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HomeMy WebLinkAboutFinding of Fact - TuinaMassageLicense BEFORE THE COMMON COUNCIL CITY OF ROCHESTER, MINNESOTA ___________________________________ In Re: Massage Therapy Business License FINDINGS OF FACT, Issued To Tuina Massage and CONCLUSIONS OF LAW, Massage Therapist License issued To AND ORDER. Juan Zhang. ___________________________________ On July 5, 2017, the City of Rochester Common Council conducted a public hearing, following notice to Tuina Massage and Juan Zhang. The hearing was for the purpose of determining whether possible license sanctions should be taken against the Massage Therapy Business License held by Tuina Massage at 308 Elton Hills Drive N.W., and the Massage Therapist License held by Juan Zhang. The hearing occurred pursuant to R.C.O. §115A.11. At the hearing, evidence was presented by Juan Zhang (by way of an interpreter), other persons assisting Ms. Zhang, and Ling Donnay and Julia Wang, business partners and owners of Tuina Massage. Officer Albert Arzola from the Rochester Police Department Investigations Division also presented evidence. The Rochester City Clerk presented various materials to the Council a copy of which is attached hereto and incorporated herein as Exhibit A. After considering all of the testimony and evidence submitted to the Council in this matter, the Council arrives at the following Findings of Fact, Conclusions of Law and Order: 1 FINDINGS OF FACT 1. Juan Zhang applied for a Massage Therapist License with the City of Rochester on October 25, 2016. The Council approved the license on December 5, 2016. The City Clerk issued a license to Ms. Zhang on December 14, 2016 The City Clerk’s license file does not include any proof of Ms. Zhang’s identity or proof that she is a U.S. citizen or legally permitted to be in the United States using any of the permissible identification forms provided by R.C.O. §115A.07, subd. 2(G). 2. Ling Donnay submitted a business license application on October 20, 2016. The business license application indicates the business is a partnership, but only information about Ms. Donnay was provided on the application. No applicant information about other partners was provided, nor was a copy of the partnership agreement included. At the time of original submission, the application was submitted under the business name Oriental Massage and the license was originally issued under that name on November 3, 2016. The business name was updated on December 13, 2016, and the license was reissued in the name of Tuina Massage. 3. The Rochester Police Department performed an undercover operation on March 27, 2017, at Tuina Massage. Juan Zhang was the therapist working at the time. As a result of the operation, Ms. Zhang was arrested and charged with prostitution. The Olmsted County Attorney’s Office is in control of the pending case, Court File No. 55 CR 173320, and Ms. Zhang’s first appearance in this case is scheduled for July 6, 2017. Charges were filed under Minn. Stat. §609.324, subd. 6, Engaging in Prostitution in a Public Place. A copy of the criminal complaint, summons, and statement of probable cause is attached and incorporated 2 herein as Exhibit B. 4. In addition to the prostitution charges pending under state law, the conduct outlined in the police report also violates the restrictions and regulations placed on massage therapy licenses in RCO §115A.10, including specifically subdivisions 4 and 6. 5. At the time of the undercover operation, the arresting officer also noted visual evidence that individuals were living in the business. This is a space within a strip mall location zoned in the B-1 Restricted Commercial Zoning District with a permitted use as a business center use. 6. The Rochester Police Department undertook a second undercover operation at Tuina Massage on May 17, 2017. Xiuxia Pan was the therapist working at the time. As a result of the operation, Ms. Pan was cited for performing services without a license. Ms. Pan had submitted an application to the City Clerk’s Office on May 10, 2017 for a massage therapist license. However, as of May 17, no background check had yet been completed for Ms. Pan by the Rochester Police Department, and a completed application had not yet been submitted to the City Council for approval. At this time, Ms. Pan’s background check has resulted in a recommendation from the Rochester Police Department to deny her license application. The City Clerk has sought additional information from the applicant in order to complete her application prior to presenting it to the City Council for action. 7. Officer Arzola stated that the Investigation Division has conducted four separate undercover operations at Tuina Massage. Two of the operations resulted in arrests for prostitution. In response to a question from a councilmember, Officer Arzola stated Tuina Massage presents an ongoing concern for the Rochester Police Department. 3 8. R.C.O. §115A.11, subd. 1(A) states that any license issued by the City under chapter 115A is subject to suspension, revocation, or denial if the licensee “failed to comply with any applicable state law, city ordinance or building, safety or health regulation relating to a Massage Therapist or Massage Therapy Business.” 9. R.C.O. §115A.10, subd. 3 states that “\[t\]he Licensee shall be responsible for all acts and conduct attributable to and in connection with Massage Therapy Service provided by the Licensee or occurring on the Licensed Premises.” 10. R.C.O. §115A.11, subd. 1(B) provides that any massage license issued by the City is subject to suspension, revocation, or denial if the Licensee “employed or contracted with a person to perform Massage Therapy who is required to be licensed by this chapter, but who was not so licensed at the time of employment or contract.” 11. R.C.O. §115A.11, subd. 5 provides that “\[t\]he filing of a criminal complaint against the Licensee alleging a violation of Minnesota Statutes sections 609.321, 609.322, 609.324, 609.3242 or 609.3243 shall result in the immediate temporary suspension of the Licensee’s license. The temporary suspension shall terminate at the time the complaint is dismissed, the Licensee is acquitted or the criminal charge is otherwise resolved, and for which all rights to appeal to a state court have been exhausted or waiver.” CONCLUSIONS OF LAW 1. By the greater weight of the evidence and testimony presented at the hearing, it is hereby determined by the Council that the City issued a Massage Therapy Business License to Tuina Massage and a Massage Therapist License to Juan Zhang. 4 2. By the greater weight of the evidence and testimony presented at the hearing, it is hereby determined by the Council that the owners/operators of Tuina Massage allowed the massage business to be operated in violation of the underlying B-1 zoning district. Individuals were allowed to live upon the licensed business premise. This occurrence violates R.C.O. §115A.11, subd. 1(A). 3. By the greater weight of the evidence and testimony presented at the hearing, it is hereby determined by the Council that the owners/operators of Tuina Massage are responsible for the acts of prostitution occurring on March 27, 2017, and performed by its independent contractor Juan Zhang. R.C.O. §115A.10, subd. 3. 4. By the greater weight of the evidence and testimony presented at the hearing, it is hereby determined by the Council that, on May 17, 2017, the owners/operators of Tuina Massage permitted an unlicensed person to engage in massage therapy upon the licensed business premises in violation of R.C.O. §115A.11, subd. 1(B). 5. By the greater weight of the evidence and testimony presented at the hearing, it is hereby determined by the Council that there is sufficient evidence supporting the revocation of the Massage Therapy Business license issued to Tuina Massage. 6. By the greater weight of the evidence and testimony presented at the hearing, it is hereby determined by the Council that, on or about May 19, 2017, Juan Zhang was charged with Engaging in Prostitution in a Public Place occurring on March 27, 2017, and in violation of Minn. Stat. §609.324, subd. 6. 7. By the greater weight of the evidence and testimony presented at the hearing, it is hereby determined by the Council that R.C.O. §115A.11, subd 5 requires a person who has been 5 charged with a violation of Minn. Stat. §609.324 must have the person’s Massage Therapy license temporarily suspended until the criminal charge has been resolved or the criminal complaint has been dismissed. ORDER The Common Council of the City of Rochester does hereby revoke the Massage Therapy Business license issued to Tuina Massage pursuant to R.C.O. §115A.11, subd. 4. The Common Council of the City of Rochester does hereby temporarily suspend the Massage Therapist License issued to Juan Zhang consistent with and subject to the conditions found in R.C.O. §115A.11, subd. 5. Dated at Rochester, Minnesota this _____ day of July, 2017. ________________________________ Randy Staver President of the Rochester City Council Approved at Rochester, Minnesota this _____ day of July, 2017. ______________________________ Ardell F. Brede Mayor of the City of Rochester FOF\\LicenseZhangTuinaMassage 6