civus

ZBA Hearing - September 15, 2021

Hearing video from Philadelphia Zoning Board of Adjustment (ZBA), Sep 15, 2021, 4h 44m

This is on RSA 5 zoning district. So there are no single family houses on this side of Frankfurt

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Avenue. And there's a reason for that. It's really just not suitable for them. This is looking down

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richmond street which is the corner property this is looking from behind the property this is the

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elwood site there's two single family homes on sarah street which is the little street behind

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as you can see i-95 is there see the billboards there as well

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there's the auto body place behind us again looking uh richmond street behind us out front

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the building you can see i-95 again right across the street you see the open air parking lot and

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you see the fillmore a little bit over to the side there as well again a better shot of the

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fillmore so this is the the context that we're dealing with why the variance was granted to

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allow the restaurant use in the first place from the single family use that's legal here

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as was shown at the original zba hearing the property has this unique location

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and the board recognized it and granted the variance for the restaurant.

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Due to concerns from one neighbor, the zoning board added a condition that there would be no outdoor seating.

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That's why we don't have outdoor seating, and that's why we came back.

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Since the opening, they've received incredible reviews.

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The problem of the lack of outdoor seating has just gotten worse and worse since it opened.

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There was a Wall Street Journal article on September 12th noting how numerous restaurants are closing dining rooms due to the pandemic, and it highlights the need as to why they really can't exist without this outdoor dining.

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The pandemic did cause them to close for a while.

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They didn't have outdoor seating, so they couldn't open up that quickly.

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And in addition to the unnecessary hardship that we do believe exists, there are also changed conditions that support the grant of the variance.

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The change in circumstances include the two newest nearby restaurants, Vince's Pizza and Fabrica.

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Both have outdoor seating. There's Fabrica, as you can see, it has outdoor seating.

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And there's Vince's Pizza, which also has outdoor seating. It's got a wider sidewalk.

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excuse me so everybody else around them has outdoor seating they do not have outdoor seating

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they have the ability to have it they have a yard that works well

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um the outdoor seating area let me show you what that will look like

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this is the the entire building and and lot this is the outdoor seating area

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and this is again the the entire restaurant area with the outdoor seating and here's the

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out there seating up close. The rear yard itself is about 38 feet deep, but they have a trash area

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back here. They have stairs. They have a required walkway. They have the doors that open.

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So you only have a small area that would have seating in it. It would be about 24 feet long

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and about 10 feet wide. It would have 18 seats. It would have pavers, indirect lighting and trellis

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on top plannings in addition to the 18 seats um again this is the only way to survive given what's

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happened with the pandemic and everything else the neighboring property 1005 is a legal non-conforming

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multi-family structure in this rsa 5 district it does have a couple of windows that are up in this

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area. Now, the windows are also, they block by a fence, first of all, and second of all,

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they, okay, and this is the neighboring property. There's the windows, the one upper window has a

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window unit in it. The lower window, which has a fence, also has an air conditioner condenser

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next to it so there's already um considerable noise uh being generated uh next to the windows

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so any window any noise that you might get from the um um restaurant would be would be nominal

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restaurant would be would be nominal and this is looking back this is the area

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And this is, looking back, this is the area far

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farthest from the outdoor seating area so i have some additional photos just

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whoops going on right sorry mr madione that property you just referenced is that an apartment

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building or is that a condo yeah i i don't know it's well yeah it's an apartment building i don't

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know how many units are in it okay three or four this is this is a single family home on sarah

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street to the other side but this is showing the area that we're talking about where that building

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is. I think it's three or four units. It's got a window here, window here, but this is

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where the outdoor restaurant area would be. So it's at least 10 to 12 feet from where

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those windows are. And as you can see, Mr. Chairman, there's a fence there as well. So

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when you're standing in the backyard, all you really hear is I-95. It's right there.

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So again, we believe that we meet the standard for variance because, excuse me, everything

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that's around it and everything that's near it especially and you know the other way to meet it

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is to show a change in conditions and we believe we've had that in the last three years as well

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so this is the minimum variance necessary to succeed the grant will increase greater the

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variance is in harmony with the spirit of the zoning code i mean the restaurant uses

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is now permitted for three years the restaurant won't injure neighboring properties if anything

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they'll benefit by having more eyes and ears back here they'll benefit by having a great amenity

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in the community, allow it to expand and survive and thrive.

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It won't cause any environmental damage.

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There's no new construction proposed in the minor groundwork, landscaping work.

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In addition to the change in circumstances, the two new restaurants for the outdoor seating

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and the continuing challenges posed by the pandemic.

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And we believe that this all rises to either the level of a variance being met

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or a change in conditions that justify the grant.

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I do have three witnesses, Mr. Chairman, I'd like to call because I don't know if somebody will try and take an appeal again this time.

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So I'd like to first move on to Jonathan Torrey.

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Mr. Torrey, please identify yourself with the record, spell your full name, and I'll swear you'll win.

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My name is Jonathan Torrey, last name T-O-R-I.

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I am with Addison Real Estate, located at 266 South 23rd Street.

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You swear to affirm to tell the truth, the whole truth, nothing but the truth?

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I do. Thank you, Mr. Mariani. Thank you, Mr. Chairman. And John, are you a real estate broker,

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investor, developer, manager of properties, and also a builder? Yes, all of the above. I've been

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doing that for close to 30 years. And have you visited Elwood Restaurant? I have on several

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occasions. And is this area zone of RSA 5 where it is? Yes, it is. It is an RSA 5 neighborhood.

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and you've seen the area is this area appropriate for an rsa5 zoning for a single family house

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i would say it's not conducive to single family residential use at all um for several reasons

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there are billboards uh joining the ellwood restaurant there's also an open air parking

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lot across the street the noise and the traffic from frankfort avenue is very dense um in addition

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to that, there is also I-95, which is a constant noise 24-7, not to mention the auto body use

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around the corner. You could actually probably even hear some residual use from the Fillmore

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when they have events in the area. And are there any single-family homes on the 1,000 block of

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Frankfort Avenue? No, there's not. There's only multifamily, which is an unconforming use.

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And as a real estate professional, what use do you believe is appropriate for the Elwood space?

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I believe that this restaurant is a perfect use for this block and also any particular type of retail of this nature.

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And as a real estate professional, is the outdoor space proposed necessary for Elwood to succeed as a restaurant?

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Absolutely, especially in this day and age of the COVID crisis that we're having with restaurants dropping left and right.

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I believe it's vital that they obtain this particular outdoor seating in order to survive, especially if a restaurant of this size.

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And in your visits, did you notice adjoining multifamily residences?

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I did. I noticed the one to the east. I believe it's 1001 to 1005 Frankfurt Avenue.

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Did you notice the windows behind the structure?

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I did. It's approximately probably maybe less than 15 feet of exposure to the area that they're proposing to have this outdoor seating.

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I noticed at least one of the windows had an AC unit in it. There is condensers in that breezeway.

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There's also an outdoor staircase that borders the yard of the proposed seating, which is also in between that particular property and the Ellwood restaurant.

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And as a real estate investor, what impact is there of an outdoor seating area for a

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for a neighborhood restaurant, all the multifamily residential structure that borders on it?

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neighborhood restaurant, all the multifamily residential structure that borders on it?

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I don't particularly see anything. I feel like it's an amenity to the building. I believe that

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people in the building would probably would like to have use of this particular space in that

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restaurant. I don't see any negative effects either from the single family side of it in the

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rear of the property. It's really, there's two party walls bordering it. I don't believe if this

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was a single-family house that you would get any more residual noise or much from any of this area

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more than just people using that area naturally as a single-family residence.

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And in your opinion, is there any possible negative impact that the out there seating

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area could cause? I do not see any negative impact, especially in this area with all the

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residual noise and other uses that surround this property as being negative in any way,

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shape or form. And finally, are your opinions expressed today based upon a reasonable degree

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of professional certainty? Yes, they are. I have no further questions for Mr. Torrey, Mr. Chairman.

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Any questions for Mr. Torrey from the board? No, no, Mr. Chair. No.

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Mr. Marcioni, proceed. I'd like to call Dr. Jonathan Deutsch.

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Mr. Deutsch, please spell your full name. I'll swear you in.

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Jonathan Deutsch, J-O-N-A-T-H-A-N-D-E-U-T-S-C-H. I'm at Drexel University, 3141 Chestnut Street.

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Do you swear to tell the truth, the whole truth, nothing but truth?

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Yes, I do.

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Thank you. Please proceed.

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Thank you, Mr. Chairman. Dr. Deutsch, is your CV? It's on the screen. Is it reasonably accurate in terms of your background?

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Yes. And are you a restaurant industry expert? Yes I am. And are you familiar with Elwood

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Restaurant? Yes I've dined there on multiple occasions. And are you aware that in 2008

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its permit has a condition prohibiting outdoor dining? I am actually I um when I ate there for

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The first time I saw the garden and said, oh, this would be great for outdoor dining.

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And at that time I was informed that it wasn't allowed due to the zoning.

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And are there changed conditions since 2018 to make this condition unreasonable?

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Definitely the COVID pandemic had huge impacts.

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You may remember that many dining rooms were closed even when outdoor dining was permitted.

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earlier in the pandemic. And even now, our research indicates that many guests feel

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uncomfortable doing any indoor dining and are looking exclusively for outdoor dining options.

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In addition to that, are there new restaurants that have opened nearby that have outdoor seating?

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Yeah, there are two new restaurants that you pointed out earlier that are just a block away.

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both have outdoor seating Vince's Pizza and Fabrica and in that neighborhood more broadly

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there are multiple options including including Barcade and others that have extensive outdoor

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seating I just have a map briefly just to show that Vince's Pizza is here right here this is

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The little thing here is where Elwood's located. Here's Fabrica. Here's Barcade. Here's the Fillmore, just to give some more context.

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And what impact does the pandemic have on Elwood?

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I think even under optimal conditions, you know, pre-pandemic, you know, good reviews, everything going right.

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It's very challenging to run a small BYOB profitably, even under the best of circumstances.

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And what we've had over the past 18 months is really the worst of circumstances.

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So it's, frankly, a real testament to Adam and Jenny and their team that they're even here to have this conversation, given the challenges of the pandemic.

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and and many restaurants uh did not survive uh through this time is there any other area

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at the elwood restaurant location where you could possibly have out there seeming could you have it

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in front of it i don't see that being feasible um for two reasons one is the sidewalk is very narrow

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um so it would disrupt um pedestrian um flow um the other is uh as you can see from the from the

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photos it's not a very scenic you know front looking into the restaurant is gorgeous that

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beautiful door but looking out in front of the in front of the area you're

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but looking out in front of the um in front of the area you're facing a parking lot and i-95

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um i don't really see it uh being feasible right and you know other than uh the i guess so the

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only area that that you could have uh outdoor seating is in the out in the rear area where

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we proposed it correct yeah that's the only um area i can envision it right um are the

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Opinions you've expressed today based upon a reasonable degree of professional certainty?

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Yes.

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I have no further questions for the witness, Mr. Chairman.

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Any questions for this witness from the board?

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No, Mr. Chair.

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No.

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Mr. Marlione, do you have any other witnesses?

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Just Adam Diltz, the owner.

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I wanted to have him testify.

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Okay.

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Thank you.

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He's coming in now.

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Thank you.

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Hello?

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Oh, I see.

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Adam, please spell your full name.

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A-D-A-M-D-I-L-T-Z.

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You swear or affirm to tell the truth, the whole truth, nothing but the truth?

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Yes, sir, I do.

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Thank you, Mr. Maglioni.

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Thank you, Mr. Chairman.

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Adam, you heard my statements today.

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Did you hear my statements today?

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Yeah, yeah, I've been here the whole time.

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I don't know what just happened, but yeah.

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And are the statements I made true and correct?

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Yes, sir.

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And do you adopt them as your testimony?

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Yes, I do.

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I have no further questions from Mr. Diltz, Mr. Chairman.

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Thank you.

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Thank you.

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I do have a couple of questions.

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Mr. Mariani, you said there'll be 18 seats?

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Yes.

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Outside.

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Outside.

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Outside would be 18 seats, and the hours of operation are 430 to 10?

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Yes, that's what they've been.

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Five to 10.

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Five to 10.

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Mr. Diltz can answer that better than I can, Mr. Chairman.

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I'm sorry?

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Mr. Diltz can answer the hours of operation question better than I.

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Mr. Diltz, what are your hours of operation?

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My hours is Thursday through Sunday, 5 to 10.

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And then I do a T service on the weekend, Saturday and Sundays, 11 to 2.30.

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Questions from the board?

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No.

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No, sir.

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No.

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Thank you.

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Anyone else like to testify in this case?

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