club, inc., versus department of public health, appealing a 90-day suspension issued on august 14th, 2012 of a massage establishment permit. director's case no. msg12 -39. this matter is on for hearing. we'll start with the appellant mr. horcher, you have 7 minutes. >> it's getting late. i am soring you are feeling ill and congratulations president hwang and vice president lazarus on your ascension. all of that talk about coffee and the gentleman talking about going through law school in the '70s and i can relate to that experience going through night school. having a hard time trying to stay awake during procedures class. i recall a professor making key points and one thing he always said, you should always examine the issue of jurisdiction. i have two primary points on

that issue. today as indicated or foreshadowed by brief the appellant decided to file an exemption and declare that they are going to be bond on the jurisdiction of the state of california. the california massage therapy council. i have that, if you could bring up the projector, please? it was filed today. >> what is this document sorry, i missed what you said it was. >> it's entitled -- this first one -- there is two of them. i'm sorry. for a state certified massage establishment. as you can see it's in order and has been received by environmental health section. there is also -- this actually goes to the planning department, but you file it through the health department. there is also a companion document entitled "declaration

of exemption from massage permit requirements." this has also been completed and filed with the department of public health. in fact, directly -- dr. ojo was there. that is the first point. we do believe that the department of public health lacks the jurisdiction to upheld any suspension on ceo health club, inc.. second issue on jurisdiction, projector, please. this is a notice of hearing. we have talked about notice of hearings and now they should be precise. well, this one is not. there are several things i want to point out to you. this was given to the manager of ceo, not the other, she was not present this evening. given on july 27th, 2012. telling her, you had to appear for a hearing 12 days later on august 8th.

for failure to comply with the code sections. well, no. 1 the dph did not comply with their own code section. it is clear as a bell and it's been on the books for nine years and it routinely ignored. i checked my records, three or four years ago, they always guyed complied with this notice requirement, but now there is there trend that it's really, really short and i wonder why they are doing that. because the law is clear. before any hearing is conducted under this section, section 19-{^21} you shall provide permitee at least 20 days written notice. permitee only got 12 days. back to this document, you will see again, she was cited under section 19-21. let's keep looking at this document. failure -- down here in red ink says, "failure to appear

may result in -- they have two boxes here. the second box is suspension, revocation of your permit to operate the above referenced site. the box is unchecked. you may have read in the respondent's supplemental brief. secondly, you will look at allowing illegal activity to occur on the premises. no reference. usually they might incorporate by reference, but there is no specified illegal activity. and then you see the notice of hearings, particularly in the massage business. most of the people are first-generation americans, with what they call with language problems. they have difficultis with the

english language. english is a second language. how are they supposed to interpret this? are they lawyers? i have appeared on these and every time i object. the hearing officer puts it over. they know it's wrong, but if they know it's wrong, why do they keep doing it? you have got to give them at least 20 days. that is black letter code. now secondly, you have read all of the transcripts, like four-page transcripts of each individual who went to that hearing. it is shocking really when you think about, here you have the board of appeals you do things right. people take an oath. they are sworn. they are not sworn at dph hearings. you have these cards that you identify people. it helps in making a good record. you don't have that here. that is when you see the transcripts and by the way,

these are transcripts that dph certified as true and correct and it's embarrassing to show what a poor hearing and total lack of due process. all the people received that day. it's embarrassing. she was asked -- the transcripts speak for themselves. i can't add or detract what they are. there was no translator, unlike here at the board of appeals i have a translator and do things right. i will say i was at a hearing last week, and finally they do have translators. so things are looking better at dph hearings, but it's too late for those individuals on argue who did not have a translator. i guess you could say they got

"the rail roaded., in fact, lawyers would probably find it more akin to a default hearing. >> counselor, there the early part of your presentation, but you didn't go back to it, in saying that the the state certification takes what out of the jurisdiction utdepartment? >> it takes the appellant of the jurisdiction for these kind of issues on permit issues, it takes it out of the jurisdiction of the department of public health and puts it under the jurisdiction of the state, the california massage therapy council. >> are you saying it also

takes it out of purview of this board? >> yes, sir. >> did you brief that anywhere? >> actually, i have a letter. written that might be instrumental. >> you didn't submit anything. >> to answer your question, no, i did not brief this extensively. >> or at all, right? >> can you point them out to me, please? >> i'm sorry? >> could you please point them to me? okay. >> madame president, page 3 of lines 16 through 20. it's a new section of the law.

the state just unacted this a couple of years ago. they have added some amendments to it, but clear the department of public health prepared this exemption form, which i showed you. i will show you again. >> wait, i am looking for some legal authority. it's just an argument without any basis. that is what i want -- i want that authority supporting your proposition here. >> i refer to the b & p code? >> is that excerpted anywhere so i can read it? it's not, right? >> yes, i can. i would be happy to. >> could you put it on the overhead, if you brought it with you? that would be great, so i could understand your argument. because you led with that argument. if you don't, it's okay. i'm trying to understand. >> i have read it. it's for real and i would be happy to supply it to the board. >> perhaps we can let the city respond to that issue.

>> okay. thank you. >> it's clear as a bell. >> thank you. the department of public health created the form that she signed. >> we understand counselor. >> good evening commissioners. deputy city attorney -- i'm sorry. okay. deputy city attorney sherry kaiser appearing for the department of public health. i am going to focus on the new argument, but i'm also happy to answer questions about the arguments that have been briefed and the evidence that we have presented in deference to president hwang, i don't want to drag this out any longer than we have to. >> thank you. he waited a long time, too. >> i'm one of the many who have suffered through that and it's not fun. a few notes.

one is apparently these documents to which counsel is referring were filed at dph sometime this afternoon between 4:00 and 4:30. the counselor and i have been hering here in hours and he has not given me the courtesy of showing these documents. he still hasn't shown them to me and i have been right next to him. i also would point out that in his brief, he did have her submit a declaration and in her declaration she testified -- i'm sorry, i'm looking for the proper paragraph. oh, it's paragraph 7 of her

second declaration. so the one submitted with this attorney as brief. it says, "ceo contracts only with masseuses with california massage therapy council certificates or dph permits, both agencies require police clearance. i rely upon this." he explained this as saying as of the date of her declaration, right? so on december 21st, though perhaps not everyday it was the case that she only had 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. >>