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HomeMy WebLinkAboutFinding of Fact - HarmonyAsianMassage.LicenseSanctions BEFORE THE COMMON COUNCIL CITY OF ROCHESTER, MINNESOTA ___________________________________ In Re: Massage Therapy Business License FINDINGS OF FACT, Issued To Harmony Asian Massage and CONCLUSIONS OF LAW, Pending Massage Therapist License AND ORDER. Application Submitted by Yu Xiu Zhang. ___________________________________ On October 30, 2017, the City of Rochester Common Council conducted a public hearing, following notice to Harmony Asian Massage and Yu Xiu Zhang. The hearing was for the purpose of determining whether possible license sanctions should be taken against the Massage Therapy Business License held by Harmony Asian Massage at 915 Broadway Avenue North, and the Massage Therapist License application submitted by Yu Xiu Zhang. The hearing occurred pursuant to R.C.O. §115A.11. At the hearing, evidence was presented by Xin Qin Liu (by way of an interpreter), her attorney, and her husband. Lt. Sherden from the Rochester Police Department 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 Harmony Asian Massage 1. On November 11, 2016, Xin Qin Liu notified the City Clerk that she had purchased the Massage Therapy Business located at 915 Broadway Avenue North. That Massage Therapy Business was formerly known as Romantic Asian Massage and Therapeutic Asian Massage. The existing license was changed to reflect the new name and ownership, but there was no application documentation received and the changes were not brought to the City Council for approval. The annual business license was renewed for 2017, and was issued on February 8, 2017, through December 31, 2017. 2. On October 9, 2017, the Rochester Police Department performed an undercover 1 operation at Harmony Asian Massage. During the undercover operation, Yu Xiu Zhang provided Massage Services to an undercover officer. On this date, Zhang did not have a Massage Therapist license from the City of Rochester. As a result of the conduct occurring during the massage, charges were filed against Zhang under Minn. Stat. §609.324, subd. 6, Engaging in Prostitution in a Public Place. 3. In addition to the prostitution charges pending under state law, the conduct outlined in the police report also violates the following restrictions and regulations placed on massage therapy licenses in RCO §115A.10: A. A Massage Therapy Business licensee may only employ a Massage Therapist licensed under chapter 115A. R.C.O. §115A.10, subd. 1. The licensee employed Yu Xiu Zhang who was not licensed as a Massage 1 The police report and the City Clerk’s memo refer to “Yu Xiu Zhang” and “Yu Xin Zhang.” According to the City Clerk, these references are to the same person. The correct spelling of her name is “Yu Xiu Zhang.” 2 Therapist. B. A Massage Therapy Business licensee must designate a person to be manager and responsible for the conduct and operation of the licensee’s business establishment. R.C.O. §115A.10, subd. 12. The licensee failed to make this designation. C. A Massage Therapist may not touch or offer to touch, or provide Massage Therapy to specifically identified areas of the body of any customer or person inquiring of Masssage Therapy. R.C.O. §115A.10, subd. 6. Yu Xiu Zhang violated this provision. th 4. At the October 30 public hearing, the attorney for the licensee stated that the licensee did not supervise Yu Xiu Zhang very closely. 5. The City Clerk contends the Licensee has failed to comply with the licensing requirements found at R.C.O. §115A.06 and §115A.10, subd. 14. 6. R.C.O. §115A.06 requires the filing of an application containing specific minimum information about the business and its owners in order to obtain a license to operate a Massage Therapy Business as well as the payment of all required fees. Xin Qin Liu did not submit a license application or any documentation as required by this ordinance when taking over the business located at 915 Broadway Avenue North, and opening it as a new massage business. 7. R.C.O. §115A.10, subd. 14 states that no license issued under this chapter may be transferred, and that a Massage Business Therapy license terminates upon any change in the Licensee’s officers or ownership interests unless the change is approved by the Common Council. Xin Qin Liu purchased the business location, but did not continue the existing business operations of the previous owner. She operated the business under the previous owner’s license without obtaining a new license. 8. R.C.O. §115A.11, subd. 1(A) states that any license issued by the City under 3 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. 1(C) provides that any massage license issued by the City is subject to suspension, revocation, or denial if the Licensee “\[v\]iolated any provision of this chapter.” Yu Xiu Zhang 12. On September 20, 2017, Yu Xiu Zhang came into the City Clerk’s Office to request and complete a license application for an individual Massage Therapist license. She was accompanied by a man who identified himself as the husband of the owner of Harmony Asian Massage. He assisted Zhang in completing the application, and asked several questions on her behalf about how to complete the application. The City Clerk worked directly 4 with Zhang and the man with her to ensure the application was complete, including highlighting sections of the application originally left blank and indicated a local home address was required. The man indicated there is an apartment at the same location of the business, and that was where Zhang was residing. When all the documents were submitted, the City Clerk clearly indicated to the applicant and the man with her that the license would not be issued until after it was reviewed by the Police Department and approved by the City Council, and that Zhang was not authorized to work as a Massage Therapist until a license was issued. 13. Yu Xiu Zhang was working in the business at 915 Broadway Ave N on Oct. 9, 2017, when members of the Rochester Police Criminal Interdiction Unit conducted a sex trafficking sting at that location. This was 19 calendar days after her application had been submitted and before it had been approved by the City Council. According to her responses documented in the Police Report, she had been working in the business for “about one month,” indicating she was likely working in the business from the time she submitted her application, perhaps even before. th 14. At the October 9 sex trafficking sting, Yu Xiu Zhang performed Massage Therapy services on an undercover police officer. While performing those services, Yu Xiu Zhang touched the officer’s penis. 15. R.C.O. §115A.10, subd. 6 states that a Massage Therapist may not touch or offer touch, or provide Massage Therapy to specifically identified areas of the body of any customer or th person inquiry of Massage Therapy. The October 9 undercover operation police report indicates a violation of this provision. 16. R.C.O. §115A.10, subd. 4 requires that the person receiving Massage Therapy shall 5 at all times have specifically identified areas of the body covered with clothing or properly draped th with non-transparent material. The October 9 undercover operation police report indicates a violation of this provision. 17. R.C.O. §115A.11, subd. 1(A) states that any Massage Therapy license application submitted to the City under chapter 115A may be denied if the applicant “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.” 18. R.C.O. §115A.11, subd. 1(C) provides that any Massage Therapy license application submitted to the City may be denied if the applicant has “\[v\]iolated any provision of this chapter. 19. R.C.O. §115A.07, subd. 13 requires a Massage Therapist licensee to have the City- issued license in his or her possession while providing Massage Therapy. 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 Harmony Asian Massage. 2. By the greater weight of the evidence and testimony presented at the hearing, it is hereby determined by the Council that the owner/operator of Harmony Asian Massage is responsible for the acts of prostitution occurring on October 9, 2017, and performed by its employee Yu Xiu Zhang. R.C.O. §115A.10, subd. 3. 3. By the greater weight of the evidence and testimony presented at the hearing, it is 6 The Common Council of the City of Rochester does hereby deny Yu Xiu Zhang’s application for a Massage Therapist License pursuant to R.C.O. §115A.11, subd. 1(C). Dated at Rochester, Minnesota this _____ day of October, 2017. ________________________________ Randy Staver President of the Rochester City Council Approved at Rochester, Minnesota this _____ day of October, 2017. ______________________________ Ardell F. Brede Mayor of the City of Rochester FOF\\LicenseZhangHarmonyMassage 8