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Board upholds Department of Public Health denial of Attraction Spa permit after SFPD undercover observation
Summary
The Board of Appeals sustained DPH’s denial of a massage-establishment permit for Attraction Spa (2809 San Bruno Ave.), citing SFPD undercover testimony that officers observed sexual conduct during a May inspection; the board voted 4-0 to deny the appeal.
The San Francisco Board of Appeals upheld the Department of Public Health’s decision to deny a massage-establishment permit for Attraction Spa, concluding the DPH had sufficient grounds under the health code to deny the application.
Deputy City Attorney Anne Pearson, appearing for Public Health, told the board that DPH’s massage program must deny permits when the department determines the business is being operated in a way that endangers employees or coerces illegal conduct. Pearson said DPH relied on an undercover SFPD inspection and corroborating records to recommend denial.
SFPD Sergeant Randy Lee testified that on May 20 he entered Massage Room Number 2 in an undercover capacity and observed an Asian male naked on the table and a massage practitioner performing what he described using the transcript’s wording as oral copulation. "As I opened the door, I observed an Asian male completely naked laying on a massage table. And I observed the masseuse giving this Asian male a **** ***, which is vernacular to oral copulation," Lee said under questioning.
Appellant counsel Fred Baker and Sean Salahi argued the documentary evidence relied on by DPH — including user-generated reviews on websites such as RubMaps — is hearsay and not sufficiently reliable to justify denial. Baker said the inspection could represent an isolated incident and asked the board to give the applicant the opportunity to obtain a permit and sell the business. Appellant Li Fang Zhang addressed the board through a translator and said she did not know what occurred during the inspection because she was giving birth that day.
DPH and SFPD told the board that, while online reviews are hearsay, they bolstered eyewitness testimony and illustrated a pattern of conduct. Commissioners asked whether the department’s action was mandatory under the code; counsel said the relevant language requires denial when DPH makes the statutory findings.
After hearing testimony, Commissioner Lazarus moved to deny the appeal and uphold the Department of Public Health’s denial on the basis of findings made by the task force and supporting evidence. The motion carried 4-0 (Fung, Lazarus, Wilson, Swig). The board’s action sustains the department’s denial; the order also included a permanent bar from reapplying in the hearing officer’s order, a condition the board noted could be challenged in court or on a subsequent permit application as appropriate.
