or b or wind. president petersoncj5: i undersd -- >> nothing at all. he is not a blade, but we are blamed. we do not give him the cash right away. to leave him with the cash by himself. 5ethe first time we had that issue, it was my daughter's engagement, and we were busy, and somebody was cobain. nq feel like we were set up. gounod's? we are asking

understanding. we have 14 employees who survive to pay their food and their families. thank you very much. president peterson -- commissioner swang: -- hwang: you have any evidence to support that claim? >> i know the first-aid i was in business, they gave it to me. . commissioner hwang: who was giving you a hard time? not the department? >> the community association. ucommissioner hwang:qñkxi am jut

trying to understand. your idea is that the homeowners' association was giving you a hard time. >> they know everybody there. we are trying to survive and do the best that we can. i am asking for your mercy. commissioner hwang: i understand. >> this is the second one, and it does not look good. thank you very much. presidentqañi peterson: commissioners, then the matter is before you. commissioner fung: as one who has been fairly sympathetic and first occasions, i am not so sympathetic on a second occasion, recognizing that employees do make mistakes. the rese

business owner. the penalty could have been the maximum, and in this and to give instance, i need to support the ;çó this decision. commissioner garcia: i agree. when i first read this, i was surprised. they only asked for 45 days, and he stated is opening statement that he thought this was reasonable, and i consider it to if you were familiar with all of the cases that came before us,1[ first-time offenses and j-tú would understand that you have a compelling case, and the apartment to we do department responded by only giving you 45 days. as to the agency issue, you feel you were a victim of one your employees, the same thing can

happen with our children. we did not commit the crime, but we are made to pay for it. it seems unreasonable, but that is the law, and we are bound to ñ%ir iy believe that you operate the business in a way that it is not to sell haute tobacco to minors, but i believe that what was imposed by the department is reasonable, and i intend to uphold. present --v commissioner -- president peterson: i move to uploaded. >> we have a motion from commissioner hwang to uphold the

45 days. on that motion, president fung, commissioner garcia, and president peterson. thank you. the 45-day suspension is upheld. president peterson: ?uthank you. we can move on to item number seven, and mr. pacheco, we can move on. clerk: gneitem number 10-037. -- appeal number. this is the appeal of the revocation on march 312010 of a massage establishment permit. çpresident peterson: are you m.

hall? excuse me. we are going to start with the department first, the relocation. >> good evening, i am a deputy city attorney, and i am here on behalf of the department of public health. the department of public health us responded in this manner. it is the department's request that we deny the appeal of the hearing officer's decision to revoke the establishment permit. we believe both parties submitted as part of their exhibit the findings and conclusions of the statement of decision by the hearing officer, ñtty

sets forth why this is appropriate in this case. under section 1921 of the health code, dr. aragon had the authority based on the health code, and as you can tell from our brief and also statements contained in the appellant to grieve, me"m

what led to this. there were three separate prostitution, and you should know that each time the sfpd officer went into the sunflower spa, an officer was solicited. activities were occurring on the premises korea to each solicitation citation. ¿ of the latter, the appellate received notice that prostitution was occurring on the premises. the 4th rung, two sealed rooms, sealed with mattresses, and

there was another room located behind conceal practitioners that did not have permits, çand they wee concealed in the back room. the fifth rung up the matter, the violations of 2009 of one code section, there were violations involving two practitioners without permits on the premises. as i noted in my brief, two of the main reasons why we have a permit requirements are to ensure that the practitioners are proficient, and also to ensure that they have not committed criminal things.

the requirement is there for a number of public safety reasons, and kind of the additional rungs, harping on the multiple occasions, not a single-offense occasion, like we had here, rm-m without a permit in one time, three without a permit in lastly, the last thing is the

ladder to be vocation is that we had violations leading to the practitioners. there were orders from the hearing officers directing sunflower to discontinue employing these practitioners, so i would submit there is ample evidence to support relocation, and therefore, they should deny the appellants request, and they prefer to refer it back for an effort short of the location. president peterson. ribefore you sit down, did the department ever seek to suspend the license? >> no. president peterson: and why was that? >> the number of " things that

occurred, giving -- given the -- commissioner hwang: no time, they sought to stop this. >> i would argue that given these circumstances, this is not a business, this is suggesting that it is a front for prostitution. given the secret passages, given the efforts to hide practitioners without permits,

so the hearing officer heard the appellant make the argument that suspension it should have been taken, and the hearing officer laid out all of the music " -- all of the reasons, including that there was a problem, and the orders that they had directing them to stop, and that was not enough? to get them to turn the ship, that determined the relocation. >> i guess my question is why not in the past to the department not take earlier action to do what it said it and to actually deal with that approach in that time as opposed to building up the case over the course of four years? >> you do it in piecemeal, and

then you wind up with -- you wind up with situations like you have these lines. there is the flip side. i would argue that there is been enough communication, of them being told that if you continue this conduct, we're going to ask for relocation, so they were on notice in knowing that if they continued the conduct, they were creating a situation where the department would seek relocation, and i think given the long record, invocation is,

i think, appropriate. commissioner fung: what happened to the solicitation charges? >> a- resulted in a conviction. i do know that under the health code, it is not required. commissioner fung: i read that in your brief. >> public defender, most in the solicitation of prostitution, even if it is charged, the resolution is, at worst, itrusis usually 25 hours of community service, so that is my answer. one

individual had two counts, right? was there ever an incidence where the police went there in were notç solicited? >> not that i am aware of. commissioner garcia: 80. president peterson -- thank you. president peterson: i appreciate your patience. >> we believe that the decision rendered in this case was way too harsh. it is unfair and excessive but this point in time to have an out right relocation of this young lady's massage license.

she is a resident. she has been the owner of this establishment since 2004. in 2004, the san francisco police department offered her a massage permit to operate at 450b jones street. the department of public health came in and take -- took over the licensing. she got a permit to operate and continue to operate. between 2004 to 2007, there were not any violations. this lady ran into some problems.

the finds that the city attorney talked about were both fines that were levied against masseuses at different times that did not have proper clothing, and the last year, 1.5 years, the department has requested and imposed a requirement that they wear white smocks similar to what nurses wear. they have also imposed fines against those who did not have proper permits. no time between 2007 and 2009 was there ever a hearing that took place to revoke or suspend the permit of this establishment, and the past 16 months, the past 16 months, since the last violation in april 2009, the establishment has been in full compliance.

there has been proper attire, a proper permit, and she will tell you that she has cleaned out her establishment in terms of the management. she has gotten rid of the masseuses who created the problem. they were fired. they have been fired over one year ago. those three masseuses that received citations, to answer one of the hearing officer's request, all three were dismissed. there were no convictions. we believe that she is in compliance. contrary to what the department of public of testify to, which was this place will never be in compliance, she has proved in the past 16 months that it is a place that will remain in compliance. what we are asking is a little bit of compassion. this board has the power under

1921a of the health code to depart from outright relocation. you have the power to suspend, and we are asking that this be reversed and remanded back down to where it came from it, with conditions, suggestions, and that those suggestions -- and foremost, what this young lady suggested at the hearing is if there is a single violation in the nature of either prostitution, and soliciting, or any masseuse who is found on the premises without a permit, she will then surrender her license without a hearing. i might add she is there full time. she starts at 10:00. she leaves at about 5:00 or 6:00, and she as a trusted

manager who has been there probably for the last year. she has four licensed masseuses. all four of these masseuses have certification from the state of california. they have not been issue right now because it has taken awhile for the state. they have so many masseuses that are applied, but none of the masseuses hold any record. the managers have been terminated. the masseuses who got the establishment into trouble have been terminated, and what we are asking is a little bit of fairness, and our right korea vocation is too harsh. it runs just too far, far harsh of a penalty. we're asking you to bring it back down but not revoked.

if you revoke, this young lady has an economic investment in this business. it is over $100,000 at this point. she bought it for $60,000 back in 2004. she has invested more, and her monthly rent that she is paying right now is close to 7000 per month. she has about 2.5 months left on her lease -- 2.5 years. if this license is out right 3 vote, it will cause a severe economic hardship to her, the trusted employees that she has their working there will lose their jobs, and the place will be shut down, and she will suffer. she just wanted to make a short statement to the board. thank you. commissioner garcia: mr. hall,

++mu1q in dismissal. do you want to amend that? >> the first one was tip. the d.a.'s office did not file on it. there was a lack of evidence. commissioner garcia: not filing on it is not the same as dismissal. >> it never ended up in court. commissioner garcia: it seemed to me that you're saying that they were dismissed from working at this establishment. >> all three. ñrthe masseuses who got the citations have been terminated. >> ok, but you said unless i misunderstood the all three of them were dismissed as a result

of soliciting for prostitution. >> the first misuse -- commissioner garcia: stop, stop. correct me if i am mistaken. it is as if each time someone who worked for this establishment who solicited for prostitution was fired from this business. >> that is correct. commissioner garcia: one person did it twice, so how could they have been fired each time? do not do that. when she terminated the first time since she solicited for prostitution? -- the first time she solicited for prosecution? and then she came back? ok, that is misleading. >> that she violated the code

section. commissioner garcia: ok, i understand. >> she took her back. commissioner garcia: i understand. commissioner fung: have there been subsequent inspections? how many? >> two, maybe three. the most recent inspection occurred in october, and i believe it was in october 2009. they found a dog on the premises. commissioner fogg -- fung: this was in 2009? >> yes, and that was someone who was visiting, but there were no violations likenesses practitioners or anything in the

nature of soliciting or engaging in acts of prostitution. commissioner hwang: what is the amount of time that you believe is reasonable and appropriate? >> 45, 60 days, 90 days. she can handle that. she is also agreeable that if there is another situation, she will give up. but she has proven this over the past months. obviously, she does not want to

do that. >> -- commissioner hwang: do you know the next step in terms of korea applying? like, what would that involved? another one-year wait? >> well, she cannot transfer her license to a third person. a third person has to come in, so she has to shut down, and someone else will come in. i do not know who would be out there. commissioner hwang: she herself would not be applied? >> no, she would not be deemed qualified. president peterson: you keep

saying 16 months, but i think there was an event last summer. >> no, the last notice was april 2009. >> -- president peterson: i have june 15, 2009, and of an employe he solicited. >> i stand corrected. -- an employee solicited. >> i stand corrected. president peterson: 10:00 p.m. what are the current hours it? >> i mentioned that she would probably cut back to 8 to 9. president peterson: 89 hours of

working or -- to a >> 8:00 or 9:00 at night. i believe the others in the area are probably 10 to 12. 12:00 p.m., but she has made major, major changes, op-ed and none of the masseuses who created this problem or even those who did not have proper permits of a long gone, and it is just one and another manager who is there in the evenings that run the establishment now, and she was spending a lot of time in southern california with her teenage son, and when she was away, there were different masseuses there, employees. president peterson: