california state-certify masseuses at work. secondly whatever he has submitted today is a declaration from his client and some sort of assertion, but it's been untested. i think you can see from all of the exhibits that you have already reviewed, there are a number of assertions that the appellant has made that do not about appear to be true. i don't think this board has a reason to indulge any new asserts that are untested and, in fact, unserved with the presumption of credibility. i think that should be dph who is receiving these forms. third, counsel did not bring the law for you.

i have a copy -- unfortunately it's very marked up and i don't feel comfortable providing it to a deciding board. i have no secrets, but it would just be inappropriate to share my attorney work product with you, but i can tell you this much: the section that he is referring to is "business and profession code section 46-12." and it provides that massage establishments that only employee california-licensed massage practitioners. it goes on to provide however that even for those establishments, a city/county may still adopt reasonable health and safety requirements including requirements in regard to reasonable attire. that is subsection 6.

or b-6. and subsection c continues, "that nothing about the state regulatory section shall preclude a local ordinance from authorizing suspension, revocation or other restriction of a license or performance for violation of this chapter or of the local ordinance that occurred at the business premise." i don't think it's the case that ceo can evade the pen penalties that happened in july before they came within the ambit of the state statute. even if you set aside the facts and you sets aside the law, that argument is curious, because it would be the only law i'm aware of which you can say i can commit a wrong, but i can't be penalized because six months later i moved out of your jurisdiction and therefore, it doesn't count that i committed a violation in the first place.

that is just a very strange argument. and i think we can leave it at thatment if you have questions, in particular the most serious question raised the 12-day notice received despite 20-day notice requirement. dph acknowledges that was an error, but the case law is clear that the error was cured by the appellant's appearance at the hearing. and even if it weren't already occurred it was waived by her failure to object and make it easy for the hearing officer to provide a correction. and in any event she has plenty of notice and opportunity to be heard in front of this board as well. >> question. the document that was filed late this afternoon, would the mere filing of that change anything? wouldn't the department have to take some sort of action on it?

>> i haven't been graced with the courtesy of the document. so i can't speak with any certainty, but i have to believe that the answer would be no. >> i have no questions. >> thank you. >> i assume there is no public comment. so we can move into rebuttal. >> i find it amazing that someone discusses courtesy who did not extend me the courty of an extension five weeks ago. i want to thank the board for doing that. it gave me an opportunity to brief this matter thoroughly. this is not my brief. this is the respondent's brief. health code section 19-21 b requires that director give the parent holder at least 20 days' written notice. clear as a bell. clear as a bell.

thisler will i enter into evidence, december 7th makes it very clear. establish conditions under which san francisco massage establishments may be [speaker not understood] requiring under the san francisco health code. finally to answer your question, madame president, section 46-12 no. 2. lengthy, i only have a minute, but it's there. it's for real. >> i have it in front of me now. >> it speaks for itself. as far as looking -- this was a draconian penalty. it was not disclosed to the hearing officer, nor to you in the opening brief. it was not disclosed to you, all three were dismissed and

that was vital information that the hearing officer deserved to know and you deserved to know. furthermore, there is some historical presscedent on suspensions. there was -- i think there was one last year, i believe that they got suspended for 30 days. there was one like a few years ago, a 60-day suspension, but that itself was suspended. this is very harsh -- she understands. she should have been there. she regrets not being there. it's one of those murphy law type of things and that is exactly what happened. the name of the -- let's see -- -- that is about it. i just wanted to let you know what is going on. 90 days is just too harsh and

severe to put her out of business and her ten employees out of work. thank you. >> counselor, i have two questions. >> yes, sir. >> one is the incidents that you referred to that were dismissed, your brief provided those and i understand your position on those. what is your response to the incident that occurred in 2011? >> 2011 or '12, sir? >> was it '11 or '12? it was relatively recent? >> the one that put it over the top, the na case. >> july 28th, 2012. i think so. >> all i remember was

relatively recent. >> yes, the tipping point. what is our reaction? she does some research and apparently this gentleman was the young lady's paramour. she was filed an appeal and i understand there is going to be a settlement conference or it's pending settlement april 20th, you will hear it again. ceo took action. ceo fired her. >> my second question, sir, is you indicated that this penalty, the 90-day suspension was quite heavy. you mentioned a couple, but provide us -- -- flush that out in terms of what department has been doing consistently in terms of penalty?

>> it came out to a note net of 30. they forgave the 60. and i think probably one-year probation and said don't do it again and if you are okay in one year, we won't impose this penalty on you. >> and you didn't bring any examples of that? >> yes, there was an example, i believe it's called the palm tree. is that correct? thank you for your kindness and cooperation. they had four citations,. they were opened past midnight. they had one woman there who was arrested or cited for prostitution. there was also allegations of skimpy attire, the attire was not appropriate. it was a little higher

magnitude in this case, and that resulted in a net of 30 days suspension. >> recently within the last couple of years? >> i believe it was recent. i heard it was last year. but i also looked in dph records and looks more like it was 2006. they don't suspend that often. >> thank you. >> thank you. >> in addressing the severity of the penalty, in fact, under the law, under both the ordinance and the regulations, the only penaltis that require a showing of prior violations in order to increase are the administrative fines. from the very first infraction the department of public health

has the discretion to revoke a massage permit. the fact it hasn't in this case despite repeated violations, discovered both by the public health inspectors and in operations with the police is a gift. it is a gift from the department of public health that that permit will still exist after this hearing, if the decision here is upheld. i really don't think there is any ground to reduce the penalty. i think if anything, the penalty is still quite gracious. you have a repeat violator in front of you. she is unpreentent and keeps doing it. the attempts to nit pick with the hearings and was everything that we did absolutely perfect? no, but that is not the standard.

she certainly had a fair hearing. she certainly had an opportunity to present her case to dph and if she didn't, she certainly had that unt opportunity and more before you. i don't think there is any grounds to overturn the hearing officer's decision and i hope you agree. >> thank you >> are you aware of any other suspensions? how often do these type of establishments have violations and is there a normal standard of suspension or track record? >> i'm not prepared to talk about all of dph's massage cases. i am prepared to talk about this one. i can have ed walsh talk about that one. he is the inspector. >> okay. >> would you like him to? >> if he is able to answer that question. >> are you? >> yes.

>> good evening commissioners. i'm ed walsh, i'm the senior environmental health inspector of the massage program for about 8.5 years. i have 28 years' experience as being a city employee with the city and county of san francisco, as a health inspector. regarding penalties for violations, we have a number of violations that we look for, and we fine people or suspend permits. most common violations are practitioners without proper attire, practitioners that don't have licenses and for violations of employeing unlicensed practitioners. those violations usually incur a fine of maybe $1,000 at the first offense and goes all the way up to $5,000 for the third

repeat offense. in the two-year period, we keep track of those violations and when we find them, we bring them to the hearing, and appropriately request those penalties. in the case of illegal activities such as prostitution, the fines are a little more stringent and it gives us the opportunity to suspend or revoke permits, if there is prosecution. i'm here to answer questions >> my question is how often are suspensions given for these? >> probably in the last year or so, this is the first one we have suspended this year. we have closed a lot of facilities for operating without permits. but as far as suspensions, or revocations, this year, this would be the first one. >> for 2012? >> for 2012, i believe there

was probably one also. >> and how long was that suspension for? >> i think mr. horcher was referring to the palm tree. i think that was for prostitution and that was originally it was a 30-day suspension. >> okay. thank you. >> thank you. counselor, i had a question for you. you do not or maybe you do. do you dispute the case history against this establishment in terms of what had been -- which cases have been thrown out and which ones have been carried forth? he indicated the three in his brief, the previous years. >> in terms of the police reports? >> yes. >> actually, i don't take a position on that, because i did not run those down. and the reason was that his

argument in that case was that you had to prosecute a case all the way to conviction for it to count. and that is actually not the legal standard. and so i didn't -- i didn't spend my resources tracking down the ultimate disposition of those cases. it is enough for the hearing officer to find that those prior violations occurred regardless of whether or not they eventually led to a conviction. and the hearing officer could properly make that finding based on the sworn police report in front of him. there is case law clearly on point that says that is an appropriate basis and substantial evidence for administrative fact-finding, both the sworn declaration of the police officer and the police officer relating the testimony of other people who had been in the vice team who

also participated. so can i say for sure what happened in those cases? no, i can't, but there is no indication that the factual predicate was wrong. it was proper. >> statement sorry, one last question. was there a fine that was levied towards the ceo? >> yes, there is a $2500 fine being levieed >> thank you. >> thank you. commissioners barring any further questions, the matter is submitted. >> might i make clear to the commissioners what is before you tonight is the permit itself. but the board has not given you jurisdiction over the fee part of this. so it's really the

suspension of the permit that you get to decide on. >> thank you. >> and also, just for clarification, we have no jurisdiction to reduce the penalty? >> right. >> that is correct. up or down? >> i'm sorry, clarification. >> there is no reduction. we have no authority up or down? >> you can modify it. >> yes. you can modify the suspension, but not the fee, the fine, the money. >> thank you. earlier i misunderstood. thanks. >> i mean, are we having conversation? >> yes, please >> looking and going over the file, evidently, this is not the first or the second, or the third. but the reason why i asked for previous background regarding suspensions is that is somewhat

of a standard that has been set to follow along with what has been given in the past. i don't know regarding, i guess, the three palms or six palms, how many times they had been caught for violations. so i'm not sure if we go from 30 to 90, if that is appropriate, or if it is appropriate, that is my feeling. and so i'm not sure. i will leave it to the rest of the commissioners for me to hear some more dialogue. >> i think my issue is sort of recidivism issue. so 90-day suspension is not a year. it's into not a revocation. it's somewhere in between. i find persuasive the briefing of the city attorney on the notice issue, as well as uncompelling the briefing on

the jurisdiction issue on the part of the appellant. as far as the penalty itself, my generinclination is to uphold as it is. >> i would agree with that. i feel there have been multiple efforts to try to stall on this, to somehow set up a case where there wasn't going to be jurisdiction. i believe the deputy city attorney forewarned us about that at the last hearing. i think we were generous in allowing this case to be delayed for change of counsel and proper briefing. but i continue to be persuaded by the facts and what i have read, that this is a series of violations and this is an appropriate suspension. >> okay.it's interesting in

terms of history, because this board back in the '80s, every meeting there would be a suspension or a revocation case related to a massage establishment? >> when was this. in the '80s and mimes more sometimes more than one. i don't know if the numbers has gone down or they are obeying the law more. >> you did your job in the '80s. >> the question here, i don't think there has been a lot of dispute over the incidents. there is probably some dispute over the exact happenstance over the more serious incident and therefore, i accept that there has been a number of issues here that warrant some level of penalty.

the contrary side to that is the fact that there were some due process issues. one in terms of the 20 days. and i was also not overly impressed by the nature of the hearing process that i read in the transcript. it was not very well-done and i didn't think it was just an issue of language, but what i read into statements. how people were directed. how they were allowed -- and i didn't find it very appropriate to a city agency in terms of how we deal with our citizens, no matter how guilty they may be. so i would probably, based on that, as a counter, and i don't disagree that they have found significant incidents that warrant penalty, but i

would reduce the penalty, just because of the due process issues. >> what is your proposal? >> i would reduce it to 30 days. >> you want to bargain 60? >> split it at 45? >> i could get behind 60. >> split it or 60? >> 60. >> i'm comfortable with 60. >> i'm comfortable with 90, but i'm go to 60. >> i accept. i would move to uphold the appeal and reduce the penalty to 60 days suspension. do you need findings? >> would that be on the basis? >> on the basis that the notice was faulty. >> okay. >> i can't get behind that

basis actually that the notice was faulty. >> what would you? >> i would say that there were questions raised regarding process at the hearing level, but not notice. >> all right, due to questions related to process. >> okay. we have a motion from commissioner fung. to grant this appeal and reduce the suspension from 90 days to 60 days on the basis of questions related to the process at the departmental hearing. >> yes. thank you. >> on that motion to reduce president hwang? >> aye. >> and commissioner hurtado is absent. vice president lazarus? >> aye. >> commissioner honda? >> aye. >> the vote is 4-0 and the

suspension is reduced to 60 days. >> there is no further business. >> thank you, this meeting is adjourned.

>> hello. welcome to "culturewire." we are here today with bay area artist jody chanel, and we are here to see the plaza where your piece has just been installed. >> i have been doing large-scale paintings in the galleries and museums, and the idea that in the future, i could do something that would hang out a little bit longer than the duration of the installation the kind of appeal to me. i quickly found out about the san francisco arts commission school and realized there was a pre-qualified school you had to apply to, so i applied to the. >> how long did it take you to develop this work for the plaza? >> this was a fast track project. design development was about a

month. >> let's look at the beautiful mural. i have never seen a mural created on asphalt. >> the heat of the asphalt, a new layer of asphalt. then, these wire rope templates that were fabricated for the line work get laid down and literally stamped into the asphalt, and then everything was hand-painted. >> maybe you could talk about some of the symbolism, maybe starting in the middle and working out. >> [inaudible] the flower of industry. >> it is like a compass. there's an arrow pointing north. >> within the great bear consolation, there are two pointed stars here. they typically lead one to the northstar, otherwise known as polaris.

so i thought it has a layer of theme. >> let's talk about some of the other elements in the peace. we are walking along, and there is a weather vane. there's a sweet little bird hanging on the side. what kind of bird is that? >> [inaudible] the smallest of the gulf species, and it lives around the bay area. >> you want to talk about the types of flour patterns that you send? >> [inaudible] around 1926 or so by the dahlia society. >> what is this bird here? >> that is the california quail. >> coming up here, we had a little blustery theme. what is this area here? >> this is supposed to be the

side view, the expense of the golden gate bridge. >> there it is. >> there are really beautiful elements of architecture still around, i would say that it gives that feeling over to the work. >> what are your hopes for it? >> that in a way it just becomes part of the area. i think it is starting to have that feeling. people utilize it. they sit and, and have their lunch and play on -- they sit and, and have their lunch and play on that -- they sit and come and have their lunch and play on it. just for it to be part of the neighborhood. that is my hope. >> is such a beautiful addition to our public art in san francisco. thank you for joining us. it was nice to meet you. and thank yo