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CC - Item 5B - License Revocation Hearing and Recommendation Cafe Chieu Tim �E M� 7 { \ I � stafep ort � TO: HONORABLE MAYOR AND MEMBERS ROSEMEAD CITY COUNCIL FROM: 1pf ANK G. TRIPEPI, CITY MANAGER DATE: �� FEBRUARY 18, 1999 RE: LICENSE REVOCATION HEARING AND RECOMMENDATION CAFE CHIEU TIM, 8905 GARVEY AVENUE, #A-9 Attached for your consideration is the Hearing Officer's recommended decision that was personally served upon the licensee, Mr. Dien Ba Mai and his attorney, Louis M. Signer, on February 3, 1999. The licensee did not file exceptions within ten days after such service. According to Rosemead Municipal Code Section 6201, Section 103, "Failure to make such written exceptions shall constitute a waiver of any objections to the findings or recommendation." Section 107 requires that a licensee who desires that the City Council review the oral proceedings held by the hearing officer, must file a written request for preparation of a transcript of the oral proceedings and deposit a sum sufficient to cover the cost of preparation thereof. The request must be filed within ten days after notice of the Hearing Officer's recommended decision. "Failure to make such request or deposit (the fees) shall constitute a waiver by the licensee of a review of the oral proceedings by the City Council." The licensee did not request reparation of a transcript and did not post the fees. Therefore, he has waived his right to a review of the oral proceedings. In view of the inaction by the licensee, there is no need to take evidence or hear argument. The Hearing Officer's recommended decision should be adopted as the decision of the City Council. If any Councilmember desires to review the exhibits introduced at the hearing, they are being held in the office of the Assistant City Manager. COUNCIL. AGENDA HAI{- -E8 2 31998 ITEM No. � 2 TO: HONORABLE MAYOR AND MEMBERS ROSEMEAD CITY COUNCIL! ��,��/ FROM: yr'AANK G. TRIPEPI, CITY MANAGERV'" DATE: �I `"' FEBRUARY 17, 1999 RE: LICENESE REVOCATION HEARING AND RECOMMENDATION DIEN BA MAI FOR CAFE CHIEU TIM 8905 E. GARVEY AVENUE #A-9 ROSEMEAD CALIFORNIA Background On September 30, 1996, the Rosemead City Council approved the Hearing Officer's recommendation and granted an Entertainment Permit and Public Eating License to Dien Ba Mai for Cafe Chieu Tim, 8905 E. Garvey Avenue#A-9. (Exhibit 2) The respondent will be referred to herein as Cafe Chieu Tim. The Entertainment Permit was issued subject to eighteen conditions. Beginning shortly after the business opened, Cafe Chieu Tim has been the scene of numerous violations of law, many involving juveniles and fights. On September 5, 1998, the Los Angeles County Sheriff's Department responded to Cafe Chieu Tim and determined that, in an effort to stop a fight at the location, the owner had discharged a weapon(pistol) into the Cafe four(4) or more times . On September 16, 1998, an Accusation was issued by the City Attorney charging that the Cafe Chieu Tim violated the conditions of approval by the owner's discharging the weapon into the café, and alleging that such conduct was in violation of law and the conditions of the Entertainment Permit and Business License. The business owner, through counsel, requested an administrative hearing to contest the charges set forth in the accusation. Prior to the hearing, the City Attorney learned of a series of additional incidents and violations of the conditions of issuance occurring prior to the discharge of the weapon. See exhibits 6 and 7. The City Attorney issued a First Amended Accusation enumerating numerous additional violations and alleging that such additional violations were bases for enhancing the penalty and/or additional grounds for revocation. Those grounds are listed in paragraphs 9 and 10 of exhibit 1, A-1, and reiterated below. Chieu Tim License Revocation Recommendation February 17, 1999 Page 2 The hearing was postponed due to illness of counsel for respondent. Prior to the postponed hearing date,the Sheriff's Department issued a Supplemental Report indicating that the business had been the scene of several additional violations of law and the conditions of its business license. See exhibit 8. The City Attorney therefore filed a Second Amended Accusation alleging said additional incidents. See paragraphs 3 through 5 of exhibit 1, A-I, reiterated below. The Charges The Second Amended Accusation charges: 1. That on or about September 5, 1998, at approximately 9:55 p.m.,the Los Angeles County Sheriff's Department responded to Cafe Chieu Tim, 8905 E. Garvey on a call for service regarding a fight at the location. During the course of the investigation of the incident, the Los Angeles County Sheriffs Department determined that, in an effort to stop a fight at the location, the owner had discharged 4 or more times a weapon (pistol) in the Cafe; 2. That such conduct by the business owner is in violation of Penal Code §246 and or Penal Code §246.3; 3. That on or about October 18, 1998, an assault with a deadly weapon occurred on the subject premises; 4 That on or about October 10, 1998, at approximately 10:10 p.m., the Los Angeles County Sheriff's Department visited the Cafe Chieu Tim, 8905 E. Garvey, and found juveniles present in violation of the Rosemead curfew ordinance, found evidence of cigarette smoking, and found the business to be in violation of the condition of its business permit requiting that video tapes labeled by date be maintained for a period of at least 30 days; 5. That a portion of such conduct (smoking related) by the business owner is in violation of Labor Code section 6404.5; 6. [Intentionally Left Blank] 7. That such conduct by the business owner constitutes a basis for suspension or revocation of the Entertainment Permit and Public Eating License per the following provisions of the Los Angeles County Business License Ordinance as adopted by the City of Rosemead: 7.08.150 (F) Committed any unlawful, false, fraudulent deception or dangerous act while conducting a licensed business; or 7.08.150 (J) Conducted the licensed business in a manner contrary to the peace, Chieu Tim License Revocation Recommendation February 17, 1999 Page 3 health, safety, and the general welfare of the public; or 7.08.150 (K) Demonstrated that he is unfit to be trusted with the privileges granted by such a license; 7.08.160 In addition to the grounds stated in Sections 7.08.140 and 7.08.150, after a hearing as provided in Chapter 7.10,the commission may suspend or revoke a license if it finds that any licensee, his agent or employee, general manager, or person who is exercising managerial authority of or on behalf of the licensee has violated any condition or restriction of the license. 8. That such conduct by the business owner constitutes a basis for the suspension or revocation of the Entertainment Permit and Public Eating License because the said Entertainment Permit and Public Eating License contains a condition as follows: Condition No. 12. Any violation of applicable laws and/or these operating conditions will be grounds for suspension and/or revocation of these business licenses. 9. That such conduct by the business owner constitutes a basis for the suspension or revocation of the Entertainment Permit and/or Public Eating License because the property and business has been the scene of warning notices for business license violations on the following dates: a. Business license condition numbers 4, 5, 7, 14 and 17 on April 3, 1998; b. Business license condition numbers 4, 6, 10 and 17 on May 1, 1998; c. Business license condition numbers 4, 6 and 10 on June 19, 1998; d. Business license condition numbers 6 and 17 on August 15, 1998; e. Business license condition numbers 14 on August 18, 1998. 10. That such conduct by the business owner constitutes a basis for the suspension or revocation of the Entertainment Permit and/or Public Eating License because the property and business has been the scene of unlawful activities on the following dates: a. Post-curfew disturbance involving juvenile gang members and a gun on November 15, 1996; b. Curfew violations on December 10, 1996; c. Curfew violations on February 6, 1997; d. Assault with a deadly weapon on March 9, 1997; e. After curfew disturbance involving a fight among juveniles on March 30, 1997; f Fight and vandalism on June 29, 1997; Chieu Tim License Revocation Recommendation February 17, 1999 Page 4 g. Curfew violations on July 23, 1997; h. Curfew violations on August 4, 1997; i. Business dispute and a loaded gun found outside premises January 10, 1998; j. Operation of game arcade without the required license on April 3, 1998; k. Multiple violations of the Los Angeles County Health Code on April 8, 1998; I. Curfew violations and possession of marijuana on April 19, 1998; m. Curfew violations on June 28, 1998; n. Curfew violations on July 22, 1998. The Hearing The hearing was held on November 25, 1998 in the City Council Chambers at Rosemead City Hall before Assistant City Manager Donald J. Wagner, sitting as designated Administrative Hearing Officer. The City's case was presented by Assistant City Attorney, Cary S. Reisman. Respondent was represented by attorney Louis Signer. Respondent Mai was present and testified, as did Sheriffs Department Business License Investigator Terri McLaughlin, Sheriff's Deputies M. Valenzuela, T. Kelly, and M. Melikidse. All witnesses who testified were sworn by Deputy City Clerk, Jan Saavedra, who recorded the testimony on an audio tape recorder. Exhibits 1 through 11 were admitted into evidence without objection. Those exhibits are: 1. Notice of Second Amended Accusation from Assistant City Attorney Cary S. Reisman to Respondent's attorney Louis M. Signer. A-1. Second Amended Accusation re Cafe Chieu Tim; Entertainment Permit/Public Eating Business License. 2. Approval of Entertainment Permit for 8905 Garvey Avenue, #9, Rosemead, CA. 3. California Labor Code section 6404.5. 4. California Penal Code sections 246, 246.3. 5 Sections 7.08.090 through 7.12.110 of the Los Angeles County Code as incorporated by reference into the Rosemead Municipal Code dealing with business license revocations and administrative hearings. 6. Sheriffs Department License Unit Investigation Report dated re file no. 198-01071-3410- 446 and four page narrative listing incidents between October 21, 1996 and September 5, 1998. Chieu Tim License Revocation Recommendation February 17, 1999 Page 5 7. Sheriff's Department incident reports for the subject business and other businesses at 8905 Garvey Avenue from January 2, 1997 through September 5, 1998. 8. Sheriff's Department Supplemental Report, Notices to Appear and Statements of Facts re incident on or about October 10, 1998, copy of Ordinance No. 636, Complaint Report regarding incident on or about October 18, 1998, incident reports for the subject business and other businesses at the subject property from September 5, 1998 through October 18, 1998, and citation dated October 21,1998. 9. Notices to Appear and Statements of Facts re incidents on or about October 30, 1998, November 10, 1998 and November 13, 1998. 10. Sheriff's Department Complaint Report for the incident occurring on September 5, 1998. 11. Video tape for the incident occurring on September 5, 1998. Findings and Supporting Evidence Based on the evidence presented at the hearing, the Hearing Officer makes the following findings of fact in this case: Dien Ba Mai, owner of Respondent, admitted nearly all of the allegations of the Accusation. He admitted that on September 5, 1998, he discharged his pistol twice into the air and twice into the restaurant, with knowledge that his wife and several customers were locked inside at the time, he and his security guard having locked the customers inside. He did not consider the consequences of firing bullets into the air and into an inhabited building, such as that bullets fired into the air will eventually land, and that bullets fired into an inhabited building may ricochet and hit someone. He believed he had to fire his weapon in order to stop the fighting that was occurring inside the building. He contended that the Sheriff's Department was taking an inordinate amount of time to arrive after he telephoned for help and that he did not fire his pistol until at least twenty-five minutes after his 911 call. However, a subsequent review of the tape recording of the events of the evening of September 5, 1998 (exhibit 11), indicated that the Sheriff's Deputies arrived at the premises within seven and one-half minutes of the time when Mr. Mai appears to be telephoning for help. Respondent did not contest any of the allegations regarding juveniles, curfew violations or loitering. Mr. Mai admitted that gang members frequent his restaurant and stated that he is unable to prevent them from eating at his restaurant. He admitted that customers often smoke in the restaurant, and contended that he has told them to go outside on many occasions, but has never called the Sheriff's Department when they refused. He does not call the Sheriff's Department regarding curfew violations because he fears the gang members will retaliate against him and Chieu Tim License Revocation Recommendation February 17, 1999 Page 6 shoot him. The hearing officer determines that the business owner did not notify the Sheriff s Department of curfew violations occurring within the establishment or within 100 feet of the establishment as required by condition number 15 and that the business was repeatedly in violation of condition no. 16 (no minors in the premises without adult supervision after 10:00 p.m.). Respondent did not deny that the cafe was the site of several fights and/or assaults, and possession of firearms. Mr. Mai contended that these activities were beyond his control. Respondent denied having failed to have a video tape running during evening business hours, and contended that the tape he provided the Sheriffs Investigator for October 9, 1998 did contain the events of that day, and that the investigator did not watch enough of it. He contended that the tape contained approximately five minutes from a different date but that the remainder was for October 9. Investigator McGlaughlin countered that she had watched approximately fifteen minutes of the tape and none of it contained the events of October 9. The hearing officer determines that Investigator McGlaughlin's testimony is credible and that of respondent is not. The business owner did not retain properly labeled video tapes as required by Business License condition number 14. The hearing officer rejects respondent's arguments in response to the allegations contained in paragraphs 3,4, 8, 9 and 10 to the effect that he should not be penalized for the transgressions of his customers where, as here, the evidence is clear that the establishment attracts its customers, permits juveniles to remain in the establishment after curfew, and does not take effective measures to prohibit smoking in the premises. The evidence established that condition numbers 5 (approval of floor plan shall not change without Sheriffs approval) and 17 (front windows shall not be obstructed or tinted)were corrected and violations did not recur after the April 3, 1998 warning notice. Recommended Decision The Administrative Hearing Officer recommends that the Business License and Entertainment Permit issued to Dien Ba Mai for Cafe Chieu Tim be revoked based on the following: 1. The conduct in firing the weapon is inherently dangerous and demonstrates that the owner should not be entrusted with the privilege of engaging in a business which poses a threat to the safety of patrons and the public at large. The allegations contained in Allegations I and 2 justify revocation of the Entertainment Permit and Public Eating License for Cafe Chieu Tim. 2. The above allegations, considered alone, would be sufficient to justify revocation of the Entertainment Permit and Business License of Cafe Chieu Tim. Chieu Tim License Revocation Recommendation February 17, 1999 Page 7 3 Each of the allegations contained in paragraphs 3, 4, 8, 9 and 10, constitutes grounds for enhancement of penalty. In view of the history of this establishment,the allegations contained in Allegations 1 and 2 justify revocation of the Entertainment Permit and Public Eating License for the Cafe Chieu Tim. 4. The allegations contained in paragraphs 3, 4, 8, 9 and 10, considered cumulatively, and without reference to the events of September 5, 1998, constitute additional grounds for revocation of the Entertainment Permit and Public Eating License for the Cafe Chieu Tim. The foregoing is the recommended decision of the undersigned designated Administrative Hearing Officer. I . Donald J. er Designate. inistr. ' Baring Officer cc: Louis M. Signer, Esq. Cary S. Reisman, Esq.