HomeMy WebLinkAboutARB-04-21
RESOLUTION NO. ARB-04-21
A RESOLUTION OF THE ADMINISTRATIVE REVIEW BOARD OF THE
CITY OF SAN LUIS OBISPO, CALIFORNIA, DENYING THE APPEAL OF
SHAUNA CUNNINGHAM, ON BEHALF OF KENNEDY CLUB FITNESS
OF SLO, LLC, AND UPHOLDING ADMINISTRATIVE CITATION NO.
23027
WHEREAS, the Administrative Review Board of the City of San Luis Obispo conducted
a public hearing via teleconference at 1:00 p.m. on January 7, 2021, which was continued to
January 20, 2021 at 12:30 p.m., on the appeal of Shauna Cunningham of Administrative Citation
No. 23027 issued to Kennedy Club Fitness of SLO, LLC, (the “Appellant”), on November 23,
2020 for violation of Municipal Code Section 2.24.100 (Emergency Services) (“Administrative
Citation”); and
WHEREAS, notice of said public hearings were made at the time and in the manner
required by law; and
WHEREAS, Section 1.24.100 of the San Luis Obispo Municipal Code establishes a right
to appeal an administrative citation issued by the director; and
WHEREAS, the Administrative Review Board of the City of San Luis Obispo (the
“Board”) duly considered all evidence, including the Administrative Citation; the City’s staff
report and accompanying exhibits; the Appellant’s appeal and accompanying letter brief; oral
argument by both City staff and the Appellant’s representative; both parties’ supplemental briefing
as requested by the Board; all written or other evidence; and evaluation and recommendations by
staff presented at such hearings.
NOW, THEREFORE, BE IT RESOLVED by the Administrative Review Board of the
City of San Luis Obispo as follows:
SECTION 1. Findings. The Administrative Review Board finds:
1. The above statements are true.
2. The names of all people participating in the hearing and their capacity:
a. Appellant: Kennedy Club Fitness of SLO, LLC;
b. Representatives of the Appellant: Shauna Cunningham, attorney; Jordan
Cunningham, attorney (the “Designated Representative”);
c. City staff: Mark Amberg, Assistant City Attorney, legal advisor to City
Code Enforcement staff; Markie Jorgensen, Assistant City Attorney, legal
advisor to the Board; Kelly White, staff liaison to the Board; Teresa
Purrington, City Clerk; Megan Wilbanks, Deputy City Clerk; and John
Mezzapesa, Code Enforcement Officer;
d. Witnesses (either for or against appellant): None.
Resolution No. ARB-04-21 Page 2
3. The hearings were recorded by simultaneous audio and video recording, and such
recordings are in the custody of the City Clerk.
4. The Appellant or Designated Representative was present for the public hearings.
5. Pursuant to Municipal Code Section 1.24.110(E), the Board received the Administrative
Citation and supporting information (documents, exhibits, or materials prepared by city
staff) concerning the Appellant’s violation of Municipal Code Section 2.24.100(B) as
prima facie evidence of the Appellant’s code violation and of the facts stated in such
documents.
6. The following submissions were submitted to the record, including, but not limited to
photographs, drawings, and documents :
a. City staff report, dated December 23, 2020, and accompanying Attachments
1-36;
b. Appellant’s Administrative Citation Appeal, received December 2, 2020,
and accompanying letter, dated December 2, 2020;
c. Agenda correspondence by Assistant City Attorney, Markie Jorgensen,
dated December 29, 2020;
d. Agenda correspondence by Steve Carle, dated January 5, 2021;
e. Agenda correspondence by Kelly White, staff liaison to the Board, dated
January 5, 2021;
f. The City’s agenda correspondence, dated January 6, 2021, and
accompanying attachments A and B;
g. The City’s agenda correspondence, dated January 6, 2021, with
accompanying attachment of the State’s “Blueprint for a Safer Economy”;
h. The City’s additional briefing as requested by the Board, dated January 13,
2021, and accompanying Exhibit A;
i. Appellant’s additional briefing as requested by the Board, dated January 13,
2021, and accompanying Exhibits A-D;
j. The City’s response to the Board’s inquiry, dated January 14, 2021, and
attached copy of the Statewide Public Health Officer’s August 28, 2020
Order; and
k. The City’s agenda correspondence, dated January 20, 2021, with
accompanying attachment.
7. The Board has decided to uphold the Administrative Citation issued to Appellant for
violation of Municipal Code Section 2.24.100.
8. The Board applied the following legal framework to its decision, and made the following
associated legal findings, to uphold the Administrative Citation and deny the appeal:
a. The Administrative Citation was issued to Appellant for violation of
Municipal Code Section 2.24.100(B), which prohibits any act “forbidden
Resolution No. ARB-04-21 Page 3
by lawful rule or regulation issued pursuant to [Chapter 2.24 of the
Municipal Code], 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.”
b. On April 7, 2020, the City Council adopted Resolution No. 11106 (2020
Series), which declared, inter alia, the continued existence of a local
emergency due to COVID-19. Section 6 of Resolution No. 11106 provides
that “any violation of any public health order shall be subject to an
immediate fine not to exceed $1,000.”
c. On January 19, 2021, City Council adopted Ordinance No. 1692 (2021
Series), which amended Municipal Code Section 2.24.100 to clarify
Council’s definition of “lawful rule or regulation” as used in that chapter.
This amendment conclusively established that Resolution No. 11106 is a
“lawful rule or regulation” issued pursuant to Chapter 2.24.
d. Per Western Security Bank v. Superior Court (1997) 15 Cal.4th 232,
Ordinance No. 1692, specifically the addition of Section 2.24.100(D)’s
definition of “lawful rule or regulation,” applies retroactively to the
Administrative Citation as such addition is a declaration and clarification of
existing City law and the City Council expressed its intent for such
definition to apply retroactively.
e. The August 28, 2020 Statewide Public Health Officer Order implementing
the “Blueprint for a Safer Economy,” which establishes rules for individuals
and businesses with varying degrees of restrictions, is a valid public health
order.
f. Appellant violated the “Blueprint for a Safer Economy” Widespread Tier 1
restrictions on November 18, 2020 by allowing indoor gym and fitness
facility operations.
g. Therefore, Appellant’s violation of the “Blueprint for a Safer Economy”
public health order on November 18, 2020 was a violation of a “lawful rule
or regulation” issued pursuant to Chapter 2.24 (i.e., Resolution No. 11106)
under Municipal Code Section 2.24.100(B).
h. Appellant’s conduct on November 18, 2020 imperiled the lives of the
inhabitants of the City in violation of Municipal Code Section 2.24.100(B).
9. The Board found the following information credible in support of its decision to uphold
the Administrative Citation and deny the appeal:
a. Between June 24, 2020 and November 18, 2020, City Code Enforcement
staff provided educational outreach to Appellant on numerous occasions to
help bring Appellant into compliance with applicable public health orders.
b. On November 18, 2020, City Code Enforcement staff inspected Appellant’s
facility located at 188 Tank Farm Road, San Luis Obispo, California,
93401. Upon such inspection, Code Enforcement staff observed indoor
operations, specifically gym patrons working out inside Appellant’s facility.
Resolution No. ARB-04-21 Page 4
c. At the time of the inspection on November 18, 2020, San Luis Obispo
County was in the “Widespread Tier 1” (the most restrictive tier) of the
“Blueprint for a Safer Economy,” which prohibits gyms and fitness centers
from having any indoor operations.
d. Attachment A to the City’s January 6, 2021 agenda correspondence shows
that as of January 6, 2021, nearly 12,000 individuals in the County of San
Luis Obispo had contracted COVID-19 and nearly 100 persons in the
County had died from COVID-19; Attachment B to the City’s January 6,
2021 agenda correspondence provides examples of gyms and fitness centers
as being the source of numerous COVID-19 outbreaks. These documents
evidence that the indoor operations at Kennedy Club Fitness on November
18, 2020 did, in fact, imperil the lives of the inhabitants of this City.
e. The Administrative Citation, together with the attachments contained in the
staff report, admitted as prima facie evidence under Paragraph 5 above,
demonstrate that the citing Code Enforcement Officer personally observed
Appellant’s violation.
f. Appellant does not dispute that it allowed indoor gym and fitness facility
operations on November 18, 2020 and further failed to submit any evidence
that the violation did not occur.
10. The due date for payment of the fine shall be thirty (30) days after the date the decision is
mailed.
SECTION 2. Action: Based on the above findings and evidence submitted in support
thereof, the Administrative Review Board does hereby deny the appeal of Kennedy Club Fitness
of SLO, LLC, and upholds the Administrative Citation.
Resolution No. ARB-04-21 Page 5
SECTION 3. Appeal or Review by Writ. This Resolution is the City of San Luis Obispo’s
final administrative decision, under Municipal Code Section 1.24.140(A), on the Administrative
Citation. A person contesting this decision may do so in either of two ways. First, pursuant to
California Government Code Section 53069.4(b)(1), within 20 days after the service of this
Resolution, a person contesting this decision may seek review by filing an appeal to be heard by
the Superior Court of the County of San Luis Obispo. Alternatively, a person contesting this
decision may file a petition for writ with the Superior Court of the County of San Luis Obispo.
The time within which the petition must be filed, and the applicable requirements are governed by
the California Code of Civil Procedure. Either the appeal or the petition for writ filed with the
court must contain proof of service showing a copy of the appeal or petition for writ was served
upon the city clerk. The petitioner must pay the superior court the appropriate court filing fee when
the appeal or petition is filed.
Upon motion of Vice Chair Karlin, seconded by Chair Conaway, and on the following roll
call vote:
AYES: Board Member Benson, Vice Chair Karlin, and Chair Conaway
NOES: None
ABSENT: None
The foregoing resolution was adopted this 4th day of February 2021.
____________________________________________________
Earl Conaway, Chairperson Date of Signature