HomeMy WebLinkAboutARB-05-21RESOLUTION NO. ARB-05-21
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.
23148.
WHEREAS, the Administrative Review Board of the City of San Luis Obispo conducted
a public hearing via teleconference at 3:00 p.m. on February 9, 2021, on the appeal of Shauna
Cunningham of Administrative Citation No. 23148 issued to Kennedy Club Fitness of SLO, LLC,
(the “Appellant”) on December 8, 2020 for violation of Municipal Code Section 2.24.100
(Emergency Services) (the “Administrative Citation”); and
WHEREAS, notice of said public hearing was 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 documents and information, 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; all written or other
information; and evaluations 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:
Resolution No. ARB-05-21 Page 2
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; and John Mezzapesa, Code
Enforcement Officer.
d. Witnesses (either for or against appellant): None.
3. The hearing was 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 hearing.
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. Appellant’s Administrative Citation Appeal, received December 17, 2020, and
accompanying letter, dated December 17, 2020;
b. City staff report, posted to the City’s website on February 2, 2021, and
accompanying Attachments 1 – 42;
c. Agenda correspondence from Appellant’s Representative regarding Appellant’s
supplemental brief, dated February 5, 2021;
d. Agenda correspondence from Makenna Smith attaching cases cited in Appellant’s
supplemental brief, dated February 8, 2021;
e. Agenda correspondence from Assistant City Attorney, Mark Amberg, regarding
City’s supplemental brief, dated February 9, 2021.
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:
Resolution No. ARB-05-21 Page 3
a. The Administrative Citation was issued to Appellant for violation of Municipal
Code Section 2.24.100(B), which prohibits any act “forbidden 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 promptly 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 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 to existing violations of Section 2.24.100(B).
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 30 and December 2, 2020 by allowing indoor gym and
fitness facility operations.
g. Therefore, Appellant’s violations of the “Blueprint for a Safer Economy” public
health order on November 30 and December 2, 2020 were 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 30 and December 2, 2020 imperiled the lives
of the inhabitants of the City in violation of Municipal Code Section 2.24.100(B).
i. The Board found its decision, as stated in Resolution No. ARB-04-21, upholding
Administrative Citation No. 23027 issued to Appellant applicable and persuasive
to the facts and issues presented in Appellant’s instant appeal.
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.
Resolution No. ARB-05-21 Page 4
b. On November 30, 2020, City Code Enforcement staff entered Appellant’s facility
located at 188 Tank Farm Road, San Luis Obispo, California, 93401 (the
“Facility”) and observed individuals in the Facility traveling to the second level of
the gym where most exercise equipment is located.
c. On December 2, 2020, City Code Enforcement staff inspected Appellant’s
Facility from the public right of way approximately 100 feet from the entrance of
the Facility. Upon such inspection, City Code Enforcement staff observed four to
five individuals, all wearing fitness clothing or carrying a sports bag, entering and
exiting the front entrance of the Facility.
d. At the time of the inspections on November 30 and December 2, 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.
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
violations.
f. Appellant does not dispute that it allowed indoor gym and fitness facility
operations on November 30 and December 2, 2020 and further failed to submit
any documentation or other factual information that the violations 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, documentation, and information
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-05-21 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 Board Member Benson, 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 March 2021.
____________________________________________________
Earl Conaway, Chairperson Date of Signature