>> 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 not the suspension. >> the fine is not before you, and the board has no authority over the fine. >> in the case of the suspension, then i would grant the appeal on the suspension.. >> all right. i am of a similar mind, i think whether the department had a right to suspend on the basis of the inappropriate attire, and it is i think they may have that right, but i do think that it is accessive. and i think that there is insufficient evidence that the conduct at issue is illegal warranting any further penalty to the appellant. i would move to grant the

appeal. >> do you want to state a basis? >> on the basis... on the basis that the suspension is unwarranted, and excessive, and i think that the fine and i know that the fine is not before us, but the fine seems sufficient as penalty and that was not challenged and also as i just stated i don't believe that the conduct, based on the testimony presented in the facts and in the record there is insufficient evidence before the board, or in my view to find that the conduct at issue was considered illegal. and for those reasons i would grant the appeal. >> we have a motion.

>> the motion was from commissioner >> or president hwang. >> okay. >> the motion from the president, to grant the appeal, and to over rule the 60 days suspension with the finding that the suspension is unwarranted and excessive ask that there is insufficient evidence in the record to find the subject conduct as illegal. correct? >> correct. >> on that motion, to grant and over rule with those findings, commissioner fung? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus. >> aye. >> commissioner honda. >> aye. >> it is 5 to 0, the suspension is over ruled with those findings. >> thank you. >> bewill move on to 13-061.

nancy luo dba "clement service center", appellant(s) vs. dept. of public health, respondent appealing the revocation on may 13, 2013, of massage establishment permit. director's case no. msg-13-23. for hearing today. >> and we will start with the appellant who has seven minutes. >> attorney for the appellant and the service center and my co-counsel is sean falehi eh. and i have been discussing this with the city attorney and a continuance this has been additional information and represented. and they have indicated to me that they would not object going over to the next hearing and that is suitable with the president and the members of the commission. >> could we hear from the department? >> good even. i discussed this with the health department, and they

would be fine giving the appellant another month to review the information that has been provided to them. for some reason they did not have a chance to look at the papers yet. >> and excuse me, there is a chart apparently that the city attorney wants to use and it is just shown to me tonight. and so i would like to be able to review all of that and make copies of all of that. >> what is the content of the chart? >> we have a pretty as i understand it a very full calendar next week. >> have all we did if they brought up the other locations which are not relevant to this particular hearing, is go through the documents that they were provided under sunshine requests, and weeks ago, and to distill that information into one page. >> it was a summary of the other venues that they brought up in their brief, saying that they have been singled out and so it is just as like i said it is the loss of all of the

information that they received pursuant to the public records request and to instill that information and we were going to offer that on rebuttal if they are raising some kind of discrimination. it is not new information. >> we would like the same opportunity as the law student has to go through the information and come up with our own conclusions so we are requesting next month if that is possible? >> could you proceed without that? >> but, would i like to have that, because that is part of my argument that i have seen that the commissioners have received my brief. >> okay. >> thank you. >> if there is an interest in entertaining a motion to continue, i could ask for public comment on that. >> i will. i will make a motion. to continue it. >> okay. >> so is there any public comment? >> okay. if you could step back. >> thank you. >> okay. >> so there is a motion by the

president. >> i mean i am not. on the basis, and the only reason that i would entertain this and make the motion is simply because the department is not objecting to it i would praoerp that courtesy and for that reason if both parties are not going to have a problem with that, we will go ahead and move it. i will make a motion to move it if my commissioners are also in agreement. but... i have been trying to think of a date. >> august 14th? >> or the 21st. and the two opportunities in august. >> okay. >> both are pretty heavy. >> i would prefer the second date in august and august 14th is my son's birthday. >> sure. >> we would prefer the 21st also. >> okay. is that okay? to the matter is continued and we will make a motion to continue the matter.

>> the calendar looks about the same any way. >> i will leave it to that date. >> president hwang, any additional briefing? >> no. >> the chart was not submitted as part of your materials, right? >> it was going to be, you provided it... >> in the rebuttal if you brought up all of these other. >> it has not been submitted. >> no further submissions please >> we have a motion then to continue this to the 21st of august with no further briefing, if you could call the roll. >> on that motion from the president to reschedule august 21st no additional briefing allowed. >> fung. >> aye. >> hurtado. >> aye. >> lazarus. >> aye. >> honda. >> aye. >> thank you. >> the vote is 5-0, and this hatter is reschedule to august 21st. thank you. >> okay. >> the next item on the calendar is appeal

13-060.martin dean, appellant(s) vs. dept. of public works bureau of street-use & mapping,75 mars street. protesting the issuance on may 14, 2013, to david maxfield otto living trust, minor sidewalk encroachment permit. permit no. 11mse-0436. for hearing today >> and with the president's content, we can hear from the parties regarding a request by the appellant to continue this matter to a later date. >> all right. >> we can give them two minutes. >> this is opposed >> good evening, my name is martin dean and my taught me that when you inconvenience others the first thing that you should do is apologize. i want to apologize for all of you for requesting this continuance, this is the basis that i have done this, i have

prepared a brief it was the understanding of certain facts that had been included in the decision of the dpw. but were not or were then added to in the dpw response to my original petition. and i'm not going to address the petition here. all that i am going to do is request a continuance. and what is the reason for my continuance is that the response to my brief by mr. elsner adds facts that were not originally heard at the hearing. those facts are on physical page 4. and the first four paragraphs of his response. and here is the issue. this is a park let at the corner of mars and corbet it is abandoned piece of property. the park that has been approved

by all of the neighborhood, i currently represent nine of the neighbors who are very, very unhappy about the grant of a portion of that for the private use of mr. auto. we didn't know that this permit was going to grant private use to him until mr. elsner's response of brief was filed last thursday. it took me four days to get my people together and testified last time we were here and i filed a request for a continuance on monday. and neither party has consented to this continuance. the problem is that we needed a chance to research what the consequence is and the statutory basis is. and that is what the board will have to find to be able to give mr. auto private use of public property. and i need a chance to be able to do the research and that is