Appeals Hearing Board Meeting

MINUTES APPEALS HEARING BOARD MEETING Thursday, February 14, 2019 10:00 AM MONTEREY, CALIFORNIA Board members Present: Hawkins, Stocker, Millich Absent: Yaqub (alternate) Staff Present: Assistant City Attorney Karin Salameh, Deputy City Attorney Ryan Donlon, Officer Amy Groner, Administrative Analyst Karen Faurot, Police Services Assistant Angie Madruga, and Recording Secretary Alicia Salas MORNING SESSION AGENDA *****10:00 a.m. - 12:00 p.m.***** CALL TO ORDER Clerk of the Board called the hearing to order at 10:00 am. After waiting five minutes, and with no quorum, the Clerk of the Board recessed the hearing to the Afternoon Session to reconvene at 1:00 pm. AFTERNOON SESSION AGENDA *****1:00 p.m. – 3:00 p.m.***** Reconvened afternoon session at 1:00 pm CONSENT ITEMS Approval of Minutes 1. September 13, 2018 On a motion made by Board member Hawkins, seconded by Chair Stocker, and carried by the following vote, the Appeals Hearing Board approved the Minutes of September 13, 2018: AYES: 3 COMMISSIONERS: Stocker, Millich, Hawkins NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None PUBLIC COMMENTS None. PUBLIC HEARING 2. Appeal of Police Chief's Denial of Massage Establishment Permit - Applicant/Appellant Pok Sil Pak, Win Spa, 243 Foam Street, Suite B  Appeals Hearing Board Minutes Thursday, February 14, 2019 Attorney Steven Andre asked the Board for more time in order to arrange for an interpreter. He had a calendar conflict in the morning and that is the reason he was unable to attend the hearing in the morning. Deputy City Attorney, Ryan Donlon, asked the Board to move forward with the hearing as scheduled. Board Member Comments Chair Stocker said the Board usually will grant the continuance but it should be within 30 days. Board member Hawkins made the motion to continue the hearing for Win Spa for up to 30 days. Board member Millich seconds the motion. On a motion made by Board member Hawkins, seconded by Board member Millich, and carried by the following vote, the Appeals Hearing Board voted to continue the hearing for Win Spa: AYES: 3 COMMISSIONERS: Stocker, Hawkins, Millich NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None 3. Appeal of Police Chief's Revocation of Massage Establishment Permit - Appellant Robert Bennett, Golden Therapy, 299 Foam Street, Suite A Deputy City Attorney, Ryan Donlon gave his presentation and took questions from the Board regarding his presentation. Deputy City Attorney Donlon called Police Services Assistant, Angie Madruga, as the Department’s first witness. Ms. Madruga was sworn in. Ms. Madruga is in charge of massage permits, taxi permits, and some police officer training. Ms. Madruga said she is the first to receive the massage permit application, and then compiles the packet for submission to her supervisor, Karen Faurot, for review. She said after Ms. Faurot reviews the packet; then it is given to the Chief of Police for the final review and his recommendation. Appellant, Robert Bennett, had no questions for Ms. Madruga. Deputy City Attorney Donlon next called Officer Groner, who was put under oath. Officer Groner said she is a Community Action Team member for the Monterey Police Department. Officer Groner said her job entails patrolling the city, camp abatement, compliance checks, and anything else Patrol needs of the Community Action Team. Deputy City Attorney Donlon asked Officer Groner if she prepared the report regarding the compliance check on Golden Therapy. Officer Groner said she prepared the report and ran an internet search regarding the business. She said the ads she found state there are six therapist but only one person is authorized to give massages at Golden Therapy according to their permit. She said the color ads she found online show the women wearing flesh colored bottoms to look like they are not wearing any pants. Deputy City Attorney Donlon asked Officer Groner about the Compliance Check performed on 2 Appeals Hearing Board Minutes Thursday, February 14, 2019 November 28, 2018. Officer Groner said the business’s front door was ajar door, so she and her partner Officer Zachery Reed, went into the facility. Officer Groner identified herself as a Police Officer and that she was there to perform a compliance check. She said there were no permits displayed inside the door of the business, the on-site manager was not present, the name of the on-site manager was not posted, and no certificates for the massage therapist were visible on the premises. Officer Groner testified that she encountered a female in one of the rooms, Gyunghwa Ji. Ms. Ji spoke limited English, so Officer Groner used Language Line interpreting services to communicate with her. Ms. Ji said she was there to use the restroom and a man gave her a key to the business so she could let herself in but she said the man had left. Officer Groner said Ms. Ji, was not authorized to be in the back of the business since she was not a certified massage therapist or the on-cite manager. Officer Groner said Officer Reed contacted the appellant and requested that he come to the business. Officer Groner testified that while they waited for the owner to arrive, she questioned the neighboring business about Golden Therapy. Officer Groner said the owner had seen people coming and going for weeks if not months and she had noticed all the clients coming to the business were males. She went on to say that they would leave well after the closing time of 9:00 pm. (City Code says massage establishments must close by 9 pm). Officer Groner said that during her check she found a large bag in room 3. Officer Groner asked Ms. Ji if she could check the bags in the room, Ms. Ji said yes. When Officer Groner checked the bags, she testified that she found multiple pieces of lingerie, vitamins, and two birth control pill packets, as well as large amounts of cash, mostly in $20 dominations. Officer Groner said the owner eventually arrived at the business. She said Mr. Bennett did not provide a reason for Ms. Ji being on the premises but he said James Choi, who was the manager probably let her in the business. Officer Groner said Mr. Bennett tried to contact Mr. Choi but was unable to reach him. She said that Mr. Bennett explained that he did not know why there were multiple pieces of lingerie on the premises or why Ms. Ji was in the business. Officer Groner said after the compliance check she checked the website for Golden Therapy but the website was no longer operational. Robert Bennett, the appellant, had no questions for Officer Groner. Deputy City Attorney Donlon called the Departments last witness, Karen Faurot, who was places under oath. Ms. Faurot said she is a Senior Administrative Analyst with the Police Department. She said she makes recommendations regarding massage permits to the Chief of Police, after her review of the application. She testified that she recommended that the permit for Golden Therapy be denied. Ms. Faurot said the Police Department originally issued the Massage Establishment Permit fir Golden Therapy in May of 2018, a compliance check was performed on November 28, 2018 and letter of revocation was sent because of the check. Appellant, had no questions for Ms. Faurot. The Department concluded its case. Robert Bennett, the appellant, was sworn in. He said he did not know what was going on at his business because it was not open yet. He said he is appreciative of the Monterey Police Department for telling him what was going on. Mr. Bennett said he is self-employed at, Bennett’s Custom Rug Designs, which has been on the Peninsula for over 30 years. He said there were many issues in the beginning, which happened to coincided with the holidays, so he decided to wait until the new year to open the business. He testified that he hired a husband 3 Appeals Hearing Board Minutes Thursday, February 14, 2019 and wife team to manage the business, because they said they had experience in this type of business and could run it for him. Mr. Bennett said he checked in with the business about once a week. Appellant explained that when he made contact with James Choi, after the compliance check, he said he fired both the managers who were running the business. Mr. Bennett said he did not display the license because the business was not technically open yet. He said the Choi’s were supposed to be setting up the place and getting it ready for the grand opening, which was to be in January. Board Member Millich asked Mr. Bennett if there was a copy of an agreement between himself and James (Choi) to run the business. Mr. Bennett said he does not have agreement with James (Choi). Chair Stocker asked Mr. Bennett if he had any idea that the business was operational or about the website. Mr. Bennett said he did not have any idea about any of that taking place in his business. Board member Millich asked Officer Groner if it looked like work was still being conducted on the building. Officer Groner said it looked like the work had already been completed. Deputy City Attorney Donlon gave his final summary. Appellant Mr. Bennett gave his final summary. Public comments Steven Andre, attorney, said the City is here to enact and enforce the Code. He said the website picture did not reflect see thru clothing, or lingerie. Mr. Andre said women should be allowed to wear what they want. He said he felt like it was wrong to say that the pictures reflect a sexual service. Board Member Comments Board member Millich said there are clear violations even though Mr. Bennett was not aware of the situation. He said the City Code makes the owner liable for the business. Board member Millich said revocation should be in order. Board member Hawkins said Mr. Bennett is responsible for the business even though he stated he was not aware of the violations. He said his mistake was not being more involved with the business. Chair Stocker said the lingerie and the high-heeled shoes are not violations but are clear indications that something is going on. He said he feels the real violations is not posting the permits, the false advertising, and the vagueness of the open business hours. Chair Stocker said Mr. Bennett did not have control over his business and due to the clear violations, he feels the Board must uphold the Police Department’s determination. Board member Millich made a motion to uphold the revocation of the Massage Establishment Permit. Board member Hawkins seconds the motion. All Board members approve the motion. 4 Appeals Hearing Board Minutes Thursday, February 14, 2019 Assistant City Attorney Salameh asked the Board to make findings for the Written Decision. The board made the following Findings: 1. Golden Therapy’s website advertising violated Monterey City Code (MCC) section 22- 31.13(n) by depicting six young women in such a manner as to reasonably suggest to prospective customers that services were available that are prohibited under Chapter 22 Section 31 of the Monterey City Code. 2. MCC section22-31.13(p) was violated because Golden Therapy’s website advertising depicted six young women, identified as “staff” on the website, which was unprofessional and misleading because Appellant was only permitted to employ one masseuse, Ae Ri Choi. 3. When MPD conducted a compliance check on November 28, 2018, Golden Therapy failed to display its massage establishment permit visibly form the main entry door in violation of MCC22-31.13(c)(1). 4. On November 28, 2018, Golden Therapy failed to display a copy of the CAMTC-issued identification card for each retained masseuse visibly from the main entry door in violation of MCC 22-31.13(c)(2) 5. At the time of the compliance check, a person named Ji Gyunghwa, who the evidence showed was not a massage therapist or practitioner or a patron or patron’s immediate family member, was present in an area of Golden Therapy where she was not permitted to be in violation of MCC 22-31.13(q). On a motion made by Board member Millich, 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 Golden Therapy Massage. AYES: 3 COMMISSIONERS: Stocker, Hawkins, Millich NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None BOARD MEMBER COMMENTS Board member Hawkins thanked staff for calling out the code regulations that help the Board when making a decision. Chair Stocker thank you everyone who came; he said he appreciated everyone’s time. ADJOURNMENT The hearing was adjourned at 2:49 pm 5 Appeals Hearing Board Minutes Thursday, February 14, 2019 Respectfully Submitted, Approved, Alicia Salas David Stocker Recording Secretary Chair 6