On September 25, 2002, Tailing Li (permittee) received approval at an Administrative Hearing, of his application for a Special Development Permit (SDP) #2002-0655 to allow a personal service use (a foot soaking business) at 610 Town and Country Way (Capella Way). The SDP was granted subject to certain conditions which limited the business to foot soaking only, imposed operational standards, and specifically prohibited the permittee from performing any type of massage.

Permittee opened the business, called "12 Hour Stress Relief Center," in late October 2002. In violation of the conditions of approval and City ordinance, massages were performed at the site. On January 2^nd the business was closed by the City pursuant to an abatement proceeding because the permittee was operating as a massage establishment without a permit.

Staff is now recommending that Council revoke Special Development Permit #2002-0655 because the permittee has failed to comply with the conditions of approval.

In August 2002 the permittee filed an application with the Sunnyvale Department of Public Safety for a massage establishment permit for the subject property, 610 Town and Country Way (Capella Way). Sunnyvale Municipal Code (SMC) section 9.41.040 requires that a massage establishment permit be obtained from the Director of Public Safety. SMC section 9.41.060 establishes the requirements necessary to approve an application for a massage establishment permit. On September 6, 2002 the applicant was mailed a letter from the Director of Public Safety stating that the application for a massage establishment was denied and provided a list of the reasons why the application was denied, which included the fact that permittee did not have necessary certifications.

On September 9, 2002, the permittee applied to the Planning Division for an SDP to allow a personal service use for foot soaking at 610 Town and Country Way. Personal service uses require a Special Development Permit when they are located within Block 1 of the Downtown Specific Plan.

The Special Development Permit for a foot soaking business was approved with conditions at the September 25, 2002 Administrative Hearing. During the hearing the permittee indicated he had received and reviewed a copy of the staff report. The staff report included "Conditions of Approval" to which the business needed to adhere in order for the permit to be approved (Attachment 2, Conditions of Approval). Minutes from the hearing confirm that the permittee understood the Conditions of Approval and had no comments (Attachment 2, Administrative Hearing Minutes). Condition of Approval #6 states that the "permit is for a foot soaking service use only. Foot massage, body massage and/or touch are strictly prohibited. Any minor expansion of use, modification to hours of operation, or addition to the use will require approval by the Director of Community Development."

On October 25, 2002, the Planning Division hand-delivered a letter to the business after learning that it intended to open the next day without having complied with certain of the conditions. These included conditions related to operating hours and internal visibility requirements. The permittee was directed to comply with the conditions. (Attachment 4, Letter from Planning Division). After the letter was delivered, the permittee complied with the conditions, as verified by the Planning Division and the business opened the following week.

On December 4, 2002, an undercover detective from the Department of Public Safety entered the business and received a full body massage. Violation of Condition of Approval #6 (Attachment 2, Conditions of Approval SDP #2002-0655).

On December 9, 2002, Neighborhood Preservation staff conducted a visual inspection of the property from the sidewalk looking through the exterior windows and noted the following:

• Three patrons were having their feet and lower legs massaged. Violation of Condition of Approval #6.
• The posted hours of operation where Monday through Friday 10:00am-9:30pm and Saturday through Sunday 10:00am-10:00pm. Violation of Condition of Approval #5.
• Interior soaking and seating areas were not visible from the street. Violation of Condition of Approval #8.

On December 10, 2002, an undercover detective from the Department of Public Safety entered the business and received a full body massage. Violation of Condition of Approval #6 (Attachment 2, Conditions of Approval SDP #2002-0655).

On December 17, 2002, an undercover detective from the Department of Public Safety entered the business and received a full body massage. Violation of Condition of Approval #6 (Attachment 2, Conditions of Approval SDP #2002-0655).

On December 18, 2002, Neighborhood Preservation staff conducted a second visual inspection of the subject property from the sidewalk looking through the exterior windows. The inspection was consistent with the previous inspection and confirmed the following:

• Two patrons were having their feet massaged. Violation of Condition of Approval #6.
• The posted hours of operation were Monday through Friday 10:00am-9:30pm and Saturday through Sunday 10:00am-10:00pm. Violation of Condition of Approval #5.
• Interiors soaking and seating areas were not visible from the street. Violation of Condition of Approval #8.
• Lighting was not turned on in the interior area of the front room. Violation of Condition of Approval #10.

On December 19, 2002, Neighborhood Preservation staff hand delivered a Notice to Abate Unsafe or Unlawful Conditions to 610 Town and Country Way (Capella Way) to the permittee and to the property owner (Attachment 5, Notice to Abate Unsafe or Unlawful Conditions). Upon entry, staff noted the following:

• Two patrons were having their feet massaged. Violation of Condition of Approval #6.
• Lighting was not turned on in the interior area of the front room. Violation of Condition of Approval #10.

On December 23, 2002, Neighborhood Preservation staff and Public Safety staff abated the nuisance by locking the business. While the lock was changed the property was inspected further and the following was noted:

• The back room of the property had two private rooms that were in the process of being built, whereas, the conditions allow for only one private office. Violation of Condition of Approval #8.
• 11 full body massage tables located in the center area of the front room were observed and were not visible from the street due to partitioned dividers (Attachment 6, Photo of Massage Tables). Violation of Condition of Approval #8.
• Observed advertising posted on the front counter of the business stating that foot massages are available as a service (Attachment 7, Photo of Advertising).

On December 26, 2002, an Abatement Hearing was held. The permittee and property owners were notified of the date, time, and location. No representatives from the subject property attended the Abatement Hearing. The business has been closed since then.

Pursuant to Section 19.98.130 of the Sunnyvale Municipal Code a permit may be revoked by the City Council, after a public hearing is held and Council finds a violation of or non-compliance with the conditions of approval of such permit. In this case, the permittee has failed to comply with the approved conditions of approval. (See Attachment 1, Findings for Revocation)