Appeals Hearing Board Meeting

APPEALS HEARING BOARD MEETING MINUTES CITY OF MONTEREY (Hybrid meeting) Monday, July 25, 2022 1:30 PM MONTEREY, CALIFORNIA Board members Present: Hawkins (in chambers), Glenzer (via Zoom), Millich (via Zoom) Absent: Board Staff City Attorney Christine Davi, Assistant City Attorney Karin Salameh and Present: Clerk of the Board Alicia Salas Other Staff Sergeant Russell Jenkins Present: CALL TO ORDER Chair Hawkins call the meeting order at 1:36 pm. CONSENT AGENDA 1. Minutes of April 29, 2022 Board member Glenzer made a motion to approve the April 29, 2022, minutes. Vice Chair 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 PUBLIC COMMENTS None. PUBLIC HEARING 2. Reopening of Appeal of Police Chief's Non-Renewal of Massage Establishment Permit Number YL1900010 for Jade Health Center - 443 Lighthouse Avenue, 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) City Attorney Christine Davi stated that the City Attorney’s Office has an ethical due process screening wall that is implemented for this hearing. She said she has been advising the Appeals Hearing Board on this matter and has kept her files, records and communications separate from that of the Assistant City Attorney Karin Salameh who is representing the Police Department. She stated, this is in place in order to ensure due process and fairness in the proceedings. Appeals Hearing Board July 25, 2022 Minutes Ms. Davi said there was a Motion to Disqualify the City Attorney’s Office from Ms. Liu’s criminal case and that motion was denied based on the process that our office has set up for ensuring fairness. Board member Glenzer asked Ms. Davi the status of Ms. Liu’s criminal trial and what was the purpose of making the previous statement. Ms. Davi said in order to ensure due process it is advisable, and best practice, to have a separation of powers. She said for example, she should not be representing and advising the Police Department, while at the same time advising the Board. She stated that could be considered as not furthering due process and adversely affecting the rights of the appellant in this case. Ms. Davi said she and Ms. Salameh keep their roles separated and do not communicate with each other in order to protect the due process of the appellant. Ms. Davi asked the Board members to disclose if they had any ex parte contacts, they may have had with anyone outside of the hearing process, which she said also ensures due process. All Board members said they have not had any ex parte contacts. Ms. Davi said the scope of the proceedings is that the Board has already made a decision on April 29, 2022. She said as the Board is aware, a request was received from Assistant City Attorney Salameh to reopen the proceedings to clarify testimony of an officer. Ms. Davi said the appellant will have an opportunity to add evidence, cross-examine, or present testimony surrounding the new evidence that’s presented at this hearing by the City. She clarified that the hearing is limited in the scope, and it is not a do over of the previous hearing. Vice Chair Millich made a motion to reopen the hearing to a limited scope set forth by the Assistant City Attorney Salameh. Chair Hawkins seconds the motion. The motion carried by the following vote, which was conducted by roll call: AYES: 2 COMMISSIONERS: Hawkins, Millich NOES: 1 COMMISSIONERS: Glenzer ABSENT: 0 COMMISSIONERS: ABSTAIN: 0 COMMISSIONERS: RECUSED: 0 COMMISSIONERS: Assistant City Attorney, Karin Salameh called her first witness, Sgt. Russell Jenkins. City Attorney Christine Davi swore in Sgt. Jenkins. Sgt. Jenkins stated he is employed by the City of Monterey Police Department, and testified before the Appeals Hearing Board in April relating to Jade Health. Ms. Salameh asked Sgt. Jenkins if there were portions of his testimony from that hearing he wanted to clarify and he said yes. 2 Appeals Hearing Board July 25, 2022 Minutes Ms. Salameh asked Sgt. Jenkins to explain what he wanted to clarify from the last hearing. Sgt. Jenkins said in the last hearing he stated that he used the Language Line to communicate with some of the people at Jade Health and the appellants representative stated that he did not use the Language Line. Sgt. Jenkins said after the hearing he viewed the body-worn camera footage again from the afternoon of January 31, 2022 and realized he did not utilize Language Line when he was speaking to the four women at Jade Health. Sgt. Jenkins added that MPD has performed 10-12 of these types of inspections and he confused it with a different massage establishment inspection. He said once he realized his mistake, he went to Chief Hober to inform him of his error. Sgt. Jenkins stated that he and Officer Sabino did not utilize the Language Line as he had originally thought. Ms. Salameh asked Sgt. Jenkins to describe what Language Line is used for, Sgt. Jenkins said it is used in the field when there is a language barrier. He said it is not always used; it just depends on the circumstances. Ms. Salameh asked Sgt. Jenkins if he or his partner had asked Ms. Liu if she could communicate in English. He stated that Ms. Liu said she could communicate in English, and he believed he could communicate with Ms. Liu throughout the interview. Sgt. Jenkins said Ms. Liu did not ask for a translator but that he would have called Language Line himself if he thought there was a language barrier. Finally, Ms. Salameh asked Sgt. Jenkins if it was his intention to mislead the Board at the previous hearing to which he stated, absolutely not. John Filighera, the representative for Ms. Liu, asked Sgt. Jenkins if on February 1, 2022, he had signed off on a report signed by Officer Sabino. Vice Chair Millich objected to Mr. Filighera’s question and stated the question was not in the scope of the testimony that Sgt. Jenkins had just given. Ms. Davi said since the City did not make any objections, it would be improper for there to be an objection by the tribunal. She stated the appellant should proceed with questioning the witness. Ms. Salameh stated that it was the City’s intention to limit the reopening. Ms. Salameh stated the City did not have an objection yet regarding the report in question. Mr. Filighera asked Sgt. Jenkins again, if on February 1, 2022, he had signed off on a report signed by Officer Sabino regarding the business check regarding Jade Health Spa on January 31, 2022. Sgt. Jenkins said he did sign off on Officer Sabino’s report, but he cannot remember the date. Mr. Filighera questioned if the report stated that the three women the officers encountered that day spoke limited English. Ms. Salameh objected to the question as she did not have the Police report in question in front of her. Ms. Davi said the witness has already testified that the report was signed and approved. Mr. Filighera asked Sgt. Jenkins if he knew what language the woman he encountered at Jade Health Spa spoke. Ms. Salameh objected and asked Mr. Filighera to clarify what woman he was referring to. Mr. Filighera stated the woman Sgt. Jenkins encountered at Jade Health Spa on January 31, 2022. Sgt. Jenkins said there were four women at the health spa but when he entered, he encountered one woman who he did not question because she went out the door and down the sidewalk to where another woman was waiting. He said he waived the women back to the business. He stated that when they reentered the business, a woman came out of the room where a customer was and then eventually the owner, Ms. Liu showed up as well. 3 Appeals Hearing Board July 25, 2022 Minutes Mr. Filighera asked Sgt. Jenkins if he had a translator with him on January 31, 2022, that could have translated English into Chinese. Ms. Salameh objected as Mr. Filighera was misstating testimony and told Sgt. Jenkins that he could answer to the extent that he understood the question. Sgt. Jenkins said that he and Officer Sabino had City issued cell phones where they could have accessed the Language Line. Board member Glenzer asked Mr. Filighera to establish for the public record what his role is in the hearing. Mr. Filighera said he is a personal friend of Ying Liu, and she asked him to come and express her feelings because she has a language barrier. He said Ms. Liu thought that he could express her feelings clearer to the Board for her. Ms. Davi asked Mr. Filighera if Ms. Liu was able to understand the proceedings. She asked if there was any reason why Ms. Liu could not speak for herself at the proceedings. Mr. Filighera stated that Ms. Liu does not have a great command of the English language. Ms. Davi asked Ms. Liu if she needed an interpreter and if she understood the proceedings. Ms. Liu stated she did not need an interpreter and she would like for her friend to help her. Ms. Davi asked Ms. Liu if she had recently appeared at a criminal proceeding without the assistance of a language interpreter. Ms. Liu said she did not use an interpreter and that she mostly understands but needs help. Ms. Davi said the City is trying is ensure fairness and to make sure that everyone understands what is happening. She stated that Mr. Filighera’s was there to help Ms. Liu to present her case but he was not at the hearing as an interpreter. Ms. Davi stated to Mr. Filighera that his testimony is not considered evidence and that if he wanted to introduce evidence into the hearing it would have to come directly through Ms. Liu or through cross- examination. Mr. Filighera asked Sgt. Jenkins if Lt. Gabriel Kaster asked him to perform a compliance check on January 31, 2022. Sgt. Jenkins said he was not sure if Lt. Kaster had told him specifically to perform the check, but they had regularly performed compliance checks on all the massage establishments that are permitted within the city. Ms. Salameh made an objection to Mr. Filighera’s questioning as it did not appear to be confined to new evidence. She said this is evidence that Mr. Filighera could have raised at the prior hearing; these questions are not regarding new evidence. Ms. Davi asked if Mr. Filighera and Ms. Salameh to address their comments to the Chair and not to each other. Mr. Filighera asked Sgt. Jenkins if he is familiar with the massage laws. Ms. Salameh made the same objection to the Board, that Mr. Filighera’s questions are not regarding the new evidence presented at the hearing. Mr. Filighera said to Chair Hawkins that his line of questioning is necessary because he is trying to establish if the Sergeant understood that if you have an acupuncture license, you do not need to comply with the City Code section 22-31.1 – 22-31.16. Ms. Davi said that the prior record is clear and whether or not Ms. Liu is licensed to perform acupuncture is not an issue in this case. She said the issue is whether she was operating a massage establishment contrary to the City Code. Ms. Davi stated the Board found previously that violations were happening. She said the evidence showed that massages were being conducted by unlicensed individuals. She suggested that the Board not reopen the hearing to the issue of the acupuncture license since that is not at issue and advised the Board to sustain the objection. 4 Appeals Hearing Board July 25, 2022 Minutes Vice chair Millich reminded everyone that the ruling by the Board was that the hearing was to be limited to what was said on direct by Sgt. Jenkins. Ms. Davi asked Mr. Filighera if he understood the scope of the hearing. Mr. Filighera said the new testimony affects the whole case. Vice chair Millich reminded Mr. Filighera that the hearing is limited to the testimony by Sgt. Jenkins. Mr. Filighera continued to question Sgt. Jenkins. He asked again if Sgt. Jenkins was familiar with the massage laws; Ms. Salameh objected. She stated that Mr. Filighera could ask Sgt. Jenkins questions regarding his communication with individuals during the compliance check and the department would have no objections to that line of questions. But, she said, going over Sgt. Jenkins knowledge of the massage code is out of bounds and is not what we are here for. The Board sustained Ms. Salameh’s objection. Mr. Filighera asked Sgt. Jenkins when he went to Jade Health Spa on January 31, 2022, and encountered the individuals at the business, did he ask if they were performing massage. Sgt. Jenkins said he did ask them, and they confirmed they were performing massages. Mr. Filighera asked if he used Language Line; Sgt. Jenkins said he did not. Mr. Filighera asked Sgt. Jenkins if he thought those individuals understood his questions, Sgt. Jenkins said yes, he thought they did understand. Mr. Filighera asked Sgt. Jenkins if there were any other inconsistencies that he wanted to clarify. Sgt. Jenkins said there is nothing else he needed change or clear up. Chair Hawkins wants to know if in California, can massage be performed under an acupuncture license. Ms. Davi said there was no evidence presented at the previous hearing that the other individuals who said they were performing massage had an acupuncture license. Board member Glenzer asked Sgt. Jenkins why he did not utilize Language Line. Sgt. Jenkins said he did not feel it was necessary as he was communicating very well with three of the women. Board member Glenzer asked how he determines, in other situations, when to utilize Language Line. Sgt. Jenkins said if he is communicating in English and the individual he is speaking to can answer his questions in English; if they are offered an interpreter and they say they do not need one, then there is no need to utilize Language Line. Mr. Filighera called his witness, Ying Liu. Ms. Davi swore in Ms. Liu. Mr. Filighera asked Ms. Liu if she had a bachelor’s degree from Shanghai Art and Design; she agreed that she does have a bachelor’s degree and that she also has a Master of Science degree from University of East and West Medicine in acupuncture. Mr. Filighera asked Mr. Liu if she or the women at her massage establishment performed massages on January 1, 2022. Ms. Salameh objected to this question as it could have been asked as part of the previous hearing and is not relating to Sgt. Jenkins new testimony. The Board sustained the objection. Mr. Filighera asked Ms. Liu if the three women at her massage establishment could understand what Sgt. Jenkins and Officer Sabino were asking them on January 31, 2022. 5 Appeals Hearing Board July 25, 2022 Minutes Board member Millich asked how Ms. Liu is supposed to know what they know or understood. Ms. Davi recommended the Board allow the question. Board member Glenzer said Ms. Liu may have knowledge of this information. Ms. Liu said she believes they did not understand because when they were asked for a license, they produced driver’s licenses, so she does not think they understood what was being asked of them. Ms. Salameh made an objection. She said it appears the witness’s testimony does not seem to be of her own personal knowledge but rather from viewing some videotape. Mr. Filighera said Ms. Liu did watch the videotape and she spoke with one of the women at the shop. Ms. Davi said it would be ok for the Board to allow the testimony, but the evidence still shows that the people in question did not have massage licenses issued by the State of California, which is required. Mr. Filighera asked Ms. Liu if she was the only person who performs acupuncture at her establishment. Ms. Salameh objected as the question was outside the scope of the hearing. Ms. Davi recommended to the Board sustain the objection; Chair Hawkins sustained the objection. Ying Liu made a statement saying that she would like to ask the Police Chief to renew her permit and that she would like to show that her clinic is a legitimate health spa that provides a good service to the community. Ms. Salameh asked Ms. Liu if when she arrived at Jade Health on January 31, 2022, during the compliance check, did she speak to Sgt. Jenkins; Ms. Liu said she did. Ms. Salameh asked her if she was able to understand Officer Jenkins; Ms. Liu said she believes she told him that she would try her best to understand him. Ms. Salameh asked Ms. Liu if she had spoken to Sgt. Jenkins in English; Ms. Liu said she did. Public Comments No public comments. Chair Hawkins closed the Public Comments. Mr. Filighera said his rebuttal is that there were no women performing massage, there were no employees there when Sgt. Jenkins and Officer Sabino arrived on January 31, 2022. He further stated that Ms. Liu was the only person performing acupuncture. Mr. Filighera stated that Ms. Liu has never had a compliance check, or the police called to her health spa in the six years she has owned the business. Board Member Discussion Board member Glenzer said based on the limited reason for the reopening of the hearing, he does not think there was any evidence to overturn the previous decision. Vice Chair Millich agreed with Board member Glenzer. Chair Hawkins said the appellant was clearly operating a massage establishment without a permit and the people performing the massages were not licensed. And as such, Chair Hawkins said, a woman felt as if she was sexually abused. He stated if they were trained and licensed, they would know how to perform massage properly. 6  Appeals Hearing Board July 25, 2022 Minutes Board member Glenzer said that he disagreed with Chair Hawkins. He said he wanted to state for the public record that all the information about sexual abuse does not matter and he was not sure why it was included when there was such a narrow scope of the hearing. Ms. Davi said those documents were submitted by the appellant and we cannot stop someone from submitting documents at a public hearing. She said the Board does not need to consider or include them in your fact finding or decision-making process. Vice Chair Millich made a motion to affirm the Board’s decision of April 29, 2022, based on the reopening of testimony for the limited purposes of allowing Sgt. Jenkins clarification, while also taking into considering Mr. Filighera arguments and the testimony of Ms. Liu Board member Glenzer 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: ABSENT: 0 COMMISSIONERS: ABSTAIN: 0 COMMISSIONERS: RECUSED: 0 COMMISSIONERS: BOARD MEMBER COMMENTS None. ADJOURNMENT Chair Hawkins adjourned the hearing at 2:53. Respectfully Submitted, Approved, Alicia Salas Daryl Hawkins Recording Secretary Chair of the Board 7