Appeals Hearing Board Meeting

MINUTES APPEALS HEARING BOARD MEETING Monday, November 6, 2017 1:00 PM MONTEREY, CALIFORNIA Board members Present: Hawkins, Stocker, Villalpando Absent: None. Board Staff Deputy City Attorney Ryan Donlon; Assistant City Attorney Karin Salameh, Present: Chief David Hober, Officer Jeff Welch, Police Services Assistant Angie Madruga, Administrative Analyst Karen Faurot, Recording Secretary Alicia Salas CALL TO ORDER Chair Stocker called the hearing to order at 1:01 pm CONSENT ITEMS Approval of Minutes 1. March 29, 2016 ACTION: Approved as submitted. Board member Villalpando made a motion to approve the minutes of March 29, 2016 as submitted. Board member Hawkins seconded the motion. PUBLIC COMMENTS None. PUBLIC HEARING 2. Appeal of Police Chief's Denial of Massage Establishment Permit - Appellant Hae Seob Seok DBA Lighthouse Massage Studio, 761 Lighthouse Avenue, Suite C, Monterey ACTION: The Appeals Board denied the appeal and upheld the decision of Police Chief's Denial of Massage Establishment Permit for Lighthouse Massage Studio Deputy City Attorney, Ryan Donlon, legal advisor to the Board, stated for the record that the City Attorney's Office maintained an ethical wall between himself and the Assistant City Attorney representing the Police Department. He then advised the Board and the parties regarding the appeal procedures. Karin Salameh, Assistant City Attorney representing the Monterey Police Department said the permit was denied due to MCC 22-31.13 (n) No permittee or employee of a massage establishment shall place, publish, or distribute or cause to be placed, published, or distributed any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective customers that any service is available that is prohibited under the City Code. Ms. Salameh then stated what is prohibited in the City Code. She said subsection (d) of Appeals Hearing Board Minutes Monday, November 6, 2017 that same code states: No permittee or employee of a massage establishment shall: (1) expose the sexual or genital parts of the permittee or employee in the course of a massage therapy; (2) touch or expose the sexual or genital part of any other person in the course of a massage therapy; or (3) perform massage therapy on a patron with the intent or purpose of arousing, appealing to, or gratifying the sexual desires of said patron. She also included subsection (e) of the same code which states: No permittee or employee of a massage establishment shall perform any task or service associated with the massage establishment while nude, semi-nude, or dressed in lingerie, see-through, or transparent attire. Garments shall be maintained in a clean and sanitary condition. The only exceptions will be for specific massage modalities which have been approved by CAMTC. Ms. Salameh asked the Board to keep this information in mind when viewing the advertisements and what they are reasonably suggesting to a patron. John Bailey, attorney representing Lighthouse Massage Studio and appellant Hae Seob Seok, said this is a due process issue. He stated that Mr. Seok is a tax paying citizen who is trying to follow the rules in order to receive a permit. Mr. Bailey said that his client has complied with those rules but that the City has not done the same. Assistant City Attorney called Angie Madruga, Police Services Assistant, who was sworn in by Chair Stocker. Ms. Madruga said she processes the massage permits, taxi permits and officer training. She has been employed over 11 years with the Police Department. Ms. Madruga said she processes the massage permits when they come in. She said she reviews them to ensure that they are complete and then gathers the relevant information and submits it to Karen Faurot, her supervisor for the first approval. Ms. Salameh asked Ms. Madruga if the application was complete at time of submittal on September 29, 2016. Ms. Madruga stated the application was not complete because it was missing the date of birth. She stated she placed at least 4 calls to try to ascertain this information but did not receive any calls back. Ms. Madruga said it was at least 5 months later when the date of birth was given to her on February 9, 2017 but by that time the California Massage Therapy Certificate had expired and the application was incomplete – again. Ms. Madruga said she received the new, unexpired certificate on August 3, 2017 which is required when applying for a Massage Establishment Permit under the City Code. Ms. Madruga said at that time the application was complete and she had the detectives do a search of advertising for the company. John Bailey, Esq. asked when the search is performed, to which Ms. Madruga said the search is done once the application is complete. She said that’s when the detectives do a business search. Ms. Madruga said the email to the detectives was sent on August 14, 2017. Mr. Bailey asked if the date on the photos (11/10/2016) was correct and asked why the date was prior to August 14, 2017 when the application was complete. Ms. Madruga stated that she is able to do a first round search of the business which is why the date is prior to the application being completed. Ms. Madruga stated that this year they have processed about 32 massage permit applications. Board member Hawkins asked if a background search is done when applying for their massage license by the state. Ms. Madruga said that anyone applying will have a background search performed. Board member Villalpando asked Ms. Madruga to clarify the turnaround process. Ms. Madruga stated that she thought that she has 30 days once the application is complete to forward to her supervisor, Karen Faurot. Officer Jeff Welch was sworn in by Chair Stocker. Officer Welch stated that he has been 2 Appeals Hearing Board Minutes Monday, November 6, 2017 employed by the Monterey Police Department for approximately 12 years. Ms. Salameh asked Officer Welch if he had any special training regarding prostitution, pimping, pandering, or human trafficking. Officer Welch stated that he spent the last four (4) years in the investigation division where he as a detective and the last year of that he was assigned to the Peninsula Regional Violence Narcotics Task Force (PRVNT). Officer Welch went on to say that he received his court training as an investigator and had an additional 40+ hours of sexual assault and sexual trafficking training. He said he has investigated about 20-30 cases of these types of crimes. Officer Welch said he is familiar with the Massage Permit Application process. He said he is usually contacted by Karen Faurot’s staff to do a web search for a presence of these businesses and what their presence is online. He said he found several ads on “Backpage.com”, which is a website you can look at the ads for free but you have to pay to advertise. Ms. Salameh played the video ad for Lighthouse Massage Studio (attachment 3). Ms. Salameh asked Officer Welch if this video is the usual type of advertisements for most massage establishments in the City of Monterey. Officer Welch said based on his experience these are not the usual types of advertisements that are used by various Monterey hotels which have massage establishments. Ms. Salameh then asked Office Welch if these types of advertisements, based on his experience and training, reasonably suggest to perspective customers that Lighthouse Massage Studio offers services that are prohibited by the Monterey City Code. Officer Welch stated he believed that any reasonable person would believe that about the advertising. Ms. Salameh asked Officer Welch if he is familiar with “RubMaps.com”. Officer Welch stated that “Rubmaps” is a website for review of massage establishments that perform prostitution services. He said this website is the “Yelp” of the massage establishment prostitution. Officer Welch stated this website will review, in a particular geographic area, massage establishment prostitution and where in the area you are traveling would provide the services you’re looking for. Officer Welch stated he did find that Lighthouse Massage Studio was listed on Rubmaps.com and had approximately 6 ratings in 2017 with ratings at 4 stars and above. Ms. Salameh asked when was the last time Officer Welch had checked Rubmaps, he stated he had checked earlier in the morning (on 11/06/2017) and the latest review was from October 31, 2017 with services provided by a practitioner named Lilly. John Bailey asked if Officer Welch had pulled up attachment 3 (the photos) and had printed the pictures. Officer Welch said yes that he had printed the pictures but was not aware if these are the same pictures that he had printed. Officer Welch stated that he starts the investigation once he is contacted by staff and told the application is complete. Karen Faurot was sworn in by Chair Stocker. Ms. Faurot stated that she has worked for the Monterey Police Department for 10 years as an Administrative Analyst. Ms. Faurot said the application was denied based on the video and photos found by Officer Welch. She said she denied the application becauseof advertising that was sexual in nature, which is prohibited under the City Code. Ms. Faurot said that within the last two years they have reviewed approximately 65 application with 32 being reviewed this year. Ms. Faurot said that only 3 applications had been denied for prohibited advertising and that Lighthouse Massage Studio was one of the three. Mr. Bailey asked Ms. Faurot if she recognized the handwriting on the applications to which she answered that she did not recognized the handwriting and that she did not see the application with the date of birth on it. Ms. Salameh recalled Ms. Madruga. Ms. Salameh asked Ms. Madruga if she recognized the 3 Appeals Hearing Board Minutes Monday, November 6, 2017 handwriting and and Ms. Madruga responded that it was her writing. Ms. Madruga said she would have written it when she received the date of birth on February 9, 2017. Chief David Hober was sworn in by Chair Stocker. Chief Hober stated he has been a Police Officer for close to 30 years. He said he started in San Jose in January 1988 and became Chief of Police for the Monterey Police Department in July 2015. Ms. Salameh asked Chief Hober what his experience with crimes involving prostitution, pimping, pandering, or human trafficking. Chief Hober went on to say that during his 25 years with the San Jose PD he was assigned to the Vice Unit handling investigations relating specifically to prostitution that mainly occurred indoors, such as illicit massage parlor and hotels. He said as a Lieutenant. he was in command of the Criminal Intelligence and Vice units for a year and a half where he oversaw all the issues related to Vice Enforcement in the City of San Jose. Chief Hober also said as a Patrol Officer, Patrol Supervisor, and Patrol Commander he dealt with other types of prostitution, such as street prostitution. Ms. Salameh asked Chief Hober if he sent the denial letter to Lighthouse Massage Studio and why the permit was denied. Chief Hober said he sent the denial letter and that he denied the permit based on the photos found in the investigation. He said they were in violation of the City Code which prohibits this type of advertising. Chief Hober said, in his experience, this is not the type of attire someone would wear if they were giving a professional massage and also said a customer could reasonably think something other than a massage could be provided at this establishment. Mr. Bailey asked Chief Hober if the City Code states that an application must either be approved or denied within 60 days and why that didn’t happen with this application. Chief Hober said if grounds for denial exists and further investigation needs to be conducted; it could take longer than the 60 days, which is provided for by the City Code. Chair Stocker asked Chief Hober if his denial was made on the advertising and no other reasons such as the incompleteness of the application or a finding of prostitution on the premises. Chief Hober said his denial was based on the advertising found in the investigation. Mr. Bailey called Hae Seob Seok and he was sworn in by Chair Stocker. Using an interpreter brought by Mr. Seok Mr. Bailey asked if Mr. Seok recalls giving the date of birth to Ms. Madruga at the city. Mr. Seok said he gave the date of birth to the city in November 2016. He said the first time Ms. Madruga called he did not understand what she was asking for but the second time she called he spoke to her and he understood what was being requested. He said he gave Ms. Madruga the date of birth sometime around November 16-20 of 2016. In closing statements, Ms. Salameh said the burden of proof is on the City but that is only by perponderous of evidence, a more than likely, if you will. She said that the appellant is making a big deal of when the date of birth was given. Ms. Salameh said Ms. Madruga, a Police Department employee testified under oath that said she called numerous times and it wasn’t until February 2017 she received the date of birth. Ms. Salameh stated Ms. Madruga testified when she received the date of birth in February 2017, the California Massage Therapy Council Certificate was not valid anymore. Ms. Salameh stated that Ms. Madruga did not receive a valid certificate until August 3, 2017. She said it was only at that time was the application complete. Ms. Salameh stated that according to Officer Welch he located advertising for Lighthouse Massage Studio on Backpage.com along with the video. She stated that Officer Welch said the ads placed on Backpage.com are for a fee, so based upon this evidence it is more likely than not that the owner of Lighthouse Massage Studio or an employee was responsible for paying 4  Appeals Hearing Board Minutes Monday, November 6, 2017 and placing the ads on Backpage.com. Ms. Salameh stated that members of the Police Department, including the Police Chief, testified that the contents of the advertisements for Lighthouse Massage Studio could reasonably suggest to a perspective customer that services of a sexual nature are available there. She also said that after the denial letter went out Lighthouse Massage Studio is still receiving reviews on Rubmaps.com. Ms. Salameh said the owners are not disputing the advertisements but instead they are trying to confuse the Board with the timeline and when the application was completed. She said the appellant is only speaking to the date of birth issue. Ms. Salameh asked that the Board uphold the Police Chiefs denial of the massage establishment permit. In closing statements, Mr. Bailey said his client is being accused of pandering according to reviews on Rubmaps about his establishment. He said it has been shown that the investigation done was beyond the scope of a regular permit application. Mr. Bailey said the evidence has shown that the investigation was done in November 2016. He said no letter was ever given to the applicant and over a year has passed since the submittal. Mr. Bailey asked that the Board overturn the denial and approve the permit based on this evidence. Public Comment None. Board Member Comment Chair Stocker said the appellant focused only on the application and did not address the ads. He said he sees that the business probably benefited from the long investigation since they were able to stay open and conduct business during that time. Chair Stocker said he felt that the advertisements were overwhelming evidence reasonably suggesting that you’ll receive something other than a legitimate massage at this establishment. Board member Villalpando said he feels that the City has proven their case overwhelmingly. Board member Hawkins agreed with Board member Villalpando. On a motion made by Board member Villalpando, seconded by Board member Hawkins, and carried by the following vote, the Appeals Hearing Board denied the appeal and upheld the decision of Police Chief's Denial of Massage Establishment Permit for Lighthouse Massage Studio. AYES: 3 COMMISSIONERS: Stocker, Hawkins, Villalpando NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None 3. Appeal of Police Chief's Denial of Massage Establishment Permit - Appellant James Hendershott DBA Cypress Studios, 580 Casanova Ave. Monterey ACTION: The Appeals Board denied the appeal and upheld the decision of Police Chief’s Denial of Massage Establishment for Cypress Studios. Deputy City Attorney, Ryan Donlon, legal advisor to the Board, stated for the record that the City Attorney's Office maintained an ethical wall between himself and the Assistant City Attorney representing the Police Department. He then advised the Board and the parties regarding the appeal procedures. 5 Appeals Hearing Board Minutes Monday, November 6, 2017 Deputy City Attorney, Ryan Donlon asked the appellant attorney, Jennifer Rosenthal, if anyone besides herself was here to represent the appellant, to which Ms. Rosenthal replied that Mr. Hendershott was not present and that he lived out of state. Mr. Donlon then read MCC 22- 31.10(e): in the event that the applicant or permittee fails to appear at the hearing, the evidence of the existence of facts which constitute grounds for the denial, suspension, revocation, or restriction of the permit shall be considered conclusively established. Ms. Salameh said the mere fact that the appellant failed to appear the City has essentially proven it case based upon the City Code but The Department’s will put on its case for the record. Ms Salameh said an application was submitted by James Hendershott on April 24, 2017, however the City Code requires along with other information the name, address, and other personal identifying information for each owner of the establishment. She said it also requires a valid lease between the business owner and the property owners authorizing the use of the premises as a massage establishment. Ms. Salameh said when the application was submitted an additional tenant was listed on the lease. She said Mr. Hendershott neglected to list the additional owner so the application was deemed incomplete or he could have submitted a notarized statement stating the second tenant had no interest in Cypress Studio. Ms. Salameh said that Mr. Hendershott submitted a notarized letter on July 21, 2017 from his cotenant stating he had no interest in the business and was not co-owner of the business. She said it wasn’t until that time that the application was complete. Ms. Salameh stated this is when the investigation was started and prohibited advertising was found. Ms. Rosenthal declined to make an opening statement. Ms. Madruga was sworn in by Chair Stocker. When asked by Ms. Salameh how long she has been with the City, Ms. Madruga stated she has worked for the Monterey Police Department for over 11 years as a Police Services Assistant. Ms. Madruga said she processes taxi permits, massage establishment permits and officer training. She stated she gathers the application and supporting documents, compiles into a packet to be reviewed by Karen Faurot and then Ms. Faurot will give the first approval. Ms. Salameh asked Ms. Madruga if the application that was submitted on April 24, 2017 was complete. Ms. Madruga said she it was not complete. She said she spoke with Mr. Hendershott regarding the 2 tenants listed on the application but did not know what date she contacted him. Ms. Madruga said she spoke with Mr. Hendershott on the first attempt to contact him. She stated she told Mr. Hendershott of his two options regarding the additional tenant and that eventually on July 21, 2017 he submitted the notarized statement from the cotenant. Officer Jeff Welch was sworn in by Chair Stocker. Officer Welch said he has been the Monterey Police Department for 12 years and has received specialized training for prostitution, pimping, pandering, or human trafficking. He said for the last 4 years he has been assigned to the Investigations Bureau as a detective, where he took an 80 hour course for investigations and 40 hour course in sexual assault and sex trafficking. Officer Welch said he has been involved with over 20-30 investigations and he was the lead officer on undercover bust of massage studios. Ms. Salameh asked Officer Welch how he conducts the investigation into the business. He said he started the investigation when he hears from Karen Faurot or her staff that an application is complete. Officer Welch said when he conducted his search he found the photos and video that were presented today, which were labeled for Cypress Studio. Ms. Salameh asked if the ads on Backpage.com have a fee associated with them. Officer Welch said the ads do cost depending on the geographical reach of the ads. He said the larger the area you want to address the more you pay for the ads. 6 Appeals Hearing Board Minutes Monday, November 6, 2017 Ms. Salameh asked if Officer Welch knew what Rubmaps.com is. Officer Welch said it is a review site for illicit massage, erotic massage, and prostitution. Ms. Salameh asked how many reviews did Cypress Studio receive in 2017, to which Officer Welch said they had 8 reviews in 2017 with anywhere from 3-4 stars out of 5. Officer Welch said he last checked Rubmaps on October 14, 2017 and found Cypress Studio was listed at that time. Ms. Rosenthal asked Officer Welch if any of the women were naked in the photos presented today. Officer Welch replied no. She asked if any of the women were wearing transparent clothing, to which Officer Welch said one of the women in the video was wearing a transparent dress and her bra was showing. Ms. Rosenthal asked Officer Welch if the photos show any of the women touching patron’s genitalia and Officer Welch replied no. Chair Stocker swore in Karen Faurot. Ms. Faurot stated she has worked with the City for over 10 years. Ms. Faurot stated they have reviewed about 64 massage permits and only 3 have been denied due to advertising which includes this one for Cypress Studio. Chief Hober was sworn in by Chair Stocker. Chief Hober stated he has been a Police Officer since January 1988 when he stared with the San Jose Police Department. He said he became the Chief of Monterey Police Department on July 2015. Chief Hober stated he has worked for San Jose Police Department where he was assigned to the Vice Unit. He said during that time he was involved with cases that dealt with both indoor and outdoor prostitution arrests. Chief Hober said in his career of almost 30 years he has dealt with all types of cases that include prostitution, pimping, pandering and trafficking. He said he has been involved with hundreds of these types of investigations. Chief Hober said in both 2016 and 2017 he denied a permit for Cypress Studio. Chief Hober said based on the video and ads he denied the permit as it was in violation of the Monterey City Code. Ms. Salameh asked Chief Hober if the ads are in violation of the Monterey City Code to which Chief Hober stated yes, absolutely. Public Comments Marnie Gustafson is the owner of the property where Cypress Studio is located. Ms. Gustafson said she purchased the property about 20 years ago. She said is concerned that she cannot lease to another massage studio for the next five years. Ms. Gustafson says it deprives her of her livelihood and denies the property of its full potential and does not know why she is being penalized for something the business owner has done? Ms. Gustafson asked the Board to please lift the rule of no new massage studio for 5 years, despite whatever happens with Cypress Studio. Upon a question from Chair Stocker, Ms. Salameh clarified the fact that the Board does not have the discretion to overturn the 5 year prohibition in the City Code. She stated that was something voted upon by the City Council and that if Ms. Gustafson like to have that overturned she should go before the City Council to have that changed. Ms. Salameh said under MCC 22-31.10(e) without Mr. Hendershott here the case in basically closed and without anyone here to cross examine or deny the photos, the evidence has been conclusively established. Ms. Salameh asked the Board to uphold the Police Chiefs decision and deny the appeal. Ms. Rosenthal said there are no guidelines that state what is “offensive” and since there are not and it could be said that one persons offense is not another’s. Ms. Rosenthal said with that in mind, she asked the Board to overturn the denial by Monterey Police Department and grant the appeal. Board member comments Board member Villalpando thinks that the photos, video, and the Rubmaps reviews are enough 7 Appeals Hearing Board Minutes Monday, November 6, 2017 for him to denial the appeal. Chair Stocker said the ads are not consistent with the ads at the place where his wife would visit for a massage. On a motion made by Board member Villalpando, seconded by Board member Hawkins, and carried by the following vote, the Appeals Hearing Board denied the appeal and upheld the decision of Police Chief's Denial of Massage Establishment Permit for Cypress Studio. AYES: 3 COMMISSIONERS: Stocker, Hawkins, Villalpando NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None BOARD MEMBER COMMENTS None. ADJOURNMENT Chair Stocker adjourned the meeting at 3:48 pm. Respectfully Submitted, Approved, Alicia Salas David Stocker Recording Secretary Chair 8