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HomeMy WebLinkAboutSupptl Info-Vodnoy Brief Mendoza, Grace From: Joseph Vodnoy[attyjvodnoy@gmail.com] Sent: Wednesday, May 26, 2010 4:51 PM To: Mendoza, Grace Subject: [NEWSENDER] -AC Massage/Revocation of Business License Attachments: RECONSIDERATION OF HRG OFCR DECISION.pdf Gracie: Thank you for your call. Will you please distribute copies of the attached paperwork to the city council members? Thank you. LAW OFFICE OF JOSEPH T. VODNOY � �, ._::J C..! �� _� �_'" _..xw «��, , _.� .t'',...1 � j-`�.� �.,1� 4il fTl.'v'....,�..� (:�1�:r-_...,. � r,?�.:,.a �. ' . — 4�;� C.J'1 "Pl .. ;�7-*� C� r'n �D �,i 1 . . .:...�:h. \ �i � � I f)` (1 f-. � ' i.i �L.1 � C J�C. C_ " � �� lntr y_ ' _}� f , �„ . . :�c LAW OF ICES�O F 0 EPHiT4VODNOY 2R f D��� 2� P� 5• O Q 316 W. 2°d St., Ste. 1200 Los Angeles, California 90012 Telephone: (213) 893-7500 Facsimile: (213)489-4700 Attorney for Appellant/Permitee � AC MASSAGE � � i i I In the Matter of the Appeal of j i AC MASSAGE to the Revocation of ARGUMENTS IN SUPPORT OF i Conditional Use Permit and Massage PERMITEE'S REQUEST FOR � Establishment 1'ernut by the CITY OF RECONSIDERATION OF THE HEA.RIl�TG PALM DESERT OFFICER'S DECISION � � I I PRELIMINAR.Y STATEMENT AC Massage is a business previously operating a massage establishment at 72$55 Fred Waring � I Dr., Ste. C 16 in the Ciiy of Pa1m Desert under a Massage Establishmenfi Permit in accordance with Palm Desert Municipal Code("PDMC") §5.87(the"Permit")and a Conditional Use Permit in � accordance with PDMC§25.72(the"CUP"). The Permit and CUP were revoked by the Palm Desert 1 'i City Manager and Permit Administrator in December 2009 and the revocation was subsequently i i upheld by Hearing Officer,although upon separate grounds. i According to the official Notice of Revocation("Notice"),thP grounds for revocation were an I ; alleged act of prostitution by an AC Massage employee wh�ich was not proven. The City also ; referenced a number of minor cornpliance failures on the part of AC Massage, all of which were promptly rectified, as furtber grounds for revocation.After AC Massage filed its notice of intention to ', appeal the revocation,the City impeded fihe efforts of the penmitee to obtain discovery by failing to � ' i - i i MOTION FOR RECONSIDBRATION � i � i produce the defining piece of evidence in this znatt�r,a set of audiotapes which contemporaneously ' recorded the alleged crirninai incident("Tapes"}. The Tapes were finally produced barely three days before the hearing. The contents of the Tapes were clear and failed to substantzate the allegations.The Hearing Officer agreed that no act of solicitation had occurred. However,he upheld the revocation on the basis of alleged geni.tal touching,despite the fact that this allegation was not the original basis for revocation and is not supported by the contents of the Tapes. Ciearly,the revocation does not withstand evidentiary scrutiny and should be overturned. � � FACTUAL STATEMENT � .At approxirn�ately l lam on December 19, 2009,Deputy Bazanos,disguised in civilian clothes � I as part of an undercover operatian,was observed via surveillance camera loitering outside of the AC � j Massage facility,holding what appeared to be a 2�-ounce can of Bud Light beer.Deputy Bazazzos i entered AC Massage and handed the can,which was then confirmed to be a can of Bud Light,to AC � Massage employee working at the fran.t desk,Lingping Kong("Kong").According to Deputy � Bazanos,he asked for a 30 minute massage and handed Ms.Kong$40. The official Police Report of I � the incident states that: "Deputy Bazanos was equipped with communication devices,so his 'i i conversations with AC Massage employees were manitored and recorded."The Police Report also lists as evidence a CD-ROM contaixung iwo audio recordings(Bar code 423488), one of which contained a recording of the entire undercover operation(the above-referenced"Tapes"}.The Sheriffs � Department Narrative of Initial Report also identifies as evidence a"CD containing approximately 19 minutes of digital audio of contact between suspect Ling Kong and Deputy Bazanos." Ms. Kong took Deputy Bazanos into a massage room and proceeded to administer a massage. ' Deputy Bazanos claims that Ms. Kong began to gently bzush his inner thighs and testicles,and i � I eventually grabbed the shaft of his penis and solicited a sex act.Deputy Bazanos axrested Ms. Kong , and brought her into a backroom for questioning by a supervising officer. Ms. Kong denied the claim ' -2- I MOTION FOR RECONSIDERATION ,� i I � . i emphatica.11y a.nd said that Deputy Ba.zanos was asking her an odd amount of questions and was the � � first person to bring up payment for a sex act. She denied touching Deputy Bazanos'genitals and perfornaing any act beyond that of standard massage.Ms.Kong was detained for violation of ; Califorrua Penal Code §b�7(b)—Prostitution. � 'i On December 21,2009,AC Massage owner Larry Anclrews received the Notice from Stacy � Shalhoub,an attorney representing the City of Pa1m Desert,that the Permit had been xevoked due to � the allegation of solicitation of illicit sexual acts, officially a violation of California Penal Code i §647(b).Despite the fact that Ms.Kong denied the charges and that the charges had yet to be heard in ' a court of law,the Notice stated Ms.Kong's guilt in a conclusory manner: "an officer was solicited for j illicit sexual acts..." In response,Mr..Andrews appealed to the City Council as was his right under the ' Palm Desert Municipal Code. � Tn preparation for the appeal,AC Massage's attorney,Joseph T. Vodnoy,made numerous ; requests for basic discovexy items�izicluding the Police Report and a copy of the tape, and wrote the � i City a letter to that effect on January 7,2010. The City gave liim nothing. Mr.Vodnoy sent a letter to I the City C1erk on February 2, 2010, alerting hi�nn to the situation and once again requesting basic discovery materials.Mr.Vodnoy received no response. He was able to obtain a copy of the Police ,' Report from Ms.Kong's criminal counsel,but was never contacted by the City or given auy discovery i whatsoever. ! AC Massage's appeal was scheduled to be heard,by the City Council on February 11, 2010, � i however it was later decided that the matter would be referred to a Heaxing Officer. Mr.Vodnoy j i continued to request discovery, including, specifically,the Tape,but to no avail. Another letter was � sent on Apri114th, and on April 15th Mr.Vodnoy received a respoz�se from Ms. Shalhoub. Ms. � � Shalhoub acknowledged Mr. Vodnoy's correspondence and denied that the City or the City Attorney's � office was in possession of the Tape,and proceeded to question whether the Tape in fact existed, i � I 3 i � MOTION FUR RECONSIDERATTON � i despite the fact that it was mentioned explicitly in the police report. Mr.Vodnoy eventually received I the Tapes not from the City Attorney's office,but from Ms.Kong's criminal defense representative. It is comrnon practice and procedure for law enforcement personnel to give a��nn�ng , cornmentary of the events occurring during an undercover operation so that contemporaneous i recordings of the events may be established.Deputy Bazanos gives no such running commentaxy and � the Tapes are devoid of a description of the events occumng while Deputy Bazanos was in the '� massage room with Ms. Kong. On the Tapes,Deputy Bazanos repetitively asks Ms. Kong questions regarding a sexual act,but Ms.Kong does not respond in the affirmative and there is no description of i any illicit touching. Ms.Kong's difficulty with speaking and understanding English is apparent from � the Tapes and Ms.Kong's subsequent qu�stioning. � AC Massage's appeal was heard on Apri128,2010 before Hearing�fficer Jef&ey Patterson. ; ; Deputy Bazanos failed to appear at the heaxing and was not subject to cross-examiiiation. The only evidence submitted in support of the revocation was a Declaration from Deputy Bazanos ; ("Declaration") stating that he had been solicited for a sexual act by Ms.Kong during the undercover ,' o eration. Ms. Shalhoub,re resentin the Ci ' p p g ty, argued that the revocation was based on inappropriate ; ii touching and had"notIung to do with prostitution itself', despite the fact that the act of prostitution is j i the sole basis for revocation referenced in the official Notice.Ms. Shalhaub mentions three separate violations:that af the Municipal Code,fihe applicable provisions of the CUP,and the ereation of a � ' public nuisance,respectively.However,these separate violations all axise out of the same exact acts, ' that of the supposed genital touching and solicitation of a sexual act. i i In his Report and Recommendation issued on May 5,2010,Mr.Patterson concluded that AC I Massage was not acting as a house of prostitution. However,Mr.Patterson did find that Ms.Kong , committed an unlawful touching upon Deputy Bazan.os and alleged that AC Massage failed to provide ; responsive evidence that such act did not occur. Mr.Patterson declared Deputy Bazanos'testixanony ' � "uncontradicted" even though he listened to the Tape where Ms. Kong which contracts the -4 MOTION FOR RECONSIDERATION � j allegations. On this faulty fact analysis,th.e Hearing Officer recommended that the revocation be � affirmed, � THE CITY'S ACCUSATIONS RELY ON INADMISSIBLE HEARSAY I � I WHICH IN ITSELF CANNOT SUPPORT THE HEARING OFFICER'S FINDINGS ; Califortua Governrnent Code §11513(d)holds that in an administrative hearing,hearsay i i evidence may be used for the purpose of supplementing or explaining other evidence but over timely ! I objection shall not be su�cient in rtself to support a finding unless it would be admissible over � I objection xn civil cases. (Ashford v. Culver Citv Unified School District(2005) 130 Ca1.App.4�'344; j Fox v. San Francisco Unified School District(1952) 111 Cal.App.2d 885) � i The only evidence presented by the City at the appeal was Deputy Bazanos'Declaration and references to Ius general allegations that he had experienced improper touching and solicitation for an � act of prostitution while in the presence of Ms. Kong. The Declaration and the allegations were out-of- � � i court statements offered for the tzuth of the assertions that Ms. Kong touched Deputy Bazanos' genitals and solicited an illicit sexual act.As such,the statements constitute hearsay. Since Deputy Sazanos did not testify at the hearing,Mr. Vodnoy was unable to cross-examine him and all he could do was object on the grounds of hearsay. The hearsay statements proffered bp Ms. Shalhoub via the Declara.tion are the only evidence submitted to support the revocation.There is i no direct testimony,no physical or demonstrative evidence,nor supporting evidence. Mr. Patterson's ! i finding rests solely and entirely upon those hearsay statements. ; While Deputy Bazanos is a public employee,the public employee exception to the hearsay rule � i under California Evidence Code §1280 does not apply since sub-section(a)re�uires that such a � statement be made"within the scope of duty."The Declaration was not made within the scope of Deputy Bazanos'duties as a law enforcement official and does not fall under the exception. In i accordance with GC §11513, such hearsay is insufficient in itself to be the sole evidence to support the revocation of the Permit and the CUP. _5_ � MOTION FOR RECONSIDERATION i i , TI3E HEARING OFFICER'S DECISION IS UNSUP'PORTED BY SUBSTANTIAL I i I EVIDENCE AND CONSTITUTES AN ASUSE OF DISCRETION ; California Code of Civil Procedure §1094.5 mandates that business permit applicants receive �' a fair and impartial hearing.Under §1094.5(b},the inquiry shall extend to the questions of whether the ! administrative body has(1)proceeded without,or in excess of,jurisdiction; (2)whether there was a I fair trial or hearing; and{3)whether there�vas any prejudicial abuse of discretion. Abuse of discretion � is esta.blished if Respondent has not proceeded in the manner required by law,the order or decision is not supported by the findings, or the findings are not supported by substantial evidence. Taking aside the fact tha.t Mr. Patterson's decision rests entirely on inadmissible hearsay,the logical underpinnings of Mr.Patterson's recommendation contain an inherent contradiction and do not survive scrutiny.Mr.Patterson somehow concludes that while Ms.Kong did not solicit an illicit sexual act from Deputy Bazanos and AC Massage is not a"house of prostitution",Ms.Kong did , commit an unlawful touching of Deputy Bazanos' genitals. This conclusion,put sim.�lv makes absolutel�no sense. ` Once again,the sole source of evidence in this matter is Deputy Bazanos and the Tapes that recorded his experiences at the AC Massage facility. Deputy Bazanos asserts that(1)Ms. Kong touched his genitals an.d(2) attempted to solicit a sexual act fox payment.Mr. Patterson appears to believe that Deputy Bazanos'statements axe reliable in regards to the first claim,but not reliable in ; regards to the second claim. How is this possible?Both accusations stem from the same encounter between Deputy Bazanos and Ms.Kong,all recorded on the Tapes.The Tapes demonstrate that no act ' of prostitution occurred and con.tain nothing to support the claim of genital touching. Yet, Mr. '� Patterson is willing to take Deputy Bazanos at his word on one matter, but not on the other?This is an � i inescapable contradiction. If Mr.Patterson cannot fmd sufficient facts to conclude that an act of prostitution occurred,then there is no way he can find sufficient facts to conclude that Ms. Kong ' improperly touched Deputy Bazanos' genitals. -6 � MOTION FOR RECONSIDERATION ' � i , Furthermore,a genital touching only makes sense within the narra�ive of an act of solicitation. On the Tapes,Deputy Bazanos repeatedly asks"How much7"Ms.Kong's responses denote confusion; she makes no offer and accepts none of Deputy Baza.nos' advances. Heazing Off'icer Patterson acknowledged this when he concluded that no act of solicitation occwrz�ed. If no act of solicitation ' occurred,where does a genital touclung fit into the overall narrative?Why would Ms.Kong randomly , touch Deputy Bazanos'genitals with no solicitation in mind?And once again,how are Deputy ' Bazanos'statements unreliable in regards to the initial allegation of prostitution,but reliable 'vn regards ; to a secondary accusation that is inherent to the first allegation?The answer is that they cannot be. Hearing Officer Patterson's conclusion that an act of solicitation did not occur,but a genital touch did I occur,constitutes a logical discrepancy. Moreover,no evidence was presented to show that Mx. � � Andrews,the owner-permitee,knew of or encouraged any improper activity at his business. i Hearing O�cer Patterson also refers to Deputy Bazanos'accusations as"u.ncontradicted"and claims that AC Massage presented no evidence to shovv that the touching did not occur. By clauni.ng that AC Massage presented no evidence,Hearing Off cer Patterson in essence has demanded that is AC Massage prove that an event did not occur. This is impossible and not the responsibility of the appellaut.The City holds the burden of proof and responsibility to prove that the incident dfd occur. � � How can AC Massage present evidence that a non-existent event did not occur beyond simply stating � that the event did not occur and addressing evidence to the contraxy put forth by the City? What more ' i can AC Massage do ihan to enter znto evidence a recording of the encounter between the Deputy and � � Ms.Kong? Ms.Kong was unavailable as a witness on advice of her counsel. � I i Furthermore,Deputy Bazanos'initial behavior during the incident was odd and suggests ' ; impropriety. Deputy Bazanos was caught drinking an alcoholic beverage, a 24-ounce Budweiser beer, l i directly before entering the premises where the crime allegedly occurred. Deputy Bazanos was � drinking while on duty which constitutes a violation of procedure and protocol, and severely detracts . , -7- IMOTION FOR RECONSIDERATION li � from the reliability of his allegations.A police officer cannot be exp.ected to give testimony based on sensory experience that occurred while he was under the influence of alcohoL � Deputy Bazanos now claims that he vvas only"pretending"to drink in order to mask his true identity and create the impression that he was asx ordinary citizen. This claim is extraordinarily disingenuous given that this occurred at l lam.Under no reasonable conception of undercover police work would it have been necessary to pretend to be drinking an alcoholic beverage at 11 am in order to maintain the subterfuge of undercover identity.Also,the o�cial Police Report fa.ils to mention Deputy Bazanos'supposed ruse. If this activity was part of the undercover procedure,why leave it out of the Police Report?Also,Deputy Bazanos was drinking outside the establishment. How would it , occur to him that an amployee of AC Massage might take note of his conduct in the parking lot of the establishmem? Again,if Dept�ty Bazanos wanted his conduct to be captured�n surveillance caxneras, surely this information would have been included in the police report. The business Permit was revoked within 48 hours of the arrest.Ms.Kang was presumed guilty � by the City Manager and Permit Administrator and the business owner was given no opportunity to defend himself. Presumption of innocence was not an option.. This was an arbitrary and capricious decision by the City without the slightest attempt to demonstrate fairness. The City's entire case rests � on the Deputy Bazanos'written declaxation.Deputy Bazanos' credibility must be suspect given his on- ' duty drinking and the specious circumstances of the arxest. The City's failure to produce the Tape is I also suspicious and probative of their concern that it did not support Deputy Bazanos`accusations.Tn � the end it was not necessary for the city to concern itself with the fact that Tape fails to support the i allegations used to revoke the business license;the Hearing Officer decided the facts without talcing into account the concrete evidence of the xecording. (The Hearing Officer's decision specifically i � discounted any of the incidents of municipal violations enumerated in the original Notice,as insufficient basis to revoke the license.) ! 8- ' MOTION FOR RECONSIDERATION ' i I In terms of the administrati.ve requirements under§1094.5,Hearing Officer Patterson's ruling ; does not withstand scrutin.y.He forthrightly adrrr��its that an act of prostitution did not occur and his ruling that an act of genital touching did occur is disingenuous in light of this conclusion. The Tapes do not support Deputy Bazanos'allegations and further undercut Hearing O�cer Patterson's illogical conclusion that a genital touching occurred autside the context of an act of solicita.tion. Additionally, Deputy Bazanos'on-duty drinking moments before the incident and the City's failure to timely disclose the Tapes fitrther impugn the evidence underlying the revocation. There is simply no ; conceivable way that the City could be said to have"substantial evidence"in support of its decision. '� The City has committed a clear abuse of discretion which should be reversed. '� CONCLUSION ,� AC Massage respectfully requests that the City Council reconsider the decision to revoke its ! � license. A copy of the transcript of the hearing,herein described,is attached. The decision of the i� Hearing Officer is not based on any evidence. In point of fact,the evidence in this matter supports a ; . , finding that this license should not be revoked. i i \ . I LAW ICES O SEPH �T.VODNOY I � � Dated: May 26,2010 By: ' JO E H .VODNOY A orney for Appellant/Permit C MASSAGE � I i, � 9 , MOTION FOR RECONSIDERATION I i � Pages 1 to 4 . HEARING PROCEEDINGS 1 APPEARANCES: BEFORE 2 'fhe Hearing Officer: ' ,JEFFERY S.R.PAT7ERSON 3 JEFFERY S.R.PATTERSON 71-650 Safiara Plaza Road,Suite 4 4 Rancho Mirage,California 92270 `�760)346-7880 In The Matter of the Appeal of ) 5 � 6 For AC Massage: AC MASSAGE to the Revocation of ) 7 LAW OFFICES OF JOSEPH T.VODNOY Conditional Use Permit and Massaye) 8Y: JOSEPN T.VODNOY,ESG1. Establishment Permit b the Ci 8 31s W.2nd Street,Suite 1200 y tY � los Angeles,California 90092 of Palm Deselt. ) 9 {213)893-7500 � • ) 10 For The City of Palm Desert: 11 REPORTER'S TRANSCRIPT OF PROCEEDINGS �W oFFICES OF BEST,BEST 8 KRIEGER 12 BY: STACFY P.SHAlHOUB,ESQ. Palm Desert,California 74760 Highway 111,Suite 200 April 28,2010 i3 Indian Wells,California 92210 (760)568-2611 , 14 15 ALSO PRESENT: . 16 ,fOHIV JIMENEZ 17 LARRY ANDREWS 18 EUNICE CHO " 19 IAURIE AYLAIAN WALL STREET REP�RTING, INC. 20 REPORTED BY: 21 22 " SEGONJEE BAUTtSTA 23 , CSR NU.13328 z4 JOB NO.5592 25 Page 3 �; Wall Street Reporting,inc, Wall Street Reporting,inc: 213.612.4485 � 213.612.4485 1 HEARING PROCEEd1NGS 1 I N D E X 2 BEFORE 2 WITNESSES FOR AC MASSAGE: PAGE ' 3 JEFFERY S.R.PATTERSON 3 LARRY ANDREWS � I 4 4 Examination by Mr.Vodnoy 19 5 5 6 In The Matler of the Appeal of ) � � 6 EXHl617S 7 AC MASSAGE io fhe Revocatlon of ) 7 LETTER DESCRIPTION PAGE Conditional Use Permit and Massage) 8 A Notice of violation 20 i 8 Esiablishment Permit by the Clty ) 9 B A picture of a can of Bud Light 21 � of Palm Desert. ? 1 Q C Notices of inspection 26 � 9 � 11 � 10 12 � - 11 13 � 12 14 13 • 14 REPORTER'S TR,4NSCRIPT OF PROCEERWGS,commencing at 15 . ' i 15 73510 Fred Waring Dnve,Palm Desed,Callfornia on 16 � 16 Wednesday,April 28,2010,at 10:43 a.m.,before 17 � 17 Segonjee 8autista,Certffied 5horthand Reporter No. �g 18 13328 for the Stale of California. �9 � 1e 20 � 2� 2� 22 22 � ! 23 23 � 2a 24 25 25 � i Page 2 Page 4 i Wali Street Reporting,inc, Wail Street Reporting,lnc. � 213.612.4485 213.612.4485 , i ; Pages 5 to 8 j 1 PALM DESERT,CALIFORNIA,WEDNESDAY,APRIL 28,2010 1 MS.SHALHOUB: No. ' 2 10:43 A.M. 2 MR.VODNOY: He's not here. Well,what--I spent � 3 THE HEARING OFFICER: Let's go on the record. Good 3 a lot of time planning on cross-examining the officer in i 4 morning,everybody. It is April 28th,2010. My name is 4 this case. There is a major discrepancy,as you may I 5 Jeff Pafierson. I'm the hearing officer in ihe appeaf 5 have heard,between whaf's on the tape of the encounter i 6 to the City's Revocation of Massage license and 6 and what he represented as what occurred in the room by i 7 Conditional Use Permit. Let's get everybody on the 7 his police report as well as by his declaration. � 8 record. Over io my left here,on the City Attorney's 8 In my opinion,given the faCt that the officer i 9 office,can you introduce yourself forthe record, 9 is not here to be cross-examined,I believe that in �o please. 10 effect his statements are hearsay because I believe that '� 11 MS.SHALHOUB: Good morning. Stacey,S-t-a-ae-y, 11 I have a right to cross-examine the officer. Now,if i I 12 Shalhoub,S-h-a-i-h-o-u-b. 12 hadn't received the tapes,thanks to Mr.Jimenez,which � 13 THE HEARING OFFICER: And over here. 13 came at the last possible minute--he sent it to me and i 14 MR.VOQNOY: Good moming. My name is Joseph 14 I received it on F�iday and listened to it over the j 15 Vodnoy. On my right is Mr.Andrews and on my left is my 15 weekend and then we immediately sent it out to you,to 16 paralegal,Eunice Cho. 16 the City Attomey,and to Mr.Andrews. � 17 MS.CHO: Gh-o. 17 Unfortunatefy, I guess the City Attomey sent ! 18 7HE HEARING OFFICER: We alsa have some peopis in 18 it to the City Attomey and I guess it got re-routed. ' 19 attendance that we will have introduced if it looks like 99 MS.SHALHOUB: We got it this morning. 20 they are going to paRicipate. 20 MR.VOONOY: Okay. Well,anyway it was sent out 21 MR.vODNOY: Okay. This is--Mr.Jimenez is here 21 and everybody should have gotten it yesterday,and so i 22 as an observer. I will not be calling him as a witness. 22 forth. 23 THE HEARING OFFICER: There are a few items 23 Hearsay is admissible in an administrative 24 procedurally here. I presume everyone has received the 24 hearing,however, it cannot be the basis for a 25 natice that I have given--that I have given notice to 25 determination as to what occurred and at the very . Page 5 Page 7 , Wall Street Repor�ing,lnc. Wall Street Reporting,inc. 213.612.4485 213.612.4485 1 the list of peopfe within a certain radius of these 1 minimum we should have the offlcer here to testify as to � 2 premises. Did you receive that7 2 what happened and be faced with cross-examination. 1-- i 3 MS.SHALHOUB: Yes. 3 you know,the City can do whafever fhey want to do in ; 4 THE HEARING OFFICER: And Mr.Vodnoy? 4 terms of presenting their side of the case,but clearly ' 5 MR.VODNOY: Yes. 5 there has to be substantial evidence in order to close 6 7HE HEARING OFFICER: Okay. 1 don't believe!see 6 the business. And I don't see how you can support the 7 anybody in response to that. I can represent to you 7 closing of this business on strictly hearsay. I think � 8 that I had severai calls from people wondering what in 8 that's really the foundation of administrative law that 9 the heck it was but,nevertheless,unless I hear an 9 while hearsay is admissible it cannot be the basis for a j 10 objection, I will go ahead and conclude that these 10 conclusion. � 11 notices have been properly given. 11 I feel that the failure to present anything � 12 I have read and reviewed a11 of the material 12 other than, I guess,a one-page statement or two-page I 13 that has been submitted to my o�ce by the City 9 3 statement, by him,of wfiat happened,when obviousty it 14 Attorney's office and, Mr.Vodnoy, by your office. I 14 is contradicted by--and what I intend to offer-- 15 received yesterday afternoon,fhree CD discs,which I 15 which is the—number one,the tape of the actuality of ', 16 have fully read or watched—pictures,and listened ta 16 what happened in the room,which is the best evidence, ; 17 the CDs and interviews. So that having been said-- 17 as I've been saying to the City for the last three ' 18 unless there are any other procedural issues, Mr.Vodnoy 18 months, I need it in order to properly prepare the 19 this is your appeal,and I think it would be appropriate 19 defense. 20 for you to proceed. 20 My defense,in this case,wiil be that the 21 MR.VODNOY: All right. First of all is the 21 three tapes,one of which is a tape of the--and you I 22 officer here? 22 have it already in your possession. One is the tape of 23 7HE HEARING OFFICER: i'm sorry? 23 the undercover investigation and what occurred in the 24 MR.VODNOY: Is the officer here? 24 room;it was around 19,20 minutes. And i find myself 25 THE HEARING OFFICER: is the off(cer here? 25 in the unusual position--I don't know if I have to Page 6 Page 8 Wail Street Reporting,lnc, Wall Street Reparting,lnc. ; � 213.612.4485 213.612.4485 � � � � � , � Pages 9 to '!2 1 describe what's there or not. I mean--because I 1 you listen to the tape--is not giving us a running I 2 expected to one,cross-examine him an the contents of 2 commentary of what's going on. Now, he's there, � 3 the.tape and how it--as it's just one illustration, 3 presumably,not to get a massage, but he's there to see ; 4 After the signal was given--and the signal was 4 if there's a violation. And one would think that if ' 5 Christmas or something about Christmas. 5 he's there to see if he's getting a violation,we'd get � 6 MR.ANDREWS: Merry Chrls�mas. 6 some kind of a running commentary or at least--far 7 MR.VODNOY: Merry Christmas or something like 7 example, in one area he says,"She took off the towel 8 that. He asked.twice mot'e--and,by the way,it's 8 and left him nude." Not a word. I mean, I would � 9 almost 20 times,"How much,"which would indicafe 9 presume that if I was the cop undercovar, I'd be saying 1� clearly that no agreement had been reached of any kind, 10 things like,"It feels good to take your towel off,"or I 11 and ihen he goes on to say twice--and this is on a � 11 "It feels much better,"or some kind of statement that . 12 tape, I'm not making this up. Twice on the tape he 12 indicates what's occurring, according to--and I'm ; 13 says,"Is it free? !s it free?"which would indicate 73 relying,by the way,on the police report as to whaYs , 14 there's no prostitution;there's no agreement with 14 supposedly happening,because you certainly don't hear 15 respect to that. 15 it on the tape. / 16 And on top of that listening outside,female 16 The only thing you hear on the tape is him 17 sheriff says, "Wait a minute"-•after the signai was 17 asking how much,which came out to,t think it was 18 18 given that there's a--"Christmas"and that's the 18 times, throughout the tEme. "How much? Now much? Now ; 19 signal for the bust. She says,"Wait a minute;they're 19 much?" And what you hear from her is,"Only massage. I 20 still negotiating,"and those are almost her exact 20 don't speak English." And it doesn't jibe because 21 words. And,nevertheless,they go into the location and 21 according to the tape—according to the police report 22 close it, 22 she leans in and says,'7t's$40,"which would indicate �23 In addition,what I found extraordinary,we 23 that there's nothing to discuss,about how much. The 24 have an officer--and this is one of the things f want 24 agreement,the price is agreed to;it's$40. And y:et he , 25 to be cross-examining him about--is that he states he 25 keeps saying,"How much? How much? How-much"--never . Page 9 Page 11 Wall Street Repor#ing,lnc. � Wall Street Reporting,lnc..� ; 213.612.4485 � 213.612.4485 1 is seen through the cameras in the business,drinking-- 1 gets an answer--does the signal and even the officer 2 or appears to be drinking a Bud Light. And I'll be 2 outside—you don't even have to have my interpretation 3 introducing this photograph of the Bud Light;it's a 3 of whaYs going on;it's on tape, by the way. 4 large Bud Light, not a small one. 4 7he o�icer outside says,"Wait a minute 5 1n response,I got a statement tha#it was a 5 guys"--I don'f know if she said that but basically 6 ruse of some kind. You know,thathe was doing that, 6 said,"They're still negotiating." Meanwhile,they come 7 but this is not a�situation where he's drinking inside 7 rushing in and#hey then interview Ms. Kong—and by ' 8 the location. He's drinking outside ihe location and 8 the way Ms.Kong is not here because Mr.Jimenez 9 one of the grounds--and one of the things I would have 9 represents her and feels that before the trial he didn't 10 been cross-examining him about is why was he drinking or 10 . want to— 11 why was he appearing to be drinking because he wasn't 11 7HE HEARING OFFICER: I understand that,certainly. 12 drinking inside#he location. He was drinking outside 12 MR.VODNOY: 1 would frankiy--even though 1 don't 13 the location,so how did he know lhat anybody was seeing 13 like what he did as such. If I was her lawyer I would 14 him do this. If he's supposed to be a ruse one would 14 not allow her to testify either. So#hat's why there's ', 15 presume that his ruse would occur inside the location as 15 a clear conflict of interest, but fortunately for him we '� 16 he downs the last thing and says,you know,and gets rid 16 got the tape. � 17 af it inside the location. 17 In the interview she says,"I didn't do it. I � 18 Secondly,this is eleven o'clock in the 18 didn't do anything,"and they use the interpreter on the � 19 moming. Unless he's an alcoholic or something, I don't 19 phone--I guess that's how iYs done. And even in the 20 think anybody would think it was normal. I don't drink, 20 tape you can hear her say,"I don't speak English,"so � 21 more or less,period,but I certainly don't think l 21 it's clear that she's not understanding these � 22 would start my drinking at eleven o'clock in the 22 rudimentary things,but,obviously, she did not say$40 23 morning. And also that particular timetable bothered 23 because then that wou{d be end of the discussion. i 24 me. 24 And what particularly bothered me about the 25 It bothered me that the officer--and when 25 tape is you have these long stretches of nothing being ' Page 10 Page 12 Wall Street Reporting,lnc. Wall Street Reporting,lnc. ' 213.612.4485 213.612.4485 i � Pages 13 to 16 1 said,no description. Supposedly accarding to the 1 I've had police reports that were ambiguous. What ' 2 police report she grabs the shaft and he's--he doesn't 2 they've said was Officer Jones came in undercover,had a 3 even remark about that,"feels good,"or, "feels bad," 3 transmitting device and doesn't say anything more. In 4 or,"don't do that right now"--some words. I mean,he 4 other words,it doesn't say,"Booked into evidence," 5 knew he's being taped. She didn't know he's being taped 5 khat there's a CD Rom--or whatever they call it--of 6 so the--the whole--what should I say--the res 6 the conversation,so you don't know. And then I have to 7 gestae of the entire transaction was in his power to 7 write a Ietter to the--and I have never had a 8 control and say,"Here's what's happening," 8 situation where I haven't had it produced. Literally, 9 He doesn't say, "Here's whaYs happening now," 9 as soon as 1 asked for it I got it and I know now why I 10 for the purposes of the tape,"I'm not ready for you to 10 didn't get it. 11 touch my penis yet,"or some words to corroborate,in 11 Now,maybe thaYs my suspicion,suspicious 12 some way,what he's claiming. 12 mind,or whatever, but this is the smoking gun;this is 13 And another thing that bothered me about this 13 not an ambiguous tape. He gave no indication of what 14 case--and I don't know, i'm sure she can explain. I 14 was going on. It absolutely--he has left out all of 15 got a letter-and I've attached it-from Stacey,and 15 this business about asking 18 times"How much,"asking, 16 it says,"We don't have a tape. We're not going to rely 16 "Is it free;'after he gave the signal. That even makes 17 on a tape,"and if one existed,in effect. Now, I 17 less sense than anything eise and he asked that twice, 18 assume you've read the police report because I've 18 "Is it free?"which would indicate no meeting of the 19 attached it. And it says,crystal clear,that there's a 19 minds but that nothing had been agreed upon. So in my 20 tape,it's 19 minutes long and it exists,obviously. 20 opinion there is no basis for revocation or suspension. 21 And one of the areas I was going to go into is 21 And it upsets me to think that this place was 22 what's the sheriff's department palicy about not turning 22 closed and has besn closed for how long? 23 over,to the City Attorney,the tape--why are they 23 MS.CHO: Since December. . 24 hiding the ba(I? I understand why he's not here today 24 MR.ANDREWS: Four months. ' 25 because--he's not here because I don't think he can 25 MR.VQDNOY: Without anybody reading the police . Page 13 Page 15 i Wa�l Street Reporting,inc. Wall Street Reporting,inc. � 213.612.4485 213.612.4485 � i 1 answer the d+screpancies between--so he, at the 1 report to start with. And i can't befieve that ; 2 minimum,filed a fafse police report because it doesn'f 2 relations are so poor between the City of Paim Desert 3 contain all of these fhings that are on the tape. And, 3 and the police department that they can't get a tape ; 4 as I said, i sent the tape off immediately. I did 4 that exists. And whaPs more disturbing is that ; 5 everything i could to have the hearing of�cer aware of 5 apparently officials in this city haven't read the 6 ali of the facts of the case. 6 police report and yet_kept the place closed without � 7 Certainly in this case,that's the reason 7 having anybody—just under the assertion that � 8 for--the closure was the alleged prostitution because 8 prostitution had occurred. 9 the other kinds of violations were fixed almost 9 Now,there isn't any basis for--there is no 10 immediately. So, I mean--they, not having a sign, not 10 other basis in my opinion--of course my opinion 11 having a price, that coulc!not be grounds for revoking 11 doesn't count for that much;iYs your opinion that 12 or suspending a Iicense, not only that couldn't have 12 counts. But the point being,the other ticky-tack 13 been, but, in fact, documents I've also attached show 13 violationswere fixed immediately. They had nothing to 14 that that was not the grounds. 14 do with anything. The place is immaculate and as far as 15 I just find it hard to believe in this case 15 I'm concerned I'm at a loss. 16 when I got the letter--I'm sorry I called you Stacey. 16 I fully expected the officer ta be here. I 17 MS. SHALHOUB: I#'s okay. 17 prepared all klnds of notes to cross-examine him about ' 18. MR.VODNOY; I don't mean to be overly fiamiliar. 18 . it, not that my evening was ruined last night, but the 19 I can't believe that she didn't read the 19 point being that one would expect if they're going to 20 police report, Now, I've done a lot of these cases; 20 use--and it's standard to substantiate evidence. And 21 this is the first time I've done a case where the police 21 I believe that the standard of proof,some it's not 22 officer wasn't produced because that's the kind of 22 beyond a reasonable doubt and (think it's more to the 23 evidence you'd expect to have under oath and so we 23 preponderance of the evidence. f think it's clear and 24 request examination instead of hearsay. 24 convincing. I think it's the same kind of standard for , 25 But with the statement if one exists--now, 25 lawyers,doctors,dentists and so on. ; Page 14 Page 16 I, Wall Street Reporting,lnc. Wafl Street Reporting,lnc. 213.612.4485 213.612.4485 � � � Pages 17 to 20 1 But be that as it may there isn't anything 1 you solemnly state to tell the truth, the whole truth, 2 presented here today other than--on fheir side,a 2 and nothing but the truth, so help you God? 3 two-page statement that is completely contradicted. And 3 THE WITNESS: i do. 4 I will be offering into evidence the tape of the 4 THE REPORTER: Thank you. 5 undercflver investigation,the tape of the outside--the 5 EXAMINATION 6 officers are outside,and the staternent by the sheriff 6 BY MR.VODNOY: 7 stating that after the"Christmas"is stated, which is 7 Q Okay. Mr.Andr,ews--Stacey, have yau seen 8 the bust signaf,that, nevertheless,she's saying-- 8 this? 9 which anybody listening would conclude that there had 9 MS. SNAI.HOUB: No. 10 been no agreement,they're still negotiating. it's a 10 MR.VODNOY: Ali right. Do you want to look at it 11 one-sided negotiation. 11 closer? . 12 He's saying"how much"and she's not 12 MS. SHALHOUB: I can see it from there. 13 answering. Eventual�y she says,"Jusf massage. I don't 13 BY MR.VODNOY: 14 speak English." Those are what you're hearing from her. 14 Q A!i right. t'm holding up--first of all, 15 And if there's a secret situation going on where she's 15 what is your connection to AC Massage? 16 leaning in and whispering,why is she whispering? Does 16 A I own AC Massage. 17 she know there's a tape? I don't think sa. I mean, 17 Q All right. And when were you closed? 18 that's ridiculous. Thaf's another preposterous thing. 18 A Mid December 2009. 19 So as I say,the rudimentary situation is that 19 Q Be preci�e, was it December 19th? 20 they allow the hearsay to come in. IYs not a court so 20 A i believe it was, yes. 21 I can't object on hearsay grounds but that also is sort 21 Q Did you receive a notice of violation af that , 22 of a horn-book law that an administrative hearing cannot 22 time? 23 be based on hearsay alone;it has to be something else 23 A Yes. 24 and there is nothing further here,especially wkien the 24 Q I'd like--Stacey-- {'d like to mark this as 25 o�cer's not made himself available. Certainly the 25 A. , ; Page 17 Page 19 Wall Street Reporting,inc. �� Wall Street Reporting,lnc. 213.612.4485 213.612.4485 1 officer,himself,testifying is morethan sufficient,if 1 THE HEARING OFFICER: Okay. And what is it? 2 you believe him, but that's not the point. He's not 2 MR,VODNOY: It's a notice af violation, Palm 3 even being presented and there--this is not a surprise 3 Desert, notice of violation. And it says that iYs 4 hearing. !t may have been a surprise we're here instead 4 being closed at 12:22 p.m, on 12/19/09. And this is a 5 of your office but that's my faulk • 5 notice to close immediately. . ' 6 Everything is--but--that's my opening 6 BY MR.VODNOY: 7 statement. That wasn't what i was going to say. I was 7 Q Is that what was on the door7 ', , 8 going to say I'd like to call the officer and get 8 A This was taped to the door. 9 started but it just took me completely by surprise. ! 9 MR.VODNOY: I'd like that to be marked as Exhibit 10 assume in addition that the other--what is her name? 9 0 A. Shouid 1 bring it over to you? ,� 11 MS.CHO: Kong? 11 THE HEARING OFFICER: Yeah, pass it over-- � 12 MR.VODNOY: No. 7he otherwitness. Laurie 12 actually, I`ve got that,but I'll mark it. 13 Aylaian--is she here? ts that he�'t All right. I can 13 MR.VODNOY: All right. ' 14 cross-examine her,but—so I don't have to give a 14 (Exhibit A wes marked and received,) 15 speech about that. ThaNs my opening statement. 15 THE HEARING OFFICER: Actualiy, i don't have a 16 THE HEARING OFFICER: Your opening statement and 16 picture of the beer can. 17 argument. You covered both at once. Okay. 17 MR.VODNOY: All right. i won't mark this one. 18 MR.VODNOY: Ail right. Well,I'll put on 18 BY MF2.VODNOY: 19 Mr.Andrews. Do you want him to sit somewhere7 19 Q Were you at the location on that day, on the 20 THE HEARWG OFFICER: I think you can testify from 20 19th? 21 there,Mr.Andrews. Ms. Reporter,do you administer the 21 A I was there after the raid. I was not there 22 oath? 22 when it occurred. � 23 THE REPORTER: Yes. 23 Q Okay. Now, I have in my hand a large can '� 24 THE HEARING�FFICER: �kay. 24 of--do you actually have the can? 25 7HE ftEPORTER: Please raise your right hand. Do 25 A I do. Page 18 Page 20 ' Wall Street Reporting,lnc. Wall Street Reporting,lnc, ; , 213.612.4485 213.612.4485 Pages 21 to 24 1 Q You didn`t bring it with you? 1 A He signed a report--I don't recall his name, � 2 A (don't have it with me. 2 and one deputy--the first time one deputy. J 3 Q Anyway,this is a picture of the can--that's 3 Q Pedro Rodriquez,does that sound right? ; 4 a Bud Light. What is the relevance of that can? 4 A Yes,it does. 5 A i recovered it from the trashcan after 5 NiR.VODNOY: ls�Ir.Rodriquez,by the way, here 6 reviewing the video of the raid. 6 today? ; 7 MR. VODNOY: All right. I'd mark thfs Exhibit B. 7 MS.SHALHOUB: No. He's not. I 8 (Exhibit B was marked end received.) 8 BY MR.VODNOY: i 9 BY MR.VODNOY; 9 Q Okay. In any event,so what was the-- , 10 Q You saw the video; is that right? 10 A The outcome was that the same day i took the i 11 A Yes. 11 lock o#f o(the door and went to the computer and typed i 12 Q What did you see on tf�e video? 12 up hours of operation and price list and posted them on '' 13 A I saw the officer entering the building prior 13 the wail. 14 to corning in the door. I saw him take a drink,finish 14 Q Okay. You rectified that particular violation ; 15 the can and then wafk in the front door and engage the 15 on the same day? 16 therapist in conversation. 16 A Yes. i 17 Q Okay. Now,this--your video does not have 17 Q Ail righ#. Was there anofher violation? , 18 any sound; is that correcf? 16 A Not until--I believe it was in December ! 19 A It does, l beiieve. 19 inspection. We had a conversation about my sign outside i 20 Q Can you hear what's being said? 20 the building but he didn't indicate to me that that was � 21 A He says--she asked if he wanted a massage, 21 a vlolation at the time. ; 22 he says,"Yes." "In one hour ar half hour,"and he 22 Q This is Mc Rodriquez you're talking about? 23 says,"half hour,"and then asks if she can throw the 23 A Yes. � 24 can away. 24 Q What was the conversation about? i 25 4 Okay. And whaf size can is that? 25 A He asked me if I had a sign and that one was Page 21 Page 23 j Wall Street Reporting,fnc. Wall Stre�t Reporting,inc. ; 213.612.4485 � 213.612.4485 ' 1 A Twenty-four ounce. 1 on order and had not been received yet and he told me to I 2 Q All right. And this is at what time that this 2 wait before installing it and verify with the City that 3 occurred? 3 it met code compilance. i 4 A 11:00--jusf about 11:30, I beiieve. 4 Q Qkay. And how long after you had this 5 Q All right. You had recelved, previous to the 5 conversation did you put up the sign--flrst of all-- j 6 19th,some violations from the City; is that correct7 6 strike that. � 7 A They come around on a monthly basis and 7 Did you have fhat sign there? � 8 inspect, and the first inspection-- 8 A I didn't have it on the premises at the time. i 9 Q You have any notes for yourself? 9 It was being made. i 16 A I have a sheet. 10 Q How long after that was it made/delivered? ; 11 Q Do you remember— 11 A About two weeks. 12 A Yeah. 12 Q Okay. And did anybody tell you that there was 13 Q Why don't you just say whaf-- 13 any problem about your license as a result of either the 14 A 7he first violation or the first inspection 14 door locks not being on or the fact-- 15 resulted in a notice that there was a lock on one of the 15 A No. � 16 doors. 16 Q --the hours--did Mr.Rodriquez indlcate to ' 17 Q The interior door? 17 you that that was grounds for suspension for you not to 18 A 7he interior door,which had been leff that 18 have a sign out front? 19 way from a prior tenant, and that we did not have our 19 A No. He didn't indicate that that was a i 20 hours of operation posted--hours of operation and 2o prob(em at all. 21 prices posted. 21 Q Okay. And you did put up a sign? 22 4 Okay. So what did you do in response--by 22 A Yes. � � 23 the way,who was it that came to the location? 23 4 So were there any other problems prior to the 24 A It was a code enforcement officer. 24 19th of December;which is what this is all about, 25 Q Do you know his name? 25 pretty much? Page 22 Page 24 Wall Street Reporting,lnc. Wall Street Reporting,lnc. . 213.612.4485 213.612.4485 � � � i ..._. , _ . . , Pages 25 to 28 1 A No. 1 Q This was the one that you said didn't have the � 2 Q Okay. And you got--what is it? 2 business hours-- I 3 A On October 22nd,there was a notation made 3 A Correct. i 4 that--we kept a record of our clientele and each one 4 Q --and the list of services and the cost of 5 prior,that record was okay,and then in November 5 the services,right? ,� 6 inspection was pointed out that we needed to put more 6 A Correct. 7 information than we had. 7 Q Everything efse was fine? 8 Q �kay. And-- 8 A The lock on the door he also indicated. 9 THE HEARING OFFICER: On the sign? 9 Q This was down— 10 THE WITNESS; On the client log-in sheet. 10 A You can hardly read it. , 11 BY MR.VODNQY: 11 Q That's what it says. That's on 5!7/09,that . 12 Q In other words,when clients would come in 12 was fixed. The lock on the door was fixed the same day 13 what were you obtaining from them? 13 and the hours and services were�xed on the same day? 14 �1 We had their name,the duration of the 14 A Yes. 15 massage,the fees paid and the provider that did the 15 MR.VODNOY: Okay. We might as well do this whole ' 16 work. 16 batch as one exhibit. We can do it one,two,three, 17 Q All right. 17 something like that or just-- 18 A The City wanted the address 2lso,which we 18 THE HEARfNG OFFICER: Mowever you want to do it. ; 19 were not collecting. 19 BY MR.VODNOY: I 20 MR.VODNOY: Okay. And then after that 20 Q All right. And you had an inspection on � 21 notification in October--let me introduce this as 21 619/D9? , i 22 Exhibit C and Stacey you've seen this inspection? 22 A Yes. 23 MS.SHALMOUB: What is lhe date on that one? 23 Q� And there were no•violations of any kind? � 24 MR.VODNOY: October 22nd. 24 A No. I 25 MS. SHALHOUB: I believe I have that. 25 Q And yau have one on 7/17,there's no problems , � Page 25 � � Page 27 � Wall Street Reporting,lnc. j� � Wall Street Reporiing,lnc. � 213.612,4485 213.612.4485 '; . ; 1 (Exhibit C was marked and received.) . 1 whatsoever? ; 2 BY MR.VODNOY: 2 A No,no problems. ' 3 Q And everything was met,except there's one on 3 Q You had one on 8/5/09, again, no problems ! 4 number four which says,"maintain a record with the 4 whatsoever? � 5 patron's name,address,date and time of each massage, 5 A None. '� 6 the name of the person administering such massage and 6 R And then 12/16--12/16/09, no problems � 7 the type of massage given';is that right? 7 whatsoever? ' , 8 A Yes. 8 A Right. 9 Q You put the name of the person--did you put 9 Q And then on 12--yeah,we did that Ocfober i 10 the date and time-- 10 already. I'd like to introduce this--what`s the next ' �1 A Yes. I had the name and date and time—let 11 one,B? i 12 me review this. Yes, I had the name,I did not have the 12 MS.CHO: C. 13 address. I had the date and time of each massage. I 13 THE HEARING OFFICER: i've got C as the notices of 14 had the name of the person administering. I did not 14 ,inspections--let's make it an in-global exhibit. , 15 specify the type of massage given,on my log. 15 MR.VODNOY: Yes,that's fine. ; 16 MR.VODNOY: 1 ask that to be marked-- 16 TME HEARING OFFICER: How many do you have? 17 MS.CHO: Whole set or just lhis? 17 MS.CHO: Six altogether. 18 , MR.VODNOY: What? 18 MR.VODNOY: How many? i 19 MS.CHO: Whole sat or-- 19 MS.CHO; Six. I 20 BY MR.VODNOY: 20 BY MR,VODNOY: 21 Q 1'li tell you what,there was an inspection on 21 Q Now,prior to December 22nd, nobody from the 22 5/7/09? 22 City had indicated#o you in any way, shape,or form 23 A Yes. 23 that there was a problem with your business other than i 24 Q And that was the-- 24 what you've already enumerated in these six pages? ' 25 A That was the first inspection made. 25 A None at all. Page 26 Page 28 Wal{ Street Reporting,lnc. Wail Street Reporting,lnc. 213.612.4485 213.612.4485 Pages 29 to 32 1 Q And nobody tofd you that your license was in 1 City Attorney's office, Best, Best and Krieger; is that 2 jeopardy in any way, shape,or form? 2 correct? 3 A No. 3 A Yes. 4 Q Okay. Now, on December 22nd of'09,you 4 Q And if told you that the permit is revoked due 5 received a noiice ofi some kind or somebody calied you-- 5 to fne recen#arrest of an empioyee for soliciting 6 or how did you find ouf what was the problem? 6 prostitution;is that correct? 7 A Yeah, I received a notice in the mail, 7 A Yes. • 8 Q When was that? 8 , Q So there was no highlight in yeilow in the 9 A That was December--may6e it was the 22ntl. 9 letter we had, it was added by us. It was not in yours? 10 Q But did you go to the location on the 19th? 10 A Right. 11 A I did go to the location on the 19th. 11 Q It doesn't cume with the letter? 12 Q Okay, 12 A No, it wasn`t highlighted. 13 A I sew the notice,the notice that was taped to 13 MR.VODNOY: I'd like to introduce that as next in 14 the door. They indicated that they were going to-- 14 order, 15 that there was an inspection on there although nobody 15 THE HEARING OFFICER: Our next is D;and what is 16 came back for the inspection. 16 it7 17 Q And the notice on the door, is what we 17 MR.VODNOY: IYs a{etter by Best, Best and 18 introduced as an exhibit;is that correct? 18 Krieger,by certified mail,to Mr.Andrews advising that 19 A Yean. 19 due to the recent arrest of an employee that the license 20 Q And the notice on the door said that your 20 is revoked. And at the end of the hearing I'd just like 21 license was suspended? 21 to make a copy for myself--that's what, D? 22 A Yes. 22 THE WEARING�FFICER: That's D. 23 Q And that was because,as you understood,of 23 8Y MR.VODNOY: 24 the activity of the 18th? 24 Q Is there anyfhing else you'd like to add? 25 A Yes. 25 A Not at this time. Page 29 Page 31 �: Wall Street Reporting,inc. Wall Street Reporting,lnc. 213.612.4485 213.612.4485 - , — 1 Q There was nothing else besides the 19th? 1 MR.VODNOY: I don't have anything further other 2 A No. 2 fhan I've already introduced. In my brief I've 3 Q And when did you run the tape showing that the 3 introduced the pofice report—whatever's attached to 4 officer was drinking? 4 my brief I'd like to make that as-- 5 A The same day,the 19th. 5 THE NEARING OFFICER: All right. I will--i've 6 Q On the 19th. And what did you do in response 6 already reviewed but I will put in the record,to the 7 to seeing a tape of the officer drinking on the job, 7 extent that there is one,ali the documents I've ; 8 on-duty, at 91:00 something in the morning? What did 8 received from both sides,which would include your brief 9 you do? 9 and the various attachments,exhibits. . 10 A I recovered the can out af the trashcan and 10 MR.VODNOY: All right. Then we rest. I rest. 11 immediately put it in a plastic bag to try and preserve 11 THE HEARING OFFICER: Okay. 92 any evidence that might be on it. 12 MR.VODNOY: Orwhatever the magic words are. 13 Q All right. And did you receive on December-- 13 THE HEARING OFFICER: In a hearing I'm�ot sure 14 some time right after December 21 st--this happened on 14 what they—Ms.Shalhoub? 15 December 22nd;is that right? 15 MS.SHALHOUB: Good morning. 16 A No. 16 THE HEARING OFFICER: Good morning to you. , 17 Q The incident ocCurred--it was on the 19th, 17 MS.SFiALHOUB: Mr.Vodnoy made a number of comments ' 18 !'m sorry. 18 about the attendance or lack of attendance by the 19 A Yes. 19 officer today and I want to clarify that tMe City didn't 20 Q So on December 21st you recaived a notice by 20 notice or indicate that Deputy Bazanos was going to be 21 certified mail; is that correct? 21 attending today. This is the business appeal and they ' 22 A It didn't come to me right away because they 22 didn't make any--they didn't notice the officer to 23 sent it to the wrong address but,yeah,ultimately, I 23 appeal today and the criminal prosecution is pending and 24 did get a notice. 24 to the extent that his testimony here could have in some ' 25 Q All right. And it was sent by StaCey frorn the 25 way worked against or have something to do with the i Page 30 Page 32 Wall Street Reporting,lnc. Wall Street Reporting,lnc. � . 213.612.4485 213.612.4485 � I Pages 33 to 36 � 1 criminal prosecutlon--he just didn't really need to be 1 , object to her. � 2 here today. 2 THE HEARING QFFICER: Well, I have received those � 3 And you are,as the hearing officer,permitted 3 previously and I've—l think I've previously talcen I 4 to take both the poiice report that Mr,Vodnoy has 4 into evidence all the things that have been disseminated � 5 entered into evidence,as well as the declaration that 5 up to now,so you woufdn't go and put them--they're � 6 we have provided--take them at face value and use them 6 already in evidence because 1've received those I 7 for what they are,take them from the four corners of 7 documents. � 8 the document 8 MS.SHALHOUB: And,again, I just wanted to ciarify � 9 So secondly I just wanted to also address the 9 that we're talking about two different permits today. ' 10 CDs that Mr.Vodnoy discussed earlier. We did receive 10 There's the massage estabiishment permit and the 11 them this morning and I heard a portion of them but I 11 conditional use permit. They're both required for the 12 didn't hear any of what Mr.Vodnoy was describing; I 12 operation of the massage business but different 13 just heard a smali portion of the interview with the 13 municipal code sections apply to each. ; 14 therapist. 1 didn't hear much else beyond that. 14 The code sections for a massage establishment , 15 But from what Mr.Vodnoy was talking about,he 15 permit are contained in the Municipal Code Chapker 5.87 16 mentioned he's mentioning a meeting of the minds and 16 and 5.90,whereas canditional use permits are covered 17 prostitution and prices and dollars and all kinds of 17 under Chapter 25.72. 18 things that relate specifically to:prostitution. And 18 Anokher note here is that when the massage 19 the revocation of the conditional use permit and the 19 establishment permit is revoked the conditional use 20 massage establishment permit are not based on 20 permit is necessarily revoked because one the 21 prostitution. They're based on the specified sexual 21 conditions—condition number nine of CUP is that it 22 activities and the inappropriate touching and fondling, 22 obtain and necessarily maintain a massage establishment 23 that occurred during the course oF the deputy's massage. 23 permit,so when one goes the other must also necessarily 24 It has nothing to.do with prostitution itself. 24 go. • 25 The elernents of a criminal prosecution for 25 Regarding the massage estab{ishment permit, 1 , Page 33 � Page 35 F; Wall Street Reporting,lnc. Wall Street Reporting,lnc. 213.612.4485 . 213.612.4485 1 prostitution are in no--they in no way mirror what the 1 want to talk about three things. One,the rule in the 2 City is basing the revocation of both permits on. So! 2 Code;secondly,what happened on December 19th;and then 3 }ust wanted to make a point as to that. 3 thirdly,why the revocation was proper. Per the Code 4 And also regarding the CDs,I just wanted to 4 it's unlawful for a massage therapist to touch any 5 say that the City is not hiding the ball at ali with 5 specified anatomical area of a client,which inciudes, 6 regard to turning them over. i did read the police 6 per the Code,"Less than completely and opaquely covered 7 reports sent weeks ago and we don't have--we've never 7 human genitals,pubic region and anus." 8 had possession of these CDs. I did not have them until 8 Additionally,it's also unlawful for a 9 this morning so in no way were we trying to restrict 9 therapist to engage in speci�caily set forth sexual I 10 Mr.Vodnoy or his clienYs access fo the CDs. We didn't 10 activities,those activities are also defined by the 11 have them,we're not reiying on them and to the extent 11 Code and they include fondling or oiher erotic touching � 12 we had them,we might have turned them over but we 12 of the genitals or the pubic region. ! 13 didn't have them. 13 In Deputy Bazanos'declaration he declares his 14 In regard to the standard of proof today,iYs 14 genitals and pubic region were exposed,they were I 15 satisfactory evidence and that is contained in--it's 15 touched,they were fondled and that both his genitais 16 set forth in the declaration of Lauri Aylaian and iYs 16 and the pubic region were less than completely covered, 17 also contalned in Palm Desert Municipai Code 25.72130A 17 and all of that is contained in paragraph seven,eight 18 and thak code section is attached to Ms.Aylaian's 18 and nine of his declaration. 19 declaration,so... 19 So based on the actions of the therapists the 20 I would also just like to submit the 20 massage establishment permit was properly revoked 21 declarations into the record,the declaration of Ms. 21 because the business was operating in a disorderly or 22 Aylalan,the declaration of Deputy Bazanos as evidence 22 unlawful menner. And that is sort of cross referenced 23 today. 23 in Ms.Aylaian's declaration at paragraph nine. 24 MR.VODNOY: There would be an objection with 24 Also,the business and its therapist are 25 respect to the officer. She's here so I'm not going to 25 required to comply with all appticable laws,those laws ' Page 34 Page 36 �, Wall Street Reporting,lnc. . Wall Street Reporting,lnc. ' 213.612.4485 213.612.4485 ' , , i Pages 37 to 40 1 included in Chapter 5.87 of the Code and 5.90 of the 1 nothing corroborating those allegations that he was 2 Code, and failure of a business and the therapist to 2 exposed,that he was touched,and so forth. 3 comply is grounds for revocation or suspension of the 3 And in the police report he goes into detail 4 massage est�blishment perm(t. 4 about those things and yet there's nothing on the tape 5 So,moving on to the condltionai use permit, � � corroborating him. So given the fact that they're using 6 that permit is revoked on evidence that the business or 6 hearsay--and it's not my burden to put on their case. 7 any of its agents or employees has done any one of three 7 It's not my burden to call police officers--I just 8 things. In this particular case all three things were 8 frankly assumed that it wouidn't be refying on hearsay 9 done. Those three things include failing to comply with 9 and that they would be relying on live testimany, 10 applicable provisions of the Code,failing to comply 10 subject to cross-examination;that's what I would 11 with conditions of the CUP or allowing or creating a 11 anticipate. . �2 public nuisance. 12 And I would certainly not subpoena somebody 13 So earlier l discussed the fondling and the 13 who's going to testify against my client as my witness 14 touching and exposing of Deputy Bazanos, and those 14 unless I suddenly developed Alzheimer's,but given the 15 things summarily show that the massage therapist 15 fact that fhey had the burden--and,by khe way,Stacey 16 violated the Code,so the first element is met. There's 16 has not responded to my suggestion in my brief which I 17 also a second one,as I mentioned 6efore,when the 17 found a little astonishing that she said if a tape 18 massage establishment permit is revoked the CUP is 18 exists. Those are not my words,they're her words. 19 revoked,so the second condition is met. And then 19 That would indicate to me--I don't want to— 20 thirdly a public nuisance was created when the massage 20 MS.SHALHOUB: i think you did. 21 therapist violated the Code because per the Code any 21 MR.VODNOY: I said it could be disingenuous,the 22 Code violation itself is considered to be a public 22 way I put it,instead of saying something stronger but . 23 nuisance. And that's contained in Chapter 8.2010, I 23 it wouid indicate that she hasn't read it because this ' 24 think iYs subsectlon"L,"per the Code,and thaf's 24 is not an ambiguous police report. And I've inciuded 25 attached to--l believe it is the brief that we 25 the police report as a matter of fact. . Page 37 Page 39 i Wali Street Reporting,lnc. Wall Street Repor�ing,lnc. ' 213.612.4485 213.612.4485 1 submitted. And that's really all!have at this point. 1 Ordinarily,it's not my obligation to include 2 THE HEARING OFFICER: Any response, Mr.Vodnoy? 2 a police report but I included it to demonstrate when i 3 MR.VODNOY: Yes. Here's the problem. What she's 3 say that iPs crystal clear there's a tape--this is 4 trying to suggest is that we have to prove a negative 4 before I got it and presented it to you--that i don't ' 5 and f don't Know how you do that. For example,how can 5 know how the City can say if one exists and if they're 6 I prove I don't speak French? Bring fifty peopie in 6 saying one exists, my conclusion,giving her the benefit 7 that know me, because I could have spoken French some 7 of the doubt,is she didn't read the police report S other time. You can't prove a negative. 8 6ecause that police report is unambiguous,completely 9 So the burden is on the people when they're 9 unambiguous,about the fact that not only was one made, 10 yaur going to close a locatian and fake away their 10 kep#, and there is exist--and of course today we know 11 license and take away their livelihood. Presumably the 11 rather fhan my word of what he says,and the police 12 burden is on the people to demonstrate that whak they 12 report,one exists,it exists,you have it. 13 did was legal and proper,and in our particu{ar case— 13 So I fnd it rather shocking--this is my 14 l didn't make up the word prostitution. That's not some 14 first case in Palm Desert--lovely,clean,wonderful 15 fantasy of mine--all over the place,inciuding the 15 area here, but I mean--he's got a legitimate business 16 letter you saw,which was sent on the 21 st,from 16 and if all they've got is allegations about certain 17 Stacey--that says it's because of prostitution. 17 things happening with zero corroboration, didn't put him 18 So what I—throughout,there's a reference 18 on the stand,and !don't even understand what she's 19 ta prostitution, I've demonstrated through the tape, 19 saying about there's a criminal case coming up,they 20 which is irrefutable,that there was no prostitution so 20 didn't want me to ruin him as a witness,which is sort 21 they say"Well there was touching and so forth." There 21 of a semi-insult to Mr.Jimenez--he sent me the tape. , 22 could have been if we had the ofticer here and he-- 22 He's got the tape and I assure you that he'll 23 weathered my cross or whatever--not to say 23 be using it in the trial to cross-examine him and 24 sensational,but the not point being if he had been here 24 certainly at that time they're going to have to produce � 25 to support his allegations when on the tape there's 25 it. But the letter itseif,that she sent,says i Page 38 Page 40 Wall Street Reporting,inc. Wall Street Reporting,inc. � 213.612.4485 213.612.4485 � � Pages 4�1 to 4�4 ' 1 prostitution. I'm not making up this prostitufion as 1 MR.VODNOY: 7hat's submitted? , 2 some kind of lawyer trick,you know,to cover other 2 THE HEARING OFFICER: Submitted. 3 things. He was put on notice there is prostitution and 3 MS.SHALMOUB: I wanted to clarify something that 4 we`ve demonstrated that there isn't,and not only that, 4 Mr.Vodnoy mentioned about the revocation and it does 5 there is no corroboration whatsoever. 5 reference the arrest of the employee in the revocation 6 • 7he only--and the defense is an interview at 6 letter. I'm no#sure which exhibit it is. 7 the time did not have a lawyer whispering in her ear, 7 TNE H�ARING OFFICER: It's our first one, Exhibit 8 "Why don't you say nothing happened." This was the $ A• 9 poiice interviewing her,Ms.Kong,at the time, asking 9 MS.SHALHOEIB: The first paragraph references the 10 her what happened. "Nothing happened. I didn't do 10 revocation due to the recent arrest of the employee,but 11 anything,"and the sheriff actually was saying,yes, she 11 further down in the basis for the revocation there's a 12 did and she's saying,"No,I didn't" 12 citation to Municipal Code Section 5.8718064 and it 13 And as I said at the outset,which may have 13 states that a massage establishment permit can be 14 been a combination argument/opening,was the fact-- 14 revoked when the establishment is being operated in an 15 while i say it as a lawyer--and Mr.Jimenez rightly 15 illegal or disorderly manner, and as I described before 16 exempting Ms.Kong as a witness,I certainly would have 16 in Ms.Aylaian's 8eclaration the fact-Ms.Aylaian's 17 wanted to produce her as a witness,if I could,but{ 17 decfaration and Depury Bazanos'declaration-the things 18 have to--if I was representing her,.and I brought her 18 that happened to Bazanos constitute the business being 19 down here,she'd take the Fifth. So there's no point in 19 operated In an illegal or disorderly manner. 20 having an interpreter and having her to take the Fifth 20 So while there's a reference to prostitution 21 at this time. 21 in the beginning of the letter thaYs not the sole-- 22 7here's an old saying from law school the law 22 that`s not the basis of revocation,that's just a , 23 doesn't require useless acts;and that would be one of 23 reference point tn the incident that happened on 24 them,clearly,when he advised her not to testify. So I 24 December 19th. Just to clarify. � 25 haven't put on any live witnesses other than 25 1"HE HEARiNG OFFICER: Very well. I'll close the Page 41 . Page 43 �: Wall Street Reporting,lnc, Wall Street Reporting,inc. ' 213.612.4485 � 213.612.4485 1 Mr.Andrews,but his understanding she's going to cfose 1 hearing. My procedure in this matter is to take this • 2 down the business for"X"--it's not a--!think if s 2 back and review your comments and the tape and a►I the 3 wrong to come in and say,"Well,it realiy wasn't X," 3 infiormation thaYs been supplied to me and then prepare 4 because obviously from the tape you can--i�'s crystal 4 my findings of fact and recommendation. And, now,as I 5 clear there's no prostitution going on but it's 5 understand ik procedurally, I'm making findings of fact 6 something else--it was the touching,so on. 6 and recommendation to the City Councit with regard to 7 And,again,this could have been an ironclad 7 the massage license and to the Planning Commission with 8 case on the tape if he's saying,"Oh,you took off my 8 regard to the conditional use permit. Is that-- 9 towel;'or whatever it was. "Oh,you're grabbing me, 9 MS.SHALHOUB: That is correct. 90 you're touching me" What am I going to say? That's 10 THE HEARING OFFICER: So thank you everybody. And 11 where it is, I really can't cross-examine that tape, 11 we'll stand adjourned. 12 neither can the City. So that's why I'm so secure in my 12 (Ending time: 11:42 a.m.) 13 belief that there was no grounds whatsoever for this 13 14 suspension or revocation. Thankyou. 14 15 THE HEARING OFFICER: Does anybody else have any 15 16 comments or evidence that will assist me in making a 16 17 decision in this case? �� 18 MR.VODNOY: One other thing. I want to comment 18 19 again about the drinking. I mean that is so �9 20 inappropriate,so inappropriate. 1t can't be a ruse; 20 21 it's outside. I mean,he didn't walk in and drink. 1 2� 22 just-- 22 23 MR.ANDREWS: On the video--when the officer 23 24 handed the can to the therapist,it looked Ilke it was 24 25 wet to the touch because I saw her. 25 , Page 42 Page 44 Wall Street Reporting,lnc. Wall Street Reporting,lnc. � 213,612.4485 213,612.4485 � i Page 45 � 1 2 REPORTER'S CERTIFICA7E � 3 � 4 p p : � I,S��anjee Bautista�CSI\�C. �JJZV, a 6 Certified Shorthand Reporter in and for the State of . 7 California,do hereby certify: � 8 That the foregoing proceedings were reporfed 9 stenographicaily by me and were transcribed through 10 computerized transcription under my direction;that the � 11 foregoing is a true and accurate record of the 12 proceedings taken at that time. 13 In witness whereof I have subscribed my name 14 this day of ,2010. 15 16 . 17 18 SEGONJEE BAUTfSTA 99 CSR No.12238 20 21 22 23 24 25 Page 45 Wal( Street Repo�fing,lnc. 213.612.4485 �