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Board overturns zoning determination tied to 3‑year massage business ban, citing notice concerns
Summary
The board granted a rehearing appeal from the owner of 518 Taylor Street, concluding the Zoning Administrator erred in applying Planning Code §202.2(a)(4) without clear evidence the property owner received required notice under Health Code Article 29; matter involves procedural due‑process questions about owner notice.
The San Francisco Board of Appeals granted an appeal on May 9 challenging a three‑year restriction on massage businesses at 518 Taylor Street, concluding that the zoning administrator erred or abused discretion because the Department of Public Health’s notice to the property owner did not comply fully with Health Code Section 29.45.
The case before the board arose after DPH pursued enforcement against an operator doing business as Moulin Rouge. DPH entered a settlement with the operator and informed the planning department; Planning then issued a letter of determination imposing a three‑year prohibition on a new massage establishment at that property under Planning Code §202.2(a)(4). The property owner argued it never received adequate notice or a hearing and therefore was deprived of due process.
Property counsel William Klein and property manager Mary Tran said the owner was not mailed notice and had no opportunity for a pre‑deprivation hearing; on cross‑examination Corey Teague of the Planning Department and DPH staff said DPH delivered violation notices to the on‑site property manager and that the planning code’s purpose was to deter repeat operators in violation of Article 29. Planning staff noted the statute states notice to the property owner must be provided but does not prescribe a specific method and that historically DPH delivered written notices to property managers as the property owner’s agent. Planning said the earlier settlement by the operator created the factual basis for the penalty, but acknowledged policy changes to send agreements to property owners when settlements are reached.
Commissioners focused on whether the property owner had constitutionally sufficient notice and opportunity to be heard. The board’s motion found the zoning administrator erred in applying the planning code penalty absent evidence that the property owner received the statutorily required notice in compliance with Health Code §29.45, and the motion carried with unanimous ayes from commissioners present. The board granted the appeal, returning the matter for further process so the owner can seek a public‑health director’s hearing or otherwise resolve notice deficiencies.
Next steps: the Planning Department and DPH may pursue a director’s hearing or other enforcement remedies; the board’s action centered on procedural due‑process safeguards for property owners.
