Loading...
HomeMy WebLinkAboutItem 2 - 12-02-2020 Appeal of Admin Cite 23027RECEIVED a IT- ff10z0 t I Administrative Citation Appeal For LO CITY CL.ERX 4 This request to appeal must he received by the City Clerk within 10 days of date of the citation to be considered timely filed. Please submit any supporting documents or photos with this form- 1. Appellant. Mr./Mrs./Ms. Name u 9,1,iess Phone / Email C 461h a & 14 1n/ SL D,. Co "ti 2 Mailing Address 5-3'1 CeLt+Whfl Ra City- —tate Zip CodeS_ 993U22 If Applicable) 1BusinessName +' CIO / iel Business License # Q 44 2. Interest in Citation. (Place X in front of selection) A. Charged personally B. Charged as the X—C. Acting as the legally authorized Agent owner of the property of the cited business or homeowner tf11 3 inr z3va7 Z r893. Administrative Citation. Date of Citation ZD itativn Number yo Address of property cited or location where eaan` indiv dual was cited: Citation Address City - -- .5a, zy)S Vb%S,Vo Municipal code section(s) violated; Code violation(s) being appealed: State C4 Zip Code 9 yqa/ ay. / 0o 0. ay-/00 4. Reason for appeal. Give a brief statement of why you are appealing and why the notice of violation/administrative citation should be revoked, modified or otherwise set aside. The AMOUNT of the fine cannot be reduced on appeal. Attach additional sheets as necessary. Any documents or photos you wish submit in support of your appeal should be included with this form. (number of sheets attached .) See 0106.d" - Questions about this form or the appeal process? Contact the City Attorney's Office at Room 10, City Hall (990 Palm Street) or (805)781-7140 Administrative Review Board Meeting of 1/7/2021 Item 2 - 12-02-2020 Appeal of Admin Cite 2327 Page 1 Administrative Citation ,Appeal Form r Questions about this form or the appeal process? Contact the City Attorney's Office at Room 10, City Hall (990 Palm Street) or (805)781-7140 5. Election of Appeal Process. Note: All Administrative Citations written for violation of Title 15 of the Municipal Code (building and related codes), even if other code violations are also cited, will be automatically heard by the Construction Board of Appeals. Election of Hearing Officer review is not valid and your check for $281 must accompany this appeal form. For Administrative Citations that do not charge a violation of Title 15, you must make a choice of an appeal process. (1) At no charge, you may choose an expedited, less formal appeal process of review by a Hearing Officer, whose final decision may be appealed directly to the superior court for de novo review pursuant to Government Code Section 53069.4. (2) However, if you wish to retain your right to challenge the Administrative Citation, or any final city action related to the citation, in court by any writ action, you must appeal to the Administrative Review Board for a more formal, comprehensive hearing to ensure preparation of an adequate administrative record, and pay an appeal fee of $281. Only one appeal process may be chosen, and once chosen, the election is final. Failure to make a selection will result in the appeal being assigned to a Hearing Officer for review and will constitute a failure to exhaust administrative remedies for purposes of any subsequently filed writ action. i have read the above and choose: (Place X in front of selection) A. My administrative citation includes a Title 15 violation requiring review by the Construction Board of Appea [s. My check for $281 is enclosed C_ B. More formal appeal to Administrative Review Board. My check for $281 is enclosed. C. Expedited appeal to Hearing 0fficer 6. Election to forego an in -person hearing. It is your right under San Luis Obispo Municipal Code Section 1.24, no matter which appeal process is chosen, to have an in -person hearing. If you choose, you may forego this right and have your appeal reviewed on the record, which will include all documents you submit and all those provided by the City. By checking this box I am indicating I do not want an in -person hearing II 7. Truth of Appeal. I declare under penalty of perjury that all of the facts stated in this appeal are true and that this appeal form was signed on: O at ea,{, Date City State If different from the address in Paragraph 1, the official mailing address to receive further notices from City relating to the appeal is: 3 0 S /* S . loaso i/' `t Yr16 Street Address City State Zip nature of Appe Print name of Appellant Mail or Deliver in person to: s Office, 990 Palm St., San Luis Obispo, CA 93401 Administrative Review Board Meeting of 1/7/2021 Item 2 - 12-02-2020 Appeal of Admin Cite 2327 Page 2 nni nghamSpring Street Paso Robles, CA 93446 805-369-2399 LAW GROUP Jordan 05-36 -2388FAX: 805- 369-2388 December 2, 2020 Administrative Review Board c/o: City of San Luis Obispo Community Development 919 Palm Street San Luis Obispo, CA 93401 Re: Appeal ofNotices of Violation Issued to Kennedy Club Fitness To Whom It May Concern: Our firm represents Kennedy Club Fitness ("KCF"). This letter is in response to the notices of violation issued by the City of San Luis Obispo ("City") on September 3, October 7, and November 23, 2020. It letter also serves as a notice of appeal of all three citations.I Attached to this letter as Exhibit A is an "Administrative Citations Appeal Form," which elects an in -person hearing before the Administrative Review Board, and a check for the appeal fee of $281. At the outset, KCF would like to state that it remains committed to the health and safety of its customers that choose to improve their physical and mental health in our facility. In asserting its rights and making the arguments below, KCF does not intend to imply that it does not take the COVID-19 pandemic seriously. Safety of our customers is top priority. To that end, KCF has implemented — and will continue to implement best health and safety practices — including, but not limited to, thorough sanitization of facilities, social distancing, and ensuring that all KCF employees wear face coverings while at work. KCF Did Not Violate Munici al Code Section 2.24.100 The legal basis for all three citations is an alleged violation of San Luis Obispo Municipal Code Section 2.24.100. Lacking evidence of any actual violation of a City ordinance, the City is attempting to shoehorn the alleged conduct of patrons into a violation of Section 2.24.100 by KCF. As explained below, the plain terms of Section 2,24.100 do not fit the circumstances here, and the City therefore lacks both a legal and factual basis for the citations issued to KCF. This Municipal Code section states, in pertinent part, as follows: If the City takes the position that the appeals to the Administrative Review Board of the September and October notices of violation are untimely, it should be noted that service was likely defective in both cases. The notices, citations, and supporting materials contained no proof of service. Upon information and belief, the notices were served without a name on an unknown employee at the front desk of the facility. That unidentified person was not the registered agent for service of process for KCF. Administrative Review Board Meeting of 1/7/2021 Item 2 - 12-02-2020 Appeal of Admin Cite 2327 Page 3 Emergency Services. Violation -Penalty. It shall be a misdemeanor, punishable by a fine not in excess offive hundred dollars or by imprisonment for a period not to exceed six months, or both, for any person, during an emergency, to: B. Do any act forbidden by any lawful rule or regulation issued pursuant to this chapter, if such act is of such a nature as to ... imperil the lives or property of inhabitants of this city, or to prevent, hinder or delay the defense or protection thereof. " Given that this is a punitive statute with criminal sanction, KCF hereby invokes all of its rights and privileges under the U.S. Constitution. KCF did not violate the plain terms of Section 2.24.100. A violation of Section 2.24.100 requires proof that the violator: (1) did an act forbidden by any lawful rule or regulation issued pursuant to "this chapter," i.e., Municipal Code Chapter 2.24; AND (2) the act was "of such a nature as to imperil the lives" of city inhabitants, or prevent, hinder, or delay the defense or protection thereof. Simply put, there is no evidence that KCF committed any act violating a lawful rule or regulation issued pursuant to Chapter 2.24. And there is no evidence that KCF committed any act that imperiled life or hindered anyone from protecting life. a. KCF did not commit any act forbidden by any lawful rule or regulation issued pursuant to Municipal Code Chapter 2.24. As to the first prong of this statute, for KCF to be in violation it must be proven that KCF did an act "forbidden by any lawful rule or regulation issued pursuant to [Municipal Code Chapter 2.24]." Tellingly, the City's notices of violation fail to identify the "lawful rule or regulation issued pursuant to [chapter 2.24]" that KCF allegedly violated. Chapter 2.24, "Emergency Services," generally defines: an emergency, the membership of a disaster council and its powers and duties, the officers and powers and duties, an emergency operations plan, and authorized expenditures in connection with emergency activities. Chapter 2.24 does not contain any rules or regulations regarding the use of face coverings within the City. In fact, we were unable to locate any City ordinance that mandates use of face coverings within the City. No City face covering ordinance means no violation of a City face covering ordinance. Quite evidently, you cannot violate an ordinance that does not exist. The material attached to the City's Notices of Violation refers to the California Department of Public Health guidance regarding face coverings, issued on June 18, 2020. But CDPH guidance relating to face coverings does not constitute a "lawful rule or regulation issued pursuant to this chapter," as contemplated in Section 2.24.100. State "guidance" is not part of the SLO City Municipal Code Chapter 2.24. Nor was the state guidance issued by anyone acting as a City emergency officer under Chapter 2.24. Administrative Review Board Meeting of 1/7/2021 Item 2 - 12-02-2020 Appeal of Admin Cite 2327 Page 4 Furthermore, CDPH "guidance" does not constitute a "lawful rule or regulation" within the meaning of Section 2.24.100. By its terms, the CDPH guidance document states that it is guidance "for the use of cloth face coverings by the e public when outside the home." It outlines "high -risk" situations in which "people in California" must wear face coverings... such as inside of any indoor public space. It then proceeds to enumerate many exemptions from wearing a face covering, which include (among other things) persons with a medical condition for whom wearing a face covering could obstruct breathing, and persons engaged in recreation when they are able to maintain a distance of at least six feet from others. Thus, it is clear from the CDPH guidance that it seeks to implore the people of California to wear face coverings in certain enumerated situations, but with exemptions for others. The guidance does not include any sanction for non-compliance, as one would expect to see if it were a "rule or regulation." Importantly, the CDPHguidance contains no mandate on business owners to ensure compliance, or police the use offace coverings amongst its customers. Nor does any section of the Municipal Code contain a mandate on business to enforce the wearing of face coverings. Indeed, to put this burden on businesses — whether they be fitness centers, restaurants, grocery stores, etc. — is both unfeasible and lacks legal basis. Nothing in the CDPH Guidance creates such a duty, and we are unaware of any City or County ordinance that creates such a duty. Moreover, even if the alleged violation could be predicated upon the conduct of KCF patrons — which is dubious — such conduct by patrons may fall under the exemption in the state guidance for exercise when maintaining six feet of distance from others. Accordingly, KCF did not do any act forbidden by a lawful rule or regulation, and therefore did not violate Section 2.24.100. b. KCF did not commit any act that imperiled life, or prevented, hindered or delayed the defense or protection of life. Nor can the City show that KCF has violated the second prong of Section 2.24.100. To show a violation, the City must prove that KCF's allegedly violative act was "of such a nature as to ... imperil the lives or property of inhabitants of this city, or to prevent, hinder or delay the defense or protection thereof." Allowing patrons to choose to exercise at the KCF facility hardly "imperils" life. To the contrary, it contributes positively to their physical and mental well-being. There is nothing in any of the City's notices of violation and attached materials that even approaches evidence that KCF committed any act that imperiled life, or prevented, hindered, or delayed the protection of life. Administrative Review Board Meeting of 1/7/2021 Item 2 - 12-02-2020 Appeal of Admin Cite 2327 Page 5 More to the point, as a factual matter there is absolutely no evidence that anyone contracted COVID-19 at the KCF facility. There are zero (0) documented COVID-19 cases arising from the KCF facility, much less an outbreak, and even much less a potentially fatal outbreak. Thus, the City is relying on mere speculation — not actual evidence — that persons at KCF are a danger to themselves or anyone else. Therefore, there is no evidence that KCF has committed any illegal act that imperiled life, and therefore KCF did not violate Section 2.24.100. Request for Evidence and Discovery Finally, pursuant to KCF's rights and privileges under the U.S. Constitution, Brady v. Maryland, and other applicable laws, please provide the following information: Any tangible evidence (e.g., photos, recordings, etc.) that the City has in its possession that the City believes constitutes evidence of the alleged violations. Given that KCF is private property, and enjoys Fourth Amendment protection against unreasonable searches and seizures, please provide copies of all warrants obtained by the City and/or its agents prior to entering the premises for investigation purposes. Copies of any verified complaints filed with the City pertaining to KCF. Any and all investigative reports produced by City staff and/or law enforcement agents in connection with the alleged violations. Conclusion For the foregoing reasons, and others to be presented at the formal hearing before the Administrative Review Board, KCF has not violated Municipal Code Section 2.24.100. All citations should be dismissed. Sincerely, CUJ I GHAM LAW G UP Administrative Review Board Meeting of 1/7/2021 Item 2 - 12-02-2020 Appeal of Admin Cite 2327 Page 6