that sends a weekly delivery. They're outside of Hayward. So whatever new items show up, they send it as part of the delivery, and they arrive to the store as part of the delivery. The employees opened it up and put it on the shelf, and that's how they ended up there.

Okay, thank you very much. I have no more questions.

Are there any other commissioner questions? Commissioner Yorgos.

Thank you, Chair. Just quickly at the, thank you for appearing for answering our questions, but the retailer's attorney has a couple of times referenced a business being in a property right. I just want to get clarification from staff, and I'm not sure who exactly that would be. Is running a business considered a property right in California? And on top of that, is running a business distributing a restricted substance? Does that change that answer at all?

I think I'd have to defer to Deputy City Attorney Rothman.

So I think that what you're hearing from Mr. Anthony is a lot of smoke and mirrors. This case was the constitutionality of the ordinance was was decided was. was actually brought to the Superior Court by Mr. Anthony over an argument that the city essentially didn't have a right to enforce against these businesses and that the ordinance and not allowing flavored tobaccos were illegal. It is, it's legal. We prevailed in the Superior Court. If you're talking about his reference to legal non-conforming use, perhaps that's what you're referencing. What happened is the zones in which these tobacco retail establishments are located are currently not allowed to run tobacco businesses there. And the only way that these businesses were running is essentially they were grandfathered in as a legal non-conforming use. If the retail license is revoked, they would not be able to reestablish businesses there because of the zoning issue. If... You're referring to Mr. Anthony's argument that there should be a bigger due process procedure in this case because establishments are considered property and we are taking away a business's due property. That's something I would like to address. Mr. Anthony's due process argument rests on an erroneous premise that every quasi-judicial administrative hearing, which is what this is, includes a constitutional right to present unlimited testimony, evidence, and cross-examination. It does not. Due process is a flexible concept, and the procedures... do require on what is happening in the administrative proceeding. It depends on the nature of the issue being presented. And that is a standard that's established by a California Supreme Court case, Matthews v. Eldridge. Actually, it's a US Supreme Court case. There's also California appellate case law that's very clear on that issue. Because the scope of this hearing does not get to the evidentiary basis of whether or not the violations were proper, that time period for contesting the violations has long passed. There is no opportunity to relitigate, and therefore this particular proceeding does not require an opportunity to cross-examine witnesses. The evidence being presented here is documentary. It's the evidence that these establishments have had for years. It's the notices of the violations. It's the photographs. And because it is a limited hearing, due process does not require a full procedure. The eight-minute hearing, the eight-minute presentation is sufficient to do what is being done here, talk about the evidence that's being presented, discuss it. there would be no need to cross-examine because, again, whether or not the violation occurred is not an issue. The time period to look into that has ended. The issues that remain are the two questions, whether or not we have established, and by we, I mean the Code Enforcement Division has established More likely than not that the retail that this retailer violated the ordinance three times within a five year period. That's all that the city needs to show and we only need to show that it's more likely than not that it happened. The only thing the retailer here can do is show by a clear and convincing by clearing convincing evidence. that a lesser penalty is warranted. And that is the reason why there is not a full procedure, jury trial. You heard Mr. Anthony trying to question you about jury bias. That's not allowed in an administrative hearing because these are quasi-judicial hearings. These are not trials. Given the narrow issues here, due process does not require months or even weeks to prepare. even though such was offered to Mr. Anthony and this retailer, which they denied because they did not want to see sales until September, nor does it require that they are given unlimited time to present or an opportunity to cross-examine. So to the extent your question went to that portion, whether or not property rights are an issue don't affect how this procedure proceeds.

Thank you for the very in-depth explanation this deep into the hearing. And that's it for me. Thank you, Chair.

Commissioner Stephens. I just have one question. So when we go back and look at the 2025 report, Mr. Prins, I see a lot of photographs in the administrative penalty and fee notice. I see things. Could you maybe describe, is every photograph inside there, is that all either flavored tobacco products? I look like I'm seeing in the second, the middle left photograph, the three cigars or whatever you call instead of five, but is everything else something flavored?

No, it is common for code enforcement staff to take general overview photos of products throughout an establishment for documentation's sake. Not all photos are violations within the notice.

So if I look at these pictures, is 10% of these a violation? Is 50% of them a violation?

As I'm looking at the notice as we speak, I can say that 85 to 90% of these photos are violated, excuse me, of prohibited products that are violations.

Thank you. And then so for you, sir, you said that the supplier delivers these things to you? You don't place orders for things?

Any new items that come on the market, they add it into the order themselves. Those suppliers are located in different cities, not in Hayward, so they're not familiar to what's allowed in Hayward or not.

But isn't flavored tobacco illegal in California?

The pipe tobacco is exempt.

So I don't understand. So I'm looking at cigarettes and all kinds of other things in there. Is that not a violation of it?

Repeat the question.

I'm just confused because when I look at these photographs, I see things that don't appear to be pipe tobacco. So how did those wind up in the store?

If you're looking at those cigars, they're not flavored. Cigars have, if you read it, that's the origin of the tobacco, and those are blends. Those are allowed.

So you sell flavored or unflavored tobacco for the same price. There's no difference in the price.

Right, yeah, price is the same. Price goes upon what we buy it for.

Thank you.

Are there any other commissioner questions? Commissioner Myers?

So I'm just throwing it out there. I'm not saying I'm leaning one way or another, but should we offer a reduced sentence of a suspension for X amount of months or however long? and there is another violation once it gets renewed within a five year period, it would then come back here for revocation again, is that correct?

That is correct.

Okay, thank you.

Commissioner Low.

I just want to make sure I understand what you were talking about with Commissioner Stevens. You were saying that the suppliers just send you all the latest products, so you don't necessarily know if what's coming is prohibited. But once it gets to your store, don't you decide what goes out on the floor? Or what, I mean, in other words, if I got something, if you get something that you know is prohibited, How does it end up staying in your store?

If I want to return it, I can set it aside and return it to them, pack the way it is. But these items were taken apart and opened, the plastic torn, cardboard torn, and put on the shelf. So I wasn't able to return them. It would have been better for me just to trash them. I wouldn't be in this mess. But I didn't trash them, and we left them on the shelf. Thank you. I'm admitting to what I did wrong.

Commissioner Yobar.

I just, to follow up on Commissioner Stephens' question, one very particular example that I think is all of California. I have the, I think at the last hearing, Inspector Prince had pointed us to the unflavored tobacco list which covers all of California and lists all items that are legal in California. I'm looking at page three of the attachments. There's a number of products from a manufacturer called Elements. When I searched for those products in the unflavored tobacco list, which, just to confirm, that lists every permitted tobacco product in California, is that correct?

That is correct, within California. The city of Hayward is more restrictive than the state of California, but it is a tool that we can use.

So if something is not found on that database, it is not permitted to be sold as a tobacco product in California?

Correct.

Okay. That is correct. It means that it is likely a flavored product or a product that's not tested by the DOJ at that time.

Okay, and so I guess to ask you specifically, the points you made were about particular types of products that might have fallen afoul of Hayward Rules, not elsewhere. These seem to be products that are clearly illegal to sell in California. If a manufacturer supplier is giving them to you in California, they should know Can you speak to why these are found in your store in 2025?

Which item are you?

Can you speak into the mic Haroon can you speak into the mic because the public can't hear your comments I

So the applicant, just since it wasn't into the microphone, said that rolling papers would not be listed here. Can staff speak to that?

So the UTL list is for all the tobacco products. That doesn't involve anything like a rolling paper or it's only tobacco, the UTL list.

I guess maybe I might have muddled the situation by trying to give a specific example. Just for my benefit, could you point me to a specific type of flavored product that is included in these pictures?

Yes, I believe there is one with a brand name Fiesta, which has a label of sweet across the front of it. Because sweet is a characterizing flavor, we would consider that a flavored product.

Okay, Global Fiesta Sweet Cigarillos, understood.

That should be on the UTL list, but even sweet, that's not a flavored product. The sweet is their regular.

Okay, so in this particular situation, it is a flavored product from the city's perspective, not from California's, okay.

Similar to how Swisher Sweets, right? It's just an original, it's a regular flavor, but that's in the name, sweet. Okay, understood. So Fiesta Sweets is their original, regular. Yep, I see it here, thank you.

Okay, that's it for me, thank you, Chair.

Any other questions? Okay, I'm gonna go ahead and close the evidentiary period record for this item and move to commissioner discussion and deliberation.

Chair, can you pause and do the public hearing first, if there's any public comments on this.

I just jumped ahead of, here we go, thank you. So I'm gonna open public hearing on this item.

We have Sandra Archuleta.

Just for the sake of time, I would reiterate my points from earlier and I would advocate for revoking this license, not suspending it. So yes, that's my comment.

That is all. Thank you. I am going to close the public hearing and move to planning commissioner discussion and deliberation. Commissioner Stephens?

We're now in the sixth one of these. The only distinction I see between this store and the other stores is that, oh, I guess some of the other stores were a little more egregious in that they hid products. But, I mean, I think we have to be consistent. I mean, there's a rule. It's clearly stated right here. I mean, the stores violated it. If I was in the business of operating a smoke and vape shop, I think I would be very careful in how I operated my business because there's definitely consequences if we make mistakes. So that's my sort of feeling on it. But I could be swayed if anybody else had a different opinion.

Commissioner Myers.

Yeah, I'm really torn on this. I'm all for rule of law. I just feel like four years ago, we had some bad judgment calls on the owner's point of view. But since then, it seems like he's been pretty darn close. Again, I'm having a hard time with this one. I'm almost leaning towards a partial suspension. But again, I can be swayed either way, I think. Because it just seems in the past four years or so that he's tried with the mistake, it looks like, of the cigars from three to five and the mushroom. I mean, I'm not saying those are not serious. Those are very serious. I'm just putting it out there that I'm considering that.

Can I make a comment?