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HomeMy WebLinkAbout02-09-2021 - ARB AgendaCity of San Luis Obispo, Agenda, Planning Commission Agenda ADMINISTRATIVE REVIEW BOARD Tuesday, February 9, 2021 Based on the threat of COVID-19 as reflected in the Proclamations of Emergency issued by both the Governor of the State of California, the San Luis Obispo County Emergency Services Director and the Investment Oversight Committee of the City of San Luis Obispo as well as the Governor’s Executive Order N-29-20 issued on March 17, 2020, relating to the convening of public meetings in response to the COVID-19 pandemic, the City of San Luis Obispo will be holding all public meetings via teleconference. There will be no physical location for the Public to view the meeting. Below are instructions on how to view the meeting remotely and how to leave public comment. Additionally, members of the Administrative Review Board are allowed to attend the meeting via teleconference and to participate in the meeting to the same extent as if they were present. Using the most rapid means of communication available at this time, members of the public are encouraged to participate in Board meetings in the following ways: 1. Remote Viewing - Members of the public who wish to watch the meeting can view:  Please click the link below to join the webinar: https://slocity-org.zoom.us/j/97875269895?pwd=WGZ0TzYzeUsvL3Bqb21jVXZ6cWFSQT09 Passcode: 760703  Or Telephone: Dial: +16699006833 Webinar ID: 978 7526 9895 Passcode: 760703 2. Public Comment - The Administrative Review Board will still be accepting public comment. Public comment can be submitted in the following ways: • Mail or Email Public Comment  Received by 10:00 AM on the day of meeting - Can be submitted via email to advisorybodies@slocity.org or U.S. Mail to City Clerk at: 990 Palm St. San Luis Obispo, CA 93401  Emails sent after 10:00 AM – Can be submitted via email to advisorybodies@slocity.org and will be archived/distributed to members of the Advisory Body the day after the meeting. Emails will not be read aloud during the meeting. • Verbal Public Comment  Received by 10:00 AM on the day of the meeting - Call (805) 781-7164; state and spell your name, the agenda item number you are calling about and leave your comment. The verbal comments must be limited to 3 minutes. All voicemails will be forwarded to the Board Members and saved as Agenda Correspondence.  During the meeting – Comments can be submitted up until the Public Comment period is opened for the item when joining via the webinar (instructions above). Once you have entered the webinar/meeting please raise your virtual hand when Public Comment is opened for the Item you would like to speak on. Your name will be called, and mic will be unmuted to allow you to speak. All comments submitted will be placed into the administrative record of the meeting. Administrative Review Board Agenda for February 9, 2021 Page 2 3:00 p.m. REGULAR MEETING TELECONFERENCE Broadcasted via Webinar CALL TO ORDER Chair Earl Conaway ROLL CALL: Board Member Joe Benson, Vice Chair Alex Karlin, and Chair Earl Conaway PUBLIC COMMENT: At this time, people may address the Board about items not on the agenda. Persons wishing to speak should raise their virtual hand and your name will be called, and mic will be unmuted to allow you to speak. Comments are limited to three minutes per person. Items raised at this time are generally referred to staff and, if action by the Board is necessary, may be scheduled for a future meeting. BUSINESS ITEMS 1. Administrative Citation Appeals: Review and decide on the appeals submitted by attorney Shauna Cunningham on behalf of Kennedy Club Fitness for Community Development Department issued Administrative Citations #23148 and #23208. APPEALS Any decision of the Administrative Review Board is final unless appealed to the Superior Court. Filing for de novo review within 20 days of the Board’s decision pursuant to California Government Code Section 53069.4. To challenge the decision by writ, please refer to California Code of Civil Procedure Section 1094.5 or consult an attorney. ADJOURNMENT The next Special Meeting of the Administrative Review Board is scheduled for Thursday, March 4, 2021, at 3:00 p.m., via teleconference. The next Regular Meeting of the Administrative Review Board is scheduled for Tuesday, March 9, 2021, at 3:00 p.m., via teleconference. Administrative Review Board Agenda for February 9, 2021 Page 3 The City of San Luis Obispo wishes to make all of its public meetings accessible to the public. Upon request, this agenda will be made available in appropriate alternative formats to persons with disabilities. Any person with a disability who requires a modification or accommodation in order to participate in a meeting should direct such request to the City Attorney’s Office at (805) 781-7140 at least 48 hours before the meeting, if possible. Telecommunications Device for the Deaf (805) 781-7107. Meeting audio recordings can be found at the following web address: http://opengov.slocity.org/WebLink/Browse.aspx?id=61073&dbid=0&repo=CityClerk Administrative Review Board February 9, 2021 Appeal of Administrative Citations #23148 & #23208 for Kennedy's Fitness Center -188 Tank Farm Enforcement Timeline for Kennedy Club Fitness 6/24/20 –First complaint received from SLO County alleging lack of face coverings. Business was contacted and advised of the mandate for the use of face coverings. 7/10/20 –Additional complaint received from SLO County alleging lack of face coverings. Per established city protocol complaint was forwarded to Police Department for follow up. Complaint was logged by PD. 7/31/20 –Additional complaints received from SLO County alleging lack of required distancing and face coverings. Business was contacted and advised of the current restrictions. 8/6/20 –Additional complaint received alleging indoor activities by patrons. Business was contacted and advised of the current restrictions. 8/14/20 –Additional complaints received from SLO County alleging lack of face coverings on outdoor equipment. Enforcement Timeline Cont. 8/26/20 –Additional complaint received from SLO County alleging indoor activities by patrons and lack of face coverings. Per established city protocol complaint was forwarded to Police Department. PD visited on 8/28/20 and verified alleged violations. Administrative Citation for observed violations was issued on 9/3/20. 8/31/20 –Additional complaint received from SLO County alleging indoor activities by patrons. Per established city protocol complaint was forwarded to Police Department. PD visited on 9/2/20 and verified alleged violations. Administrative Citation for observed violations was issued on 10/7/20. 9/9/20 –Additional complaint received from SLO County alleging indoor activities by patrons. Per established city protocol complaint was forwarded to Police Department. PD visited on 9/10/20 and verified alleged violations. 9/11/20 –Additional complaint received from SLO County alleging lack of face coverings. 9/15/20 –Additional complaint received alleging indoor activities by patrons. Per established city protocol complaint was forwarded to Police Department. PD visited on 9/16/20 and verified alleged violations. 9/16/20 -9/18/20 –Daily complaints alleging regarding indoor activities by patrons. 9/22/20 –SLO County moved into the less restrictive tier allowing limited indoor activities at gyms and fitness facilities. 9/24/20 -11/12/20 –17 additional complaints were logged regarding the facility operations including face covering, occupancy restrictions and social distancing. Complaints were followed up with numerous phone calls to management, and site visits performed by the police department. No violations were observed at the time of inspections. 11/16/20 -SLO County moved into the most restrictive tier (widespread or purple)prohibiting indoor activities at gyms and fitness facilities. Proactive call made to the Kennedy Club Fitness on 11/17/20 advising of new restrictions. Business manager stated they would not cease indoor activity. 11/18/20 -Inspection performed by city code enforcement staff in response to the statements from business manager. The business manager allowed an inspection on the interior of the facility and advised that indoor operations would continue despite state and local orders. The facility was open to the public and indoor operations were observed during inspection. Citation #23027 issued for violations observed on 11/18/20 Enforcement Timeline Cont. Public Statements 11/20/20 -Public statement on Kennedy Club Fitness website stating they consider their business to be essential and will remain open. Kennedy Club Fitness was found to be a member of a “Wellness Coalition” in which members considered their businesses to be essential and stated they would remain “open and available to their members”. Public Statements Proactive enforcement –In response to the continued willful defiance and public statements it was decided to go forward with intermittent proactive inspections. 11/30/20 –Code enforcement staff entered facility. Staff was advised by manager that no interior inspections would be allowed with first obtaining a warrant. While in the front lobby before being asked to leave the property, several customers were observed inside the facility utilizing indoor functions. 12/2/20 –Inspection performed from public right of way. Video evidence showing numerous individuals entering/exiting facility. Citation #23148 issued for violations observed on 11/30 and 12/2. 12/7/20 –12/11/20 –Daily inspections performed from public right of way. Video evidence showing numerous individuals entering/exiting facility. Citation #23208 issued for violations observed between 12/7 and 12/11. Enforcement Timeline Cont. LEGAL BASIS FOR CITATION In early March 2020, the State and County proclaimed public health emergencies due to the COVID-19 pandemic City not a public health authority but has authority under City Code to adopt rules and regulations as necessary to enforce public health orders and directives within City's jurisdiction On March 17, 2020, by Resolution 11099 (2020 series),City Council declared a local emergency within the City due to the COVID-19 pandemic Emergency was declared pursuant to Chapter 2.24 -Emergency Services –of City Code Resolution 11099 incorporates by reference the State and County declarations of public health emergencies LEGAL BASIS FOR CITATION Resolution 11099,Section 1,declares a local emergency within the City due to COVID-19 and provides that the City "has been and will be undertaking necessary measures . . . continuously until the cessation of this emergency, which are directly related to the prevention of the spread of COVID-19 virus and are taken in furtherance of [Federal, State and County) public health emergency declarations related to COVID-19] and related orders and directions." Provides broad authority for City to undertake measures to prevent spread of COVID-19 in furtherance of State (and Federal and County)public health orders and directions LEGAL BASIS FOR CITATION On April 7, 2020, City Council issued Resolution 11106 (2020 series), which is based on the COVID-19 local emergency declared by Council under Resolution 11099 pursuant to Municipal Code Chapter 2.24 Resolution 11106 did two basic things: it established a City-wide safety enhancement zone during the COVID-19 local emergency declared by Council under Resolution 11099 pursuant to Chapter 2.24 and it made clear that violation of any public health order, in addition to otherwise specified violations, shall be subject to enhanced penalties of up to $1000 per violation Section 3 of Resolution 11106 repeats the language of Section 1 of Resolution 11099 regarding the City undertaking necessary measures in furtherance of public health emergency orders and directives Section 6 of Resolution 11106 provides that, for the period of time the COVID-19 local emergency is in effect,"any violation of a public health order shall be subject to an immediate fine not to exceed one thousand dollars." LEGAL BASIS FOR CITATION Municipal Code Section 2.24.100B makes it a misdemeanor, for any person during and emergency to: "Do any act forbidden by lawful rule or regulation issued pursuant to this chapter if such act is of such a nature . . . to imperil the lives . . . of inhabitants of this city, or to prevent, hinder or delay the defense or protection thereof.“ (emphasis added) Pursuant to Municipal Code Chapter 1.24 and Government Code Section 53069.4, the City has elected to pursue the citation in this matter by administrative fine or penalty, not criminally. Government Code 53069.4 provides: "The legislative body of a local agency . . . may by ordinance make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty." Municipal Code Section 1.24.020 A .provides: "This chapter makes any violation of the provisions of [City Code] . . . subject to administrative fines." Section 1.24.020 C. further provides: "The use of the administrative enforcement remedies provided by this chapter is solely at the City's discretion." LEGAL BASIS FOR CITATION City Resolutions 11099 and 11106 constitute "lawful rules or regulations" issued pursuant to Chapter 2.24 "Lawful rules or regulations" is broad and doesn’t mean just a City ordinance Urgency ordinance (No. 1692 (2021 Series)) adopted by City Council on January 19, 2021 to clarify, among other things, that "rules and regulations" includes Council resolutions, and that this interpretation applies retroactively (Western Security Bank v. Superior Ct. (1997) 15 Cal.4th 232,242-244;McClung v. Employment Development Dept. (2004) 34 Cal.4th 467) LEGAL BASIS FOR CITATION Resolutions 11099 and 11106 incorporate by reference the public health orders issued by the State and County and provide that those public health orders can be enforced as violations of City code The basis for the citations challenged in this appeal was not changed by Urgency Ordinance 1692 LEGAL BASIS FOR CITATION Appellants actions in remaining open indoors, under the decisions made by the State Department of Public Health (CDPH),the public health authority, "imperil the lives" of City inhabitants and "prevent, hinder or delay the defense or protection thereof." "Imperil"means "endanger" (Merriam-Webster) or "put at risk of being harmed, injured or destroyed"(Oxford) "Hinder means "delay or impede" or "make slow or difficult the progress of" or "create difficulties for, resulting in delay or obstruction" Indisputable that the spread of COVID-19 endangers lives and that state and county public health officials have issued orders that have been and remain valid imposing limitations on certain businesses to mitigate against harm Again, City not a public health authority. The decision that gyms and fitness centers shall be closed to indoor operations at this time is a decision made by CDPH, the State public health authority. City is enforcing that public health direction through the City's code enforcement procedures LEGAL BASIS FOR CITATION Counties currently operating under State's Blueprint for a Safer Economy which constitutes a public health order State Public Health Order enacting the "Blueprint" (Called "California's Plan for Reducing COVID-19 and Adjusting Permitted Sector Activities to Keep Californians Healthy and Safe") issued August 28, 2020, under State Public Health Department (CDPH) authority (Health and Safety Code) to control threats of communicable diseases.Health and Safety Code Section 120140 authorizes the CDPH to “take measures as are necessary to ascertain the nature of the disease and prevent its spread.” LEGAL BASIS FOR CITATION Additionally, on May 4, 2020, the Governor issued Executive Order No. N-60-20 which includes the order that all residents are to obey State public health directives: "All residents are directed to continue to obey State public health directives, as made available at https://covid19.ca.gov/stay-home-except-for-essential- needs/and elsewhere as the State Public Health Officer may provide." LEGAL BASIS FOR CITATION The Blueprint for a Safer Economy is available on the CDPH website and, under the authority of the CDPH, assigns counties to “tiers” based on factors including the number of COVID-19 cases and positivity rates The tiers are designated as either widespread (purple) or tier 1, substantial (red) or tier 2, moderate (orange) or tier 3 and minimal (yellow) or tier 4). Businesses are required to adhere to the requirements and restrictions of the Blueprint, depending on the “level” to which the county they are in has been assigned by CDPH. LEGAL BASIS FOR CITATION Currently, and since November 16, 2020, when SLO County was moved back by the CDPH into the Widespread (Purple), or most restrictive tier under the Blueprint, gyms and fitness centers are not permitted to conduct indoor operations Appellant, as appellant concedes, has continued to operate indoors which is the basis for the City's citation The City has adopted rules and regulations to enable administrative enforcement of state and county public health and emergency orders City does not have authority to invalidate or reject the basis for duly enacted health or emergency orders and any such challenge must be directed to the state or county.