Appeals Hearing Board Meeting

MINUTES APPEALS HEARING BOARD MEETING Tuesday, February 26, 2019 1:00 PM MONTEREY, CALIFORNIA Board members Present: Hawkins, Stocker, Millich Absent: None Board Staff Assistant City Attorney Karin Salameh, Deputy City Attorney Ryan Donlon, Present: and Recording Secretary Alicia Salas Other Staff Chief David Hober, Officer Amy Groner, Detective Michael Garcia, Senior Present: Administrative Analysis Karen Faurot, Police Services Assistant Angie Madruga, CALL TO ORDER Chair Stocker called the hearing to order at 1:00 pm. CONSENT ITEMS None. PUBLIC COMMENTS None. PUBLIC HEARING 1. Appeal of Police Chief's Denial of Massage Establishment Permit - Applicant/Appellant Pok Sil Pak, Win Spa, 243 Foam Street, Suite B Ryan Donlon, Deputy City Attorney, representing the Police Department,gave his presentation and took questions from the Board members. Angie Madruga, Police Services Assistant, was sworn in by Assistant City Attorney Karin Salameh. Mr. Donlon questioned Ms. Madruga about her employment with the Police Department and the process she uses when reviewing a massage permit applicaton. Steven Andre, Attorney for the appellant, questioned Ms. Madruga about the permit process for massage permits. Officer Amy Groner was sworn in by Assistant City Attorney Salameh. Mr. Donlon asked Officer Groner questions regarding her compliance check performed at Win Spa. Appellant Steven Andre, Attorney for appellant; gave his presentation and took questions from the Board members. Mr. Andre brought interpreter Hang Le for appellant Pok Sil Pak the owner of Win Spa. Mr. Andre asked Officer Groner questions regarding the compliance check on Win Spa. Mr. Andre then asked Officer Groner questions regarding the ads found on the internet by Officer Michael Garcia on “Adult Search” browser. Officer Groner said it gave her the impression that sexual services are offered at this location. Appeals Hearing Board Minutes Tuesday, February 26, 2019 Mr. Andre asked Officer Groner if the requirement for posting of massage establishment permits was merely to help the Police Department when doing a compliance check. Officer Groner disagreed and said any legitimate business would have no reason not to post the permits. Karen Faurot, Senior Administrative Analysis was sworn in by Assistant City Attorney Salameh. Mr. Donlon asked Ms. Faurot if she recommended approving the application submitted by Win Spa. Ms. Faurot said she recommended that Chief Hober deny it. Detective Michael Garcia, who was sworn in by Assistant City Attorney Salameh, is with Monterey Police Department, assigned to the Peninsula Regional Violence and Narcotic Team (PRVNT) team. He gave his qualifications as a member of the (PRVNT) team. Mr. Donlon asked Officer Garcia why he performed an internet search regarding Win Spa. Officer Garcia said he received an email from Ms. Madruga asking him to do so. He said he found a posting for Win Spa under erotic massage. Officer Garcia stated that an erotic massage is generally sexual in nature. Mr. Andre asked Officer Garcia what search terms did he use to search for Win Spa. Officer Garcia said he performed his search on “Adult Search” browser and used the terms, 243 foam and Win Spa. Chief David Hober was sworn in by Assistant City Attorney Salameh. Chief Hober gave his past qualifications prior to coming to the Monterey Police Department. He said in February 2015 he was hired by the City of Monterey as the Assistant Chief of Police and July 2015 he was promoted to Chief of Police. Deputy City Attorney Donlon asked Chief Hober why it is important to monitor massage establishment activity. Chief Hober said it is crucial to monitor massage businesses so as to ensure that nothing illegal in happening inside of these businesses, i.e. prostitution, human trafficking, quality of life issues, etc. Chief Hober added that all of the laws in place in Monterey directly follow the guidance from California Massage Therapy Council (CMTC) which were designed to help prevent anything illegal happening in these types of businesses. Mr. Andre asked Chief Hober if having a locked door would prevent a chance for violence to occur. Chief Hober said he believes that having a manager on site would help to prevent or reduce that type of situation from happening. Mr. Andre called his first witness, Pok Sil Pak. Ms. Pak was sworn in, through an interpreter, by Assistant City Attorney Salameh. The interpreter, Hang Le, was also sworn in by Assistant City Attorney Salameh. Mr. Andre asked Ms. Pak about her business, Win Spa. She said she has owned the business 6 years. When Mr. Andre asked if Mr. Pak had done any advertising on the internet, she said she does not use the internet. Ms. Andre asked Ms. Pak, what had occurred last year to make her neglect her business; she said she had to take care of her husband who was diagnosed with cancer. Ms. Pak said she was very focused on her husband and because of that she also became ill. She said because of this she was not able to properly take care of the business. On the day of the compliance check, Ms. Pak said she had to leave the business because of an emergency regarding her husband’s health. Mr. Andre asked Ms. Pak if she was a diligent business owner prior to each of them getting sick, she said her husband’s health was her top priority. 2 Appeals Hearing Board Minutes Tuesday, February 26, 2019 Mr. Andre asked Ms. Pak if Sasitorn “Monica” Roberts was hard to keep track of as an employee. She said “Monica” had worked at the business for many years and Ms. Pak did not realize that she was not following her training. Mr. Andre asked what kind of problems did Ms. Pak experience with Sasitorn “Monica” Roberts towards the end of 2018. Ms. Pak said she fired “Monica” after the compliance check and the citation. Mr. Andre asked if “Monica” had a problem with leaving her personal belongings at the business. Ms. Pak said she told her many times to remove her personal belongings but she did not. She said that “Monica” must have purchased the dresses on her own. Mr. Andre asked Ms. Pak what type of clothing was required at the business when performing a massage. Ms. Pak said there is a uniform that she requires but what “Monica” was wearing is not part of the uniform. Mr. Donlon asked Ms. Pak if she was aware of the City Code, she replied yes. Mr. Donlon asked why, on the day of the compliance check, wasn’t there an on-site manager at the business. Ms. Pak said she had an emergency and had to leave. She said she told “Monica” that she had to leave and that she (Monica) would have to leave early too. Mr. Donlon asked if she was aware that she was responsible for her employees, she said yes but she forgot because of the emergency with her husband. Mr. Andre distributed his own photos regarding the internet search of Win Spa to the Board members and the attorneys. Mr. Andre called Young “Lisa” Meggitt, she was sworn in by Assistant City Attorney Salameh. Ms. Meggitt said she is going to comply with all codes as the new manager. Mr. Andre asked if there is a system between the doors for monitoring who is coming and going. Ms. Meggitt said there is a camera in the area between the doors. She said the monitor is in the employee break room, where they can hear someone come in. Board Member Hawkins asked if Ms. Meggitt was a certified masseuse. She stated she is not, but she was only there to help out Ms. Pak with the business as the manager since she used to work at the business when it was owned by someone else. Steven Andre, Esq. was sworn in by Assistant City Attorney Salameh. Mr. Andre said he performed an internet search of the business and he came up with numerous hits. He said he did not find anything like the ads that Officer Garcia found. Chair Stocker asked if the documents needed to be posted in the front so as to properly identify everyone without going from room to room. Mr. Donlon said the permits are to be posted prominently in the front so anyone can be easily identified as a masseuse. Board member Hawkins asked if it’s always illegal for someone to stay overnight, Mr. Donlon responded in the affirmative with Board member Hawkins question. Board member Millich asked where is it stated that the hours of operation have to be posted. Mr. Donlon said it wasn’t the posting of hours but according to evidence presented today, this business had been operating outside the hours of operation. Chair Stocker asked if Mr. Donlon thought the uniform was a violation. Mr. Donlon said in the context of the situation, it took Ms. Roberts about 45 seconds to answer the locked door, and when she did open the door she was found to be barefoot, in a flannel shirt and mini skirt. Ms. Roberts told the officers at the compliance check the lingerie belonged to Ms. Pak and Ms. Pak has testified today that the lingerie did not belong to her but to Ms. Roberts. Mr. Donlon said he believes the Board should consider the inconsistent testimony because it helps create a fuller picture of what was happening just prior to the compliance check. 3 Appeals Hearing Board Minutes Tuesday, February 26, 2019 Closing Arguments Mr. Donlon gave his closing remarks followed by Mr. Andre’s closing remarks. Public comments None. Board Member Comments Board member Millich said he thinks the evidence is clear and convincing on many issues; he said there were many things that were beyond question. Board member Millich said he thinks the Chief was within his purview to revoke the permit. Board member Hawkins said he thinks the changes the owner made are great but they are all after the fact. He said he agrees with Board member Millich. Chair Stocker said he appreciated the fact that they tried to change/fix the issues but it was all after the compliance check and the citation was issued. He said the owner was there on the day of the check but she knew all these violations existed on the premises prior to the compliance check. Board member Millich made a motion to uphold the revocation of the Massage Establishment Permit for Win Spa. Board member Hawkins seconds the motion. 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 Police Chief’s Denial of A Massage Establishment Permit 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 BOARD MEMBER COMMENTS None. ADJOURNMENT Chair Stocker adjourned the hearing at 4:07 pm. Respectfully Submitted, Approved, Alicia Salas, David Stocker, Recording Secretary Chair 4