so if there is two times and i am happy to just take it. >> okay. >> okay. i am just going to move... sorry. >> i was going to call for public comment. >> if there is any? >> and there is none. go ahead. >> that will clear this room fast. >> move to grant the appeal and reduce the amount to two times based on the comment of the inspector. >> thank you. >> thank you very much. >> if you could call the roll please? >> on that motion, from the president, to grant the appeal and reduce the penalty to two times the regular fee, on the basis of the inspector duffy's testimony? >> commissioner fung? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus? >> aye. >> commissioner honda. >> aye. >> thank you. the vote is 5-0 and the penalty is reduced to two times on that

basis. >> thank you. so we will turn to item number 6. xh is appeal number 1 3-051nga tu lam, appellant(s) vs. dept. of public health, respondent.appealing the sixty (60) day suspension on april 15, 2013, of massage practitioner permit. director's case no. msg-13-19. >> and we can start with the apell lant. >> my name is christopher hall and appealing with the appellant. and this is as you so rightly pointed out it is an appeal pertaining to a $500 fine, within 60 days of suspension and then, it is our position that the appellant's position first of all that dr. aragon the director who issued the decision which is dated april the 15th, 2013, that is attached to the notice of appeal as the exhibit a. and i want to point out that

that decision that he rendered is a date there which is paragraph three. and it mentions that, he violated 647 via the penal code in 2013 and his decision is inconsistent and that date, july the 12th, it is inconsistent with the notice of citation that was issued to miss lamb. way back on july the 27th. she was not working on july the 12th, 2012, so if you look closely at that decision, it is erroneous and inconsistent with the facts that were set in the city attorney's brief, her brief mentions july 27th, in addition to that i would like to point out. >> i am sorry to interrupt you, you were referencing exhibit a to the brief? >> it is attached to the notice of appeal.

>> okay, thank you. >> okay. >> and there is a date there on the third paragraph that mentions july the 12th, 2012, but the fact that are set forth in the city attorney's brief on her paper is mentioned july the 27th. and aside from that, there is allegations that miss lamb engaged in a violation of 647 b of the penal code which is soliciting an act of prostitution for money or in gaging in an act of prostitution, and i submit and there were no no known opposition and facts and we went through the hearing in this case that suggested that miss lamb, in had reached money or solicited money for the act of prostitution nor was

she found engaging in the act of prostitution in a room. in fact she was never with a client and she was never with a customer on that date. if you look at the notice of citation, that was issued by ed walsh, with the dph regulator when he came in there, the time on that was at 6:10 in the evening. and we brought this up at the hearing. initial hearing on this case, that for hours, or from ten a.m. to 5:30 p.m., after she got off work, a friend of her came by the establishment and they were going to go out to dinner. and they ended up in the room with him and yes she was making love to him. and there is absolutely no facts of support that violation of the penal code and she was not questioned by dph officer walsh and she was not

questioned by alen para who is also his assistant and they put in both of their declarations that they never had time to question the subject, although they call them as a client and they call them as a customer and he was neither. and it is fine, what i find very odd here is when dph went in there and walsh and para and they were accompanied by the police department and not one of those officers questioned miss lam. and they had an opportunity to question the subject and they did not question him. and miss lam was never arrested for the violations of 611 for the penal code and never cited. and walsh knowingly entered that room and looked for money and they would not have found money because she received no money. she was not soliciting or

engaging in an act of prostitution in violation of 647 b of the peanl code those facts are not controvered whatsoever and they were not touched when they went to the hearing and i questioned walsh about this, about the facts of money and aside from not being able to make the case that is the findings that there was a 647 b violation. the other issue here is whether the 60-day accompanied by a $500 fine, was appropriate. and i i think on a second ooffense for the improper attire, if you reached out that she was improperly clothed because she was in a room, i submit that she was not acting as a masseuse when he came in with his associate and the police she was off duty.

if anything. she is remorseful about having done what she did which was making love to a friend of hers she was not engaged in prostitution, and there may have been an improper attire but she was not on duty at that time. the city attorney points out that there was a prior violation of the improper attire and she submitted a photograph and that improper attire against miss lam was on april 12, 2012, i believe it was and if you look at the photograph there she did not contest and, and she should have because it did not establish that she was improperly atired as a masseuse in april of 2012. i submit that i think that the... and i might be correct that walsh can answer this question and on a second offense for improper attire and meaning the improper clothing it is elevated from a 250 fine on a first offense to $500. and here they are trying to

impose the $500 accompanied by a 60 day suspension and i think that is a bit accessive. again miss lam is remorseful and she is sorry about the conduct that arose in the room of her being a friend of hers, and making love. and she is sorry about that. she is sorry about putting the board members through this type of a technical hearing but it is important to her that she maintains her local massage establishment permit. as a masseuse. >> i have a question. >> yes. >> so there is no criminal case pending? >> there never was a criminal case pending. there never was an arrest or a citation, and as far as i know, there was never a police report that was generated from this unfortunate incident. >> okay.

>> was there ever any testimony provided by the friend at the hearing? was there ever any. my understanding based on the facts that i have read is that the friend left quickly. is that... how do you... >> it was a long time friend of hers he came by the establishment and the two of them were going to go to dinner. she ended up in the room. >> where did he go? as he made an appearance to attest to the fact. >> it is a lower hearing and his name is david and she has known him for many many years and he was not contrary to what the walsh, ed walsh or allnexter says that he put his clothes on and rushed out right away. you would think that if they were interested in prostitution or a violation, they would have detained him and questioned him. >> he is not around. i didn't have him present and i can tell you his first and last

night and it is confidential. she wanted to keep it confidential and thes david. it is david doe. and as far as the city attorney say, well she had... >> do you have an affidavit or anything stating that that is what he was doing there. >> no. i didn't submit an affidavit. >> i wanted to see if there was any physical evidence. i understand your argument. >> i want to accept what you have to say about the facts i just want to know if there is anything missing. >> no. >> and what is it, and let's be clear, what is it that you are asking of this board? >> well, you know, the best of all worlds would be if you find that there really should not be a 60 day suspension, that would be great. i don't think that it warrants that, if you want to fine her and i might add that this case

was back up on an appeal back in september but it was remanded back before the department because she did not have an interpreter at the first hearing and the deputy city attorney had offered my associate a $500 fine. >> i think that we understand. >> thank you. >> we will hear from the department now. >> good evening, from the city attorney's office on behalf of the department of public health i have the two inspect ors here that can testify to what they saw in terms of whether or not this woman was committing an

act of prostitution, again as i have pointed out they have neither the authority or ability to conduct a search or detain somebody. this was a task force inspection of the premises, and the police were otherwise occupied with other people on the premises, and other evidence,. so, you know, the situation is budget is no one denies the fact that she was in the massage room during the business hours engaged in sexual intercourse with a customer, and if you would like to hear from the inspect ors? >> i am ed walsh, on july 27, 2012 we conducted a inspection at 130 bush street.

and myself and the inspector para entered the facility and went in and started opening doors and at that time, we saw miss lam engaged in a sexual activity with a white male. at that time, she was completely naked and we told them to get dressed and we need to talk to you outside of the room. at that time, the declaration says that the person was in the room with mis lam walked out and left the premises and got his clothes on and we spoke with miss lam. and as virginia explained to us our job is not to identify whether it is an act of prostitution or money engaged or anything like that, we don't do that. but we do, require people to are dressed properly and also, that provide massage, not some other type of service that is

not appropriate so basically that is what happened. on july 27th, 2012 and this has been ongoing for a year because it is continuances and i am hear to answer any questions if you have any regarding this case. >> okay. >> allen, environmental technician and i have been working with the program for two years and i have assisted walsh with the inspections in the massage parlors and i am familiar with the layout. once you enter to the left there is the waiting area and then there is the counter where you would usually pay for your massage and previous inspections i was able to speak with the customer stating the services that you are able to at this massage parlor and on july 27, 2012 i was trailing

edward walsh in a inspection and i did see lam on the massage parlor having sexual intercourse with a white male. >> i would like to point out that miss lam's counsel does not address. she is certified by the state and there is nothing to prevent her from practicing her craft without city regulation at this point. and the department would like this upheld because she in fact for some reason loses her state certification and although it is good for two years. and then she would come under the regulation of the san francisco ordinance at this point, there is perhaps, you would be serving her suspension concurrently with her state license, but why her attorney has not advised her of that she

would be earning a living. >> do you have a response to the position of the appellant that based on the deposition that this is an off duty conduct not to be controlled or governed by any of the provisions on the permit? >> yeah, i did not handle the first part of this case but i have seen no evidence offered that in fact she was off duty that anybody came forward and any gentleman came forward to defend her honor. and this was an inspection conducted during business hours at an establishment that advertises massage. >> but i guess that my question is that even relevant? >> or do you know what i am saying? it says that this permit address all conduct that takes place? regardless of what time or if it is during... i think that the inspector says that during

business hours is the activity takes place even if it is con sen youal not with a customer and not for money etc. does that matter is that relevant? >> it is relevant. >> it would help me. >> it is relevant that to she is naken in the room having sex, why the police did not site her i do not know. is it a violation of the health code to be having sex in the room, that is not in the health code, i think that we should look at amending that, it does put the health department in an awkward inspection, they follow through and site for the health code violations as they can based on the facts. or, you know, they turn away. >> there is a similar question related to the other intention like the inappropriate attire when you are not on duty, is that in the code. >> it is assumed when someone

is you know, in the business, during business hours, that in fact, they are performing the services that the business advertises. and there has been no allegation, no documentation that she in fact was not on duty, nothing from her employer. and that in fact she was off duty and deck kla ration from her, and the only declaration supplied is about the payment of her fees, again, nothing to help us sort out of the facts only a denial that this was a customer. rather than... >> i would ask the same question, i asked the council for the other appellant. >> what is it specifically that you want this board to do? >> at this point, the health department would like the suspension to stay in place and this is the second violation. as i said as a practical matter, she currently is suffering no economic harm and

she is licensed by the state and free to practice her trade as she sees fit. but, in the off chance that for some reason her state certification is revoked then her san francisco permit will be suspended. >> i have one last question for inspector walsh. in your task force procedures, you folks are looking at rooms differently not in the same attendance as the police? >> to provide police and conduct human trafficking of the masseuses that are working there. >> and all right within your procedures, for how you handle

the inspection, if you see something that is... and are you then supposed to bring the police into it? >> we do bring the police, at the time i mentioned a police officer to just a lady was engage in sex with a customer. but, he just conducted an interview of her, he did not pursue any other violations, or pursue any other questioning or investigations at the time. >> and the police did not question the other party? >> i don't remember those i could not answer that. >> inspector walsh how long have you been doing this? >> i am going on my tenth year. and how would it be determined by you or anyone on your staff, that someone is engaging in non-... i mean, if they, is the act of sex or the fact that there is no clothing on the

person sufficient for you, regardless, or are there any circumstances here that would be considered not a violation by your standard or by your measure? >> no. it is improper attire and it is unprofessional conduct in a massage room. >> and need to get back to mr. fung's and he asked the attorney is there any rules about improper attire? >> and yes, the healthcare articles section 1926, it allows the health department to implement rules and regulations and in that in those rules and regulations, there is requirements and now how they are supposed to dress at all times in a facility. at all times. >> and now that she is off duty, at all times. >> where is that section? >> it is in that... it is in the health code and the rules and regulations and section

1926, and that will allow us to adopt the rules of regulations that is x1 g. >> okay. >> do you have a sort of a section with respect to what they can do on or off duty at the time property? >> no, there are other rules in there, and the other requirements in those rules that we also implement. and there can't be any smoking or alcohol on the premises. the massage rooms can't become like hotel rooms for the masseuse and sleeping in the quarters and they have to get changed in the bathrooms not rooms, and they can't eat or drink in the rooms. these are all operational requirements that we adopted. >> and if you don't have a

copy, we can provide a copy and we will provide it on the dph website if you want to review those. >> i have got a question as well. as the permit holders pointed out there is a discrepancy in the dates. >> that is a typo. it is actually july, 27, 2012 when we did the inspection. i know that it was a mistake by the secretary, i think. >> okay. >> yeah. do you have extra copies of the rules? >> what is the section for sexual conduct? >> there isn't any, there is a 1921 of the health code says that if the department will revoke or suspend permits for illegal activity by a them.

>> unlegal by the penal code illegal? >> i think so. >> excuse me i apologize i did not bring extra copies. >> that is okay. >> i have another copy. >> that is okay. we are handing it around. >> but we are looking at is a section 9 gabout proper attire. i am just trying to understand because we have heard an argument and the position of the appellant that the conduct was not illegal. and it was con sen youal voluntary and not for payment, off duty conduct. and so, if it is not considered illegal, by your operational rules, and i am just trying to see how else you can site her for that. >> yeah. >> i am in kind of a tough situation, i run into the situations and i can't just ignore it. >> i know. and that is why i was asking about your experience and whether there are circumstances

where people are having activities that you might consider that falls in one category and may not actually be that. okay, i have no further questions. okay. thank you. >> is there any public comment on this item? >> seeing no public comment, we will take rebuttal. if you will you have three minutes. >> speak into the microphone. >> i think that he hit it right on the head which is the under 12 g, of the regulations, you referring to the massage establishment or the employee engages in any illegal conduct. okay? and in connection with the permitted activity. and it is illegal conduct and she was not engaged in permitted activity because she was not on the job acting as a masseuse and two is she was not

engaged in illegal conduct. and in that section, 12 g allows for the revocation of suspension, she has never had her license suspended and mr. walsh was not clear, the prior violation against her was an improper attire, and that occurred back in april of 2012, she was not naked she did just not have, if you look at that photograph, she did not have her arms covered or possibly the dress that she was wearing may have been just above the knees. most of these masseuses where white jackets but it is not a requirement. but that is the prior violations she has never been cited before, arrested before. and for 637 b and soliciting and engaging in an act of prostitution. >> are you saying that she has a clean criminal record. >> her honor is at stake.

>> she was engaged in an inappropriate service. that was not a service that she was providing at the time. it was improper judgment on her part to be love making in a room. but she was off duty at the time. and the city attorney, if you look at her papers, page 2, it says, she is exempt from the local regulation because shes a california massage therapist out of sacramento and she has two licenses she wants this to stay unblelished of the attack of prostitution. the city attorney says that if she is exempt from the local regulation, and then we should not be here because of that additional license, and the hearing officer should not have made that decision. again it boils down to when she violated 637 b and it is not there. and the task force was with the

dph and these two, directors they task force could have detained her in questioned her about who she was with and the other male that was in there and that was not done and she was not rested or cited. so, i submit, and i think that the imposition of the penalty in this case is accessive to this young lady. >> thank you. >> counselor just for your information, those photos that you referenced are not legal able. >> i could not make them out, they were not clear when i got my papers from the city attorney. i was hoping that you would have had more legal able ones if i did. >> and those photos pertain to the april 2012 improper attire not prostitution or illegal conduct. >> thank you. >> this activity for when she

was cited was prior to her obtaining her state license. and because of the series of continuances, this particular threat was continued. and that is why i pointed that out mainly to go to the point that she has not been economy damaged in any way. >> thank you. >> >> commissioners this matter is submitted. >> >> any comments? >> i have comments i will start it. you know, there are two points here. of one is the fine and the other is the suspension. if you look at the code, it is quite clear that it said inappropriate atires applies at all times it is very specific.

i would support the fact that there is a fine and if the going rate is on the second violation of $500 then i would support that. the other issue of suspension of her license, i don't find that there is enough information to make that judgment and i cannot support the suspension. >> i concur. >> and i do as well. >> obviously the police did not arrest or charge because there was no evidence of 637 b and so that can be the basis for either the fine or a suspension, i do agree to the improper attire at all times but i also agree that is worth the $500 fine and