Appeals Hearing Board Meeting

APPEALS HEARING BOARD MEETING MINUTES CITY OF MONTEREY (Hybrid meeting) Wednesday, December 1, 2021 10:00 AM MONTEREY, CALIFORNIA Board members Present: Hawkins (in Chambers), Glenzer (in Chambers), Millich (via Zoom) Absent: Yaqub (Alternate) Board Staff City Attorney Christine Davi, Assistant City Attorney Karin Salameh and Present: Clerk Alicia Salas Other Staff Chief David Hober, Detective Kimberly Zook, Lieutenant Gabriel Kaster Present: CALL TO ORDER Chair Hawkins called the meeting order at 10:01 am PUBLIC COMMENTS None. PUBLIC HEARING Board member Millich made a motion to approve the Consent Agenda. Board member Glenzer seconds the motion. 1. Minutes of August 28, 2020 AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None 2. Minutes of February 3, 2021 AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None 3. Minutes of February 9, 2021 AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None 4. Select Chair and Vice Chair for Term Ending June 30, 2022 (Not a Project Under CEQA Article 20, Section 153748 and General Rule Article 5, Section 15061)  Appeals Hearing Board December 1, 2021 Minutes Chair Hawkins said he has enjoyed being the Chair. Board member Millich made a motion to have Mr. Hawkins serve another term as the Chair, if he was inclined to accept the offer. Board member Glenzer seconded the motion. Chair Hawkins made a motion to have Mr. Millich serve another term as Vice Chair. Board member Glenzer seconded the motion. The motion carried by the following vote, which was conducted by roll call: AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None 5. Appeal of Police Chief’s Revocation of Massage Establishment Permit Number YL1300403 for Comfoot Massage and Spa – 379 Lighthouse Ave., Monterey – Appellant Scott G. Negri, The Entrust Group, Inc. Assistant City Attorney Karin Salameh on behalf of the Police Department gave a presentation to the Board regarding the City Code section before the Board. Ms. Salameh called the Department’s first witness Detective Kimberly Zook and swore her in. Ms. Salameh asked Detective Zook why she went to Comfoot Massage and Spa at 379 Lighthouse on August 20, 2021. Detective Zook said she went there because prior to her visit, a reporting party came into the police department to report being a victim of a sexual battery that occurred by an employee of that establishment. She said they went to the establishment to make contact with the possible suspect and to further investigate the allegation. Ms. Salameh asked Detective Zook what she found when she went to Comfoot Massage and Spa. Detective Zook said when she arrived, she contacted the sole occupant of the business and he identified himself as “David” verbally and provided a California driver license with the name of Hao Zhou. Ms. Salameh asked Detective Zook if he was the only person on the premises. She said that Mr. Zhou had told her he had arrived at about 9:50 am and that he had been the only person on the premises since his arrival. Ms. Salameh asked Detective Zook if Mr. Zhou was a licensed CAMTC licensed massage practitioner to which Detective Zook said he was not licensed. She said Mr. Zhou verbally confirmed that he was not certified and she later verified on the CAMTC website that he was not certified. Ms. Salameh asked Detective Zook if Mr. Zhou was listed on Comfoots Massages’ permit as authorized to perform massage to which she said he was not listed on the permit. 2 Appeals Hearing Board December 1, 2021 Minutes Ms. Salameh asked Detective Zook if Mr. Zhou had performed any massages on the day of the visit. Detective Zook said Mr. Zhou had confirmed that he had performed massage that day and he was also positively identified in a line up by the reporting party. Detective Zook further testified that Mr. Zhoudid not have CAMTC ID displayed on his person. Detective Zook said she could not remember if the on-site manager’s name was displayed in the entry way but she did remember the City of Monterey’s license was posted as well as the owner’s information. Detective Zook said there was not a manager on site at the time of the inspection. Ms. Salameh asked if there were any licensed massage therapist at the time of the inspection. Detective Zook said there was not. The appellant, Scott Negri, declined to cross-examine Detective Zook. Ms. Salameh called Lt. Gabriel Kaster of the Monterey Police Department and swore him in. Lt. Kaster said he went to Comfoot Massage on September 6, 2021. He said he went there because he learned of the initial sexual battery that Detective Zook was investigating and he had learned of another one that had occurred two weeks later on September 4. Lt. Kaster said he received the report on September 5 and went to Comfoot on September 6 to conduct follow- up on the second investigation and to do a site inspection. He said he also needed to serve a suspension letter that he and Chief Hober drafted. Ms. Salameh clarified with Lt. Kaster that he was investigating a second complaint of battery that had occurred at Comfoot. Lt. Kaster agreed with Ms. Salameh. Ms. Salameh asked Lt. Kaster to describe what he saw when he went to Comfoot Massage for the September 6 site inspection. Lt. Kaster said he was greeted by a person who called himself Peter, he was later identified as Xianobin Zhang, and a woman who went by Jennifer, later identified as Yuzhen Huang. Ms. Salameh asked Lt. Kaster if either Mr. Zhang or Ms. Huang were identified as being able to perform massage according to Comfoot permit or if they were CAMTC certified, Lt. Kaster said they were not on the permit and they were not CAMTC certified. Ms. Salameh asked Lt. Kaster what Mr. Zhang and Ms. Huang were doing at Comfoot Massage. Lt. Kaster said Mr. Zhang told him he was performing massage that day and he was training Jennifer as well. Lt. Kaster said neither Mr. Zhang or Ms. Huans were not CAMTC certified and no ID cards for either of them were displayed in the entryway. Ms. Salameh asked if there was a manager on-site at the time of the inspection, to which Lt. Kaster said there was not. He said he asked Mr. Zhang to call a manager so he could speak with them but there was no manager on-site. Lt. Kaster said there were no licensed massage therapist on-site at the time. He said Mr. Zhang had entered the massage area and allowed patrons there as well while there were no license CAMTC massage therapist on-site. Ms. Salameh asked about the suspension letter that Lt. Kaster served on September 6, 2021. He said he and Chief Hober had discussed the two sexual batteries that the police department had been investigating and the violations of the City Code. He said they decided they needed draft a suspension letter to put them on notice of issues and crimes that were happening at their location. 3 Appeals Hearing Board December 1, 2021 Minutes Ms. Salameh asked Lt. Kaster if he and Chief Hober had made their decision to draft the letter based on the August 20th incident. He said they based their decision on that as well as the second sexual battery that had occurred. Mr. Negri declined to cross-examine Lt. Kaster. Ms. Salameh called her final witness Monterey Police Department’s, Chief of Police David Hober and swore him in. Ms. Salameh asked Chief Hober to tell the Board what his letter of September 8, 2021 was regarding. Chief Hober continued and said the letter goes over the Monterey City Codes that were being violated at Comfoot Massage. Ms. Salameh said it appears in the letter, that you decided to revoke the permit, why did you decide to do that? Chief Hober said mainly he was concerned about that there was an immediate and significant threat to the public health and safety after the MPD had been made aware of two independent and separate alleged sexual batteries by unlicensed massage therapists. He went on to say that it is a very basic aspect to ensure they are certified, so that things like this do not occur. Chief Hober said he was very concerned about the management of a massage establishment that on two occasions, two independent people reported that they were sexually battered. He said it is very important that a manager is on-site to oversee what is occurring and ensure there are no issues like this that might happen. Ms. Salameh asked Chief Hober, based on his years of experience in law enforcement, why is it important to have CAMTC certified licensed massage therapist? He said he would liken it to any other profession where you have professionally training people. He said the CAMTC certification requires 500 hours of training and the applicant has to go through the State to get certified and vetted. He said it’s important to have licensed therapists to ensure they are properly administering the massage and to also ensure there aren’t any kind of sex crimes occurring. Ms. Salameh asked Chief Hober about the City Code which prohibits another massage establishment from occupying the same location for a period of five years when a massage establishment permit has been revoked by the Police Chief. Chief Hober said based on his years of law enforcement, where massage establishments are concerned, he said he has seen, in some cases, the ownership change hands but the business is still being managed by the same group of people. He said the City has this in place as a “best practice”. Mr. Negri declined to cross-examine Chief Hober. Vice Chair Millich asked Chief Hober if he has had any occasion to previously use the five years ban after revoking a massage permit? Chief Hober said he has had three or four other occasions where he had to revoke a massage permit and the prohibition is automatically applied once that happens. Chair Hawkins asked Chief Hober if the five-year prohibition was a local or a state requirement. Chief Hober said the law in the State of California states that cities can establish their own municipal codes to regulate the massage industry. Chair Hawkins asked Chief Hober if anyone was charged, arrested, or convicted for the batteries that occurred. Chief Hober said like any other crimes committed in the City, the police department submits it to the District Attorney’s Office. He said they did not charge the first 4 Appeals Hearing Board December 1, 2021 Minutes individual and for the second individual, the case is still being processed by the DA’s office, so at this time there is no determination yet. Board member Glenzer asked Chief Hober how important were the two alleged sexual batteries when he made his decision to revoke the permit. Chief Hober said he has revoked permits for different reasons but it needs to be a substantial reason. He said if it is code violations, they may just cite the business for the violations. He said the two primary factors were the two individuals that felt that they were sexually battered. Chief Hober said it was the primary reason for the revocation, along with there being no manager on-site. He said he felt the permit needed to be revoke so that no one else would be victimized. Ms. Salameh asked a follow-up question of Chief Hober. She asked him if he thought that having a massage therapist who did not have a CAMTC license and training could contribute to instances of sexual battery since the massage practitioner has not been properly trained. Chief Hober said he believes it could be a factor if someone is not trained appropriately, they may massage in an area or close to an area where they are not supposed to or it could have been purposefully done. He continued and said if you consider the first scenario and that they were not properly trained, then yes it could contribute to those instances. Appellant, Scot Negri addressed the Board and said he has no problem with the Police Department revoking Comfoot Massages’ permit, he said they were in the wrong and they deserved to have their permit pulled. He also said he does have a problem with not being able to lease his building if massage is not allowed at the same location for the next five years. He said he cannot extend AnyTime Fitness, who rents next door, if they wanted to add massage to their business, or to a restaurant due to the water issue. He said he feels like, through no fault of his own, that he is being restricted more and more about who can rent the space in his building. Ms. Salameh clarified that the City Code states if the massage part of a business is less than 10% of the business then it is not required to have a massage establishment permit. Public Comments None. Board Member Discussion Board member Glenzer asked City Attorney Christine Davi, who is advising the Board, what are the recommendations the Board can consider when making this decision. City Attorney Christine Davi said she would recommend that the Board follow the City Code which has a predetermined time for suspension of operating a similar establishment at the same location. She said discretion has not been built into the Code for the Board to depart from that and recommended again to follow the City Code. Board member Glenzer said the facts of the case are the facts of the case and said he cannot see what discretion he has to deviate from the decision made by the Police Department. Vice Chair Millich said as a City Attorney in Southern California he said he was familiar with groups that would operate massage establishments illegally and when their licenses were revoked, another group would move in, who were all part of the same larger group. He said they would go from city to city setting up shop doing the same thing at each location until or when their license was revoked. Board member Millich said he understands the reasoning for the five-year prohibition and said if the Board is to do their job and perform their duties then he 5  Appeals Hearing Board December 1, 2021 Minutes cannot see any other result than to deny the appeal and uphold the police departments decision. Chair Hawkins said as a local architect for the past 50 years he has designed multiple commercial buildings and said massage is not the only possible tenant out there. He said he has remodeled buildings, that he had designed, for multiple tenants for slightly different needs and for the appellant to say that he is dependent on massage is not correct. Board member Glenzer made a motion to deny the appeal. Vice Chair Millich said Millich seconds the motion. The motion carried by the following vote, which was conducted by roll call: AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None BOARD MEMBER COMMENTS Vice Chair Millich wished everyone Happy Holidays. ADJOURNMENT Chair Hawkins adjourned the hearing at 11:03 am Respectfully Submitted, Approved, Alicia Salas Daryl Hawkins Recording Secretary Chair of the Board 6