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HomeMy WebLinkAboutA. Case No. CUP 08-433 - CITY OF PALM DESERT, Applicant CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT PLANNING COMMISSION STAFF REPORT REQUEST: REVOCATION OF AN EXISTING CONDITIONAL USE PERMIT (CUP) FOR A MASSAGE THERAPY ESTABLISHMENT WITHIN AN EXISTING OFFICE SUITE LOCATED AT 72-855 FRED WARING DRIVE, SUITE C-16. CASE NO. CUP 08-433. SUBMITTED BY: Kevin Swartz Assistant Planner APPLICANT: City of Palm Desert BUSINESS Lawrence M. Andrews OWNER: 82-746 Mt. Riley Drive Indio, CA 92203 PROPERTY Haven Management OWNER: 41-700 Corporate Way #D Palm Desert, CA 92260 DATE: August 3, 2010 CASE NO: CUP 08-433 CONTENTS: Draft Resolution Legal Notice Summary of Activity dated 11 February 2010 provided by the Palm Desert Police Department Letter from attorney Joseph T. Vodnoy dated 9 February 2010 Letter to Mr. Vodnoy from Lauri Aylaian, dated 10 February 2010 Report and Recommendation from Hearing Officer dated 5 May 2010 Recommendation That the Planning Commission adopt Resolution No. approving the findings and recommendation of the Hearing Officer to revoke existing CUP 08- 433 for AC Massage. Hearing Officer Recommendation At the February 16, 2010, Planning Commission meeting the Commission referred the matter to a Hearing Officer to provide the Planning Commission with a report for their Revocation AC Massage CUP 08-433 August 3, 2010 Page 2 of 3 action. On May 5, 2010, the Hearing Officer recommended that CUP 08-433 for AC Massage be permanently revoked. Executive Summary Approval of staff's recommendation to uphold the Hearing Officer's decision would revoke CUP 08-433 for AC Massage for noncompliance with the Palm Desert Municipal Code. Discussion On December 16, 2008, the Planning Commission approved Resolution No. 2423, which allowed AC Massage to operate within an existing office suite. As a part of the City's ongoing monitoring of massage establishments, the Police and Code Enforcement Departments routinely performed inspections at this location, along with undercover operations from March 2009 to December 2009. Attached is a summary of the activity that was provided by the Palm Desert Police Department dated December 21, 2009. Section 25.72.130 of the Palm Desert Municipal Code provides for revocation of a CUP by the Planning Commission upon receiving satisfactory evidence that the permittee has failed to comply with any applicable provision of the Palm Desert Municipal Code, including but not limited to the City's building, zoning and health regulations. The massage establishment fails to comply with all of the provisions of the municipal code, as defined by Palm Desert Municipal Code section 5.87.180(A), section 5.87.180(B) (4), and section 25.72.130, the forgoing constitutes grounds for revocation of CUP 08-433 for AC Massage Therapy, as the business has repeatedly failed to comply with all applicable laws and the approved conditions of approval. At the January 19, 2010, Planning Commission meeting, the Commission revoked CUP 08- 433. It was determined after the fact that sufficient public notice was not given. On February 16, 2010, the Planning Commission considered revocation of CUP 08-433. At the meeting the City Attorney requested that the Planning Commission refer the matter to a Hearing Officer. The Hearing Officer would hear the proposed revocation of CUP 08-433, and then provide the Planning Commission with a report for their action. On April 28, 2010, an evidentiary hearing was held at City Hall for AC Massage. Prior to the hearing date the Hearing Officer gave written notice to individuals located within 100 yards of the premises including, the applicant Mr. Andrews and his attorney Mr. Vodnoy notifying them of the hearing date. The City and the applicant stipulated that the notice was properly sent. Prior to the hearing each party provided the Hearing Officer with documents they wished to be reviewed. Copies were also provided to the other parties. In addition, the Hearing Officer also received three cd discs (two audio and one with pictures of the premises) from the Riverside County Sheriff's Office. The Hearing Officer reviewed all facts including the undercover officer's testimony, and the applicant's argument that the arrest was questionable. G:\Planning\Kevin Swartz\Word\AC Massage\PC report 8-3-10.doc Revocation AC Massage CUP 08-433 August 3, 2010 Page 3 of 3 The Hearing Officer did not find sufficient facts to conclude that AC Massage was operating as a house of prostitution. However, the Hearing Officer did find that during the uncover cover operation there was unlawful touching of the deputy. On May 5, 2010, the Hearing Officer found that the conduct performed is of sufficient importance to warrant the revocation of the CUP and Massage Establishment Permit for AC Massage. Approval of the Hearing Officer recommendation will uphold the revocation of CUP 08-433. Attached is a copy of the report with findings prepared by the Hearing Officer. The findings to justify the revocation of CUP 08-433 can be found in the attached resolution. Following the revocation of a CUP, no new application for the same or substantially the same conditional use on the same site can be filed within a one year period from the date of revocation. Conclusion At the February 16, 2010, Planning Commission meeting, the Commission referred the appeal to a Hearing Officer. On May 5, 2010, the Hearing Officer recommended that CUP 08-433 be revoked. Staff recommends that the Planning Commission uphold the Hearing Officer's decision, revoking CUP 08-433 for AC Massage, for noncompliance with the Palm Desert Municipal Code and due to miscellaneous code violations cited above. Fiscal Analysis The fiscal impact to the City associated with revocation of the massage establishment permit is negligible. Submittedit� By: Department • Kevin Swartz Lauri Aylaian Assistant Planner Director of Community Development G:\Planning\Kevin Swartz\Word\AC Massage\PC report 8-3-10.doc PLANNING COMMISSION RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT,CALIFORNIA, REVOKING EXISTING CONDITIONAL USE PERMIT CUP 08- 433 ALLOWING A MASSAGE THERAPY ESTABLISHMENT WITHIN AN EXISITNG OFFICE SUITE LOCATED AT 72-855 FRED WARING DRIVE, SUITE C-16. CASE NO. CUP 08-433 WHEREAS, on August 3, 2010, the Planning Commission of the City of Palm Desert, CA did hold a duly noticed public hearing to consider the revocation of Conditional Use Permit 08-433 because of illegal activity on premises and violation of the Palm Desert Municipal Code Section 25.72.130 and Section 5.90.150 and California State Law; and WHEREAS,the Planning Commission of the City of Palm Desert, California, did on December 16, 2008 approve Conditional Use Permit 08-433 for a massage therapy establishment located at 72- 855 Fred Waring Drive, Suite C-16; and WHEREAS, on April 28, 2010, an appeal by the applicant for revocation of CUP 08-433 was heard and reviewed by a Hearing Officer, and on May 5, 2010, the Hearing Officer recommended that the CUP for AC Massage be permanently revoked; and WHEREAS, at said public hearing, upon hearing and considering all testimony, documentary evidence, and arguments, if any, about which the persons desiring to be heard, said, the Planning Commission did find the following facts and reasons to exist to justify the revocation of CUP 08-433: 1. Palm Desert Municipal Code§25.72.130 provides that the Conditional Use Permit may be revoked if the permittee: a. Has failed to comply with any applicable provision of the Palm Desert Municipal Code, including, but not limited to, the City's building, zoning, and health regulations; b. Has failed to comply with any condition imposed by the Conditional Use Permit. 2. Palm Desert Municipal Code § 5.90.150(C) provides: It is unlawful for any massage therapist, any patron, or any other person present where massage therapy services are being offered or performed, to engage in any specified sexual activities. 3. Palm Desert Municipal Code section 5.87.100(B) provides: It is unlawful for any person owning, operating, or managing a massage establishment knowingly to cause, allow, or permit in or about such massage establishment any agent, employee or any other person under his control or supervision to permit acts in violation of Chapter 5.90, including, specifically, Section 5.90.140 (Therapists dress and identification) and Section 5.90.150 (Other prohibited activities). PLANNING COMMISSION RESOLUTION NO. 4. From March 2009 to December 2009 the Palm Desert Police Department received anonymous reporting parties indicating that employees of AC Massage Therapy were soliciting sex. 5. In May 2009, the Palm Desert Police Special Enforcement Team received information regarding suspicious activity at AC Massage. One of the businesses near AC Massage reported that there was an unusual amount of male patrons visiting the location at late hours in the evening. 6. In May 2009, a compliance check with Code Enforcement revealed that AC Massage was in violation of several municipal codes by not having their hours of operation posted, not displaying a list of services available, and having a lock on the door of one of the massage rooms. 7. In October 2009, members of the Palm Desert Special Enforcement Team assisted Code Enforcement with a monthly compliance check of massage establishments. AC Massage was out of compliance with municipal codes regarding their daily sign-in log. Code Enforcement noted the violation, but did not issue a citation. 8. In December 2009, members of the Palm Desert Special Enforcement Team received information from a citizen regarding suspicious activity at AC Massage.The citizen said that he/she was told not to go to AC Massage by the owners of a business located near the massage establishments. The neighboring business owners told the citizen that they had observed activity at the location indicating that prostitution might be occurring inside. 9. In December 2009, members of the Palm Desert Police Special Enforcement Team conducted an undercover operation at AC Massage. During the operation the undercover officer was solicited for illicit sexual acts and an arrest was made for prostitution. 10. The massage establishment has failed to comply with the provisions of the municipal code, as required by P.D.M.C. 25.72.130. NOW, THEREFORE, BE IT RESOLVED, by the Planning Commission of the City of Palm Desert, California, as follows: 1. That the above recitations are true and correct and constitute the findings of the Planning Commission in this case. 2. That Conditional Use Permit 08-433 is hereby revoked. PLANNING COMMISSION RESOLUTION NO. PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert Planning Commission held on 3rd day of August, 2010, by the following vote to wit: AYES: NOES: ABSENT: ABSTAIN: CONNOR M. LIMONT, Chairperson ATTEST: LAURI AYLAIAN, Secretary Palm Desert Planning Commission APPROVED AS TO FORM: DAVID J. ERWIN, City Attorney "^w I' ntIli 4jLsit `"'0 y" 73-510 1,R1u\X,vRIN(, 1)Rn-I. PALM [)I�F.R1,(.AI.11OR'.IA 92260-2576 •Mil IP,'r r r TEL:760 346-0611 Z ti r lAX:760 341-7096 4..ri in. i nlo(u pulnrdr,I_o.F CITY OF PALM DESERT LEGAL NOTICE CASE NO. CUP 08-433 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert Planning Commission to revoke an approved Conditional Use Permit for a massage therapy establishment within an existing office suite. The property is located at 72-855 Fred Waring Drive, Suite C-16. ___i , �r�r I eo arra^,may �— - rI i Q I I I a GLORIA_NA OR a o z c G W A r Vl _....�...._.. ._........_ 2 a.......FRED WARING DR .....,.... .. ,. . . FRED WARING DR.'^.'_._.....__ r c LL'C IrWrillpwa N UMW MEM ailli i _ 41111111M111.1 SONORA.D>� .= f 4I I Il ~ r Ysr O� 1 SIERRA VISTA 6V, [1 , ? V 1 TARS ICO OR y __ - r1 ^^ !` 1 �'^�-� v "Y RANCHO GRANDE / I' I-- HAHN RD 4 I ''Al m Active Layer City Pa Cl_.._..._._ _. _. 13ttft._.__ ___�.___ z 1 SAID public hearing will be held on Tuesday, August 3, 2010 at 6:00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project is available for review in the Department of Community Development at the above address between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the Planning Commission at, or prior to, the public hearing. PUBLISH: Desert Sun LAURI AYLAIAN, Secretary July 23, 2010 Palm Desert Planning Commission p•,M DE4 PALM DESERT POLICE 4. g�ER DEPARTMENT PO Served by the Riverside County Sheriff's Department Stanley Sniff, Sheriff- Coroner TO: John Wohlmuth, City Manager DATE: February 11, 2010 Lauri Aylaian, Director of Community Development FROM: Lieutenant Andrew Shouse SUBJECT: AC Massage— Summary of Activity SUMMARY OF ACTIVITY The following is a summary of reports of alleged prostitution activity occurring at AC Massage since March 2009: • March 2009 — The City of Palm Desert issued AC Massage a Massage Establishment Permit. • May 2009 — The Palm Desert Police Special Enforcement Team received second hand information regarding suspicious activity at AC Massage. One of the businesses near AC Massage reported that there was an unusual amount of male patrons visiting the location at late hours in the evening. • May 2009 — A compliance check with Code Enforcement revealed that AC Massage was in violation of several municipal codes by not listing services available, having a lock on the door to massage room #2 and by not having their hours of operation posted. • October 2009 — Members of the Palm Desert Special Enforcement Team assisted Code Enforcement with a monthly compliance check of massage establishments. AC Massage was out of compliance with municipal codes regarding to their daily sign-in log. Code Enforcement noted the violation, but did not issue a citation. • December 2009 — Members of the Palm Desert Special Enforcement Team received information from a citizen regarding suspicious activity at AC Massage. The citizen said that he/she was told not to go to AC Massage by the owners of a business located near the massage parlor. The neighboring business owners told the citizen that they had observed activity at the location indicating that prostitution might be occurring inside (File#T093440074). • December 2009 — Members of the Palm Desert Police Special Enforcement Team conducted an undercover operation at AC Massage. During the operation the undercover officer was solicited for illicit sexual acts and an arrest was made for prostitution (File #T093530037). 1 02/08/2010 14 : 18 FAX Cj002/003 JOSEPH T.VODNOY ATTORNEY AT LAW TELEPHONE: (213)893-7500 CERTIFIED SPECIALIST 316 WEST SECOND STREET (213)627-4701 CRIMINAL LAW SUITE 1200 FAX: (213)489-4700 LOS ANGELES,CALIFORNIA 90012 email:Attyivodnoy@gmail.com February 9, 2010 Lauri Aylaian, Secretary City of Palm Desert Planning Commission 73-510 Fred Waring Drive Palm Desert, California 92260 Re: Hearing re Conditional Use Permit Case No. CUP 08-433 Date of Hearing: February 16, 2010 TO THE MEMBERS OF THE PALM DESERT PLANNING COMMISSION: The staff report recommends revocation of the Conditional Use Permit previously granted to AC Massage on December 16,2008, for the following reasons: 1. From March through December of 2009,the Palm Desert Police Department received an unspecified number of anonymous complaints asserting that employees of the AC Massage were soliciting sex. 2. In May 2009,the Palm Desert Police Special Enforcement Team received information about an"unusual amount of male patrons." [We have no report regarding this second-hand information. Have you subpoenaed any witness to testify to this information?] 3. In May 2009,Code Enforcement reported a municipal code violation,to wit, the business name on the exterior of the building and the hours of operation were not posted. The staff report fails to mention that this situation has been corrected. 4. In October 2009, the Palm Desert Police Special Enforcement Team reported(but did not issue a citation) for the daily sign-in log. The business did have a sign-in log; however the log did not require that the patrons give their address. The sign-in log has since been updated and now requires the patron's address. 5. In December 2009,Palm Desert Special Enforcement Team reports information from a citizen. The citizen's information was apparently obtained by speaking to various nearby business owners who concluded that prostitution might be occurring at this location. [We have no report 02/09/2010 14 : 18 FAX F 003/003 Page 2 regarding this third-hand information. Have you subpoenaed any witness to testify to this information?] 6_. In December 2009, Palm Desert Police Special Enforcement Team states that an undercover officer was allegedly solicited for illicit sexual acts. We have not received any police reports (discovery)relative to this arrest. I am not informed as to whether or not formal charges have been brought or proven against the arrestee. Unproven charges arc not grounds to revoke any permit. All of these purported grounds for revocation of the conditional use permit are ambiguous and not supported by any police or incident reports which have been provided to the permit holder or his attorney. By way of this letter, 1 am formally requesting any and materials(discovery)that you have relative to the alleged incidents which give rise to this proposed revocation. Since this hearing is scheduled for February 16, 2010, I would ask that you contact my office immediately upon receipt of this letter to make arrangements to provide us with copies of any and all documents which support the allegations in the staff report. V ly yours H T. VODNOY cc: David J. Erwin, City Attorney John Jimenez Larry Andrews ............. CITY OF 1 OESE q r tip N 7 3--;10 FRFI WARN(, ORJ\E • PAl-yt OFtiFRT, Cv1Il RyIA 92260-257 8 M� SFr,. FEL: 760 346-0611 ~r?+� 'iia..:�� F.\V: 760 341-7098 inter+}>tlm-Lle,crt.urg 10 February 2010 Mr. Joseph T. Vodnoy Attorney at Law 316 West Second Street, Suite 1200 Los Angeles, CA 90012 RE: AC MASSAGE THERAPY CONDITIONAL USE PERMIT 08-433 Dear Mr. Vodnoy: This letter responds to your cdrrespondence on the same subject dated 9 February 2010. The following information is provided in response to your enumerated comments and questions; the numbers used here correspond to those in your letter. 2. The City has not subpoenaed any witnesses to testify as to the "unusual amount of male patrons" cited in the Palm Desert Police Department report. The Planning Commission is not a court of law, and does not subpoena parties or take testimony. The Planning Commission conducts properly noticed public hearings on issues concerning land use, and receives written and oral public comment on these issues by interested parties who are not under oath. 3. In May 2009, the Monthly Establishment Inspection Report noted that AC Massage did not post its hours of operation, had a lock on the door to Massage Room #2, and did not have a posted list of services available. No Notice of Violation was issued for these violations. When the next monthly inspection was conducted on 15 June 2009, no violations were found, and the Monthly Establishment Inspection Report indicates as much. Therefore, it's fair to say that the violations noted in May were corrected. Had they been found a second time, a Notice of Violation would have been issued. Copies of the Monthly Establishment Inspection Reports are being forwarded to you under separate cover by the City Clerk. 4. The 22 October 2009 Monthly Establishment Inspection Report noted that the appropriate sign-in log was not present, but the next report (dated 15 December 2009) showed no violations. Therefore, you are correct in noting that this violation had been corrected. As in Item #3 above, a Notice of Violation would likely have been issued if the violation had not been corrected by the time the next inspection was conducted. Mr. Joseph T. Vodnoy 10 February 2010 Page Two 5. As explained in Item #2 above, no witnesses have been or will be subpoenaed to come before the Planning Commission. 6. The arrest of a massage therapist at AC Massage for prostitution on the premises is sufficient grounds for revoking the Conditional Use Permit (CUP), since Palm Desert Municipal Code Section 25.72.130.A states that Any conditional use permit issued pursuant to the provisions of this title may be modified, discontinued, suspended or revoked by the planning commission upon receiving satisfactory evidence that the permittee, its agent(s), employee(s) or any person connected or associated with the permittee: (1) has failed to comply with any applicable provision of the Palm Desert Municipal Code, including but not limited to the city's building, zoning and health regulations... Since the solicitation is in violation of 5.90.150, Other Prohibited Activities, AC Massage's agent or employee has failed to comply with an applicable provision of the municipal code, which is grounds for revocation of the CUP. A public hearing before the Planning Commission does not have the same burden of proof as a court of law, and a conviction is not necessary to revoke the CUP. Under separate cover, you will be sent a copy of the staff report and the proposed Planning Commission resolution for this matter. Information relative to the police report(s) or the arrest of the massage therapist are available to the therapist's attorney through the discovery process. I suggest that you contact him or her if that matter is of interest to you. Sincerely, LAURI AYLAIAN DIRECTOR OF COMMUNITY DEVELOPMENT la copy: Diid J. Erwin, City Attorney V- evin Swartz, Assistant Planner Rachelle Klassen, City Clerk John Jimenez Larry Andrews CITY OF PRLfO DESERT 0 PMIMO GI IMO?MI 1 05/10/2010 07:52 7605E :'44 PATTERSON SIN- r I PAGE 02/09 REPORT AND RECOMMENDATION OF HEARING OFFICER May 5, 2010 STATNT OF THE CASE: This is an appeal by Mr. Lawrence Andrews, owner of AC Massage (located at 72-855 Fred Waring Dr. , Suite C16) from the City' s decision to revoke his Conditional Use Permit (CUP 08-433) and his Massage Establishment Permit (Permit No. 08-46021) . The City Council and the Planning Commission referred the matter to this hearing officer to conduct an evidentiary hearing and report back with findings and recommendations. PROCEDURAL ISSUES: 1 . I was supplied with a list of names of individuals located within 100 yards of the premises and I gave written notice to each of them notifying them of this hearing. The parties stipulated that such notice was properly sent in accordance with the law. 2 . Prior to the hearing each party provided me with documents they wished to be considered with copies to the other side. In addition, the I was given three cd discs (2 audio and one with pictures of the premises) from the Riverside County Sheriff' s Office. I reviewed all the documents including the discs. A list of all that material is attached to this report and identified as Exhibit A. 3. The evidentiary hearing was held at 10:30 am on April 28, 2010 at Palm Desert City Hall . The hearing lasted approximately one hour. FACTS PRESENTED TO THE HEARING OFFICER: A. A CUP was granted to Mr. Andrews on December 16, 2008; A Massage Establishment Permit was subsequently granted to Mr. Andrews . These were subject to the standard rules and conditions per the City Ordinance. 05/10/2010 07:52 760568c,,4'4 PATTERSON SINDuif PAGE 03/09 H. In accordance with those permits the business of AC Massage opened at that address in approximately February 2009. C. Within the first 10 months the business was inspected by City code enforcement officials on a monthly basis. On two occasions the business was cited for code violations and those violations were remedied quickly and completely. Those violations included not having an exterior sign, not posting a list of services, not posting the hours of operation, not taking the address of each of the customers, having a lock on one of the interior doors and several others. D. On December 19, 2009, having been informed by "anonymous informants" that AC Massage was involved in prostitution, the Riverside County Sheriff' s Department conducted a "sting" operation. An undercover officer (Deputy Bazanos) went in for a massage and submitted a report that stated, among other things, the following: That the massage therapist, Ling Ping Kong, in the course of giving a massage touched him repeatedly around the groin area and eventually, at his request, directly on his penis. Ling Ping Kong was arrested by the undercover team and, after being informed of her rights through a Chinese interpreter, was jailed and charged with prostitution. E. AC Massage was closed and the City sent Mr. Andrews a letter notifying him that his CUP and Massage License were revoked. Effective December 19, 2009 the business was closed and it has remained closed since. THE LEGAL ISSUES: Initially there was some difficulty obtaining copies of the three cd discs of the "sting" operation. The Appellant' s attorney requested that these discs be provided to him by the City. The City Attorney' s office did not have possession of the tapes and could not respond to the request in a timely manner. Those discs became available two days before the hearing when they were received from the District Attorney' s office by John Jiminez, Ling Ping Kong' s defense attorney, and circulated among the parties and the Hearing Officer. The Qttv' s Position: The Massage Establishment Permit should be permanently revoked because AC Massage violated several provisions of the Palm Desert Municipal Code (hereinafter "PDMC") . Those specific code sections are as follows: PDMC 5. 90. 150 (C) - unlawful for a massage therapist to engage in certain specified sexual acts; PDMC 5. 87. 100 and 5. 90 . 150 (A) - unlawful for a massage therapist to touch certain specified anatomical areas of a client. 05/10/2010 07:52 7605b0d 44 PATTERSON SINDONI PAGE 04/09 The City contends that the Conditional Use Permit should be revoked because one of the conditions of the CUP is that AC Massage obtain a Massage Establishment Permit. The argument is that when the Massage Establishment Permit has been revoked then the condition of the CUP has been violated and it must be revoked also. Appellant, Mr. Andrews' Position: Mr. Andrews argued that all evidence should be excluded as a sanction for the City' s failure to provide access to the audio tapes. If the evidence was excluded then the conclusion that these violations occurred is not proved. Even if the evidence was allowed there were many irregularities in the investigation and arrest that make the evidence questionable. Such irregularities included: The arresting officer went into the establishment holding a beer and was improperly drinking on the job; the officer and Ling Ping Kong did not communicate on the contract of prostitution because of the language difficulties (Ling Ping Kong speaks Chinese and very limited English) ; the officer was not present at the hearing for Mr. Andrews' attorney to cross examine about his report and declaration; there were several other logical contradictions in the cd discs that could be interpreted to indicate there was no offer of prostitution and no inappropriate touching of the officer. FINDINGS OF FACT: I find as follows: 1. AC Massage was in substantial compliance with the City Ordinance from the time it began operation until the arrest of Ling Ping Kong on December 19, 2009. I do not find that the citations issued by the City in May and October -- and immediately corrected by AC Massage - constitute sufficient grounds for the revocation of the Massage License and the Conditional Use Permit. 2. Based on the evidence submitted I cannot find sufficient facts to conclude that AC Massage was operating as a house of prostitution. 3. I do find, however, that during the massage administered to Deputy Bazanos by Ling Ping Kong on December 19, 2009 that there was an unlawful touching of Deputy Bazanos' genital area and engaging in specified sexual activity in violation of City Code sections referred to above. It was within the ability of Mr. Andrews to provide evidence that such activity and such touching did not occur but no such evidence was presented. With the exception of a general denial that anything inappropriate had happened which was made by Ling Ping Kong in the police interview ) 05/10/2010 07:52 7605680,44 PATTERSON SINDOI) PAGE 05/09 immediately following the arrest - the testimony of Deputy ]3azanos is uncontradicted. 4 . I find that the essence of this conduct is of sufficient importance to warrant the revocation of the Massage License and Conditional Use Permit . RECOMMENDATION TO THE CITY COUNCIL AND PLANNING COMMISSION: It is the recommendation of the Hearing Officer "that the Massage License and Conditional Use Permit be permanently revoked. RESPECTFULLY SUB ITTED, COP JEFFERY S. R. PATTERSON HEARING OFFICER 05f 10/2010 07:52 7605E . - 44 PATTERSON SIN I PAGE 0.6/09 Documents and Exhibits reviewed and considered by Hearing Officer,JEFFERY S.R. PATTERSON, in the matter of THE CITY OF PALM DESERT V.AC MASSAGE 1. The item marked "Exhibit A", which is a copy of the City of Palm Desert Notice of Violation dated December 19, 2009. 2. The item marked "Exhibit B", which is a color picture(8 %x 11)of a Bud Light can of beer. 3. The item marked(en globo) "Exhibit C", which are copies of the City of Palm Desert- Massage Establishment Inspection(6 inspections), dated May 7, 2009,June 9, 2009, July 17, 2009,August 5,2009,October 22, 2009 and December 16, 2009. 4. The item marked"Exhibit D", which is a copy of the letter from attorney Stacey P. Shalhoub,dated December 21,2009. 5. A copy of the letter from Hearing Officer Jeffery S. R. Patterson to Joseph T. Vodnoy, Esq., Stacey Shalhoub,Esq., John Jiminez,Esq, dated April 7, 2010. 6. The letter from Joseph T. Vodnoy, Esq. to Hearing Officer Jeffery S.R. Patterson, dated April 19, 2010. 7. An e-mail from Stacey Shalhoub, Esq. to Hearing Officer Jeffery S. R.Patterson, dated April 1, 2010. 8. An e-mail from Stacey Shalhoub, Esq. to Hearing Officer Jeffery S.R. Patterson, dated April 5, 2010. 9. The letter from Joseph T. Vodnoy, Esq. to David Erwin, Esq., Stacey Shalhoub, Esq, and Hearing Officer Jeffery S. R. Patterson,Esq. dated April 14, 2010. 10. A copy of the letter from Stacey Shalhoub,.Esq. to Joseph T. Vodnoy, Esq. dated April 15,2010. 1 1. Two letters from Stacey Shalhoub, Esq. to Hearing Officer Jeffery S. R. Patterson, both dated April 16,2010. 12. A copy of the letter from John Jiminez, Esq. to Stacey Shalhoub, Esq., Joseph T. Vodnoy, Esq., and Hearing Officer Jeffery S. R. Patterson,dated April 20, 2010. 13. The letter to Joseph Vodnoy, Esq. from Hearing Officer Jeffery S. R. Patterson, dated April 20, 2010. 14. A copy of the letter from Joseph T. Vodnoy, Esq., to Hearing Officer Jeffery S. R. 05/10/2010 07:52 760568L, " 4 PATTERSON SINDurii PAGE ' 07/09 Patterson, David Erwin and Stacey Shalhoub, Esq., dated April 26, 2010. 15. A copy of the fax from Hearing Officer Jeffery S. R. Patterson to Joseph T. Vodnoy, Esq., and Stacey Shalhoub, Esq. dated April 27, 2010. 16. A copy of Joseph T. Vodnoy's BRIEF IN OPPOSITION OF DENIAL OF APPEAL dated April 23, 2010. 17. A copy of David J. Erwin's BRIEF IN SUPPORT OF DENIAL OF APPEAL OF AC MASSAGE dated April 15, 2010. 18. A copy of the City of Palm Desert Massage Establishment Application completed by Lawrence M. Andrews,dated February 4, 2009. 19. A copy of the City of Palm Desert Request for Release of Employment Information, dated February 4, 2009. 20. A copy of the Request for Live Scan Service,dated January 23,2009. 21. A copy of the passport of. Lawrence Michael Andrews. 22. A notarized copy of a statement prepared by Judith Haven,Agent for Mesa Office Center, dated January 30, 2009. 23. A copy of the Planning Commission Meeting Notice of Action,dated December 17, 2009 together with a copy of the Planning Commission Resolution No. 2493. 24. A copy of the Standard Industrial/Commmercial Multi-Tenant Lease-Net Air Commercial Real.Estate Association. 25. Copies of the letters(en globo)submitted to the City of Palm Desert(for use as a character references)from Carlos Marin,Eloise Crawford,Jose Vasquez, George Yu, and Henry Leong. 26. A copy of the Business License Application submitted by Lawrence M.Andrews,dated February 4, 2009. 27. A copy of the Certificate of Use submitted by Lawrence M. Andrews,dated January 31, 2009 and signed February 4, 2009. 28. A copy of the Certificate of Completion dated November 3, 2006 awarded to Larry Andrews. 29. A copy of the U.S. Department of Justice certificate of completion of the FBI Citizens' Academy awarded to Larry Andrews. 05/10/2010 07: 52 760E J744 PATTERSON SIivLONI PAGE 08/09 • 30. A copy of Larry Andrews' Community Patrol Volunteer identification card. 31. A copy of the Certificate of Recognition from the Community Police Academy, dated December 11, 1998 awarded to Larry Andrews . 32. A copy of the Certificate of Appreciation from the City of Los Angeles dated January 24, 2004 awarded to Larry Andrews. 33. A copy of.the Commendation from the City of Los Angeles to Larry Andrews, dated May 18, 2001. 34. A copy of the Certificate of Appreciation from the City of Los Angeles to Larry Andrews, dated June 3, 2005. 35. A copy of the Certificate of Appreciation from the City of Los Angeles to Larry Andrews, dated February 24, 2007. 36. A copy of the Certificate of Congratulations from the City of Los Angeles to Larry Andrews, dated May 18,2007. 37. A copy of the Certificate of Congratulations from the City of Los Angeles to Larry Andrews, dated May 21,2004. 38. A copy of the Incident Report dated March 11,2009 (3 pages). 39. A copy of the Certificate of Closure(2 actual certificates)issued by the City of Palm Desert, dated January 31, 2010. 40. A copy of the Conditional Use Permit Application submitted by Lawrence M. Andrews dated November 3, 2008. 41. A copy of the City of Palm Desert Department of Community Development STAFF REPORT dated February 11, 2010. 42. A copy of the City Council Resolution No. 2010-9, dated February 11, 2010. 43. A copy of the Palm Desert Police Department SUMMARY OF ACTIVITY report dated December 21, 2009, submitted by Lieutenant Andrew Shouse. 44. A copy of the Application to Appeal dated December 21,2009. 45. A copy of the Treasurer's Receipt dated December 30,2009. 46. A copy of the letter from John Jiminez, Esq. to the City of Palm Desert, dated December 29, 2009. 05/10/2010 07: 52 7605681 ; .4 PATTERSON SINDupfi PAGE 09/09 47. A copy of the City of, Palm Desert Department of Community Development STAFF REPORT dated February 16, 2010. 48. A copy of the Palm Desert Police Department SUMMARY OF ACTIVITY report dated February 11, 2010, submitted by Lieutenant Andrew Shouse. 49. A copy of the letter from Joseph T. Vodnoy, Esq. to Lauri Aylaian, Secretary to the City of Palm Desert Planning Commission, dated February 9, 2010. 50. A copy of the letter from the City of Palm Desert(Lauri Aylaian)to Joseph T. Vodnoy, Esq.,dated February 10, 2010. 51. A copy of the replacement City Council Resolution No. 2010-9, dated February 11, 2010. 52. A copy of the fax from Joseph T. Vodnoy,Esq. to the City of Palm Desert(Ms. Klassen), dated February 8, 2010. 53. A copy of the DECLARATION OF LAURI AYLAIAN dated March 31,2010. 54. A copy of the DECLARATION OF DEPUTY NICHOLAS BAZANOS, dated March. 11, 2010. 55. A letter from Joseph T. Vodnoy, Esq. to David Erwin, Esq., Stacey Shalhoub, Esq., and Hearing Officer Jeffery S. R. Patterson, dated April 26, 2010. 56. 2 audio CDs and 1 photo CD in the Ling Ping Kong's criminal case. 57. A copy of the transcript from the hearing held on April 28, 2010,