Board of Appeals - Regular Meeting

Good evening and welcome to the July 8th, 2026 meeting of the San Francisco Board of Appeals. President John Trusvino will be the presiding officer tonight and he is joined by Vice President Rebecca Soroyan, Commissioner Jose Lopez and Commissioner Lily Wong. Commissioner Robin Abbott is absent tonight. Also present is Deputy City Attorney Jesse Minority, who will provide the board with any needed legal advice. At the controls is the board's legal assistant, Alec Longway, and I'm Julie Lamar, the board's executive director. We will also be joined by representatives from the city departments that will be presenting before the board this evening. Up front, we have Mark Schaap, deputy city attorney representing the Department of Public Health, and Michelle Vega, principal environmental health inspector also with DPH. We expect Maggie Weiland, the executive director for the San Francisco Entertainment Commission, and Kaitlin Acevedo, deputy director also with the Entertainment Commission. The board meeting guidelines are as follows. The board requests that you turn off or silence all phones and other electronic devices so they will not disturb the proceedings. No eating or drinking in the hearing room. Appellants, permit holders, and department respondents are each given seven minutes to present their case and three minutes for rebuttal. People affiliated with these parties must include their comments within these seven or three minute periods. Members of the public who are not affiliated with the parties have up to three minutes each to address the board and no rebuttal. Mr. Longway, our legal assistant, will give you a verbal warning 30 seconds before your time is up. Four votes are required to grant an appeal or to modify a permit or determination. If you have questions about requesting a rehearing the board rules or hearing schedules, please email board staff at boardofappeals at sfgov.org. Now, public access and participation are of paramount importance to the board. SFGov TV is broadcasting and streaming this hearing live, and we will have the ability to receive public comment for each item on today's agenda. SFGov TV is also providing closed captioning for this meeting. To watch the hearing on TV, go to SFGov TV, cable channel 78. Please note that it will be rebroadcast on Fridays at 4 p.m. on channel 26. A link to the live stream is found on the homepage of our website at sfgov.org forward slash BOA. Now, public comment can be provided in three ways. One, in person, two, via Zoom, or three, by telephone. To attend via Zoom, go to our website, sfgov.org forward slash BOA, and under the calendars portion, click on the blue rectangular box that says Zoom link for hearing. If you want to attend by telephone, call 1-669-900-9128 and enter webinar ID 919-0854-6267. Again, SFGovTV is broadcasting and streaming the phone number and access instructions across the bottom of the screen if you're watching the live stream or broadcast. To block your phone number when calling in, first dial star six seven, then the phone number. Listen for the public comment portion for your item to be called and dial star nine, which is the equivalent of raising your hand so that we know you want to speak. You will be brought into the hearing when it is your turn. You may have to dial star six to unmute yourself. You will have up to three minutes. Our legal assistant will provide you with a verbal warning 30 seconds before your time is up. Please note that there is a delay between the live proceedings and what is broadcast and live streamed on TV and the internet. Therefore, it is very important that people calling in reduce or turn off the volume on their TVs or computers. Otherwise, there is interference at the meeting. If any of the participants or attendees on Zoom need a disability accommodation or technical assistance, you can make a request in the chat function to Alec Longway, the board's legal assistant, or send an email to boardofappeals at sfgov.org. Now, the chat function cannot be used to provide public comment or opinions. Please note that we'll take public comment first from those members of the public who are physically present in the hearing room. Now we will swear in or affirm all those who intend to testify. Please note that any member of the public may speak without taking an oath pursuant to their rights under the Sunshine Ordinance. If you intend to testify at any of tonight's proceedings and wish to have the board give your testimony evidentiary weight, raise your right hand and say, I do, after you've been sworn in or affirmed. Do you swear or affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth? OK, thank you. If you are a participant and you're not speaking, please put your Zoom speaker on mute. Item number one is general public comment. This is an opportunity for anyone who would like to speak on a matter within the board's jurisdiction, but that is not on tonight's calendar. Is there any member of the public who wishes to speak on an item not on tonight's calendar? I don't see anyone. So we will move on to item number two, commissioner comments and questions.

Thank you, Ms. Lamar. Good evening, everyone. I'm John Trusvenia, President of the Board of Appeals. It is relatively rare for us not to have matters dealing with the Planning Department or Department of Building Inspection. Tonight we have two of the other agency decisions from also part of our jurisdiction. So I want to welcome everyone. the agency representatives, the parties, as well as the public. I know that these cases have had some interest from members of the public. I can assure you that we have read the materials that you have presented in writing. We appreciate your presenting that. And we will have your testimony before us. We'll have the opportunity to ask you questions. You'll have the opportunity for rebuttal. And the public will have an opportunity to speak as well. So we look forward to these matters. And we are prepared and look forward to your presentations. Thank you. Colleagues?

OK, thank you. Is there any public comment on this item? I don't see any. So we will move on to item number three, the adoption of the minutes. Commissioners, before you for discussion and possible adoption are the minutes of the June 30, 2026 meeting.

I move to adopt the minutes that have been presented.

Okay. Is there any public comment on that motion? Okay. On that motion, Commissioner Lopez? Aye. Vice President Soroyan? Aye. Commissioner Wong? Aye. That motion carries four to zero. The minutes are adopted. We are now moving on to item number four. This is appeal number 26-028, Smoking Aces versus Department of Public Health, subject property 1108 Polk Street, appealing the issuance on May 14, 2026, to Smoking Aces of an order by the director of the Department of Public Health, a 20-day suspension of Smoking Aces tobacco sales permit for the following violations, which occurred on November 5, 2025. One, sale of e-cigarette without FDA pre-market approved authorization. That's a 10-day suspension pursuant to health code section 19R2. And two, the sales of flavored tobacco products, 10-day suspension, SF health code section 19Q.3. And this is case number 26-3, permit number T61930. And we will hear from the appellants first. Smoking aces, you can come up and address the board. You have seven minutes. If you want to go in the middle. Do you have a presentation on the board? Yeah, so if you want to lift up the microphone so we can hear you. Thank you.

Thank you. Your Honor, thank you so much for allowing speaking today. I respect the law and the board of appealing decision. I understand that I made a mistake and accept the responsibility for the violation.

If you wouldn't mind adjusting the microphone, I'm sorry. I just want to make sure we can hear you. Thank you. Sure.

I accept responsibility for violation. I'm not here for avoiding accountability. I'm appealing because I believe the penalty...

Ma'am, if you could withhold for just a moment, we wanted to request that you state your name for us.

Oh, sorry. Please. I know it's nerve-wracking. But take a moment. Catch your breath.

OK. My name is Ola Alsadi. I'm the owner of Smoking Aces. Thank you. As I said, I'm respecting the law and I'm respecting the decision of the Board of Appealing decision. I'm here to appeal because I believe the penalty is dispossession. In my understanding, businesses that do not hold tobacco licenses but sold vape products have received monetary fines without being prohibited from selling tobacco or related products. As an alliances business, I have been ordered to be fined and also to stop selling tobacco products for 20 days. The 20 days suspension will have a significant financial impact on my business, my company, and my family. I have worked to operate my business legally, and I intend to comply with all applicable law going forward. I respectfully ask you guys to consider whether this additional suspension is fair and consistent with how similar cases have been handled. I'm requesting that the court remove the 20 days suspension while allowing the mandatory fine to stand or provide any other relief the court believes is appropriate. Thank you so much for your time and consideration.

Okay, thank you. We do have a question from President Trezegna for you, so if you could stay. Absolutely. Thank you.

Ms. Alzada, thank you for your testimony. Were you complete? Did anybody else want to speak on your behalf, or was it just you?

You want to say?

My husband. Because you still have five minutes and 23 seconds if you wanted for the presentation.

Thank you again for giving us the opportunity to speak out today. I just wanted to add what my wife said, the suspension We have on our neighborhood five existing illegal businesses surrounding our business. The suspension of that tobacco license that we have is only going to benefit this illegal business that they were not violated or suspended by the DPH. And they're still operating with just a minor fine, not a suspension, because they don't have a license for them to suspend. But they still keep operating. They're the only one going to benefit. out of our suspension. if the license gets suspended for 20 days. These businesses, they not only sell vape, they sell all kind of tobacco product under the table, which is also illegal by the state of California because they sell also cigarettes that does not have a stamp or it's not excise tax paid or all this stuff. So these businesses are the only one going to benefit out of our suspension on that. Plus, we also suffered during that violation in the city when they came into the store. They came in with the joint forces, I include that in my briefing, with the state board, came to the store and they confiscated and seized $25,000 to $35,000 worth of merchandise that were hemp product under, it says, enhanceable product. They were not listed illegal yet. They came illegal in January. They were there in November. And the State Board, on their website right now, they have this product listed as taking effect in January of this year. $25,000 to $35,000, that was a huge financial impact on us, to have another suspension right now with another 20 days, they're also going to basically destroy the business. And I asked the Board of Appeals to look into this before. And we're going to respect the decision of this board and the outcome out of this meeting. Thank you.

OK, thank you. So President Trezevena has a question, then Vice President Soroyan. So if you want to stay up there, please. We have some questions.

I have a question for either one of you. I want to thank you for your presentation. And I have sort of a series of questions. And if you don't know the answer, that's fine. If you do have the answer, that's helpful. So can you remind us when the incident that we're here for, when was that?

It was in November. Was it in November?

They came, I think, in November.

Yeah, they came in November. They sent an undercover.

Great, great. And when were you notified by the city that you had violated the law and were being proposed suspension? When did that occur?

When they came in December, I believe.

December, I believe, yeah.

They came to the store, and they

They came in the joint forces with the state board, yeah, I think in December.

OK. Between the time of the sale and that coming back, or at that time, were you given the opportunity to fix the problem?

Like what kind of opportunity?

Well, I will ask this of the city also. There's a process called abatement, which is another way of saying, before we suspend you, we need to give you an opportunity to fix it. Is that at all familiar to you?

I mean, it did not happen. We only have the raid or, you know, they came in and then the directive hearing and went to the directive hearing. And we thought that the directive hearing was not fair. I mean, the decision was made before we even come in.

Okay. Thank you. You've answered the question. You've given me the information I was seeking. Sure. And Vice President Soroyan has a question for you.

Sure. So how long have you had your business? We've been since 2005 or six, seven? Seven.

So I want to understand a little bit better why you were selling these products that have been illegal in San Francisco for at least five years. And I understand you're saying, OK, yes, we did. But I don't understand why you're selling them in the first place. And I'd like to know if they're still on the shelf now.

They are not on the shelves. They were taken off the shelves, like you said, it's been illegal for five years. The data shows in San Francisco that smoking was reduced by 60%. I believe it's 80% smoking cigarettes was reduced. And that's not because people gave up smoking, because people moved to vaping. Yes. Okay. And now when you... Only people, if I show you footage of customers that come to our retail store every day, we get at least 100 customers come in and say, do you have vape? And we say, no, we don't. We don't sell cigarettes anymore. With the financial liability that we have and the kids and the rent and all that, we and all these illegal businesses around us selling vapes, we couldn't survive. We had no choice but to sell. You know what I mean? The vape. Now, we know it's, I mean, we did violate the law. We're not denying this. But I think here the treatment of illegal business to legal business is not fair. As a matter of fact, what they're basically telling me here, no, you should have had a legal business. Your losses wouldn't be suspended. You know, that's basically the way they put it over there.

Right, if you don't have a license, there's nothing to suspend. Nothing for them to suspend. I see what you're saying.

Yeah, and that's Mark Shab, the city attorney right here, admitted to him that said, oh, we have no license to suspend. That's the whole issue. Yes, they don't have a license, and there's no consequences for them, but there is consequences in a couple that does 14 to 16 hours a day. in a business that have kids to support, rent to pay, mortgage to pay. Yes, there is consequences for these people. I will guarantee you, I have on Polk Street six stores that illegally operated. And selling that type of product every day, even though the city been there, violate them, and nothing happened.

I understand your point, which is I understand the point. I'm not going to make it for you, but I understand the point. So in essence, what you're saying, it was a calculated risk to offer these products in your store. I have to admit it. Yes, it was a calculated risk. Yes. But at this point, are all the products off yourselves? The flavored tobacco and vape products?

Excellent question. When they raided the store,

This is the state raided the store?

No, both of them together. The state only came in at a request of the city. OK. They did not just come in. They have a solid proof that we sold vape with a picture. And a receipt does not say anything on it. But anyway, they came in. And at that point, I felt I'm really a criminal. Why? The way they searched the place, digging into the floor, the showcases, the walls, the bathroom, the storage area. And I told the guy, he said, we want the vape. I told him, can you find any? There's none. We don't keep. There is nothing. There's no vape on the shelves or even in the store. They search it up and down, left and right. When they couldn't find anything vape, before they left, they start taking other product, even the one that says zero nicotine on it. They confiscate it as it's enhanceable. Everything can be enhanceable.

OK, I understand this is emotional. But I'm just trying to understand sort of the factual timeline here. So the investigator inspector came in in November, about November of last year. Then you got a notice in December?

No, I think the notice came in the- When they came in December. They came in December.

Came in December.

They don't give you a notice when they show up. They just show up.

We've seen this play out before in similar situations. Okay, so the notice comes, and then when, without getting into what they took, when was the visit from the combined city and state?

In December.

So you got the notice in the mail. No, no, no.

We don't get notices in the mail.

I thought you said you got a violation notice in the mail from the November when he bought the flavored cigarette.

The investigator, when he came, the undercover, when he came, he came in November. But in December, the city and the state board came.

No, no, I understand that. But the investigator that came in November, how did you know he was an investigator?

We did not know. They received the revelation and sent us a picture and said, this is the undercover from Pink Lady or whatever.

Right. Was that a different occurrence than the state and the city coming in? Yes, that's a different occurrence, yes. Okay, what was the time difference?

I think it's like 30 days or 60 days or something like this.

Once you got the notice in the mail saying that he had bought these illegal products and here's this notice, did you at that point take the products off the shelf that were illegal or did they remain in your store?

The products were never in the shelves to take them out. We did not have any. at that point. She has a couple of waves, three or four here. She sold one of them to that guy, the undercover, and that's it. We don't have no product on the shelf. Anybody can walk in in our store. The DPH came into the store often since 2019, probably once a year or twice a year, maybe, based on the exhibits that Miss Figa. You know, I took the time last week to walk into Fisherman's Wharf and North Beach area, and I found smoke shops and gift shops illegally. And I walked in to talk to business owners, see how often does the city, there is some places when these illegal businesses, city and DPS have not been there for more than five years. I get them once or twice a year in my store.

OK, thank you so much. I don't have any more questions.

Thanks. No further questions. You can be seated. We will now hear from the Department of Public Health. Welcome. You have seven minutes.

Thank you, and good evening. My name is Mark Schaap. I'm a deputy city attorney, and I'm representing the Department of Public Health in this appeal. I don't intend to take any more of your time than I need. I think it's very clear, as was said tonight, that the appellant does not dispute that these violations occurred. THE HEALTH CODE PROVIDES FOR UP TO A 90-DAY SUSPENSION FOR THE FIRST VIOLATION OF EITHER OF THESE PROVISIONS. IN ACCORDANCE WITH PUBLIC HEALTH REGULATIONS, HOWEVER, THAT SUSPENSION WAS REDUCED TO ONLY 10 DAYS FOR EACH OF THESE VIOLATIONS. SO THERE HAS ALREADY BEEN A MEASURE OF LENIENCE THAT HAS BEEN APPLIED HERE, AND THAT IS EVEN IN LIGHT OF PREVIOUS VIOLATIONS WHICH ARE DOCUMENTED IN THE FILE THAT WAS BEFORE THE HEARING OFFICER AND THAT'S BEEN PROVIDED TO THIS BOARD. The comment that other businesses in the area are selling these things unlawfully is frankly irrelevant. It is not pertinent to whether or not this store violated their permit conditions, which they meant they did. And I'm happy to answer any questions you have. I would like to just address a couple of the points that were raised this evening. First of all, the notice of the violation was provided 15 days later. So that's Exhibit H in the materials that are provided here. On the day of this joint inspection between the state and DPH, the DPH inspector provided a notice of violation for the November 5th sale. So that's when that notice was given. At that time, no additional city violations were noted or cited. So that's the way I would best answer the question of what had happened in the interim. But I would point out that the previous violations were for the display of these same restricted tobacco products, whether it's flavored cigarettes or e-cigarettes. And so abatement at this point is not really possible. that ship has sailed. There have been multiple opportunities since 2021, the first violation that's provided here, to abate that particular violation. The violation at issue tonight is not abatable in the sense that it was a single act that violated the code. You cannot abate a single act. It's not a state of violation that they were in at this point. This is not about the storage, the display, or the offer of these restricted products. It's about the actual unlawful sale of them. And with that, I would happily answer any questions or invite my colleague from the Department of Public Health, Ms. Vega, to come if there are factual questions.

You do have four minutes and 16 seconds left. So if you're fine with questions, we can go to that or. Yeah.

No, I understand. Thank you. Yes.

OK. So we have a question from President Schiavone.

Thank you. I have a number of questions. I actually had thought you would have presented more information in your seven minutes. So I'm going to try to walk you through things that I would hope you would have addressed. One is, is this a first violation or is this a subsequent violation?

Well, as the record here shows, this store has been cited for numerous violations in the past. This is, I think, the fourth since 2021.

Is this violation listed as a Subsequent violation or first violation?

It's being cited as a first violation, partly because of the time frame.

So how do you, having established that it's a first violation and the notice is a first violation, how does the city bootstrap in prior history?

The city isn't bootstrapping anything in. The prior history is being presented here in response to the appellant's claim in their brief that their compliance history should be given weight. So we provided that compliance history to show that if it's given any weight, that weight should be to further establish that they need to suffer, they need to experience the actual consequences here. of violating these provisions. But this violation is not being, or the penalty is not being imposed as though it were a second, third, or fourth violation. The severity of the violation is in line with DPH regulations for a first violation.

So then the discussion about it being a subsequent violation, second, third, or fourth, is in response to the appeal. Yes. Not to the underlying action?

It is not a basis for the penalty.

OK. On the issue of abatement, what authority is there for suspension without the opportunity to abate? Can you walk us through that?

So yes, Article 19 of the health code provides for the enforcement and penalties for violations of other provisions in the health code, including 19 and 19 , which were the violations found here. And in 19 , the director is granted the discretion for a first violation to impose fines and suspend a permit for up to 90 days.

But the suspension is on Q&R or is it on H?

H is the enforcement mechanism. 19H states that violations of 19Q and 19R That's the enforcement mechanism. And 19Q and 19R refer to 19H for enforcement. 19Q and 19R declare the acts of either selling a flavored tobacco product or restricted unauthorized e-cigarette to be unlawful. And then 19H provides the enforcement mechanism.

And the suspension provision, is that in Q&R? It's in 19H. Is it in Q&R?

By reference. Q and R incorporate the enforcement mechanism of 19H. 19H is the enforcement mechanism. The violation is of 19Q, 19R.

The violation is of Q and R? Correct. So where does the authority to suspend come from?

From 19Q and R and H.

OK. Is there a section that requires an opportunity to abate prior to the authority to suspend?

I'm not aware of a requirement that the violator be permitted to abate the violation. Can you say that again? I said I'm not aware of a requirement that the violator be permitted to abate the violation in order to avoid a penalty.

Thank you. Commissioner Lopez has questions.

Thank you. I suspect my fellow commissioners are familiar with this logic, but I also know that I believe that it's the appellant's first time here with us, and we received a lot of public comment or a significant amount of public comment on the matter, and I suspect all those folks may benefit from this kind of being detailed a little bit, but you referenced to this violation as a single act. And yet we were ending up with two penalties here, essentially. So can you outline how that single act results in two penalties?

Absolutely, yes. It was a single transaction, the sale of one flavored electronic cigarette product. that sale, that single transaction violated two provisions of the health code. 19Q because it is a flavored tobacco product and 19R because it is an illegal electronic cigarette.

Thank you.

And furthermore, the code provisions in 19H provides, specifies that each violation like that is a separate violation subject to its own consecutive penalty.

Thank you. Good evening. So I actually have some more technical questions about the Article 19. Do you have that you can refer to? Because I wanted to read what the code says and tell me Well, so let me read it. Okay, so under, hold on. I'm at chapter four, flavor or favored. It says, I think there's a spelling error. It says favored, not flavored. But let's go with flavored tobacco products, article 19Q of the San Francisco Health Code, section one definitions. And it says section two, Penalties for violation of Article 19Q, one abatement opportunity at the bottom of what I have is page 10.

I would have to refer to an electronic copy. I did not bring a copy of the code.

Oh, then let's get you a copy. I have a copy here. We could probably put up on the screen.

I'm happy to just grab my phone and pull it up on my phone if that's OK. OK, sure.

So it's chapter 4, section 2. Chapter 4, section 2.

Oh, to be clear, these are the regulations. Correct. OK, sorry. I can give you this back. I thought we were referring to the code sections in the code. These are the regulations promulgated by the department.

Yeah.

If we do have a copy of the document, I think it would be helpful to have it on the screen for others to see it.

Do you want me to email it to you?

So right now, if we're talking about the regulations, that was exhibit five to the declaration that we provided.

So that was my confusion. There were abbreviated regulations. So I actually went to the actual rules and regulations. So that's what I'm looking at right now.

There was like a table, but I had trouble following it. So I just pulled the red.

Yeah. San Francisco Department of Public Health Director's Rules and Regulations for Retail Tobacco Sales, January 29, 2020.

I think it would help, though, if the appellants could read along with you and the city representative, if we have it. Do we have any of these documents to put up on the overhead?

Are they in your brief?

Yeah, they're exhibit five to the declaration of the city's brief.

Alec, can I email these to you?

It's in the materials is it I just they gave me a shorthand table Is it in the city brief Yes, it is exhibit 5 to the the declaration that was filed with the city's brief, okay and

I didn't bookmark them, but I numbered them. They have slipsheets.

Alex, it starts at page 83 of 111. Oh, yeah.

Here it is.

Sorry. Exhibit 5. And I believe we're...

They did beat stamps. Wait.

I would defer to this. Chapter 4. Page 93. I think it's page 93 in the record.

Let's see. Alec, just move up to chapter four. So that's at the bottom. There we go. Yes. Okay.

There you go.

OK, thank you. So we've established this was a first violation?

I would not concede that this was a first violation.

I believe that's what you said to my colleagues. You characterized it as a first violation for purposes of the appeal.

So I just- No. Excuse me. That is not what I said. I want to be very clear. I said that the severity of the penalty was tied to this being a first violation.

OK. I'm not sure, but this says, for a first time violation of Article 19 prohibited the sale of flavored tobacco products, a permittee will be afforded the opportunity to remove tobacco products with a characterizing flavor from their establishment in lieu of a permit suspension or administrative penalty. Failure to remove such products within 72 hours shall result in suspension of the tobacco sales permit for 10 days. was confused because the way I read it, it felt like this was a first time violation for prohibited sale of flavored tobacco products, violation of 19Q. And it didn't appear in the record that there had been an opportunity for abatement consistent with that section.

Please bear with me. I don't think this was the first prohibited sale.

Doesn't the NOV use say that it states a first violation?

The director's order, yes.

The director's order says it's a first violation.

Right. But again, that is because it is a first violation within one year, which is what the code requires in terms of identifying the severity of the penalty. First violation within one year.

Okay, but you can see my concern in that the notice of violation says first violation for 19Q, and then the rules and regulations of the Department of Public Health seems to mandate an abatement opportunity just for that first violation. And that's the way it reads.

But it wasn't a first violation. It was a first violation within one year.

The NOV says first violation.

because of the severity of the penalty. The code which supersedes the regulation, it is the code that is enacted by the Board of Supervisors, says first violation within one year. And that's how you get the penalty amount. And that is 90 days for that first violation within one year.

Then you're saying that the director's NOV is incorrect.

No, I'm saying that first violation is not the same as the first violation within one year. That is, there's a period of time after which, for purposes of assigning the severity of the penalty under the code, a violation is no longer counted towards your compliance history after a year.

But you can understand that it is confusing.

Maybe.

I mean, I can understand that it's confusing, but it- And there was no abatement opportunity provided.

But there was.

There was.

Not on this violation. There were abatement opportunities the three previous times they were violated for displaying these same restricted illegal products. And if you'll bear with me, I'm trying to find, I think there was another example of a sale of tobacco, of a restricted product in the record here.

Actually, I want to look at the middle of page 11 as well.

So it's exhibit C to exhibit 1 in the city's filing. On March 16, 2024, an investigator also purchased a Geek Bar Mexican mango product, which is another flavored, restricted e-cigarette.

And that was explained to the appellant at the hearing. But unfortunately, we don't have a copy of the hearing. That's one thing I was also going to ask about. I don't think included in the record was a copy of the underlying hearing or a transcript.

That's correct, because there was no dispute as to the facts in this case.

From past practice, the board does like to see the transcript or have a link to the underlying hearing of the proceedings below for our informational purposes. And I'm sorry if you weren't made aware of that. But in the past, we have asked for copies of the underlying hearing so we can hear the charges that were brought and how they were explained to the appellants. I don't have, actually I have one more question. Table three at the top of page 11. So again, table three, it says, if you see it, it says tobacco sales permit suspension periods for sales. It's up on the screen. Distribution of tobacco products with a characterizing flavor. See how it says second or subsequent violations?

Yes.

Do you know why it says that? Because I guess your argument is that this is a subsequent violation, but I still think it's a first violation. So how do we even get into Table 3 if it's a second or subsequent violation?

I did not draft this, so I cannot necessarily speak definitively to this. But the way I would interpret this, especially in conjunction with the previous paragraph that you asked about in terms of the opportunity to abate, is that on that first violation, the violator is given, under these regulations, 72 hours to abate. And if they do not, then the first violation would apply on table three.

Thank you. Commissioner Lopez?

I'll yield.

OK. Commissioner Wong?

Thank you. Thank you for your questions. That was part of what I was trying to figure out is, can you walk me through the timeline of what you would then consider the previous violations from this business? Because I'm in the same boat where I'm reading it as a first violation, and it's not matching with all the other things that are presented.

So to be clear, there's no claim that this suspension is authorized under the provisions in the health code that authorize even longer suspensions, longer than 90 days per violation, for a second or third or fourth suspension. This is within that 90 day per violation, first violation. And that is because under the health code, violations from more than a year old don't count towards that compliance history under the code. And so the previous violations, which again, some of which were before the hearing officer Excuse me. And this is part of exhibit one. This is in the DPH, the proposed action summary. Some of those previous violations were provided, all the information, the inspection reports, the investigator reports, et cetera. They go back to 2021. So the first one, and this is laid out. It's on page three of the DPH brief. Brief timeline here is February 3rd of 2021. a DPH inspector observed that smoking aces did not have its license and permits displayed as required, and that flavor tobacco products were displayed for sale. And then in March 16, 2024, that is the event that I was just briefly describing where an investigator actually purchased a flavored e-cigarette from the establishment. And a notice of violation was issued in response to that. Act. And that notice of violation warned that future tobacco product sales will result in suspension of your tobacco sales permit. That was in the inspection report and the notice of violation that was provided in March of 2024. In December of 2024, DPH responded to an anonymous complaint about smoking aces. And that inspection The DPH inspector observed, and this is a quote from the inspection report, a huge volume of flavored tobacco products on display. And then that brings us to the admitted violation that we're here for tonight, which was on November 5th, 2025.

OK. So based on this timeline, it seems like it's within a year of when the December 2024 incident was to when the November incident was. So that's why you're characterizing it as within a year.

No, so I'm sorry if I'm not clear. We are not using that year. The year goes to whether it's a second violation or not for purposes of 19H, which provides for, I believe it's 90 days for a first violation and 100 and, here, I can look real quick and let you know what it says. Well, it's up to six months for within 24 months of the first violation. So yes, we could have sought a six-month suspension per violation. Except that this is not the same, I think, to Vice Chair Saran's point. This is for a different violation. So in March 2024, or sorry, excuse me, in November slash December of 2024, Sorry, let me back up. December of 2024, I want to be very clear because I know I'm not being clear. The December 2024 inspection was for the display of tobacco products. That is a different violation than the sale of tobacco products. And so it's not the same. It's not a second violation of the same code section. in 2025.

So then does that mean that the incident that we're looking at is considered first violation?

It's considered a first violation for purposes of whether the maximum penalty is a 90-day suspension or a six-month suspension. But it's not actually a first violation. It's within a time period. That's what sets the maximum penalty. It doesn't make the other violations disappear from reality. They still exist. They're still in the record. And so that gets us to the regulation, which provides this opportunity to abate. But that's not in the actual code that the Board of Supervisors enacted. Thank you.

Thank you. President Trusvino?

Unfortunately, the more questions and more answers are making it more difficult rather than clearing up some confusion. So as I read the proposed enforcement action, it speaks of first violation date, second violation date, none. And the first violation date is November 5, 2025. You're describing the past history, but I'm trying to get a sense as to, it's in your presentation, but I don't see it here in the record.

What don't you see in the record? Excuse me?

Well, I look at the proposed enforcement action. It describes the first violation date, November 5, 2025, not I don't see here a history of the violations. It's on page 27 out of 111 of the materials that we've been provided.

So I would refer you to Exhibit 1, which is the DPH proposed enforcement action summary. And that document At the bottom, there's a big page 8 on the bottom of it, the director's hearing case chronology, which lays out the chronology of these prior violations. Not all of them. The December 24 violation is not included in this case chronology.

I am looking at that exhibit and that's where I read first violation November 2025. So my point is that this is getting more confusing rather than less. My other question I have is about your statement that the authority of the commission is based upon the code and yet the rules and regulations have shrunken that authority to 10 days. So my question is, what's the purpose of having rules and regulations if the city is going to just follow the code and not the rules and regulations?

I don't think that's what's happening. The city is following these regulations. I think that there is a... there's been a question about what the opportunity to abate looks like or how it applies in this situation. And I believe I've laid out why the opportunity to abate is not, that provision in the regulation has not been violated here. And it's because the severity, the term first violation is not defined here as a first violation So in the regulation, there is not this same limitation on first violation being within 24 months. And I apologize for misspeaking earlier when I said one year.

I'm actually speaking of a different part of the rules and regs, and that is... It seems to be the city is saying, under the code, we could suspend for 90 days. And here we've only suspended for 10. And the authority for the 90 is the code, whereas the authority for the rules and regulations, the limit is 10 in the rules and regulations. And my question is, hasn't the department forsworn the extra days if they have rules and regulations that say 10?

Perhaps the director, in their discretion, has done that. But that discretion is in the code. The code provides that the director may suspend for up to 90 days. And so 10 days is within the range of under 90 days or up to 90 days. So the regulation is an exercise of the director's discretion that is authorized by the code. It does not go outside what the authority that's been granted by the Board of Supervisors.

DAVID SANGER- Correct. It doesn't go beyond it. It shrinks it. And it seems to me the city wants to be able to say, oh, we're only doing 10 days when we could do 90. And what I want to know is what's the purpose of rules and regulations? other than to require the city to abide by its own rules and regulations that it itself promulgated.

No, I don't dispute that. If the brief and the arguments gave the impression that the argument here was that this was a special dispensation to smoking aces, that was not the intention at all. This is what the suspension should be for this violation, 10 days for each of the code violations served consecutively.

So just to carry, it is the maximum For this violation?

It is the maximum that the department has authorized itself to impose in this situation. I agree with that, yes.

OK, thank you. And Commissioner Lopez has a question. Thanks.

So from my perspective, a lot of this turns on this distinction or confusion surrounding first violation versus first violation within a year, within the last year. Just so we can understand the position of the city, from the city's perspective, one was the actual first violation.

of these provisions. Based on the record we have here, it looks like it was March 16, 2024.

And so the March 16, 2024 results in an NOV that covers a sale, correct?

The sale, yes, exactly.

And you have a hearing officer determination that future sales will result in a suspension. I'm looking at page three of your brief. Fast forward to December 25, they receive a new NOV, but that NOV says first violation or first violation within the last 12 months?

The NOV, I don't believe, indicates one way or the other whether it's a first violation. I would have to look. I don't think it says that on the NOV.

I guess, when's the next time that the appellants would have received an indication from the city as to which number violation they're on?

I mean, I don't quite understand the question. Presumably, they know how many times they've been cited for these code violations.

Well, there's a number of code sections that could be violated. And so I guess my question is, what type of communication did the appellants receive from the city laying out, this is your x number violation that will subject you to y penalty?

The first violation in March 2024 said that subsequent violations of these code sections will result in suspension of your tobacco sales permit. That was that communication. And the hearing directors affirmed that statement on that violation.

And my question is, after the March 24 NOV and subsequent hearing, for the matters that we're discussing or the alleged violation that we're discussing this evening, When did they receive or what did they receive related to this is X violation resulting in Y?

I'm looking to see if it's in the notice of hearing. I don't know that they would have received A SPECIFIC STATEMENT OF WHAT PENALTY THEY WERE FACING AHEAD OF THE HEARING EXCEPT, AND WHAT I DO NOT KNOW OFF THE TOP OF MY HEAD IS WHETHER THEY RECEIVED A COPY OF THE ENFORCEMENT ACTION SUMMARY. They would have known at the time that they were notified that that was the penalty that was being sought. But they knew it was their second violation because they knew about the first violation. They had a hearing on that one.

Thank you.

Okay, thank you. No further questions. We are now going to move on. You can be seated. We're going to now move on to public comment. Is there anyone in the room who wants to provide public comment for this matter? Thank you. You have three minutes.

I guess what I'm going to say, my name is Nicholas Francis. And really what I'm going to say is I've lived in the building that their smoke shop is in for 40 years. And I've known them since the beginning. I mean, their son was a baby, and their daughter was a baby. They're really decent people. And it's a very welcoming store. I've seen them card people ask for identification. I go down there quite a bit to hang out and just shoot the breeze with them. They're a decent family. They're a really, really decent family. And I guess people make mistakes, but they have owned up to that. And I think that's about it.

OK, thank you. Please come up. Sure. Welcome, you have three minutes.

Thank you. Good evening, members of the board. If you could put the microphone down, please. Sorry, I'm short. My name is Rita Abraham. I'm here today to speak in support of my friend Ola and her family. I've been friends with her for about four years. I'm not a customer, but I'm a good friend of hers. I've known her through the smoke shop. I walk past with my dog all the time, and she always gives him treats. He loves her. I'm not here to speak on tobacco regulations because that's not my area of expertise, but I'm here as a member of the community who has gotten to know her as a person over the years. I've seen her consistently treat people with kindness, respect, genuine care. She's built strong relationships with the people around her. Many people in the neighbourhood know her, appreciate her and see her as someone who contributes positively to the community, not just her, her whole family. Very lovely people. What stands out to me is the way she treats people. She takes the time to talk to customers. She remembers people. She makes them feel welcome. She's created a place where people feel personal connection, not just a place of business. As this gentleman said here, I've watched her countless times, card people, even people that look... you know, in their 50s sometimes. She's carted them and she makes sure she's, you know, selling to someone that's over the age of 21, of course. I understand that business must follow rules and regulations and I respect the responsibility of the city to enforce those rules. At the same time, I want to respectfully ask that the board reconsider the person behind this business and the impact that a suspension could have on her livelihood. She's worked hard. They've worked hard to build their business and their reputation. They care about doing the right thing and I hope the board will consider allowing a solution that encourages compliance while also recognising the hardship a lengthy suspension could create. Thank you for the time to listen and for considering the perspective of someone who knows her as a friend and a community member. Thank you.

Ma'am? Ma'am?

Can you fill out a card?

Can you fill out your name on the card, please, just so we get it correct for the minutes? Thank you. Is there any other public comment in the room? Anybody on Zoom who wants to provide public comment, you need to raise your hand. Press star six if you called in, or raise your hand on Zoom. OK, I don't see any further public comment. So we're going to move on to rebuttal. So Ms. Elsade, you have three minutes to address the board.

OK. Confusion. It's what's been going on all the five years of tobacco ban on San Francisco. The material they distribute between what's flavored, what's not flavored, the consequences of these, it's confusing since day one. Companies also, they're making these products, make things more confusing. When they put a product, instead of flavored by colors, blue, black, silver, gold. Are they flavored or not? We as a merchant, we don't know if they are or not. So we pick them up, we sell them, then the city comes and says, no, that's a flavor. You violated the rules of San Francisco. What happened on that March 25th, I believe, for the switcher sweet. Switcher sweet is the company. It says switcher sweet classic, switcher sweet silver. And that's what was that violation for, I believe, if I remember correctly. And so the city, they don't have a clear thing of what's legal and what's illegal on the flavor ban. I also wanted to say that The brochure, the city that give us to the merchants, sometimes does not reach us. We don't see it. We see it when they come. If they send a certified mail, yes, we get it. If they don't, we... It says, go look at the website. The last statement from the city and the DPH that I received, I believe, it says it's the merchant liability to Google the names of this product to see if they are flavor or not. They put the burden on us to find out if they are flavor or not on this product. So it is confusing from day one, and it's going to stay confusing unless this is cleared and this and this. Was no violation the outcome of all these violations they mentioned on those exhibits you have? Forgot to ask him, what's the outcome out of these violations? Nothing. Because I did not violate anything. At the beginning, when it was confusing, yeah, we have the thing on the ship. He said, no, you cannot have the ship. Take it out. We took it out. Next day. Also, the other violation for not having my tobacco license posted. We were doing a cleaning. I showed her. The frame of the business license was in the floor. That's why we took it down. And they gave me a violation for it. So this is the type of violation that previously they're talking about. But the outcome of this violation, nothing, with the all fixed the next day by other inspectors who came in within not 72 hours, within 20 or 48 hours. Thank you.

OK, thank you. We will now hear from the Department of Public Health.

Thank you. Appellants started their presentation by saying that they accepted responsibility for what they did. What we've just heard now is a refusal to accept responsibility. It is the city's fault because the flavor tobacco rules are confusing. That is not accepting responsibility. Asking to be relieved of the suspension that is authorized is not accepting responsibility. It is trying to avoid responsibility. That is what I would say about that. There is also the fact that whether or not flavored, there was confusion at some point about flavored tobacco products. That certainly cannot credibly apply to something called blue RAS ice, or in the previous violation, mango. Those are flavored tobacco products. There is no question and no claim of confusion that the electronic cigarettes, these vapes, are not allowed to be sold. So this is just an attempt to avoid the responsibility that they claim to accept. This is the fourth violation of various tobacco-related regulations. This is a 20-day suspension only of the tobacco sales permit. This is not closing the store. And it is what is authorized by law and by regulation. There's no dispute as to the facts. And so we respectfully ask that this board affirm the director's hearings, the director's order. Thank you.

OK. Thank you. We do have a question from President Cesvenia, Mr. Schaap.

Thank you for your presentation. On the last point that you brought up, that it is barring tobacco sales but not closing the store, are you aware or is the city aware of how much of the store's total revenue relates to tobacco as compared to other non-tobacco products?

No.

Earlier you told me that this was the maximum penalty that the city provided the 10 days Does the city take into account the community support of A store owner when assessing where in their Discretion they set a penalty

I don't believe so. I believe that the regulations are the exercise of discretion down from 90 days down to 10 days.

Is there anything that prohibits taking into account a good member of the business community, at least as demonstrated by public support, versus what we've heard, at least, of other businesses that are not following the law?

Well, I would submit that if the regulations are to be binding in their application, and that is the source of the 10-day maximum, it is not up to 10 days in the regulations. It is 10 days in the regulations. So there is not further discretion to reduce it under these regulations.

Thank you.

Thank you. Commissioner Lopez. Thanks. Further to the topic of discretion, I see we have two violations resulting in monetary fines and then a combined 20 days of suspension. Is there discretion with respect to choosing suspension vis-a-vis fines or combining the two?

So the health code does allow for one, the other, or both type of penalty to be imposed. But the regulation says 10-day suspension.

And can you speak to anything with respect to the facts of this case that made it appropriate in the eyes of the department to move forward with both suspensions and fines?

As opposed to only suspension?

Or as opposed to only fines?

Well, as I said, the regulation says that the violation will result in a suspension. So that's the decision that has been made, and it's in the regulation. I'm not aware of a fine only regulation.

And can you give any color on the facts of this case that gave rise to the decision to give both the suspension and the fine?

I'm not aware of any except for the fact that that's what is provided for in the code to impose both. If it's in, yeah.

I'm looking at 19H13, subsection A. If the director decides that the permittee or the permittee's agent or employee has engaged in any conduct that violates local, state, or federal law applicable to tobacco products or tobacco sales, continuing, the director may suspend a tobacco sales permit as set forth in 19H.19 comma, impose administrative penalties as set forth in section 19H.20, comma, or both suspend the permit and impose administrative penalties. So my reading of that code section suggests that it could be either or or both.

Under the code, that's correct. But the discussion previously was about how the regulations that the director has adopted bind the agency to act according to its own regulations. Those regulations provide for a 10-day suspension for each violation.

So could you point me to the reg that says that the... the allowance of up to 90 days has been restricted to 10 days for a first violation, but that the allowance to only provide monetary fines vis-a-vis a suspension or both a suspension and permit has not been, or yeah, right, that it hasn't been similarly narrowed.

I don't believe it has been similarly narrowed. The regulations do not address the administrative penalties.

OK. So we're essentially saying the regs say 10 days. The regs don't. Are you saying the regs don't state that you can give monetary fines as well?

The regulations do not address the monetary penalty.

And so we are, for the purposes of assessing both suspension and fines in this case, we're relying on 19 and on the regs.

Well, fundamentally, we always have to rely on 19 . The director does not have authority to impose a suspension or fines unless the Board of Supervisors grants that authority. And so here, the Board of Supervisors did grant both authorities to the director, further granted discretion to impose fines up to a certain amount or suspensions up to a certain number of days. The director has exercised that discretion with respect to the suspensions to limit the department to 10 days for a first violation for each code section.

Thank you.

Okay, thank you. No further questions. You can be seated. So, commissioners, this matter is submitted.

Again, thank you to the city and to the appellants for their presentations, their written materials, as well as doing your best to answer all of our questions. And I appreciate my colleagues asking the questions that we have. As I look at this case tonight, I am uncomfortable with it. I think it's clear that there was a violation of the law. It's clear that the city has repeatedly said for years we are not a tobacco city. We've prohibited, we've limited, we've kept tobacco shops away from schools, away from certain neighborhoods. We've said there's going to be a limit in each supervisorial district on tobacco shops. We are not a tobacco city, and it has saved lives, and I appreciate the work of the city and the elected officials who have made that happen. Second, at the federal level and at the state level, this type of product that was sold was clearly unlawful. What it was doing on the premises, and Commissioner Soroyan asked the proprietors of their realities and necessities, I hear that. I don't want to be totally unsympathetic to the difficulties of a small business, but clearly there was a violation here. I would not support rejecting the penalty in its entirety. I do believe a fine is appropriate and warranted. Where I'm concerned is on the other side of the city's presentation and the description of the various legal considerations. I think after this hearing it is even more confusing than before. The issue of whether this was the first violation or not when it clearly is stated the first violation date in the proposed enforcement action. The issues of the abatement requirement. As well as other issues. I hear from the city attorney that the authority of the department comes from the code. And that gives them the authority to have an expansive set of penalties. But then I hear him in response to Commissioner Lopez say, oh, but the director has the rules and regulations. They must follow the rules and regulations. I'm concerned that we have different answers depending upon the circumstance. So tonight I would uphold the fine. I'm not prepared to uphold the suspension. I really want to turn to my colleagues now. Perhaps we need further factual or legal investigation as to this case to give us a better understanding of the various legal questions that remain. But as for now, pending my colleagues' analysis and discussion, I would support the fine. I do not support the suspension. Vice President Soroyan.

Again, thank you, everyone, for your time tonight. We've been here for a while, so this has been, I think, a well-informed and well-vetted discussion in regards to your appeal. Without repeating President Trezegna, I'm inclined to support the financial penalty, but I am not comfortable at this point with the 20-day suspension. The words first violation are mentioned twice in the director's brief and once in the city attorney's brief. So there is confusion about what those penalties are and doesn't seem that we have a clear answer. So I'd be more inclined to, in our de novo review, settle on assessing the fine but dropping the 20-day suspension. But I am more than happy to hear from my fellow colleagues to see what their thoughts are.

Thank you.

Commissioner Wong.

I'm inclined to agree with you guys all. I'm not an attorney by training. And all of this was extremely confusing to me, trying to figure out if it was a first violation or not. I can only imagine that's the same issue that the small business owners came to, to try to figure out whether or not they were fined appropriately. So I think it's... What was submitted to us was too confusing for me to understand, let alone them. So they understand that they did something wrong. I think the monetary fine makes sense. This 20-day weird math that got us to 20 days, I still don't understand. So I don't feel comfortable implementing that.

Commissioner Lopez.

Thank you. Yeah, I'm in line with what I think is being proposed. I just want to take a moment to express my gratitude to both the city and to the appellants for everything that you presented. I would say with respect to the city, There is, as others have pointed out, this significant confusion with respect to the term first violation that's in the director's hearing order from this past April. And I feel like my questions about what the appellant received points to my view that I think if we're going to rely on you know, pass violations as grounds for certain penalties, you know, in line with Table 3 or otherwise, I think that the alleged violators of the code need to be on notice about what violation they're on, what opportunity for abatement may exist under the code and the regulations. And I don't think that that happened here. And so if that's a point to take back to how these materials are drafted or presented, I think that's probably advisable. And then I think to the appellants, we've pointed out to this confusion. But at this point, there shouldn't be confusion. And going forward, I know that you expressed the difficulties of operating your business. It's a highly regulated business, and it has confusing provisions that roll out pretty regularly. I think if I were to make a prediction, I would say that the products that you can sell would only get more restricted as you continue to operate, not less restricted. And so I think at this point, you should know, and it sounds like you've taken that calculated risk before, but I suspect if you're ever before DPH or this body, again, for similar violations, you may not have the same outcome as it looks like you may get this evening. So with that, I would move to, can you help me out, Julie? How do I make the motion that I want to make?

I'm so sorry. I was conferring with the city attorney. Can you just give a brief summary?

We're trying to move to I guess Grant a grant the appeal and an issue You want the fine of Terry fines, but no no suspension of the purchase for discussion I mean, I believe the code mandates suspension if you find that there's a violation so are you did you find that there's a violation and What I thought the code section that I just read earlier actually said that you can have a permit suspension or a fine or both, either or both. I think she's referring to the regulations. I see.

And then there's also a provision about first violation for abatement. And abatement wasn't provided.

So if you want to just impose the fines, we could grant the appeal, issue the order on the condition it be revised to require that the 20 day suspension is removed. And what would the basis be for your motion?

On the basis that the...

There was no abatement opportunity?

On the basis that there was no abatement opportunity and that there was a lack of clarity in terms of what was furnished to the appellants with respect to the number of violations that they have.

OK, on that motion, President Trasvina? Aye. Commissioner Soroyan? Aye. Commissioner Wong?

Aye.

OK, so that motion carries 4 to 0. So the order upholds the fines, but the suspension is removed. So that concludes that item. Thank you. We are now moving on to item number five. This is appeal number 26-031, Robert Saya versus the Entertainment Commission, subject property 1875 Union Street, appealing the issuance on June 3, 2026 to Sacred Taco of a limited live performance permit. Indoor entertainment allowed Friday through Monday, 11 a.m. through 11 p.m. with other mandatory conditions. This is permit number EC1932. And we will hear from the appellants. Appellant, welcome.

Ms. Lamar, we've had a request for a recess of 10 minutes. Okay. We'll be in recess for 10 minutes.

Sorry, we're going to have a 10-minute break. But if you want to stand up and get situated or whatever you want to do.

Alec, right? Yeah, I do have a presentation. Thank you.

Okay.

Thank you.

OK, WELCOME BACK TO THE MEETING OF THE SAN FRANCISCO BOARD OF APPEALS. TODAY IS JULY 8, 2026. WE ARE NOW ON ITEM NUMBER 5. THIS IS APPEAL NUMBER 26-031, ROBERT SAYA VERSUS THE ENTERTAINMENT COMMISSION, SUBJECT PROPERTY, 1875 UNION STREET, APPEALING THE ISSUANCE ON JUNE 3, 2026. to Sacred Taco of a limited live performance permit. Indoor entertainment allowed Friday through Monday, 11 AM through 11 PM, with other mandatory conditions. This is permit number EC1932. And welcome to the appellant. You have seven minutes. Thank you. Thank you.

Thank you for all your help, by the way, with everything, Julie. ROBERT ZAYA, Good evening, President Trezvinia and commissioners. For the record, my name is Robert Zaya. I live on the 2800 block of Laguna Street. And I'm here on behalf of the five households who jointly petitioned against this permit. I am not a lawyer. I'm a dad, a neighbor on a block full of wonderful families, and a genuine fan of this city's small business and restaurant culture. Honestly, this is the last place I want to be tonight. But my neighbors and I don't believe our concerns were ever actually assessed when this permit was granted. And I'll show you the code required that they be. In March, in Fineside v. Entertainment Commission Appeal 26-006, this board stated the question it answers in these appeals. Was the permit properly issued? A question this board reviews de novo. Permit EC-1932 was not properly issued for two independent reasons, both verifiable from city documents in the record. Police code section 1060.5.1 makes fire and safety compliance the first ground requiring denial. And section 1060.3.1 require this applicant to certify the occupancy load, quote, for the space. The rear patio's own place of assembly permit, number 108258, caps that space at 49 persons and classifies it as a dining area. Before the hearing, the operator's own pure space listing marketed that same patio for 80 guest DJ events, 63% over the cap. Nobody made that finding. The commissioner's answer, occupancy falls under SFFD's window. Purview, doesn't work. The statute makes fire compliance the commission's own first ground. An agency cannot satisfy a mandatory precondition by declining to look at it. The permit holder's own response brief confirms it three ways. It states the building occupant load is 110. The fire permit says 105. His own sworn application says 105. It says that for larger groups, quote, yes, naturally flow between the patio and the main restaurant. That is future operating intent. The 49-person cap treated as inoperative. The brief never denies exceeding the patio's limit, only the building total. And it says fire compliance is, quote, fundamentally a fire department matter. The statute says it is ground one. The second defect, how the sound conditions were built. The commission's own methodology stated in its brief in Fineside calibrates interior limits so entertainment cannot raise exterior ambient sound more than eight decibels, quote, with doors and windows closed. This building's envelope includes glass skylights over the rear patio, feet from our bedroom windows. This permit limits are measured at two indoor points, the bottom of a ramp and the top of a staircase. But Article 29 applies the limit at the property plane, the vertical boundary, including the air above the roof. No reading was ever taken at the skylights or the roofline. And the record shows those skylights open at 10.30 p.m., 12.01, 1.26 in the morning during amplified music. This is not fine side. The operator had run a live sound test and passed it. Here, there has been no test at all, and the record already answers the question. The presiding commissioner told the hearing that when he owned the very building, these same skylights, in his words, leaked sound so severely he considered laying blankets over them. Yet, the permit contains no structural condition and no test, and the defect predates this operator. The glass roof is right there in the 2022 leasing materials before Sacred Taco ever signed. Then, June 23rd, 12 days into this board's suspension, neighbors reported loud amplified sound and microphone use in real time to 311 and to SFPD Northern Station at 1025 p.m. I'm not asking the board to decide what happened that night. Look at how the system responded. An inspector, quote, responded retroactively days later and closed the cases as, quote, compliant with permit conditions of a permit by that its own admission was not valid and had no operative conditions. Enforcement that arrives after the music stops cannot protect anyone. The fix has to be structural. OUR REQUESTS, OVERTURN PERMIT EC1932, THE MANDATORY FINDINGS UNDER SECTION 1060.5.1F WERE NOT MADE AND THE ARTICLE 29 CONDITIONS WERE NEVER VALUABLY SET. IF THE BOARD PREFERS CONDITIONS, WE ASK FOR THE THREE. No entertainment in the rear event space until the skylights are sealed and acoustically treated or replaced with solid roofing, verified by third party testing at the property plane, including above the roof line, at performance volume. Second, monitored compliance with the 49 person limit and the correct place of assembly classification. Third, limits on the event frequency and duration. I want to be clear. We are not against a restaurant. We are asking that a permit rests on findings that were actually made and conditions that can actually work. Thank you, and I'm happy to answer any questions.

OK. Thank you. I don't see any questions at this point, so you can be seated. Oh, I'm sorry. We do have a question from Vice President Soroyan.

For someone who doesn't profess to be a lawyer, your argument was very well composed. Thank you for the slide deck. And I followed it. So what I have a little trouble finding out, perspective-wise. So isn't the building, the commercial establishment, isn't it in the middle of the block? I saw your side view, but I would love to see an overview.

Yeah, I think I can see in my appendix.

Do you have anything like that?

So this area, actually, so The building is on Union Street. Right. Correct. Our row of houses is along Laguna Street. Their event space that they are saying for the rear patio space that has the skylights goes back into let's say, back from Union Street into where our backyards are. So bus stops on the corner. That's the other side of the street. That's the other side. I wish I had it in my other presentation. But if this is 1875, and there's Starbucks, and then there's Laguna Street. Yes. Their patio goes this way, and our houses go this way and back. So they're sitting right on our property line.

So that's the row of like Victorians without some garages. And what you're saying is that from the middle of the block to your property. So let's say there's, so from Laguna to Octavia, your houses go like halfway back or something? It goes right back up until Sacred Taco. Yeah.

Okay. So your property abuts. Yeah. Our gates are, are shared. Okay.

And, but it's been there for a while. So the skylights have been there for a while, but this is the first time that there's been evening entertainment or this is not the, um, this is the application for, uh, um,

Live entertainment. And they have, if you look in some of the information I had sent previously as well, they were fined previously for operating live events without a permit. And we have filed many 301 complaints, and as well as tried to call the restaurant to ask them to turn it down. And at that time, there was an AI answering machine. I don't know how that's changed now, but their reasoning for getting this permit, from what I understand, is because they were fined a few times, and this permit will make them compliant with having this type of entertainment. That being said, there has been lots of DJ and lots of things. There's lights being projected through the skylights. And as a person who has a very young family, I understand being somewhat more aware. But it's hard for us when our properties are adjacent to each other. And the skylights themselves are not conducive to holding in sound. They actually, from what I've researched, since everything else is a wall, it actually forces it out of sound. So that's kind of where we think there's kind of a... misunderstanding between our complaints on this is that we are hearing something that they might not even be aware of because it's going up. And that's very hard to explain to- Quantify.

Yeah.

Yeah.

Okay. Thank you so much.

Yeah, of course. Okay. Thank you. Okay.

Thanks. You can be seated.

Okay. Great. Thank you.

We will now hear from the permit holder. Welcome. You have seven minutes.

Hello, everyone. Can you hear me? There we go.

Yes, we can.

Good evening, everyone. Good evening, Board of Appeals. My name is Christian Costantino, for the record. I am owner-operator of 1875 Union Street. I made some notes. Not really used to this, but I'll do my best to go through some stuff. But I kind of want to go off the notes for a second. And I'm not going to take too long. I know I have seven minutes. I had five restaurants during COVID. I lost every single one of them. And I need to explain kind of how this all came to be. I had one opportunity to get this particular building, and I thought Union Street was the right move. Because obviously, the traffic that goes through there, it's just a lot easier to succeed in a place like that, especially coming out of COVID. That was the idea. My interpretation erroneously, and I'd only had one entertainment license before this, was in my second place I opened on Sutter and Polk. And that was a new build, so I had to start brand new and fresh. When I walked into this, I was under the interpretation because the prior tenants did have an entertainment license, that I had an entertainment license. That's truly where it came. I know that sounds like an excuse, but that's where this starts. And so for four years, I operated without very many problems. But then towards the end, as I started getting busier in that back room, it started becoming an issue. And when I realized what happened, I paid the fines. I had actually three fines, and I paid them immediately. And the next day after I paid those fines, I started the process of getting an entertainment permit. And the reason I got an entertainment permit is not to increase more entertainment. The reason I got an entertainment permit was because then I could value and create a value of the rules that we have to play by. What are the decibels? Exactly what are our capabilities? 11 o'clock would be the deadline if we did this. These things made sense to me. That was the whole idea behind it. To me, it still makes sense to me. I'm going to go to my notes, but I just kind of want to start with that because that's really where it all started. We've had local use of our private room for this entire time. I don't charge for it. I don't charge any fees for AV. They're right. I had an ad for a DJ that I hired a guy in the very beginning to do events for me. And this is verifiable. And they clearly did a Peerspace ad that said a DJ thing. I wasn't even aware. I had never even seen that ad until I saw the file. And I've only had two Peerspace events anyway. Neither of them had DJs. I've had 136 events there. And I'd say less than six DJ events in overall. That said, as soon as I got this all going, I tried to solve this issue the way that I know how to solve it. Most of our events are weddings, birthdays, graduations, baby showers, book clubs, those type of things, stuff that you would expect from our neighborhood. That's the way I walked into this. And that's exactly the only way I'm going to succeed in this business. So the back room was obviously a clear event space. It's got its own bar. It's got its own entrance. It's got its own exit. It literally is perfect for that. So that's why we did it. I'm not trying to make something out of it that it isn't. I'm certainly not trying to run a club or anything, or anything like that. And if I was, I wouldn't be saying, please, I'm down with 11 o'clock. I'm good with 11 o'clock. And I only got 56% of a license. I didn't get a seven day a week, let's go crazy license. I got limited just on the weekend and on Monday, just in case I have some football event or something like that. But that was the whole purpose of this whole thing. I didn't mean to break any rules. And as soon as I did, I tried to fix it the best way I could. That's a fact. I have two. The whole talk about let's rebuild the roof is all solved much easier than that. And I'm completely willing to take a decibel reading of any direction and anywhere in that building that we need to. To me, that makes sense. If the offense is around an open window, by the way, part of the restrictions is that those windows stay closed during any amplified event. So even on top of that, let's go take a decibel reading. I've already taken multiple decibel readings throughout the building, spent hours upon hours taking decibel readings. I have two decibel meters in my office right now for that exact purpose under the idea that I don't want to be too loud for anything. Crazy as it sounds, some 25 to 30-year-olds in that area that just get married sometimes want a little marriage music, and that's what's happening. And there's been a couple of occasions, literally a couple of occasions, where it went, off the rails and I didn't expect it to a lot louder than I should have than I admitted and I paid the fine that's it that's my perspective on it I'm fully committed to fixing this noise issue I want to solve this issue and I'm willing to do what I can but as of this point I I don't know how much more I can do. I don't have a big trough of money. This is literally the last thing I've got and the last way of moving forward. I haven't made any money in four years. So I don't know what else to do. I'm not trying to wrench your hearts or anything like that. But I am trying to get to a point where this can be resolved so I can move forward with the business and get as much restrictions and all the details out in the open to make it work. Thank you for your time. I appreciate it.

Thank you. We have a question from President Trasvinia.

Sure. Thank you for your presentation. I also want to thank the representative of the neighbors for his presentation. And on this matter, each of your presentations To me, it opens up different issues than what I read in the papers. So you strike me as a businessman, want to make it, have past concerns. How long has this, how long has Sacred Taco been operating?

Four years and three months.

And when did you hear about the concerns of your neighbors?

This is, I'm terrible with email, I have to admit. I'm really good with text. So I got a concern when AZA, one of the entertainment commission, said, hey, you got a fine. You got to pay it. That was it. And then I was like, OK, oh, I didn't know. And then I checked, and I was like, oh, my god. So I paid it. And then I immediately started this process.

But the concerns of your neighbors, when did you hear about them? There was one instance.

I got one call probably six months in that there was a problem, and I shut it down. That was it.

Six months in from?

From the opening date. I don't remember. I don't even know if it was them, to be honest. I have no idea who it was. But I did get a call in the middle of the night and immediately shut it down.

Okay.

It wasn't a DJed event or anything like that.

Okay. But even on this matter, do you know the neighbors? No. No. So there haven't been any discussions among you?

I would have loved to. I would have loved to have discussions. There's got to be a solution here that we can do this another way, but whatever.

Well, you said earlier you've already done a lot of things. It sounded to me like you were saying, correct me if I'm wrong, it sounded like you were saying you've already made a number of changes to address either the neighbor's concerns or the city's concerns or the code. Is that, did I understand that correctly?

That's absolutely right. I can get into detail if you'd like.

If you could describe what you've done differently to accommodate the concerns you've heard.

Of course. Since this whole process has started, I haven't booked anything with a DJ at all. In fact, I've lost already a number of opportunities because of it. I want to get this behind us before we do this or anything like this. That's number one. Number two, I had the Entertainment Commission come out and do decimal readings from all angles that we thought were possible variations that could be a concern, like outside the back door or on the roof, all those things. We didn't. I agree. We didn't do next to a window, but we probably should have. And I'd be totally down and perfect with doing that. I have no problem with that. However the sound escapes that place, I'm down with putting a decibel meter anywhere we need to do it. And I think it totally makes sense. In fact, I don't know why I didn't think about doing that. But that would be getting on the roof or whatever. I thought the open door was the most loud variation. We haven't been opening the window. The pictures are really strange to me, a couple of them. If you guys look at the pictures that were sent over. One's from 2019. That's the obvious open window. The other two? That was a birthday party. I have evidence of this. I have a birthday party. There was no DJ. There was no amplified music. I'm not trying to be smart here, but this isn't about lights. They brought little funny lights. That doesn't imply loud noise, and that's not what happened. The window, to my knowledge, can be opened if it's hot. That was the whole idea. And when it needs to be closed is during amplified music. And unless I'm mistaken, that's what we did.

So one last question before Vice President Saroyan has a question for you And I know I'm not asking you for any kind of commitment right now, but you've heard the concerns of the neighbors I've read their materials Do you think if we? Sent you both away to talk you could come up with things are so is there anything in in in in the presentation that uh from neighbors that sounds like that's absolutely that if i did that i'd be sure i i would not have a successful venue is there anything like that or do you think you might be able to work out i would love to work out we've never had a sit down i've never been able to sit down i mean i have

I have decibel meters on purpose because I want to be able to show, look, because there's been times, and I don't know who calls me. All I know is Entertainment Commission comes and says, there's a noise problem. You guys are fine. They walk out. These days, that's happened like five times now. It's not always me. I mean, everyone knows what Union Street is, and it's not always me. I know where it's coming from, but I'm not really the kind of guy that goes, well, look at them, or whatever. That wasn't my point. If you guys want to come to a solution, I'm down. I'm completely OK with it. Let's sit down. I'll agree. Whatever you guys need, I'll agree.

It was even hard for me to come here today. You've answered my question very, very fully. And Vice President Soroyan has a question, or maybe two. OK.

I just had a quick question. I think I'm encouraged by, we'll have to ask the appellant if he'd be interested in a sit down, maybe. Sometimes what we'll do is we'll, we have to hear from the department. That's absolute. We have to hear from the entertainment commission. But I think that our approach to resolving matters is it's much better if the solution comes from the parties themselves, each obviously making some compromises, but that makes us happy, because we don't stand in your shoes. You stand in the shoes of your neighbors. And so if that is a possibility, I think we'd certainly consider it. I did have one question. I took a quick look at your LLP permit. And you said that it was a condition of the permit to close the windows. But is that somewhere else, or did I miss it in the permit? I'm just looking. I think, from what I heard, that's part of the problem. So maybe I'll have the entertainment committee address that.

Yeah, I mean, what I know, I'll be quick with what I know. During the hearing, that was what they said. have the windows closed. If there's any elevated music whatsoever, have the windows closed. That was all I knew. I didn't look at the, I just stuck the thing on the floor.

So your understanding is if you have a DJ or live entertainment, those windows are closed?

The two things are, it have to be absolutely no elevated music after 11. The windows and the doors have to be closed no matter what. That was my position on it.

OK, well, and they can tell us, because I don't see that in the,

OK. And regarding the 56%, that was the concession. Half the week, we can't do anything. So that was the idea. OK.

Thank you so much. Thank you. No further questions. You can be seated. We'll now hear from the Entertainment Commission.

Hi. Good evening. May I answer the question before my time starts? Is that OK? Okay, great. So, hi, President Trasvini and honorable members of the board. I do want to call your attention to Exhibit E, which is our good neighbor policy. It's included in our initial filing. Every permit holder must adhere to the good neighbor policy, and condition number seven indicates that all doors and windows must be closed during entertainment.

Can I just make a recommendation? In a situation like this, I would put it in the permit because this is just a policy. So in a special circumstance where you've got the back of the unit, which is completely unusual to have. I mean, I've been there. I would just suggest maybe you can amend the permit to actually put that in the permit because that's what's going to be on display, not the good neighbor policy.

Understood. The good neighbor policy is also referenced in the permit itself. Right.

Right. But I think special circumstances would be my recommendation. Okay. Thank you. Thank you.

All right. I will begin. Good evening again. My name is Caitlin Azevedo, and I'm the Deputy Director of the Entertainment Commission. I'm joined tonight by our Director, Maggie Weiland. We're here respectfully to request that the Board deny the appeal number 26031, and uphold the commission's decision to grant a limited live performance permit, or LLP, to Sacred Taco, located at 1875 Union Street. The appeal was filed by a neighbor who argues that the permit should have been denied or further restricted based on concerns regarding the size of the performance area, occupancy of the rear patio, prior ownership of the space by the commission president, use of speakers, and the business's event advertising. As outlined in our appeal response, none of these claims establish legal grounds to deny an LLP permit under Police Code Article 15.1. The Commission carefully reviewed Sacred Taco's application, considered neighborhood concerns, significantly narrowed the scope of the permit, and imposed multiple conditions to ensure ongoing compliance. For these reasons, we respectfully request that the Board deny the appeal and uphold the Commission's decision. The EC was established in 2002, and we are responsible for regulating entertainment venues and events, issuing permits, and enforcing compliance through education and our enforcement escalation protocol. We have five full-time staff members and two part-time field inspectors, and we oversee 830 active entertainment permits, including approximately 260 limited live performance permits. The central issue before the board tonight is the legal standard governing LLP permits. Under Police Code Article 15.1, Section 1060.5.1 , the Commission shall grant or conditionally grant an LLP permit unless one of three specific statutory grounds for denial exists. Those grounds are limited to whether the premises complies with applicable health, zoning, and fire safety laws, the business qualifies as a limited live performance locale, or the proposed entertainment would create substantial impacts relating to congestion, safety, security, excessive noise, or public welfare. Because live entertainment is protected expressive activity under the First Amendment, the Commission may not deny permits based on generalized neighborhood opposition or speculation about what might occur in the future. After reviewing Sacred Taco's full application, the commission determined that none of the statutory grounds for denial were met. Sacred Taco's LLP permit application underwent the commission's full public hearing process. They applied for the permit in March 2026, seeking indoor entertainment in the restaurant and rear event space until 11 p.m. daily. After the applicant conducted the required neighborhood notification, the Commission received one packet of opposition submitted by the appellant and four other neighbors. Commission staff corresponded with the appellant, explained our permitting process, Article 29 sound regulations and enforcement authority, and even offered to connect the appellant directly with the applicant in hopes of resolving concerns outside of the hearing process. Commission staff did not receive a response. However, the Commission substantially narrowed the permit by only allowing entertainment Friday through Monday, 11 a.m. to 11 p.m. The Entertainment Commission did not allow them to have entertainment Tuesday through Thursday. This represents a significant reduction from the applicant's original request, demonstrating that the Commission took the concerns seriously. Several of the appellant's arguments involve issues that simply are not grounds for denying an LLP permit. First, regarding the size of the performance area, the police code limits the space occupied by the performers, not the audience, to 200 square feet. Sacred Taco's submitted site plan identifies a performance area measuring approximately 112.5 square feet, which is significantly below the statutory maximum. Second, regarding the occupancy, the rear event space has an approved occupancy of 49 people under an active place of assembly permit from the fire department. This is enforced by the fire department and not the entertainment commission. Third, regarding the commission's president's previous ownership of the space, he publicly disclosed that he previously owned a business at this location. He has no current ownership or financial interests and therefore he had no legal basis to recuse himself. Fourth, regarding speakers and amplification, we regulate the sound produced by entertainment, not the equipment used to produce it. Under Article 29, commercial entertainment noise may not exceed eight decibels above the ambient sound level outside at the property plane. Commission staff established interior sound limits designed to ensure exterior sound remains compliant with police code. These limits are measured using both DBA, which captures high frequency sounds such as voices and treble, and DBC, which captures low frequency sounds such as bass. Whether entertainment is produced through one speaker or multiple speakers is not relevant in this issue. It's whether the business complies with its approved sound limits. If we receive a sound complaint, we respond in real time whenever possible. If we determine that sound limits are exceeded, it constitutes a permit violation and is subject to progressive enforcement actions. Finally, event advertisements during the appeal period does not establish a permit violation. The business may continue hosting events so long as entertainment requiring an LLP permit is not provided while the permit remains stayed. Issuing an LLP permit does not end the commission's oversight. The commission imposed six permit conditions, including compliance with police code articles 15, 15.1, and 29, adherence to the commission's good neighbor policy, monthly event calendaring reporting, limited entertainment days and hours, and venue-specific sound limits. If violations occur, the Commission retains enforcement authority. Available enforcement tools include notices of violation, administrative penalties, possible reconditioning by the Commission, and in severe cases, suspension or revocation where appropriate. In closing, the commission carefully reviewed the complete record and found that the business satisfied the legal definition of a limited live performance locale and none of the statutory grounds for denial were present. The commission significantly narrowed the permit in response to neighborhood concerns and imposed multiple operational conditions to protect the nearby residents. Most importantly, police code required the commission to grant or conditionally grant this permit because the legal standards for denial were not met. For these reasons, the commission respectfully requests that the board deny the appeal and uphold the commission's grant of Sacred Tacos LLP permit. Thank you, and we're happy to answer any questions.

Thank you. President Trusvenio?

Thank you very much for your presentation and the materials you provided. I just have one question that's regarding the grounds by which the Entertainment Commission could deny the application. At the end of the third one, it talks about excessive noise. Can you just state for the record what the Commission has found in terms of whether there is excessive noise or whether there is not and what it did find on the issue of noise?

Entertainment Commission staff inspectors use professional grade sound meters, and they've gone out and done sound testing to verify what the ambient volume is at the property plane, as well as utilizing ambient sound measurement between the front restaurant and the rear event space, meaning that they actually verified what the ambient measurement was between the spaces, which is closest to the sensitive receptor. So I'm telling you this information because they took into account the neighbors' concerns that complaints were being lodged about the sound, and they set an internal sound limit in accordance with Municipal Police Code Article 29 that does comply with the city's sound ordinance. So they found that they were complying with the approved sound limit, or excuse me, with the sound, with Article 29 when they are following their approved sound limit. Does that make sense?

It does. And just to follow up very quickly, when there's a complaint about not following the limit, that's when the enforcement process kicks in and your team is available during the hours of business of this establishment, correct?

We have not verified or observed the business operating in excess of their approved sound limit since the sound limit was set. And our team, we do have two part-time sound inspectors who work primarily on weekends, nights and weekends, because that's generally when the most complaints are generated citywide. But if there are issues on other nights of the week that are consistent, we can schedule an inspector to come out and visit.

Thank you. Commissioner Lopez.

Thank you. Thank you for your presentation. Just to be clear, did the testing that the commission undertook, did that involve testing on the roof or on the other side of the skylights?

No. We did not get on the roof. That's generally not a practice that we do for setting sound limits, especially for We have under certain circumstances when it's a high rise building, but this is a second floor patio, so we did not get on the roof.

Is there a reason for that?

If there's... That's not a standard practice for us to get up on top of roofs to check. We take sound measurements at the property plane, which is what's directed of us under Article 29.

Okay. So it's essentially, it's set by statute.

That's correct.

And then with respect to the alleged potential conflict involving the commissioner, did the commissioner or the commissioner's group sell to the permit holder? No.

No. There was a business, at least two businesses, between Sacred Taco and the previous business. So he did own a business there, but I believe it was three businesses ago.

Thank you.

Thank you. Commissioner, I'm sorry, Vice President Stroyan?

Yes. Do you know how many 311 calls were logged to Sacred Taco? Did anybody check 311 records?

I do, and I could get that for you. I have it on my computer if you want to give me a moment.

Do you want to give me a date range? Well, I mean, let's say at least the last year and then cumulatively, but in particular the last year. Is this mine or yours? Is this mine or yours? This is yours. Thanks. That's what I was asking. Because I'm imagining a neighbor would call 311 and they would reach out to Entertainment Commission.

Is that how it works? That's right.

OK. Correct.

I have 20.

I can pull up 2026.

We just got bumped off of the internet. No, no, it's fine.

OK. I'm going to do this minus 1.

So 10 complaints for 2026. And then? The first complaint I did just looked during the applicant's presentation. Our first complaint was received in 2023.

OK, and then between 2023 and now, how many total calls?

OK, we have 10 for? 2026. 10, 8, 5, and 2. In 2026, we've had 10. In 2025, there were eight. In 2024, there were five. And in 2023, there were two.

So they've gone up even though it's only a half a year.

Sorry, say that again?

So the number of complaints to 311 have increased even though we're looking at only a half of a year. We're only halfway into 2026. So I guess what I understand, I heard what you said about the sound engineers, but the code says in response to neighbors' concerns. And it sounds to me like you've followed your procedure, but I'm not really sure if that responded or took into consideration what the neighbors' complaints were.

I think it's important to note that the majority of those 10 from 2026 happened recently.

That's actually even more important, right?

That happened during the stay of this permit.

Happened during the stay.

since June 11th when the appeal was filed.

OK. Does it go into the nature of the complaints so we can understand a little bit? Because I heard the permit holder say that he hasn't had any events in that space, or sorry, noise events. So I'm curious as to what the complaints were about.

Yes.

Give us just a moment.

Of course, please. Thank you so much.

We saw about five complaints come in on a Tuesday night. This is what I believe the appellant was referring to when the complaints were responded to retroactively, which is true because we generally don't have an inspector in the field on a Tuesday evening. They claim that there was a private event in the back patio with a DJ and that people were using a microphone. That was the That was what the multiple complaints stated here. And so when we responded the following weekend during a regular scheduled shift, staff informed our inspector that there was not an event with a DJ, nor were folks doing karaoke, that they did have a private event, but there was no entertainment furnished.

OK. That was five calls. And then the other assorted calls? Loud music. OK, so definitely related to noise. Yes. OK. And I think this is an unusual building because there is a open glass roof with retracting. Have either of you had a chance to go and look at it?

I have not been there in person, but I do speak with our inspection team very closely about their visits, and I've seen pictures, videos, and, of course, looked on the maps. Those skylights, if that's what we want to call them, windows or skylights, we've not observed them open. Okay. Okay.

Thank you.

They definitely exist, but we have not seen them be open.

Okay. I will turn it over to my colleague, Commissioner Wong.

Is this the first entertainment permit for this location or has there been approved permits in the past?

This is the first permit that's been issued. There was a previous business under a different DBA unaffiliated that applied but withdrew their application. And I actually don't know why. I just looked in the system. So yes, first permit to be issued. So this is the first one. OK. Thank you.

I believe the zoning did change pretty recently. And that was because Bus Stop was the one to make that happen. So I believe Hollow Cow was the one that withdrew. And it might have been because of zoning.

Sorry, can you say more about what?

So the zoning had opened up in this particular area, and bus stop was the first permit to ever be issued for an LLP within the zoning district. And this is within the last five years.

So previously, they weren't allowed to have entertainment permits?

In that zoning district, it was pretty limited, yeah. But that changed.

OK. Yeah.

The limited live performance permit is allowed in 95% of the city now. Zoning has really opened up for it because it is accessory use. You have to end at 11 PM. So our other permit that's like the big entertainment use goes until 2 AM. And the zoning for that is quite limited in the city in comparison.

And then the 311 calls, do you have approximately what time they all came in?

The ones specifically from the 23rd, is that what you're asking about?

Yeah, like the five that came in on the same day.

Looks like they predominantly came in in the 945 to 1006 time frame.

Okay, so theoretically. They were like back to back to back. Okay, but theoretically, if they had a permit, this would have been allowed under that.

ALLOWED SO LONG AS THEY'RE COMPLYING WITH PERMIT CONDITIONS. OKAY. THANK YOU.

NO FURTHER QUESTIONS. YOU CAN BE SEATED. IS THERE ANY PUBLIC COMMENT ON ZOOM? I DON'T SEE ANY HANDS. SO WE'RE GOING TO MOVE ON TO REBUTTAL. OR DO WE DO? DID SOMEONE RAISE THEIR HAND? OKAY. MIKE, PLEASE GO AHEAD.

Hi, this is Suzanne. I'm actually Mike's partner and we've lived on Laguna Street. We've owned a home on Laguna Street for about 20 years. And I do want to say that when it was the business before the current business, Hollow Cow, we had countless meetings with the owners to discuss the noise issues that we were experiencing that were serious quality of life issues for us. We were working people, and we would be wakened late at night from loud noise. The skylights were repeatedly left open. They would tell us they would shut them. They didn't. And one night, music played all night long. Sometimes it sounded like there was a bar in our backyard. And I do want to say that we recognize that our home is right off of Union Street. We love supporting the businesses, the restaurants, the bars, the nightlife. We love all of that. But it was a serious quality of life issue with hollow cow. The skylights, they tell them they'd close them. The staff would leave them open. We had so many meetings with the owners because we wanted to do this on a one-on-one basis and kind of have a friendly relationship. And it was a really terrible situation when you would be woken late at night trying to go to work the next day because there was a loud, loud music, sometimes till 2 o'clock in the morning. So I do want to say that there were problems. We did try to address it with the previous owner, and it's too bad that the current owner didn't get that information from the previous owner. And the skylights, they should have, and we talked to HoloCow about it when it was a previous owner. You should have the decimal readings. outside it doesn't matter what's going on in the bar in that back room it's what happens in our backyards and our bedroom looks at those skylights so we literally could see them open and the noise was a serious problem thank you okay thank you is there any further public comment i don't see any so we're going to move on to rebuttal mr saya you have three minutes

I just want to answer some of the points that were brought up. We have tried, as Suzanne brought up, we have tried to work through these issues. I called several times. I have gone there. June 23rd, I had to go to see what was going on. And if you look beyond the scope of the 311 calls, people didn't know where it was coming from, and they blanked Every sort of, there's a new bar, El Dorado, right next door. They were blaming them. I was there. I walked in. And there's maybe one or two people working that night, one at the bar, one waitress. And there was no one controlling or saying anything about amplified music to a permit that was suspended and should not be having an event. I would also say the 56% license, that event was on a Tuesday, which they should have been adhering to anyway with their current application. And then, I mean, I have so many that I wrote down. Sorry. But I would say there's not a building like this that has shown issues in the past. And the skylights being above on the roof and all our bedrooms and second floors looking down at this, it's a sound thing that no one could have predicted happening. Because I don't think there is another building that is looking for this kind of permit. And I love... We love small businesses. We live right across the street from the bus stop as well, and we've never had an issue with them. They do jazz on Thursdays and Sundays. It's great, and we want to support that. And I would love nothing more than to be a neighbor that can support that. This is not that type of issue. This is very much a structural issue. And I would also point out that the fire code issue was still not really addressed. Most of those events are happening in the patio and advertised for the patio. Also, he mentioned he hired someone. They have been promoting this on Instagram as well. I put that in my last application to you guys. I do not want to be doing this this way. This is not my style. I really would have preferred to work one-on-one. But even your own email chain says they tried contacting Christian twice, and they couldn't get in touch with him. I do not want to leave here with that being the option, because it's not reliable. And I think in the past, it has burnt us and our neighbors. And now we're here again, and I really I want to emphasize that these are great people on this block, and we want nothing more than to take part in what's happening in our neighborhood. So that's all I have.

OK. Thank you. I don't see any questions. So we will now hear from the permit holder. You have three minutes.

I'll be quick. Not being patronizing, but I'm just The permit that I'm seeking is for live entertainment, not for having an event. I can still have a birthday party in the back room with lights and whatever balloons, whatever people want to do for an event. That doesn't mean I'm breaking a permit. The whole thing is keep the volume at a reasonable level, don't have any DJs or any live music. That's it. That's what I did. I didn't turn up the music to an incredible level or anything. That's why that Tuesday. There was an event. I can even tell you. It's a birthday party for 44 people. I can tell you exactly what was happening that day. We paid a lot of attention to that. It's not the same thing to me. And if I'm wrong, please tell me. Also, there's a big difference between an old ad I put. It had to be three or four years ago. I didn't do it, but somebody did it. I don't book the parties. The ad may have said that, and I'll take it down. I don't want to promote that. But I don't book any parties that have happened. There hasn't been a party with a DJ since all this has happened, since I paid that fine. That's just the truth. Now, it's a matter of believe who or whatever. The intention is the same, I think, with all of us. Also, I've never met you. I'd love to talk to you. I'd love to solve this issue. Come over. I'll buy you a taco, whatever. I mean, let's talk about it. I think we can find someplace where we're reasonably going to agree. Anyway, that's all I have. So thanks, guys.

Thank you. We have a question from Commissioner Wong.

Yeah, previously you had mentioned that you're not great on emails. What is normally your preferred communication? Text me.

Just text? Absolutely. I'll always answer my phone. It's instant. And you're welcome to have my phone number if you want. I have no problem with that. Okay.

Okay. OK, no further questions. You can be seated. We'll now hear from the Entertainment Commission.

OK. Thanks. So number one, to address the rebuttals here, we do not regulate occupancy loan. The business has an active place of assembly permit, which satisfies our requirements under 1060.5.1. And if there are concerns about occupancy, the neighbors should contact SFFD. I'll also mention that if we are ever investigating a sound complaint and we witness what seems to be overcrowding, we will also escalate that to the fire department. I'll mention that we have not seen overcrowding thus far. number two i want to mention that the commission has already limited the permit by imposing conditions on the llp permit so as we know they were only approved to have entertainment friday through monday 11 a.m to 11 p.m and then regarding the back uh room so again the skylights have been sealed they are required to be sealed anytime entertainment is furnished in the back The sound testing was conducted at the front property plane and outside the rear vent space. And though it's not our general practice, we could do testing on the roof so long as it's deemed safe. We want to make sure, first and foremost, that that is safe to do. As mentioned, we did test from outside of the rear vent space, and we set an internal sound limit for both the restaurant and an internal limit, a separate one, for the rear vent space. So there are two limits they have to adhere to. And finally, the grant of a permit does not end the Commission's oversight. It begins it. Once a permit is issued, the business becomes subject to ongoing monitoring by Commission staff, responsive complaint investigations, objective sound enforcement under Article 29, and the Commission's full range of enforcement tools. If compliance issues arrive, the Commission has the authority to investigate, require corrective action, and ensure compliance. So for these reasons, we respectfully request that you deny the appeal and uphold the grant of the permit.

Okay, thank you. I don't see any questions, so you can be seated. Commissioners, this matter is submitted.

Thank you all for your presentations as well as the caller in public comment online. This was instructive and I believe we've made some progress here. I'm inclined to uphold the permit and to deny the appeal. I see in front of us some I think the neighbors can feel successful, and they certainly have the attention of the permit holder. You certainly have the attention of the enforcers at the Entertainment Commission. You've got the top people here. And they've heard the assurances from the permit holder about wanting to work with neighbors, wanting to hear about legitimate concerns. And I do believe the enforcement effort, the enforcement process is the appropriate way to handle this matter rather than to deny or to change the permit. Yes, it does require the neighbors to work with the city and the permit holder. And it is particularly in an area such as where this establishment is situated. There are going to be clashes of different city needs and community needs and neighborhood needs, and it's dependent upon people to work them out. So I don't find a defect in the permit or in the process. I would uphold the permit and deny it. the appeal. Vice President Soroyan.

Thank you, President Trusvinia. So the one area that I heard and I appreciate in the rebuttal, the entertainment commission's what I would say, I don't know if it's an admission or consideration of potentially testing the sound on the roof. I'm almost inclined to have maybe a continuance or to propose a continuance to my colleagues so we can take that extra step Or you can do it administratively on your own, however it might play out. Because I hear the neighbor, and I think those concerns are important. And to have, you'll do it. You'll do it.

I guess I just, the permit's suspended so they can't perform, so they can't test.

But it would be an additional condition I would like that to happen before we make a decision. That would be my.

I just have to say our next hearing is in one week. And after that, there's a month break. And right now, his permit is suspended until there's a decision. So this is really prolonging the process unless we can come back here next week.

So. maybe the Entertainment Commission could inform us as to what's the best case scenario for the timetable or the worst case scenario for the timetable, if that were to happen.

We are not going to be able to test prior to Wednesday of next week. So just noting that. So our senior inspector who sets sound limits is currently on vacation.

OK. Yeah. So what would your, how would it play out then?

So immediately when he comes back, I will prioritize him going and testing on the roof, which he would do on a weekday during business hours. And as long as it's safe and accessible. If there isn't a way for him to get up there, then... we would have to revisit that. But I have no issue with doing that. We've gotten creative in the past in terms of where we can test so that it accounts for the sensitive receptors, which is what we thought we were doing when we tested at the rear property plane closest to them. So it wasn't under the impression that we could even access the roof.

Okay. And then one other question. So let's say we were to deny the appeal tonight. How would that testing then potentially impact the LLP permit if there were additional concerns about noise?

Explain that a little bit more.

So if the inspector is able to access the roof and there's additional conditions for tanning down the sound.

Yeah, it's scientific, right? So he would be testing it so that it does not exceed eight decibels at those skylights.

Right. So my point is, is how would that impact the permit? Would you potentially make an adjustment to the permit?

We are always able to administratively adjust sound limits. And this is because people's sound systems often change. We don't bring them back to a commission every time someone has a different speaker configuration. Right. So as long as you're compliant with Article 29 and you're not exceeding over eight above, we can administratively change that.

And that's OK. And then just one more question. So what does the sound person do? Do they just play loud music or bring in a DJ? How do they?

They don't need to bring in a DJ. So as long as the speaker configuration is going to be the same for a DJ versus prerecorded sound, all he needs to do is play off of an iPod or a phone. and just make sure that he brings up the volume to where he would like it to be, it might not be able to hit the same level that it's at right now, given that if these skylights really cannot hold sound, the internal limit would then have to be dialed down to comply with Article 29. So then we would set that internal limit based on that. And it's very clear so that he'll know the owner, Christian, when he is playing music, he cannot exceed a certain decibel limit at a certain location inside of the business. So it's not like he's going up on the roof every time he plays music to make sure he's compliant.

Okay.

Ms. Weiland, thank you so much.

Yep.

Yeah. Sorry, one more quick question for you guys. When you do the sound testing, what time of day is it usually?

So our inspector goes out during the day. And this is because we want to make sure that any other businesses that have entertainment permits in the area are at issue silent. And so he's actually, which is a part of code, you have to do it that way. So he is a 9 to 5 employee Monday to Friday. He's our senior sound inspector. He sets the limits. Our part-time sound inspectors are the ones that go and check on the compliance of said limits Friday, Saturday, Sundays, and then on weeknights as needed. So if, for instance, the neighbors are hearing issues on Tuesdays consistently, we won't give Christian a heads up. We'll just schedule an inspector to go out on a Tuesday and check on compliance.

Thanks, I was also wondering because in the evening sound carries differently in the city so it it may when you're testing not hit their homes in the same way as Tuesday night at 9 o'clock

Sure, so we can go out later in the day if that makes sense. But typically in the afternoon around 1, 2 p.m., it's going to be quite quiet in comparison to that 5 p.m. rush hour. Going in the evenings can be even louder than 5 p.m. And then I'd say going at 10 p.m. might reflect what you're talking about. So, you know, that's... up for interpretation. But typically, we're not seeing a decibel difference more than a couple decibels when we're going out and doing testing at different times of day for ambient. We might see a big difference, though, in ambient between the skylight and the rear patio. We'll have to see that, though, when we're up there in terms of what it can hold.

Awesome. Thank you. I think with my fellow commissioners, one of the things that I'm not hearing is like, next steps for the parties to actually have a conversation with each other. It sounds like they've either done it in the past with previous owners or are open to having the conversation. But clearly, the small business owner is not an emails kind of human. So I don't know if there's an ability for us to encourage or support them into having these conversations and building a relationship with each other. they maybe have had with previous businesses at this location. I do also want to note what I've also heard is that because of the zoning changes, what the neighbors have experienced in the past is going to be different moving forward because sound is then allowed in the space in a different way than in the past. So that's just kind of one of the natures of the beast of living in a city. But at the same time, as good neighbors, as people who are just well-intentioned, you guys can have actually the conversation to figure out what works for your neighborhood. And I don't think that that's something that we should arbitrate.

Before I comment further, I want to invite Commissioner Lopez if there's anything you'd like to say. Thank you.

No, nothing significant on the merits. I would just say to the permit holder, my family's run restaurants for 45 plus years and highly encourage you, based on that experience, to make yourself available to the appellant, to other neighbors. It's just good business and I think potentially also revisit the settings on the AI phone tree to make sure that other folks can get in touch with you along those same lines.

Having heard the various statements on both sides of the dais since my earlier comments, I do believe that The neighbors have the attention of the entertainment commission. They have the attention of the permit holder. And the commission leaders have heard, or the department leaders have heard, the permit holder make assertions and assurances that he will be more available to the neighbors and their concerns. And that what he has heard is the neighbors' concerns are things that he will take seriously. I would be, I think a greater fear, if that's the right word, or a greater sanction is not that the permanent holder doesn't listen to our encouragement, but that he has his enforcers to answer to, and the neighbors to answer to, vis-a-vis the commission. So I will entertain a motion, but I believe that this permit should be upheld. And with regard to Vice President Soroyan's request for the additional testing, it sounds like the commission has committed to doing it at the soonest possible time. Commissioner Lopez.

Yes, I will move to deny the appeal on the basis that the permit was properly issued.

Thank you. And then did you want to add the further recommendation that the Entertainment Commission do additional sound testing on the roof in the rear patio by the skylight? Is that the right location?

Yeah, let's do that.

Yes, let's add that condition and with the guidance that the permit be revised administratively if the further testing makes that appropriate.

Okay, and then did you want to add Commissioner Wong's recommendation that the permit holder work with the neighbors, make himself available to the neighbors to address their concerns?

Sure.

Provide cell phone number, best number. Okay. Okay. I'm not going to repeat that. On that motion, President Chesvena? Aye. Vice President Soroyan? Aye. Commissioner Wong? Aye. So that motion carries and the appeal is denied. Thank you.

There being no further business before us, we are adjourned at 7.47 PM. Thank you.