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HomeMy WebLinkAboutA. Case No. CUP 08-433 - Lawrence M. Andrews / Haven Management CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT 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: 13433 E. Valley Blvd. Industry, CA 91746 PROPERTY Haven Management OWNER: 41-700 Corporate Way#D Palm Desert, CA 92260 CASE NO. CUP 08-433 DATE: February 16, 2010 I. EXECUTIVE SUMMARY: Approval of staff's recommendation would revoke an existing Conditional Use Permit for AC Massage Therapy located at 72-855 Fred Waring Drive, Suite C-16 for noncompliance with the Palm Desert Municipal Code. II. BACKGROUND/ANALYSIS: On December 16, 2008, the Planning Commission approved Resolution No. 2423, which allowed AC Massage Therapy 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 the Palm Desert Police Department received anonymous reports from parties indicating that employees of AC Massage were soliciting sex. In 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 number of male patrons visiting the location at late hours in the evening. In May 2009 a routine compliance check performed by Code Enforcement revealed that AC Massage was in violation of several municipal codes by not having their Staff Report CUP 08-433 February 16, 2010 Page 2 of 2 hours of operation posted, not displaying a list of services available, and having a lock on the door of one of the massage rooms. In December 2009, members of the Palm Desert Special Enforcement Team received information from a citizen regarding suspicious activity at AC Massage. The citizen 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. As a follow up to the citizen complaint 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. Attached is a summary of the activity that was provided by the Palm Desert Police Department on dated December 21, 2009. The massage establishment fails to comply with all of the provisions of the municipal code, as defined by P.D.M.C. 5.90.170. Per Palm Desert Municipal Code section 5.87.180(A) and section 5.87.180(B) (4), the forgoing constitutes grounds for revocation of the Massage Establishment Permit for AC Massage Therapy, as the business has repeatedly failed to comply with all applicable laws. The findings to justify the revocation of CUP 08-433 can be found in the attached resolution. Following the revocation of a Conditional Use Permit, 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. III. RECOMMENDATION: Staff recommends that the Planning Commission adopt the findings and Planning Commission Resolution No. revoking CUP 08-433. IV. ATTACHMENTS: A. Draft Resolution B. Legal Notice C. Summary of Activity dated 11 February 2010 provided by the Palm Desert Police Department D. Letter from attorney Joseph T. Vodnoy dated 9 February 2010 E. Letter to Mr. Vodnoy from Lauri Aylaian, dated 10 February 2010 Submitted by: Department Head: - )(..7 Kevin Swartz, Assistant Planner Lauri Aylaian Director of Community Development G:\Planning\Kevin Swartz\Word\AC Massage\revoking CUP 08-433,AC massage.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,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; WHEREAS, on February 16, 2010,the Planning Commission of the City of Palm Desert, California, did hold a duly noticed public hearing to consider the revocation of CUP 08-433 because of illegal activity on premises, i.e. solicitation for sex, and violation of the Palm Desert Municipal Code 5.90.150 and California State law; 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). 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. PLANNING COMMISSION RESOLUTION NO. 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. PASSED, APPROVED AND ADOPTED at a regular meeting of the Palm Desert Planning Commission held on 16th day of February, 2010, by the following vote to wit: AYES: NOES: ABSENT: ABSTAIN: CONNOR LIMONT, Chairperson ATTEST: LAURI AYLAIAN, Secretary Palm Desert Planning Commission APPROVED AS TO FORM: DAVID J. ERWIN, City Attorney CIJY OF P lT CESE ro+3',ti ;: 73-51 o Hon W\I(lN( D I\} Pm Dr>rRI,CAI IIoltNI:\9226o._,578 R�`. r. , TEL:760 346-43611 IA\:760 341-7098 •1v........ .ntuw palm-drscrt.,,rg 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. �rsra aoNrrA —� GLOR/A.NA DR foZi a O o 2 W A yy , 1 .. . .. ,..,>..__. ._........_.�.___. FRED WARING DR z FRED WARING DR, ... ..... }j} Lf LL y IIIII v 1 A ,. SONORA DR I z,,,,q- AM ! SIERRA VISTA `P`' I ? N- `-- TAMPICO OR I i — RANCHO GRANDE i —HAHN RD r 1 [._ g [Active,Layer`City Pamela; Q1 1311ft I SAID public hearing will be held on Tuesday, February 16, 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 February 5, 2010 Palm Desert Planning Commission i PALM DESERT POLICE A DEPARTMENT ¢�p„g Served btyyy the Riverside County Sheriffs 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 02/09/2010 14: 18 FAX Cj 002/003 JOSEPH T.VODNOY ATTORNEY AT LAW TEL (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 Aayjvodnoy t@gmaiLcom 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: I. 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 Id 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 lit 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 are 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,I 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 PAL 1l DESERT 1 44j 1► 73-510 FRED WARING, DRIVE PALM DF�ERT, CALIFORMIA 92260-2778 - • TEL: 760 346-0611 nl FAX: 760 341-7098 u.. ;j ;� intota palm-desert.org 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 correspondence 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: Dptid J. Erwin, City Attorney evin Swartz, Assistant Planner Rachelle Klassen, City Clerk John Jimenez Larry Andrews CITY Of PRIIO DESERT 0 IMO 011 IF(1ttMO PAMI