Appeals Hearing Board Meeting

APPEALS HEARING BOARD MEETING MINUTES CITY OF MONTEREY (Hybrid meeting) Friday, April 29, 2022 9:00 AM MONTEREY, CALIFORNIA Board members Present: Hawkins (in chambers), Glenzer (in chambers), Millich (via Zoom) Absent: Board Staff City Attorney Christine Davi, Assistant City Attorney Karin Salameh and Present in Clerk Alicia Salas chambers: Other Staff Chief David Hober, Sergeant Russel Jenkins, Sergeant Jeremiah Present in Ruttschow; and Senior Administrative Analyst Karen Faurot chambers: CALL TO ORDER Chair Hawkins call the meeting order at 9:02 am. CONSENT AGENDA 1. Minutes of February 22, 2021 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 April 05, 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 May 04, 2021 AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None 4. Minutes of June 28, 2021 AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None  Appeals Hearing Board April 29, 2022 Minutes 5. Minutes of July 07, 2022 AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None 6. Minutes of August 23, 2021 AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None 7. Minutes of December 01, 2021 AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None PUBLIC COMMENTS None. PUBLIC HEARING 8. Appeal of Police Chief’s Non-Renewal of Massage Establishment Permit Number YL 1900010 for Jade Health Center – 443 Lighthouse Ave., Monterey, California – Appellant Ying Liu, Jade Health Center (Not a Project under CEQA per Article 20, Section 15378 and General Rule Article 5, Section 15061) Assistant City Attorney Karin Salameh gave her presentation to the board. Ms. Salameh called her first witness, Senior Administrative Analyst Karen Faurot who was sworn in by City Attorney Christine Davi. Ms. Faurot testified that she does process the massage establishment applications and Jade Health Center was issued a permit in early 2021. Ms. Salameh asked Ms. Faurot if Massage Establishment permits specify who can perform massages at the establishment; she said they do. Ms. Salameh showed Ms. Faurot attachment 1 to the agenda report which is the permit application for Jade Health Center. Ms. Salameh asked Ms. Faurot who was authorized to perform massages at Jade Health Center. Ms. Faurot said Ying Liu was authorized to perform massages and that she is the only person listed on the application. Ms. Salameh asked Ms. Faurot if a massage establishment hired an employee mid-year, can that employee perform massages at that establishment; Ms. Faurot said they cannot unless they amend their permit. Ms. Salameh followed up by asking Ms. Faurot if Jade Health Center 2 Appeals Hearing Board April 29, 2022 Minutes had amended their permit to add new massage therapists. Ms. Faurot said they did not amend their permit. Ms. Salameh called her next witness, Sergeant Jeremiah Ruttschow with the Monterey Police Department; he was sworn in by the City Attorney. Ms. Salameh asked Sgt. Ruttschow if he had gone to Jade Health Center on 443 Lighthouse Ave. on January 1, 2022. He said he did because he was responding to a criminal investigation regarding a sexual assault. She asked Sgt. Ruttschow if, when he arrived at Jade Health Center, whether a manager or operator was on-site. He said there was one employee but no manager. He said the employee identified herself as Hannah, but her legal name was Hong Lee. Ms. Salameh asked Sgt. Ruttschow if Ms. Lee was a licensed CAMTC massage therapist. Sgt. Ruttschow said she told him she was licensed and was performing massages but did not have the license displayed or the ability to present it. Ms. Salameh asked Sgt. Ruttschow if Ying Liu, who also goes by Angela, arrived while he was on scene at Jade Health Center. He stated that Ms. Liu arrived approximately 20 minutes later. Ms. Salameh asked Sgt. Ruttschow if anyone else had performed massage that day at Jade Health Center. Sgt. Ruttschow said he was told by Hong Lee and Ying Liu that David Wang had also performed massage that day at Jade Health Center. He stated that Mr. Wang showed up at Jade Health Center while he was there and admitted to performing massages. Sgt. Ruttschow said that Mr. Wang was not a licensed CAMTC massage therapist and as such he had no CAMTC license to display in the entryway. Ms. Salameh questioned if Sgt. Ruttschow had made Ms. Liu aware of the violations on January 1, 2022. He said he did tell her about the violations, and she acknowledged that Mr. Wang did not have a license to perform massage. John Filighera, representative for Ying Liu, asked Sgt. Ruttschow if he had gone to Jade Health Center on 12/31/2021. Sgt. Ruttschow referred to his notes and stated that he had gone to Jade Health Center on 01/01/2022. Mr. Filighera inquired when Sgt. Ruttschow went to Jade Health Center if “Hannah” was performing a massage at that time. Sgt. Ruttschow said she was not. Mr. Filighera asked Sgt. Ruttschow if on January 1, 2022, if he or any officer on scene issued a ticket to Ms. Liu. Sgt. Ruttshow said no tickets were issued for City Code violations. Mr. Filighera questioned if Sgt. Ruttschow had informed Ms. Liu when she arrived at Jade Health Center of all the non-compliance issues. Sgt. Ruttschow said not all the non-compliance only the violation for lack of permit for Mr. Wang. Mr. Filighera asked Sgt. Ruttschow what happened to Mr. Wang after he had finished speaking to him. Sgt. Ruttschow said Mr. Wang was arrested for sexual battery which is a felony. Ms. Salameh called her next witness, Sergeant Russell Jenkins; he was sworn in by the City Attorney. Ms. Salameh asked Sgt. Jenkins his job title. He stated he is a sergeant with the Monterey Police Department and currently supervises the Community Action Team (CAT). Ms. Salameh inquired if part of Sgt. Jenkins role with the Community Action Team is to regularly conduct 3 Appeals Hearing Board April 29, 2022 Minutes inspection, or compliance checks, on massage establishments. He answered affirmatively, they regularly conduct compliance checks on massage establishments. Sgt. Jenkins said on January 1, 2022, he went to Jade Health Center to conduct an inspection of the massage establishment. Ms. Salameh asked Sgt. Jenkins if when he arrived, was the permit issued by the City of Monterey on display in an open and conspicuous place visible from the main entryway. He said it was not. Ms. Salameh asked if, on January 1, 2022, there were any employees present when he arrived on site. Sgt Jenkins said there were three employees, Chan, Chen, and Jing. Ms. Salameh inquired if any of the employees were beyond the reception area, in the patient treatment area. He said Ms. Jing was beyond the reception area. He said that Ms. Jing advised him that she was with a patient performing a massage at the time of his arrival. Ms. Salameh asked Sgt. Jenkins if Ms. Chan, Ms. Chen, or Ms. Jing were certified massage therapists. Sgt. Jenkins said they were not, and they did not display a valid CMATC ID on themselves in the establishment. Ms. Salameh asked if Ms. Jing was authorized to perform massage according to the permit issued to Jade Health Center, and he said she was not. Ms. Salameh inquired if an on-site manager or any licensed massage therapists were on-site when Sgt. Jenkins arrived; he said that neither was present. Ms. Salameh asked Sgt. Jenkins if Ms. Liu had arrived while he was on-site at Jade Health Center and if her CAMTC license was display on the premises. He said it was not and she told him her license was at home. Mr. Filighera asked Sgt. Jenkins who he encountered when he arrived at Jade Health Center. Sgt. Jenkins said he was met by Ms. Chan and Ms. Chen. Sgt. Jenkins said Ms. Jing was the person performing massage at the time of his arrival. Mr. Filighera asked if Ms. Liu had shown Sgt. Jenkins the acupuncture license, and Sgt. Jenkins said the license was displayed on the wall. Ms. Salameh called her last witness, Chief David Hober; he was sworn in by the City Attorney. Ms. Salameh asked Chief Hober to explain his job title. Chief Hober said he is charged with setting strategy, managing, leading, and organizing the Monterey Police Department which includes enforcing the law, hiring and the regulation of various types of businesses and overseeing those duties. Ms. Salameh asked Chief Hober to discuss attachment 2 of the agenda report. Chief Hober said it is a letter prepared, for his signature, to inform Ms. Liu that her permit for Jade Health Center would not be renewed. Ms. Salameh asked what lead him to make that decision. Chief Hober said he based his decision on the information presented at the hearing as well as the fact that there was an investigation into a sexual assault at this location. He said based on that call, officers learned of other violations occurring there as well. He added that the one that concerned him the most was the fact that someone was performing massage without a CAMTC permit and the potential sexual assault that occurred. Chief Hober stated that on January 31, 2022, a second inspection was performed and again he was concerned over the fact that massages were being performed by non-certified personnel. Chief Hober said first and foremost, it is important that people are certified, so that they know how to do massage properly. Second, it protects the person going to get the massage, third, it keeps the massage businesses professional and ensures that those who are performing 4 Appeals Hearing Board April 29, 2022 Minutes massages are professional as well. He said, it also ensures that human trafficking is not happening because in the massage industry there is a high percentage of that occurring. He added having regulations and following the state guidelines and processes, helps to ensure people are permitted to perform massage and it helps mitigate many of those issues. Ms. Salameh asked Chief Hober, based on his years of experience in law enforcement, why he found it concerning that non-licensed personnel were performing massage. Chief Hober said for the reasons I have already described and to make sure those who are performing massage are trained appropriately and those who are getting a massage are protected. He said he wants to ensure they are following state guideline as all the codes are based on the best practices of the state and CMATC. The Chief added, it protects the massage business and ensure it is a professional business within the City of Monterey. Mr. Filighera asked Chief Hober if there is a program in the city that allows for an inspection of all massage establishments. Chief Hober said they primarily react if they are made aware of any issues occurring but that doesn’t mean the MPD will not go randomly to conduct inspections. Mr. Filighera asked Chief Hober if there were other complaints prior to the one of sexual battery at 443 Lighthouse. Chief Hober stated that he thinks there was another incident at another property that Ms. Liu owned but he wasn’t sure. Mr. Filighera asked Chief Hober in 2015 when he came to Monterey, was he involved with changing the laws in Monterey surrounding massage establishments based on his experience from San Jose. Chief Hober said he was somewhat involved but the City Attorney’s Office is dialed in with what is happening in current law and they, primarily, came up with the law based on what was being suggested by the state. Mr. Filighera asked Chief Hober how long the process is to amend a permit application. He asked if an employee quits and the establishment wants to hire another massage therapist, how long would that process take to reissue another permit with the proper names. Chief Hober said he was not sure; he would have to check with staff. Mr. Filighera stated that businesses have suffered over the past couple of years due to COVID-19, he said he was trying to verify how long the process is, as the business would suffer again during the time the application is amended. Chief Hober said in response to Mr. Filighera that the world did just go through a pandemic, but the rules should still be followed. He said if someone has an issue like that, they need to reach out to the PD to make us aware because they are subject to the rules. He said business owners are more aware of than he because it’s their business and they need to make sure they are complying with the rules, so their business is not put into jeopardy. Chief Hober said regardless of the time it will take, they need to reach out to MPD to at least start the process to amend the application. Mr. Filighera stated that he had read some of the law regarding massage establishments. He asked Chief Hober if he was familiar with the exemption of the law that says if a person is involved with the “healing arts” you can perform massage and you are exempt from the law (City Code). Chief Hober stated he is familiar with the law and knows there are some exceptions. He said he is familiar with that law in more general terms. Mr. Filighera stated that at the January 31 inspection Mrs. Liu was trying to convey to the officers that they were operating under an acupuncture license which gives her the ability to acupuncture and massage and is exempt from following the massage establishment rules. Chief Hober said that question would be answered best by the officers that were on scene. He said just because someone is using an acupuncture license, they still must have a CAMTC permit. 5 Appeals Hearing Board April 29, 2022 Minutes Mr. Filighera stated that Ms. Liu was told she was out of compliance during the January 1 inspection. He said that is when he became involved to help her get things changed and apply for any permits needed. Chief Hober stated that when Ms. Liu was provided with her permit, she was aware of all the rules prior to January 1; and those things should not have occurred in the first place, and maybe the reported sexual assault would not have occurred. Mr. Filighera stated it was an alleged assault which is in the courts now. Ms. Salameh asked Chief Hober if he could read the City Code, section 22-31.4 (a) that the appellant was referring to with regards to the healing arts. Chief Hober stated, “Any individual licensed to practice the art of healing as defined under Business and Professions Code Section 500 et. seq. while engaging in a practice within the scope of their license.” Ms. Salameh asked Chief Hober in his experience does the person who is performing the service need a license in, for example, acupuncture. Chief Hober stated yes, they would. Ms. Salameh recalled Sergeant Jenkins to the stand and reminded him that he was still under oath. Ms. Salameh asked Sgt. Jenkins if at the January 31, 2022, inspection he performed, was he asked if Ms. Liu had showed him an acupuncture license. Sgt. Jenkins said yes. She continued and asked if he was shown an acupuncture license for any other individuals, he stated no he was not. Ms. Salameh asked Sgt. Jenkins if his earlier testimony was that Ms. Jing admitted to him that she performed massage, and Sgt. Jenkins agreed with Ms. Salameh. She asked Sgt. Jenkins if Ms. Jing had an acupuncture license displayed anywhere on the premises, and Sgt. Jenkins stated no. Mr. Filighera asked Sgt. Jenkins if on January 31, he saw anyone performing massage at the time. Sgt. Jenkins stated he did not. Mr. Filighera asked Sgt. Jenkins if the employees at first stated they were licensed, Sgt. Jenkins said they were not licensed. Mr. Filighera said according to the videotape, a woman by the name of Jane stated that they were all licensed. He went on to say the employees were Chinese and didn’t understand English. Sgt. Jenkins said one of the employees was speaking English, but they also used Language Line to communicate with them. Mr. Filighera asked Sgt. Jenkins when the employees stated they had licenses did they show CAMTC licenses or did they show a driver’s license. Sgt. Jenkins stated they did not have massage licenses. Mr. Filighera asked if they showed him drivers licenses, Sgt. Jenkins said they did. Mr. Filighera stated they did not understand what was being asked of them or what was going on and there was a language barrier; he said they did not fully understand you. Sgt. Jenkins stated they had used Language Line and had them communicate with the employees in Mandarin. He said Officer Sabino used the Language Line to ensure they were being clear with the employees, and that they were talking about having a license to perform massages. Sgt. Jenkins said the employees made it clear that they did not have a license and could not produce them either. Mr. Filighera asked Sgt. Jenkins how he used Language Line, Sgt. Jenkins stated it was on his phone. Mr. Filighera said he was reviewing the video of Sgt. Jenkins entering the massage establishment and he did not see anyone show the phone to any of the three people being questioned while using Language Line. He asked Sgt. Jenkins when he utilized Language Line to communicate. Sgt. Jenkins answered that when Officer Sabino and he were speaking to the three employees, Officer Sabino was using his cell phone with the speaker to speak with Language Line. Mr. Filighera asked Sgt. Jenkins if his testimony was that there was a customer in the business when he got there; he replied yes there was a customer there. Mr. Filighera asked Sgt. Jenkins if he had spoken with the customer when he got there, Sgt. Jenkins stated the customer left; he said that Ms. Jing told him she was with a customer. Mr. Filighera asked if Ms. Jing had told him she was performing a massage at the time. Sgt. Jenkins said Ms. Jing 6 Appeals Hearing Board April 29, 2022 Minutes told him a couple of different things. He said she told him she was practicing massage and in training. Mr. Filighera asked Sgt. Jenkins if Ms. Jing had informed him that she was getting the customer ready for Ms. Liu to perform acupuncture to which he stated he could not recall. Ms. Salameh stated to the Board that Ms. Faurot testified that Ms. Ying Liu was the only individual authorized to perform massage at Jade Health Center. She continued, you also heard testimony from Sergeants Ruttschow and Jenkins about their two on-site inspections at Jade Health Center. They went through evidence showing numerous violations that range from not having the permit displayed as required by the City Code, to not having an on-site manager present, to also having individuals who admitting they were performing massage who were not licensed by the CAMTC. She said that is a serious violation and the admission is admissible. Ms. Salameh said because they were not licensed, they could not display the licenses on their person as required by the Code or display them in the main entryway – reception area. She said the officers observed that individuals who were not massage therapist were beyond the reception are and that is also prohibited by the City Code. Ms. Salameh said the Police Chief testified as to why he thought the non-renewal was warranted given the violations. And finally, she added, the acupuncture license is a red herring, that argument does not stand up because the City Code regulates the individual who performed the service being licensed. Whether Ms. Liu had an acupuncture license is immaterial because both times the sergeants showed up to the establishment the people there who performed the service were not licensed either by the CAMTC or by the acupuncture board. She said that argument has no bearing on whether the violations occurred in this instance and the department therefore requests that the Appeals Hearing Board uphold the department’s decision. Mr. Filighera stated that the acupuncture license is not a red herring as Ms. Liu is still operating the health spa in Monterey and she is doing it legally and legitimately. He stated that the other employees admitting they performed massage was a known issue and it was brought to Ms. Liu’s attention for the first-time when police officers came to inspect the business on January 1, based on the sexual battery case. Mr. Filighera said Ms. Liu stopped doing massage at that time because she didn’t want to get into trouble. He said she needed to get in compliance with all the rules she was in violation of. Mr. Filighera said the City Code gives the Chief of Police the option to deny a license for not following the rules or for not complying with them. He stated that to him, he believes if you are given a fix-it ticket, you fix the ticket and then come back, that is exactly what Ms. Liu was doing. He said she was fixing the non-compliance at her health spa. Mr. Filighera said it is Ms. Liu intention to build a health spa to treat people here in Monterey, she came from China nine years ago, she’s learned the language, she’s an active citizen in Monterey, she owns two homes, she owns a commercial building in Monterey, she pays taxes, she shops here in Monterey. He said it is her goal to have a professional spa to treat people. Mr. Filighera said he is asking the Board to overturn the denial, give her the opportunity to show she’s a professional, give her the opportunity to correct what is wrong, give her the opportunity in court to prove the sexual battery case was malicious prosecution and that it did not take place, and allow her to get professional masseuses that are licensed with certification from the massage therapy board. Mr. Filighera added again, the acupuncture license is not a red herring, it allows Ms. Liu to not comply with the rules (City Code), section (22-31.1-16) 1-16. He said at the second compliance check, it did not matter how many people were in the health spa building, they did not need to show licenses. Mr. Filighera said they admitted to doing massage, but they were not doing massages at the time of the second inspection, they were performing massages prior to January 1. He said they were scared and did not understand everything the police were saying to them. He added the sergeant said they were dictating words into a telephone and an interpreter was translating but he did not see that on the videotape. Mr. Filighera said it would be a travesty to not renew Ms. Liu’s permit. He asked that she get a permit on probation and be allowed to pay a fine for being out of 7 Appeals Hearing Board April 29, 2022 Minutes compliance on the first inspection. He explained on the second inspection, Ms. Liu was in compliance with the acupuncture license but not the massage license because she was not performing massage. Finally, Mr. Filighera added that he would like to see the board overturn the Police Chief’s decision and allow Ms. Liu to fix the outstanding issues and continue doing business so she can start treating more people in Monterey. Public Comments None. Board Member Discussion Chair Hawkins asked Ms. Davi if massage can be performed with an acupuncture license and are the regulations the same. Vice Chair Millich asked if Ms. Liu even had an acupuncture license. City Attorney Davi said there has been no evidence submitted regarding of the acupuncture license. She said the board heard testimony from Mr. Filighera but that is not evidence. Ms. Davi said we have not heard from Ms. Liu herself about whether there is an acupuncture license or not. She added that testimony was heard from Sgt. Jenkins that there might have been an acupuncture license on the wall, but we do not know when it was affective and do not know if it is valid, and that had not been checked. Ms. Davi stated that regardless of the acupuncture license, assuming it was valid, that does not allow unauthorized people to be there performing massages. Vice Chair Millich asked if Sgt. Ruttschow had testified that he spoke to someone, and they pointed to an acupuncture license on the wall. Ms. Davi agreed with Mr. Millich. He said there is an argument being made that if you have an acupuncture license you’re exempt from massage licensing but there is no evidence of that; it is just an argument. Ms. Davi clarified that the City Code does have a provision exempting healing arts from the massage establishment permitting requirements but said she would have to pull up the Business and Professions Code 500 et seq. to see if that covers acupuncture. She said assuming it does, that would only exempt the license holder from the rest of the City Code massage requirements, and it does not exempt someone from operating a business and having other people performing massages under it. Ms. Davi stated that each person would have to have an acupuncture license to perform massage. Chair Hawkins said the owner asked for the massage permit originally with no indication of acupuncture. He added the acupuncture license was something new that was put in at the last minute; he said the presentation does not even mention the acupuncture license. Chair Hawkins stated again that the board convened because the owner asked for a massage establishment permit. Ms. Davi said the testimony heard from Ms. Faurot was that Ms. Liu did apply for massage establishment, that is attachment 1 of the packet, it was approved and then it was not renewed. Chair Hawkins said that is really all we must go by. He said the appellant asked for a permit, she was given a massage permit and now we are throwing acupuncture in here which is totally different than what the board was asked to review. Chair Hawkins said his thought is that the appeal is to discuss the massage establishment permit, which was not properly followed. Vice Chair Millich agreed with Chair Hawkins. 8  Appeals Hearing Board April 29, 2022 Minutes Chair Hawkins said on that basis, the board cannot change direction in the middle of a hearing. Vice Chair Millich made a motion to deny the appeal on the grounds stated by the Chief of Police and the witnesses for the City. Board Member Glenzer seconds the motion. Assistant City Attorney Salameh asked Vice Chair Millich if his motion encompass the adoption of the Proposed Decision to which Vice Chair Millich said yes it does. The motion carried by the following vote, which was conducted by roll call: AYES: 3 COMMISSIONERS: Hawkins, Millich, Glenzer NOES: 0 COMMISSIONERS: ABSENT: 0 COMMISSIONERS: ABSTAIN: 0 COMMISSIONERS: RECUSED: 0 COMMISSIONERS: BOARD MEMBER COMMENTS None. ADJOURNMENT Chair Hawkins adjourned the hearing at 10:10 am. Respectfully Submitted, Approved, Alicia Salas Daryl Hawkins Recording Secretary Chair of the Board 9