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HomeMy WebLinkAbout01 APPEAL OF DENIAL OF MASSAGE ESTABLISHMENT APP - TUSTIN DAY SPAAgenda Item 1 Reviewed AGENDA REPORT City Manager / MEETING DATE: MARCH 4, 2014 TO: JEFFREY C. PARKER, CITY MANAGER Finance Director FROM: JULIE INTERRANTE, CUSTOMER SERVICE SUPERVISOR SUBJECT: APPEAL OF DENIAL OF MASSAGE ESTABLISHMENT APPLICATION — TUSTIN DAY SPA SUMMARY: APPELLANT: LISA HUYNH 14892 STRANYAN CIRCLE WESTMINSTER, CA 92683 LOCATION: 18121 IRVINE BLVD., SUITES A & B TUSTIN, CA 92780 Ms. Lisa Huynh ("Appellant") appeals from and requests reconsideration of the Planning Commission's January 28, 2014 decision upholding the Director of Finance's November 25, 2013 denial of a massage establishment permit application for Tustin Day Spa (18121 Irvine Blvd., Suites A & B, Tustin, CA). The Director of Finance's November 25, 2013 Denial of Massage Establishment Permit Application is included as Attachment "A". Planning Commission Resolution No. 4252 upholding the denial of the Tustin Day Spa massage establishment permit is included as Attachment "B". The Appellant's February 05, 2014 written appeal, as supplemented by letter dated February 12, 2014, is included as Attachment "C". Any decision of the Planning Commission may be appealed to the City Council. All appeals must be made in writing and must specify the decision appealed from, the specific action or relief sought by the appellant in the appeal, and the reasons why the action taken by the Planning Commission should be modified or reversed. The appeal hearing shall be de novo and the City Council may approve, approve with conditions, or disapprove the matter, or remand the matter to the Planning Commission for further proceedings in accordance with directions of the City Council. (TCC § 9294(b)) RECOMMENDATION: It is recommended the City Council uphold the denial of the Appellant's massage establishment permit application and approve Resolution No. 14-21. Agenda Report March 4, 2014 Denial of Massage Establishment Permit Application Page 2 FISCAL IMPACT: None. BACKGROUND: On September 18, 2013, the Appellant submitted a massage establishment permit application to the City for Tustin Day Spa, to be located at 18121 Irvine Blvd., Suites A & B, Tustin, CA ("Proposed Location"). Another massage establishment, known as Aquatic Oasis, had previously operated from the Proposed Location. On August 15, 2013, the Tustin Police Department conducted an undercover investigation of Aquatic Oasis and made an arrest for solicitation of prostitution in violation of California Penal Code section 647. On October 14, 2013, the Director notified the owner of Aquatic Oasis of the City's intent to revoke its massage establishment permit due to violations of Tustin City Code sections 3667 and 3668. On October 28, 2013, an open hearing before an independent Hearing Officer was held to receive and consider all testimony and relevant evidence. Following the presentation of evidence by the City, the Hearing Officer determined that good cause existed to support the revocation of Aquatic Oasis' massage establishment permit. On November 13, 2013, the Director revoked the permit and transmitted notice of said revocation to the owner of Aquatic Oasis. Pursuant to Tustin City Code section 3741, the Director shall reject an application for a massage establishment permit for a particular location where, within the preceding twelve months, a permit issued for the same location has been revoked, and where there has not been an intervening change in the circumstances that would correct the reasons for revocation. Tustin City Code Section 3741 is consistent with California Business & Professions Code § 4613(c), which authorizes the City to disallow the opening of a new massage establishment in a location where a massage establishment has been closed due to criminal activity. ti The City is not required to establish a connection between the revoked establishment and a new applicant in order to deny a massage establishment permit. The Tustin City Code allows for denial based on a prior revoked permit even if the former permittee and the applicant are entirely unrelated. Because of the recent revocation of the permit issued for Aquatic Oasis at the Proposed Location, the Director denied the Appellant's massage establishment permit application on November 25, 2013. On December 2, 2013, the Appellant filed an appeal of the Finance Director's decision to deny a massage establishment permit. On January 28, 2014, the Planning Commission held Agenda Report March 4, 2014 Denial of Massage Establishment Permit Application Page 3 a public hearing to receive and consider all testimony relevant to the appeal. Following the presentation of evidence by both the City and the Appellant, the Planning Commission upheld the Director's November 25, 2013 denial of the massage establishment permit. On February 5, 2014, the Appellant filed a written appeal from the Planning Commission determination to the City Council, which Appellant then supplemented with additional correspondence on February 12, 2014. Although not necessary for the denial of the massage establishment permit application, City staff has identified links existing between the Appellant, Aquatic Oasis, and another massage establishment known as Elegant Spa. Located at 13762 Newport Ave., Suite C, Tustin CA, Elegant Spa was owned and operated by the same proprietor as Aquatic Oasis. Like Aquatic Oasis, the massage establishment permit for Elegant Spa was revoked in November 2013 following the arrest of an employee for solicitation of prostitution in violation of California Penal Code section 647. The facts linking the Appellant to Aquatic Oasis and Elegant Spa include: (1) Two masseuses listed in the Appellant's application materials, Xuan Pham and Tiffany LE, are past employees of Elegant Spa. (See Attachment "D") (2) An unidentified "agent" submitted the Tustin Day Spa permit application on behalf of Appellant. City staff immediately recognized this agent as the person that had brought massage therapists for Aquatic Oasis as well as Elegant Spa into City Hall to obtain business licenses. Qkw',o- �2,w jua Julig InterrantePamela A nds-King Customer Service Supervisor irector of Finance/City Treasurer Attachments: Resolution No. 14-21 A. Denial of Massage Establishment Permit Application B. Planning Commission Resolution No. 4252 C. Appellant's written appeal w/ supplemental correspondence D. Employee Information & Elegant Spa Business License Info RESOLUTION NO. 14-21 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN,. CALIFORNIA, UPHOLDING THE DENIAL OF THE TUSTIN DAY SPA MASSAGE ESTABLISHMENT PERMIT APPLICATION FOR THE PREMISES LOCATED AT 18121 IRVINE BOULEVARD, SUITES A & B TUSTIN, CALIFORNIA The City Council of the City of Tustin does hereby resolve as follows: WHEREAS, that on September 18, 2013, a proper application for a massage establishment permit was submitted by Ms. Lisa Huynh, as owner and operator, for the operation of a facility named Tustin Day Spa located at 18121 Irvine Boulevard, Suites A & B, Tustin, California (the "Proposed Location"); WHEREAS, that prior to Ms. Huynh's submittal of a massage establishment permit application, another massage establishment, known as Aquatic Oasis, had operated from the Proposed Location; WHEREAS, that on August 15, 2013, the Tustin Police Department conducted an undercover investigation of Aquatic Oasis and made an arrest for solicitation of prostitution in violation of California Penal Code Section 647; WHEREAS, that on October 14, 2013, the Director of Finance notified the owner of Aquatic Oasis of the City's intent to revoke its massage establishment permit due to violations of Tustin City Code Sections 3667 and 3668; WHEREAS, that on October 28, 2013, an independent Hearing Officer held an open hearing to receive and consider all testimony and relevant evidence concerning revocation of the Aquatic Oasis massage establishment permit; WHEREAS, that the Hearing Officer determined that good cause existed to support the revocation of the massage establishment permit for Aquatic Oasis; WHEREAS, that on November 13, 2013, the Director of Finance revoked the Aquatic Oasis massage establishment permit and transmitted notice of said revocation to the owner and operator of the facility; WHEREAS, that pursuant to Tustin City Code Section 3741, the Director of Finance shall reject an application for a business permit for a particular location where, within the preceding twelve (12) months, a business permit at that location has been revoked, and where there has not been an intervening change in the circumstances that would correct the reasons for revocation; WHEREAS, that California Business & Professionals Code Section 4613(c) authorizes the City to restrict the opening of a new massage establishment in a location in which a massage establishment has been closed due to criminal activity; WHEREAS, that on November 25, 2013, the Director of Finance denied the massage establishment permit application for Tustin Day Spa, in accordance with Tustin City Code Section 3741, because the Aquatic Oasis massage establishment permit had been revoked at the Proposed Location within the preceding twelve (12) month period; WHEREAS, that on December 2, 2013, Ms. Huynh appealed the denial of the massage establishment permit application for Tustin Day Spa to the Planning Commission; WHEREAS, that on January 28, 2014, after holding a duly called and noticed public hearing on the matter, the Planning Commission by unanimous vote enacted Resolution No. 4252 upholding the denial of the Tustin Day Spa massage establishment permit application for the Proposed Location; WHEREAS, that on February 5, 2014, Ms. Huynh appealed from the Planning Commission decision to uphold the denial of the massage establishment permit application for Tustin Day Spa to the City Council; WHEREAS, that a public hearing was duly called, noticed, and held for said appeal on March 4, 2014 by the City Council; WHEREAS, that the City Council determines that the denial of the Tustin Day Spa massage establishment permit application occurred less than one month following revocation of the Aquatic Oasis massage establishment permit for the Proposed Location; WHEREAS, that the City Council determines that there has not been an intervening change in circumstances that would eliminate the reasons for the revocation; WHEREAS, that the City Council determines, based on the foregoing, that the Planning Commission correctly determined that the Director of Finance properly denied the massage establishment permit application for Tustin Day Spa pursuant to Tustin City Code Section 3741 and in accordance with California Business & Professionals Code Section 4613(c). NOW, THEREFORE, it is hereby ORDERED and DETERMINED, as follows: The City Council of the City of Tustin hereby upholds the Planning Commission decision to uphold the denial of the Tustin Day Spa massage establishment permit application for the premises located at 18121 Irvine Boulevard, Suites A & B, Tustin, California. Resolution No. 14-21 PASSED AND ADOPTED at a regular meeting of the City Council of the City of Tustin held on the 4th day of March 2014. Elwyn A. Murray, Mayor ATTEST: Jeffrey C. Parker, City Clerk STATE OF CALIFORNIA ) . COUNTY OF ORANGE ) CITY OF TUSTIN ) I, Jeffrey C. Parker, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council is five; that the above and foregoing Resolution No. 14-21 was duly passed and adopted at a regular meeting of the City Council, held on the 4th day of March 2014 by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: Jeffrey C. Parker, City Clerk Resolution No. 14-21 Attachment 0 inance Department SENT VIA CERTIFIED U.S'., MAIL November 25, 2013 Lisa Huynh 14892 Stanyan Cir Westminster, CA 92683 TUSTIN BUILDING OUR FUTURt HONORINC;;: OUR VAST SUBJECT: DENIAL OF MASSAGE ESTABLISHMENT PERMIT APPLICATION — TUSTIN DAY SPA Dear Ms. Huynh: I am writing to inform you that your massage establishment permit application, dated September 17, 2013, for'Tustin Day Spa" (18121 Irvine Blvd. Ste A & B, Tustin, CA) has been denied. Pursuant to Tustin City Code section 3741, the City may deny a massage establishment application for a particular location where,, within the preceding twelve- months, a permit issued for the same location has been revoked. On November 13, 2013, the City revoked a massage establishment permit issued to the prior occupants of the above -referenced address. Because a revocation occurred at this location within the past month, the City is denying your application for a massage establishment permit. Please be advised that you may appeal this determination to the Planning Commission within ten (10) calendar days of the date of this writing. (TCC §§ 3731 and 9294(a)). Sincerely, Pamela Arends-King Director of Finance/interim City Treasurer G. Elizabeth A. Binsack, Community Development Director Julie Interrante Customer Service Supervisor Scott Reeksbn, Principal Planner David Kendig, Woodruff, Spradlin & Smart Michael S. Daudt, Woodruff, Spradlin & Smart Charles Celano, Interim Police Chief James Brabeck, Police Sergeant 300 Centenngal Wags Tustin, CA 9 2780 0 R (7 1 4i 57 30(uo (70.4) s324)825 * www. tustint; .ori„ Attachment �wl RESOLUTION NO. 4252 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN UPHOLDING THE DENIAL OF THE TUSTIN DAY SPA MASSAGE ESTABLISHMENT PERMIT APPLICATION FOR THE PREMISES LOCATED AT 18121 IRVINE BOULEVARD, SUITES A & B. The Planning Commission of the City of Tustin does hereby resolve as follows: The Planning Commission finds and determines as follows: A. That on September 18, 2013, a proper application for a massage establishment permit was submitted by Ms. Lisa Huynh, as owner and operator, for the operation of a facility named Tustin Day Spa located at 18121 Irvine Boulevard, Suites A & B, Tustin, California (the "Proposed Location"); B. That prior to Ms. Huynh's submittal of a massage establishment permit application, another massage establishment, known as Aquatic Oasis, had operated from the Proposed Location; C. That on August 15, 2013, the Tustin Police Department conducted an undercover investigation of Aquatic Oasis and made an arrest for solicitation of prostitution in violation of California Penal Code Section 647; D. That on October 14, 2013, the Director of Finance notified the owner of Aquatic Oasis of the City's intent to revoke its massage establishment permit due to violations of Tustin City Code Sections 3667 and 3668; , E. That on October 28, 2013, an independent Hearing Officer held an open hearing to receive and consider all testimony and . relevant evidence concerning revocation of the Aquatic Oasis massage establishment permit; F. That the Hearing Officer determined that good cause existed to support the revocation of the massage establishment permit for Aquatic Oasis; G. That on November 13, 2013, the Director of Finance revoked the Aquatic Oasis massage establishment permit and transmitted notice of said revocation to the owner and operator of the facility; H. That pursuant to Tustin City Code Section 3741, the Director of Finance shall reject an application for a business permit for a particular location where, within the preceding twelve (12) months, a business permit at that location has been revoked, and where there has not been an intervening change in the circumstances that would eliminate the reasons for revocation; I. That California Business & Professionals Code Section 4613(c) authorizes the City to restrict the opening of a new massage establishment in a location in which a massage establishment has been closed due to criminal activity; J. That on November 25, 2013, the Director of Finance denied the massage establishment permit application for Tustin Day Spa, in accordance with Tustin City Code Section 3741, because the. Aquatic Oasis massage establishment permit had been revoked at the Proposed Location within the preceding twelve (12) month period; K. That on December 2, 2013 Ms. Huynh appealed the denial of the massage establishment permit application for Tustin Day Spa; L. That a public hearing on the matter was duly called, noticed, and held for said appeal on January 28, 2014, by the Planning Commission; M. That the Planning Commission determines that the denial of the Tustin Day Spa massage establishment permit application occurred less than one month following revocation of the Aquatic Oasis massage establishment permit for the Proposed Location; N. That the Planning Commission determines that there has not been an intervening change in circumstances that would eliminate the reasons for the revocation; and O. That the Planning Commission determines, based on the foregoing, that the Director of Finance properly denied the massage establishment permit application for Tustin Day Spa pursuant to Tustin City Code Section 3741 and in accordance with California Business & Professionals Code Section 46013(c). II. The Planning Commission hereby upholds the denial of the Tustin Day Spa massage establishment permit application for the premises located at 18121 Irvine Boulevard, Suites A & B, Tustin, California. PASSED AND ADOPTED at a regular meeting of the Tustin Planning Commission held on the 28th day of January, 2014. -8TE OZAK Chairperson ELIZABETH A. BIN ACK Planning Commission Secretary STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, ELIZABETH A. BINSACK, the undersigned, hereby certify that I am the Planning Commission Secretary of the Planning Commission of the City of Tustin, California; that Resolution No. 4252 duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 28th day of January, 2014.. ELIZABETH A. BINSACK Planning Commission Secretary Attachment C VIA HAND DELIVERED Re: Lisa Huynh 14892 Stanyan Cir. Westminster, CA 92683 To whom it may concern: CITY OF TUSTIN A 14 FEB - S P 12: 4 3 After the appeal on January 28, 2014. The evident had provided there is no connection between the "unidentified agent" and me. That "unidentified agent" sold the business to me for $70,000 including the improvement and promised to apply the business license for me. The masseuses that worked for me were an independent contractor. I had no control over them who they would want to work for. They have their own massage therapy license and business license. Besides, the city has to approve their license before they are working for me. I understand, the City has to enforce the City code & rule. But City has to consider their back ground. If the back ground is bad. The City should revoke their business license forever to operate that business. Since, you are using the 12 months rule & the relationship to the operate rule. Is it work? I'm sure that is not working, if you don't helping the clean operator and eliminate the bad operator. I has been operate same type of business for so many years and until now. I'm using all my heart and energy in exchange food for my family. I'm also promise to myself provide a better health for anyone who need it. I had been save just enough money to purchase one more business. because of the unfair the City code & rules. I'm not only lose all the money that I had save for so many years and liable for the lease agreement for 3 years with all damages. Which is, I'm the only one know last. It's the 12 months rule. if the City post the notice at that business place to beaware and notify anyone apply for a business license. You can save us so many troubles. I wish and hope that you can give me a change to prove my business. Please help me to provide a quality services for the public health. Thank you very for your consideration, concern. Sincerely, Lisa H n Cell: (714) 280-5215 CITY 4F TUSTIN Zblil FEB 12 P 12: 32 February 12, 2014 VIA HAND DELIVERY City of Tustin Office of the City Clerk City Clerk Services Supervisor 300 Centennial Way Tustin, CA 92780 Re: APPEAL OF THE PLANNING COMMISSION DENIAL OF MASSAGE ESTABLISHMENT APPLICATION — TUSTIN DAY SPA ON JANUARY 28, 2014 To Whom it may concern: On January 28, 2014. The Business License Supervisor, The Police Department and The Landlord Lawyer was base on their visual, thinking and incorrect information to link me and my business application license to the matter that cause THE PLANNING COMMISSION DENIAL OF MY MASSAGE ESTABLISHMENT APPLICATION. Beside that, I have to face with the landlord law sue for not perform the lease agreement for 3 years and restore the improvement that the one (Ton & Associated AKA Jimmy & Tony) sold me the business which promised me the purchase price including the improvement. Not only I spent more than $70,000 that I borrowed to purchased the business & improvements. If I knew the problems or know how to do everything myself. It would not cause me so much of Cie problems. The mistake that I had is, because I speak & understand poorly English. 1 just relied all the help and what ever they told me. I borrow that much of capital invest into the business. I bring business to the City, Jobs to save the unemployment and pay all kinds of taxes and fees. Please tell me, What am I doing wrong? As a business owner, if you spend so much money, your soul & energy into it. Of cause, you will do whatever you can to be good in the business, am right. l do this business, because this is my only profession. I had been in the business for so many years. I put all my soul and energy to improve people health and well being. Base on all the reasons. I hope the City, the Director of Community or Zoning Administrator and the Planning Commission should be modified, or reversed the decision of denial my business license. That will not only save my life and all the problems will arising out. Please give me a change to serve the general public. Thank you very much for your understand and concern. Sincerely,, Lisa K yn Tustin Day Spa Attachment Business License Account 99062222 - XUAN PHAM o . file Account Search View Hatch Processing ecord Tools Help _4 a j X I Contact Information usiness amation , Owner Information I License Information Ownership Type Federal ID (FEIN/SSN) State ID (SEINJ Sale Proprietor —� 624-36-9186 Contractor # Contractor Expiration Date Date 0 pened 9268 05/11/2014 r— n City 11/15/M2 Permits Attributes Properriet Resale Account Rate 7ype Rate Description JA� BASED ON GROSS RECEIPTS Assessmert Type Assessment Description Date Closed �Buusine'ct Code Buvmss Code Da= fipbon SIC Code SIC Code Description 7299 Mise Personal Svcs, NEC MCS Code NAICS Code Description I P1 , Business Description OUT OF CITY MASSAGE THERAPIST @ ELEGANT SPA +4 F I Business License Account 99062126 - TIFFANY LE o i Ede Account Search view fiatch Processing Record Tools }Telp X 41, Contact Information Bis Information I Owner Information I Licence Information I Pem>itsAtti butes j Roperties I CtIL Ownership Type f=ederal ID (FEIN/SSNI State 1D (SEIN) Resale Account • 548.63.5856 Contractor B Contractor Expiration Date Date Opened Date Ci3aed 25568 109M2013 r In Cly 10/15/2012 Rete Type Rate Description 1A BASED ON GROSS RECEIPTS Ass mwm t Type Assessment Description J Business Code SIC Code 7299 Bi.ni s Code Description SIC Code Description Mix Personal Svcs, NEC NAICS Code NAICS Code Description Buirrress Deccxiption OUT OF CITY MASSAGE THERAPIST @ ELEGANT SPA