HomeMy WebLinkAboutItem 2 - Spring Spa AppealDATE: May 10, 2016
TO: Honorable Chairman and 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 MASSAGE
THERAPIST AND BUSINESS LICENSE REGULATIONS BY SPRING
SPA AT 556 LAS TUNAS DRIVE, #204
Recommendation: Uphold Revocation and Deny Appeal
SUMMARY
At the request of the Arcadia Police Department, the Business License Office on April 4,
2016, revoked the Business License issued to Spring Spa at 556 Las Tunas Drive, #204
for noncompliance with the City of Arcadia Massage Therapist and Business License
regulations. The revocation notice is attached as Exhibit ‘A’. Ms. Chuwan Zhang owner
of Spring Spa filed an appeal of the business license revocation on April 12, 2016. The
appeal letter is attached as Exhibit ‘B’, and the Police Department revocation request
and the face page of the Police Report are attached as Exhibit ‘C’. It is recommended
that the Business Permit and License Review Board uphold the revocation and deny the
appeal.
BACKGROUND
Ordinance No. 2263 was adopted on December 1, 2009 and designates the Planning
Commission as the Business Permit and License Review Board (Board). The Board
serves to hear appeals of business license application denials, and license revocations,
and is the first arbiter of appeals. The Board’s decision may be appealed to the City
Council.
On August 19, 2015, a business license was issued to Ms. Chuwan Zhang to operate
an all massage facility at 556 Las Tunas Drive, #204. Following the issuance of this
license, eleven (11) business licenses were issued to independent massage therapists
for this location.
On September 30, 2015, City staff conducted an inspection and found that there were
violations of the Arcadia Municipal Code (AMC). Violations were that the therapists did
not have their certification cards from the California Massage Therapy Council, and the
Appeal of Business License Revocation
556 Las Tunas Drive, #204
May 10, 2016 – Page 2 of 6
business operator did not have a Roster of Employees. Also, a new table shower and
walls were installed without the proper Building Services permits and approvals.
Inspections were also conducted on December 1, 2015 and March 2, 2016. No
violations were observed during these inspections.
On March 11, 2016, the Police Department arrested a massage therapist for performing
illegal acts and transported her to the Arcadia Police Department Jail.
On March 15, 2016, the Police Department requested that the Business License Office
revoke the business license for Spring Spa. The face page of the Police Report and the
request for revocation are attached as Exhibit ‘C’.
On April 4, 2016, the Business License Office revoked the licenses for Spring Spa and
the massage therapist.
On April 12, 2016, Ms. Chuwan Zhang, business owner of Spring Spa appealed the
revocation. This letter is attached as Exhibit ‘B’. At the same time, the Business License
Office received a new applicant submitted a business license application for the
massage establishment format the subject location, and Ms. Zhang closed out her
business license.
DISCUSSION
The business license issued to Ms. Chuwan Zhang for Spring Spa at 556 Las Tunas
Drive, #204 was revoked on April 4, 2016, at the request of the Arcadia Police
Department for violations of the Arcadia Municipal Code (AMC). Per AMC Section
6216.7.(3), the license is subject to suspension or revocation. The following is a
summary of the violations:
• 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.
The applicant violated AMC Section 6418.9; Business Owner Responsibility.
Under this Code Section, the business owner is responsible for the conduct of all
of the employees and independent contractors at the business. Any act of an
employee or independent contractor constitutes a violation by the business
owner for the purpose of determining whether the owner’s license shall be
revoked, suspended, denied or renewed. The Code Section reads as follows:
6418.9. - BUSINESS OWNER 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
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556 Las Tunas Drive, #204
May 10, 2016 – Page 3 of 6
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 a valid Massage Certificate
and City of Arcadia Massage Verification Card. In order to ensure
compliance with these Code provisions, no massage therapy business
owner shall employ any person who has not shown them their valid
Massage Certificate and City of Arcadia Massage Verification Card.
Based on investigative resources, on March 11, 2016, the Police Department visited the
business to determine if acts of prostitution were taking place at this location. The Police
Department arrested a massage therapist who performed illegal acts and transported
her to the Arcadia Police Department Jail. Ms. Zhang, the business owner was present
at the time. The business and the therapist violated the following Sections of the AMC.
The face page of the Police Report is attached as Exhibit ‘C’.
• Arcadia Municipal Code Section 6418.19.(A) Prohibited Activities –
Expose/Touch Genitals - It is unlawful for any massage therapist, employee,
patron, or any other person present where massage therapy services are being
offered or performed, to expose or touch the genitals or anal area, or the breast
of any female, whether his or her own, or those of another person.
• Arcadia Municipal Code Section 6418.19.(B) Prohibited Activities –
Perform/Engage in Sexual Activity - It is unlawful for any massage therapist,
employee, patron, or any other person present where massage therapy services
are being offered or performed, to engage in any sexual activities.
• Arcadia Municipal Code Section 6418.19.(C) Prohibited Activities – State of
Nudity - 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.
• Arcadia Municipal Code Section 6418.20.(E) Operations – Covering - Covering.
Each massage therapist shall provide to all patrons clean, sanitary and opaque
coverings capable of covering the patron's specified anatomical areas, including
the genital, anal and female breast area. Reuse is prohibited unless the covering
is adequately cleaned.
The Arcadia Police Department requested that the Business License Office revoke the
license issued to Spring Spa. The business license for Spring Spa was revoked on
April 4, 2016. Ms. Zhang appealed the revocation on April 12, 2016. The revocation
notice and appeal letter are attached as Exhibits ‘A’ and ‘B’. The massage therapist did
not file an appeal of her revocation.
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556 Las Tunas Drive, #204
May 10, 2016 – Page 4 of 6
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
(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.
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.
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.
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May 10, 2016 – Page 5 of 6
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.
FINDINGS
Based on the reports from the Arcadia Police Department, Spring Spa has violated
several municipal codes, and the regulations of the California Massage Therapy
Council.
RECOMMENDATION
It is recommended that the appeal be denied and the revocation of the business license
for Spring Spa be upheld, and that Ms. Chuwan Zhang 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 approve a motion to sustain the appeal
and overturn the revocation and state the reason(s) for the decision based on the
evidence presented. 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 County, State and federal regulations.
2. Should any violation occur within the next 12 months, it may 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 approve a motion to deny the appeal and
uphold the revocation of the business license for Spring Spa and require that Ms.
Chuwan Zhang 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.
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556 Las Tunas Drive, #204
May 10, 2016 – Page 6 of 6
If any Board Member, or other interested party has any questions of comments
regarding this matter prior to the May 10, 2016 hearing, please contact Business
License Officer, Silva Vergel at (626) 574-5430, or svergel@ArcadiaCA.gov.
Approved:
Attachments: Exhibit ‘A’ – Revocation Notice
Exhibit ‘B’ – Letter of Appeal
Exhibit ‘C’ – Revocation Request & Face Page of the Police Report