SR-12-A (41)
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JUL 2 4 1990
JUJ6 -; 1990
California ~
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CA:RMM:armemo1/hpadv
C1ty Council Meeting 7-24-90
20 S..- to ~r--CJ/
Santa Monica,
STAFF REPORT
TO:
Mayor and City Council
FROM:
City Attorney
SUBJECT:
Appeal of masssage parlor permit revocations,
wi Jo Park and Hui Suk Kim, Case No. 89-20
On October 6, 1989, the Chief of Police revoked the massage
technlcian permit of Hui Suk Kim and the massage operator permit
of wi Jo Park for numerous Municipal Code violations at the
Japanese Bath massage parlor.
The violations included Kim's
making intentional and repetitive contact with a customer's
gen1tals; the customer's and Kim's genitals and breasts being
exposed; and violation of various recordkeeping requirements.
Park and Kim each requested a hearing before a city Hearing
Examiner.
The hearing was conducted on March 14, 1990.
The
Hearing Examiner considered the following evidence: the
testimony of the appellants, the customer involved, and the
investigating officer: a tape recording made by the officer and
its transcription:
a copy of the customer sign-in log;
and
various documents relilted to another investigation by the same
officer.
Based on the above evidence, the Hearing Examiner upheld the
revocation of Kim's pennJ.t, and reduced Park's penalty to a
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twenty-day suspension.
The evidence presented to the Hearing
Examiner was sufficient to support his decision.
RECOMMENDATION
The appeals of Park and K1m should be denied.
PREPARD BY: Robert M. Myers, City Attorney
Adam Radinsky, Deputy city Attorney
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INDEX TO STAFF REPORT
1. Notice of Decision of Hearinq Examiner 4/30/90
2. Transcript of Administrative Hearing 3/14/90
3. Transcript of Recording 8/18/90
4. Customer Log
5. Documents re: Charges
6. Letter from Trad
7. Notice of Action 10/06/90
Request for Hearing 10/10/89
s. Notice of Hearing & Waiver 10/23/90
9. Notice of Hearing (Continuance) 12/05/90
10. Notice of Hearing (Continuance) 12/12/90
11. Waiver of Hearing (Decision Time) 04/12/90
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CITY 01-
701> -- tP /-:r--o/
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SANTA MONICA
CALIFOR~IA
OFFICE OF THE CIT) -\TTOR'EY
....1'l:Trf{'~ l>lkH T PI...L '~"~t t<
(~]3J H8 8336
NOTICE OF DECISION OF HEARING EXk~INER
'1'0: PHILLIP G. TRAD, Attorney for Appellants
ADAM RADINSKY. Attorney for Respondent
The accompanying decisIon of the hearing examIner has
been rendered 1n HE- 89-20 .
The decislon of the hearing examiner is final unless
a notice of appeal is flIed with the CIty Clerk within 10
days of the date of mai ling of this decision. Appeal forms
may be obta ined in the of f ice of the Cl ty Clerk, 1685 Main
Street, Santa Monica, California.
An appeal does not stay the decision of the hearing
examiner. The declsion of the hearing examiner is effectIve
Immediately.
Sincerely YOU~
'"' . (1 ~
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HEARING EXAMINER
DATE MAILED: April 30. 1990
CIn HALL. Ibl:S5 ..tAl' STREET. SA>\TA MO'\lCA. CALlFOR'IA Q0401.3~95
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CITY 0' SANTA MONICA
DECISION OF HEARING EXAMINER
1685 MAIN STREET, SANTA MONICA, CALIFORNIA 90401
(213) 458-8336
ResDondent.
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CASE NO. HE 89-20
IN THE APPEAL OF:
HUI SUR: KIM and
WI JO PARK,
Appellants,
APPEAL OF REVOCATION OF
MASSAGE TECHNICIAN PERMIT
AND REVOCATION OF MASSAGE
OWNER/OPERATOR PERMIT
VB.
CITY OF Sk~TA MONICA,
PROCEDURAL BACKGROUND
Appellant HUI SUK KIM holds a permit as a massage technician
in the City of Santa Mon~ca. Appellant WI JO PARK holds a permit
as a ~assage parlor owner/operator in the City of Santa Monica (For
purposes of this decision, these parties shall be referred to
individually as
ftKIM"
and
"PARK" ,
and collectively
as
"APPELLANTS"). KIM is employed as a massage technician at Japanese
Bath Massage, located at 2823 Pico Boulevard, Santa Monica, CA,
(hereafter ftthe premises") which business is owned and managed by
PARK. On October 6,1989, the Chief of POlice of the City of Santa
Monica issued a Notice of Action revoking KIM's permit pursuant to
Santa Monica Municipal Code Section 62014(d)
(all section
references are to the Santa Monica Municipal Code unless otherwise
indicated). The Notice of Action (Exhibit "B") set out allegations
that KIM had contravened the terms of her permit by, inter alia,
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exposing her breasts while working as a permit holder; making
intentional contact wlth the genitals of a customer while worklng
as a permit holder; being present In a room while working as a
pend t holder with a customer whose genl tals and buttocks were
uncovered; and failing to keep accurate customer records. On the
same date the Chief of Police issued a Notice of Action (Exhibit
"B") revoking PARK I S massage owner I operator permit pursuant to
Section 62014(f) as a result of the alleged violations of KIM's;
for failing to keep accurate customer records; and for failing to
have a manager on the premises at all times during which the
establishment 1S open.
Appellants filed timely notices of appeal, and after several
continuances, a hearing was held on APPELLANT's appeals before this
Hearing Examiner on March 14, 1990 in Santa Monica, CA. The
parties agreed both at the hearing on March 14, 1990, and
subsequent thereto on April 12, 1990, to waive the provisions of
Section 6126(b) and stipulated to allow the Hearing Examiner untll
and including April 30, 1990 to render a written decision.
ISSUES
The issues presented are:
1. Was the inspection conducted by the Pol ice which gave
rise t.o the revocation actions subject to knock-notice
requirements?
2. Did APPELLANTS violate the provisions of the Municipal
Code regulating their respective permits?
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3 . I f APPELLANTS
alleged, was the Chief
respective per~its?
indeed violated the Municipal Code as
of Police )ustifled in revo}nng the~r
SUMMARY OF THE EVIDENCE
All witnesses whose testimony is summarized herein testified
under oath. In addition, Ms. AHN, the sister of KIM, served as a
sworn interpreter for PARK, translating the proceedings from
English to Korean and PARK's testimony from Korean to English.
Officer Nick Ciccarelli (hereafter "the Officer") testified
that on August 18, 1989, as part of his duties as a Santa Monica
police vice Officer, he went to the premises with his partner
Officer Gautier to conduct a random police inspection of the
premises pursuant to the massage parlor ordinance during his 4 p.m.
to midnight sh~ft.
The Officer testified that no one was in the lobby area at
that time, and that he encountered no one in the premises prior to
his entry into massage room A.
The officer further testified that when he opened the door to
room A he saw a customer (whose identity was later established to
be SCOTT BEZONSKY) on his back on a massage table; that the
customer was naked; that KIM had her mouth on the customer's penis;
that KIM's breasts were exposed at the time; and that he announced
"POlice" at the time he first opened the door, and KIM stopped her
activity with the customer and tried to close the door on him, but
that he forced it open.
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The Officer further test1f1ed that after he ga1ned entry to
the room and identified hlmself, the customer dressed hlmself; that
KIM, who had become emot1onal, went out of the room with hlS
partner; that the Officer accompanied the customer to h1s car so he
could obtain his i.d.; that during the course of this activity the
customer in answer to his questioning described the detalls of
KIM's activity which was allegedly violative of the Municipal Code;
and that to bolster the Officer's credibility at any later
proceedings concerning KIM, he secretly taped hlS conversation w1th
the customer on a cassette recorder. The Officer further
identified a copy of the customer log (required to be maintained
under the Municipal Code), Respondent's Exhibit "2", removed from
the premises, testifying that there were inaccuracies in the date
of birth column; that some names on the log were unintelligible or
incomplete; and that in talking with the persons on the premises
there was no manager licensed by the pOlice on the premises at the
time, although a Ms. Hwang was acting as a manager at the time.
On cross-examination, the Officer testified there was no
particular reason for conducting the inspection of the premises on
the night in question; that he did not identify himself before
opening and entering the unlocked door to Room Ai that KIM was 6 to
7 feet from the doorway when he opened it; that her breasts were
exposed when he first opened the door, but when he pushed the door
open atter encountering resistance from KIM, her breasts were
covered; that KIM was hysterical after he entered the room and
identified himself; that the customer dressed himself in both the
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Officer's and KIM's presence; that wlth the aid of an lnterpreter
he gave KIM her Miranda rlghts and dld not dlSCUSS what he had
w~tnessed w~th her; that although he adVlsed the customer he mlght
have been a party to a violation of law, he neither gave the
customer a Mlranda warnlng nor a warning that he was taping their
conversation, and that he was told by persons at the premises that
the manager had gone home ill that evening and that a temporary
manager was on the premises instead.
The Hearing Examiner was presented at the hearing with a
micro-cassette recordlnq of the Officer's conversation with the
customer, as well as a 13 page transcript of the recording.
APPELLANTS, through their counsel at the hearing, stipulated for
purposes of this hearing only to the identity of the cassette and
to issues relating to the custody and control of the tape from the
time it was made and further stipulated that the transcript was an
accurate reflection of what was contained on the tape. The tape
was reviewed by the Hearing Examiner during a recess at the
hearing, and compared wlth the transcript for accuracy. The
transcript was admitted into evidence without objection by
APPELLANTS as Respondent's Exhibit 1.
Pertinent portions of the transcript are summarized as
follows: the customer was identified as SCOTT BEZONSKY; while on
his stomaCh, the massage technician (KIM) took the thing (towel?)
off and beqan to massaqe him "in [his] butt"; that she later "took
the towel off and started to massage his butt"; that she then told
him to turn over; that he turned over with his penis showing; that
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wlthout his promptlng the techn1cian began licking h1m everywhere;
that she did not take h1S penls ln her mouth but l1cked his Itballs"
and part of his penis; that the technician gave h1m Ita hand job
more or less" ... "massag1ng [his] genitals"; that although he did
not ask her to stop, neither did he ask her to begin in the first
place; and that although he had come to the premises once before
and had received a massage from the same technician on that
occasion, there was no previous sexual activity, and that he had
come for a massage on the occasion of August 18, 1989 to get loose
for some tennis he was to play the following day.
After the Officer's testimony and the submission of the tape
transcript, Respondent rested.
SCOTT BEZONSKY (hereafter "the CustomerU) first testified for
the APPELLANTS that he went to the premises on August 18, 1989 and
obtained a massage for which he paid $40.00; that he had obtained
a massage at the premises once before; that he signed his name in
the log (Respondent's Exhibit 1), which signature he recognized,
although he did not enter his address or birth date, nor was he
aware he was supposed to; that he identified KIM as the masseuse
who gave him a massage both on the night in question and
previously; that he and KIM did not speak to each other except to
say 'hili that he had a towel covering him and KIM was proceeding
to give him a regular massage, rubbing his back and shoulders,
which lasted 10 to 15 minutes; and that he specifically denied that
KIM orally copulated him, or partially orally copulated him or
touched his genitals.
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The Customer further test~fied that during the massage two
guys barged in without warnlng, knocklng or identifying themselves;
that he was on his stomach at the t1me, KIM was dressed and when
the two men entered she was scared to death and on the floor having
fallen down, cringing and shaking; that her breasts were not
exposed at the time; and that he was then questioned by the
Officer.
The customer testified with respect to his conversation with
Officer ciccarelli on the night in question that he was asked
twist~ng questions that did not make sense; that he was asked the
same twisting questions 20 to 30 times; that he was not advised his
conversation was being taped; that he only stated what was said on
the tape to get the Officer off his back; that the Officer was
applying pressure to him, was hostile and was assuming things which
were not true; that the Off icer got worse and worse and was
applying enormous pressure to him; that although he was told he
could leave, the Officer continued to ask him the same questions
over and over again; that he said what he said on the tape because
he couldn't take it anymore; and that he had gone to the premises
for a massage because he was going to play tennis on the following
day, and that he suftered from scoliosis.
Ort cross-examination, the Customer reiterated his denials
elicited on direct examination concerninq the alleqed illicit
conduct of KIM'; that the transcript of the tape was basically
correct; that he was just told to siqn his name when he first
entered the premises; that the pressure which was applied to him
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consisted of the Officers talking fast and saYlng the same th1ngs
over and over while they were real close to hlm; that no physlcal
force, or threat of force was applied by the Officers; that he sald
what was recorded on the tape because he had to do anything to get
the Officers to stop; and that he was never told by the Officers
that he could leave.
Chong suk So next testified for the APPELLANTS, the thrust of
her testimony being that Officer Ciccarelli had brought
administrative charges against her massage technician's permit in
February of 1989 based on accusations similar to those now pending
against KIM; that documentary evidence (her calendar for the date
in question: APPELLANTS' Exhibit tfA-1n) supported her contention
that she was not working as a masseuse on the date Off icer
ciccarelli had accused her of wrong doing; and that the
administrative action against her permit brought by Officer
Ciccarelli was subsequently rescinded by the City.
PARK next testified that she was the owner of the premises and
was so on August 18, 1989; that it is her only business; that she
worked on the date in question, but went home sick around 8: 00
p.m.; that her regular manager was off that day; that she had been
very ill with heart problems for the previous three years; that she
first learned about the incident in question the following day form
the police; that she does not permit any sex at the premises and if
one of her employees was doing anything wrong she would fire them
right away; that KIM phoned her and told her she had done nothing
wrong; that after she went home ill on the evening in question, she
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was off for three days, during which time her regular manager came
back to work; that the bus~ness at the premises was her ent~re
means of support; and that her business has not previously been
charged with any violations of law. On cross-examination PARK
admitted KIM was her employee and that there was no manager on the
premises on the night in question after she left.
KIM next testified that she was employed at the premises on
the night in question; that she remembered the customer and had
seen him once previous to the night in question; that when she came
into the massage room that night the customer was on his stomach
covered with a towel; that she was about 5 to 10 minutes into a
thirty minute massage before being interrupted; KIM specifically
denied each of the allegations of wrongdoing against her perm~t;
that the Officer kicked the door open during the massage and,
thinking a robbery was occurring, she pushed the door shut; that
after two or three attempts the Officer was able to open the door;
that there was no knock or announcement from the Officer prior to
his entry into the room; that after the Officers were in the room
she showed them her identification badge; that she talked with the
Officers once 30 to 40 minutes later; and that she was unaware of
where the Officers had gone in the previous 30 to 40 minutes.
EVIDENCE CONSIDERED
The Hearin9 Examiner has carefully considered all the
testimony, the arguments made, and the documents admitted into
evidence.
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EVALUATION OF THE ~VIDENGE
In evaluating the ev~dence of record, the preponderance of the
evidence establ~shes that the Pollce did not knock on the door nor
announce their purpose prior to entering the room ~n which KIM was
conducting her massage on the Customer. As such, the Hear ing
Examiner has determined that no knock or announcement occurred.
This determination, however, is not dispos~tive. APPELLANTS
contend that failure to meet Penal Code knock-notice requirements
renders the evidence thereby obtained inadmissible, and the
administrative action thereby fails. The City, however, contends
that due to the pervasive regulatory scheme governing the massage
business in Santa Monica and the evils sought to be prevented by
the regulation, to require knock-notice during massage parlor
inspections could lead to the frustration of the purpose of the
inspection program.
Kim v. Dolch, 173 Cal.App.3d 736, 219 Cal.Rptr. 248 (1985),
holds that warrantless searches of massage parlors are valid. The
Kim ease did not decide the applicability of knock and notice
durinq the course of a warrantless search.
The same considerations, however, which influenced the Kim
court to uphold the warrantless search provision of the massage
parlOr ordinance before it would seem to apply with equal force to
abrogate any knock-notice requirement.
In Santa Monica, the massage parlor business is extensively
requlated, covering some eight pages in the Municipal Code. The
front door and the doors of the cubicles in which massages are
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performed must rema.ln unlocked durlng all hours of operat.lon
(Section 62004 (a) J. and the licensed establishment is open to
inspection by the pollce during normal business hours [Sect.lon
62004(d)).
As Kim pO.lnts out, one of the evils sought to be prevented in
the regulatlon of the massage parlor business .lS the evil of
prostitution. Kim v. Dolch, 173 Cal.App.3d at 744. This concern
manifests itself in numerous provisions of the Santa Monica
ordinance [See. e.g., Section 62004(b) (prohibiting exposure by a
technician of his/her genitals, buttocks, breasts, and prohibiting
intentional contact with a customers anus or genitals; Section
6201Q(1) (to same effect); section 62010(0) read in conjunction
with 62010 (n) (technician cannot be present in room with person
unless specified anatomical areas, i.e., genital area and buttocks
and female breasts are fully covered)]. These prohibited
activities would normally be detected only during unannounced,
warrantless searches. To impose a knock-notice requirement on
Police during an otherwise reasonable, warrantless search of
massage cubicles would likely result in the discontinuance of any
illicit activity (such as, e.g., massaging the genitals of a
customer), and unduly frustrate the City's legitimate interest of
eliminating prostitution from massage parlor establishments. As
such, in the context of the instant case, no knock-notice was
required. See Kim v. Dolch, 173 Cal.App.3d at 745-6.
Havinq disposed of the first issue, the question next to be
answered is: did either or both of the APPELLANTS violate any
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provisions of the Municipal Code?
Firstly, wlth respect to KIM, the key portions of the
testlmony of Off~cer C~ccarelll and KIM are contradictory. Each of
these w~tnesses, however, cannot said to be dlsinterested. The
focus then shifts to SCOTT BEZONSKY, the customer, who testif~ed at
the hearing that KIM did nothing other than massage hlS back and
shoulders, and who recanted his previous statement given to the
Officer and taped recorded shortly after the incident in question.
BEZONSKY claims he was "pressured" into making the statement by the
respective, twisting questions of the Officers, who stood close to
him during the questioning.
A review of the tape by the Hearing Examiner does not support
such an assertion. It should be noted that Officer Ciccarelll's
questioning of BEZONSKY on the tape is rather matter of fact and
casual, and al though BEZONSKY might have displayed some
nervousness, he did not sound like anyone pressured into
responding. In fact his responses on the tape appear to be candid,
forthright and voluntary. The tape accomplishes what the Officer
testified it was employed for: to support his credibility, and to
memorialize the eye witness account of sOmeone who at a later date
might change his story. Furthermore, since BEZONSKY t S testimony at
the hearing was at least on one occasion self-contr~1ictory (e.g.,
his testimony relating to whether or not he had been told by the
Officers that he could leave) the Hearing Examiner is entitled to
and has discounted BEZONSKY's testimony at the hearing concerning
his previous statement recorded by the Officers.
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It should also be pointed out that in addition to BEZONSKY's
corroboration of the Officer's account, KIM1s demeanor and V01ce
inflection was markedly dlfferent at the hearing when she
specifically denied the Officer's allegat1ons. As such, the
Hearing Examiner finds her testimony on the specific issues
relating to the individual charges against her was not cred1ble.
Thus, based upon Officer ciccarelli's testimony and the tape
and transcript of SCOTT BEZONSKY, the Hearing Examiner has
concluded that on the evening of August 18, 1989, KIM "exposed her
breast(s) ... [and made] intentional contact or occasional repetitive
contact with the genitals or anus of another person" in violation
of Section 62009(d) and Section 62010(1); and was present in room
while the genitals and buttocks of another person were exposed in
contravention of Section 62010(0).
These, of course, are serious violations of the MunJ.cipal
code, and are some of the evils sought to be prevented by the
regulation of the massage parlor business in the City of Santa
Monica. See Kim v. Dolch, supra. As such, the Hearing Examiner
has concluded that the revocation of KIM's permit by the Chief of
poliee is appropriate and should be sustained. In light of the
fOi"egoinq, and in light of the fact that no evidence was put
forward by the City with respect to the lesser charge concerning
KIM's record keeping, the charge against KIM pursuant to Section
62010(q) is dismissed.
with respect to PARK, there is no evidence to support the
charge that the premises were not open to police inspection during
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normal business hours on August 18, 1989, thus the charge brought
pursuant to section 62004(d) is dismissed.
The Hearing Examiner has concluded that KIM violated Sectlons
62009(e), 62010(1) and 62010(0). The City predicates its charge
that PARK violated section 62004(b) and Section 62004(e) (when read
in conjunction with section 62014 (d]) on the fact that PARK
permitted such violations to occur on the premises. The Hearlng
Examiner is loathe to read this as a strict liability provisi~n for
to do so would a1wavs penalize the most scrupulous operator for the
transgressions of the operatorfs employees. The Hearing Examiner
concludes that ttpermittedlf must be read more reasonably, and while
actual participation by an operator in illegal activity might not
be required for a violation to have occurred, in light of the facts
as disclosed by this record which establish that PARK has no prior
discipline record; that KIM had no prior discipline recordj that
PARK had no knowledge of KIM's activities on the night in question;
and that PARK stated she would fire right away any employee who did
anythinq wronq, that PARK did not permit the violations of law
attributed to KIM to occur at the premises. As such no violation
of 62004(b) or (e) is attributable to PARK as a result of KIM's
violation.
With respect to Section 62010(q), city's Exhibit 1 establishes
without question that PARK failed to keep records of the dates and
hours of each treatment; failed to keep verified records of the
name, address and birth date of each patron; and failed to keep
records of the technician administering the service and the service
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rendered. The city of course has a compelling interest for the
maintenance of accurate and complete records (i.e., preventing the
spread of communicable dlsease). This violat~on therefore cannot
be said to be only a mere technicality, but indeed is one of
substance.
On the other hand, while the evidence establishes a clear
violation of section 62011 on the even1ng in question when PARK
left the premises for a couple of hours prior to closing due to
illness, this violation was more one of form than substance in that
the uncontradicted testimony of PARK showed that her regular
manager was on the job for the other three days of her illness and
that as a result of an emergency situation, the premises were
without a registered manager for a total of a couple of hours.
When reviewing the evidence of record as a whole, it is clear
that a revocation of PARK's permit is not justified. However, in
light of the violation of Sections 62010(q) and 62011, it is the
decision of the Hearing Examiner that PARK's permit to operate
Japanese Bath Massage in the city of Santa Monica is suspended for
a period of twenty (20) business days commencing the date after
APPELLANT WI JO PARK's right to appeal this decision to the City
Council expires as set out in Santa Monica Municipal Code section
612 6G.
FINDINGS OF FACT
1. HUI SOX KIM is a massage technician holding a permit as
such in the City of Santa Monica.
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2. On August 18, 1989, HUI SUK KIM exposed her breasts to a
customer, SCOTT BEZONSKY; was present in a room where the penls and
buttocks of a customer, SCOTT BEZONSKY, were exposed; and made
intentional and respective contact with the genitals of a customer,
SCOTT BEZONSKY.
3. WI JO PARK is the owner/operator of Japanese Bath Massage
in the city of Santa Monica, and holds a permit as a Massage
owner/Operator in the city of Santa Monica.
4. On August 18, 1989, WI JO PARK failed to keep records of
the dates and hours of each massage treatment or service; failed to
keep verified records of the name, address and date of birth of
each of her patrons; and failed to keep records of the name of the
technician administering a massage service or treatment and the
description of the service or treatment rendered; and left the
business known as Japanese Bath Massage for a two hour period of
time without any official manager at that business.
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CONCLUSIONS qF LAW
1. Hal SUR KIM's actions as set out in the Findings of Fact
abOVe constitute violation of Santa Monica Municipal Code sections
62009(d), 62010(1) and 62010(0).
2. WI JO PARK's actions as set out in the Findings of Fact
above constitute violations of Santa Monica Municipal Code sections
62010(q) and 62011.
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DECISION
The decision of the Chief of Police revoking HUI SUK KIM's
massage technician permlt is affirmed. The decision of the Ch~ef
of Police revoking WI 30 PARK's massage owner/operator permit ~s
reversed, and instead such permit is suspended for a per~od of
twenty (20) business days commencing the date after APPEL~~T WI 30
PARK's r~ght to appeal this decision to the City Council expires as
set out in Santa Monica Municipal Code Section 6126G.
DATED: April 30, 1990
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MICHAEL E. WINE,
Hearlng Examiner
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AUG 7 1990
LAw OFFtCES
KATES SCHWARTZ & DAVIS
NORMAN SC....WAR"T"Z..
ROY A L<.ATES.
~oaERT J DAVI S
A DA-=i!-""E=i!~I-IP 'NCLI.;!::'''''::. p~C.c~5SIC.r.lt"L C~PCP"'TIONS
23S01 PAR" SORR,'t!ffO SUfiE..021Z ?,:::C j
CALABASAS CALI f'6'RNIA 913~2 --
TE:LEPHONE
"818' sa7-.3300
.~ PRO':E.SSIONAL cc~paJ::jAIIO'\l
FAX
181-3' 887-03'7
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August 6, 1990
City of Santa Monica
1685 Main Street
Santa Monica, CA. 90401
Attention: CITY CLERK
RE: APPEAL OF HUI SUK KIM AND WI JO PARK
Dear city Clerk:
Enclosed for filing please find Statement in Support of
Appeal as it relates to Ms. Hui Suk Kim and wi Jo Park.
Kindly forward same to the city council for their hearing of
August 7, 1990.
Very truly yours,
LAW OFFICES OF ROBERT J. DAVIS
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BY: Marion Felgenhauer
Secretary
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Enclosure
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AUf; 7 1990
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1 LAW OFFICES OF ROBERT J. DAVIS
23501 Park Sorrento #212
2 Calabasas, CA. 91302
(818) 887-5300
3 State Bar #43303
Attorney for Appellants
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CITY COUNCIL, CITY OF SANTA MONICA
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11 IN THE APPEAL OF:
12 HUI SUR KIM and WI JO PARK,
13 Appellants,
14 vs.
15 CITY OF SANTA MONICA,
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Respondent.
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} CASE NO.: HE 89-20
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) STATEMENT IN SUPPORT OF APPEAL
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Appellants HUI SUK KIM and WI JO PARK, hereby submit the
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following statement in support of their appeal before the City
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Council of the City of Santa Monica, presently set for hearing on
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August 7, 1990.
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STATEMENT OF PROCEDURE
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On October 6, 1989, a Notice of Action was sent to Appellant
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HUI SUR KIM revoking her massage technician permit and to Appellant
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WI JO PARK revoking her massage owner/operator permit at 2823 Pica
Boulevard, Santa Monica, California.
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Notices of Appeal were timely filed on behalf of each
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1 Appellant, the matters were consolidated for hearing and a hearing
2 was held on March 14, 1990 before Michael Wine, a Hearing Examiner
3 appointed and paid by Respondent.
4 After the hearing on March 14, 1990, the Hearing Examiner took
5 the matter under submission and on April 30, 1990, rendered his
6 decision finding that Appellant KIM violated Santa Monica Municipal
7 Code Sections 62009(d), 62010(1) and 62010(0) and revoking her
8 massage technician permit and that Appellant PARK violated Santa
9 Monica Municipal Code sections 62010(q) and 62011 and suspending
10 her business operations permit for 20 days.
11 Appeals of the Hearing Examiner's decisions were timely filed
12 and the matter is presently set for hearing upon the appeals on
13 August 7, 1990. Although the 20 day period of suspension has
14 already been served by Appellant PARK the underlying findings of
15 fact and conclusions of law establishing violations of Santa Monica
16 Municipal Code sections 62010(q) and 62011 are still at issue.
17 2.
18 STATEMENT OF FACTS - KIM
19 At the hearing, Santa Monica Police Officer Nick Cicciarelli
20 testified that on the evening of August 18, 1989, he went to the
21 subject business to make a random check of the premises. He opened
22 the inner door and walked through it into the business. He then
23 proceeded down the hallway to a closed door and opened the door
24 partway without announcing his presence. Officer cicciarelli, with
25 the door part way open, then noticed a customer, Scott Bezonsky
26 lying on his back, face up and Ms. Kim was 6 to 7 feet away,
27 bending over Mr. Bezonsky who had an erect penis. He then noticed
28 Ms. Kim had her mouth about the top portion of the penis with her
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1 breasts completely exposed. When he did then say police, Kim
2 stopped what she was doing and she attempted to push the door
3 closed, he pushed back in the opposite direction, he then pushed
4 harder, the door opened all the way and he noticed Kim's breasts
5 were covered. He then testified Ms. Kim became hysterical and went
6 into another room. He told the customer to dress, spoke with him at
7 length both inside and outside the premises, obtained his cassette
8 recorder from his vehicle, advised the customer he may have
9 violated the law and recorded a portion of his conversation with
10 the customer without the customer's knowledge, so as to give him
11 more credibility at a later date and not be accused of
12 misunderstanding or lying. The tape was then listened to by the
13 Hearing Examiner and eventually received into evidence. Officer
14 cicciarelli further testified that he was uncertain as to which, if
15 any, sections of the municipal code gave him authority to make this
16 inspection. He further testified he observed a towel in the room
17 and that although he discussed the circumstances relating to the
18 facts he testified to with Bezonsky he did not do same with Kim.
19 He did not arrest either of the two and there is no criminal
20 conviction as against either.
21 Scott Bezonsky testified that he went to the massage business
22 on August 18, 1989, paid for a massage, signed in his name, was
23 directed to a room and that while laying on his stomach, receiving
24 a massage from KIM, all of a sudden two guys barged in the room
25 without knocking or any warning. At that time he was covered by a
26 towel and getting a nice massage. He further testified that he at
27 no time solicited any sexual acts from KIM and KIM did not solicit
28 any sexual acts from or for him. At no time did KIM touch any part
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1 of his genitals or private area, that KIM did not orally copulate
2 him or partially orally copulate him and that at no time was KIM'S
3 breasts either accidentally or intentionally exposed to him. Mr.
4 Bezonsky further testified that immediately after the barging in,
5 KIM became quite shaken up and he was a little bit shaken up. He
6 then testified that after the men (police officers) came into the
7 room they began to question him over and over as to what had
8 happened. The officers kept giving him twisting questions and
9 questions that didn't make sense and assumed stuff that really
10 wasn't true. They then took him outside for his identification,
11 brought him back inside and started again asking the same questions
12 over and over and over, at least twenty to thirty times. During
13 the questioning, Mr. Bezonsky testified he was advised that the
14 actions he was being questioned about could be considered criminal
15 violations but was not advised of any taping of his conversation by
16 the officers.
17 Prior to the hearing, Mr. Bezonsky reviewed a transcript of a
18 taped statement he made to the officers and he acknowledged making
19 the statements. He further testified that the taped conversation
20 was at the end of his conversation with the officers, that the
21 previous conversation was hostile and that he made the statements
22 to get them (Officers) off his back because there was so much
23 pressure placed on him to say certain things they wanted to hear.
24 He then testified that the things he said on the tape were totally
25 out of proportion and that he just told them the things that they
26 wanted to hear so he could get out of there, that he couldn't take
27 it anymore and that the pressure was just enormous. He then
28 testified that the things he said on tape were all "bull" and that
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1 none of it ever happened.
2 3.
3 STATEMENT OF FACTS - PARk
4 Officer Cicciarelli testified that during the course of his
5 investigation that evening he looked at a binder notebook which
6 indicated names, addresses and birth dates of clients patronizing
7 the business as required by Santa Monica Municipal Code section
8 62010(q) and noted the date of August 18, 1989 placed in the birth
9 date column on two or three instances, that several of the names to
10 him were written unintelligibly and that some of the names were not
11 the full names. Furthermore, he ascertained that there was not a
12 licensed manager on the premises, that someone was acting as a
13 temporary manager and that he was advised that the owner PARK had
14 just left the premises because of illness.
15 4.
16 STATEMENT OF FACTS - DEFENSE WITNESSES
17 A. CHONG SUK SO. Ms. So testified that the police department sent
18 her a Notice of Action seeking to revoke her massage technician
19 permit for alleged wrongdoing, purportedly observed by Officer
20 Cicciarelli on september 17, 1988. She further testified that it
21 was established that she did not commit the purported violations,
22 was not even at the premises on September 17, 1988, that the action
23 of revocation was thereafter rescinded by the city and that her
24 massage technician permit is presently valid and in good standing.
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26 B. WI JO PARK. Ms. Park testified on her own behalf that she was
27 the owner of the business on August 18, 1989, that she worked there
28 from the morning to around 8:00, having left because of illness.
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1 She was not there when Officer Cicciarelli inspected and found out
2 about the inspection the next day when she spoke with Ms. Kim. She
3 further testified that the regular manager was off that day and
4 that she would have stayed there to closing but for becoming sick.
5 When she spoke with KIM, KIM advised her that she had done nothing
6 wrong. That the business is her sole means of support and she had
7 no prior violations at the business.
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9 C. HUI SUK KIM. Ms. Kim testified on her own behalf that on
10 August 18, 1989 she was massaging the back of a customer, Scott
11 Bezonsky, who was covered with a towel when after 10 minutes some
12 men kicked the door to the massage room open. She then pushed back
13 on the door thinking that a robbery was in progress, became scared,
14 sat down, went to the employee room and waited 30 or 40 minutes
15 until the officers came into the room to talk with her. The
16 officers did not ask her any questions nor did they inquire as to
17 whether she participated in any sexual activity. Ms. Kim further
18 testified that she never had any kind of sexual activity with Mr.
19 Bezonsky, that she never put her mouth on his penis, that she never
20 touched his penis with her hand, that she never exposed her breasts
21 to the customer and that she was not naked or had her breasts
22 exposed when the door was opened. She additionally testified that
23 she never had any other violations or problems working as a massage
24 technician in Santa Monica, that she did not ask the customer for
25 additional money and all she was doing was giving the customer a 30
26 minute massage.
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5.
THE DECISION OF THE HEARING EXAMINER
SHOULD BE SET ASIDE
THE HEARING EXAMINER UTILIZED THE WRONG STANDARD OF PROOF.
The hearing examiner utilized the preponderance of the
evidence test to determine the issues at the hearing (Hearing
Examiner's Report, page 10). The correct and appropriate test and
the one that should have been utilized was the test of clear and
convincing proof to a reasonable certainty.
Disciplinary proceedings to revoke or suspend a license
require a higher standard of proof than a preponderance of the
evidence. Ettinqer v. Board of Medical Quality Assurance, 135 CA3d
853, 185 CR 601. As a result the appropriate standard has been
determined to be "clear and convincing proof to a reasonable
certainty."
Interestingly, when several of these matters proceeded to
hearing before a hearing examiner in 1982, the Hearing Examiner did
utilize the correct standard requiring convincing proof to a
reasonable certainty. In the Hatter of Hirian Lucia Otero, HE-020,
amongst others.
AN IMPERMISSIBLE CONFLICT EXISTED AND NOW EXISTS.
This matter commenced with an investigation by the Santa
Monica Police Department. Thereafter, a Notice of Action revoking
each of the permits was sent by the Santa Monica Police Department.
After a timely request for hearing was filed, the matter was set
for hearing by the city Attorney's Office of the city of Santa
Monica before a Hearing Examiner appointed by the city of Santa
Moncia and paid by the City of Santa Monica. It is believed that
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1 the appointment was at least in part arranged by the Office of the
2 city Attorney for the City of Santa Monica. The City Attorney's
3 Office represented the City and Police Department at the hearing
4 urging revocation and further represents and advises the city
5 Council with regards to the appeal before it. A possible conflict?
6 It appears so. See Tumey v. Ohio, 273 US 510, 47 S.ct. 437,
7 Transworld Airlines v. CAB, 254 F2d 90, Amos Treat and Company v.
8 SEC, 306 F 260.
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10 C. THE FINDINGS OF THE HEARING EXAMINER ARE NOT SUPPORTED BY THE
11 EVIDENCE - KIM
12 Officer cicciarelli testified that violations occurred and HUI
13 SUK KIM and SCOTT BEZONSKY testified that they did not. The
14 officer testified he opened the door, immediately observed Ms. Kim
15 topless that there was pushing on the door by both himself and Ms.
16 Kim and when the door was pushed all the way open, she was no
17 longer topless. There was no testimony that at any time from the
18 commencement of the purported observation to the full opening of
19 the door, that the door was closed or that he observed KIM pulling
20 up her dress and covering her breasts. If the events occurred as
21 Officer Cicciarel1i testified, how did the dress get pulled up? It
22 is far more reasonable to believe that she, as she testified, was
23 not topless and if the officer erred in this respect his testimony
24 must be viewed with great concern as to his other observations. If
25 Officer Cicciarelli could be so wrong with regards to the
26 involvement of Ms. So, he could equally be in error in this matter.
27 The hearing examiner did properly conclude that neither
28 Officer Cicciarelli and Hui suk Kim could be said to be
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disinterested. After that, he shifted the focus to Scott Bezonsky,
the customer. It should be pointed out that Mr. Bezonsky was
disinterested. He was not arrested, he was not subject to
disciplinary action and obviously was not a member of the Santa
Monica Police Department. The only apparent motivation for him to
be even at the hearing was to set the record straight and explain
that what was on the tape was not accurate or correct, the acts of
a concerned citizen attempting to ensure that justice would be
done. The hearing examiner listened to the tape and concluded that
although Mr. Bezonsky might have expressed some nervousness, it did
not sound like anyone pressured into responding. It should be
noted that the tape conversation only occurred after repeated
questioning beforehand and the asking of twisting questions for
30 - 40 minutes. It is submitted that practically everyone after
repeated questioning, hostile questioning and intense pressure
would say things others would like to hear, especially a police
officer. The hearing examiner found Mr. Bezonsky's testimony to be
self-contradictory on one occasion, whether or not he had been told
by the officers he could leave, and concluded that therefore he
could discount his testimony at the hearing concerning his previous
statement recorded by the officer.
In looking at the transcript of the hearing the customer's
testimony was not self-contradictory at least to the extent that
could allow the hearing examiner to discount his other
testimony.
The testimony concerning Mr. Bozansky's leaving consisted of
the following:
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Transcript, page 35, lines 10 - 20:
"Trad: After you made the final statements to the
the officer who was questioning you, did the officer
then tell you that you were permitted to leave?
Bazalsky: (sic) Actually, no. I just left myself.
He didn't tell me I could leave. Actually, he told
me ....well, maybe a couple of times he did say I
can leave, but then he went on and on and....he
wouldn't let me leave,you know? He kept asking me
the same questions over and over, until I actually
said 'em, because he had his tape, which I didn't
know, but you know, he pressured me, he actually
pressured me. I had to say these things because I
couldn't take it anymore."
Transcript page 47, line 24 - page 48 line 22;
Radinsky: Okay, I just have a couple more questions
for you, sir. You testified that one of the officers
told you you could leave on a couple of different
occasion, but that they continued to ask you
questions. Is that right?
Bazalsky: That's not true. They never told me I
could leave.
Radinsky: They never told you you could leave.
Bazalsky: They never told me I could leave.
Radinsky: Okay
Bazalsky: I even thought I was going to be brought
down to the station, because they started to write
these things....I didn't know, I....they never said I
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1 could leave. We left to get my license. We had come
2 back. I wanted to get out of there, but I couldn't
3 get out of there until I said what he wanted to hear
4 just to get out of there. I mean....
5 Radinsky: So, why didn't you leave when you first
6 wanted to leave?
7 Bazalsky: Because they were police and they were
8 asking me questions and I thought to leave, they would
9 .....l couldntt do it. I wasn1t going to do it in front
10 of police....you know, right in the middle of what they
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12 Radinsky: Okay, and when you finally did leave, was
13 there any formal conversation like nyou are free to go
14 now." or something like that, or did you just take off.
15 Bazalsky: Yeah. I think they said that I am free to go
16 now. Yeah, I think they had said I can go now after
17 awhile....that was a long while. I would say it must be
18 an hour after, after they had barged in, an hour.1I
19 The testimony was not self-contradictory at least to the
20 extent the hearing examiner concluded. The customer testified that
21 even if he was told he could leave, he felt he cold not leave and
22 only after the taping was concluded was he told he could leave in a
23 manner and fashion that he felt he could in reality leave.
24 Interestingly, Officer Cicciarelli testified to the importance
25 of having his micro-cassette tape recorder with him on the
26 investigation. Yet when he first entered the location he left it
27 in the car. He was asked as to why and his response was less than
28 adequate: Transcript page 61 line 14 - page 62 line 7:
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"Trad: Why, then, didn't you take your tape recorder with
you when you first entered the premises to conduct your
investigation?
cicciarelli: Because it's been experienced that the
manager on the premises will be the first to greet you, and
there usually is some...what we interpret as a warning
device...either the manager speaks in Korean or gives some
sort of signal to anybody in the back rooms that by the time
we reach the back room, when we open it up, they are in the
act of giving strictly a massage.
Trad: You carry a police badge with you, don't you,
when you enter these places?
Cicciarelli: Yes
Trad: Unless you're actually, you know, going in to do
official undercover work? Isn't that correct?
Cicciarelli: Yes
Trad: Okay. Do you also carry a service revolver when you
go into these places?
Cicciarelli: Yes
Trad: So you basically carry the accoutrements of being a
police officer when you enter these places, regardless of
whether or not there is a manager at the front door. Isn't
that correct?
Cicciarelli: Yes".
It would seem that if there was a warning signal, he would
that on tape and his response is quite frankly not believable.
The hearing examiner found a violation of Santa Monica
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1 Municipal Code section 62011. The testimony in support thereof
2 constituted Officer Cicciarelli testifying that the person acting
3 as a manager that evening, after the owner went home sick, was not
4 licensed to be a manager by the Police Department. He was then
5 specifically asked as to whether the Police Department had a
6 licensing requirement for massage parlor managers and replied
7 affirmatively.
8 Neither section 62011 nor any other section requires a license
9 for a manager. In fact, that issue had been discussed with the
10 city Attorney's Office which concluded there was no such
11 requirement. As to the sign in sheet, the information was in fact
12 part lacking, but without prior notice or warning and/or a
13 continuous pattern of same should not be deemed actionable at least
14 to the extent it was. The transcript indicates many other
15 instances wherein the findings are not supported by the evidence.
16 E. The unannounced entry into the room violated the right to
17 privacy of Ms. Kim and Mr. Bozansky and all observations should be
18 suppressed. The case relied on to support the actions of the
19 officers, Kim v. DOlch, related to a warrantless inspection. It
20 did not decide whether the knock-notice requirements were necessary
21 to be complied with. It is urged that they do and apply to
22 interior doors within the premises.
23 F. THE HEARING EXAMINERIS DECISION IS NOT SUPPORTED BY THE
24 FINDINGS - THE PENALTY IMPOSED WAS EXCESSIVE
25 (1) KIM - Assuming, arguendo, that the Council feels some or all
26 of the charges as against KIM were sufficiently proven, Ms. Kim's
27 permit should not be revoked. Ms. Kim has had a permit to work in
28 Santa Monica for some time. She has had no prior disciplinary
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1 problems, nor anything subsequent. Working as a massage technician
2 is her sole means of support. To impose the ultimate sanction, to
3 wit, revocation, with the doubt that exists herein, is just not
4 appropriate. Perhaps a reasonable period of suspension, but not
5 revocation.
6 (2) PARK - The violations concerning PARK in reality relate solely
7 to the sign up sheet. Although the period of suspension, 20 days,
8 has been served, her record should not reflect the imposition of
9 such a severe penalty. Without a pattern of similar wrongdoing,
10 without a showing of ignoring prior warnings, a 20 day suspension
11 is clearly excessive for what amounts to an administrative,
12 technical violation. I seriously doubt that any other business,
13 whether massage or otherwise, which has a similar requirement has
14 ever been assessed such a heavy penalty as was done herein. A
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reprimand might have been appropriate, possibly even a small fine,
maybe even a one day suspension, but clearly not a 20 day
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suspension.
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CONCLUSION
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For each of the reasons as set forth herein and in the record,
it is respectfully requested that the decision of the hearing
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examiner be vacated both as to HUI SUK KIM and WI JO PARK.
R~s~tfully submitted:
LAW OFn~~ \__OF iOBERT--~VIS
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BY :,,.--- {/ _ -. 1....._______
ROBER'T dJ~ DAVIS ------ - -
Attorney f6r Appellants
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