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HomeMy WebLinkAboutCC Res 4414 1995-09-29 I I I RESOLUTION NO. 4~L/ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL BEACH, CALIFORNIA DENYING THE APPEAL OF PACIFIC PAIN CONTROL AND UPHOLDING THE REVOCATION OF A MASSAGE ESTABLISHMENT PERMIT ,BY THE CHIEF OF POLICE THE CITY COUNCIL OF THE CITY OF SEAL BEACH, CALIFORNIA HEREBY FINDS, ORDERS, AND RESOLVES AS FOLLOWS: section 1: In November of 1994, Conrad Youngerman and Xi Sun Graham, aka Anna Xi Lee, applied for a Massage Establishment Permit from the city of Seal Beach. The application was filed pursuant to Chapter 12 of the Code to permit the operation of "Pacific Pain Control" (hereinafter npPC") at 550 Pacific Coast Highway, Suite 207, Seal Beach. In addition, Graham, Yon Hui Choi and Xwang Clooten applied for Massage Technician permits. The Massage Establishment Permit was granted thereafter. The City further granted Massage Technician Permits to Yon Hui Choi and Xwang Clooten. No other persons are permitted to perform massages at PPC. Ms. Graham's application for a massage technician permit was denied. Section 2: Chapter 12 of the Code of the city of Seal Beach regulates the business of providing massages in the City. The Code contains a comprehensive program of permit requirements and background checks for those who wish to engage in the massage business in the City. The Code requires separate permits, issued by the Chief of POlice, for both the business and for the "massage technicians" who actually provide massages at such establishments. The Code also establishes strict health, safety and welfare regulations which govern the conduct of massage technicians, massage establishment proprietors, and the patrons of such establishments. The underlying purpose of Chapter 12 is to promote the public health, safety, and welfare by ensuring that the citizens of Seal Beach are served only by legitimate massage establishments, and to prohibit the operation of unhealthy or disreputable massage establishments, or establishments which foster illegal activity. Section 3: On or about May 2, 1995, the Seal Beach Police Department received information from a person who wished to remain anonymous that possible prostitution activity was being conducted at PPC. Based upon that information, the Seal Beach Police Department conducted an investigation of PPC's activities. Said investigation included extensive surveillance of the business over time, visits to the business by undercover officers on May 24, 1995, May 31, 1995, and July 6, 1995, a review of City records, and interviews of PPC patrons. Section 4: As a result of the investigation, on July 12, 1995, Seal Beach Police Chief william stearns provided written notification to PPC co-owners Youngerman and Graham that he was revoking PPC's Massage Establishment Permit pursuant to section 12-13 of the Code of the City of Seal Beach. Chief Stearns informed the permittees in writing that said revocation was based upon his having received satisfactory evidence that the permittee has violated, or has permitted an employee, representative or agent to violate, provisions of Chapter 12 on two (2) separate occasions within a twelve (12) month period. Chief Stearns further informed the permittees in writing that the grounds for revocation involved immoral, improper, or otherwise objectionable conduct. Section 5: PPC has remained open for business pending a hearing regarding the Chief's decision. The City has taken no action to enforce the revocation pending a hearing. Resolution Number ~I'~ Section 6: Pursuant to sections 12-13(b) and 12-21 of the Code PPC filed a timely appeal of Chief Stearns decision through counsel, Joseph vodnoy. The hearing on appeal was originally noticed and scheduled for August 14, 1995, and rescheduled to August 29, 1995 to accommodate the travel schedule of counsel for PPC. Section 7: By letter and facsimile dated August 22, 1995, the City Attorney's office provided to counsel for PPC a specific list of forty four (44) separate violations of the Code on three separate dates which provided the grounds for Chief Stearns' decision to revoke the massage establishment permit. The list of violations was received by PPC's counsel one week prior to the hearing date. The City Attorney's office also supplied to counsel for PPC copies of police reports and copies of a videotape shot by officers at PPC on July 6, 1995. Section 8: Pursuant to Sections 12-21 and 12-22 of the Code, the City council held a duly noticed de novo hearing to consider PPC's appeal of Chief Stearns' decision on August 29, 1995, which was continued to August 31, 1995. At the hearing, PPC was represented by co-permittee Conrad Youngerman and counsel Joseph vodnoy. co-permittee Ms. Graham did not testify on PPC's behalf. According to her counsel, she was not willing to testify in support of the appeal because criminal charges were pending against her. Assistant City Attorney Craig Steele presented the case on behalf of the Police Department. Chief of Police William Stearns, Lieutenant Kenneth Mollohan, Detective Robert MUllins, and Officer Steven Bowles testified on behalf of the Police Department. Conrad Youngerman testified on behalf of PPC. All witnesses testified under oath. PPC's counsel was provided the opportunity to make evidentiary objections, to cross examine witnesses, to attempt to impeach witnesses, to introduce evidence to rebut the testimony of witnesses, and to submit evidence, both demonstrative and testimonial, points and authorities and argument on behalf of PPC. The hearing was transcribed by a certified court reporter, and written evidence was marked and accepted into the record. Section 9: At the commencement of the hearing counsel for PPC raised the following Objections. He claimed that (1) PPC was entitled to receive an "accusatory pleading" and received no formal notice of the "charges" against it until a week before the hearing; (2) It was unfair to conduct concurrent prosecution of administrative and criminal proceedings against an employee and a co-owner of PPc, resulting in decisions by those persons not to testify in the administrative proceeding; (3) PPC was entitled to discovery, including a "saliva swab" from an investigating officer and statements from civilian witnesses; (4) An appearance of conflict of interest existed because the city Attorney would be providing advice as to the Council's evidentiary rulings and the Assistant City Attorney would be presenting the case as a prosecutor; and (5) The hearing/appeal process denied PPC due process by not affording PPC a hearing prior to the determination by the Chief of Police to revoke the permit and by unfairly placing the burden of proof on the appellant. Counsel also filed a "demurrer to proceedings" based upon the alleged failure by the City to file and serve "an accusatory pleading." Section 10: At the commencement of the hearing, the Assistant City Attorney announced that certain violations observed at PPC by undercover officer # 390 on May 24, 1995, May 31. 1995, and July 6, 1995 were being withdrawn from the proceeding because Officer # 390 was not available to testify. Officer # 390 was not available to testify because his testimony in a public hearing would compromise his undercover status and continuing participation in another undercover investigation. In that PPC would not have an opportunity to confront and cross- examine Officer # 390, the evidence relating to Officer # 390's investigation was withdrawn and the City Council did not consider the evidence relating to Officer # 390's investigation. I I I I I I , .. . .~ 4#/# Resolution Number Section 11: After violations were withdrawn as described in Section 10, above, the city presented evidence at the de novo hearing that the following violations of Chapter 12 of the Seal Beach Code occurred on the dates indicated: 1. a. Mav 31, 1995 Seal Beach Municipal Code ("SBMC") S 12-9(a) Person acting as massage technician without valid technician's permit. 2. SBMC S 12-9(c) No list of available services and costs of services posted. 3. SBMC S 12-9(e) No written records of "treatments" kept on premises. 4. SBMC S 12-9(k) Massage technician not fully clothed; exposed her breasts. 5. SBMC S 12-9(0) Massage administered in room capable of being locked. 6. SBMC S 12-9(p) Locked exterior (rear) door. 7. SBMC S 12-9(q) Massage administered to patron who was not wearing clothes which fully covered the patron's genitals; employee removed patron's clothing. 8. SBMC S 12-9(q) Massage technician massaged patron's genital area. 9. SBMC S 12-9(r) Massage establishment open for business without a technician holding a valid permit on the premises. 10. SBMC S 12-18(a) Massage technician massaged patron's genital area. 11. SBMC S 12-18(b) Massage technician disrobed and was not fully clothed at all times on the premises. b. Ju1v 6, 1995 1. SBMC S 12-9(c) No list of available services and costs of services posted. 2. SBMC S 12-9(e) No written records of "treatments" kept on premises. 3. SBMC S 12-9(p) Locked exterior doors. 4. SBMC S 12-9(r) Massage establishment open for business without a technician holding a valid permit on the premises. 5. SBMC S 12-9(a) Person acting as massage technician without valid technician's permit (identified as permit applicant Chong suk Anderson). 6. SBMC S 12-9(0) Massage administered in room capable of being locked. section 12: The evidence received at the hearings, both written and oral, indicates the following: a. Chief William Stearns was kept fully apprised of the progress and results of the Seal Beach Police Department's investigation of PPC through the normal chain of command in the Seal Beach Police Department. Chief stearns testified that he received regular reports of the findings and observations of investigating officers from Detective Mullins and Resolution Number #JI/4' Lieutenant Mollohan. Chief stearns' testimony regarding his ongoing knowledge of the progress and results of the investigation was fully corroborated by Detective Mullins and Lieutenant Mollohan. b. Officer steven Bowles testified that he visited PPC in an undercover capacity while PPC was open for business on May 31, 1995 and personally observed the violations of the Seal Beach Municipal Code outlined in section 11(a)1 through 11, inclusive, of this Resolution. Officer Bowles' testimony was uncontroverted. PPC did not deny any of the violations to which Bowles testified. c. Officer Bowles, Lieutenant Mollohan and Detective Mullins all testified that Officer Bowles thoroughly briefed Mollohan and Mullins regarding Bowles' observations of violations of the Seal Beach Code at PPC on May 24, 1995 immediately upon Bowles' return to the Seal Beach Police after visiting PPC in an undercover capacity. Mullins testified that he personally asked Bowles whether Bowles specifically observed violations of each applicable subsection of Chapter 12. d. Bowles' observations of Code violations at PPC on May 31, 1995 were duly reported directly to Chief Stearns by Mullins and Mollohan. Chief Stearns considered said report to be satisfactory evidence of violations of Chapter 12 at PPC on May 31, 1995. Mullins testified that during his surveillance of PPC on May 31, 1995 he personally observed through binoculars that the rear exterior door of PPC was locked in violation of Seai Beach Municipal Code Section 12-9(p). Mullins observed that officers were prevented from entering PPC through that door because it was locked. Mullins' observation of a locked exterior door was confirmed by Bowles' testimony. Mullins observation of a locked exterior door at PPC on May 31, 1995 was uncontroverted and not denied by PPC. In fact, counsel for PPC and co-permittee Youngerman admitted that the rear exterior door was locked on July 6, 1995. e. f. Mullins testified that he reported his personal observation on May 31, 1995 of PPC's violation of Section 12-9(p) to Chief Stearns on or about that same date. Chief stearns considered said report of Mullins' personal observation to be satisfactory evidence of a violation of Chapter 12 at PPC on May 31, 1995. Officer Steven Bowles further testified that he visited PPC in an undercover capacity while PPC was open for business on July 6, 1995 and personally observed the violations of the Seal Beach Municipal Code outlined in Section 11(b)1 through 6, inclusive, of this Resolution. Officer Bowles' testimony was uncontroverted. PPC did not deny any of the violations to which Bowles testified. g. Officer Bowles, Lieutenant Mollohan and Detective Mullins all testified that Officer Bowles thoroughly briefed Mollohan and Mullins regarding Bowles' observations of violations of the Seal Beach Code at PPC on July 6, 1995 immediately upon Bowles' return to the Seal Beach Police after visiting PPC in an undercover capacity. i. Bowles' observations of Code violations at PPC on July 6, 1995 were duly reported directly to Chief h. I I I I Resolution Number ~/~ j. stearns by Mullins and Mollohan. Chief stearns considered said report to be satisfactory evidence of violations of Chapter 12 at PPC on July 6, 1995. Mollohan testified that he personally entered PPC on July 6, 1995 while PPC was open for business and personally observed the violations listed in Section 11(b) (1) through (4), inclusive, and (6). Mollohan's testimony was uncontroverted. PPC did not deny any of the violations to which Mollohan testified. Mollohan reported his observations of Code violations at PPC on July 6, 1995 to Chief stearns. Chief stearns considered said report to be satisfactory evidence of violations of Chapter 12 at PPC on July 6, 1995. I. Mullins testified that he personally entered PPC on July 6, 1995 while PPC was open for business and personally observed the violations listed in Section 11(b) (1) through (6), inclusive. Mullins further testified that during the course of his inspection he observed a locked massage room door, knocked on the door, heard the door being unlocked and met a PPC patron who was undressed and awaiting a massage. Mullins further testified that he personally observed that the rear exterior door to PPC was locked while PPC was open for business on July 6, 1995, in that he unlocked the door from the inside to provide access to the business for other officers. Mullins' testimony was uncontroverted. PPC did not deny any of the violations to which Mullins testified. k. Mullins further testified that in an unsolicited statement, co-permittee Graham admitted to him on July 6, 1995 that she gives massages at PPC. Mullins testified that he was aware at the time Graham made that admission that her application for a City of Seal Beach Massage Technician's permit had been denied, and that she was not a properly licensed massage technician and that her giving massages at PPC was a violation of section 12-9(a). n. Mullins further testified that Bowles identified Chong Suk Anderson as the person who had administered a massage to Bowles on July 6, 1995. Chong suk Anderson was personally known to Mullins on July 6, 1995 as an applicant for a city of Seal Beach Massage Technician's Permit, as Mullins had been conducting the required background check as of July 6, 1995. The massage administered to Bowles on July 6, 1995 by Anderson, a non-licensed technician, was in violation of section 12-9(a). Mullins reported his observations of Code violations at PPC on July 6, 1995, the admission by Graham, and the information known to him regarding applicant Anderson to Chief Stearns on July 6, 1995. Chief Stearns considered said report to be satisfactory evidence of violations of Chapter 12 at PPC on July 6, 1995. Co-permittee Youngerman testified that he was in possession of a copy of Chapter 12 of the Seal Beach Code and that he was familiar with the requirements for operating a massage establishment in Seal Beach. q. Co-permittee Youngerman admitted that the following Code violations were in existence at PPC on July 6, 1995: m. I o. I p. 1. SBMC S 12-9(c) No list of available services and costs of services posted. Resolution Number 4I~/~ r. 2. SBMC S 12-9(p) Locked exterior door. 3. SBMC S 12-9(0) Massage administered in room capable of being locked. Co-permittee Youngerman presented stacks of small cards at the hearing which were accepted into evidence. Youngerman testified that the cards were the "written records of treatments" required to be kept at massage establishments pursuant to Section 12-9(e). On cross- examination, Youngerman admitted that the cards presented did not contain the information required by Section 12-9(e) and that such "written records of treatments" were not kept for every patron of PPC. Dates on the cards presented as evidence indicate that a number of the cards were collected after July 6, 1995. Officer Bowles testified that he was not asked to complete any written record or card of any type, nor was he asked to provide any of the information required to be maintained in said records. I s. Chief Stearns testified that he believed the grounds for revocation listed above in Section 11(a) items 4, 7, 8, 10, 11 constituted conduct which is immoral. Chief Stearns further testified that he believed that each of the grounds for revocation listed above in Sections 11(a) and 11(b) constitute conduct which is improper. Section 13: All objections raised at the beginning of the hearing by attorney Vodnoy on behalf of PPC, and not previously ruled on by the city council, are hereby overruled. The city Council finds that counsel for PPC received formal notice of all grounds for revocation one week prior to the hearing, and that PPC received informal notice of violations as early as July 6, I 1995. The City Council further finds that the concurrent prosecution of administrative and criminal proceedings by separate governmental entities is not cause for continuance of the administrative hearing until such time the criminal charges are resolved. The city Council further finds that counsel for PPC was provided with relevant discovery in adequate time to prepare for the hearing. Discovery that was not timely provided to counsel was excluded from evidence during the hearing. The Council continued the hearing for two days prior to the beginning of PPC's case to allow PPC additional time to prepare its case. The City Council further finds that no actual conflict of interest occurred through the prosecution of the case by the Assistant City Attorney while the City Attorney advised the Council. The record of the hearing indicates that the City Attorney made no evidentiary rulings~ that the city Attorney provided only impartial evidentiary and procedural advice~ that the city Attorney advised the Council on numerous occasions to allow PPC to introduce any evidence its counsel deemed appropriate~ and that the city Council sustained a number of PPC's evidentiary objections, including an objection to the showing of an evidentiary videotape which was objected to by Mr. Vodnoy as being highly prejudicial, cumulative and irrelevant. with regard to PPC's objection that the Seal Beach Code denied PPC due process, The City Council finds that PPC's pre- deprivation right to notice and an opportunity to be heard has I been protected in this matter because no actual revocation of the Massage Establishment Permit has occurred pending the appeal hearing and PPC has remained open for business throughout the hearing process without any enforcement action by the City of Seal Beach. with regard to the burden of proof on appeal, PPC was afforded a full de novo hearing before the city Council, in which PPC was allowed the opportunity to present evidence on the broader issue of whether or not the violations alleged by the Chief of Police and other City witnesses actually occurred. PPC did not contradict the testimony of any witness presented by the City and did not deny that any of the violations existed. I I I Resolution Number 4J/ /~ Section 14: The City Council hereby overrules PPC's "demurrer to proceedings" on the ground that no accusatory pleading is required to be filed under the Code. Within the bounds of due process, the city has the authority and the right to establish its own procedure for administrative hearings. Section 15: Based upon the evidence presented at the hearings, both written and oral, the City Council hereby finds that the decision of the Chief of Police to revoke PPC's Massage Establishment Permit. was neither unreasonable, erroneous, nor otherwise an abuse of discretion. At the time he revoked the permit, Chief Stearns had satisfactory evidence that multiple violatiqns of. Chapter 12" of the Seal Beach Code had occurred at PPC on two. separate occasions, May 31, 1995 and July 6, 1995. Further, substantial evidence presented at the hearing indicates that multiple violations of Chapter 12 of the Code occurred at PPC on May 31, 1995 and July 6, 1995. The evidence was uncontroverted by PPC and none of the allegations was actually denied during the hearing. Section 16: Because Chief Stearns believed that some or all of the grounds for revocation constituted conduct which was immoral and/or improper, actual knowledge of the permittee is irrelevant. Notwithstanding that fact, the record of the hearing indicates that co-permittees Graham and Youngerman were aware of numerous violations at PPC. Section 17: On September 25, 1995, Joseph T. Vodnoy, counsel for PPC, Graham and Youngerman, requested that, instead of affirming the revocation, the city Council suspend the license for 60 days to provide PPC time to find new owners. In addition, Mr. Vodnoy submitted a letter, dated September 25, 1995, that requested the draft resolution presented to Mr. Vodnoy on September 22 be modified to state, inter alia: certain violations "have been corrected"; "the violations alleged did, in fact, occur"; "In the interest of justice the City Council overturns. the revocation and orders that the Massage Establishment Permit of PPC be suspended for sixty (60) days"; and "The City Council further orders that PPC submit to an inspection of its premises by the Chief of POlice, or his representative prior to reopening,..." In response to Mr. Vodnoy's request, the City Council continued this matter until September 29, 1995. After consideration of the request and letter, the Council hereby denies the request for modification but notes for the record that counsel has, once again, admitted that "the violations alleged did, in fact, occur." Section 18: Based upon the foregoing, the City Council hereby denies the appeal filed by PPC and upholds the revocation of the Massage Establishment Permit. PPC is hereby ordered to surrender its Massage Establishment Permit and to cease operations as a massage establishment within two (2) days of the date of this order. Section 19: The Chief of Police is hereby directed to cause a copy of this Resolution to be delivered to the permittees and posted at the business. The Chief of Police is further directed to enforce the terms of this Resolution. Section 20: The revocation is final upon the adoption of this Resolution. The time within which judicial review, if available, of this decision must be sought is governed by Section 1094.6 of the California Code of Civil Procedure and Section 1-13 of the Code of the City of Seal Beach, unless a shorter time is provided by other applicable law. Resolution Number ~~/~ PASSED, APPROVED and ADOPTED this 29th day of September, 1995 by the following vote: AYES, councllmemberL1,"" J;,~~tt,~~ NOES: Councilmembers ABSENT: Councilmembers I ATTEST: STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF SEAL BEACH ) I, Joanne M. Yeo, City Clerk of the City of Seal Beach, California do hereby certify that the ~oF~~ing resolution is the original copy 0 Resolution Number ~~~.on file in the office of the City I Cler lpassed, approved and adopted by the City ~il of the City al ea at a meeting thereof held on the ~ day of , 1995. -' I