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HomeMy WebLinkAboutCC Min 1995-09-29 9-27-95 / 9-29-95 Attest: C~p IClerk and ex-off~c~o c~y of Seal Beach the Approved: I Seal Beach, California September 29, 1995 The city Council of the City of Seal Beach met in regular adjourned session at 9:15 a.m. with Mayor Hastings calling the meeting to order. ROLL CALL Present: Mayor Hastings Councilmembers Brown, Doane, Forsythe, Laszlo Absent: None I Also present: Mr. Barrow, city Attorney Mrs. Yeo, City Clerk APPROVAL OF AGENDA . Forsythe moved, second by Brown, to approve the order of the agenda as presented. AYES: NOES: Brown, Doane, Forsythe, Hastings, Laszlo None Motion carried ORAL COMMUNICATIONS There were no Oral Communications. CLOSED SESSION It was the order of the Chair, with consent of the Council, to adjourn to Closed Session to discuss the two items identified on the agenda, Public Employee Employment/Performance Evaluation, City Manager, Assistant to the City Manager, Director of Community Services, Recreation Director pursuant to Government Code Section 54957, and pursuant to Government Code Section 54956.9(b), a conference with legal counsel with regard to anticipated litigation, Pacific Pain Control, and proposed Resolution Number 4414. By unanimous consent, the Council adjourned to Closed Session at 9:17 a.m. The Council reconvened at 1:21 p.m. with Mayor Hastings calling the meeting to order. The city Attorney reported that the Council had met in Closed Session to discuss the items identified on the agenda, they will return to Closed Session at the conclusion of considering the item continued from the September 25th meeting, as requested by the applicant and granted by the Council, draft Resolution Number 4414 containing a new Section 17, a copy of which has been provided to the attorney for the appellant. Mr. Joseph Vodnoy, attorney for the I I I I 9-29-95 appellant, said he wished to address the way section 17 was written, written as if he had acknowledged that the place should be closed and as if the violations. have occurred, stating that what he presented, which is the normal situation in any litigation, potential litigation, or any kind of give and take, is an alternate presentation intended only to suggest that, assuming that the violations occurred, that a suspension would be in order, it was not intended by him in any way shape or form to admit the violations. He pointed out that since last meeting the cases have been dismissed by the District Attorney's office against the two females, stating that is really the foundation, as he would assume that the City would not revoke a business because a door may have been locked on some occasions, therefore he would assume that the gravamen of the offenses as such relate to the alleged sexual misconduct in the location, and pointed out that having evaluated the case by the Westminster District Attorney's office, that office declined to prosecute, this is not talking about going to trial or having a jury convinced beyond a reasonable doubt, this a decision made by the charging administration, the District Attorney's office, to not even prosecute, which has occurred since the last meeting, he had heard that was in the wind yet he did not want to represent that until it happened, and he believed it actually happened Monday of this week when he went to court. In addition to that he said the point he was trying to make, briefly, this is a situation where the police did not come in, or someone from the City, and say to Mr. Youngerman that here is a list of things you are doing wrong, correct them, and we will be back in a month or two weeks or so on, stating that when they red tag a building, or you want to do something, or you have a fire inspection or a County Health inspection, they come out and say this is what is wrong and unless you correct them we will close you down, which he said seems to involve due process and an appropriate way to do it, in other words notify him and say this is what you are doing wrong, correct it and make the changes, and claimed this was not done in this case, this was a situation, again to repeat, the only notice they got was a revocation notice without even being told precisely what it was it was being revoked for, so the contest of this matter from the start to the end of this case. Finally, his point with regard to money to burn is simply that it was very interesting to hear the gentleman get up and talk at the meeting about all of the volunteers who are giving of their time and effort to build the police station and the taking in of $200 here and $300 there to assist in that, and that he had said before that man that unless the City has money to burn there should be a way to resolve this which would accommodate the city in that it wants the place closed under the present administration or owners while at the same time avoiding his running into the court in Westminster. He said if the city has the Attorney on retainer, no matter how much work he does and he doesn't charge the city any extra, then his point is not well taken at all, but if he charges the City like every other law firm he knows of in this city and country for work that is done then he doesn't know why the City is taking in $20, 50 and $100 for the pOlice station and throwing thousands out on unnecessary litigation, and it is likely the public would not understand what he was driving at but it is thought the Council does, therefore what he was suggesting by his proposition, is for a suspension. ' He added that unless the city is taking the position that there could never be an acupressure establishment in Seal Beach, unless the position is that no matter who owns it, it shouldn't be here, that is one thing and he understands that, it may be a violation of due process but at least he understands the reasoning that the City does not want that kind of business here, on the other hand if the position is that the City does not like these owners because they did X, Y and Z and these things happened, whether they did or not, however he was 9-29-95 unable to put on a defense because of the Fifth Amendment Rights, as one recalls he raised that issue with the Mayor and city council and asked for a postponement so that it would be known which way the case went, and of course it went his way. Mr. Vadnoy said the bottom line is that his proposal, and the Council should think about it seriously, resolves the problem, I it takes care of the problem, it closes the business, it can be closed two days from now or whatever, on a voluntary suspension with the understanding that they will be allowed, or whoever the new owner is, will be allowed to process an application, processed in good faith by the Police Department and the various city agencies, and he would give sixty days because he felt that would be enough time to have the Department of Justice review the background in terms of pOlice, etc., and they would do this next week, in other words the place would close so that the problem is solved, the Council does not have to rule on the Resolution as such, and he would be willing to do the following, close the place voluntarily without the City Council doing anything and the Council agreeing to postpone for sixty days any decision on this, otherwise all that the Council is inviting him to do the first part of next week is to be at westminster in Superior Court filing a writ, the City is going to answer, he will have to respond, and the bills are going to start piling up like the Council has never seen, as a matter of fact the City may have had just a brief indication of what the bills are if the Council saw the bill just for the transcript for these proceedings, they should have been staggering unless the City got a special deal from Kennedy, they are generally a couple dollars a page or more. He suggested that rather than have needless litigation, and maybe he was arguing against his own position in a sense as a lawyer, the more hours the better, he I was simply pointing out to the Council that he was trying to do what is right for the client, now what is right for the client in his opinion is to voluntarily close the business, put the vote off for sixty days with the understanding that everybody will make a good faith effort to have brand new owners in and so forth, and one of the things he would be bringing back in front of the Council is the door business, the locked back door, which he said he thought should be a modification and asked that that be placed on calendar so that would not be grounds for a next dismissal, clearly, if the new owners have people there that are giving massages that don't have licenses that is a violation and so on. So, it seemed to him that rather than engage in needless and expensive litigation he has tried to hold out the olive branch in every way he can, not only to save his present client the cost and expense of his filing the writ, but saving the City the cost and expense while accomplishing the same thing, stating that the only thing he is getting from this, because he is suggesting the place close either way, the only thing he is getting from this is a sort of agreement by the City Council and the city, as you represent, that the new owner will get a fair shake and not have roadblocks put in front of him, yet if the City Council's position is that they don't care if Mother Theresa wanted to open up an acupressure place, there is no room for that in this city, then he is wasting his time and there is no olive branch that can ever be presented. The bottom line I with respect to paragraph seventeen is that it is very misleading because it was done in a manner of compromise, in civil law any kind of plea negotiations or settlement negotiations are not admissible at the trial, you can't go into court and say the man offered $100,000, you wouldn't take it and you want a million from him, that is completely improper, and so to take his words out of context is also, he thought, improper, so he objects strenuously to seventeen because it completely misstates his position as he was trying to resolve the case, not to acknowledge any violations. He said bottom line he did not know what was in the Council's hearts and minds, he was trying I I I 9-29-95 to resolve the problem in a way that would benefit his client in a sense that at least he would be able to sell a viable business that is not revoked, I am not coming out the closet by telling you what our thinking is, at least he has a business to sell as opposed to a lawsuit, on the other side of the coin it solves the City's problem because the place is closed, will be closed, and will continue to be closed for sixty days at least, and if a good faith effort is made by the City maybe another thirty days for ninety days, simply saying that he would like to have the business sold at least as a business, there will be new owners, new people, new technicians, and everything will be done right, the only thing he would be bringing back to the Board, to the Council, is the issue of locked doors in the back, etc. for modification. Taking all that into consideration he was aSking the Council not to waste taxpayers money in this era where dollars are scarce, relying on what the gentleman said, he did not remember his name, who talked about needing help to build a police station. Mayor Hastings asked for clarification, if this is a proposal to have the Council wait for two months then entertain the issue of the revocation at that time. The City Attorney responded that Mr. Vodnoy did asked for a suspension for sixty.days in his communication of September 25th, this somewhat of a nuance to that letter, suggesting that no action be taken this date, they will voluntarily close the business so there will be no blemish on their record. He advised also that under the City Code an action needs to be taken within thirty days from the close of the hearing which was August 31st, thus some type of action needs to be taken this date. The City Attorney stated his belief that Mr. Vodnoy understands that this type of permit is not transferrable, a new owner would need to go through the entire process, again under the Code the Chief of Police has sixty days to review and process an application, his understanding of Mr. Vodnoy is that he is not committed to the sixty day concept, in other words the process could take sixty days from the time an application is submitted. Mr. Vodnoy responded in the affirmative, the sixty days based upon the process time, stated his belief that if an action is taken to postpone he would consider that as taking an action, his intent is not to finesse the Council with some trick technicality, rather, offering alternatives to litigation, if the Council loves litigation then they would not like the alternatives, if the Council does not love litigation it is felt that then this could be worked out, acknowledging that a new owner has to come in and must be approved by the Chief of pOlice, and if it takes two weeks to get an owner it will obviously be sixty days from then, it will probably not only take some time to get a new owner but his hope is to also guide the new owner through this himself. The City Attorney pointed out there is also the issue of the massage technicians, two people had been issued licenses and they reapplied for renewal, those two applications have been pending during this proceeding, and only persons licensed by the City may be a massage technician in Seal Beach, that is an issue that will need to be dealt with in the event of a new owner in that one of the problems in the past is that the persons giving massages were unlicensed, any new owner must comply with all of the city's requirements. Mr. Vodnoy said even though he could not represent that he would be the lawyer for the new owner, he would certainly attempt to make sure that everything is done correctly, including the technicians, there is no point in doing all of this and opening a business and have someone off the street giving massage and then be closed again, that he was only intending to bring back to the Council the locked door issue. At the request of Council, the city Attorney advised that the Council had the option of adopting the draft Resolution as presented or as modified, to amend the Resolution for a 9-29-95 suspension, and noted that he had not researched whether no action would be considered to be an action within the meaning of the Code, also advised that the council would have the option of discussing this matter further in Closed Session since it is specifically listed on the agenda. It was the consensus of the Council to discuss this item further I in Closed Session, and by unanimous consent, the Council adjourned to Closed Session at 1:43 p.m. The Council reconvened .at 1:53 p.m. with Mayor Hastings calling the meeting to order. The city Attorney reported that the Council had met in Closed Session pursuant to Government Code Section 54956.9(b) to discuss the item identified on the agenda, took ~o action in the Closed Session and has reconvened in open session. RESOLUTION NUMBER 4414 - DENYING APPEAL - PACIFIC PAIN CONTROL - REVOCATION OF MASSAGE ESTABLISHMENT PERMIT Resolution Number 4414 was presented to Council entitled "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." By unanimous consent, full reading of Resolution Number 4414 was waived. Forsythe moved, second by Hastings, to adopt Resolution Number 4414 as presented. AYES: NOES: Brown, Doane, Forsythe, Hastings, Laszlo None Motion carried The City Attorney advised Mr. Vodnoy that a signed copy of the Resolution would be forwarded to him on behalf of his client. By unanimous consent, the Council again adjourned to Closed Session to discuss further the other Closed Session items listed on the agenda. By unanimous consent, the Council adjourned to Closed Session at 1:55 p.m. The Council reconvened at 3:14 p.m. with Mayor Hastings calling the meeting to order. The City Attorney reported the Council had discussed the employee items listed on the agenda, the Council gave direction to the Acting Interim City Manager and the City Attorney, and no other action was taken. I ADJOURNMENT It was the order of the Chair, with consent of the Council, to adjourn the meeting until Friday, October 6th at 9:30 a.m. to continue interviews for the position of Seal Beach City Manager. By unanimous consent, the me iRq was adjourned at 3:16 p.m. ) , i I Clerk an ex-off~c~ of Seal Beach the Approved: I' Attest: