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Board of Appeals denies rehearing request in WellCare Acupuncture case after dispute over sworn testimony
Summary
The Board of Appeals on Dec. 10 denied a rehearing request for WellCare Acupuncture at 4726 Gary Blvd., 3–2, after the appellant’s attorney argued the Planning Department presented unsworn testimony and new file entries; Planning staff and the city attorney said no oath was required and the file additions did not prejudice the case.
The Board of Appeals for the City and County of San Francisco on Dec. 10 denied a rehearing request filed by the appellant in an enforcement action at 4726 Gary Boulevard, voting 3–2 to refuse rehearing.
Attorney Paul Horcher argued the Planning Department’s enforcement file had been supplemented after his client reviewed it and that senior planner Tina Tam had not given testimony under oath at the October hearing, which he said prejudiced the appellant and warranted rehearing. Horcher told the board the Sunshine Ordinance Task Force’s complaint‑committee had accepted jurisdiction over related disclosure complaints, and he linked that inquiry to the rehearing request.
Tina Tam, senior planner for the Planning Department, and Deputy City Attorney Catherine Barnes told the board the complaint committee had agreed to take jurisdiction of the Sunshine complaint but that the Task Force matter did not directly affect the Board of Appeals’ enforcement decision. Barnes said the board’s bylaws and applicable case law do not require city officials appearing to give administrative information to be sworn. Tam described the added material as phone‑log entries and enforcement tracking lines that she said were part of the department file and not new substantive evidence that would change the merits of a violation case.
Commissioners debated standards for rehearing, focusing on whether there was new, material information and whether due process was impaired. After public comment and discussion, President Michael Garcia moved to deny the rehearing request. The motion carried on a 3–2 vote; the board directed staff to issue a final notice of decision.
The outcome leaves the October finding upholding the zoning administrator’s notice of violation intact. The board did not order additional remedial action for the business at this hearing; it will issue a formal final notice of decision reflecting tonight’s vote.
