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HomeMy WebLinkAboutItem 1STAFF REPORT DATE: TO: FROM: Development Services Department June 11, 2013 Arcadia Business Permit and License Review Board 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 MASSAGE THERAPIST AND BUSINESS LICENSE REGULATIONS BY DREAM SPA AT 1023Y2 S. BALDWIN AVENUE Recommended Action: Uphold Revocation and Deny Appeal SUMMARY At the request of the Arcadia Police Department, the Business License Office on May 10, 2013 revoked the business license for Dream Spa at 1023% S. Baldwin Avenue for violations of the City of Arcadia Massage Therapist and Business License regulations. The revocation notice is attached as Exhibit 'A'. Mr. Long Z. Liu of The Liu Law Firm, representing Ms. Mengqi Li, the owner of Dream Spa filed an appeal of the business license revocation on May 13, 2013. The appeal letter is attached as Exhibit 'B'. A summary of the violations and when they were observed is attached as Exhibit 'C', and the Police Department's revocation request is attached as Exhibit 'D'. The Liu Law Firm submitted the "Apellant's Appeal Brief' which is attached as Exhibit 'F'. It is recommended that the Business Permit and License Review Board uphold the revocation and deny the appeal. BACKGROUND APPELLANT: LOCATION: REQUEST: Ms. Mengqi Li, the owner of Dream Spa, who is represented by Mr. Long Z. Liu of the Liu Law Firm 1023V2 S. Baldwin Avenue An appeal of a business license revocation for violations of the Arcadia Municipal Codes relative to Massage Therapist and Business License regulations. The Planning Commission was designated to be the Business Permit and License Review Board (Board) Ordinance No. 2263 that was adopted on December 1, 2009. The Board serves to hear appeals of business license denials, suspensions and revocations. The Board is the first arbiter of such appeals and 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 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 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. 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 (3) Dream Spa 1023' S. Baldwin Avenue June 11, 2013 — Page 2 of 9 determination shall not participate in either the hearing or in any determination or recommendation after the hearing. Per Section 6216.8 of the Arcadia Municipal Code (AMC), 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 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. 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 (1) 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. DISCUSSION Business License No. 052209 was issued to Ms. Mengqi Li on February 23, 2011 to operate a day spa (Dream Spa) offering skin care and massage at 1023 %2 S. Baldwin Avenue. The business license was issued for the operation of the day spa business and not for any massage therapists. Dream Spa was inspected by the City on the following dates: April 19, 2011; November 30, 2011; November 1, 2012 and April 29, 2013. City staff found multiple violations of the following Arcadia Municipal Codes: 1) 6418.5. BUSINESS LICENSE REQUIRED. Any person owning or operating a business that provides massage therapy shall apply for and obtain from the City of Arcadia a Massage Business License. Obtaining the required business license includes obtaining approval from the Department of Development Services, Planning Services, of the proposed business location. The applicant shall file a written application on the required form provided by the Development Services Department. Dream Spa 1023% S. Baldwin Avenue June 11, 2013 — Page 3 of 9 2) 6418.8. HOURS OF OPERATION No massage therapist shall administer a massage in any established business between the hours of 9:00 p.m. and 7:00 a.m. The hours of operation must be displayed in a conspicuous public place within the established business. 3) 6418.9. BUSINESS OWNER /OPERATOR RESPONSIBILITY. All massage therapy business owners and /or operators shall be responsible for the conduct of all employees and independent contractors. Any act or omission of any employee or independent contractor constituting a violation of the provisions of this Division shall be deemed the act or omission of the business owner for purposes of determining whether the owner's license shall be revoked, suspended, denied or renewed. No business owner and /or operator shall employ any person, or allow any person, to conduct a massage or act as an independent contractor conducting massage who does not have either a valid Massage Therapist Identification Card or a Massage Certificate and City of Arcadia Massage Verification Card. In order to ensure compliance with these Code provisions, no massage therapy business owners shall employ any person who has not shown them either their valid Massage Therapist Identification Card or valid Massage Certificate and City of Arcadia Massage Verification Card. 4) 6418.14. RENEWAL OF MASSAGE THERAPIST IDENITIFICAITON CARD A massage therapist shall annually apply for renewal of the Massage Therapist Identification Card on forms provided by the Arcadia Police Department. The massage therapist applicant shall pay a nonrefundable application renewal fee at the time of filing a renewal application in the amount established by resolution of the City Council 5) 6418.19(C). PROHIBITED ACTIVITIES It is unlawful for any massage therapist, employee, patron or any other person present where massage therapy services are being offered or performed, to be in a state of nudity or semi - nudity. 6) 6418.20(A). OPERATIONS — IDENTIFICATION CARDS Identification Cards. Each massage therapist shall at all times while on the massage therapy business premises have in his or her possession either the Massage Therapist Identification Card required by this Division or their Massage Certificate, a valid photo identification, and their City of Arcadia Massage Verification Card. Such card and Dream Spa 10231/2 S. Baldwin Avenue June 11, 2013 — Page 4 of 9 identification shall be provided to City regulatory officials upon demand. Each owner and /or operator shall at all times while on the massage therapy business premises have in his or her possession a copy of the Business License required by this Division and a valid photo identification. Such card and identification shall be provided to City regulatory officials upon demand. 7) 6418.20(C). OPERATIONS — CLOTHING. Each massage therapist and all other employees shall be fully clothed at all times. Clothing shall be fully opaque, nontransparent uniforms, similar to uniforms worn in medical offices, and shall provide complete covering of the genitals, pubic area, buttocks, anal area and chest area. 8) 6418.20(J). OPERATIONS — LIGHTING Lighting. The lighting in each massage room shall be at least one (1) sixty -watt white light bulb and shall be activated at all times while a patron is in such room or enclosure. No strobe flashing lights may be used. No colored lights shall be used nor shall any coverings be used which change the color of the primary light source. 9) 6418.20(L). OPERATIONS — BUILDING PERMITS All building, plumbing and electrical installations shall be installed under permit and inspected by the Development Services Department. Such installations shall be installed in accordance with the applicable provisions of the building and construction codes adopted by the City of Arcadia. 10) 6418.20(R). OPERATIONS — ROSTER OF EMPLOYEES Roster of Employees. The business owner and /or operator shall maintain a register of all massage therapists and employees, showing the name, nicknames and aliases used by the massage therapist or employee, home address, age, birth date, gender, height, weight, color of hair and eyes, phone numbers, social security number, date of employment and termination, if any, and duties of each employee. The above information concerning each massage therapist and employee shall be maintained at the premises of the business for a period of two (2) years following termination. The business owner and /or operator shall make the register of massage therapists and employees available immediately for inspection by the City regulatory officials upon demand at all reasonable times. Dream Spa 1023'/ S. Baldwin Avenue June 11, 2013 — Page 5 of 9 11) 6418.20(S). OPERATIONS - RECORDS OF TREATMENT. The business owner and /or operator shall keep a record of the dates and hours of each treatment or service, the name and address of the patron, the name of the massage therapist administering such service and a description of the treatment or service rendered. A short medical history form shall be completed by the massage therapist to determine if the patron has any communicable diseases, areas of pain, high blood pressure or any physical condition that may be adversely affected by massage. These records shall be prepared prior to administering any massage or treatment, and shall be retained for a period of twenty -four (24) months after such treatment or service. These records shall be open to inspection upon demand only by officials charged with enforcement of this Division and for no other purpose. The City regulatory officials shall periodically inspect the records to ensure compliance with this Division. Such records shall be kept at the business. The information furnished or secured as a result of any such records shall be used only to ensure and enforce compliance with this Division, or any other applicable State or Federal laws, and shall remain confidential. Any unauthorized disclosure or use of such information by any officer or employee of the City shall constitute a misdemeanor. 12) 9262.4.8(B). WINDOW SIGNAGE. Size Area: The total area of window signs in any one (1) wall shall not exceed twenty -five percent (25 %) of the window area of that wall provided that the total area of directly lighted window signs shall not exceed ten percent (10 %) of said window area. EXCEPTION: Temporary window signs which are in excess of the above limits shall be permitted to advertise special events, provided a business shall not use such temporary window signs for more than sixty (60) cumulative days in any one (1) calendar year. A sign permit shall be obtained from Building Services prior to the painting, posting or affixing. 13) 1200. VIOLATIONS A MISEAMEANOR OR INFRACTION No person shall violate any provision or fail to comply with any of the requirements of this Code. Each such person shall be guilty of a separate offense for each and every day, or any portion thereof, of which any violation of any provision of this Code is committed, continued, or permitted by such person, and shall be punishable accordingly. Every act prohibited, declared unlawful, or declared substandard, and every failure to perform an act made mandatory, shall be a misdemeanor or an infraction, at the discretion of the city attorney. Dream Spa 10231/2 S. Baldwin Avenue June 11, 2013 - Page 6 of 9 14) 9403(a). ENFORCEMENT OF ORDER TO ABATE NUISANCE Violation. After any order of the Building Official or of the City Council, made pursuant to this Code, shall have become final, no person to whom any such order is directed shall fail, neglect or refuse to obey any such order. Any such person who fails to comply with any such order is guilty of either a misdemeanor or an infraction, punishable pursuant to Section 1200 of the Arcadia Municipal Code. After the inspections and investigation, the Arcadia Police Department requested that the Business License Office revoke the license of Dream Spa. The business license for Dream Spa was revoked on May 10, 2013. The revocation notice and appeal letter are attached as Exhibits 'A' and 'B'. A summary of the violations, the revocation request and Internet printouts are attached as Exhibits 'C', 'D' and 'E'. Mr. Long Z. Liu, the owner's attorney appealed the revocation on May 13, 2013 and on June 4, 2013, The Liu Law Firm submitted an Apellant's Appeal Brief, which is attached as Exhibit 'F'. This was submitted on behalf of the business owner Ms. Mengqi Li in response to the revocation of the business license. Inspections and Investigation On April 19, 2011, an inspection was conducted after 8:00 p.m. at this location. Ms. Li had two customers at the spa; one was receiving a massage and the other was waiting in the lobby for a massage. Ms. Li was the only therapist present. During the inspection, several violations were noted: improper use of extension cords in the lobby area and break room, lack of a uniform, improper lighting, no medical records, illegal conversion of the men's restroom to a shower area, and blocking of a required exit. This inspection concluded shortly before 9:00 p.m. and Ms. Li and the customer waiting in the lobby were informed that massage services are not allowed to be provided after 9:00 p.m. Staff left the facility to conduct an inspection at another business nearby. After conducting that inspection, staff returned to Dream Spa and observed the same customer still waiting for a massage. Since, this was after 9:00 p.m., Ms. Li was again informed of the massage hours per AMC 6418.8 and was ordered to cease providing massage services. At the November 30, 2011 inspection, the following violations were observed: neither of the therapists present were wearing uniforms, the improper lighting had not been corrected, and the medical records were either missing or incomplete. November 1, 2012 — At this inspection, there were three massage therapists present, and one was performing a massage on a client. Ms. Li indicated that she was in violation of the following requirements: maintenance of records of treatment for recent massages, and having a roster of employees. The last inspection was on April 29, 2013, and there were two therapists present, one of which was Ms. Li who informed staff that there was only one customer present, and he was getting a massage. However, staff found that four treatment Dream Spa 1023'/ S. Baldwin Avenue June 11, 2013 — Page 7 of 9 rooms were occupied by male clients and three of them had only small towels to cover themselves. A check of City records found that Ms. Li was performing massage, but her massage license and massage identification card had expired. As a result of these violations, two citations were issued; one to Ms. Li and one to the other massage therapist. An Internet search of the business showed a review of Dream Spa, a copy of which is attached as Exhibit 'E'. The reviews and comments indicate that illegal activity is occurring at Dream Spa, and it is noteworthy that some of the reviews and comments are dated as late as May 23, 2013; which is after the revocation was issued. RECOMMENDATION It is recommended that the appeal be denied and the revocation of the business license for Dream Spa be upheld, and that Ms. Mengqi Li not be allowed to own or operate a business in the City of Arcadia for a period of one (1) year. 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, and it is recommended that the reinstatement be subject to the following conditions: 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 Permit and License Review Board (Board) for twelve (12) months, and should any violation occur, it shall be brought directly to the 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 Dream Spa and require that Ms. Mengqi Li not be allowed to own 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. Dream Spa 10231/2 S. Baldwin Avenue June 11, 2013 — Page 8 of 9 If any Business Permit and License Review Board member, or other interested party has any questions or comments regarding this matter prior to the June 11th hearing, please contact Business License Officer, Silva Vergel at (626) 574 -5430 or svergel@ci.arcadia.ca.us. Approved by: Jim sama C6nity Development Administrator Attachments: Exhibit 'A' — Revocation Notice Exhibit 'B' — Letter of Appeal Exhibit 'C' — Summary of Violations Exhibit `D' — Revocation Request Exhibit 'E' — Internet Printout Exhibit `F' — Apellant's Appeal Brief Dream Spa 1023% S. Baldwin Avenue June 11, 2013 — Page 9 of 9 - - THIS PAGE INTENTIONALLY BLANK - - Ci of Arcadia Development Services Department Jason Kruckeberg Assistant City Manager/ Development Services Director -0 West Huntington Drive Est Office Box 60021 .cadia, CA 91066 -6021 261 574 -5415 26) 447 -3309 Fax �w.ci.arcadia.ca.us May 10, 2013 Ms. Mengqi Li Dream Spa 1023 1/2 S. Baldwin Ave. Arcadia, CA 91007 SUBJECT: Revocation of Business License No. 052209 Dear Ms. Li: The purpose of this letter is to inform you that Business License No. 052209 for Dream Spa located at 1023 1/2 S. Baldwin Ave. is being revoked effective May 28, 2013. Said revocation is due to violations of the Arcadia Municipal Code that have been listed below: 1. 6418.5. Business License Required 2. 6418.8. Hours of Operation 3. 6418.9. Business Owner Responsibility 4. 6418.14. Renewal of Massage Therapist ID Card 5. 6418.1 9(C). Prohibited Activities 6. 6418.20(A). Identification Card 7. 6418.20(C). Clothing Requirements 8. 6418.20(J). Lighting 9. 6418.20(L). Building Permits 10. 6418.20(R). Roster of Employees 11. 6418.20(S). Records of Treatment 12. 9262.4.8(B). Window Signage 13. 1200/9403. Failure to Comply with Enforcement Order You are to cease the operation of your business by the above date. Continuing to operate the business in the City without a Iicense violates Arcadia Municipal Code Section 6211, which constitutes a misdemeanor. Per Arcadia Municipal Code Section 6418.23 (attached) you may appeal this decision within ten (10) days of the date if thus notice. Said appeal must be made in writing and delivered to the undersigned by Monday, May 20, 2013. 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 C: Sonnega & Kolischer, Property Owner Detective Trabbie, Arcadia Police Department Enclosure EXHIBIT A THE LIU LAW FIRM A PROFESSIONAL CORPORATION 923 E. VALLEY BLVD., SUITE #110 SAN GABRIEL, CA 91776 TEL: (626) 927 -9055 FAX: (815) 331 -0657 SENT BY MAIL /FAX Silva Vergel 240 West Huntington Drive Post Office Box 60021 Arcadia, CA 91066 -6021 Dear Ms. Silva Vergel This letter serves as official request to appeal the city's decision of revoking the business license of my client Dream Spa located at 1023 12 S. Baldwin Ave., Arcadia, CA 91007 pursuant to your letter dated on May 10. This letter also serves to confirm that if we decide to appeal the decision, the business can remain open pending the outcome of the appeals. Please contact me for any questions. Your anticipated understanding and cooperation will be greatly appreciated. 1 Long Z. lAu, The Liu, =Law Firm EXHIBIT B DREAM SPA 1023 'A S. BALDWIN AVE. VIOLATIONS OBSERVED BY THE TASK FORCE 6418.4 Certification or Identification Card Required 6418.5. Business License Required 6418.9. Business Owner /Operator Responsibility 6418.10. Massage Therapist Identification Card Required if No Massage Certificate 6418.19(C). Prohibited Activities 6418.20(A). Identification Card 6418.20(C). Clothing Requirements 6418.20(S). Records of Treatment. EXHIBIT C To: Business License Department From: Detective J. Trabbie #550 Subject: Request of Business License Revocation Date: 05 -10 -13 MEMORANDUM Police Department The Arcadia Police Department is requesting the revocation of the business license for Dream Spa, located 1023 1/2 S. Baldwin Avenue. This location has been inspected on three occasions (04/19/11, 11/30/11, and 04/29/13) and each time various Arcadia Municipal Codes have been violated. The following Arcadia Municipal Codes have been violated: 04/19/11 AMC 6418.8- Hours of Operation AMC 6418.20(J) - Clothing Requirements AMC 6418.20(L) - Building Permits AMC 6418.20(R) - Roster of Employees AMC 6418.20(S) - Records of Treatment 11/30/11 AMC 6418.20(J) - Clothing Requirements AMC 6418.20(L) - Building Permits AMC 6418.20(R) - Roster of Employees AMC 6418.20(S) - Records of Treatment 04/29/13 AMC 6418.19(C) - Prohibited Activities AMC 6418.20(A) - Identification Card AMC 6418.20(J) - Clothing Requirements AMC 6418.20(L) - Building Permits AMC 6418.20(R) - Roster of Employees AMC 6418.20(S) - Records of Treatment EXHIBIT I) Dream Spa massage parlors in Arcadia, California SEARCH: (suggestion Erotic massage l■cadra, Asian massage Arcadia) Any State HOME ADVANCED SEARCH RUBMAPS SLANG BLDG FORUM Rubmaps » Massage parlors Arcadia CA » Dream Spa Dream Spa in Arcadia, California 1 10 reviews Masseuse Style: I Asian Hours of Operation: 10am - 9pm Cards Accepted: Visa, Mastercard Other locations Arcadia massage parlors: Orchid Spa Magic Hands Massage Meng Huan Spa Swan Massage Spa Spa Thai Essence Spa Otium Spring Spa Eastem Clinic Red Sun Beauty Asiana Acupuncture Happy Day Spa Arcadia Spa Agawa Day Spa Santa Anita Health Center Phoenix Spa Best Health Center Yu Seng Tong Acupuncture Refreshing Massage ClinicRed Sun Beauty Newest Forum Posts Mongers in South Florida Amping in Vegas FREE Sessions giving your provider gifts In search of a great Russian massage parlor Newest Blog Posts Does Mongering Help or Hurt a Marriage? 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Moisture erichcohen Nancy till feather Tina MisterJoei Tina © funhangl2 Shie(a gutzl9 iocochino Unknown dysh521 Shia ® getin Yoyo Qwizz878 Tina July 2011 1 Page 1 of 3 New user Login Ems* Distance to this massage parlor center 0.9 mi Table Shower: Yes Sauna: Yes Jacuzzi: No Semi -Truck Parking: No 60 min: $35 W i-onttal BNd g FootNAfwy Foothill Brad Tne Amwewm B • F m C0 #82785 05.22 2013 #74030 03.25 2013 #66275 01.25 2013 3 #65143 01.17 2013 #58173 11.13 2012 #50491 09.07 2012 t49924 09.01 2012 4 #45243 07.14 2012 #41830 05.29 2012 #26781 07.20 2011. 11 Store Front http://www.rubmaps.com/erotic-massage-dream-spa-arcadia-ca-7253 P Fooitl l Fwy Arcadia 9 R Amami :Aunty per N Map data 2013boogle Order: Review Date J Afternoon $35 EXHIBIT E 5/24/2013 Dream Spa massage parlors in Arcadia, California Does Mongering Help or Hurt a Marriage? 1 bring my own set of flip flops when I walk aroun_. readamrr When is It Safe to go Back? 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Is Tina good looking or sexy? homer8888: Tina will put oil on your cock and let you jack off while she watches 05.31 2012 07.14 2012 07.15 2012 locochino: 07 .19 i maybe you should shoot your load on her face or on her some where if she is watcnmg. 6nmfao at lease have her 2012 bend over so you can shoot your load on her ass or something. lmmfao mrhebehebe: I So you won't touch your dick at all? 1218 2012 mrhebehebe: Does she soap you up all over during the shower? parlorjim: nand job in the table shower 05.23 2013 http://www.rubmaps.com/erotic-massage-dream-spa-arcadia-ea-7253 12.1E 2012 05.23 2013 Page 2 of 3 5/24/2013 Dream Spa massage parlors in Arcadia, California [ 7---1 they have a regular shower sometimes they will help you jack off but the table shower is the best, 1 i 1 1 L ; I ADD COMMENT Contact I DMCA I Terms & Conditions 1 Privacy Policy© Rubmaps.com 2013 - Asian Massage Parlors Directory Page 3 of 3 http://www.rubmaPs.com/erotic-massage-dream-spa-arcadia-ca-7253 5/24/2013 - - THIS PAGE INTENTIONALLY BLANK - - 1 LONG Z. LIU (SBN: 236815) 2 The Liu Law Firm 923 E. Valley Blvd., Suite 110 3 San Gabriel, CA 91776 4 Tel: (626) 927 -9055 Fax: (815) 331 -0657 5 6 7 8 9 10 11 12 13 14 15 16 RECEIVE JUN 4 2013 CITY OF ARCADIA CITY CLERK SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES MengQi Li d/b /a Dream Spa, LLC, VS. City of Arcadia, Appellant, Respondent. I. INTRODUCTION Subject: Revocation of Business License No. 052209 APELLANT'S APPEAL BRIEF LOCATION: 17 18 MengQi Li ( "Appellant "), conducting business as Dream 19 Spa, LLC ( "Dream Spa "), appeal the revocation of her 20 business license pursuant to Arcadia Municipal Codes for 21 massage therapy business section 6418.20(C, J, S). 22 23 At issue is whether Appellant's business license 24 revocation is justified by the law, specifically is it a 25 violation of the 8th amendment cruel and unusual punishment 26 27 clause and the revocation violated the appellant's due 28 process rights. Appellant's Appeals Brief - 1 EXHIBIT F 1 II. FACTUAL HISTORY 2 The Appellant purchased a day spa, Dream Spa in 2011. 3 4 Appellant is an honest, hard- working, ethical business 5 (therapist and she opened Dream Spa, LLC in order to live 6 the American Dream. Appellant has obtained a green card on 7 her own, completed massage therapy school and esthetician 8 9 school while passing all of the tests in English, attended to adult education to improve her English, and previously was 11 employed as a massage therapist to learn the business. 12 13 Appellant has no criminal records and has made it strict 14 policy to complying with the pertaining laws and rules of 15 performing massages, skin care, and facials. She has been 16 in business for two years and has not received any 17 18 complaints from customers. 19 On April 19, 2011, only 3 days after the grand opening, 20 2 city inspectors came in and found Dream Spa to be in 1 22 violation of the City of Arcadia's Municipal Codes for 23 massage therapy businesses 6418.20 (C, J, S, L, M, P, R, S) . 24 Appellant took immediate action to remedy the problem and 25 26 made sure Dream Spa was in compliance with all of the 27 Municipal Codes. On November 30, 2011, a second inspection 28 Appellant's Appeals Brief - 2 1 indicated that Appellant's efforts were partially 2 successful as Dream Spa was found to only violate 6418.20 3 4 sections C, J, and S of the Arcadia Municipal Codes for 5 (massage therapy businesses. Section C is a clothing 6 (violation and in this case, the failure to wear uniforms 7 similarly worn in medical offices. Section J is for the 8 9 violation of the requirement that a 60 watt light -bulb 10 shall be activated at all times. Section S is for the 11 violation of not maintaining records of treatment where 12 13 records of services rendered are kept and filed. Once 14 again, Appellant was determined to correct these violations 15 in order to be in full compliance with the Municipal Codes. 16 Her efforts proved to be successful as Dream Spa passed an 17 18 inspection during October of 2012 without ANY violations. 19 Appellant made a pp good faith effort in trying to maintain 20 her business in full compliance with Arcadia's Municipal 21 22 Codes. 23 During the fourth inspection, Dream Spa was found to be 24 in violation of 6418.20 sections C, J, and S. With 25 26 virtually no outside help, Appellant, yet again, did 27 everything in her ability to conform to the applicable 28 Appellant's Appeals Brief - 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27. 28 Municipal Codes. At no point was she aware that her business license was in jeopardy. On May 28, 2013, the City of Arcadia unjustly and unfairly revoked her business license. As indicated below, Appellant has disposed all efforts to be in compliance with the applicable Municipal Codes. M. ARGUMENTS Given the facts and circumstances, it is the Appellant's position that the revocation of her business license is a violation of the 8th Amendment cruel and unusual punishment clause, as well as a violation of her procedural due process rights under the 5th Amendment. Appellant's Eighth Amendment rights were violated when her business, Dream Spa, had its license revoked. The Eighth Amendment clearly states that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. In the specific circumstance, complete revocation of the business license is too severe of a punishment. Appellant admits that she made mistakes regarding clothing, lighting, and records of treatment and takes full responsibility, and after they Appellant's Appeals Brief - 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 were revealed to her in the first two meetings she promptly fixed them. The third inspection of Dream Spa in November 1, 2012, revealed no violations, thus appellant had no reason to take action to remedy any problems because there were none. Please see attached exhibit F showing that there were in fact 4 inspections, the third occurring in November, 1 2012. It was not until the fourth inspection of Dream Spa that appellant had her license revoked. The fact that the license was revoked after just five months after having been found to have no existing problems is unjust. Additionally, in the interim since the fourth and final inspection, appellant has taken the appropriate measures to correct her business. All of her employees are now required to wear uniforms, similar to the scrubs worn in medical offices. Please see attached photos of workers in uniforms ( "EXHIBIT A "). The lights that previously had dimmers have been replaced by switches with only an on and off function. Please see the pictures of the replaced switches ( "EXHIBIT B "). In addition, new forms have been incorporated which request customers to fill out Appellant's Appeals Brief - 5 1 2 information about their medical history. Please find attached to this appeal the Declaration for Employment at 3 Dream Spa ( "EXHIBIT C ") showing the updated forms that 4 5 comply with city requirements. Many of .these ordinances put 6in place for City Hall to be able to easily revoke the 7 licenses of massage establishments that are offering sexual 8 g services, which Dream Spa takes no part in. Appellant's 10 quick action to correct the business' violations help to 11 show this. Additionally, her employees, are in their 40s 12 13 and 50s, are family oriented, and have no previous records 14 of misconduct. 15 It is the Appellant's position that the revocation of 16 their business license for Dream Spa, LLC is a violation. of 17 18 li the 8th Amendment of the United States 19 20 21 22 24 9c, 26 27 28 Constitution. Appellant has worked hard her whole life. When she was in China, she had a respectable job working as a tax director for the Chinese government, which is a position that specifically looks for individuals with honesty and integrity. When she decided to move to America she applied for her own green card, without relying, on marrying her fiance to stay. She has an excellent Appellant's Appeals Brief - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 character reference that praises her work ethic and ethical nature ( "EXHIBIT D "). Additionally she is a single mother who has provided her for son and sent him to university. All signs point to a woman who is ethical and would not do anything but operate an honest business. She has no reason to jeopardize the business she has worked so hard to build up. Revoking appellant's business license, essentially taking away her livelihood without any previous warning, over such minor violations that were subsequently remedied would not be in the spirit of the Eighth Amendment and unproportional to the violations that the revocation is based on. The Fifth Amendment states: "No person shall be...deprived of life, liberty, or property, without due process of the law; nor shall private property be taken for public use, without just compensation." The City of Arcadia violated Appellant's Fifth Amendment rights when it revoked its license without compensation. Appellant's business, Dream Spa, was first inspected and cited for violations on April 4, 2011, three days following the opening of her business. Dream Spa was cited for various violations on Appellant's Appeals Brief - 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 April 4, 2011 and then again on November 30, 2011. However, Appellant corrected all violations and was in accordance with all other city ordinances during an October 2012 inspection. A fourth inspection occurred on April 4, 2013. Dream Spa was cited for violating clothing requirements, lighting requirements, and Records of Treatment. Instead of allowing her time to conform with the ordinance, as was the case for first and second inspections, the City of Arcadia revoked Appellant's license. Not only is this inconsistent with the way the situation was handled previously by the City of Arcadia, but it is a violation of Appellant's procedural due process rights. Appellant was not allowed a hearing or given sufficient time to conform with Municipal Codes that were said to be violated. Instead, the City of Arcadia decided to revoke Appellant's license to operate her business; which is her only means of income. Appellant has shown that her business, Dream Spa, is now in accordance with the appropriate city ordinances that were said to be violated. Appellant has provided all her employees with medical uniforms, installed a light switch in the room that was deemed to have insufficient lighting, Appellant's Appeals Brief - 8 1 and Appellant provides patient with records of treatment. 2 After all these efforts by the Appellant to comply with the 3 4 applicable city ordinances, it would be unfair and unjust 5 to deprive Appellant and her dependent of their only means 6 of income. 7 In addition, the City of Arcadia lists violations of 8 9 section 6418.5, 6418.8, 6418.9(C), 9262.4.8(B), and 10 1200/9403 was listed as violations leading to the 11 revocation of the business license. However, several of the 12 13 violations that were listed were never indicated during any 14 of the four inspections that took place. Citing a violation 15 as a basis for revocation is unjust when notice of the 16 17 violation was never given. Appellant would have no way of 18 correcting a violation that she had no knowledge of. 19 Furthermore, submission dates for the staff brief 20 violates due process. Due dates for brief pertaining to a 21 22 civil case must be on the same date for opposing sides. 23 However, the City of Arcadia has required re Appellant q d Appellan�_ tc 24 submit a brief for her appeal on June 4th, 2013, while the 25 26 City of Arcadia is not required to submit its brief until 27 June 8th 28 Appellant's Appeals Brief - 9 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1 22 23 24 25 26 27 28 IV. CONCLUSION To continue to enforce the revocation of the business license would be a great unfairness to this business owner who has strived to uphold the utmost professionalism. As indicated above, Appellant demonstrates that her business Dream Spa is in full compliance with all sections of Arcadia`s Municipal Codes 6418.20 for massage therapy businesses. Dated: June 4, 2013 Respectfully Submitted, Long iu, E The Liu Law ]Firm Attorney for appellant Appellant's Appeals Brief - 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appellant's Appeals Brief - 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A Appellant's Appeals Brief - 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SWITCH BEFORE SWITCH AFTER EXHIBIT B Appellant's Appeals Brief - 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Declaration for Employment at Dream Spa My name is %.(i (/ I began working at Dream Spa LLC on II 6 t)a)3 (Month Day, Year). Please initial every item. L. 1. The owner, Mengqi U, has asked me to strictly follow the laws and rules pertaining to performing massages at Dream Spa. C ± 2. Upon employment, I was required to sign employee agreement with Dream Spa. 7 C L3. Mengqi Li specifically made it clear that sexual services, of any kind, are strictly prohibited in Dream Spa. ac-Lt. If I get caught doing any sexual services my employment will be terminated. In addition, I / understand that I would be subjected to criminal liabilities, such as going to jail. .?...c L.5. 1 have never performed sexual service, of any kind, at Dream Spa. 6. During my employment at Dream Spa, I know Mengqi LI to be an honest, moral, hard - working, and law abiding employer. 7 Sign L- (-1441203 Date Appellant's Appeals Brief — 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 My name is Declaration for Employment at Dream Spa 'iHu° - I began working at Dream Spa LLC on Please initial every item. J Jtt� (Month Day, Year). . The owner, Mengqi Li, has asked me to strictly follow the laws and rules pertaining to performing massages at Dream Spa. . Upon employment, I was required to sign employee agreement with Dream Spa. Mengqi Li specifically made it clear that sexual services, of any kind, are strictly prohibited in Dream Spa. If I get caught doing any sexual services my employment will be terminated. In addition, I understand that I would be subjected to criminal liabilities, such as going to jail. I have never performed sexual service, of any kind, at Dream Spa. j- ' During my employment at Dream Spa, I know Mengqi LI to be an honest, moral, hard - working, and law abiding employer. 3zgadika____& Sign Date • Appellant's Appeals Brief - 15 My name is Declaration for Employment at Dream Spa p4 l S --o 13 I began working at Dream Spa LLC on , Please initial every item. (Month Day, Year). ‘LA-/The owner, Mengqi Li, has asked me to strictly follow the laws and rules pertaining to performing massages at Dream Spa. Upon employment, I was required to sign employee agreement with Dream Spa. 02A3. Mengqi Li specifically made it clear that sexual services, of any kind, are strictly prohibited in Dream Spa. �4. If I get caught doing any sexual services my employment will be terminated. In addition, I understand that I would be subjected to criminal liabilities, such as going to jail. I have never performed sexual service, of any kind, at Dream Spa. c Le- During my employment at Dream Spa, I know Mengqi LI to be an honest, moral, hard - working, and law abiding employer. ign iI . r, t ,?0/3 3 Date Appellant's Appeals Brief - 16 1 2 Declaration for Employment at Dream Spa 3 My name is 1.1 I ,' 4 I began working at Dream Spa LLC on (J 3 (( Chi 1 3 (Month Day, Year). 5 Please initial every item. 6 7 A-11. The owner, Mengqi Li, has asked me to strictly follow the laws and rules pertaining to performing massages at Dream Spa. 8 442. Upon employment, I was required to sign employee agreement with Dream Spa. 9 13. Mengqi Li specifically made it clear that sexual services, of any kind, are strictly prohibited in 10 Dream Spa. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ,4. If 1 get caught doing any sexual services my employment will be terminated. In addition, I understand that I would be subjected to criminal liabilities, such as going to jail. 45. I have never performed sexual service, of any kind, at Dream Spa. 416. During my employment at Dream Spa, I know Mengqi U to be an honest, moral, hard- working, and law abiding employer. , HQ' Sign , i6 , dC)/ Date Appellant's Appeals Brief - 17 2 Declaration for Employment at Dream Spa My name is j &t Pa) "ErTrfr-s 1 began working at Dream Spa LLC on 7-- -" 2.0 t 1 (Month Day, 'tear), Please initial every item. J 6 Q a.L L2. The owner, Mengqi U, has asked me to strictly follow the laws and rules pertaining to performing massages at Dream Spa. Upon employment, l was required to sign employee agreement with Dream So, 9 ,3. 10 Mengql U specifically made it clear that sexual services, of any kind, are strictl$111 prohibited in Dream Spa. 11 12 13 14 15 16 17 18 19 20 21 22 24 23 26 2' 28 j7 4. If I get caught doing any sexual services my employment understand that I would be subjected to criminal liabilities, �such as going to Jail ��dditian, I c1 S. I have never performed sexual service, of any kind, at Dream Spa. During my employment at Dream Spa, I know Mengqi 11 to be an honest, moral„ hard- working, and law abiding employer, 46. Date z0 /z0 39V d EXHIBIT C Appe,Llant' s Appeals Brief - 16 L990IEE918 Z0 :ZZ 4002/8Z/000 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 May 16, 2013 To whom it may concern: We have had the pleasure of knowing MengQi Li (aka Tina) for the past three years. She arrived in this country with a limited knowledge of English, but soon was able to speak and understand the language fairly well. She worked hard while becoming an esthetician and was able to pass necessary tests written in English. We have always admired her ambition to succeed in her business adventures and her caring and honest personality. Her character is beyond reproach and we have observed how ethical she has been in her approach to her business which we have visited. In our opinion, she represents a fine addition to our society. Sincerely, rthur S. Peters, MD Jeanne E. Peters EXHIBIT D Appellant's Appeals Brief - 19 10 11 12 13 Staff Brief: Dream Spa 1 message office< office@theliulawfirm.com> Long Liu Office < office@theliulawfirm.com> Mon, Jun 3, 2013 at 2:2 To: svergel PM @ci.arcadia.ca.us Ms. Vergel, As we spoke earlier, can you please send me a copy of the staff brief as soon as it is ready by email as well as by regular postal service. Thank you Best Regards, 19 Long Z. Liu 15 16 17 (626) 927-9055 18 " -71 (815) 331-0657 19 20 22 23 24 25 26 2 7 28 c•J VtihC.:;17:1 addrez.--.,.se:i. trte. triat. 2t.--,/ use. cliF.serrHatfon. ot fl thS Appellant's Appeals Brief - 20 1 2 3 4 Concerns 1 message office< office @theliulawfirm.com> 5 6 Long Liu Office < office @theliulawfirm.com> 7 To: svergel @ci.arcadia.ca.us 8 Ms. Vergel, Mon, Jun 3, 2013 at 2:25 PM 9 We can to address some Due Process concerns regarding the fact that we 10 must turn in our brief 4 days before we receive your staff brief. This gives you 11 an unfair advantage to respond to our claims as well as doesn't allow sufficient time for us to respond to your claims. 12 Lastly, our main concern is that our client was charged with numerous 13 violations that you stated in your letter, yet she never received word some of them until you took away her business license. We ask that you please send 14 us a finalized list of current charges. 15 16 Best Regards, 17 Long Z. Liu Esq. 18 II 19 20 (626) 927 -9055 1 (815) 331 -0657 22 23 24 25 26 27 28 EXHIBIT E Appellant's Appeals Brief - 21 2 3 4 5 6 7 8 9 10 11 12 13 16 17 18 19 2C 21 22 23 24 25 26 97 2e Concerns Silva Verge l < SVERGEL@ci:arcadia,ca.us> To: Long Liu Office <office©theliulawfirm.com> Hello Mr, Liu, office< office0,4heliulawfirm.com> Tus, Jun 4, 2013 at 7:53 AM I wantd to 16?t vou know- that I have rceived ot..f emal2 and 4rn work ng on a responst. I al.so wantd to m..entiohed that ysterda! I spoko w/franoisoo in your and 1 told hj.rn that thc.??.-e were only 3 inzpetion.5, but, looking. n'Irough mv. operwor*,, I found that th&:re were actually.. or at this locatdc)n The dates were , NOI/mbr 30, 2011, Hbvember 1 2012 Z0i/I0 3DVd Appellant Appeals Brief - 22 mv-pnI1 LS9OTEEST8 TO :Za". 9005 /8: /SO v.z.a S eSS L .2 Cel-J Of (626) 574-5430 From: Long Liu Office [mailto:office@theliulawfirm.com) Sent: Monday, June 03, 2013 2:25 PM To: Silva Vergel Subject: Concerns EXHIBIT F Appellant's Appeals Brief - 23