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HomeMy WebLinkAboutItem 5 - Correspondence_RedactedSteve Rosenberg Palm springs, CA 92262-3108 Email: May 24, 2022 Mr. Michael Paonessa, Chair Ms. Jocelyn Kane, Vice Chair Mr. Patrick Basile, Mr. Stepehen Moses, Mr. Wayne Sinclair, Board Members Mr. Ken Hedrick, Alternate Board Member Subject: Board Meeting of May 25, 2022 – Item 5 Administrative Appeal of OG Arabian Nights, LLC Dear Administrative Appeal Board, By way of introduction, I wish to tell you that I am a proud 22-year resident of Palm Springs. I have had the privilege to serve our fine City on the Airport Commission, the Measure J Commission and, indeed, on the Administrative Appeals Board on which you now sit. During my time on the Administrative Appeals Board, I heard appeals that were good, appeals that were bad and cases that were just plain ugly. Sadly, the case cited above is very ugly. Mr. Rick Pantele and I assisted Mr. Phillip Wen as consultants when he applied for his Administrative Permit. He contacted us for our assistance in contesting this citation. I am officially speaking on Mr. Wen’s behalf. A bit of background is in order. The Cannabis Ordinances, Rules and Regulations under discussion were largely created under the aegis of Mr. Edward Z. Kotkin, former City Attorney. Mr. Kotkin had a hang-´em-high attitude that is reminiscent of the old wild, wild west. That is NOT what Palm Springs is about. Having said that, the Office of Special Program Compliance was created to deal with the “problems” associated with Cannabis. To that end two Code Enforcement officers were hired for that purpose. They are now hot on the trail to find problems to justify their salaries and even existence. The case before you now exhibits the worst of those Keystone cop efforts as you will see. 1. You have before you a 73-page staff report. Attachment 4, 5 and 6 consist of 34 pages that regurgitate City Code and extoll all the great work that the Special Program Compliance has done. Monthly news letters (really?) included. None of that has anything to do with the alleged violation by OG Arabian Nights. 2. Attachment 7 is listed as “Email to OG Arabian Nights Warning of Violations. It consists of several internal emails of the Department and not even addressed to OG Arabian Nights. In no way is this a warning. 3. Attachment 8 has two (2) pages which copy a January 27th, 2022, email concerning an inspection made by Mitch Nabhan, Code Compliance Officer. The date of the inspection is not stated. Officer Nabhan quotes four (4) section of the PSMC but fails to clearly indicate in what way the Appellant is non-compliant. I cannot determine from this document what needs to be done. As an afterthought, at the bottom he says please provide a register within 24 hours. 4. Attachment 8 continues with 5 pages of June 2021 emails which have nothing to do with the current alleged violations. It is all very confusing. 5. It is worth noting that Mr. Phillip Wen, Ms. Ivette Flores and Ms. Stacy Yang are NOT native English speakers and wading through this document would be exceedingly difficult, if not impossible, for them. 6. It should be further noted that they come from Asian cultures that traditionally eschew challenging authority, so I feel compelled to do so on their behalf. 7. The email threads shown in this documentation are literally impossible to follow. What we can see is that the Appellant complied with multiple requests on numerous occasions by attaching documents. The Department has chosen NOT to include several of those attachments. Why? Those documents show compliance by the Appellant. 8. The Department has failed to show that they warned the Appellant of the alleged violations at any time relevant to the case. 9. The Appellant is cited for violating Code Sections 5.55.200(A)3 Each Permittee shall maintain a current register of the names and the contact information (including the name, address, and telephone number) of anyone owning or holding an (sic) financial interest in the Adult-Use Cannabis Business, and separately of all the officers, managers, supervisors, employees and volunteers currently employed or otherwise engaged by the Adult-Use Cannabis Business. The register required by this paragraph shall be provided to the City Manager or his/her designee(s) upon a reasonable request. (emphasis mine). 10. The facts of this case show that the Appellant offered to print a copy of the register for the Code Compliance officer while he waited. He advised that that was not necessary. Yet that same day, late in the afternoon (after the recipient employee had left work for the day), he sent an email demanding the register by the close of business. I would submit to you that this is NOT “upon a reasonable request.” 11. The Appellant is also cited for violating Code Sections 5.55.200(A)21 Any new supervisors, employees or other persons otherwise engaged in the operation of the Adult-Use Cannabis Business must submit their information to the City Manager within ten (10) days prior to their new ownership, employment, or engagement, including fingerprints and other necessary information for a background check. Unfortunately, the language of this paragraph is confusing. To start with, it requires the employee and NOT the employer to notify the Special Compliance Department. If we interpret this paragraph, contrary to its plain English wording, to mean this is the employer’s responsibility, then literally, an employer could NOT submit the required information more than 10 days prior to the start of employment. Likewise, the employer could submit the information immediately prior to the start of employment, e.g., 1 minute before. I would submit that the Appellant did in fact notify the City prior to the start of employment. 12. Further, this paragraph applies to persons engaged in the “operation” of the business. I would submit that a security guard is NOT involved in the “operation of the business,” but only in guarding and securing it. Section 5.55.210 Security Measures states: A. A permitted adult-use cannabis business shall implement sufficient security measures to deter and prevent the unauthorized entrance into areas containing Cannabis goods, and to deter and prevent the theft of cannabis goods at the adult-use cannabis business. Except as may otherwise be determined by the City Manager or their designee(s), these security measures shall include, but shall not be limited to, all of the following: Paragraph 8. Security personnel must be licensed by the State of California Bureau of Security and Investigative Services and shall be subject to the prior review and approval of the City Manager or their designee(s), with such approval not to be unreasonably withheld. Again, I would submit that the appellant met the requirement of this paragraph by submitting a copy of the State issued Guard Card. 13. Finally, I would call to your attention the Administrative Citation AB3001 itself which is on page 73. It is internally inconsistent. In the Section titled Compliance Order it says the fine is for each count. There are two counts. It then states the PENALTY is $5,000.00. A further inconsistency is in the Section titled Administrative Fine Schedule. It says:” First violation – An administrative citation issued for the first violation f this Chapter may not exceed one thousand dollars ($5,000.00).” So, which is it? Under the Uniform Commercial Code, if your write a check for “One thousand dollars” and put down the numerals $5,000.00 the written amount prevails. This is settled case law. 14. This is but more evidence of the sloppy way the Department has handled this matter. 15. Lastly, the proposed resolution attached as Attachment 1 is itself defective. On page 5, the second (2nd) paragraph affirmatively states that the Palm Springs Municipal Code (which governs here), requires a “live scan (to have) been completed and approved ten (10) days prior to employment.” The same claim is repeated in the fourth (4th) paragraph and the fifth (5th) paragraph. As is proven above with quotations from the Municipal Code, there is no such 10-day prior requirement. 16. Further, the fifth (5th) paragraph adds “failure to provide current register and names upon reasonable request,”. As stated above, I believe the Appellant did NOT receive a reasonable request. The Administrative Appeals Board has enormous power to overturn administrative judgements that are incorrect. You have been given this power to allow citizens to overcome Administrative missteps. In this case, I believe the Administrative Appeals Board MUST adopt the second paragraph in Section 1 of the resolution and find the Appellant is not in violation and therefore overturn the administrative Citation and the Administrative Fine. Respectfully submitted, Steve Rosenberg P. S. I will be available by phone all day on Wednesday May 25, 2022, and during the hearing in the evening. I would welcome any questions that members of the Board may have. My cell phone number is