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HomeMy WebLinkAbout608 E Live Oak Ave.July 12, 2011 STAFF REPORT Development Services Department TO: Arcadia Business Permit and License Review Board FROM: Jim Kasama, Community Development Administrator By: Silva Vergel, Business License Officer SUBJECT: An appeal of a business license revocation for noncompliance with the City of Arcadia Business License regulations by Yu Sang Tang Acupuncture Center at 608 East Live Oak Avenue SUMMARY The Business License Office revoked the license of Yu Sang Tang Acupuncture Center located at 608 East Live Oak Avenue on May 25, 2011. The license was revoked because the Department of Consumer Affairs Acupuncture Board had revoked the license of the acupuncturist Zhen Qing Cao on June 16, 2010. The revocation notice is attached as Exhibit 'A'. Ms. Zhen Qing Cao owner of Yu Sang Tang Acupuncture Center filed an appeal of the business license revocation on June 6, 2011. The appeal letter is attached as Exhibit 'B'. An aerial photo with zoning information and photos of the site have been attached as Exhibits `E' and 'F', respectively. BACKGROUND Ordinance No. 2263 was adopted on December 1, 2009 and designated the Planning Commission as the Business Permit and License Review Board (Board). The Board serves to hear appeals of business license denials and revocations and is the first arbiter of appeals. The Board's decision may be appealed to the City Council. Revocation and Appeal Process Per Arcadia Municipal Code Section 6216.7, the Business License Officer may suspend or revoke any business license upon receipt of information from any source that any of the following has occurred: (1) The holder of the license, or his or her employee, agent, partner, director, officer, controlling stockholder or manager has knowingly made any false, misleading or fraudulent statement of material facts in (2) The business has been expanded, or partially or wholly converted to another business without the required City approvals and permits; or The holder of the license has violated any of the conditions of said license, or has violated or permitted to be violated any law or laws of the United States or the State, or any ordinance applicable to the premises where the business covered by said license is conducted, or in connection with said business; or (3) the application for the license or permit, or in any report or record required to be filed with the City's Police Department, County Health Department, or any other City Department or office in connection with the operation of the business; or (4) The holder of the license, or his or her employee, agent, partner, director, officer, controlling stockholder or manager has, in the conduct of the same or any similar business, been guilty of fraud, misrepresentation or conduct detrimental to the public welfare which includes operations or activities that do not comport with the peace, health, safety and convenience of the public such as (a) operation of a business prohibited by local or state law (b) allowance of activities that are or become a public nuisance which includes the disruptive conduct of business patrons whether on or immediately off the premises where such patrons disturb the peace, obstruct traffic, damage property, engage in criminal conduct, violate the law and otherwise impair the free enjoyment of life and property. Subsequent to the issuance of a revocation and within ten (10) days, an applicant or business licensee may file an appeal to the Business Permit and License Review Board (Board) and within 30 days or as soon thereafter as possible, a hearing shall be conducted by the Board. Any Board member who has any financial interest in the outcome of the hearing or is unable to make a fair, impartial and unbiased determination shall not participate in either the hearing or in any determination or recommendation after the hearing. During the hearing, all parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. The Board shall not be bound by the formal rules of evidence and may require the presentation of additional evidence from any party involved. Any hearing under these provisions may be continued for a reasonable time for the convenience of a party or witness at the request of the applicant or licensee, or any other party. Extensions of time or continuances sought by an applicant or licensee shall not be considered delay on the part of the City and shall not be deemed to constitute failure by the City to provide for a prompt decision. Yu Sang Tang Acupuncture Center 608 E. Live Oak Ave. July 12, 2011 — Page 2 At the conclusion of the hearing, the Board shall, by a majority vote of the members present at the hearing, order that the license be revoked, suspended, reinstated, or reinstated contingent upon the applicant or licensee performing some remedial action such as, but not limited to, paying a fine or penalty. The Board may also prevent the holder of a revoked or suspended license from applying for a new license within one year or such other certain, specified reasonable time period as the Board deems prudent. Within ten (10) days of receiving notice of the Board's decision, the holder of the revoked license, any member of the City Council, any affected City Department Head, or any other business or resident of the City may appeal the decision by filing an appeal to the City Council. GENERAL INFORMATION APPELLANT: LOCATION: REQUEST: Ms. Zhen Qing Cao, the owner of Yu Sang Tang Acupuncture Center 608 E. Live Oak Avenue An appeal of a business license revocation for noncompliance with the Arcadia Municipal Codes relative to Business License regulations. DISCUSSION Business License No. 049933 was issued to Ms. Zhen Qing Cao on April 9, 2009 to operate an acupuncture office at 608 E. Live Oak Avenue. The business license was issued for the operation of the acupuncture business and not for any massage therapists. Yu Sang Tang Acupuncture Center was inspected by the City on the following dates: June 3, 2009, July 9, 2009, October 22, 2009, January 19, 2010, March 5, 2010, November 3, 2010 and March 10, 2011. Violations of the Arcadia Municipal Code were observed on June 3, 2009 and July 9, 2009. There were no violations observed at the later inspections. On May 24, 2011, it was brought to the attention of staff that the acupuncture license for Ms. Cao, the operator of Yu Sang Tang Acupuncture Center had expired. Staff conducted an investigation and found that Ms. Cao's acupuncture license had been revoked by the State Department of Consumer Affairs Acupuncture Board on June 16, 2010. California Business and Professions Code Section 4935(a)(1) states that it is a misdemeanor, punishable by a fine or by imprisonment in a county jail not exceeding one year, or by both (fine and imprisonment), for any person who does not hold a current and valid license to practice acupuncture or to hold himself or herself out as practicing or engaging in the practice of acupuncture in the State of California. Yu Sang Tang Acupuncture Center 608 E. Live Oak Ave. July 12, 2011 — Page 3 Business and Professions Code section 4960.2 requires that the State notify the licensing agency of the revocation of any acupuncturist's license. The City, however, did not receive a notification of this revocation and therefore did not take the appropriate action to revoke Ms. Cao's license at the time. Consequently, on March 31, 2011, Business License No. 049933 was renewed and the appropriate fees were collected. The Acupuncture Board had revoked the license of Ms. Cao on June 16, 2010. Administrative Law Judge Vincent Nafarrete made the determination that Ms. Cao knowingly failed to disclose her 2000 and 2007 convictions for solicitation of prostitution in her application for a license examination and the subsequent updates of said applications. Solicitation of prostitution is a crime substantially related to the qualifications, functions, or duties of a licensed acupuncturist. The "Legal Conclusions" further stated that Ms. Cao continued to engage in a pattern of dishonest conduct and deceit with the Acupuncture Board and committed her offense while operating as a licensed acupuncturist. The "Accusation" and "Decision and Order" have been attached as Exhibits 'C' and 'D', respectively. Business and Professions Code 4960.5.1 states that when a license has been revoked, another license may not be issued for at least three (3) years. Staff has been made aware that the applicant intends to file an application with the State Department of Consumer Affairs Acupuncture Board to have her license reinstated, but an Enforcement Coordinator with the Acupuncture Board has informed this office that the request should be denied because three (3) years have not passed since the date of revocation. RECOMMENDATION The Development Services Department recommends that the appeal be denied and the revocation of the business license for Yu Sang Tang Acupuncture Center be upheld, and that Ms. Zhen Qing Cao not be allowed to own, work or operate a business in the City of Arcadia for a period of one (1) year. After this ban, Ms. Cao may file for another business license as an acupuncturist only if she has a valid license issued by the State of California. Alternatively, if the appeal is to be approved, the Development Services Department recommends the following conditions of approval: 1. The business and premises must be in compliance with the Arcadia Municipal Code, and all other applicable State and Federal regulations. 2. The business license shall be subject to review by the Business License Office for twelve (12) months, and should any violation occur, it shall be brought directly to the Business Permit and License Review Board's attention, at which time the Board may revoke the business license in accordance with Sections 6216.7 and 6216.8 of the Arcadia Municipal Code. Yu Sang Tang Acupuncture Center 608 E. Live Oak Ave. July 12, 2011 — Page 4 BUSINESS PERMIT AND LICENSE REVIEW BOARD ACTION Approval of Appeal If the Business Permit and License Review Board (Board) intends to approve the appeal and overturn the revocation, the Board should move to sustain the appeal and overturn the revocation and state the reason(s) for the decision based on the evidence presented, subject to the following conditions or as modified by the Board: 1. The business and premises must be in compliance with the Arcadia Municipal Code, and all other applicable State and Federal regulations. 2. The business license shall be subject to review by the Business License Office for twelve (12) months, and should any violation occur, it shall be brought directly to the Business Permit and License Review Board's attention, at which time the Board may revoke the business license in accordance with Sections 6216.7 and 6216.8 of the Arcadia Municipal Code. Denial of Appeal If the Business Permit and License Review Board (Board) intends to deny the appeal and uphold the revocation, the Board should move to deny the appeal and uphold the revocation of the business license for Yu Sang Tang Acupuncture Center and require that Ms. Zhen Qing Cao not be allowed to own, work or operate a business in the City of Arcadia for a period of one (1) year or for such time that the Board deems prudent. After the ban, Ms. Cao may apply for a business license only if the State has reinstated her acupuncture license. If any Business Permit and License Review Board member, or other interested party has any questions or comments regarding this matter prior to the July 12 hearing, please contact Business License Officer, Silva Verge! at (626) 574 -5430 or svergel @ci.arcadia.ca.us. Approved by: Jim Co • unity Development Administrator Attachments: Exhibit `A' — Revocation Notice Exhibit `B' — Letter of Appeal Exhibit `C' — "Accusation" Exhibit `D' — Decision and Order Exhibit `E' — Aerial Photo w /Zoning Information Exhibit `F' — Photos of Site Yu Sang Tang Acupuncture Center 608 E. Live Oak Ave. July 12, 2011 — Page 5 City of Arcadia Development Services Department Jason Kruckeberg Assistant City Manager/ Development Services Director 240 West Huntington Drive Post Office Box 60021 Arcadia, CA 91066 -6021 (626) 574 -5415 (626) 447 -3309 Fax www.ci.arcadia.ca.us May 25, 2011 Ms. Zhen Qing Cao Yu Sang Tang Acupuncture Center 608 E. Live Oak Ave. Arcadia, CA 91006 SUBJECT: Revocation of Business License No. 049933 Dear Ms. Cao: HAND DELIVERED The purpose of this letter is to inform you that Business License No. 049933 for an acupuncturist's office located at 608 E. Live Oak is being revoked effective June 7, 2011. Said revocation is due to violations of the Arcadia Municipal Code that have been listed below as well as the revocation of your Acupuncture license by the Department of Consumer Affairs Acupuncture Board (attached): 1. 6212.1 2. 6212.2 3. 6216.7.3. You are to cease the operation of your business by the above date. Continuing to operate the business in the City without a license violates Arcadia Municipal Code Section 6211, which constitutes a misdemeanor. Per Arcadia Municipal Code Section 6216.8 (attached) you may appeal this decision within ten (10) days of the date if this notice. Said appeal must be made in writing and delivered to the undersigned by Tuesday, June 7, 2011. If you have any questions, please contact me at (626) 574 -5430 or at svergel @ci.arcadia.ca.us. Sincerely, Silva Vergel Business License Officer Enclosures C: Zhen Qing Cao Faith Kay LLC, (property owner) Detective Vicuna, Police Dept. Same. Violations Not Authorized Same. State License Suspension or Revocation (attached) EXHIBIT `A' Muniode Page 1 of 1 6212.1. - SAME VIOLATIONS NOT AUTHORIZED. Neither the payment of a license fee required by the provisions of this Chapter, nor its acceptance by the City and the issuance of the license to any person, shall entitle the holder thereof to continue or carry on any business in or on any building or premises designated in such license in the event that such building or premises are situated in a zone or locality in which the conduct of such business is in violation of any law (whether federal, state or local) or provision of this Code, nor shall the same authorize the conduct or continuance of any business which for any reason is in violation of any law (whether federal, state or local) or provision of this Code, nor affect or render valid any violation of any zoning regulation of the City, nor authorize the erection of an advertising sign in a residential zone. (Amended by Ord. 2261 adopted 8- 19 -09; Amended by Ord. 2262 adopted 9 -1 -09) 6212.2. - SAME. STATE LICENSE. In any trade or profession where a State license is required, a current State license shall first be exhibited to the License Officer before a City license will be issued. http : / /library.municode.com/print. aspx ?clientlD= 16197 &HTMRequest=http %3 a %2f%2fli... 5/24/2011 Municode Page 1 of 2 6216.7. - SUSPENSION OR REVOCATION. The License Officer may suspend or revoke any business license upon receipt of information from any source that: (1) The holder of the license, or his or her employee, agent, partner, director, officer, controlling stockholder or manager has knowingly made any false, misleading or fraudulent statement of material facts in the application for the license or permit, or in any report or record required to be filed with the city's police department, county health department, or any other city department or office in connection with the operation of the business; or (2) The business has been expanded, or partially or wholly converted to another business without the required City approvals and permits; or (3) The holder of the license has violated any of the conditions of said license, or has violated or permitted to be violated any law or laws of the United States or the State, or any ordinance applicable to the premises where the business covered by said license is conducted, or in connection with said business; or (4) The holder of the license, or his or her employee, agent, partner, director, officer, controlling stockholder or manager has, in the conduct of the same or any similar business, been guilty of fraud, misrepresentation or conduct detrimental to the public welfare which includes operations or activities that do not comport with the peace, health, safety and convenience of the public such as (a) operation of a business prohibited by local or state law (b) allowance of activities that are or become a public nuisance which includes the disruptive conduct of business patrons whether on or immediately off the premises where such patrons disturb the peace, obstruct traffic, damage property, engage in criminal conduct, violate the law and otherwise impair the free enjoyment of life and property. (Amended by Ord. 2263 adopted 12 -1 -09) Editor's note— Ord. No. 2263, § 15, adopted Dec. 1, 2009, amended § 6216.7, in its entirety and enacted new provisions to read asherein set out. Prior to amendment, § 6216.7 pertained to Revocation. See "Ordinance List and Disposition Table" for derivation. 6216.8. - APPEAL AND FINAL DETERMINATION. The actions taken pursuant to Section 6216.6 and 6216.7 require at least ten (10) days' written notice to the applicant. Within ten (10) days of the date of the notice of denial, suspension or revocation, the applicant may file an appeal to the Business Permit and License Review Board. Upon the filing of an appeal, and within thirty (30) days of the date of such appeal, or as soon thereafter as possible, a hearing shall be conducted by the Board. Any Board member who has any financial interest in the outcome of the hearing or is unable to make a fair, impartial and unbiased determination shall not participate in either the hearing or in any determination or recommendation after the hearing. Prior to the hearing, City staff may, in their sole and absolute discretion, request the presence of an attorney from the City Attorney's office at the hearing, if one is not already scheduled to appear, or his /her designee, in order to present evidence on behalf of the City. During the hearing, all parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. The Board shall not be bound by the formal rules of evidence and may require the presentation of additional evidence from any party involved. Any hearing under this Section may be continued for a reasonable time for the convenience of a party or witness at the request of the permit applicant or permit holder, or any other party. Extensions of time or continuances sought by a permit applicant or permit holder shall not be considered delay on the part of the City and shall not be deemed to constitute failure by the City to provide for prompt decisions on permit denials, suspensions, or revocations. At the conclusion of the hearing, but no later than ten (1 0) days thereafter, the Board shall, by a majority vote of the members present at the hearing, order that the license be revoked, suspended, reinstated, or reinstated contingent upon the applicant performing some remedial action such as, but not limited to, paying a fine or penalty. The Board may also prevent the holder of a revoked or suspended license from applying for a new license within one year or such other certain, specified reasonable time period as the Board deems prudent. In lieu of conducting a hearing itself, but only upon recommendation of the City Manager, the Board may choose to refer the matter to an Administrative Law Judge provided by the Office of Administrative Hearings pursuant to Government Code Section 27727. After referral and a hearing, the Administrative Law Judge shall render a written decision based solely on the relevant ordinance and findings of fact within five (5) days of the hearing. The written decision of the Administrative Law Judge shall carry the same weight and authority as decisions of the Board. (Amended by Ord. 2263 adopted 12 -1 -09) http:// library. municode.com /print.aspx ?clientlD= 16197 &HTMRequest =http %3 a %2f%2fli... 5/24/2011 State of California Acupuncture Board Department enni 31 Cry. ? lain`(ler_ Affairs Acupuncture Board Search Results for Acupuncturist This information is updated Monday through Friday - Last updated: MAY -23 -2011 To see all the information for a licensee, click on the highlighted name. This will also include disciplinary actions if any are present. Name CAO ZHEN QING Type AC Number 11785 Status REVOKED Address 1330 N. INDIAN CANYON DR. #D City PALM SPRINGS Zip 92262 Page 1 of 1 County RIVERSIDE Record 1 First Previous Disclaimer All information provided by the Department of Consumer Affairs on this web page, and on its other web pages and intemet sites, is made available to provide immediate access for the convenience of interested persons. While the Department believes the information to be reliable, human or mechanical error remains a possibility, as does delay in the posting or updating of information. Therefore, the Department makes no guarantee as to the accuracy, completeness, timeliness, currency, or correct sequencing of the information. Neither the Department, nor any of the sources of the information, shall be responsible for any errors or omissions, or for the use or results obtained from the use of this information. Other specific cautionary notices may be included on other web pages maintained by the Department. All access to and use of this web page and any other web page or Internet site of the Department is govemed by the Disclaimers and Conditions for Access and Use as set forth at California Department of Consumer Affairs' Disclaimer Information and Use Information. Back( Return to Main License Listing( http:// www2. dca. ca. gov/ p1s/ w1lpub /WLLQRYNA$LCEV2.ActionQuery 5/24/2011 State of California Acupuncture Board Page 1 of 2 D epartment of Conwmer Affairs Acupuncture Board ACUPUNCTURE BOARD Licensee Name: License Type: License Number: License Status: Expiration Date: Issue Date: Address: City: State: Zip: County: Actions: Disciplinary Actions Public Record Action(s) CAO ZHEN QING LICENSED ACUPUNCTURIST 11785 REVOKED Definition October 31, 2010 April 11, 2007 1330 N. INDIAN CANYON DR. # D PALM SPRINGS CA 92262 RIVERSIDE Yes August 25, 2009 March 09, 2010 May 05, 2010 June 16, 2010 June 16, 2010 June 16, 2010 July 19, 2010 July 19, 2010 Accusation Filed Hearing set Proposed decision adopted Decision effective date Petition for reconsideration denied Revocation Writs filed Petition for writ filed Disclaimer for Disciplinary Action Summary The reports contained as part of this web site represent summaries of those formal disciplinary orders issued by the Department of Consumer Affairs (DCA) and its participating programs, boards, committees, and commissions, imposing suspension, revocation or other discipline. Disciplinary proceedings which are resolved by dismissal of the accusation or otherwise result in no actual discipline of a license are not reported at this web site. The lack of a summary for a particular licensed person does not mean that the licensee has never been the subject of an accusation or administrative discipline. Summary information on recent orders is prepared approximately ninety (90) days after the final decision date of a disciplinary case. Therefore, although this web site may presently lack any such report, some licensees will actually be named in accusations, or be subject to disciplinary orders. The brief summaries offered at this web site are not intended as substitutes for the actual decisions and orders issued by the Department of Consumer Affairs. Copies of those decisions and orders are available at no cost by writing to the designated address for each program or board. Also, the actions reported here may not be final and may not reflect any judicial action to stay or modify the administrative order. You should not take any action based on information contained in these summaries without verifying the information and determining whether the administrative order has been stayed or modified by a court. http:// www2. dca. ca. gov/ pls/ wllpub/ WLLQRYNA $LCEV2.QueryView ?P_LICENSE NU... 5/24/2011 State of California Acupuncture Board Page 2 of 2 As used in this summary, the term "accusation" is a formal document that notifies a licensee of the agency's charges against the licensee, and that requests a disciplinary order. The licensee is entitled to contest the charges in a formal hearing before an administrative law judge. An accusation is usually resolved by an agency decision following such a hearing or by an agency decision pursuant to a settlement agreement. Often there is a considerable period of time between the date of filing an accusation and the resolution of the accusation. The term "suspended" means that the licensee's right to practice has been suspended for a period of time, usually for a specified number of days or months. A suspended licensee may not practice during the period of suspension. A suspension will usually be imposed in conjunction with a lengthy period of probation of two or more years. The term "revoked" means that the licensee's right to practice has been completely taken away. Revocation is not necessarily permanent, however. A person whose license is revoked has the right, one year or more after the revocation, to apply for reinstatement. Some applications are successful. The applicant for reinstatement must, however, demonstrate to the ACUPUNCTURE BOARD that the applicant is rehabilitated and is fit to resume practice. For more information regarding these actions, please write to the ACUPUNCTURE BOARD at the following address: 444 North 3rd Street, Suite 260 Sacramento, CA 95814 Attn: Enforcement Unit This information is updated Monday through Friday - Last updated: MAY -23 -2011 Disclaimer All information provided by the Department of Consumer Affairs on this web page, and on its other web pages and internet sites, is made available to provide immediate access for the convenience of interested persons. While the Departmenttelieves the information to be reliable, human or mechanical error remains a possibility, as does delay in the posting or updating of information. Therefore, the Department makes no guarantee as to the accuracy, completeness, timeliness, currency, or correct sequencing of the information. Neither the Department, nor any of the sources of the information, shall be responsible for any errors or omissions, or for the use or results obtained from the use of this information. Other specific cautionary notices may be included on other web pages maintained by the Department. All access to and use of this web page and any other web page or Internet site of the Department is govemed by the Disclaimers and Conditions for Access and Use as set forth at California Department of Consumer Affairs' Disclaimer Information and Use Information. Back http:// www dca. ca. gov/ p1s/ wllpub /WLLQRYNA$LCEV2.QueryView ?P LICENSE NU... 5/24/2011 SUBJECT; REVOCATION OF BUSINESS LICENSE NO.049933 DEAR MS.SILVA VERGEL MS ZHEN QING CAO IS APPEALI NG. HER ATTORNEY JAMES V KOSSETT WILL HANDLE THIS MATTER ON THE DATE OF ,JUNE 16,2011. WHICH SHE FEELS HER LICENSE WILL BE REINSTATED. THANK YOU ZHEN Q CAO l t/L 0? e oN� c c,1- 4±. (z-6..) 3- 1- 31 a 1 / 7 1 ( . / ( EXHIBIT `B' 28 In the Matter of the Accusation Against: ZBEN QING CAO, LAC. 1300 North Indian Canyon Drive Palm Springs, CA 92262 Acupuncture No. AC 11.785, Respondeitt. 2 3 4 9 10 11 12 13 14 EDMUND 6.13RowN JR. Attorney General of California DouG KNOLL Deputy Attorney General State Bar No. 077040 300 South Spring Street, Suite 1702 Los Angeles, California 90013 Telephone: (213) $976z104 Facsimile: (213) 897-9395 Attorneys ,Ibr Complainant FILED AUG 2 5 2009 ACUPUNCTURE BOARD BEFORE THE ACUPUNCTURE BOARD ()F THE STATE OF CALIFORNIA Case No. IA-2008-162 OAll No. ACCUSATION 1 ; Complainant alleges: 17 PARTIES 18 1, Janelle Wedge ("Complainant") brings this Accusation solely in her official capacity 19 as the Executive Officer of the Acupuncture Board ("Board"), 2. On or about April 11, 2007, the Board issued Acupuncture License Number AC 21 11785 to Zhen Qing Cao, L.Ac. ("Respondent"), That license was in full force and effect at all 22 litliCS rCkVatit to the charges brought herein, and will expire cm October 31, 2010, unless 23 renewed. 24 JURISDICTION 25 3. This Accusation is brought before the Board under the authority of the following 26 laws, All section references are to the Business and Professions Code ("Code") unless otherwise 27 indicated. Accusation EXHIBIT 'C' 1 2 3 4 5 7 9 10 11 l� 13 14 l� 16 17 19 20 21 22 23 24 75 26 27 28 4. Section 4$0(c) ofthe Code states: "(c) A board may deny mlicense regulated by thi code on the ground that the applicant knowingly made ufalse statement o[fact required to be revealed in the application for such license." 5. Section 498 �fthe Code states: "A board inay revoke, suspend, ozoU)urwis,e restrict u license nnthe ground that the ieeiisce secured the iicense by fraud, deeeit, or kiiowiug misrepresentation of a material fact or by knowingly omitting io state u material fact" 6. Section 4955 of the Code states, inter alia: "The board may deny, suspend, or revoke or i ac probationary conditions upon, the Iic.ense of any acupuncturist if he or she is guilty of unprofessional conduct. Unprofessional conduct shall inelude, but not he liniited to, the following: ... (b) Cooviud000ymod000subotuo2u\}vnolated|otbmguahficaUumm,buncduox an acupuncturist, the record of conviction being conclusive evidence thereof ... (D &ovuohmnorcouduotdmtvv0uJdbuvov/ao4o1edtUe6cnia|oftbououpuocturoliocuoo." CALIFORNIA PENAL CODE 'Pll(JSI7Tl7[l(}yJ 7. Section 647 ofthe California Penal Code ("Penal Code") states, in pertinent part: "Every perso who corninits any of the following acts is guilty ofdiaorderlyconduct,o misdemeanor: .. . (b) Who solicits or who agrecs to engage in or who engages in any act of prostitution. /\ person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she cumdfem|auuacceptance of an offer or solicitation to so oogugn, regardless 0f whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreemcnt to eugage in an act ofprostituticm ebol|ounmdhz{ouvin}odouofthiosubdivis|no unless sonic act, in addition to the agreement, is done within this state in furtherance of the commission ofan act ofprostithtion by the person agreeing to engage in that act. As used in this subdivision, 'prostitution.' includes any lewd act between persons for:money or other 2 Accusation 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Z3 24 25 26 27 28 FIRST CAUSE FOR DISCIPLINE Rinprofessional Conduct (Criminal Conviction)] 7. Respondent Respondent is subject 10 disciplinary action under section 4955(b) of the Code, in that she has been convicted of a violation of Penal Code 647(b) 'Prostitution], under circumstances which make the crirne substantiafly related to her qualificalions, functioiis and duties as n acupuncturist. m� oDu�c circumstances follows: 8. At all tiines relevant, 1espondent hcld herself out 10 the publie as a duly licensed acupuncturist, legally conducting the business o[ acupuncture m1Cboo'n Acupuncture, 453l'A \Tan Nuys Boukward, Van Nuys, California (hereinafter "the premises"). 9. On or about March 21, 2007, Respondent was arrested on the prernises du business hours, for a violation of Penal Code 0470bl oftnraolicidog and/ar agreeing 10 perform an act of prostitution upon Los Angeles Police Department undercover police officer, M. Hogan, Serial No, 314917, 10. On March 22,20O?, the Los Angeles City ' Attorney filed a Misdemeanor Couiplaint, in Case No. 7PY01646. charging Respondent with two erirninal counts: Count One: violation of Penal Code 647(b) [prastitutionj, and (ount Two: vioiation of Los Angeles Munieipal al Code lO3.2U5.I(b) [acting uwamassage technician without holding u valid massage technician pcmnit issued bv the Los Angeles Board f Police Cornmissionersj. 11. OoNmemberl3,2OO7,6a Department lZlof the Los Angeles County Superior Court, Northeast District, Respondent pled nvlouon/endere to Count On of said Misdenieanor Complwasfomd guilty of said charge by the judge presiding, and was convictad ofone count of violating Penal Code 647(b). The Court dismisscd Count Two, The Court placed Respondent 011 summary probation for a period of twenty-four months on condition that she serve forty-five days in tho County Jail. /// / // /1/ / // Accusa SECOND CAUSE FOR DTSCIPLINE [Unprofessional Conduct (Fraud in Obtaining License)] 12. On or about July 19, 2000, in a prior criminal proceeding entitled People v. Coo, in 4 Los Angeles Superior Court, Case Number 0GL02035, Respondent was convicted of violating Penal Code 647(b), a misdemeanor. 13. On or about April 18, 2003, Respondent applied to take the Board's, licensing examination, in said written application, Respondent was asked the tbilowing: 8 "Have you ever been convicted of, or pled nolo contendere to any offense, 9 misdemeanor or felony in any state, the United States, or a foreign country? if yes, please explain on a separate sheet of paper and include dates, charge/violation, location and penalty or disposition." 1.2 14. Knowing her answer to be false, Respondent replied, "No" to the foregoing question. 13 15. On or about February 15, 2007, Respondent applied to the Board for a license to 14 practice acu.puneture. In said written application, Respondent was asked the following: I 5 "Have you ever been convicted of, or pled nolo contendere to any offense, I 6 misdemeanor OT felony in any state, the United States, or a l'oreign. country? 17 If yes, please explain on a separate sheet ofpaper and include dates, charge/violation, 8 location and penalty or disposition," 19 16. Knowing her answer to be false, Respondent replied, "No" to the .foregoing question. 20 17. Respondent's false statements of fact were grounds for denial of her license, pursuant 21 to section 480(c) of the Code. .Pursuant to section 4955(i) of the Code, Respondent is guilty of 22 unprofesSional conduct, warranting the discipline prayed for herein. 23 18. Separate and apart from sections 480(c) and 4955(i) of the Code, Respondent's false 1 4 statements of fact constitute grounds for the discipline prayed for herein, pursuant to section 498 25 of the Cade, 11 26 /1/ 27 11/ 28 / 4 9 10 11 12 13 4 15 16 17 18 19 20 21 23 24 25 27 28 4 PRAYFR WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged, and that, following the hearing, the Board issue a decision: 1. Revoking or suspending Acupuncture License Number AC 11785, issued to Zhen Cao, LA. ; LA2009.507177 5048763 Ldocx Ordering Zhen Qing Cao to pay the Board the reasonable costs oldie investigation and enforcement of this case, and, if placed on probation, the costs of probation monitoring, pursuant to Business and Professions Code section 4959; 3,, Taking such other and further action as deemed necessary and proper. AUG 2 5 2009 -LE WEDGE ecutive Officer cupuucture Board State of California Complainant A CCUSMitn1 BEFORE THE ACUPUNCTURE BOARD DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation ) Case No.: 1A -2008 -162 Against: ) OAH No.: 2009101569 ) ZHEN QING CAO, L.Ac. ) 1300 NORTH INDIAN CANYON DRIVE ) PALM SPRINGS, CA 92262 ) ) Acupuncture License No. AC 11785 ) Respondent. ) The attached Proposed Decision and Order of the Administrative Law Judge is hereby adopted by the California Acupuncture Board as its Decision in the above - entitled matter. This Decision shall become effective on IT IS SO ORDERED DECISION AND ORDER MAY 17 2010 JUN 16 2010 Robert Brewer, Chair Acupuncture. Board Department of Consumer Affairs State of California EXHIBIT `D' In the Matter of Accusation Against: ZHEN QING CAO, L.AC. 1300 North Indian Canyon Drive Palm Springs, California 92262, Acupuncture License No. AC- 11785, BEFORE THE ACUPUNCTURE BOARD DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA Respondent. PROPOSED DECISION FACTUAL FINDINGS Case No. 1A- 2008 -162 OAH No. 2009101569 This matter was heard by Vincent Nafarrete, Administrative Law Judge of the Office of Administrative Hearings, on March 9, 2010, at Los Angeles. Complainant was represented by Margaret Jaramilla Phe,: Deputy Attorney General. Respondent was not present or represented at the hearing. Oral and documentary evidence having been received and the matter submitted for decision, the Administrative Law Judge finds as follows: 1. On August 25, 2009, the Accusation, Case No. 1A- 2009-162, was made and filed by complainant Janelle Wedge in her official capacity as Executive Officer, Acupuncture Board, Department of Consumer Affairs, State of California (Acupuncture Board). 2. On April 11, 2007, the Acupuncture Board issued acupuncture license no. AC- 11785 to Zhen Qing Cao (respondent). Said license expires on October 31, 2010, unless renewed, and is currently in full force and effect. Respondent's current address of record is 608 — 610 East Live Oak Avenue, Arcadia, California 91006. 3. (A) On August 25, 2009, respondent was served by certified mail with the Accusation, Statement to Respondent, Request for Discovery, two blank Notices of Defense, and copies of required Government Code sections at her address of record pursuant to Government Code sections 11505 and 11507.6. (B) On October 7, 2009, respondent filed a Notice of Defense under Government Code section 11506, acknowledging receipt of the Accusation and requesting a hearing to permit her to present a defense to the charges contained in the Accusation. On the Notice of Defensejespondent listed her mailing address as 4366 1/2 Tyler Avenue, El Monte California 91731. (C) On November 12, 2009, respondent was served by regular mail with a Notice of Hearing at the address that she provided on her Notice of Defense pursuant to Government Code section 11509. The hearing was scheduled for March 9, 2010, at the Office of Administrative Hearings, 320 West Fourth Street, Los Angeles, California 90013. (D) On March 8, 2010, respondent filed a letter, requesting a continuance of the hearing because her son was ill and she had to depart for Harbing, China, as an emergency. She attached a copy of a receipt for purchase of an airline ticket. (E) On March 8, 2010, the Presiding Administrative Law Judge of the Office of Adininistrative Hearings denied respondent's continuance request and informed the parties of the denial andthat the hearing would proceed as scheduled on the next day. (F) On March 9, 2010, respondent failed to appear at the noticed hearing and was deemed in default of the proceeding. Complainant then elected to proceed with the administrative hearing and to present evidence on the Accusation pursuant to Government Code section 11520, subdivision (a). 4. (A) Before she was licensed, on June 20, 2000, before the Superior Court of California, County of Los Angeles, Glendale Courthouse, in People v. Zhen Qing Cao, Case No. 0GL02035, respondent was convicted on her plea of nolo contendere of solicitation of prostitution in violation of Penal Code section 647, subdivision (b), a misdemeanor and crime not necessarily involving moral turpitude. (B) As a result of her plea, imposition of sentence was suspended, and respondent was placed on summary probation for three years on condition that she pay $945 in fines and restitution fees, obey all laws and orders of the court, and complete testing and education in AIDS. (C) On November 20, 2000, respondent submitted to the court proof of having completed the testing and educational course in AIDS and paid the fines and fees of $945. 1 Respondent's request for continuance is hereby marked as Exhibit 1 -A and admitted into evidence as a jurisdictional document. 2 5. (A) On April 18, 2003, respondent filed an Application for Examination and Licensure with the Acupuncture Board in order to take the acupuncture licensing examination. In her application, respondent indicated that she received her education in Oriental Medicine from Heilong Jiang University of Traditional Chinese Medicine and her training in acupuncture at Dongguk Roral University. She stated that she had been licensed to practice acupuncture or Oriental medicine in another state or country but did not list any state or country in her application. (B) Question No. 17 of the Application for Examination and Licensure asked, "Have you ever been convicted of, or pled nolo contendere to any offense, misdemeanor or felony in any state, the United States, or a foreign country." If an applicant has any convictions, the applicant was required to explain any conviction on a separate sheet of paper. (C) In response to Question No. 17, respondent marked and answered, "No." Respondent certified under penalty of perjury that all of her statements in the application were true in every respect. However, respondent's answer to Question No. 17 that she had no convictions to disclose was untrue and false and she knew that her answer was untrue and false. 6. (A) On April 1, 2004, respondent filed an Application Update for Examination and Licensure with the Acupuncture Board. Question No 13 in said application asked, "Have you ever been convicted of, or pled nolo contendere to any offense, misdemeanor or felony in any state, the United States, or a foreign country." In response to Question No. 13, respondent marked and answered, "No." Respondent certified under penalty of perjury that all of her statements in the application were true in every respect. However, respondent's answer to Question No. 13 that she had no conviction was untrue and false and she knew her answer was untrue and false. (B) On an undetermined date after November 20, 2004, respondent filed an Application Update for Examination and Licensure with the Acupuncture Board. Question No. 13 in said application asked, "Have you ever been convicted of, or pled nolo contendere to any offense, misdemeanor or felony in any state, the United States, or a foreign country." • In response to Question No. 13, respondent marked and answered, "No." Respondent certified under penalty of perjury that all of her statements in the application were true in every respect. However, respondent's answer to Question No. 13 that she had no conviction was untrue and false and she knew her answer was untrue and false. (C) On April 11, 2005, respondent filed an Application Update for Examination and Licensure with the Acupuncture Board. Question No. 13 in said application asked, "Have you ever been convicted of, or pled nolo contendere to any offense, misdemeanor or felony in any state, the United States, or a foreign country." In response to Question No. 13, respondent marked and answered, "No." Respondent certified under penalty of perjury that all of her statements in the application were true in every respect. 3 However, respondent's answer to Question No. 13 that she had no conviction was untrue and false and she knew her answer was untrue and false. (D) On December 8, 2005, respondent filed an Application Update for Examination and Licensure with the Acupuncture Board. Question No. 13 in said application asked, "Have you ever been convicted of, or pled nolo contendere to any offense, misdemeanor or felony in any state, the United States, or a foreign country." In response to Question No. 13, respondent marked and answered, "No." Respondent certified under penalty of perjury that all of her statements in the application were true in every respect. However, respondent's answer to Question No. 13 that she had no conviction was untrue and false and she knew that her answer was untrue and false and she knew that her answer was untrue and false. (E) On July 3, 2006, respondent filed an Application Update for Examination and Licensure with the Acupuncture Board. Question No. 13 in said application asked, "Have you ever been convicted of, or pled nolo contendere to any offense, misdemeanor or felony in any state, the United States, or a foreign country." In response to Question No. 13, respondent marked and answered, "No." Respondent certified under penalty of perjury that all of her statements in the application were true in every respect. However, respondent's answer to Question No. 13 that she had no conviction to disclose was untrue and false and she knew that her answer was untrue and false. 7. On October 13, 2006, the Superior Court granted respondent's Petition under Penal Code section 1203.4 and ordered that her plea be set aside and vacated, a plea of not guilty be entered, and dismissed the criminal complaint in Case No. 0GL02035. In granting the expungement petition, the court advised respondent that she was required to disclose the conviction in response to any direct question in any questionnaire or application for licensure by any state or local agency. 8. On November 20, 2006, respondent filed an Application Update for Examination and Licensure with the Acupuncture Board. Question No. 13 in said application asked, "Have you ever been convicted of, or pled nolo contendere to any offense, misdemeanor or felony in any state, the United States, or a foreign country." Said application further advised that any conviction that had been set aside and dismissed under Penal Code section 1203.4 was required to be listed. In response to Question No. 13, respondent marked and answered, "No." Respondent certified under penalty of perjury that all of her statements in the application were true in every respect. However, respondent's answer to Question No. 13 that she had no conviction to disclose was untrue and false and she knew that her answer was untrue and false. 9. Based on Findings 2 and 4 — 8 above, beginning on April 18, 2003, and on five subsequent occasions ending on November 20, 2006, respondent engaged in dishonest and unprofessional conduct by knowingly making untrue and false statements and omitting to disclose her 2000 prostitution conviction on her application to take the acupuncture licensing examination and on five application updates filed with the Acupuncture Board. 4 10. (A) On February 15, 2007, respondent submitted to the Acupuncture Board an Application for License for issuance of an original acupuncture license. Question No. 8 on said license application asked, "Have you ever been convicted of, or pled nolo contendere to any offense, misdemeanor or felony in any state, the United States, or a foreign country? NOTE: You are required to list any conviction that as been set aside and Dismissed under Section 1203.4 Penal Code or under any other provision of law." (B) In response to Question No. 8 on her license application, respondent marked and answered, "No." Respondent certified under penalty of perjury that all of her statements in the license application were true in every respect. However, respondent's answer to Question No. 13 that she had no conviction was an untrue and false statement of a material fact, for, in fact, she had been convicted of solicitation of prostitution on or about July 19, 2000, as set forth in Finding 4 above. 11. (A) Based on Findings 2, 4 — 8, and 10 above, on or about February 15, 2007, respondent knowingly made a false statement of fact required to be revealed in the application for issuance of her acupuncture license. (B) Based on Findings 2, 4 — 8, and 10 above, on or about February 15, 2007, respondent secured her acupuncture license by fraud, deceit, or knowing misrepresentation of a material fact, or by knowingly omitting to state a material fact. 12. (A) On November 13, 2007, before the Superior Court of California, County of Los Angeles, Van Nuys Courthouse, in People v. Zhen Qing Cao, Case No. 7PY01646, respondent was convicted on her plea of nolo contendere of solicitation of prostitution in violation of Penal Code section 647, subdivision (b), a misdemeanor and crime not necessarily involving moral turpitude. The crime of solicitation of prostitution is a crime substantially related to the qualifications, functions, or duties of a licensed acupuncturist. (B) As a result of her plea, imposition of sentence was suspended and respondent was placed on summary probation for 24 months on condition that she serve 45 days in the county jail with credit for having served two days, pay a court assessment and restitution fine totaling $120, submit to a blood test for AIDS or H.I.V., complete an educational class in AIDS, and obey all laws and orders of the court. (C) On or about November 27, 2007, respondent filed a motion to stay execution of her jail sentence and to set aside her plea. On January 3, 2008, the prosecution filed an opposition to the motion. On March 4, 2008, the Superior Court denied respondent's motion to stay the execution of her jail sentence and to set aside her plea. In addition, the court denied her motion for house arrest in lieu of jail time and ordered that she be remanded into custody to serve her 45 -day jail sentence. (D) On July 2, 2008, respondent having failed to pay the court assessment and restitution fine totaling $120, the Superior Court ordered that the case be forwarded to a collection agency and added a $300 civil assessment fee to the balance owed. 5 13. The facts and circumstances of respondent's latest conviction for solicitation of prostitution were that, on March 21, 2007, officers of the Los Angeles Police Department conducted an undercover investigation for suspected prostitution and unlicensed massage activities at "Chen's Acupuncture" at 4531 Y2 Van Nuys Boulevard, Van Nuys. At that time, respondent was operating and/or working at Chen's Acupuncture and holding herself out to the public as a licensed acupuncturist. An undercover vice officer entered the business premises of Chen's Acupuncture. He was greeted by respondent and asked her for a half - hour massage. Respondent stated the fee was $40. She then took the undercover officer inside the business premises to a massage room, told him to take off his clothes and get comfortable, and left the massage room. The undercover officer removed his clothing, wrapped a towel around his torso, and lay down on a massage table. Respondent returned to the massage room and began massaging the undercover officer. When the undercover officer asked if he could receive better "treatment," respondent leaned over, rubbed her clothed breasts on his back, and asked if he was a cop. Eventually, and after further conversation, respondent solicited the undercover officer for an act of prostitution by offering to masturbate him for $100. 14. Respondent having failed to appear at the noticed hearing, no evidence of rehabilitation or mitigation was presented in this matter. _ 15. No evidence was presented of the Acupuncture Board's costs of investigation and enforcement of this matter. Pursuant to the foregoing findings of fact, the Administrative Law Judge makes the following determination of issues: LEGAL CONCLUSIONS 1. Grounds exist to revoke or suspend respondent's acupuncture license for unprofessional conduct pursuant to Business and Professions Code section 498, in that respondent knowingly made a false statement of fact required to be revealed in her February 2007 application for issuance of an original acupuncture license by failing to disclose her 2000 conviction for solicitation of prostitution and thus secured her license by fraud, deceit, or knowing misrepresentation of a material fact or by knowingly omitting to state a material fact, as set forth in Findings 2, 4 — 8, and 10 — 11 above. 2. Grounds exist to revoke or suspend respondent's acupuncture license for unprofessional conduct pursuant to Business and Professions Code sections 480, subdivision (c), and 4955, subdivision (i), in that respondent made false statements in her application to take the licensing examination and in license application updates and thus engaged in 6 dishonest and unprofessional conduct that would have warranted the denial of her acupuncture license, as set forth in Findings 2 and 4 – 9 above. 3. Grounds exist to revoke or suspend respondent's acupuncture license for unprofessional conduct pursuant to Business and Professions section 4955, subdivision (b), in that, in November 2007, respondent was convicted of solicitation of prostitution, a crime _substantially related to the qualifications, functions, or duties of a licensed acupuncturist, as set forth in Findings 12 -13 above. 4. Grounds do not exist under Business and Professions Code section 125.3 to order respondent to pay the reasonable costs of investigation and enforcement in this matter inasmuch as no evidence was presented of the Acupuncture Board's costs, as set forth in Finding 15 above. 5. Discussion — Public health, safety, and welfare require the revocation of respondent's acupuncture license. First, she knowingly failed to disclose her 2000 conviction for solicitation of prostitution in her application for a license examination, in subsequent application updates, and in her application for issuance of an original acupuncture license. As such, respondent engaged in a pattern of dishonest conduct and deceit`with the Acupuncture Board. Second, respondent was convicted for a second time in November 2007 of solicitation of prostitution, a crime substantially related to the qualifications, functions, or duties of a licensed acupuncturist. She committed her offense while holding herself out and working as a licensed acupuncturist. WHEREFORE, the Administrative Law Judge makes the following Order: Acupuncture license no. AC -11785 and licensing rights previously issued by the Acupuncture Board; Department of Consumer Affairs, to respondent Zhen Qing Cao, L.AC., are revoked, based on Conclusions of Laws Nos. 1 – 3 and 5, jointly and for all. Dated: April 6, 2010 ORDER 7 , V incent afarrete Admini ative Law Judge Office of Administrative Hearings In the Matter of the Accusation filed Against: DECLARATION OF SERVICE BY MAIL. ZHEN QING CAO Case No. 1A- 2008 -162 I, the undersigned, declare that I am over 18 years of age and not a party to the within cause; my business address is 444 N. 3rd Street, Suite 260, Sacramento, CA 95811 -0228. I served a true copy of the attached: DECISION AND ORDER by certified /regular mail on each of the following, by placing same in an envelope(s) addressed (respectively) as follows: NAME and ADDRESS CERTIFIED MAIL NO. Zhen Qing Cao, L.Ac. 1300 North Indian Canyon Drive, #D Palm Springs, CA 92262 .. . Zhen Qing Cao, L.Ac. 608 — 610 East Live Oak Ave. Arcadia, CA 91006 Margaret Phe, Deputy Attorney General California Department of Justice Office of the Attorney General /HQE 300 S. Spring St., Ste. 1702 Los Angeles, CA 90013 Vincent Nafarrete, ALJ Office of Administrative Hearings General Jurisdiction Division 320 West Fourth St., Ste. 630 Los Angeles, CA 90013 7009 1410 0002 2164 0023 regular mail regular mail regular mail Each said envelope was, on May 17, 2010, sealed and deposited in the U.S. mail at Sacramento, California, the county in which I am employed, with the postage thereon fully prepaid for an attempt at service. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 17, 2010 at Sacramento, California. i , 77a9Krim:TftCop U V ;010f 608 E. Live Oak Avenue Business License #049933 Yu Sang Tang Acupuncture Center EXHIBIT `E' A CUPUNCTURE .84813 at EXHIBIT 'F'