HomeMy WebLinkAboutExhibit 2Exhibit 2
R
FURY REVOCATION HEARING - 4/18/2008
1 (Pages 353 to 356)
Precise Reporting Service
714 - 647 -9099
9,1
Page 3531
Page 355
1
Ew ®ffs
FOR 1N
2
CITY: MUfr (CATION EVIDENCE
i 3
8F Co cnfpho"Whtaken 449
11 -I5 -2007 of
4
9 Memo to Amn 60m
5
Levin re: Fury Rok
re:
&RWSi
&if Sushi lounge Code
6
Tasks,
pnfopy
7
9A Copy ofph h taken 462
I
ofgraph teen
9H 11- 29- 20o]ofears, license
FURY REVOCATION HEARING
i e
plaaanuna a 4KEGG315 and3KTS0]3
9
9C Copyofpbotogsaphraken 462
FRIDAY, APRIL 18, 2008
1
9D 11 -29 -2007 ofcara, license
10
plazenumberti FS664mid5f 20
NEWPORT BEACH, CALIFORNIA
11
10 Memom Aamn Hmpfmm Shanmon
10.57
Levin re: Fury Rok & Rol Sushi
a.m.
12
Lounge Code Bnfarament Tasks,
2 -1 -08
3
IOA Copy 468
14
liven
pile nu0](eie) EGO3license
plaza number4KEGG315 and 6AF5664
HEARING RE "THE FURY" taken at 3300 Newport
( 15
16
pa�in6 penrii, g
1013 Copyofphmogmphuken 468
Boulevard, Newport Beach, California, commencing at
!
1- 30.2007 (sic) ofcars, license
17
plane number 5PBMB 145 and 3RYA634
10:57 a.m., Friday, April 18, 2008, before
and an SIN
NANCI L. GRUBE, CSR No. 3446.
18
10C CoprofphotoVWhLaken 460
19
1 -30 -2007 (sic) ofcans, license
plate nurtdsr 4KEGC7315 and 6207493
20
parking pensut Last
21
IOD Co cifphato b taken 468
1- 30- 2007(sic) ofeans, license
THOMAS A. ALLEN, HEARING OFFICER
2a
plstenpcnrdtPBM814and5YTG742
parking pc mit tagf
STEPHEN JAMIESON, ATTORNEY FOR "THE FURY"
23
10B Copy ofpnomgmpn taken 470
JUNE AILIN, ATTORNEY FOR THE CITY
24
1- 30 -N07 (sic) ofcars, license
plate number68CE9485, 6AFS664,
25
38YM34
Page 354
Page 356
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1
EXHIBITS
2
INDEX
2
FOR w
CITY M MIFICATION EVEJENCE
3
3
10F Copy or photo,aph taken 470
4
CfIYS WITNESSES
I- 3o- 2N7(sic)of can, license
4
plate numbs 6101493 and 6X13163
5
and two other cas
6
DIRECT CROSS REDIRECT RECROSS ARBITRATOR
5
7
1 O Copy ofphono lath taken 470
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1- 30- 200](sic)ofmr, license
8
NG
GIER VARIN
plate number 6BCE940 (three
9
362 381 426 428
7
photographs ofliecasse plate)
10
SHANNON LEVIN
8
10HCOpyofpnomgrephsaken 470
1- 10.2007(sic) Dfcans, license
11
431 473 563 574
9
plate number 3XMZ50L 6207493,
12
JUSTIN YEE
613CE948 and 3RYA634
13
596 598 614
to
taken 470
lal CWy hic)
14
11
7 (sic) of license
ofch
15
EXHIBITS
(
742, 5D
plate number SYTGl42. SDMJ958,
plate a
16
FOR IN
12
6X13163 and 4DZT513
13
101 Copyofphotogmpbtaken 470
CITY: IDENTIFICATION EVIDENCE
b3o -20m (sic)oecar, ficenu
17
14
plate number 5PBM8l4
8A Copy of photograph taken 446
15
41A Avey mailing list w 365
"File Copy- stamed on it
18
11 -15 -2007 of
16
19
SB Copy ofphotograph taken 447
41B Noticedliublic Hearin6,
11- 15- 2007of
17
18
1 -17 -08
41C Naficedlaublic Hearing, 372
20
L21 -a8
8C Copy of photograph taken 447
19
21
11 -15 -2007 of
20
41 nano r g'iuedifw ith 373
22
8D Copy ofphotograph taken 448
!
mailing 2 -27 -2008 and 44 -2008
11 -15 -2007 of
21
41E Signed return roceipts(2) 374
23
zz
8E Copy ofphotograph taken 448
41FNoticeofPublic Herring, 376
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11 -15 -2007 ofcar, license
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24
3 -5-08
410 Blank Certified Mill 370
plate number 4KEGG315
Receipts
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Precise Reporting Service
714 - 647 -9099
9,1
FURY REVOCATION HEARING - 4/18/2008
Z trctyC5 JDi t-v .30UJ
Page 359
THE HEARING OFFICER: I would like you to make a
statement, and if that's acceptable to the city, let's
focus in on that fast.
MS. AILIN: That's fine.
THE HEARING OFFICER: If it's appropriate for the
witness to hear it, that's fine, too. Doesn't matter to
me.
MR. JAMIESON: Actually, the witnesses are
excluded, so I would not telegraph where fm going. I
don't mind bringing it up to counsel and to the hearing
officer, but no, I don't think the witness should be
able to hear that.
THE HEARING OFFICER: Let's quickly, then, just ask
the witness to step out and go focus in --
(Discussion ensued off the record)
MR. JAMIESON: As I indicated the last time we got
together, the concern that I have and the objection we
have is based upon the fact that this is a proceeding to
revoke a constitutionally protected vested property
interest that in the sense of the conditional use permit
runs with the land. The conditional use permit running
with the land both encumbers the land and also provides
a benefit to that land; therefore, the people, the
persons and entities that have a constitutionally
protected vested property interest in this is not only
Page 360
Fury because of its leasehold interest and because of
the operation it has that relies upon this vested
property interest right, but also the landowner. The
landowner is the one when an application for a
conditional use perrmt is made the cities -- and quite
frankly I didn't look to see if this city does it, but I
do this all over the place in California, and all of
them do for good reason.
The application requires the landowner to sign
the application because the CUP is going to encumber
that piece of property. The CUP doesn't -- isn't a
right that if it were to get revoked suspended or
modified or changed in any manner is going to change
just what Fury can do, but rather what the property can
do or cannot do.
As such, the entity or person that owns the
property, I believe, has an absolute constitutionally
vested interest in due process, notice, opportunity to
be heard and should be accorded adequate notice to be
able to do that. If, in fact, the landowner here has
not been given adequate notice -- and based on what I've
seen and what I've heard from the landowner, my
representation is I don't think it's been met here.
Therefore, I don't think any adverse action or any
modifications or changes can be made to this conditional
Precise Reporting Service
714- 647 -9099
A -?-
Page 357,
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EXHIBITS I
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FOR IN
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CITY! IDENTIFICATION EVIDENCE
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41H Public Notice 379
j 3
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EXHffiITS
5
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FOR IN
FURY: IDENTIFICATION EVIDENCE
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fi
29 View /inspection other
7
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premises by hearing officer
8
and counsel if it occurs and
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a
is hereby requested
10
9
29 Certified Mail - 419
Receipt Rok & Rol and
11
10
Memo to Ginger Varin from
12
Rosalinh Ung
11
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30 Notice from the City 422
14
12
of Newport Beach
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EXHIBITS
15
FOR IN
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14
ARBITRATOR IDENTIFICATION EVIDENCE
17
15
A4 Objections to City Exhibits 583
for Use at Revocation Hearing
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16
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17
1s
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Page 358
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THE HEARING OFFICER: On the record April 18,'08
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in the Fury matter. The citys case is still open, and
2
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are you prepared to call your next witness or are there
3
4
any motions or discussions prior to doing that?
4
5
MS. AILIN: I am prepared to call my next witness,
5
6
and I had sent amand sort of an updated witness list by
6
7
e-mail. 1 guess that was just yesterday, and I learned
7
8
last night that someone I was hoping to call today
8
9
actually is not available today, but he will be
I 9
10
available on Tuesday, and that's Glen Everode.
10
11
We had also discussed the need for some
11
12
testimony about notice to the property owner, and I do
12
13
have here today Ginger Varin, the planning department
13
14
secretary, who is prepared to testify about that issue,
14
15
and I have copies here of various documents from her
15
16
file.
16
17
THE HEARING OFFICER: Let's focus in on exactly
17
18
what Mr. Jamieson, if possible, your concerns are with
is
19
respect to the notice. That is, if someone precisely
19
20
did not -- in other words, just please focus in. That's
20
21
all I would ask so that we would know what we are
21
22
looking for here.
22
23
MR. JAMIESON: Sure, do you want me to — you are
23
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saying in terms of questions or do you want me to make a
! 24
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statement at this point?
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Z trctyC5 JDi t-v .30UJ
Page 359
THE HEARING OFFICER: I would like you to make a
statement, and if that's acceptable to the city, let's
focus in on that fast.
MS. AILIN: That's fine.
THE HEARING OFFICER: If it's appropriate for the
witness to hear it, that's fine, too. Doesn't matter to
me.
MR. JAMIESON: Actually, the witnesses are
excluded, so I would not telegraph where fm going. I
don't mind bringing it up to counsel and to the hearing
officer, but no, I don't think the witness should be
able to hear that.
THE HEARING OFFICER: Let's quickly, then, just ask
the witness to step out and go focus in --
(Discussion ensued off the record)
MR. JAMIESON: As I indicated the last time we got
together, the concern that I have and the objection we
have is based upon the fact that this is a proceeding to
revoke a constitutionally protected vested property
interest that in the sense of the conditional use permit
runs with the land. The conditional use permit running
with the land both encumbers the land and also provides
a benefit to that land; therefore, the people, the
persons and entities that have a constitutionally
protected vested property interest in this is not only
Page 360
Fury because of its leasehold interest and because of
the operation it has that relies upon this vested
property interest right, but also the landowner. The
landowner is the one when an application for a
conditional use perrmt is made the cities -- and quite
frankly I didn't look to see if this city does it, but I
do this all over the place in California, and all of
them do for good reason.
The application requires the landowner to sign
the application because the CUP is going to encumber
that piece of property. The CUP doesn't -- isn't a
right that if it were to get revoked suspended or
modified or changed in any manner is going to change
just what Fury can do, but rather what the property can
do or cannot do.
As such, the entity or person that owns the
property, I believe, has an absolute constitutionally
vested interest in due process, notice, opportunity to
be heard and should be accorded adequate notice to be
able to do that. If, in fact, the landowner here has
not been given adequate notice -- and based on what I've
seen and what I've heard from the landowner, my
representation is I don't think it's been met here.
Therefore, I don't think any adverse action or any
modifications or changes can be made to this conditional
Precise Reporting Service
714- 647 -9099
A -?-
FURY REVOCATION HEARING - 4/18/2008
Page 361
3 (Pages 361 to 364)
Page 363
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use permit without giving all of those indispensable
1
executive secretary for the city at the utilities
2
parties, indispensable and necessary parties the ability
2
department.
3
to be aware of the charges brought against the CUP, the
1 3
Q. Describe for us your duties as secretary to
4
charges brought against the property and the possible
4
the planning commission.
5
ramifications of this proceeding and the proceeding in
5
A. As secretary to the planning commission, what
6
general in the city. That's the purpose for this.
6
my major responsibility is is to support the planners as
7
So I don't represent the landowner, but 1
7
they are doing their staff reports. We get noticing
8
donl think a full and adequate proceeding decision can
8
from the mailing labels and so forth from an off -site
9
be made without the landowner.
9
business, such as Susan Case. That's just an example,
10
THE HEARING OFFICER Pm sorry. Miss Ailin, do
10
and they do a 300 -foot radius. That is up to the
11
you want to respond?
! 11
individual applicants to get those mailing labels for
12
MR JAMIESON: Which I think 1 said on Friday, but
12
us, and then we use those mailing labels to send out
13
if I didn t, that's what I —
13
what we call blue card noticing to the individuals. We
14
THE HEARING OFFICER Your focus, then, is on
! 14
also send them out to associations if there is an
15
notice to the landowner, period?
15
association within that vicinity. I also put notice,
16
MR JAMIESON: Right, for all those reasons.
! 16
the same notice —
17
THE HEARING OFFICER For the failure of proper
17
Q. Let me Interrupt you for a second. When you
18
notice?
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are talking about noticing, you are talking about giving
19
MS. AILIN: Alleged failure.
19
notice of items that are going to be on the planning
20
THE HEARING OFFICER Alleged failure.
20
commission agenda?
21
MR JAMIESON: Alleged failure.
21
A. Correct.
22
THE HEARING OFFICER And as we know, the landowner
22
Q. And you were going to tell us about other
23
—okay. With that, then, I think you can see where you
23
ways —
24
need to focus your testimony with this witness and let's
! 24
A. Yes.
25
proceed.
25
Q. — that you give notice besides mailing.
--
Page 362
364
1
MS. AILIN: Okay. Let's bring her back in.
1
THE BEARING OFFICER: How about on this matter?
2
Let's have the court reporter swear the
2
THE WITNESS: IM sorry?
3
wihess.
3
THE HEARING OFFICER: Can we just focus on this
4
GINGER VARIN,
4
matter?
5
having been first duly administered an
5
THE WITNESS: Yes, sir.
6
oath in accordance with CCP 2094, was
6
MS. AILIN: If you would prefer to do that without
7
examined and testified as follows:
7
any background.
8
8
Q. Miss Varin, particularly what we are
9
DIRECT EXAMINATION
9
interested in here is what notice was given to the owner
10
BY MS. AILIN:
10
of the property at 4221 Dolphin Striker Way, which is,
11
Q. Good morning.
11
as I understand it, a partnership called Ridgeway and
12
A. Good morning.
12
Whitney?
13
Q. Please state and spell your name for the
13
A. Yes.
14
record.
14
Q. When I say notice to the property owner, I
15
A. My name is Ginger Varin, "V" as in Victor,
15
mean notice specifically to the property owner as
16
a- r -i -n.
16
opposed to published notice.
17
Q. And how are you employed?
17
A. I have a copy of the labels that I use for the
18
A. I work for the City of Newport Beach as an
18
blue card noticing that I send out to the mail. 1 also
19
administrative assistant for the planning department,
19
have a copy of the property notice that was posted on
20
and one of my feathers in my hat is also the planning
20
the report as of January the 17th, which would have been
21
commission secretary.
21
the first one here.
22
Q. And how long have you worked for the city in
22
Q. Let's stick with mail first.
23
that capacity?
23
A. Sure, sure.
24
A. In that capacity I have worked almost 11
1 24
Q. Let's go through the whole process with the
25
years, and prior to that I was seven years as an
2S
mailing.
Precise Reporting Service
714 - 647 -9099
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FURY REVOCATION HEARING - 4/18/2008
Page 365
A. Okay.
1
Q. And if you could, Mr. Jamieson and Mr. Allen
2
both have copies of the packet of materials that you
3
brought in, so — unfortunately they are not numbered,
4
but if you could describe for the record the pages that
5
you are referring to. You started out talking about a
6
sheet of mailing labels.
7
A. Yes, uh -huh.
8
Q. And what page was that in the packet that you
9
have provided? Is that the first page?
10
A. Yes, that would be the first page.
11
MR. JAMIESON: Can we identify these as exhibit (
12
numbers so that we can go through it? '
13
MS. AILIN: Sure.
14
How shall we -- what sort of preference do you
15
want to give them?
16
THE HEARING OFFICER: City next in order and then',
17
just A, B, C, D. ''.
18
MS. AILIN: That would be Citys 41. j
19
(City's Exhibit 41 was
20
marked for identification and is I
21
bound separately)
22
THE WITNESS: And this is the copy of the mail i
23
labels that I use for all the initial notifications as
24
well as subsequent notification.
25
Page 366
THE HEARING OFFICER: So that's A?
1
THE WITNESS: Yes.
2
BY MS. AILIN:
3
Q. Just to be clear, you are referring to a copy
4
of a list — as set of mailing labels that has a stamp
5
on it that says "file copy "?
6
A. That's correct.
7
MR. JAMIESON: Hold onjust a second because the
8
first page on what I was handed doesn't say "file copy."
9
MS. AILJN: If you dig down toward the middle,
10
there is a copy that says "file copy" on it.
11
MR. JAMIESON: That's City 41A.
12
MS. AH JN: That's City's 41 A.
13
MR, JAMIESON: If I may, just so I understand it,
14
is that the one that says at the bottom right -hand
15
comer PA 2005 -087?
16
THE WITNESS: Yes, sir.
17
MR. JAMIESON: And there is handwriting down at the
18
bottom that says "Fury"?
19
THE WITNESS: Yes, sir. This is the first one that
20
I used.
21
BY MS. AILIN:
22
Q. And where did you get the mailing labels? 1
23
A. The mailing labels are supplied by the
24
applicant when they put in their application, and these
25
4 uncles UQ coal
Page 367
are provided by a firm such as Susan Case who does the
— who goes through the county records, the tax records,
the tax rolls to get the people who are involved in the
300 -foot radius.
Q. And also to identify the owner of the property
that's involved in the application?
A. Correct
Q. And is this a list of mailing labels that you
used to give notice for the January 17 —
A. Yes, ma'am
Q. — 2008 meeting?
A. And all subsequent meetings.
Q. With regard to the January 17, 2008 meeting,
how was the notice sent?
A. These notices were sent in regular mail up in
here, and then according —
Q. You said up in here. Are you referring to
certain —
A. I'm talking about in this section up inhere.
Q. So you are talking about in the left -hand
column on the page, the first four?
A. Yes, uh -huh.
Q. So those were given notice by regular mail?
A. Yes.
Q. And then in the center column, the first four
Page 368
were given notice by regular mail?
A. Yes.
Q. And then in the right -hand column who was
given notice by regular mail?
A. One, two, three, the three on the top right
hand were given notice by regular mail, and then the
ones that have a different kind of a font to them, those
were sent out registered mail.
Q. And so that would be registered mail to the —
A. Ridgeway and Whitney, Brian Schillizzi,
David Gonzalez and Jason Baker.
Q. What day was that notice mailed?
MR. JAMIESON: I'm sorry, but maybe I'm in the
wrong one because all I see on the right -hand side of
the document I thought we were looking at would be
Ridgeway, Whitney, David Gonzalez. I don't see
Jason Baker on the right -hand side.
MS. AILIN: She was referring to an address on the
left.
THE WITNESS: On the left it has Jason Baker, Fury
LLC.
MR. JAMIESON: Okay. I'll deal with that on cross.
Thank you.
BY MS. AILIN:
Q. And when were the notices sent out for the
Precise Reporting Service
714 - 647 -9099
a' �
FURY REVOCATION HEARING - 4/18/2008
D irayt-.5' Gov w >iaJ
Page 371
MR. JAMIESON: Objection; move to strike,
speculation because "1 would have used it." She didn't
say I did.
BY MS. AIIAN:
Q. Is the list that's on C 41A —
A. Yes.
Q. — the list that you used for mailing notices
for the February 21st, 2008 meeting?
A. Yes.
Q. In terms of who you sent notices to by regular
mail for the February 21st, 2008 meeting, would that be
the same people who received notice by regular mad for
the January 17th meeting?
A. Yes, ma'am.
Q. And then for the February 21st, 2008 meeting,
did you give notice by certified mail to the same people
you gave notice to by certified mail for the January
17th meeting?
A. Yes, uh -huh.
Q. Did you receive any certified mail receipts
back for the notices that you sent for the February
21st, 2008 meeting?
A. No.
Q. And could you direct as to the notice that was
mailed regarding the February 21st, 2008 meeting?
Page 372
A. Okay. It would have been this one here
(indicating) with the date of February the 21st as the
hearing date.
MS. AIIJN: And that will be Exhibit C 41 C.
(City's Exhibit 41 C was
marked for identification and is
bound separately.)
THE HEARING OFFICER: That's 41 B, but ifs -- 41B
was originally the January 17th --
MS. AILIN: Notice.
THE HEARING OFFICER: -- notice?
MS. AfLIN: And 41C is the February 21st notice.
THE HEARING OFFICER: Oh, C. Thank you.
BY MS. AILIN:
Q. Was there also a meeting in March where Fury
was on the agenda that you sent notices out for?
A. Yes, ma'am. It was March 5th and March 10th.
Q. And where is the — we have here the list of
people that the notice of the March meeting was sent to?
A. Yes, that would have been the second listing
here.
Q. So now we are looking at the mailing list that
has a handwritten note in the middle of the bottom that
says "Used for mailing 2 -27 -2008 and 44 -2008?
A. Yes.
Precise Reporting Service
714 - 647 -9099
.L,6
Page 3691
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January 15, 2007 meeting?
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A. Those were mailed out on July —1'm sorry,
2
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not July, of course not. January the 4th.
3
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Q. And for the ones that were sent out by
4
5
certified mail, did you receive any signed return
1 5
6
receipts?
6
7
A. Nu, not for that date.
7
8
Q. And could you direct us to a copy of the
8
9
notice that was sent with regard to the January 17
9
10
meeting? 1
10
11
A. Okay. It — I don't have an exhibit number,
11
12
but it Is this one here (indicating), and it bas the
12
13
date of January the 17th on it.
13
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THE HEARING OFFICER So that's City 41B?
j 14
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MS. AILIN: Yes.
15
16
THE WITNESS: And at that same time -- should I add
16
17
some more information?
17
18
MR. JAMIESON: Am I looking at the same one?
18
19
MS. AILIN: Yes, that's the right one.
19
20
MR, JAMIESON: That's the one with the check mark
20
21
in the middle?
21
22
THE WITNESS: Correct.
22
23
BY MS. AIUN:
23
24
Q. Now, there was another meeting where Fury
24
25
was on the agenda that was on February —
25
Page 370
1
A. 21st.
1
2
Q. — 21st, 2008.
2
3
A. Uh-huh.
3
4
Q. Did you mail notices of that meeting?
4
5
A. Yes, ma'am.
5
6
Q. What list of addresses did you use for mailing
6
7
notices for that meeting?
7
8
A. There is a secondary copy of the same set of
8
9
labels (indicating).
9
10
Q. Well, let's — go ahead.
10
11
A. Which on the bottom has what I used for
11
12
mailing 2 -27 -2008.
12
13
Q. We—
13
14
THE HEARING OFFICER: And that's the one that does
14
15
not have "file copy" stamped on it?
15
16
THE WITNESS: That's correct, sir.
+ 16
17
BY MS. AILIN:
17
i8
Q. We are talking about a notice given for the
18
19
February 21st meeting. This second mailing list that
19
20
you have called our attention to has a handwritten
20
21
notation that says "Used for mailing February 27."
21
22
A. You are right I apologize. I would have
22
23
used the same first one here for the file copy. 1
23
24
apologize for that. You are correct.
24
25
Q. The one that we marked C 41A?
25
D irayt-.5' Gov w >iaJ
Page 371
MR. JAMIESON: Objection; move to strike,
speculation because "1 would have used it." She didn't
say I did.
BY MS. AIIAN:
Q. Is the list that's on C 41A —
A. Yes.
Q. — the list that you used for mailing notices
for the February 21st, 2008 meeting?
A. Yes.
Q. In terms of who you sent notices to by regular
mail for the February 21st, 2008 meeting, would that be
the same people who received notice by regular mad for
the January 17th meeting?
A. Yes, ma'am.
Q. And then for the February 21st, 2008 meeting,
did you give notice by certified mail to the same people
you gave notice to by certified mail for the January
17th meeting?
A. Yes, uh -huh.
Q. Did you receive any certified mail receipts
back for the notices that you sent for the February
21st, 2008 meeting?
A. No.
Q. And could you direct as to the notice that was
mailed regarding the February 21st, 2008 meeting?
Page 372
A. Okay. It would have been this one here
(indicating) with the date of February the 21st as the
hearing date.
MS. AIIJN: And that will be Exhibit C 41 C.
(City's Exhibit 41 C was
marked for identification and is
bound separately.)
THE HEARING OFFICER: That's 41 B, but ifs -- 41B
was originally the January 17th --
MS. AILIN: Notice.
THE HEARING OFFICER: -- notice?
MS. AfLIN: And 41C is the February 21st notice.
THE HEARING OFFICER: Oh, C. Thank you.
BY MS. AILIN:
Q. Was there also a meeting in March where Fury
was on the agenda that you sent notices out for?
A. Yes, ma'am. It was March 5th and March 10th.
Q. And where is the — we have here the list of
people that the notice of the March meeting was sent to?
A. Yes, that would have been the second listing
here.
Q. So now we are looking at the mailing list that
has a handwritten note in the middle of the bottom that
says "Used for mailing 2 -27 -2008 and 44 -2008?
A. Yes.
Precise Reporting Service
714 - 647 -9099
.L,6
FURY REVOCATION HEARING - 4/18/2008
6 (Pages 373 to 376)
Page 375
THE WITNESS: 10th.
MS. All-IN: It's a copy of the notice for March 5th
and March 10th.
MR, JAMIESON: Right.
BY MS. AlI.IN:
Q. Now, with regard to the certified mail —
mating with regard to the March meetings —
A. Uh -huh.
Q. — is there a document in your packet — was
there another document in the packet that you wanted to
call our attention to?
A. Yes, I had sent these four addressees for the
registered mail. These are the two that I had
referenced that were returned, and these are the two
pieces that I keep in my Idea to show that I had mailed
out everything to all these four here. However, I did
not put down what number was addressed to it so I
cannot tell you, but I can show you that I did send
these out here registered mail for that, but I only did
get two of them signed back here.
Q. And was notice given to the property owner by
a method other than mailing?
A. Yes, ma'am.
MR. JAMIESON: Excuse me. I'm sony, but if we are
going to talk about these other documents that
Page 376
Miss Varin held up, I would like to identify them for
the record, so we have got some record of what we are
doing.
MS. AILIN: I'm not sure we actually have copies of
these particular ones.
THE WITNESS: You do not.
MIL JAMIESON: On the package you gave me -- gave
us a little bit ago there is a copy of a similar
document.
MS. AILIN: They are not the same ones (indicating).
MR. JAMIESON: These arejust blank?
MS. AILIN: Yes.
MR. JAMIESON: Both of these documents are just
blank, but if we are going to use them for something,
can we identify them and make copies?
MS. AB-IN: We are not going to use them.
MR. JAMIESON: Shejust referenced it, so I'm going
to use it.
THE HEARING OFFICER: We need to move this.
MS. AILIN: Okay. So --
THE WITNESS: You had asked me --
MS. AILIN: Just one second. On the March notice
that will be Exhibit C 41 F.
(City's Exhibit 4 1 F was
marked for identification and is
Precise Reporting Service
714 - 647 -9099
Page 373)
1
MS. AILIN: We will snake that C 41 D.
1
2
( Citys Exhibit 41D was
2
3
marked for identification and is
3
4
bound separately.)
4
5
BY MS. AILIN:
5
6
Q. And looking at the list that we have marked as
6
7
C 4ID, who on this list received notice by regular mail?
7
B
A. The ones on the top here in the large font
8
9
labels would have received it in regular mail.
9
10
Q. The ones where labels are printed all in caps?
10
11
A. That's correct.
11
12
Q. And the others where the labels are printed in
12
13
caps and lower case, how was notice sent to those
13
14
persons?
14
15
A. That was registered mailed.
15
16
Q. That was by certified mail?
16
17
A. Certified mail, yes, uh -huh.
17
18
Q. Did you receive any certified mail receipts
18
19
back on notices you sent back for the March meeting?
19
20
A. Yes, I received one from Todd Ridgeway, and
20
21
the return date is March 3rd, and the other one I do not
21
22
— I cannot tell you what the signature is, but it's
22
23
dated 2 -29 as received by, and it was addressed to David
23
24
Gonzalez, president of Fury Management.
24
25
Q. And we have copies of those in the packet.
25
Page 374
1
That's the one, and we will mark that C 41E.
1
2
(City's Exhibit 41E was
2
3
marked for identification and is
3
4
bound separately.)
4
5
BY MS. AILIN:
5
6
Q. And do we have in the materials that you
6
7
brought with you a copy of the notice that was sent with
7
e
regard to the March meetings?
8
9
A. Yes, you do. And that is a similar notice,
9
10
but it has the dates of March 5th and March 10th noted
10
11
in the caption. Miss Main, can I also —
11
12
Q. I'm not finding a copy of the one that says
12
13
March 5th and March.
13
14
MS. PARKER: Do you want me to pass it around
14
15
before I make copies of it?
15
16
MR. JAMIESON: Do we have other copies of this or
16
17
just that one?
17
18
MS. AILIN: We are going to get other copies.
18
19
MR. JAMIESON: Are you going to mark that, though?
19
20
MS. Ail.IN: Yes.
20
21
MR. JAMIESON: So --
( 21
22
MS.AILIN: Wewill mark that C 41F, whenilcomes
22
23
back.
23
24
MR. JAMIESON: So C 41F is the copy of the document
24
25
that identifies March 5th and March
6 (Pages 373 to 376)
Page 375
THE WITNESS: 10th.
MS. All-IN: It's a copy of the notice for March 5th
and March 10th.
MR, JAMIESON: Right.
BY MS. AlI.IN:
Q. Now, with regard to the certified mail —
mating with regard to the March meetings —
A. Uh -huh.
Q. — is there a document in your packet — was
there another document in the packet that you wanted to
call our attention to?
A. Yes, I had sent these four addressees for the
registered mail. These are the two that I had
referenced that were returned, and these are the two
pieces that I keep in my Idea to show that I had mailed
out everything to all these four here. However, I did
not put down what number was addressed to it so I
cannot tell you, but I can show you that I did send
these out here registered mail for that, but I only did
get two of them signed back here.
Q. And was notice given to the property owner by
a method other than mailing?
A. Yes, ma'am.
MR. JAMIESON: Excuse me. I'm sony, but if we are
going to talk about these other documents that
Page 376
Miss Varin held up, I would like to identify them for
the record, so we have got some record of what we are
doing.
MS. AILIN: I'm not sure we actually have copies of
these particular ones.
THE WITNESS: You do not.
MIL JAMIESON: On the package you gave me -- gave
us a little bit ago there is a copy of a similar
document.
MS. AILIN: They are not the same ones (indicating).
MR. JAMIESON: These arejust blank?
MS. AILIN: Yes.
MR. JAMIESON: Both of these documents are just
blank, but if we are going to use them for something,
can we identify them and make copies?
MS. AB-IN: We are not going to use them.
MR. JAMIESON: Shejust referenced it, so I'm going
to use it.
THE HEARING OFFICER: We need to move this.
MS. AILIN: Okay. So --
THE WITNESS: You had asked me --
MS. AILIN: Just one second. On the March notice
that will be Exhibit C 41 F.
(City's Exhibit 4 1 F was
marked for identification and is
Precise Reporting Service
714 - 647 -9099
FURY REVOCATION HEARING - 4/18/2008
7 (Pages 377 to 380)
Page 379
(City's Exhibit 41H was
marked for identification and is
bound separately.)
THE HEARING OFFICER: Wasn4 the February 21st
planning commission meeting the time when the hearing
officer was authorized and then subsequently we
conducted a hearing on March 5th as a result of that
meeting? Can't we focus on the 21st February meeting?
The other ones were planning commission meetings where
different things took place, and it would help just to
focus there because what happened before doesn't matter
very much, I don't think, to what Mr. Ridgeway needed to
have notice of or Mr. Whitney- If you disagree, go
ahead.
MR. JAMIESON: I would disagree.
THE HEARING OFFICER: Well, make it focused.
MR. JAMIESON: The reason -- that's fine, but the
reason- -
THE HEARING OFFICER: I need to tell you something,
I am strongly persuaded that this is a waste of time to
go through this analysis because 1 have seen and know
Mr. Ridgeway. I went through that the other day. He
has been here. Whatever rights he has he has had every
opportunity to exercise, and so whatever you need to
attempt to demonstrate with respect to Mr. Ridgeway's
Page 380
failure of notice is not very important from my
perspective because he is clearly on notice and was
present and apparently has waived his right to
participate. But he knows about this proceeding. It's
very clear, and so what he was technically entitled to
appears to me to be adequate with what we have already
seen without this testimony. So let's focus and go.
MS. MEIN: I —
MR. JAMIESON: Let mejmt leave it as I
respectfully disagree with the hearing officer.
THE HEARING OFFICER: That's fine.
MS. AILJN: We now have copies that Miss Parker has
distributed of the notice that was posted on the
property that we will mark as C 41 H, and with that I
will move C 41 in evidence, and that is the conclusion
of the testimony that I had planned for Miss Varin.
MR. JAMIESON: There has been no cross- examination.
I would object to any of this being moved into evidence
because I think it still lacks foundation for reasons
that I'll point out in my cross - examination.
THE HEARING OFFICER: You are entitled to cross. I
am not going to preclude you from cross-examining. I'm
just telling you what my observations are and hope that
it will make sense for you to focus your
cross - examination and then move on.
Precise Reporting Service
714 - 647 -9099
Page 377
1
bound separately.)
1
2
MR- JAMIESON: This is a copy for me? Is this it?
2
3
MS. AILIN: 1 thought Kristi had given you one.
3
4
MR. JAMIESON: Before you move on, the other
4
5
documents that she held up a minute ago were included in
5
6
green documents --
6
7
MS. AILIN: We will make a copy.
7
8
MR. JAMIESON: -- and those green documents, are
8
9
they also blank?
9
10
MS. AtLIN: Which?
10
11
MR, JAMIESON: She showed us two white sheets of
11
12
paper and two green documents —
12
13
MS. AILIN: The green documents are C 41 E.
13
14
MR. JAMIESON: The originals are C 41E?
14
15
MS. AILIN: Yes.
15
16
MR. JAMIESON: Okay. Thank you.
i 16
17
BY MS. AILIN:
17
18
Q. Was there some other method that was used to
18
19
give notice to the owner!
19
20
A. Yes, if this is what you are asking me for.
20
21
.7549db06*ffy in question — and all properties are
21
22
posted. They have two postings. These are — and what
22
23
1 do is I just went into my file just to give you a copy
23
24
of what would have been actually posted on the
24
25
property. These are laminated by my people in
25
Page 378
1
duplicating, and then I have an employee go out
1
2
physically to post on the property, and this is the one
2
3
that would have been January the 17th posted on the
3
4
property.
4
5
Now, since these meetings were continued, I do
5
6
not put out new property postings. This should remain
6
7
posted on the property, and because I didn't — because
7
8
each meeting, subsequent meeting has been continued, I
8
9
do not put out new property notices. This should have
9
10
been — this was the first one that was posted.
10
11
Q. All right. And —
11
12
A. That's date January 17th.
12
13
MS. AILIN: Kristi is going to get her exercise
13
14
running back and forth to the copy machine.
14
15
We will mark as C 4 lG a copy of the two
15
16
certified mail slips that Miss Varin referred to.
16
17
MR. JAMIESON: The blank ones?
17
18
MS. AILIN: Yes.
18
19
(City's Exhibit 41G was
19
20
marked for identification and is
20
21
bound separately.)
21
22
BY MR. JAMIESON:
22
23
Q. And when IUdsti returns with a copy, we will
23
24
mark the two — we will mark the notice that was posted
24
25
on the property as Exhibit C 41H.
I 25
7 (Pages 377 to 380)
Page 379
(City's Exhibit 41H was
marked for identification and is
bound separately.)
THE HEARING OFFICER: Wasn4 the February 21st
planning commission meeting the time when the hearing
officer was authorized and then subsequently we
conducted a hearing on March 5th as a result of that
meeting? Can't we focus on the 21st February meeting?
The other ones were planning commission meetings where
different things took place, and it would help just to
focus there because what happened before doesn't matter
very much, I don't think, to what Mr. Ridgeway needed to
have notice of or Mr. Whitney- If you disagree, go
ahead.
MR. JAMIESON: I would disagree.
THE HEARING OFFICER: Well, make it focused.
MR. JAMIESON: The reason -- that's fine, but the
reason- -
THE HEARING OFFICER: I need to tell you something,
I am strongly persuaded that this is a waste of time to
go through this analysis because 1 have seen and know
Mr. Ridgeway. I went through that the other day. He
has been here. Whatever rights he has he has had every
opportunity to exercise, and so whatever you need to
attempt to demonstrate with respect to Mr. Ridgeway's
Page 380
failure of notice is not very important from my
perspective because he is clearly on notice and was
present and apparently has waived his right to
participate. But he knows about this proceeding. It's
very clear, and so what he was technically entitled to
appears to me to be adequate with what we have already
seen without this testimony. So let's focus and go.
MS. MEIN: I —
MR. JAMIESON: Let mejmt leave it as I
respectfully disagree with the hearing officer.
THE HEARING OFFICER: That's fine.
MS. AILJN: We now have copies that Miss Parker has
distributed of the notice that was posted on the
property that we will mark as C 41 H, and with that I
will move C 41 in evidence, and that is the conclusion
of the testimony that I had planned for Miss Varin.
MR. JAMIESON: There has been no cross- examination.
I would object to any of this being moved into evidence
because I think it still lacks foundation for reasons
that I'll point out in my cross - examination.
THE HEARING OFFICER: You are entitled to cross. I
am not going to preclude you from cross-examining. I'm
just telling you what my observations are and hope that
it will make sense for you to focus your
cross - examination and then move on.
Precise Reporting Service
714 - 647 -9099
FURY REVOCATION HEARING - 4/18/2008
6 1YdyC6 361 LU 36'3/
Page 3811 Page 383
1
MR. JAMIESON: 1 appreciate that. It's just that
1
Brian Schillizzi, David Gonzalez at his home address in
2
counsel made a motion to move them into evidence, and 1
2
Huntington Beach, David Gonzalez as President of Fury
3
object to that at this time. Should I proceed?
3
Management at 4221 Dolphin Striker Way and Jason Baker,
4
THE HEARING OFFICER: Okay.
4
Fury management in San Diego. So those, one, two,
5
5
three, four, five.
6
CROSS - EXAMINATION
6
BY MR. JAMIESON:
7
BY MR. JAMIESON:
7
Q. And Ridgeway — Miss Varin?
8
Q. Miss Varin —
j 8
A. Yes, sir.
9
THE HEARING OFFICER: Excuse me. Evidence is
9
Q. And Ridgeway and Whitney at 2804 Lafayette
10
admitted subject to the cross - examination.
10
were sent registered as well; is that correct?
11
MR. JAMISON: So my objections are overruled?
11
A. Yes, air.
12
THE HEARING OFFICER: Yes.
12
Q. Ridgeway at Newport Center Drive at the top
13
BY MR. JAMIESON:
13
right -hand corner —
14
Q. Miss Verone (sic), I would like to direct your
14
A. Yes, sir.
15
attention to what has been marked as C 41 A. Do you have
15
Q. Let me finish my question.
16
that in front of you?
16
A. Okay.
17
A. My name is Varin, not Verone.
i 17
Q. — was not sent registered, correct?
is
Q. Miss Varin?
18
A. Correct.
19
A. Right.
19
Q. And the reason for sending any notice
20
Q. And would you rather me say Miss, Mrs. or Ms.?
20
registered return receipt requested is so that you will
21
A. Whichever, whatever. It's Varin.
21
have a record of what was sent, when it was sent and get
22
Q. I just don't want to offend.
22
a record that it was actually received by the person to
23
A. Either if you like. That's fine, too.
23
whom it was sent; is that all true?
24
Q. I don't want to offend you.
24
A. I'm not responsible for if a person picks up
25
A- That's okay.
25
certified mail. I just send it out and trust that it
- - -' Page 382
Page 384
1
Q. Miss Varin, looking at C 41A, do you have that
1
will go in the mail and be delivered to the right
2
in front of you ? -
2
person, so I cannot answer you the way you want
3
A. Yes, this one here? Yes, uh -huh.
3
Q. Miss Varin —
4
Q. Looking at C 41A, if 1 understand your
4
A. Yes.
5
testimony correctly, the bottom three names of each
5
Q. —just listen to my question, please.
6
column you are saying were sent certified; is that
6
A. Uh -huh.
7
right?
7
Q. Is it correct that your understanding of what
8
MS. AILIN: Objection.
8
the city Municipal Code requires you to do when you sent
9
THE WITNESS: I had to use the bottom three plus
9
out notice of a public hearing is to send certain
10
the one on the right -hand side, Brian Schillizzi, so
10
notices registered return receipt requested?
11
it's four.
11
A. No, that's not — I'm not required by the
12
MS. AI JIN: Objection; the question misstated the
12
Municipal Code to send out registered mail. We only did
13
witness' testimony and I -- unfortunately 1 don t think
13
this because this is a revocation. It was an
14
Miss Varin understood that it misstated her testimony,
14
initiation.
15
but I'll object on that basis.
15
Q. Okay. So when you say we only did this,
16
THE HEARING OFFICER: Is the answer that she gave
16
that's because you — let me finish my question.
17
in error from either of your perspectives?
17
A. Uh -huh.
18
MS. AILIN: Yes.
18
Q. — because you made a decision that it was
19
THE WITNESS: I was trying to explain my answer
19
important that these five people that you've identified
20
here. It was the bottom three plus these two here that
20
here as having been sent registered mail, that they
21
were given registered mail notice.
21
actually get that notice; is that then true?
22
MS. AILIN: So —
22
A. That is determined by the planner, and the
23
THE HEARING OFFICER: Can you identify those
23
planner is the one who tells me what to do as far as the
24
specifically and then —
24
registered mail goes, yes, these five people designated
25
THE WITNESS: Yes, it was Ridgeway and Whitney,
25
or five addresses were designated.
Precise Reporting Service
714 - 647 -9099
a -�
FURY REVOCATION HEARING - 4/18/2008
9 (Pages 385 to 388)
Page 387
statement; is that right?
A. If you are asking me to — well --
Q. Is it untrue or not, Mrs. Varin, were these
labels provided by the applicant or were they not?
A. Normally they are provided by the applicant,
but I believe that in this case — I'm sorry. I'm
sorry. 1 believe that we — we did this through our IT
guy, and I apologize for that giving you misinformation
because it's a revocation — because it was a revocation
hearing, it was done by our guy in -house here, and he
did the 300 -foot radius that was done by
Dan Campanella, and I apologize for that.
Q. So the information that you provided here
today about these particular labels on C 41A —
A. Uh -huh, uh -huh.
Q. —is information that you obtained from an
information technology person whose name you just
identified —
A. Yes.
Q. — within the City of Newport Beach, right?
A. Yes.
Q. And you understood that at the time you
obtained this information that it was important that
this information be accurate information about where
these people were located and what addresses were being
Page 388
used; is that right?
A. Yes, uh -huh.
Q. And at the time that you obtained this
information, did you make any effort at all to confirm
the accuracy of the address information for the people
that are identified on these labels?
MS. AILIN: Objection; relevance.
MR. JAMIESON: I think it's a poor question.
THE HEARING OFFICER: Unfortunately -- it is
relevant. Overruled.
THE WITNESS: The information that we get is from
the tax rolls, and our IT person -- I'm not sure what
software he uses. I mean, you are getting a little bit
beyond my purview as to how we -- what he uses to get
this 300 -1oot radius information, and I apologize. I
don't have that information.
BY MR. JAMIESON:
Q. So you don't know. You don't know —
A. I do not know what technique he used, that's
correct.
Q. And you don't know whether or not the
addresses that are identified on these labels that you
provided here today, C 41A, whether or not those
addresses were accurate addresses for the people
identified as of the time that you said you sent them
Precise Reporting Service
714 - 647 -9099
o ,4
Page 385!
1
Q. And that planner that told you to send
1
2
registered mail to these five particular addresses was
2
3
who?
3
4
A. Miss Ung. '�,
4
5
Q. I'm sorry?
5
6
A. Miss Ung.
6
7
Q. Miss Ung?
7
8
A. Uh -huh. 1
8
9
Q. And Miss Ung is a planner in the City of
9
10
Newport Beach?
10
11
A. Yes, uh -huh.
11
12
Q. Did Miss Ung tell you specifically to send !
12
13
them to these particular addresses? !
13
14
A. Yes, uh -huh.
14
15
Q. Did you and Miss Ung talk about whether or not
15
16
a notice should be sent to Ridgeway and Whitney at this
16
17
Newport Center Drive address at the top right -hand i
17
18
corner registered or regular mad?
18
19
A. Regular mail.
19
20
Q. So she told you that as well; is that correct? !
20
21
A. I'm not sure what you are asking me for. As ;
21
22
far as this address here, this is the one that 1
22
23
normally send out because the labels that are provided
23
24
by the applicant.
24
25
Q. Miss Varin?
25
9 (Pages 385 to 388)
Page 387
statement; is that right?
A. If you are asking me to — well --
Q. Is it untrue or not, Mrs. Varin, were these
labels provided by the applicant or were they not?
A. Normally they are provided by the applicant,
but I believe that in this case — I'm sorry. I'm
sorry. 1 believe that we — we did this through our IT
guy, and I apologize for that giving you misinformation
because it's a revocation — because it was a revocation
hearing, it was done by our guy in -house here, and he
did the 300 -foot radius that was done by
Dan Campanella, and I apologize for that.
Q. So the information that you provided here
today about these particular labels on C 41A —
A. Uh -huh, uh -huh.
Q. —is information that you obtained from an
information technology person whose name you just
identified —
A. Yes.
Q. — within the City of Newport Beach, right?
A. Yes.
Q. And you understood that at the time you
obtained this information that it was important that
this information be accurate information about where
these people were located and what addresses were being
Page 388
used; is that right?
A. Yes, uh -huh.
Q. And at the time that you obtained this
information, did you make any effort at all to confirm
the accuracy of the address information for the people
that are identified on these labels?
MS. AILIN: Objection; relevance.
MR. JAMIESON: I think it's a poor question.
THE HEARING OFFICER: Unfortunately -- it is
relevant. Overruled.
THE WITNESS: The information that we get is from
the tax rolls, and our IT person -- I'm not sure what
software he uses. I mean, you are getting a little bit
beyond my purview as to how we -- what he uses to get
this 300 -1oot radius information, and I apologize. I
don't have that information.
BY MR. JAMIESON:
Q. So you don't know. You don't know —
A. I do not know what technique he used, that's
correct.
Q. And you don't know whether or not the
addresses that are identified on these labels that you
provided here today, C 41A, whether or not those
addresses were accurate addresses for the people
identified as of the time that you said you sent them
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Page 386''1
1
A. But there was no determination to send this
1
2
out registered mail to Newport Center.
2
3
Q. Was there a determination not to send it out
3
4
to the address on Newport Center by registered [nail?
4
5
A. No.
5
6
Q. You said that these are the labels that are
6
7
provided by the applicant; is that right?
7
8
A. That's correct, uh -huh.
8
9
Q. In this particular instance where there is a
9
10
revocation of an existing conditional use permit, the
10
11
applicant did not provide these labels, did they?
11
12
MS. AILIN: Objection; vague and ambiguous as to
12
13
who the applicant is.
13
14
MR. JAMIESON: She used the term "applicant." I'm
14
15
using her term
15
16
Q. Is it correct that in this case the applicant
16
17
that you mentioned did not provide these labels?
17
18
A. Correct, correct.
18
19
THE HEARING OFFICER: She did use the word
19
20
"applicant."
20
21
BY MR. JAMIESON:
21
22
Q. In fact, in this particular case the statement
22
23
that you made when testifying for Miss Ailin and a
23
24
minute ago that this list of addresses was provided by,
24
25
quote, unquote, the applicant, that was an untrue
25
9 (Pages 385 to 388)
Page 387
statement; is that right?
A. If you are asking me to — well --
Q. Is it untrue or not, Mrs. Varin, were these
labels provided by the applicant or were they not?
A. Normally they are provided by the applicant,
but I believe that in this case — I'm sorry. I'm
sorry. 1 believe that we — we did this through our IT
guy, and I apologize for that giving you misinformation
because it's a revocation — because it was a revocation
hearing, it was done by our guy in -house here, and he
did the 300 -foot radius that was done by
Dan Campanella, and I apologize for that.
Q. So the information that you provided here
today about these particular labels on C 41A —
A. Uh -huh, uh -huh.
Q. —is information that you obtained from an
information technology person whose name you just
identified —
A. Yes.
Q. — within the City of Newport Beach, right?
A. Yes.
Q. And you understood that at the time you
obtained this information that it was important that
this information be accurate information about where
these people were located and what addresses were being
Page 388
used; is that right?
A. Yes, uh -huh.
Q. And at the time that you obtained this
information, did you make any effort at all to confirm
the accuracy of the address information for the people
that are identified on these labels?
MS. AILIN: Objection; relevance.
MR. JAMIESON: I think it's a poor question.
THE HEARING OFFICER: Unfortunately -- it is
relevant. Overruled.
THE WITNESS: The information that we get is from
the tax rolls, and our IT person -- I'm not sure what
software he uses. I mean, you are getting a little bit
beyond my purview as to how we -- what he uses to get
this 300 -1oot radius information, and I apologize. I
don't have that information.
BY MR. JAMIESON:
Q. So you don't know. You don't know —
A. I do not know what technique he used, that's
correct.
Q. And you don't know whether or not the
addresses that are identified on these labels that you
provided here today, C 41A, whether or not those
addresses were accurate addresses for the people
identified as of the time that you said you sent them
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FURY REVOCATION HEARING - 4/18/2008
10 (Pages 389 to 392)
Page 391
you suggesting that she go knock on the door and find
out who lives there?
MR. JAMIESON: No, I'm suggesting that there be
some credibility to the procedure. I understand that
Miss Varin, I'm sure, attempted to do her bwtjob
possible. I'm not questioning that she has attempted to
do her best job possible. I have a right on behalf of
my client to question whether or not the process itself
was done in an appropriate way so that we have got
credible information. That's what rm trying to ask.
What is making this process longer right now is getting
a "yes" or "no" or an actual responsive answer from
Miss Varin. I appreciate that this is not a procedure
that Miss Varin is probably used to, but I would like to
get some answers to these information questions.
THE HEARING OFFICER: Let's try to focus, please.
Frankly, I believe the law is that notice must have be
given to the people on the latest tax rolls, not
necessarily where they currently exist five or ten
minutes ago. So let's focus in onjust what you did and
proceed accordingly.
MR. JAMIESON: Perfect.
THE HEARING OFFICER: It doesn't matter where they
live now or where you live.
MR. JAMIESON: Absolutely, absolutely, and I agree
Page 392
with that.
Q. So, Miss Varin, if you can lean to your right
so I can see you, please.
A. Yeah.
Q. Miss Varin, can you move your chair. We only
have a small area, and I can't see you.
Miss Varin, let me start out a little
different way. Looking at C 41A, is there anything on
this document that provides a date that reflects when
these labels were obtained?
A No, it doesn't.
Q. Do you have any knowledge of when these
particular labels were actually obtained?
A. Well, we got them when we were doing the first
noticing, so —
Q. Do you have any knowledge, Miss Varin, of
whether or not —
A. Our —
Q. — tax rolls were consulted for this? Do you
have any personal knowledge, not what you heard from
somebody else, not what you asked somebody else, do you
have any personal knowledge of the tax rolls, the
information on the tax rolls were used for this
information on C 41A?
A. No, I do not have any personal knowledge of
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Page 3891
1
out; is that all woe?
1
2
A. No.
2
3
Q. That is not true?
3
4
A. These are accurate addresses that he got. 1
4
5
just can't tell you how he got them, what kind of
5
6
software he used.
6
7
Q. If you don't know how that gentleman got these
1 7
8
addresses, you don't know if those addresses are
8
9
accurate, do you?
9
10
A. Yes, I do. I can look at a map, and you can
10
II
see the addresses right on the map, sir. We have
11
12
several layers of information with addresses and
12
13
numbers.
13
14
Q. Miss Varin?
14
15
A. Yes, sir.
15
16
Q. You don't know whether or not, for instance,
16
17
David Gonzalez, as of whatever time this label was used,
17
18
actually resided at Atlantis Circle. As you sit here
18
19
today, is that true; yes or no?
19
20
A. Excuse me just a moment.
20
21
Q. Miss Varin, I'm not asking you to look at any
21
22
documentation.
22
23
A. Well, you are asking me to verify the
23
24
addresses that I'm using, so —
24
25
Q. Miss Varin, Miss Varin, I need you to please
25
Page 390
1
answer my question, and then I will ask you to look at a
1
2
document if I need you to look at a document or
2
3
Miss Ailin will ask you. Miss Varin —
3
4
THE HEARING OFFICER: You have to answer the
4
5
questions that are being asked of you here, and then
5
6
whatever additional testimony needs to be done --
6
7
THE Wfi'NESS: Okay.
7
8
THE HEARING OFFICER: — can be done.
8
9
BY MR. JAMIESON:
9
10
Q. So, Miss Varin, 1 would like you to put away
10
11
the sluff that you have got. 1 would like you to answer
11
12
my question.
12
13
As you sit here today, you don't know where
13
14
Mr. Gonzalez actually lives, do you, just as an example?
14
15
A. Well, I can look at this address label and
15
16
tell you, yes, this is where his address is.
16
17
Q. 1 could write out my address or what I tell
17
18
you my address is at my home, and you wouldn't know if 1
18
19
actually live there or not, correct?
19
20
A. Only if I looked it up on a radius map, if
20
21
that's correct, the map is correct.
21
22
MS. AII.N: I'm sorry, but this is getting very
22
23
close to a situation where somebody stales their name at
23
24
the beginning of a deposition and the objection is
24
25
hearsay. You get someone's address from a source -- are
25
10 (Pages 389 to 392)
Page 391
you suggesting that she go knock on the door and find
out who lives there?
MR. JAMIESON: No, I'm suggesting that there be
some credibility to the procedure. I understand that
Miss Varin, I'm sure, attempted to do her bwtjob
possible. I'm not questioning that she has attempted to
do her best job possible. I have a right on behalf of
my client to question whether or not the process itself
was done in an appropriate way so that we have got
credible information. That's what rm trying to ask.
What is making this process longer right now is getting
a "yes" or "no" or an actual responsive answer from
Miss Varin. I appreciate that this is not a procedure
that Miss Varin is probably used to, but I would like to
get some answers to these information questions.
THE HEARING OFFICER: Let's try to focus, please.
Frankly, I believe the law is that notice must have be
given to the people on the latest tax rolls, not
necessarily where they currently exist five or ten
minutes ago. So let's focus in onjust what you did and
proceed accordingly.
MR. JAMIESON: Perfect.
THE HEARING OFFICER: It doesn't matter where they
live now or where you live.
MR. JAMIESON: Absolutely, absolutely, and I agree
Page 392
with that.
Q. So, Miss Varin, if you can lean to your right
so I can see you, please.
A. Yeah.
Q. Miss Varin, can you move your chair. We only
have a small area, and I can't see you.
Miss Varin, let me start out a little
different way. Looking at C 41A, is there anything on
this document that provides a date that reflects when
these labels were obtained?
A No, it doesn't.
Q. Do you have any knowledge of when these
particular labels were actually obtained?
A. Well, we got them when we were doing the first
noticing, so —
Q. Do you have any knowledge, Miss Varin, of
whether or not —
A. Our —
Q. — tax rolls were consulted for this? Do you
have any personal knowledge, not what you heard from
somebody else, not what you asked somebody else, do you
have any personal knowledge of the tax rolls, the
information on the tax rolls were used for this
information on C 41A?
A. No, I do not have any personal knowledge of
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a'10
FURY REVOCATION HEARING - 4/18/2008
11 Irages 373 UU .5vol
Page 395
THE DARING OFFICER; One moment, please. Are
sending these registered mail or sending them certified
mail? All the notices indicate certified.
THE VATNESS: These are certified.
THE HEARING OFFICER: May we correct the record
that throughout the misuse of the word "registered" we
actually mean certified; is that agreed to?
MR. JAMIESON: Certainly.
MS. AILIN: Yes.
BY MR. JAMIESON:
Q. Okay. And given the importance of sending out
the notice to people that are identified on the labels,
and hopefully that have correct addresses on the labels,
one of the benefits that you get by sending it out
certified is you get a sheet of paper that shows a
certified mail receipt that reflects the actual date
that it was deposited in the mall to the people on the
labels, true?
A. Are you talking about the dale and time —
Q. No, I'm not.
A. — on this one here?
Q. No, I'm not. Stay with me, please. When you
send something certified
A. Right, okay.
Q. Miss Varin, when you send something
Page 396
certified —
A. Right.
Q. — one the benefits and the reason that you
sent it out is so that you have a record of what was
sent out and the time when it was sent out, true?
A. Correct.
Q. And the document that's used for that you have
kindly proceeded an example of in C 41G; is that right?
A. I believe so. I'm sure it is.
Q. I am holding it up, so you can see it.
A. Yes.
Q. Is it correct that you do not have in your
records produced here today a certified mail receipt
reflecting that this January 17th hearing notice was
sent out to any of those five people that you identified
on those labels on any particular date; is that true?
A. Other than just these two here that I just
showed you, that's correct.
Q. For purposes of the record, when you say other
than these two here —
A. Yes.
Q. Hold on -- that you held up for purposes of
the record, those are the green cards that are actually
the item that gets signed for when it gets delivered,
correct?
Precise Reporting Service
714- 647 -9099
�- -')t
Page 3931
1
tax rolls being used. I wasn't present.
1
2
Q, And you — and you were not present when
2
3
anybody else may have looked at any tax rolls either,
3
4
were you?
4
5
A. That's correct, because that's done o6 -site.
5
6
That particular thing is done off -site.
6
7
Q. Done offsite by people other than city
7
8
personnel, correct?
8
9
A. Uh -huh.
9
10
Q. And you have no personal knowledge of whether
10
11
or not whatever information those people off-site did
11
12
was accurate, do you? You have no personal knowledge of
12
13
that?
13
14
A. No, but I have faith in them that they
14
15
would—
15
16
Q. And there is nothing on this document, C 41A,
16
17
that Identifies what date this information is accurate
17
18
as of; is that right?
16
19
A. Correct, there is no date on that piece of
19
20
paper that you are handling, that's correct.
20
21
Q. All right. Now, it is your contention that
21
22
the labels that are identified on C 41A are actually
22
23
labels that were used to send a notice that was
23
24
identified here as C 41B; is that right?
24
25
A. Yes, I believe so. Yes, uh -huh.
25
11 Irages 373 UU .5vol
Page 395
THE DARING OFFICER; One moment, please. Are
sending these registered mail or sending them certified
mail? All the notices indicate certified.
THE VATNESS: These are certified.
THE HEARING OFFICER: May we correct the record
that throughout the misuse of the word "registered" we
actually mean certified; is that agreed to?
MR. JAMIESON: Certainly.
MS. AILIN: Yes.
BY MR. JAMIESON:
Q. Okay. And given the importance of sending out
the notice to people that are identified on the labels,
and hopefully that have correct addresses on the labels,
one of the benefits that you get by sending it out
certified is you get a sheet of paper that shows a
certified mail receipt that reflects the actual date
that it was deposited in the mall to the people on the
labels, true?
A. Are you talking about the dale and time —
Q. No, I'm not.
A. — on this one here?
Q. No, I'm not. Stay with me, please. When you
send something certified
A. Right, okay.
Q. Miss Varin, when you send something
Page 396
certified —
A. Right.
Q. — one the benefits and the reason that you
sent it out is so that you have a record of what was
sent out and the time when it was sent out, true?
A. Correct.
Q. And the document that's used for that you have
kindly proceeded an example of in C 41G; is that right?
A. I believe so. I'm sure it is.
Q. I am holding it up, so you can see it.
A. Yes.
Q. Is it correct that you do not have in your
records produced here today a certified mail receipt
reflecting that this January 17th hearing notice was
sent out to any of those five people that you identified
on those labels on any particular date; is that true?
A. Other than just these two here that I just
showed you, that's correct.
Q. For purposes of the record, when you say other
than these two here —
A. Yes.
Q. Hold on -- that you held up for purposes of
the record, those are the green cards that are actually
the item that gets signed for when it gets delivered,
correct?
Precise Reporting Service
714- 647 -9099
�- -')t
Page 3941
1
Q. Thanks. Is there anything on this document, C
1
2
41B, that identifies what date C 41B was actually sent
2
3
out to anybody?
3
4
A. No.
4
5
Q. Is there a requirement, to your knowledge,
5
6
within the City of Newport Beach that notice of a
6
7
revocation of a conditional use permit be sent out a
7
8
certain number of days in advance of a hearing date?
8
9
A. I believe it's ten days. That's what I was
9
10
told by one of the planners.
10
11
Q. Is there any indication on this document, C
11
12
41B, as to whether or not this document was sent out
12
13
with any of these labels in C 41A at any time before ten
13
14
days before the hearing date of January 17th?
14
is
A. The only thing I can tell you is that I do on
is
16
my personal calendar mark when I have the mailings going
16
17
out and the notice to the newspaper, which are the same
17
18
thing, the same statement, so this would have a date
18
19
here, so....
19
20
Q. Now, Miss Varin, you indicated that you were
20
21
told by the planner Miss Ung that those rive names were
1 21
22
particularly important; and therefore, they needed to be
I 22
23
sent out registered return receipt requested, correct?
1 23
24
A. Uh -huh.
24
i
25
Q. Is that "yes"?
25
11 Irages 373 UU .5vol
Page 395
THE DARING OFFICER; One moment, please. Are
sending these registered mail or sending them certified
mail? All the notices indicate certified.
THE VATNESS: These are certified.
THE HEARING OFFICER: May we correct the record
that throughout the misuse of the word "registered" we
actually mean certified; is that agreed to?
MR. JAMIESON: Certainly.
MS. AILIN: Yes.
BY MR. JAMIESON:
Q. Okay. And given the importance of sending out
the notice to people that are identified on the labels,
and hopefully that have correct addresses on the labels,
one of the benefits that you get by sending it out
certified is you get a sheet of paper that shows a
certified mail receipt that reflects the actual date
that it was deposited in the mall to the people on the
labels, true?
A. Are you talking about the dale and time —
Q. No, I'm not.
A. — on this one here?
Q. No, I'm not. Stay with me, please. When you
send something certified
A. Right, okay.
Q. Miss Varin, when you send something
Page 396
certified —
A. Right.
Q. — one the benefits and the reason that you
sent it out is so that you have a record of what was
sent out and the time when it was sent out, true?
A. Correct.
Q. And the document that's used for that you have
kindly proceeded an example of in C 41G; is that right?
A. I believe so. I'm sure it is.
Q. I am holding it up, so you can see it.
A. Yes.
Q. Is it correct that you do not have in your
records produced here today a certified mail receipt
reflecting that this January 17th hearing notice was
sent out to any of those five people that you identified
on those labels on any particular date; is that true?
A. Other than just these two here that I just
showed you, that's correct.
Q. For purposes of the record, when you say other
than these two here —
A. Yes.
Q. Hold on -- that you held up for purposes of
the record, those are the green cards that are actually
the item that gets signed for when it gets delivered,
correct?
Precise Reporting Service
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�- -')t
FURY REVOCATION HEARING - 4/18/2008
12 (Pages 397 to 400)
Page 399
numbers on it that correlate to the numbers that are on
that —
A. Yes.
Q. — certified return receipt?
A. Uh -huh.
Q. Is that "yes "?
A. Yes.
Q. That's all right. She just can't write down
"uh- huh."
Now, is it correct, then, that you have no
certified mail receipt showing any of the addressees
that reflect on C 41A the January 17th notice of C 41B?
A. Thais correct.
Q. Now, do you have a green card reflecting that
any of those notices actually got anywhere —
A. No.
Q. — for the January 17th hearing?
A. Thais correct, they were never returned to
me.
Q. Because if they were returned to you, you
would take those green cards, you would attach them to
the receipt, which you would attach to the copies of
labels, and you would have a record of that, right?
A. Uh -huh.
Q. Is that right?
Page 400
A. Yes, I'm sorry.
Q. Because it's important, right?
A. Yeah.
Q. Now, just to recap here, for the January 17th
hearing we don't know what date it went out — we don't
have any record of what date it went out, and we don't
have any record of it ever being received by anybody;
all true?
A. Other than my calendars that I'm referring to
when I send things out, you are right.
Q. Okay.
A. But I can tell you I sent it out on the 41h.
MR. JAMIESON: rm going to move to strike as being
nonresponsive.
Q. That was a general statement, l usually do —
THE HEARING OFFICER: Your question has been when
she sent these, and you charged her with the premise
that she didn't know, and shejust said all I know is
that I sent them on the 4th. That seems responsive to
the line of questioning.
BY MR- JAMIESON:
Q. Okay. Miss Varin, what document are you
referring to on your calendar?
A. My calendar?
Q. What you have in front or you?
Precise Reporting Service
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�, / a,
Page 397!
1
A. Correct.
1
2
Q. But you realized that C 41G is not that
2
3
document?
3
4
A. Correct.
4
5
Q. C 41G is actually the receipt that gets
5
6
stamped or otherwise reflects the date that you put the
6
7
document in the mail, true? You understand that?
7
6
A. Well, I don't— I do not stamp them that I
1 8
9
put them in the mail, so no, there Is no — is there a
9
10
date on that? Are you saying that there is a date stamp
10
11
on there.
11
12
Q. No, but you provided C 41G as blanks, and it
12
13
doesn't reflect anything.
13
14
A. There is no date on there, correct? Is
1 14
15
that —
15
16
Q. There is nothing on there.
16
17
A. Right.
17
18
Q. But when you send out your letters certified,
is
19
you fill out a sheet that looks like this certified mail
19
20
receipt?
20
21
A — uh -huh.
1 21
22
Q. — on the date that you send it out. It's
22
23
dated. It shows the addressee. It's got a number on
23
24
the left -hand side that identifes the piece of mail?
24
25
A. Correct.
25
Page 398
1
Q. And that way it goes out with the envelope —
1
2
strike that
1 2
i
3
That way it goes out — it shows the date that
! 3
i
4
the envelope went out, correct?
4
5
A. I guess so, yes.
5
6
Q. You have probably sent out lots of certified
6
7
mail, right?
7
8
A. No, not really.
9
9
THE HEARING OFFICER: What date are you currently
9
10
working on? For what hearing?
10
11
MR. JAMIESON: For January 17th.
11
12
THE HEARING OFFICER Is there relevance to January
12
13
17th as compared to the hearing processes that we are in
13
14
MW9
14
15
MR. JAMIESON: Without question, absolutely without
15
16
question.
16
17
THE HEARING OFFICER: All right
17
18
BY MR. JAMIESON:
18
19
Q. Now, Miss Varin?
19
20
A. Yes, sir.
20
21
Q. The green document, that little green card
21
22
that goes out, that actually gets taped onto the
22
23
envelope that gets sent out to the addressee, right?
23
24
A. Yes.
24
25
Q. And that little green card has a series of
25
12 (Pages 397 to 400)
Page 399
numbers on it that correlate to the numbers that are on
that —
A. Yes.
Q. — certified return receipt?
A. Uh -huh.
Q. Is that "yes "?
A. Yes.
Q. That's all right. She just can't write down
"uh- huh."
Now, is it correct, then, that you have no
certified mail receipt showing any of the addressees
that reflect on C 41A the January 17th notice of C 41B?
A. Thais correct.
Q. Now, do you have a green card reflecting that
any of those notices actually got anywhere —
A. No.
Q. — for the January 17th hearing?
A. Thais correct, they were never returned to
me.
Q. Because if they were returned to you, you
would take those green cards, you would attach them to
the receipt, which you would attach to the copies of
labels, and you would have a record of that, right?
A. Uh -huh.
Q. Is that right?
Page 400
A. Yes, I'm sorry.
Q. Because it's important, right?
A. Yeah.
Q. Now, just to recap here, for the January 17th
hearing we don't know what date it went out — we don't
have any record of what date it went out, and we don't
have any record of it ever being received by anybody;
all true?
A. Other than my calendars that I'm referring to
when I send things out, you are right.
Q. Okay.
A. But I can tell you I sent it out on the 41h.
MR. JAMIESON: rm going to move to strike as being
nonresponsive.
Q. That was a general statement, l usually do —
THE HEARING OFFICER: Your question has been when
she sent these, and you charged her with the premise
that she didn't know, and shejust said all I know is
that I sent them on the 4th. That seems responsive to
the line of questioning.
BY MR- JAMIESON:
Q. Okay. Miss Varin, what document are you
referring to on your calendar?
A. My calendar?
Q. What you have in front or you?
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Page 401 Page 403
1
A. Right here, yes.
1
sure that you would have a record, true?
2
Q. Does your calendar reflect that you sent on
2
A. No, it's just to make sure that it went out to
3
the 4th any document to any of the people by name that
3
the proper people that I was told to send it out to
4
you have identified here as having registered mail or
4
Q. All right. Let's focus our attention now on
5
certified mail?
5
the February 21 st hearing. The list of labels that you
6
A. Not by name, no, that's correct. I do not put
6
said you used for the 21st, that's the same list of
7
down the names of the labels of the blue cards or any
7
labels that you reflected in C 41A; is that right?
8
notices that I put down. The only thing I can tell you
8
A. That's correct, that's correct.
9
is that my schedule is, this is what I do, and this is
9
Q. Now, for the hearing on the 21st, do you have
10
on the Friday before, so that's all I can tell.
10
any documents that reflect the actual date of sending
11
Q. You have that in front of you right now?
11
out any notice for the February 21st hearing?
12
A. Yes.
12
A. No.
13
Q. Is there anything written on your calendar in
13
Q. You don't have the certified mail receipt?
14
front of you?
14
A. That's correct.
15
A. On my calendar what I do is just —
15
Q. You don't have the return green card signed by
16
Q. I'm not asking what you do. Is there anything
16
anybody?
17
written on that calendar for the date?
17
A. That's correct, do not.
18
A. On the 4th?
18
Q. And in between sending out the notice for the
19
Q. Yes.
19
January hearing, as you said, and in between — and 1
20
A. No, there is not.
20
assume you are testifying you did send out notice for
21
Q. So when you are testifying about what you did
21
the February 21, you just don't have records; is that
22
on the 4th information or what you would expect to do on
22
right?
23
the 4th, you are saying I would normally look at
23
A. That's correct, uh -huh.
24
whatever date the hearing is. I would count back, and
24
Q. In between those two dates you never checked
25
then that would be the date that I would send things
25
to confirm that the addresses that you were sending it
Page 4021
- - - -
-_- Page 404
1
out. Is that what you are saying?
1
to were accurate addresses, did you?
2
A. Yes.
2
A. No, sir, I did not.
3
Q. But you don't have an independent recollection
3
Q. And I'm sure that before you sent out your
4
as you sit here today of — on that particular day for
4
notice for February 21st —
5
that particular hearing with these particular
I 5
THE HEARING OFFICER: Mr. Jamieson, are you
6
addressees, do you?
I 6
focusing on notice to Mr. Ridgeway now or are you
7
A. Yes, I do have an independent recollection. I
i 7
generally speaking of all of the mailings? Because I
8
did send them out on January the 4th, which is what I'm
8
thought we were focusing on notice to the landlord.
9
trying to tell you. I sent these out January the 4th.
9
MR. JAMIESON: I can do that. I was trying to do
10
Q. You sent — so you can testify under penalty
10
it in a little more generalized fashion, but I can do
11
of perjury here —
11
that. That's fine.
12
A. Yes, sir.
12
Q. Miss Varin, let's direct your attention to
13
Q. Wait just a moment. You can testify under
13
February 21st.
14
penalty of perjury here In this proceeding on April
14
A. Yes, sir.
15
18th, that three months ago In the beginning of January
15
Q. Looking at C 41C, that's your notice of the
16
you sent out five letters to particular addresses
16
February 21st hearing, right?
17
concerning Fury; is that what you are telling me?
17
A. Yes, uh -huh.
18
A. Yes, sir, that is exactly what I'm telling
18
Q. There is nothing on this notice that
19
you.
19
Identifies the date this was sent out, is there?
20
Q. But you have no records of that? You have no
20
A. That's correct.
21
records of it?
21
Q. And there is nothing on this notice that
22
A. No, that's correct, I do not, but that is the
22
identifies to whom it was sent, is there?
23
way—
23
A. That's correct.
24
Q. And the purpose — and the purpose of doing it
24
Q. And looking over at C 41A, which is that
25
certified, and the reason that you did it, is to make
25
label --
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Page 407
certified when you sent out the things on February 21st,
right? That is, you filled out the certified mail
receipt?
A. Yes, correct, uh -huh.
Q. And you also filled out the green card and
taped it t Mhe letter; Is that correct?
A. Yes, uh -huh.
Q. And yet you never got any of those back did
you?
A. That's correct, that's correct.
Q. So you have no documents, no records here that
reflect that Todd Ridgeway or Ridgeway, Whitney or
Ridgeway of Whitney actually got mailed these documents
or that they had seen these documents for the February
21st hearing, right?
A. That's correct.
Q. Now, you did identify a notice for March 5th
and March 10th, which we have identified here as C 41F,
correct?
A. Yes, I believe — yes. I'm sorry.
Q. Now, the labels that you utilized to send out
notice for this particular hearing or these two
hearings, March 5th and March 10th, you have used a
different set of labels that we have now identified as
C 41 D; is that right?
Page 408
A. Let me just have —
Q. That's this one (indicating}
A. Well, actually, they are the same labels on
the top. If you want to look at them just to compare,
they are the same labels, but when I added the addresses
for the original ones I removed the name of Jason Baker,
and I used David Gonzalez and then a Brian —
Brian Schillizzi, and then I did Ridgeway and Whitney,
and then t added you, Soloman and Saltsman, Jamieson,
SO....
Q. The information that you obtained for this set
of labels that you have got a copy here for us that is
identified C 41D, where did you get that information as
to the accuracy of those addresses?
A. That was given to me by the planner.
Q. Did the planner — strike that.
Did you, as of the date that you utilized
these labels in C 41D, do anything to update or look to
see if the address for Ridgeway and Whitney was
accurate?
A. You mean the 2804 Lafayette?
Q. Right.
MS. AILIN: Objection; relevance.
MR. JAMMSON: Thafs not what I'm asking. Pm not
asking--
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1
A. Uh -huh.
1
2
Q. — there is nothing on this Bst of labels
2
3
that identified when the notice for the 21st, which is
3
4
Exhibit C 41 C, was sent out, is there?
4
5
A. No, sir, there is not, but I wouldn't have the
5
6
labels if I didn't use them to send out notices.
6
7
Q. The labels that you obtained for the hearing
7
6
on the 21 st, you obtained those after the hearing of
8
9
January 17th? i
9
10
A. These are the same that — I used the same
in
11
labels. j
11
12
Q. Well, don't you — if they are labels, don't
12
13
you pull them off a sheet and stick them on an envelope
13
14
and mail them out?
14
15
A. Uh -huh. I
15
16
Q. Is that "yes"?
16
17
A. Yes, sic
17
18
Q. So before the January 17th hearing did you get
18
19
multiple copies of those labels?
19
20
A. No.
20
21
Q. So after January 17 you must have requested a
21
22
new set of labels, true?
22
23
A. No, I just used this as the master, and I used
23
24
another — I made up my own set of labels.
24
25
Q. So you actually printed the labels?
25
14 (Pages 405 to 408)
Page 407
certified when you sent out the things on February 21st,
right? That is, you filled out the certified mail
receipt?
A. Yes, correct, uh -huh.
Q. And you also filled out the green card and
taped it t Mhe letter; Is that correct?
A. Yes, uh -huh.
Q. And yet you never got any of those back did
you?
A. That's correct, that's correct.
Q. So you have no documents, no records here that
reflect that Todd Ridgeway or Ridgeway, Whitney or
Ridgeway of Whitney actually got mailed these documents
or that they had seen these documents for the February
21st hearing, right?
A. That's correct.
Q. Now, you did identify a notice for March 5th
and March 10th, which we have identified here as C 41F,
correct?
A. Yes, I believe — yes. I'm sorry.
Q. Now, the labels that you utilized to send out
notice for this particular hearing or these two
hearings, March 5th and March 10th, you have used a
different set of labels that we have now identified as
C 41 D; is that right?
Page 408
A. Let me just have —
Q. That's this one (indicating}
A. Well, actually, they are the same labels on
the top. If you want to look at them just to compare,
they are the same labels, but when I added the addresses
for the original ones I removed the name of Jason Baker,
and I used David Gonzalez and then a Brian —
Brian Schillizzi, and then I did Ridgeway and Whitney,
and then t added you, Soloman and Saltsman, Jamieson,
SO....
Q. The information that you obtained for this set
of labels that you have got a copy here for us that is
identified C 41D, where did you get that information as
to the accuracy of those addresses?
A. That was given to me by the planner.
Q. Did the planner — strike that.
Did you, as of the date that you utilized
these labels in C 41D, do anything to update or look to
see if the address for Ridgeway and Whitney was
accurate?
A. You mean the 2804 Lafayette?
Q. Right.
MS. AILIN: Objection; relevance.
MR. JAMMSON: Thafs not what I'm asking. Pm not
asking--
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1
A. That's correct, after the first one was sent
1
2
it was done, yes.
2
3
Q. And there was about a month from the time that
3
4
notice was sent out for the January 17th hearing before
4
5
notice was sent out for the February 21st hearing,
5
6
right?
6
7
A. Approximately a month, yes. The notice for
7
8
the January 21st would have been mailed on February the
8
9
8th.
9
10
Q. Would have?
10
11
A. I'm looking at my calendar and saying, yes,
11
12
they were mailed on February the 8th.
12
13
Q. And your calendar that you are looking at on
13
14
February 8th has no writing or other information on it
14
15
that actually reflects that any notice for the February
15
16
21st hearing, for the CUP revocation, ever went to the
16
17
landlord, correct?
17
18
A. That is correct.
18
19
Q. And you also never checked before sending out
19
20
any notice for the February 21st hearing as to whether
20
21
or not the addresses that you obtained in early January
21
22
were correct as of that date, did you?
22
23
A. That's correct.
23
24
Q. Now, you followed the same process to send out
24
25
the letters to the landlord as well as anybody else for
25
14 (Pages 405 to 408)
Page 407
certified when you sent out the things on February 21st,
right? That is, you filled out the certified mail
receipt?
A. Yes, correct, uh -huh.
Q. And you also filled out the green card and
taped it t Mhe letter; Is that correct?
A. Yes, uh -huh.
Q. And yet you never got any of those back did
you?
A. That's correct, that's correct.
Q. So you have no documents, no records here that
reflect that Todd Ridgeway or Ridgeway, Whitney or
Ridgeway of Whitney actually got mailed these documents
or that they had seen these documents for the February
21st hearing, right?
A. That's correct.
Q. Now, you did identify a notice for March 5th
and March 10th, which we have identified here as C 41F,
correct?
A. Yes, I believe — yes. I'm sorry.
Q. Now, the labels that you utilized to send out
notice for this particular hearing or these two
hearings, March 5th and March 10th, you have used a
different set of labels that we have now identified as
C 41 D; is that right?
Page 408
A. Let me just have —
Q. That's this one (indicating}
A. Well, actually, they are the same labels on
the top. If you want to look at them just to compare,
they are the same labels, but when I added the addresses
for the original ones I removed the name of Jason Baker,
and I used David Gonzalez and then a Brian —
Brian Schillizzi, and then I did Ridgeway and Whitney,
and then t added you, Soloman and Saltsman, Jamieson,
SO....
Q. The information that you obtained for this set
of labels that you have got a copy here for us that is
identified C 41D, where did you get that information as
to the accuracy of those addresses?
A. That was given to me by the planner.
Q. Did the planner — strike that.
Did you, as of the date that you utilized
these labels in C 41D, do anything to update or look to
see if the address for Ridgeway and Whitney was
accurate?
A. You mean the 2804 Lafayette?
Q. Right.
MS. AILIN: Objection; relevance.
MR. JAMMSON: Thafs not what I'm asking. Pm not
asking--
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1
1
MS. AILIN: Well, you ascertained that the law says
1
2
use the assessor's records.
2
3
MR. JAMIESON: We have not determined anywhere in
3
4
this proceeding that the assessor's records were used
4
5
for that address, nor whether or not at the time these
5
6
sets of labels were sent out, apparently, whether or not
6
7
at that time that's what was reflected on the assessors
7
8
records. I don t know that, and it's not been said
8
9
here. Besides that, that's not my question.
9
10
Q. What my question right now is, Miss Varin, at
10
11
the time these labels were used — look at me, please.
11
12
A. He is trying to get your attention, the
12
13
hearing officer.
13
14
THE HEARING OFFICER: No, he is rephrasing the
14
15
question now after an objection was made and no ruling
15
16
was made, and so he is going to rephrase the question,
16
17
and then if there is an abjection, well deal with it
17
18
BY MR. JAMIESON:
18
19
Q. Miss Varin, as of the time that you utilized
19
20
the labels you have identified in what we have marked
20
21
here as C41D—
21
22
A. Uh -huh.
22
23
Q. — you had not made any effort to determine as
23
24
of that date the veracity or the accuracy of the
24
25
addresses used here; is that right?
25
Page 410
1
A. That is correct.
1
2
Q. Now, the handwriting at the bottom of C 41D
2
3
says "Use for mail 2 -27- 2008,° and then it also says
3
4
1144- 2008 "; do you see that handwriting?
4
5
A. Yes, that's my handwriting.
5
6
Q. You got ahead of me. That's my next question.
6
7
When did you write that?
7
8
A. When did I write it?
8
9
Q. Yeah, when did you write it?
9
10
A. I would say on 2 -27 -2008 and on 4-4 -2008.
10
11
Q. And your purpose in writing that is to
11
12
indicate a mailing that was done on February 27th; is
12
13
that right?
13
14
A. Yes.
14
15
Q. It says used for mailing 2 -27?
; 15
16
A. Yes.
16
17
Q. Am I correct then that C 41 didn't, then,
! 17
18
provide you some type of document that reflects that you
18
19
sent out what we have identified as C 41F, the hearings
19
20
of March 5th and March 10th, on March — on February
20
21
27th; is that right?
! 21
22
A Yes, uh -huh.
22
23
Q. Now, is it your understanding that notice of a
23
24
hearing such as you are sending out as a C 41F also
24
25
required ten days notice?
25
15 (Pages 409 to 412)
Page 411
A. That's what we are talking about, yes.
Q. February 27 is not ten days before March 51h;
would we agree?
A. That's true.
Q. Soif you fact —
A. It was —
Q. Just a second, please. Let me ask my
question. So as of the date you sent out the notice on
February 27th for a March 5th hearing, there was less
than ten days notice?
A. No, that's not correct. My mailings are made
out on February — on February the 27th — I'm sorry.
Now you have got me a little bit confused here.
February the 27th, when I marked that one down — let's
see — I was saying that 1— that these were the ones
that I used for the mailing for March 511. Those were
done on March — on February the 22nd
Q. So despite the fact that in your handwriting
you wrote down on C 41D used for mailing 2 -27 -2008, you
are now testifying that you didn't mail them with these
labels on 2 -27 —
A. I'm saying —
Q. Let me finish. —but rather you mailed them
on 2 -22; is that what you are saying?
A. Whatlamsayingisthat —
Page 412
Q. Is that — excuse me.
A. — I used these mailing, and this is the date
that I put it down here, that's correct.
Q. The purpose for putting down the date and the
language you used in your handwriting saying "used for
mail 2 -27- 2008" is because that's the date that you sent
out the notice of C 41 F?
A. No, I'm telling you that that is not the date.
Q. So you were incorrect at the time you wrote it
down —
A. No.
Q. -- on C 41D; is that right?
A. You are misinterpreting my date, the reason
for the date down there. I'm saying that I used this
for the mailing, and I dated it on 2 -27. I'm not saying
that I mailed these out on 2 -27. I'm Just saying that I
used this list for the mailing on the appropriate time,
and if you are — I'm a bit rattled at this point in
time here.
Q. Let's focus our attention — Miss Varin, let's
focus our attention on this. When you write something
down on a document like this label list —
A. Uh -huh.
Q. — you attempt to be as accurate at the time
that you write it down as you can; would we agree on
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1
1
that?
1
2
A. Which is why I put the date that I wrote it
2
3
down, yes, uh -huh.
3
4
Q. And the language that you used for mailing,
4
5
correct?
5
6
A. Correct, but I did not say used for nail on
6
7
2 -27, I'm saying to you. So there is a distinction
7
8
there, and you are not listening to me what I'm telling
8
9
you.
9
10
Q. Miss Varin, I need you to really try to answer
10
11
my question.
11
12
A. I am trying to, sir, but you're —
12
13
Q. Miss Varin, we can get through this a lot
13
14
faster if we focus on my question and answer my
14
15
question. I would just appreciate that.
15
16
Now, the document that you send out — you
16
17
sent out for a hearing that started or was to be held on
17
18
March 5th, you sent that out by certified mail to the
18
19
five people identified in C 41 D, and, in particular for j
19
20
purposes of this question, you sent it out to Ridgeway
20
21
and Whitney, right?
21
22
A. Yes, sir.
22
23
Q. There is no date on C 4117, which is the
23
24
notice, or C 41D that reflects that you sent this notice
24
25
out on a particular day, does it? I 1
25
Page 414
1
A. Not on those particular documents, that's
1
2
correct
2
3
Q. Except that for C 4113 it does say used for
3
4
mailing?
4
5
A. Yes, it says used for mailing.
5
6
Q. And on C 41D, by the way, when you wrote in
6
7
44-2008, is it your testimony that when you wrote in
7
8
44-2008, that that was the date that you sent out an
8
9
additional notice for something?
9
10
A. No, I'm just saying that I used that for the
10
11
next mailing, and that was the day that I marked it
11
12
down.
12
13
Q. Let's look at C 41D.
13
14
THE HEARING OFFICER: Please move toward wrapping
14
15
this. Unless you can demonstrate a fundamental issue
15
16
here, please wrap it.
16
17
BY MR. JAMIESON:
17
18
Q. Miss Varin, did you, whether it was February
18
19
22nd or February 27th — let me withdraw.
19
20
Did you, when you sent out notice for the
20
21
March 5th hearing, did you fill out a certified receipt?
21
22
A. Yes.
22
23
Q. And do you have that certified receipt?
23
24
A. Yes.
24
25
Q. And where is that certified receipt?
25
J.n IrayeS si3 LU '3101
Page 415
A. Right here.
Q. And the one you got back, not the green
documents, that's not what I'm asking, the certified
receipt that is in the same form as we looked at that
you provided in C 41G.
A. No, I do not have that.
Q. But you filled one out at that time, right?
A. That's correct
Q. And at that time when you put that notice in
the mail you also attached to it the green card, so the
recipient could sign it; is that right?
A. Yes.
Q. And that was for the hearing that was going to
be on March 5th —
A. Uh -huh.
Q. — and March 101h; is that right?
A. That's right.
Q. Show me, please, the green document you have
in your hand that reflects that Ridgeway and Whitney
received that document?
THE WITNESS: Will you give that to him?
MR. JAMIESON: Now, Pve been handed what appears
to be an original document that reflects a stamp on it
that is stamped Newport Beach, March 3rd, 2008, U.S.
Post Office.
Page 416
Q. That's what we are looking at, right?
A. Uh -huh.
Q. Is that "yes "?
A. Yes.
Q. And that reflects article No.
70010320000078300674, which is the document of which we
have a copy that's called the domestic return receipt on
what's been identified here as C 411?
This particular green document, and — I'll
hand you back the original of this or I'll hand it to
your counsel. The copy, which is C 41E, reflects that
it was received at the Newport Beach Post Office March
3rd. And this is the document that you said was mailed
out February 22nd, right?
A. I —I'm not too sure Is the date on there
March the 3rd?
Q. That's what it says, March 3rd.
A. That's what it says.
Q. That's not the date that somebody signed for
it That's the date it reflects here, Newport Beach Bay
Station, March 3rd, 2008, US. Post Office, right?
MS. AILIN: Objection; vague and ambiguous, assumes
facts not in evidence. When you say that the date it's
stamped isn't the day itk signed for
MR, JAMIESON: Itn saying that the date ifs
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prepared by Dan, please send a certified mail notice to
each of the restaurant owner's representatives, and they
are as follows," and then it references
Caroline Stockton for Saagar, but that's not related to
Fury, right?
A. Right, correct
Q. "And also Fury Rok and Rol Sushi Lounge, care
of Michael Cho, thanks "; do you we that document?
A. Uh -huh, yes.
Q. Why don't I mark that as, I guess, Fury's next
in order, but we haven't identified anything else? We
have 28 exhibits that we had submitted to the hearing
officer prior to the beginning of the hearing, so may I
identify this as No. 29, Your Honor?
THE HEARING OFFICER: Yes.
MR. JAMIESON: And since we have been referring to
the city as C something, what did we decide that
we're --
THE HEARING OFFICER: F.
MR. JAMIESON: So I'm going to identify this as F
29.
(Fury Exhibit F 29
was marked for identification and is
bound separately.)
Page 420
BY MIL JAMIESON:
Q. Do you have a copy of this one sheet e-mail?
A. Yes, I do.
Q. The handwriting reflected on the left -hand
that says, "mailed 14 -07," is that your handwriting?
A. No, sir, it is not.
Q. This is in fact, however, an example of when
you said Rosalinh Ung would tell you to whom it should
be sent and how, this e-mail is a copy of her doing
that, right?
A. That's one of the ways, yes, uh -huh.
Q. Did you get any additional a -mails or written
direction from Rosalinh Ung as to any of the other
hearings whether it be —
A. No, not written. It was verbal.
THE HEARING OFFICER: It was all verbal after that?
THE WITNESS: Uh -huh.
BY MR, JAMIESON:
Q. Is that "yes "?
A. Yes.
Q. And this particular a -mall has to do with the
planning commission hearing that was set for January
17th, right?
A. Correct.
Q. Now, on this particular one, this document,
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Page 417
1
stamped is the date that the Post Office reflects it was
1
2
received.
2
3
Q. That's what it says, right?
3
4
A. Yes.
4
5
THE HEARING OFFICER: Overruled then.
5
6
THE WITNESS: Ifs March 3rd then.
6
7
BY MR. JAMIESON:
7
8
Q. And that's the same one that you said was sent
8
9
out February 22nd, but your handwriting says used for
9
10
mailing 2 -28. We are talking about the same notice,
1 o
11
right?
11
12
A. Yes, we are talking about the same notice.
12
13
Q. R was mailed here from Newport Beach, right?
13
14
A. Uh -huh.
14
15
Q. And by the way, on C 41E, the copy, we have
15
16
the other green card that you have been holding up that
16
17
reflects a date where it says received by, and that's
1 17
18
the one for David Gonzalez, and that says 2 -29.
18
19
A. It's been handwritten in here as 2 -29, yes,
19
20
sir.
20
21
Q. Soon C 41E, the document that has been
21
22
copied, at the top of it is a copy of the original that
22
23
you have in your hand, that green one; is that true?
23
24
A. I believe so, yes.
24
25
Q. Now, when you got those two green cards back
25
Page 418
1
that you have brought in with you today, and we have a
1
2
copy of C 4111, did you attempt to match those two green
2
3
cards up to the return receipt, the certifed — Pm
3
4
sorry — the certified mail receipt that was filled out
4
5
when the mail was sent out? You get the green card
1 5
6
back You normally attach it to that certified mail
6
7
receipt?
7
8
A. No, I don't attach the two of them Once I
e
9
get this I keep these in the record.
9
10
Q. So you didn't look for it at that time?
10
11
A. Right.
11
12
Q. Now, one of the other documents that was
12
13
provided to me this morning that you were not questioned
13
14
about, was provided by your counsel, is an e-mail from
14
15
— or appears to be an e-mail from Rosalinh Ung, U -n -g,
15
16
and it shows a copy of two certified mail receipts, and
16
17
it's to Ginger Varin, V a r i n. Is that the correct
17
18
spelling of your name?
18
19
A. Yes.
19
20
Q. I'm sorry. I wrote it down incorrectly for
20
21
myself — with a copy to Patrick Alford dated December
21
22
26, 2007 at 3:02 p.m, and on this one it states, "Gin"
22
23
— do people call you Gin?
23
24
A. Rosalinh does.
24
25
Q. "Gin, in addition to the mailing lists
25
17 (Pages 417 to 420)
Page 419
prepared by Dan, please send a certified mail notice to
each of the restaurant owner's representatives, and they
are as follows," and then it references
Caroline Stockton for Saagar, but that's not related to
Fury, right?
A. Right, correct
Q. "And also Fury Rok and Rol Sushi Lounge, care
of Michael Cho, thanks "; do you we that document?
A. Uh -huh, yes.
Q. Why don't I mark that as, I guess, Fury's next
in order, but we haven't identified anything else? We
have 28 exhibits that we had submitted to the hearing
officer prior to the beginning of the hearing, so may I
identify this as No. 29, Your Honor?
THE HEARING OFFICER: Yes.
MR. JAMIESON: And since we have been referring to
the city as C something, what did we decide that
we're --
THE HEARING OFFICER: F.
MR. JAMIESON: So I'm going to identify this as F
29.
(Fury Exhibit F 29
was marked for identification and is
bound separately.)
Page 420
BY MIL JAMIESON:
Q. Do you have a copy of this one sheet e-mail?
A. Yes, I do.
Q. The handwriting reflected on the left -hand
that says, "mailed 14 -07," is that your handwriting?
A. No, sir, it is not.
Q. This is in fact, however, an example of when
you said Rosalinh Ung would tell you to whom it should
be sent and how, this e-mail is a copy of her doing
that, right?
A. That's one of the ways, yes, uh -huh.
Q. Did you get any additional a -mails or written
direction from Rosalinh Ung as to any of the other
hearings whether it be —
A. No, not written. It was verbal.
THE HEARING OFFICER: It was all verbal after that?
THE WITNESS: Uh -huh.
BY MR, JAMIESON:
Q. Is that "yes "?
A. Yes.
Q. And this particular a -mall has to do with the
planning commission hearing that was set for January
17th, right?
A. Correct.
Q. Now, on this particular one, this document,
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18 (Pages 421 to 424)
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a
Page 4211
Page 423
1
this copy does have apparently attached to it the
1
Q. "Yes "?
2
certified mail receipts for those envelopes that were
2
A. Yes.
3
apparently sent to Fury Rok and Rol Sushi at MacArthur
3
Q. Did you place the actual original on the
4
Boulevard and also this Caroline Stockton person; is
4
property?
5
that right?
5
A. I personally, no. I had one of my student
6
A. Yes.
6
aides do it.
7
Q. Did you attach these wed mail receipts
7
Q. And the student aide that you had do it is
8
to this a -mail?
8
who?
9
A. 1 did not do this, no.
9
A. Mary Ann Mullis.
10
Q. Do you know who did that?
1 10
Q. And did you or anyone else, to your knowledge,
11
A. No, l do not.
11
take any type of picture or photograph —
12
Q. So the certified mail that went to Fury Rok
12
A. No, sir.
13
and Rol for the January 13 we see here did have a
13
Q. — of the notice?
14
certified receipt filed out for it?
14
A. No, I did not.
1s
A. Uh -huh.
15
Q. Did you ever see the notice on the property?
16
Q. Is that a "yes "?
16
A. I do not frequent Fury, so I would not see it,
17
A. Yes.
17
sir.
18
Q. There again you did not get a green card back
18
Q. You drive up — doesn't matter. You never saw
19
for that one either, did you?
19
the notice that you say was posted there on the
20
A. That's correct, I did not.
20
property, correct?
21
Q. And then finally — there was also —
21
A. I never saw the —1 cannot tell you — no,
22
unfortunately, this is not finally. I have a couple
22
that's correct. 1 did not see the Fury posting because
23
more. The hearing dates that we then started this week
23
1 do not frequent Fury.
24
for April 15th and April 18th, did you send out notice
! 24
Q. And you didn't — you didn't keep a record of
25
for that as well?
25
what date this was put up allegedly on the property,
Page 422
Page 424
1
A. Yes, sir.
1
correct?
2
MR. JAMIESON: Let me mark that as -- strike
2
A. Again, all of these are done on the same —
3
that -- as F 30. That's the notice itself. This is a
3
the same week The postings are done on Friday. The
4
copy of a document handed to me this morning. I'm using
4
blue cards, the registered mall, all sent out on
5
the copy from the city.
5
Friday. The posting, the public notice agenda is sent
6
(Fury Exhibit F 30
6
to the Daily Pilot the Wednesday, which would be two
7
was marked for identification and is
7
days prior to that Friday, so that that can be posted in '..
8
bound separately.)
8
the newspaper on Saturday, so that's my routine.
9
BY MR, JAMIESON:
9
Q. That is your routine?
10
Q. Did you go through the same process for the
10
A. Yes, sir, uh -huh.
11
April 15th and April 18th that you have described
11
Q. As far as Fury is concerned and the notice
12
previously, that is, you sent out the same five
12
that you say was posted on the property, you have no
13
certified. You filled out the certified receipt. You
13
record of the date that this notice was allegedly posted
14
sent it along with the green card, and you did not get a
14
on the Fury property?
15
green card back for these; is that all true?
15
A. Actually I could probably go and get an ad of
16
A. Yes.
16
the posting. It's probably up in my files.
17
Q. And then, finally, let's turn our attention to
17
Q. Because it's important to make sure it's
18
what was marked as C 41 H, and that's this document that
18
posted on a particular date and that it remains up on
19
you identified as being posted on the property at Fury
19
that property for a particular time, correct?
20
Rok and Rol. Do you have that in front of you?
20
A. I'm not responsible for it remaining up on the
21
A. Yes.
21
property, sir.
22
Q. This is a copy of this public notice that you
22
Q. So you don't know how long — if the notice
23
testified was actually placed on the properly at 4221
23
was posted on a particular day, you have no knowledge of
24
Dolphin Striker Way, correct?
24
how long it was posted on the property either; Is that
25
A. Uh -huh.
25
true?
Precise Reporting Service
714 - 647 -9099
a
FURY REVOCATION HEARING - 4/18/2008
19 (Pages 425 to 428)
Page 427
101, Newport Beach, California. Did you send a notice
to that address by regular mail for the February 21st,
2008 meeting?
A. Yes, ma'am, I did.
Q. Was that notice returned to you as
undeliverable by the Post Office?
A. No, ma'am, it was not.
Q. On that same page, C 41D, at the bottom left
there is an address for Ridgeway and Whitney 2804
Lafayette Road, Newport Beach, California. Did you send
a notice to that address by certified mail regarding the
February 21, 2008 meeting?
A. Yes, ma'am, I did.
Q. Was that notice returned to you by the Post
Office as undeliverable?
A. No, ma'am, it was not.
Q. Have any of the notices that you have sent to
either Ridgeway and Whitney or Ridgeway of Whitney on
anything related to the revocation of the use permit
that we are dealing with here today been returned to you
as undeliverable by the U.S. Post Office?
A. No, ma'am, it has not.
MS. AI-IN: No further questions.
MR. JAMIESON: Ijust have one question.
Page 428
FURTHER CROSS - EXAMINATION
BY MR, JAMIESON:
Q. Miss Varin, which address is correct for the
owner of the property at 4221 Dolphin Striker Road as i
the time that you sent out each one of these notices?
MS. AILIN: Objection; relevance.
BY MR. JAN4ESON:
Q. Which one is correct?
THE HEARING OFFICER: Overruled.
BY MR. JAMIESON:
Q. You can answer the question. Which one is
correct? Which address is correct for the landowner of
4221 Dolphin Striker Road? Is it the Newport Center
Drive address or is it the Lafayette Road address?
A. Am I supposed to answer that since you
overruled it, Mr. Allen?
THE HEARING OFFICER: Yes.
THE WITNESS: I could not tell you which address
was correct. That's the reason why we sent it out to
the two addresses.
BY MR. JAMIESON:
Q. If you can't tell which address is correct
between the two, you can't tell which address is correct
at all, right?
MS. AILIN: Objection; argumentative.
Precise Reporting Service
714 - 647 -9099
Page 425
1
A. Again, I cannot tell you if somebody has
1
2
removed the postings once it's put on the property.
2
3
Nobody from the city would know that.
3
4
Q. Let's just talk —
4
5
A. So I'm not too sure how you want me to answer
5
6
that The only thing I can tell you is that the
j 6
7
postings are done prior to the meeting.
7
8
Q. You already said what your policy is and what
8
9
your procedure Is.
9
10
A. Yes, sir.
10
11
Q. I'm asking for Fury, the property on Dolphin
11
12
Striker, this particular notice, you have no knowledge
12
13
of how long -- if it was posted on a particular day, how
13
14
long the posting actually remained on that property,
14
15
true?
15
16
A. That's correct, sir, I do not know.
16
17
Q. And you have no record with you today — you
17
16
have no record of how long, if at all, that notice was
18
19
posted on the Fury property, true?
19
20
A. 1 believe I answered that, yes.
20
21
Q. That's correct? Is that correct?
21
22
A. Correct, yes.
22
23
MR. JAMIESON: Nothing further. Thank you.
23
24
MS. AILIN: I have a few questions.
24
25
25
Page 426
1
FURTHER DIRECT EXAMINATION
1
2
BY MS. AILIN:
2
3
Q. Miss Varin, looking at the document we have
3
4
marked as C 41A, the list of mailing labels that has a
4
5
stamp on it that says file copy, you say you sent a
5
6
notice by regular mail to the label in the upper
6
7
right -hand corner that says Ridgeway and Whitney, 250
7
8
Newport Center Drive, Suite 101, Newport Beach for the
8
9
January 17 meeting?
9
10
A. Yes, ma'am, I did.
10
11
Q. And did the Postal Service return that notice
1 11
12
to you as undeliverable?
12
13
A. No, they did not.
13
14
Q. And also on that same exhibit, C 41A in the
14
15
right -hand column, the fourth address down, Ridgeway and
15
16
Whitney 2804 Lafayette Road, Newport Beach, California,
16
17
did you send a notice to that address by certified mail
17
18
for the January 17th meeting?
18
19
A. Yes, ma'am, I did.
19
20
Q. Was that notice returned to you by the Post
20
21
Office as undeliverable?
21
22
A. No, ma'am, it was not.
22
23
Q. Turning to Exhibit C 41D, in the upper
23
24
right -hand corner of that page there is an address for
24
25
Ridgeway and Whitney, 250 Newport Center Drive, Suite
25
19 (Pages 425 to 428)
Page 427
101, Newport Beach, California. Did you send a notice
to that address by regular mail for the February 21st,
2008 meeting?
A. Yes, ma'am, I did.
Q. Was that notice returned to you as
undeliverable by the Post Office?
A. No, ma'am, it was not.
Q. On that same page, C 41D, at the bottom left
there is an address for Ridgeway and Whitney 2804
Lafayette Road, Newport Beach, California. Did you send
a notice to that address by certified mail regarding the
February 21, 2008 meeting?
A. Yes, ma'am, I did.
Q. Was that notice returned to you by the Post
Office as undeliverable?
A. No, ma'am, it was not.
Q. Have any of the notices that you have sent to
either Ridgeway and Whitney or Ridgeway of Whitney on
anything related to the revocation of the use permit
that we are dealing with here today been returned to you
as undeliverable by the U.S. Post Office?
A. No, ma'am, it has not.
MS. AI-IN: No further questions.
MR. JAMIESON: Ijust have one question.
Page 428
FURTHER CROSS - EXAMINATION
BY MR, JAMIESON:
Q. Miss Varin, which address is correct for the
owner of the property at 4221 Dolphin Striker Road as i
the time that you sent out each one of these notices?
MS. AILIN: Objection; relevance.
BY MR. JAN4ESON:
Q. Which one is correct?
THE HEARING OFFICER: Overruled.
BY MR. JAMIESON:
Q. You can answer the question. Which one is
correct? Which address is correct for the landowner of
4221 Dolphin Striker Road? Is it the Newport Center
Drive address or is it the Lafayette Road address?
A. Am I supposed to answer that since you
overruled it, Mr. Allen?
THE HEARING OFFICER: Yes.
THE WITNESS: I could not tell you which address
was correct. That's the reason why we sent it out to
the two addresses.
BY MR. JAMIESON:
Q. If you can't tell which address is correct
between the two, you can't tell which address is correct
at all, right?
MS. AILIN: Objection; argumentative.
Precise Reporting Service
714 - 647 -9099
FURY REVOCATION HEARING - 4/18/2008
au Irayt--s sz:v t.v Y�)c/
Page 431
SHANNON LEVIN,
having been first duly administered an
oath in accordance with CCP 2094, was
examined and testified as follows:
EXAMINATION
BY MS. AILIN:
Q. Would you please state and spell your name
for the record.
A. Shannon Levin, S- h- a- n -n-o-n Lry -i -n.
Q. Miss Levin, how are you employed?
A. I'm employed as a code and water quality
enforcement officer.
Q. And what are your duties as a code and water
quality enforcement officer?
A. To enforce the Municipal Code and ordinances
of the City of Newport Beach.
Q. Were you asked in the course and scope of your
duties to do any sort of code enforcement investigation
related to Fury Rok and Rol Sushi lounge?
A. Yes.
Q. Who gave you the assignment of doing that
investigation?
A. I received a complaint from the planning
department and a complaint from a complaining party
Page 432
outside of the city.
Q. When you say outside of the city, you mean
someone who is not a city employee?
A. Correct.
Q. What did the complaint refer to?
A. The complaint referred to the parking
situation, valet and — basically the parking and valet.
Q. So there was valet parking at Fury?
A. Yes.
Q. What was the problem with there being valet
parking at Fury?
MR. JAMIESON: Objection; vague and ambiguous,
calls for a narrative, lacks foundation.
THE HEARING OFFICER: Overruled.
THE WITNESS: It was not in their use permit to
allow a valet service. The parking lot was a shared lot
for the three establishments there, which are Classic Q,
Saagar and Fury, and it was a shared lot and that the
valet service was taking up shared parking spots and
that a valet service in general was not allowed there.
BY MS. AILIN:
Q. And were there any other parking issues that
were raised in those complaints?
A. Not in those complaints, but there were
parking issues that were discovered as a part of the
Precise Reporting Service
714 - 647 -9099
A'a()
Page 4291
1
THE HEARING OFFICER: Sustained.
1
2
BY MR. JAMIESON:
2
3
Q. The fact is, Miss Varin, you don't know if
3
4
either one of those addresses was the correct address
4
5
for the landowner — for the person or entity that owned
5
6
Dolphin Striker Road when you sent out the notices, do
6
7
you?
1 7
8
MS. AILIN: Objection; asked and answered,
8
9
argumentative.
9
10
THE HEARING OFFICER: Overruled.
10
11
THE WITNESS: T cannot tell you what the property
11
12
owner's address is if that's what you are asking me.
12
13
MR. JAMIESON: Thank you. Nothing further.
13
14
THE HEARING OFFICER: Are we then through with this
14
15
witness?
is
16
MS. AILIN: Yes.
16
17
MS. AILIN: Can we go off the record a minute?
17
18
THE HEARING OFFICER: Sure.
18
19
(Discussion ensued off the record)
19
20
MS. AILIN: Yes. We are back on the record.
20
21
THE HEARING OFFICER: 1 have a request before we
21
22
get going. Could you burbler down April 23rd at 5:00
22
23
p.m. and please have a memo or a brief, a position paper
23
24
that describes your respective analysis of the adequacy
24
25
and timing of the notice given to the landlord in these
25
Page 430
1
proceedings.
1
2
MR. JAMIESON: Mail is okay?
2
3
THE HEARING OFFICER: Even mail is fine, yes.
3
4
MS. AB,IN: My understanding is that we are going
4
5
to be here from noon to 4:00 on April 23rd.
5
6
THE HEARING OFFICER: On April 24th we are going to
6
7
be here when?
7
8
MS. AILIN: April 23rd. I thought we also had
8
9
April 24th booked as well
9
10
MR. JAMIESON: Well, whether we are or not,
I 10
11
personally if I can bring it with roc, I will, but
11
12
otherwise I will probably have somebody else e-mail it.
i 12
13
THE HEARING OFFICER: If you want one more day,
13
14
[hat's okay with me, but that's the max, so however
14
15
you want to do it.
15
16
MS, AILIN: All right.
16
17
THE HEARING OFFICER: If you need until the 241h, I
17
18
will accept that. We are going to be here that day,
18
19
too, so, you know.
19
20
MS. AMIN: Right,
20
21
MR. JAMIESON: So the 24th --
21
22
THE HEARING OFFICER: rmjust saying close of
22
23
business. The 24th is fine.
23
24
We have another witness. Proceed.
24
25
///
25
au Irayt--s sz:v t.v Y�)c/
Page 431
SHANNON LEVIN,
having been first duly administered an
oath in accordance with CCP 2094, was
examined and testified as follows:
EXAMINATION
BY MS. AILIN:
Q. Would you please state and spell your name
for the record.
A. Shannon Levin, S- h- a- n -n-o-n Lry -i -n.
Q. Miss Levin, how are you employed?
A. I'm employed as a code and water quality
enforcement officer.
Q. And what are your duties as a code and water
quality enforcement officer?
A. To enforce the Municipal Code and ordinances
of the City of Newport Beach.
Q. Were you asked in the course and scope of your
duties to do any sort of code enforcement investigation
related to Fury Rok and Rol Sushi lounge?
A. Yes.
Q. Who gave you the assignment of doing that
investigation?
A. I received a complaint from the planning
department and a complaint from a complaining party
Page 432
outside of the city.
Q. When you say outside of the city, you mean
someone who is not a city employee?
A. Correct.
Q. What did the complaint refer to?
A. The complaint referred to the parking
situation, valet and — basically the parking and valet.
Q. So there was valet parking at Fury?
A. Yes.
Q. What was the problem with there being valet
parking at Fury?
MR. JAMIESON: Objection; vague and ambiguous,
calls for a narrative, lacks foundation.
THE HEARING OFFICER: Overruled.
THE WITNESS: It was not in their use permit to
allow a valet service. The parking lot was a shared lot
for the three establishments there, which are Classic Q,
Saagar and Fury, and it was a shared lot and that the
valet service was taking up shared parking spots and
that a valet service in general was not allowed there.
BY MS. AILIN:
Q. And were there any other parking issues that
were raised in those complaints?
A. Not in those complaints, but there were
parking issues that were discovered as a part of the
Precise Reporting Service
714 - 647 -9099
A'a()
FURY REVOCATION HEARING - 4/18/2008
L l gages 4.S.i LO 43 b )
Page 433 Page 435
1
investigation.
1
Municipal Code regarding changes in operational
2
Q. What was the first step you took in your
2
characteristics and the valet service.
3
investigation?
3
Q. And so you sent the letter out before you went
4
A. I went out to take a look at the parking
4
to Fury in September 2007?
5
situation.
5
A. I'm not sure. I would have to look at the
6
Q. When did you do that?
6
date of the photographs, but probably - usually I send
7
A. Early September. So —
7
out a letter to let people know. It's a basic letter
e
Q. September 2007?
8
to let people know that they may have issues on their
9
A. Yes.
9
property, so they can rectify them.
10
Q. What time of day did you go?
10
Q. Do you have the photographs with you from
11
A. Probably about — well, let me think. Ten
11
September 2007?
12
o'clock at night.
12
A. I don't know if they are in the record.
13
Q. And when you went out to look at the parking
13
Q. Would you turn the page on Exhibit 40 and
14
situation at Fury in September 2007, what did you find?
14
explain to us what the second page of Exhibit 40 to
i5
A. I found a valet service and a full parking
is
A. The second page is an administrative citation
16
lot.
16
written on September 13, 2007, and that is for violation
17
THE HEARING OFFICER: And a? I'm sorry.
17
of use permit and changes in operational characteristics
18
THE WITNESS: Full parking lot.
18
relative to the valet service.
19
THE HEARING OFFICER: Thank you.
19
Q. Does that help you recall whether the letter
20
BY MS. AILIN:
20
that is dated September 4th was sent before or after you
21
Q. How much time did you spend at Fury when you
21
went to Fury?
22
went out there in September 2007?
: 22
A. It was sent before.
23
A. Maybe five minutes.
23
Q. The September 4th letter was sent before?
24
Q. And did you see people pulling up in cars
24
A. Oh -huh.
25
handing their keys —
25
Q. So it was after you sent the September 4
.
.}
Page 4341
Page 436
1
A. Yes.
1
letter that you went out and observed that there was a
2
Q. —to the valet and going into Fury?
1 2
valet parking?
3
A. Yes.
3
A. Correct.
4
Q. And did you take any action after you went to
4
Q. And then you sent the administrative citation
5
Fury in September 2007 and saw the valet parking?
5
that we have as page 2 of Exhibit 40?
6
A. I took action, I believe, before — I believe
6
A. I sent the administrative citation as a result
7
before I went out I sent a letter to the property
7
of my inspection.
8
owners. I made a call to the restaurant in order to
8
Q. Do you know whether the administrative
9
speak to the owners or manager. Wasn't able to contact
9
citation was ever appealed?
10
anybody, and at the point after that after the —1
10
A It was not.
11
photographed the valet service. 1 issued an
11
Q. And the third page of Exhibit 40, would you
12
administrative citation to Fury.
12
please explain that to us what that is?
13
Q. And we have a binder with exhibits.
13
A. The citation was issued on September 21, 2007
14
Miss Levin. I would like you to take a look at a
14
for violation of use permits and changes in operational
15
document that we have marked as Exhibit C 40 and explain
15
characteristics, and the evidence was from the
16
to us what this is.
16
promotions, and in this case it was for the Lingerie
17
A. This is my first point of comact to Fury, and
17
Ball.
18
it was a basic letter letting them know that there was a
18
Q. Now, you said the evidence was from the
19
violation on the property and in this case a violation
19
promotions. Could you elaborate on that for us?
20
of their use permit, and let's see. h outlines —
20
A. There are certain agencies that do promotions
21
Q. Now you are referring just to the first page
21
for clubs, and we had the promotions we were able to
22
of Exhibit 40; is that correct?
22
obtain promotions for Fury and other similar clubs, and
23
A. I am referring to the page— it's the letter
23
we have an example — we have actually like
24
dated September 4th, and I'm referring to certain
24
advertisement for the Lingerie Ball.
25
conditions in there. And then it refers to the actual
25
Q. How did you obtain that advertisement?
Precise Reporting Service
714 - 647 -9099
0
FURY REVOCATION HEARING - 4/18/2008
22 (Pages 437 to 440)
Page 439
Exhibit 8 in the binder and could you explain to us what
Exhibit 8 is?
A. This is a memorandum to the city attorney's
office dated November 15, 2007.
Q. And is this a memorandum which you wrote in
the course and scope of your duties?
A. Yes.
Q. Is it based on observations which you made in
the course and scope of your duties?
A. Yes.
Q. And was it written at or about the time that
you made the observations that are described in the
memorandum?
A. Yes.
Q. Was this a continuation of your investigation
of parking issues at Fury?
A. Yes.
Q. And was there a specific reason that you
continued to investigate parking issues at Fury?
A. Yes, this was by the direction of the city
attorney's office.
Q. And what was the focus of your investigation
at this point in November 2007?
A. To report on the parking conditions at Fury.
Q. And did you actually go to Fury to observe the
Page 440
parkng conditions?
A. Yes.
Q. What date did you go to Fury?
A. November.
Q. Do you remember when?
A. November 1st, November 10th and November 15th,
2007.
Q. And what did you find when you went to Fury on
those dates?
A. I found a series of conditions there that are
outlined in this memorandum.
Q. What time of day did you go to Fury on
November Ist, approximately?
A. On or around rive o'clock
Q. And was that about the same time of day that
you went on November 10th and November 15th?
A. Yes, that's correct.
Q. And what was the particular parking issue that
you were investigating on those dates?
A. There were six conditions that 1 was to
observe, and those —1 reported on each of those
conditions in this memorandum
THE HEARING OFFICER: I apologize. What time of
day was this done? I know you testified --
THE WITNESS: Five o'clock.
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714- 647 -9099
Ola
Page 437
1
A. I believe it was through Upscale Access. it
1
2
was advertised on Upscale Access, if I'm correct.
2
3
MR. JAMIESON: I'm going to move to strike as 1
3
4
nonresponsive and speculative, lacks foundation.
4
5
THE WITNESS: It might actually be in the record.
5
6
The advertisement, we might have it.
6
7
MR. JAMIESON: Same objection.
7
8
BY MS. AILIN: 1
8
9
Q. When you say Upscale Access, what are you j
9
10
referring to? i
10
11
MR. JAMIESON: Objection.
u
12
THE HEARING OFFICER: Sustained.
12
13
BY MS. AILIN: i
13
14
Q. When you say Upscale Access, what are you
14
15
referring to? :
15
16
A. I'm referring to one of the promoters. j
16
17
Q. Was that something you found on the Internet ;
17
18
or some print source?
is
19
A. Upscale Access has Internet access, and in
19
20
this case I believe it was first found through our
20
21
police department. j
21
22
MR, JAMIESON: Objection; move to stoke,
22
23
speculative, lacks foundation. '
23
24
THE HEARING OFFICER: Sustained.
24
25
Q. Miss Levin, I would like you to turn to
25
22 (Pages 437 to 440)
Page 439
Exhibit 8 in the binder and could you explain to us what
Exhibit 8 is?
A. This is a memorandum to the city attorney's
office dated November 15, 2007.
Q. And is this a memorandum which you wrote in
the course and scope of your duties?
A. Yes.
Q. Is it based on observations which you made in
the course and scope of your duties?
A. Yes.
Q. And was it written at or about the time that
you made the observations that are described in the
memorandum?
A. Yes.
Q. Was this a continuation of your investigation
of parking issues at Fury?
A. Yes.
Q. And was there a specific reason that you
continued to investigate parking issues at Fury?
A. Yes, this was by the direction of the city
attorney's office.
Q. And what was the focus of your investigation
at this point in November 2007?
A. To report on the parking conditions at Fury.
Q. And did you actually go to Fury to observe the
Page 440
parkng conditions?
A. Yes.
Q. What date did you go to Fury?
A. November.
Q. Do you remember when?
A. November 1st, November 10th and November 15th,
2007.
Q. And what did you find when you went to Fury on
those dates?
A. I found a series of conditions there that are
outlined in this memorandum.
Q. What time of day did you go to Fury on
November Ist, approximately?
A. On or around rive o'clock
Q. And was that about the same time of day that
you went on November 10th and November 15th?
A. Yes, that's correct.
Q. And what was the particular parking issue that
you were investigating on those dates?
A. There were six conditions that 1 was to
observe, and those —1 reported on each of those
conditions in this memorandum
THE HEARING OFFICER: I apologize. What time of
day was this done? I know you testified --
THE WITNESS: Five o'clock.
Precise Reporting Service
714- 647 -9099
Ola
Page 4381
1
BY MS. AB.IN:
1
2
Q. What was the specific violation of the use
2
3
permit that the November — excuse me — September 21,
3
4
2007 citation —
4
5
MR. JAMIESON: Objection.
5
6
BY MS. AWN;
6
7
Q. — pertained to?
7
8
MR. JAMIESON: rm sorry. Objection; calls for a
8
9
legal conclusion and lacks foundation. The witness is
9
10
not qualified to render an opinion as to a violation of
10
11
the conditional use permit, if anything is illegal in
11
12
particular.
12
13
THE HEARING OFFICER: Overruled- She is a code
13
14
enforcement officer. She said she was aware of the
14
15
rules, so proceed.
15
16
THE WITNESS: This -- the use perrrdt assigned is
16
17
for a restaurant establishment. The promotions are for
17
18
a club atmosphere, and that was -- is a violation of the
18
19
the use permit.
19
20
MR. JAMIESON: Objection; move to strike, same
20
21
basis.
21
22
THE HEARING OFFICER: Sustained. There is just no
22
23
evidence that any promotion occurred.
23
24
BY MS. AILIN:
24
25
Q. Miss Levin, I would like you to turn to
25
22 (Pages 437 to 440)
Page 439
Exhibit 8 in the binder and could you explain to us what
Exhibit 8 is?
A. This is a memorandum to the city attorney's
office dated November 15, 2007.
Q. And is this a memorandum which you wrote in
the course and scope of your duties?
A. Yes.
Q. Is it based on observations which you made in
the course and scope of your duties?
A. Yes.
Q. And was it written at or about the time that
you made the observations that are described in the
memorandum?
A. Yes.
Q. Was this a continuation of your investigation
of parking issues at Fury?
A. Yes.
Q. And was there a specific reason that you
continued to investigate parking issues at Fury?
A. Yes, this was by the direction of the city
attorney's office.
Q. And what was the focus of your investigation
at this point in November 2007?
A. To report on the parking conditions at Fury.
Q. And did you actually go to Fury to observe the
Page 440
parkng conditions?
A. Yes.
Q. What date did you go to Fury?
A. November.
Q. Do you remember when?
A. November 1st, November 10th and November 15th,
2007.
Q. And what did you find when you went to Fury on
those dates?
A. I found a series of conditions there that are
outlined in this memorandum.
Q. What time of day did you go to Fury on
November Ist, approximately?
A. On or around rive o'clock
Q. And was that about the same time of day that
you went on November 10th and November 15th?
A. Yes, that's correct.
Q. And what was the particular parking issue that
you were investigating on those dates?
A. There were six conditions that 1 was to
observe, and those —1 reported on each of those
conditions in this memorandum
THE HEARING OFFICER: I apologize. What time of
day was this done? I know you testified --
THE WITNESS: Five o'clock.
Precise Reporting Service
714- 647 -9099
Ola
FURY REVOCATION HEARING - 4/18/2008
23 (Pages 441 to 444)
Precise Reporting Service
714- 647 -9099
�3
Page 441.
Page 443
1
THE HEARING OFFICER: Five o'clock, p.m? +
1
agreement was supposed to be, and I never found an
2
THE WfTNESS: Correct.
2
instance where there was a Fury car parked there or Fury
3
THE HEARING OFFICER: Obviously.
3
employee car, and I also did multiple investigations, so
4
BY MS. Ati,IN:
4
1 would sit in the parking lot or the parking structure,
5
Q. What were the parking issues that you were
5
and I would monitor to see if anybody would leave the
6
investigating on those dates?
6
parking structure and walk into Fury. And on one
7
A. Was there a valet service, was there stacking
7
instance there was one person who walked out of the
8
of can on the offsite lot, is the off -site lot being
8
parking structure.
9
utilized by employees, is there outdoor storage.
9
Q. When you were at the site trying to determine
10
Q. I was just asking about the parking issues.
10
whether the employees were parking in the parking
11
When you went out on those dates in November, was there;
11
structure or in the shared lot, how long did you stay
12
valet service?
12
out there?
13
A. No.
13
A. Usually an hour.
14
Q. You referred to stacking of cars in the
14
Q. And this would be the hour from five o'clock
15
offsite lot. What did you mean by that?
15
to six o'clock?
16
A. Was there parking offsite, was there employee
16
A. It would range from 4:45 to 6:00, 4:45 to
17
valet or patron parking off -site.
17
5:45. It was in that general five o'clock hour, yes.
18
Q. Was there supposed to be parking offsite?
18
Q. Why did you select that time?
19
MIL JAMIESON: Objection; it's vague and ambiguous,
19
A. That is the time when I was instructed to go
20
lacks foundation, calls for speculation and a legal
20
oul, and typically, from my experience, that is the time
21
conclusion for which she is not qualified to make.
21
when restaurants have employees coming in to serve
22
THE HEARING OFFICER: Overruled.
22
dinner.
23
THE WITNESS: There is parking agreement in effect
23
Q. Who was it that instructed you to go out at
24
that Fury or any operators o£4221 Dolphin Striker Way
24
that time?
25
is to use 16 off-site parking spots, so there could have
25
A. The city attorney's office.
Page 442
Page 444
1
been cars parked off -site.
i
Q. Any particular individual in the city
2
BY MS. ARLIN:
2
attorney's office?
3
Q. And were the off -site parking spaces supposed
3
A. 1 believe it was Aaron Harp.
4
to be used for a particular parking use?
4
Q. You mentioned that you took photographs. As
5
A. They were for employee use.
5
part of Exhibit 8, we have some photographs, and I have
6
Q. And were you able to determine whether those
6
color copies that are — I didn't have these at the
7
spaces were being used for parking by the employees?
7
time.
8
A. Throughout the series of my investigation, I
8
THE HEARING OFFICER: Thank you.
9
was able to conclude that the parking — the off-she
9
MS. AMJN: It's hard to see in black and white. I
10
parking was not being utilized by employees.
10
didn't have them at the time I put the binder together,
11
Q. What was the basis for that conclusion?
! 11
but I was able to obtain them later.
12
A. Multiple investigations.
12
THE HEARING OFFICER: Are we authorized to discard
13
Q. What did you see in doing those investigations
13
these black and white photos --
14
that led you to that conclusion?
14
MS. AILIN: If you wish.
15
A. I saw on numerous occasions employees driving
15
771E HEARING OFFICER: -- and insert instead the
16
up to Fury in the shared lot, exiting cars and walking
16
ones that you just handed to us in color?
17
into the back of the establishment, and there are
17
MS. AILIN: If you wish.
18
multiple — there are multiple instances where the same
18
MR. JAMIESON: Counsel, is it all the same? Are
19
vehicles are at the location at the same times of day in
19
they in the same order?
20
the some general area for parking, and there are —
20
MS. AILIN: Yes.
21
there are instances where there are bang tags that show
21
Q. These photographs that are attached to Exhibit
22
— excuse me — Fury employees who are parking in the
22
8, these are photographs that you took yourself:
23
shared lot, and 1 also made an attempt to see if there
23
A. Yes.
24
were any Fury hang tags identifying Fury employees
24
Q. And there is a date in the lower right -hand
25
parking in the parking structure where the offsite
25
corner of the photographs of November 15, 2007. Is that
Precise Reporting Service
714- 647 -9099
�3
FURY REVOCATION HEARING - 4/18/2008
24 (Pages 445 to 448)
Page 447
BY MS. AILIN:
Q. Do you recall what your purpose was in taking
the photograph that we have marked as C 8B?
A. The photograph was to show that the employees
would enter and exit through the rear door and that In
this instance the employee was breaking down boxes and
bringing them to the outside area.
(City's Exhibit 811 was
marked for identification and is
bound separately.)
MS. AILLN: The next photograph, which we will mark
as C 8C, shows a Ford Taurus in the parking lot with
license plate 5JFM720.
(City's Exhibit 8C was
marked for identification and is
bound separately.)
BY MS. AU-IN:
Q. And what was your purpose in taking this
photograph?
A. The purpose in taking this photograph was to
show the license plate and to also show that in this
parking space, which is free, that there is a designated
Fury sign.
Q. So you are referring to the parking space to
the left of the Ford Taurus shown in the photograph?
Page 448
MR. JAMIESON: Is that C 8C?
MS. AILIN: C 8C, yes.
( Citys Exhibit 8D was
marked for identification and is
bound separately.)
MS. AILIN: And the next photograph which shows a
sign that says Fury on it we will mark as Exhibit C 8D.
(City's Exhibit 8D was
marked for identification and is
bound separately.)
BY MS. AILIN:
Q. What was your purpose in taking this
photograph?
A. The purpose of this photograph was to
illustrate an up -close shot of the Fury sign, the
parking sign.
Q. The next photograph shows the rear of a Honda
with license plate 4KEG315. We will mark that C 8E.
(City's Exhibit 8E was
marked for identification and is
bound separately.)
BY MS. AILIN:
Q. And what was the purpose of taking that
photograph?
A. To identify the license plate of that vehicle.
Precise Reporting Service
714- 647 -9099
�� `
Page 4451
i
1
the date on which these photos were taken?
1
2
A. Yes.
2
3
Q. And what was the purpose of taking the photos?
3
4
A. Evidence that 1 was at the inspection and
.' 4
5
evidence of what I observed at the inspection.
5
6
Q. What is the significance of the first
6
7
photograph?
7
8
A. The first photograph shows employees at the
8
9
back entrance of Fury.
9
10
Q. Did you see any of these employees park in the
10
11
shared lot and walk to the area they are shown standing
11
12
in in the first photograph?
12
13
A. It's hard to say if I saw one of them. 1
13
14
typically couldn't identify many of the employees, maybe
14
15
two of them, and from this picture 1 couldn't identify
15
16
the employees.
16
17
Q. The second photograph shows someone in a white
17
18
Witter and wearing blue jeans. What was the purpose of
1s
19
this photograph?
19
20
A. The purpose—
20
21
MR. JAMIESON: fm sorry. Excuse me, Counsel.
21
22
Just for the purpose of the record because I know 111
22
23
get confused, can we identify, these by page numbers or
23
24
something because I don't know if I have got the same
24
25
first photograph as you do?
25
Page 446
1
MS. AILIN: Then let's just go through and mark
1
2
them.
2
3
THE HEARING OFFICER: You want to do C 8A?
3
4
MR. JAMIESON: Which would be photograph?
4
5
MS. AILIN: Well, the first photograph would be 8A
5
6
and then —
6
7
MR. JAMIESON: And that is, indeed, the guy with
7
8
the white t -shirt, right?
8
9
(City's Exhibit 8A was
9
10
marked for identification and is
10
11
bound separately.)
11
12
BY MS. AILIN: j
12
13
Q. You see him in 8A and 8B. I was referring 1
13
14
to the photograph where the man in the white t -shirt is
14
15
bent over, and he is the only person you can see in the
15
16
photograph.
16
17
MR JAMIESON: Okay. So the first page of Exhibit
17
18
8 is C8 with no letter designation, right?
18
19
MS. AILIN: Right,
19
20
MR. JAMIESON; And then the first photograph is C
20
21
8A, and then C 8B would be the guy with the white
21
22
t -shirt bending over?
22
23
M5. AILIN: Yes,
23
24
MR. JAMIESON: Thank you.
24
25
///
25
24 (Pages 445 to 448)
Page 447
BY MS. AILIN:
Q. Do you recall what your purpose was in taking
the photograph that we have marked as C 8B?
A. The photograph was to show that the employees
would enter and exit through the rear door and that In
this instance the employee was breaking down boxes and
bringing them to the outside area.
(City's Exhibit 811 was
marked for identification and is
bound separately.)
MS. AILLN: The next photograph, which we will mark
as C 8C, shows a Ford Taurus in the parking lot with
license plate 5JFM720.
(City's Exhibit 8C was
marked for identification and is
bound separately.)
BY MS. AU-IN:
Q. And what was your purpose in taking this
photograph?
A. The purpose in taking this photograph was to
show the license plate and to also show that in this
parking space, which is free, that there is a designated
Fury sign.
Q. So you are referring to the parking space to
the left of the Ford Taurus shown in the photograph?
Page 448
MR. JAMIESON: Is that C 8C?
MS. AILIN: C 8C, yes.
( Citys Exhibit 8D was
marked for identification and is
bound separately.)
MS. AILIN: And the next photograph which shows a
sign that says Fury on it we will mark as Exhibit C 8D.
(City's Exhibit 8D was
marked for identification and is
bound separately.)
BY MS. AILIN:
Q. What was your purpose in taking this
photograph?
A. The purpose of this photograph was to
illustrate an up -close shot of the Fury sign, the
parking sign.
Q. The next photograph shows the rear of a Honda
with license plate 4KEG315. We will mark that C 8E.
(City's Exhibit 8E was
marked for identification and is
bound separately.)
BY MS. AILIN:
Q. And what was the purpose of taking that
photograph?
A. To identify the license plate of that vehicle.
Precise Reporting Service
714- 647 -9099
�� `
FURY REVOCATION HEARING - 4/18/2008
6o lYdytrs 447 zo 456)
Page 451
BY MS. AILIN:
Q. Turning back to the first page of Exhibit 8,
we were talking about parking violations before. When
you went to the Fury location in November 2007, were
there other violations of the use permit that you were
investigating?
MR. JAMIESON: Objection; vague and ambiguous as to
"other." We haven't established that there are any yet
and lacks foundation, calls for speculation.
THE HEARING OFFICER: Overruled. Proceed.
THE WITNESS: There are certain conditions outlined
in a use permit, and all of those conditions were
assigned to city employees to investigate, and in this
memorandum I have outlined six questions or six portions
of that use perrmt that were investigated in these
inspections.
BY MS. AILIN:
Q. Other than parking, what were you
investigating in November 2007?
A. I investigated storage, trash and signage.
Q. And what was the condition regarding the
storage?
A. I found that there was outdoor storage of—
Q. Before we get to what you found, what was the
condition in the use permit?
Page 452
A. I believe it was no outdoor storage of refuse
containers, trash, accumulated items, et cetera.
Q. And when you went to the location in November
2007, did you find that there was outdoor storage?
A. Yes.
Q. What were they storing outdoors?
A. In the photographs you can see boxes, trash
cans, some containers, a map cart, the refuse bins. I
believe there was two refuse bins. I believe one was
enclosed and one is outside and miscellaneous items.
Q. And referring to the photographs in Exhibit A,
can you call our attention to which photographs show
those items?
A. 8A, 8B — my picture isn't as clear in the
rest.
Q. Here, let me let you look at the color ones.
A. 8A, you can see containers —you can see 55-
gallon drums, boxes. There is a mop cart behind the
gentleman on the for left. There is a trash can on
wheels with a mop or something sticking out of it, and
then there is a trash can, a refuse bin behind the
vehicle you can see.
Q. That's over on the right -hand side of the
photograph?
A. Yes.
Precise Reporting Service
714- 647 -9099
YA5
Page 449
1
Q. Were you photographing license plates so that
1
2
you would have a record for return visits to figure out
2
3
whether the same cars were appearing repeatedly?
3
4
A. 1 took the pictures of the vehicles to catalog
4
5
the license plates and because at some point I figured
5
6
that we would be able to run these records and compare
6
7
them with employee names. We could identify employee
7
8
vehicles.
8
9
Q. And did you at some point run the vehicle I.D.
9
10
numbers —
10
11
A. I do not run the vehicle ID numbers during an
11
12
inspection of this nature, and I usually let the powers
12
13
that be decide when to run personal information.
13
14
Q. Do you know whether that was ever done?
14
15
A. I do not
15
16
(City's Exhibit 8F was
16
17
marked for identification and is
17
18
bound separately.)
18
19
BY MS. AU.IN:
19
20
Q. The next photograph which we will mark as C SF
20
21
shows the exterior of Fury, and there is a white van in
21
22
the foreground with the license plate 6AF as in Fred, S
22
23
as in Steven, 661. What was the purpose of taking this
+ 23
24
photograph?
24
25
A. The purpose was to—
25
Page 450
1
THE HEARING OFFICER: I'm sorry. My next
1
2
photograph was a grand opening.
2
3
MS. AILIN: Oh, Im sorry.
3
4
THE HEARING OFFICER: We just maybe got out of
4
5
sync. Did everybody else go -- you are identifying --
5
6
MS. MEIN: Tbat's --
6
7
THE HEARING OFFICER: -- a van, and that's going to
7
8
be F?
8
9
MS. AILIN: 8F.
9
10
THE HEARING OFFICER: Thank you.
10
11
THE WITNESS: So the purpose of this was to
11
12
identify the vehicle and the license plate and the
12
13
location as parked in front of Fury.
13
14
THE HEARING OFFICER: Is it yew testimony that's
14
15
an employee vehicle?
15
16
THE WITNESS: Yes, it is.
16
17
BY MS. AILIN:
17
18
Q. Did you see someone exit the vehicle and go !
18
19
into the restaurant?
19
20
A. I'm not sure on this investigation I did, but
20
21
over the course of my inspections I did we an employee
21
22
leave this vehicle and enter the rear door of Fury.
22
23
MR. JAMIESON: I'm going to object; move to strike,
23
24
lacks foundation, speculation.
24
25
THE HEARING OFFICER: Overruled.
25
6o lYdytrs 447 zo 456)
Page 451
BY MS. AILIN:
Q. Turning back to the first page of Exhibit 8,
we were talking about parking violations before. When
you went to the Fury location in November 2007, were
there other violations of the use permit that you were
investigating?
MR. JAMIESON: Objection; vague and ambiguous as to
"other." We haven't established that there are any yet
and lacks foundation, calls for speculation.
THE HEARING OFFICER: Overruled. Proceed.
THE WITNESS: There are certain conditions outlined
in a use permit, and all of those conditions were
assigned to city employees to investigate, and in this
memorandum I have outlined six questions or six portions
of that use perrmt that were investigated in these
inspections.
BY MS. AILIN:
Q. Other than parking, what were you
investigating in November 2007?
A. I investigated storage, trash and signage.
Q. And what was the condition regarding the
storage?
A. I found that there was outdoor storage of—
Q. Before we get to what you found, what was the
condition in the use permit?
Page 452
A. I believe it was no outdoor storage of refuse
containers, trash, accumulated items, et cetera.
Q. And when you went to the location in November
2007, did you find that there was outdoor storage?
A. Yes.
Q. What were they storing outdoors?
A. In the photographs you can see boxes, trash
cans, some containers, a map cart, the refuse bins. I
believe there was two refuse bins. I believe one was
enclosed and one is outside and miscellaneous items.
Q. And referring to the photographs in Exhibit A,
can you call our attention to which photographs show
those items?
A. 8A, 8B — my picture isn't as clear in the
rest.
Q. Here, let me let you look at the color ones.
A. 8A, you can see containers —you can see 55-
gallon drums, boxes. There is a mop cart behind the
gentleman on the for left. There is a trash can on
wheels with a mop or something sticking out of it, and
then there is a trash can, a refuse bin behind the
vehicle you can see.
Q. That's over on the right -hand side of the
photograph?
A. Yes.
Precise Reporting Service
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YA5
FURY REVOCATION HEARING - 4/18/2008
26 (Pages 453 to 456)
Precise Reporting Service
714 - 647 -9099
a,a �°
Page 453
Page 455
1
Q. That's sort of a blue shape behind the car?
1
1— I believe they had a banner permit for one sign,
2
A. Yes. And then in 8B you can see more clearly
2
although they had two temporary signs posted, though
3
a push cart, a mop, like little sink, boxes, drums.
3
both were over - sized, so technically they were a
4
Q. Anything else in the photographs we have in
4
violation, but —
5
Exhibit 8?
5
Q. What is the size limit on temporary signs?
6
A. An employee.
6
A. I can look up the Code. 1 believe — I can't
7
Q. 1 meant in terms of the violation of outdoor
� 7
think off the top of my head what the sign code is.
e
storage.
8
Q. Can you describe for us the temporary signs
9
A. I don't see anything.
9
that you saw at Fury that were not permitted by code and
10
Q. Is there anything in 8C?
10
for which there is no permit?
11
A. 8C shows parking in a shared lot in the
11
A. Well, there were two signs, and a banner
12
building next door.
12
permit allows for one sign to be covered under a permit,
13
Q. What about outside, outdoor storage?
13
and a banner permit is good for calendar 60 days that
14
A. It's really hard to tell in this photograph.
14
can be broken up over a period of two times or three
15
Q. Okay. Turning back to the first page or
15
times, however that adds up to 60 days, so they had one
16
Exhibit 8, were there other conditions of the use permit
16
banner permit for one sign, so one of those signs was
17
that you were investigating?
17
just not allowed, period, one of those temporary
18
A. Trash and signage
18
signs.
19
Q. And what was the trash condition in the use
19
As far as size, again, I would have to
20
permit?
2 o
reference the code. I can't think of it off the top of
21
A. The trash conditions — I can read from this.
21
my head.
22
Condition 34 of the use permit requires periodic steam
22
Q. Can you describe the signs for us?
23
cleaning of dumpsters and dumpster areas to be cleaned
23
A. They were black, temporary signs, basically a
24
according to NBMC section 14, and my conclusion was that
24
banner with the Fury description. I want to say it said
25
this is a requirement on an as- needed basis and that
i J 25
grand opening, perhaps. I know it's in the exhibit.
Page 454;
i
Page 456
1
there was no findings for this condition.
1
Q. Actually, I didn't include that photograph,
2
MR. JAMIESON: rm sorry. There were no findings?
2
but it was a banner that said grand opening?
3
THE WITNESS: Correct.
3
A. 1 believe it said grand opening.
4
BY MS. AILJN:
4
THE HEARING OFFICER: Am I the only one that got
5
Q. By no findings, you meant that you didn't
5
that picture?
6
observe anything related to that condition on these days
6
MR. JAMIESON: I don't have it.
7
in 200'.
7
MS. AI.IN: Actually, I hadn't --I hadn't included
a
A. In the course of work on any other day, any
6
that one. Perhaps I should have. That's fine. We'll
9
other location that this was not out of the ordinary.
9
move on.,
10
Q. Okay. You also mentioned In the memo the
10
THE HEARING OFFICER: Do you want to pass on that
11
dumpster was stored outside of a trash closure?
11
one, then, I'll tear it out?
12
A. Correct.
12
MS. AI,IN: I will pass on that one or I can get --
13
Q. And that's the item you identified on the
13
MR. JAMIESON: So by passing on that one, does
14
right -hand side of Exhibit 8A, the photograph?
14
that mean that's not a contention of violation?
i5
A. Yes.
15
THE HEARING OFFICER: I apologize for that. That's
16
Q. And was there a condition regarding signage —
16
correct.
17
A. There was.
17
MS. AI.IN: I wouldn't say that its not a
18
Q. — that you were Investigating?
18
contention.
19
What was the signage condition?
19
MR. JAMIESON: Well, if it is a contention and its
20
A. They have signage conditions that have to
20
says photograph, I can tell you ltn going to
21
adhere to the Newport Beach Municipal Code, signed code,
21
cross- examine on it, so if it exists, we might as well
22
and they had electrical signs that were permitted,
22
get it.
23
basically change outs from the establishments that were
23
MS. AILIN: Okay. I don't have that full set with
24
there before. They had temporary signs that were —
24
me.
25
that were not in compliance with the Municipal Code, and
25
MS. PARKER: What are you looking for?
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714 - 647 -9099
a,a �°
FURY REVOCATION HEARING - 4/18/2008
27 (Pages 457 to 460)
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714- 647 -9099
A,0
Page 457
Page 459
1
MS. AILIN: Another photograph. The only one I
1
Q. And then you later saw that sign at a
2
have here today is the copy that Mr. Allen just pulled
2
different location?
3
out of the binder. If we can use that copy, I can
3
A. Yes, it was on the building.
4
provide more later.
4
Q. Can you identify which side of the building it
5
THE HEARING OFFICER: Now, is this one of the two
5
was on?
6
banner signs and only one banner sign was allowed, but
6
A. It would have been on the MacArthur facing
7
in fact they had two --
7
frontage, and it was suspended from the roof line, so
8
THE WITNESS: That is correct
8
close to or above the patio area right off this
9
THE HEARING OFFICER: — is that your contention?
9
MacArthur frontage near the patio area.
10
MR. JAMIESON: And this is the only photograph.
10
MR. JAMIESON: Can we identify for the record the
11
BY MS. AUJN:
11
photograph that we did use aid, therefore, we know what
12
Q. Were the two banners the same?
12
we looked at then, and if there is reference to this
13
A. I believe they were the same or very similar.
13
other sign, there is not that particular sign in the
14
This one was on the parking lot side of the building
14
photograph?
15
towards the front, and the other sign, they had it — I
15
MS. AILIN: Sure. Well call this C 8G. That's
16
want to say they had it staked in the ground out front
16
the photograph of the sign.
17
That would be on MacArthur, and then it was later moved
17
MR. JAMIESON: And at some point well get color
18
to — onto the building.
is
copies of those and get the original back to Mr. Allen?
19
MR, JAMIESON: Objection — sorry. Go ahead.
19
MS. AILIN: Yes, we will.
20
THE WITNESS: There might be photographs of that
20
MR. JAMIESON: I figured we would. Just for the
21
also.
21
record.
22
MR JAMIESON: Objection; move to strike,
22
BY M5. AMIN:
23
nonresponsive, speculation.
23
Q. For the most part we have been falling about
24
THE HEARING OFFICER: Sustained. Do you want to
24
your inspections at Fury on November 1st, 10th and 15th,
25
ask the question in that respect?
25
2007. Was there a later inspection at Fury?
Page 458
Page 460
1
BY MS. AILIN:
1
A. Yes, there were a series of follow -up
2
Q. Where was the other sign located?
2
inspections. The next one with the memorandum was
3
A. In the front of the building.
3
November 29, 2007.
4
Q. And was it on the building or in a different
4
THE HEARING OFFICER: Excuse me. Is there an
5
location?
5
exhibit on that item?
6
A. It was both at different times.
6
MS. AILIN: Yes-
7
Q. Where did you see it first?
7
Q. Does Exhibit 9 pertain to that part of the
8
A. Staked into the ground.
8
investigation?
9
Q. Staked into the ground — we have here as part
9
A. Yes.
10
of Exhibit 7 a site plan that we have referred to. Can
10
Q. And the first page of Exhibit 9 is a
11
you identify where on the site plan In Exhibit 7 the
11
memorandum Are you the author of this meumrandum?
12
sign was staked into the ground?
12
A. Yes.
13
A. It was staked in next to the Monument sign on
13
Q. Was this memorandum written in the course and
14
MacArthur Avenue.
14
scope of your duties as a code enforcement officer?
15
Q. Can you identify for us where the Monument
15
A. Yes.
16
sign on MacArthur Avenue was shown on Exhibit 7?
16
Q. Was it written based on your observations at
17
A. Sure, this shows a patio, and directly on top
17
Fury on November 29, 2007?
18
of the patio there is a Monument sign, and — I believe
18
A. Yes.
19
that's a Monument sign that's showing, and it would have
19
Q. And was the memorandum written —when was
20
been just adjacent to that, to the left.
I 20
the memorandum written?
21
Q. To the left as you are facing the Monument
21
A. It was written on December 511, 2007.
22
sign?
22
Q. And with this menorandum there we also some
23
A. As I'm looking at it from this to the left.
j 23
photographs, and once again, I have distributed color
24
Q. As you are looking at it on the site plan?
24
copies of those photographs, which are a Ittie easier
25
A. IJh -huh.
25
to see.
Precise Reporting Service
714- 647 -9099
A,0
FURY REVOCATION HEARING - 4/18/2008
28 (Pages 461 to 464)
Page 463
shown in the photographs in Exhibit 9 are also shown in
Exhibit 8?
A. The green Honda Civic 4KEG315.
THE HEARING OFFICER: What exhibit?
THE WITNESS: I'm sorry. Going off of Exhibit 8
from the descriptions on question 3, I have the license
plates written ouL
BY MS. AILIN:
Q. And if I could point out the photograph In
C 8E and C 9B.
MR. JAMIESON: You know, I apologize, but I'mjust
incompletely lost What did you just reference?
THE WITNESS: Exhibit 8.
MR. JAMIESON: Exhibit 8. I apologize.
BY MS. AILIN:
Q. Is there another car that is referenced in
both exhibits?
A. From Exhibit 81 don't see another one unless
— I can't read what the car in C 8C would be unless
that would be —
Q. I will let you look at what —
A. Yes, and 5JFM720, that would be the four.
Both of those vehicles were there.
Q. So that's the car shown In C 8C and also in
C 9D?
Page 464
A. Correct.
Q. And is there another car that shows up in both
exhibits?
A. The Chevy Lumina and that Taurus, those are
the ones — no, is this the — there is a Honda Civic
that showed up in both.
Q. Right, we mentioned the Honda Civic.
A. The Honda Civic, the Taurus and then 1 think
the Chevy Lumina, 6AFS664.
Q. And that's the vehicle shown in C 81F, and take
a look at the color ones with the —
A. Yes.
Q. —C 8F and C9C?
A. Yes.
Q. And was there another time that you went out
to Fury to look at whether employees were parking in the
shared lot or in the parking structure?
A. Yes, I had been out a couple more times after
that.
Q. Looking at Exhibit 10, is that a memorandum
that you prepared about another visit to Fury?
A. It's about two visits I made to Fury.
Q. Two visits. Okay. And when did those two
visits occur?
A. Those occurred on January 30th, 2008 and
Precise Reporting Service
714 - 647 -9099
1_�q
Page 4611
1
MR. JAMIESON: Counsel, fm sorry. 1 don't want to
1
2
break into the -- but the black and whites that we had
2
3
we can loss?
3
4
MS. AILIN: Yes.
4
5
MR. JAMIESON: It's the same thing?
5
6
MS. AILIN: It's the same thing formatted
6
7
differently. The color photographs are full -page. The
7
8
black and whites were two on a page, but they are the
8
9
same photographs.
9
10
MR. JAMIESON: Still just four photographs?
10
11
MS. AILIN: Correct
11
12
MR. JAMIESON: Thank you.
12
13
BY MS. AILIN:
13
14
Q. Miss Levin, when you went to Fury on November
14
15
29, was there a particular issue you were fo0owing up
15
16
on?
16
17
A. It was to determine whether employees of Fury
17
18
were adhering to the prescribed parking agreement
18
19
86. 149743.
19
20
Q. And what did you find in the course of your
20
21
inspection on November 29?
21
22
A. I found that there were a series of vehicles
22
23
parked outside of Fury in the shared lot and that there
23
24
was no adherence to the prescribed parking agreement at
24
25
that time, and I witnessed an employee walling to or
25
Page 462
1
from the parking structure.
1
2
Q. And what time of day did you go to Fury on
2
3
November 29th?
3
4
A. I was there at 4:30, and f believe on this
4
5
occasion I stayed until close to six o'clock.
5
6
Q. And were you able to identify some of the cars
6
7
parked in the lot at Fury as employee cars?
7
a
A. Yes.
8
9
Q. And how were you able to do that?
9
10
A. They had either previously been identified as
10
11
employee vehicles, employees pulling in with a vehicle
11
12
and walking into Fury or they were repeat license plates
12
13
at the some time at the same general location.
13
14
MS. AILIN: Let's go through and mark the
14
15
photographs as we did the others. C 9A would be the
15
16
photograph of the car with the license plate 3KTS073.
16
17
C 9B will be the car with the license plate 4KEG315.
17
18
C 9C is the photograph of the car with the license plate
18
19
6 apple, Frederick, Steven 664, and C 9D will be the car
19
20
with the license plate 5JFM720.
20
21
(City's Exhibit 9A through 9D were
21
22
marked for identification and are
22
23
bound separately)
23
24
BY MS. AILIN:
24
25
Q. And can you identify for us which of the cars
25
28 (Pages 461 to 464)
Page 463
shown in the photographs in Exhibit 9 are also shown in
Exhibit 8?
A. The green Honda Civic 4KEG315.
THE HEARING OFFICER: What exhibit?
THE WITNESS: I'm sorry. Going off of Exhibit 8
from the descriptions on question 3, I have the license
plates written ouL
BY MS. AILIN:
Q. And if I could point out the photograph In
C 8E and C 9B.
MR. JAMIESON: You know, I apologize, but I'mjust
incompletely lost What did you just reference?
THE WITNESS: Exhibit 8.
MR. JAMIESON: Exhibit 8. I apologize.
BY MS. AILIN:
Q. Is there another car that is referenced in
both exhibits?
A. From Exhibit 81 don't see another one unless
— I can't read what the car in C 8C would be unless
that would be —
Q. I will let you look at what —
A. Yes, and 5JFM720, that would be the four.
Both of those vehicles were there.
Q. So that's the car shown In C 8C and also in
C 9D?
Page 464
A. Correct.
Q. And is there another car that shows up in both
exhibits?
A. The Chevy Lumina and that Taurus, those are
the ones — no, is this the — there is a Honda Civic
that showed up in both.
Q. Right, we mentioned the Honda Civic.
A. The Honda Civic, the Taurus and then 1 think
the Chevy Lumina, 6AFS664.
Q. And that's the vehicle shown in C 81F, and take
a look at the color ones with the —
A. Yes.
Q. —C 8F and C9C?
A. Yes.
Q. And was there another time that you went out
to Fury to look at whether employees were parking in the
shared lot or in the parking structure?
A. Yes, I had been out a couple more times after
that.
Q. Looking at Exhibit 10, is that a memorandum
that you prepared about another visit to Fury?
A. It's about two visits I made to Fury.
Q. Two visits. Okay. And when did those two
visits occur?
A. Those occurred on January 30th, 2008 and
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714 - 647 -9099
1_�q
FURY REVOCATION HEARING - 4/18/2008
67 kecLyes 40D LO 4bb)
Page 467
Has the No. 223 on it and C I OD has in the upper
right -hand comer a photo with a parking pem¢t with the
No. 004 on it.
THE HEARING OFFICER: Do those hang tags hang from
the minor or something?
THE WITNESS: They have strings or little
decorative, you know, strings to hang.
THE HEARING OFFICER: But they would hang from like
the rearview minor?
THE WITNESS: Uh -huh.
THE HEARING OFFICER: Inside the car?
THE WITNESS: Uh -huh.
BY MS. AIIN:
Q. Did you say "yes" for the court reporter?
A. Oh, yes.
MR. JAMIESON: Ion sorry. How far did we go? f
still have others --
MS. AI11N: Four pages. We talked about the that
four pages as the photographs taken on January 30.
MR. JAMIESON: A, B, C, D and E?
MS. AU-IN: A, B, C and D.
MR. JAMIESON: And D.
THE HEARING OFFICER: They are here. Are you going
to go through more photographs?
MS. AILIN: Yes.
Page 468
(City's Exhibit I OA through I OD were
marked for identification and were
bound separately.)
BY MS. AILIN:
Q. Now, the photographs that we have marked as
C 10A, B, C and D, they have a date In the lower
right -hand corner of January 30, 2007, but you said that
you went to Fury on January 30, 2008?
A. That's correct. I hadn't advanced my camera
to the new year.
Q. But you are certain that these are photographs
that you took in January 2008?
A, Absolutely 100 percent.
Q. And what was significant about what you saw
with the cars that are shown in these photographs?
A. All the cars shown in the photographs display
a parking permit, which absolutely identify them as
employee vehicles that are not parked in an off -site
location.
Q. Now, you said all of them In your memo it
indicates that there was one with no tag.
A. That's correct. There was one vehicle. It
was a Jeep Cherokee that I witnessed there multiple
times, and I actually witnessed the employee get out of
the vehicle and walk into the rear entrance of Fury.
Precise Reporting Service
714- 647 -9099
J.JA
Page 465
1
January31,2008.
1
2
Q. And when was this memorandum written?
2
3
A. February lit.
3
4
Q. Was this memorandum written in the course and
4
5
scope of your duties as a public employee?
5
6
A. Yes.
6
7
Q. Was it written based on your observations at
7
8
Fury on January 30th and January 31, 2008?
8
9
A. Yes.
9
10
MS. MEIN: Could we go off the record It rjust a
10
11
second?
11
12
THE HEARING OFFICER: Yes.
12
13
(Flores taken.)
13
14
BY MS. AILIN:
14
15
Q. When you went to Fury on January 30th to
15
16
investigate the use of the shared parking lot and the
16
17
parking structure, what did you find?
17
18
A. Well, I went out at a different time for the
18
19
January 30th inspection. I wanted to get a time frame
19
20
for the inspection to cover bases, and I went out at
20
21
about 1:45 p.m., and I found at least six vehicles all
21
22
identified as employee vehicles parked in the shared lot
22
23
at Fury.
23
24
Q. And how did you identify them as employee
24
25
vehicles?
25
Page 466
1
A. Five out of six of them had Fury hang tags,
1 1
2
and one of them had been identified previously as an
2
3
employee who parked and walked to the rear entrance of
3
4
Fury.
4
5
Q. And do you have photographs of the vehicles
5
6
that were taken on January 30th?
6
7
A. Yes.
7
8
Q. And could you identify form which of the
e
9
following pages are the January 30th photographs. How
9
10
many pages are there."
10
11
A. It looks Ike four, and one on a fifth page.
11
12
I'm sorry. No, no, no, I take that back. Four pages.
12
13
MS. AILIN: So let's mark those pages C I OA,
13
14
C JOB --
14
15
THE HEARING OFFICER: We are doing the black and
15
16
whites now?
16
17
MS. AILIN: We are doing the black and whites now,
17
18
yeah.
1B
19
THE HEARING OFFICER: We are doing C IOA?
19
20
MS. AMIN: Yeah. C IOA is the one where the
20
21
photograph in the upper right corner, if you rum the
21
22
page, is 4KE0315. C I OB with the same page orientation
22
23
has the license plate in the upper right -hand comer of !
23
24
5PBM814. C IOC in the upper right -hand comer has a
24
25
picture of a Fury hang tag. It says parking permit
25
67 kecLyes 40D LO 4bb)
Page 467
Has the No. 223 on it and C I OD has in the upper
right -hand comer a photo with a parking pem¢t with the
No. 004 on it.
THE HEARING OFFICER: Do those hang tags hang from
the minor or something?
THE WITNESS: They have strings or little
decorative, you know, strings to hang.
THE HEARING OFFICER: But they would hang from like
the rearview minor?
THE WITNESS: Uh -huh.
THE HEARING OFFICER: Inside the car?
THE WITNESS: Uh -huh.
BY MS. AIIN:
Q. Did you say "yes" for the court reporter?
A. Oh, yes.
MR. JAMIESON: Ion sorry. How far did we go? f
still have others --
MS. AI11N: Four pages. We talked about the that
four pages as the photographs taken on January 30.
MR. JAMIESON: A, B, C, D and E?
MS. AU-IN: A, B, C and D.
MR. JAMIESON: And D.
THE HEARING OFFICER: They are here. Are you going
to go through more photographs?
MS. AILIN: Yes.
Page 468
(City's Exhibit I OA through I OD were
marked for identification and were
bound separately.)
BY MS. AILIN:
Q. Now, the photographs that we have marked as
C 10A, B, C and D, they have a date In the lower
right -hand corner of January 30, 2007, but you said that
you went to Fury on January 30, 2008?
A. That's correct. I hadn't advanced my camera
to the new year.
Q. But you are certain that these are photographs
that you took in January 2008?
A, Absolutely 100 percent.
Q. And what was significant about what you saw
with the cars that are shown in these photographs?
A. All the cars shown in the photographs display
a parking permit, which absolutely identify them as
employee vehicles that are not parked in an off -site
location.
Q. Now, you said all of them In your memo it
indicates that there was one with no tag.
A. That's correct. There was one vehicle. It
was a Jeep Cherokee that I witnessed there multiple
times, and I actually witnessed the employee get out of
the vehicle and walk into the rear entrance of Fury.
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Page 469
Page 471
1
Q. And you said that this memo also documents a
1
THE HEARING OFFICER: If it says 2007, its
2
second visit to the site that took place on January 31,
2
actually 2008?
3
2008?
3
THE WITNESS: Yes.
4
A. Yes.
4
BY MS. AILIN:
5
Q. And what time of day did you go to Fury on
5
Q. And you are certain these are the photographs
6
January 31, 2008?
6
you took January 31st, 2008?
7
A. That was an evening inspection from 5:00 to
7
A. Yes.
8
6:00 p.m.
8
Q. I'm going to leave the subject of parking
9
Q. Did you take photographs when you were at Fury
9
behind, and I'm going to ask you to take a look at
10
on January 31, 2008?
10
Exhibit 13. Have you seen Exhibit 13 before?
11
A. Yes.
11
A. Yes.
12
Q. And can you identify for us which pages of
12
Q. Where did you first see Exhibit 13?
13
photographs were taken on January 31?
13
A. Exhibit 13 was e- mailed to me by the police
14
A. The subsequent six pages.
14
department.
15
Q. So the six pages after C 10D —
15
Q. Do you recall who at the police department
16
A. Correct
16
mailed It to you?
17
Q. — are photographs that were taken on January
17
A. Detective Jones.
IS
31?
18
Q. Was there any text in the exhibit other than
19
A. Correct
19
what is shown on this page?
20
MS. AILIN: Arid so we will mark those -- C 10E will
20
A. This is the exhibit. This is the
21
be the one again looking at this from a landscape
21
advertisement. I believe that there was an e-mail
22
standpoint with the photograph in the upper right -hand
22
address set up to obtain these promotions and that the
23
comer just shows a number of can in the parking lot in
23
detective sent me that e-mail embedded in his e-mail.
24
front of the building. C I OF, the photo in the upper
24
MR. JAMIESON: Objection; move to strike, calls for
25
right shows the front of a parked car. C IOG, the
25
speculation, calls for hearsay, lacks foundation. There
T
Page 470
Page 472
1
photograph in the upper right, shows a car with a
1
is a lot of I believe about what other people did.
2
license plate 6BCE948. C l OH, the upper right
2
THE HEARING OFFICER: Miss Ailin.
3
photograph, shows the license plate 6ZO7493. C 101 is
3
BY MS. AILIN:
4
the photo with license plate 5DMJ958 in the upper right,
4
Q. This is an e-mail that you got from
5
and then the last page C I OJ just has one photograph on
5
Detective Jones?
6
it of the license plate 5PBM814.
6
A. Yes.
7
(City's Exhibit IOE through 101 were
7
MR. JAMIESON; I think I need a ruling on that
8
marked for identification and are
a
objection.
9
bound separately.)
9
THE HEARING OFFICER: All right Sustained.
10
BY MS. AILIN:
10
MR. JAMIESON: Thank you. And by the way, for
11
Q. What did you observe when you were at Fury on
11
purposes of the record, if I make any kind of a motion,
12
January 31st9
12
if any of us do 1 guess and move to strike and the
13
A. I observed multiple vehicles with Fury hang
i 13
hearing officer sustains it, can we assume that that
14
tags and other vehicles that were employee vehicles
14
means that the offending testimony was in fact stricken?
15
based on the record of license plates. I also observed
15
THE HEARING OFFICER: Yes.
16
employees coming and going parking in the shared lot
16
MS. AILIN: I have no additional questions for this
17
walking in the back entrance of Fury.
17
witness at this time.
18
Q. Let's see. Also on the photographs that you
18
THE HEARING OFFICER: Cross?
19
said pertain to your visit to the site on January 31st,
19
MR. JAMIESON: Sure.
20
2007, again the dates on the photographs themselves say
20
THE WITNESS: Can I use the restroom first, please?
21
2007, not 2008. Can you explain the difference for us?
21
MS. AILIN: Let's go off the record for a minute.
22
A. I didn't advance my camera to the new year.
22
(Discussion ensued off the record.)
23
THE HEARING OFFICER: Can we say that with any
23
24
other photographs you are going to show here today?
24
25
THE WITNESS: Yes.
25
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FURY REVOCATION HEARING - 4/18/2008
31 (Pages 473 to 476)
Page 475
is page I of 7 because down here it says, "We are buying
champagne for the ladies 8:00 to whatever. This a -mall
would have continued on displaying further promotions.
Q. Now, at the very bottom left -hand corner of
this sheet of paper it has the date 9 -25 -2007, correct?
A. Correct.
Q. And at the very top left -hand corner it says,
"Thursday nights Club Eclipse, or Club E- c4 -i -p
something; is that right?
A. I'm sorry. I'm sorry. 1 don't know what you
are looking at.
MS. AILIN: Wait- -
THE WITNESS: Oh, up here.
BY MR. JAMIESON:
Q. On the very top left -hand corner of this sheet
of paper; do you see that?
A. I do.
Q. That particular document that we are looking
at, this sheet of paper, I'm trying to figure out the
Integrity of this sheet of paper. Okay?
A. Okay.
Q. If it's a printout of the e-mail, would you
agree that the language at the top left -hand corner is
not something that came on the e-mail itself:
A. 1 honestly can't comment on that
Page 476
Q. You can't tell, right?
A. I don't know one way or another.
Q. And at the bottom left -hand corner, you can't
tell if that 9-25 -2007 was part of that e-mafl either,
can you?
A. That is from a printout.
Q. From a printout of what?
A. Of this document That's the date that this
would have been printed.
Q. On what system? Like your computer?
A. Ub -huh.
Q "Yes "?
A. Yes.
Q. So when it says here sent Wednesday,
September 9, 2007, 4:47 p.m at the top, that you
believe is part of the e-mall?
A. That e-mail was embedded, yes.
Q. So there is —
A. And this e-mail was sent on September 17;
however, I or another one of the city employees printed
this a mafl on 9 -25 -2007.
Q. Do you know who printed it?
A. We could probably look at the record and see
who did it, but it was either myself, a paralegal or
Detective Jones.
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Page 4731
1
i
CROSS - EXAMINATION
1
2
BY MR. JAMIESON:
2
3
Q. Miss Levin, am I pronouncing that correctly?
3
4
A. Uh -huh.
4
5
Q. Is that "yes "?
5
6
A. Yes.
6
7
Q. Miss Levin, have you ever testified before?
7
8
A. Yes.
8
9
Q. So you know that you need to say "yes" or "no"
9
10
as opposed for "uh -huh" or "buh -uh "?
10
11
A. Yes, bad habit.
11
12
Q. Me too. Directing your attention, first of
12
13
all, to Exhibit 13 since we just left that one, Exhibit
13
14
13 appears to have a space above the date that reflects
14
15
from, and there is nothing there, and generally a -mails
15
16
if that's what this is has a space above that where it
16
17
would say two, and that also is not there. Do you see
17
18
where I'm referring to?
18
19
A. Yes.
19
20
Q. And do you recall actually getting an e-mail
20
21
from Detective Jones on this document?
21
22
A. 1 had multiple a -mails from Detective Jones.
22
23
Off the top of my head I cannot recall getting most
23
24
e- mails, so I'm just going off what is here on the
24
25
record.
25
Page 474
1
Q. So you — well, going off of what is here on
1
2
the record does not reflect that this document, Exhibit
2
3
13, came from Detective Jones, does it?
3
4
A. This does not show who this e-mail is from.
4
5
Q. Do you recall whether or not this document
5
6
that we are looking at, Exhibit 13, when you looked at
? 6
7
the original — let me withdraw.
7
8
Did you ever see the original of what we have
j 8
9
here as a copy in Exhibit 13?
9
10
A. I believe I have the original. I might have
10
11
the original e-mail.
11
12
Q. You have that with yon right now?
12
13
A. No.
13
14
Q. This document, Exhibit 13, that is in front of
14
15
us says at the top right -hand corner page something of
15
16
7; do you see that?
16
17
A. Yes.
17
18
Q. So you are familiar with receiving e-mails,
18
19
right?
19
20
A. Yes.
20
21
Q. And generally when you see an e-mail or print
21
22
it out, it will reflect -- let me back up for a second.
22
23
This Exhibit 13, is this actually an e-mail or a copy of
23
24
a couple of documents superimposed on each other?
24
25
A. This is an e-mail that was embedded, and this
25
31 (Pages 473 to 476)
Page 475
is page I of 7 because down here it says, "We are buying
champagne for the ladies 8:00 to whatever. This a -mall
would have continued on displaying further promotions.
Q. Now, at the very bottom left -hand corner of
this sheet of paper it has the date 9 -25 -2007, correct?
A. Correct.
Q. And at the very top left -hand corner it says,
"Thursday nights Club Eclipse, or Club E- c4 -i -p
something; is that right?
A. I'm sorry. I'm sorry. 1 don't know what you
are looking at.
MS. AILIN: Wait- -
THE WITNESS: Oh, up here.
BY MR. JAMIESON:
Q. On the very top left -hand corner of this sheet
of paper; do you see that?
A. I do.
Q. That particular document that we are looking
at, this sheet of paper, I'm trying to figure out the
Integrity of this sheet of paper. Okay?
A. Okay.
Q. If it's a printout of the e-mail, would you
agree that the language at the top left -hand corner is
not something that came on the e-mail itself:
A. 1 honestly can't comment on that
Page 476
Q. You can't tell, right?
A. I don't know one way or another.
Q. And at the bottom left -hand corner, you can't
tell if that 9-25 -2007 was part of that e-mafl either,
can you?
A. That is from a printout.
Q. From a printout of what?
A. Of this document That's the date that this
would have been printed.
Q. On what system? Like your computer?
A. Ub -huh.
Q "Yes "?
A. Yes.
Q. So when it says here sent Wednesday,
September 9, 2007, 4:47 p.m at the top, that you
believe is part of the e-mall?
A. That e-mail was embedded, yes.
Q. So there is —
A. And this e-mail was sent on September 17;
however, I or another one of the city employees printed
this a mafl on 9 -25 -2007.
Q. Do you know who printed it?
A. We could probably look at the record and see
who did it, but it was either myself, a paralegal or
Detective Jones.
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32 (Pages 477 to 480)
Page 479
A. Perhaps if that was the arrangement.
Q. Do you know — first of all, do you know who
the — what you are calling the promoter is, looking at
Exhibit 13?
MS. AILIN: Objection; vague and ambiguous.
THE HEARING OFFICER: Overruled.
BY MR. JAMIESON:
Q. Based on the length of time that you are
taking to answer --
A. I would say -- well, there is a lot going on
on this page, so I'm not really sure.
Q. Miss Levin, the reason I'm asking the question
is you testified that Exhibit 13 reflects a promoter
promoting for Fury, right?
A. Sure.
Q. So who is the promoter that you say is
promoting for Fury?
A. Well, I would argue that —
Q. 1 don't want you to argue.
A. I'll take argue out of that.
Q. 1 want you to tell me your understanding when
you say this reflects a promoter promoting, whatever
that is, for Fury, who is the promoter that you say is
promoting?
A. I don't know who the promoter is.
Page 480
Q. So if you don't know who the promoter is that
you are referring to as the promoter, how do you know
that they are a promoter for Fury?
A. Well, I don't know who else is advertising for
Fury, but --
Q. Well, perhaps Fury advertises for Fury?
A. Perhaps,
Q. Perhaps Fury promotes for Fury, right?
A. Perhaps.
Q. So we don't really know from Exhibit 13 if
there is any what you are calling a promoter, whatever
that is, doing anything for Fury, do we?
A. I don't know.
Q. And you don't know whether Exhibit 13,
whatever Exhibit 13 was, whether or not it was
authorized in any way by Fury itself, do you?
A. I would have no way of knowing that.
Q. Right. And you don't know who put this
Exhibit 13 out initially, do you?
A. On the original it probably has who this is
from, and we can probably track who it's from I don't
know. Your questions are totally out of my range. I
don't know marketing. 1 don't know promotions. This is
—SO.
Q. I appreciate that, but when you testified that
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Page 477)
I
1
Q. But you don't know who did it?
1
2
A. Not from this 1 don't know who did it.
2
3
Q. And from looking at this document, we don't
3
4
know — strike that.
4
5
From looking at this document, can we agree
5
6
that at some point in time the original of this document
6
7
had the name from and had the name to?
7
8
A. I can't agree or disagree on that
8
9
Q. You can't ten?
9
10
A. I don't know. I can't tell you that.
10
11
Q. So by looking at this document, we really
11
12
don't know the source of where it came, right?
+ 12
13
A. From the e-mail source, no, I can't ten.
13
14
Q. Now, from looking at this document, we also
14
15
don't know who provided the content of what is in this
j 15
16
sheet of paper, do we?
16
17
A. The content is from the promoter for this
17
18
ladies' night champagne, so I don't know — as far as
is
19
the content goes, I can't speak to that.
19
20
Q. Because you don't know where the content came
20
21
from?
21
22
A. No, I don't work for a promoter, so I don't
22
23
have the information for the promotions in this e-mail.
! 23
24
Q. And when you use the word "promotion,' what is
1 24
25
your definition of a promoter?
25
Page 478'
1
A. An outside agency that promotes events,
1
2
special nights for clubs.
2
3
Q. Or any kind of business, right, promoter?
i 3
4
A. Maybe.
4
5
Q. And with respect to the "promotes this
5
6
business," that's somebody who you would also describe
6
7
as doing marketing, right?
7
8
MS. AILIN: Objection; relevance.
8
9
MR. JAMIESON: There are a lot of issues here about
9
10
what a promoter is, and you are saying there was some
10
11
violation here. I want to find out what she means in
11
12
her mind by promoter. Unless she is going to use a
j 12
13
particular definition and she can refer me to that, 1
13
14
would like to find out what she believes a promoter is
14
15
and test it in cross.
15
16
THE HEARING OFFICER: Overruled.
16
17
BY MR. JAMIESON:
17
18
Q. So, Miss Levin, in your estimation a promoter
18
19
does marketing, true?
19
20
A. I guess. I am not an expert. I'm not a
20
21
marketing — I don't know marketing, so I guess maybe,
21
22
promote — yeah, a promoter markets for a club in this
22
23
instance, yes,
23
24
Q. And a promoter would advertise for a club or
24
25
some business, right? i
25
32 (Pages 477 to 480)
Page 479
A. Perhaps if that was the arrangement.
Q. Do you know — first of all, do you know who
the — what you are calling the promoter is, looking at
Exhibit 13?
MS. AILIN: Objection; vague and ambiguous.
THE HEARING OFFICER: Overruled.
BY MR. JAMIESON:
Q. Based on the length of time that you are
taking to answer --
A. I would say -- well, there is a lot going on
on this page, so I'm not really sure.
Q. Miss Levin, the reason I'm asking the question
is you testified that Exhibit 13 reflects a promoter
promoting for Fury, right?
A. Sure.
Q. So who is the promoter that you say is
promoting for Fury?
A. Well, I would argue that —
Q. 1 don't want you to argue.
A. I'll take argue out of that.
Q. 1 want you to tell me your understanding when
you say this reflects a promoter promoting, whatever
that is, for Fury, who is the promoter that you say is
promoting?
A. I don't know who the promoter is.
Page 480
Q. So if you don't know who the promoter is that
you are referring to as the promoter, how do you know
that they are a promoter for Fury?
A. Well, I don't know who else is advertising for
Fury, but --
Q. Well, perhaps Fury advertises for Fury?
A. Perhaps,
Q. Perhaps Fury promotes for Fury, right?
A. Perhaps.
Q. So we don't really know from Exhibit 13 if
there is any what you are calling a promoter, whatever
that is, doing anything for Fury, do we?
A. I don't know.
Q. And you don't know whether Exhibit 13,
whatever Exhibit 13 was, whether or not it was
authorized in any way by Fury itself, do you?
A. I would have no way of knowing that.
Q. Right. And you don't know who put this
Exhibit 13 out initially, do you?
A. On the original it probably has who this is
from, and we can probably track who it's from I don't
know. Your questions are totally out of my range. I
don't know marketing. 1 don't know promotions. This is
—SO.
Q. I appreciate that, but when you testified that
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Page 482
1
Page 481
1
1
this Is a promoter doing something for Fury, that's why
1
2
I'm asking about these things. So you can't tell from
2
3
Exhibit 13 whether or not there was — I'm going to
3
4
withdraw.
4
5
Miss Levin, do you know — strike that, too.
5
6
Were you present at Fury Thursday, September
6
7
20,2007?
7
8
A. I wasn't at the nightclub; however —
8
9
Q. I'm going to move to strike as being
9
10
nonresponsive and lacks foundation, the word
10
11
"nightclub." It has not been established as a i
11
12
nightclub. Please refer to it as Fury, please.
12
13
Were you at Fury on the night of Thursday,
13
14
September 20?
14
15
A. I was not in the establishment. However, I —
15
16
Q. You have answered the question. You were not
16
17
there September 20, correct?
17
18
A. But I'm not finished. I may have been part of
18
19
an inspection on this evening.
19
20
Q. There is no report here that we have looked at
20
21
that reflects you were there September 20th, is there?
21
22
A. Not so for as I know.
22
23
Q. So when you say you may have been part of !
23
24
something, if there was an inspection there, I'm sure !
24
25
you would have done a report, right?
25
Page 482
1
A. Yes.
1
2
Q. And we don't have a report, and you don't
2
3
remember if you were there September 20; is that all
3
4
true?
4
5
A. Not necessarily. I may have been there and
5
6
just have photographs of parking, which may not be part
6
7
of the record because there is no memorandum for it.
7
a
There is no —
8
9
Q. Sojust—
9
10
A. Okay.
10
11
Q. I'm sorry. I'm trying to wait for you to
11
12
answer.
12
13
A. That's fine. Go ahead.
13
14
Q. You weren't there September 20 to your
14
15
recollection, true?
15
16
A. No, I don't know.
16
17
Q. You don't know If you were there or not?
17
is
A. I was not at ladies' night, Club Eclipse at
18
19
Fury Rok and Rol Sushi Lounge, Newport Beach. I was not
19
20
at Club Eclipse at Fury, no.
20
21
Q. You were not at 4221 Dolphin Striker Road on
21
22
September 20, that night, were you?
22
23
A. No.
! 23
24
Q. So you don't know what happened at Fury on
24
25
September 20th in the evening, do you?
25
33 (Pages 481 to 484)
Page 483
A. No.
Q. And you don't know where this document,
Exhibit 13, came from?
A. Yes, 1 do.
Q. Well, you know that it was e- mailed to you
from a police officer?
A. Yes.
Q. But you don't know the source of that?
A. Yes.
Q. Correct?
A. Correct.
Q. And by the way, as — you are a code
enforcement officer?
A. Yes.
Q. As a code enforcement officer for the City of
Newport Beach, you have the ability to issue citations,
correct?
A. Yes.
Q. And, in fact, you talked early on — earlier
today about certain citations that you issue, that type
of citation, right?
A. Administrative citation, correct.
Q. So you did not issue an administrative
citation for anything that occurred September 20, 2007
at Fury, correct?
Page 484
A. I believe I did not write one for an event on
September — for anything on September 20th.
Q. Thank you. Let's back up to where you began a
little bit ago and what brought you to Fury to begin
with. You testified initially that there was a
complaint that you had received from the planning
department and from someone outside the city, right?
A. That's correct.
Q. And the person who you received a complaint
from in the planning department was who?
A. It was Ruby Garcia May, and she received the
complaint and passed it towards me, and at that point I
opened an investigation, and I received another
complaint from an outside party.
Q. Okay. The complaint that you referenced that
you received from Ruby Garcia May in planning, was that
in writing?
A. Yes.
Q. Is that writing here today?
A. I don't know.
Q. Who is Ruby Garcia May?
A. She is an assistant in the planning
department.
Q. Do know for whom she is an assistant?
A. The planning department.
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Page 487
and he may be protected from any kind of civil
liability, but it's not going to prevent the
identification of that person. That is a witness who
initiated an investigation that has now in part caused
us to be in this proceeding today, so I would like to
know the name of the person. It's possible it's a
competitor. There are two other major restaurants
sharing that parking lot. There were no other residents
around that we have established, so if someone is
complaining as a member of the public, I would like to
know who it is and what its about; and therefore, go
and find out what the investigation is.
MS. AB.IN: Confidentiality of that individual is
also covered by the Newport Beach Municipal Code.
MR. JAMIESON: The Newport Beach Municipal Code is
not going on tramp state and federal laws of a
constitutional process. I would like to know who it is.
THE HEARING OFFICER: I don't know the law, and I
haven't heard from either one of you definitively on the
subject. To keep matters moving, please come up with
some authority by tomorrow. The witness can give the
information to Ailin, and Miss Ailin can provide it if
we rule that there is not a confidentiality or privilege
involved. And then if you need to ask any other
questions right now other than the identity of this
Page 488
person about the nature of the complaint, I think that's
appropriate for him to do that.
MR. JAMIESON. Right.
THE BEARING OFFICER: Just not the identity of the
Person.
MR. JAMIESON: Let's 0 defer on that. Ill defer
on that. That's fine. I understand.
Q. So, with regard to this member of the public,
was this member of the public someone who was, to your
knowledge, or did he identify himself in any way that
made you understand that he was in any way related to
either one of the two businesses that share that parking
lot?
A. I'm not sure if Pm allowed to speak to that
on behalf —
THE HEARING OFFICER: We are going right to the
identity, aren't we?
MR JAMIESON: fm not askmg for the name, but
pmt of what is going on here --
THE HEARING OFFICER: You are one step away from
it.
MR JAMIESON: Part of what's going on here is --
and you generally see this in this type of proceeding is
you have got a shared parking lot. You have got two
other businesses there. There are no other residents
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1
Q. Is she an assistant in general for the
1
2
planning department itself:
2
3
A. I believe maybe for the senior planners in the
3
4
planning department
4
5
Q. Do you know one way or another?
5
6
A. No, I don't.
6
7
Q. So you get something from Ruby Garcia May
7
8
that's in writing that suggests that you open up an
8
9
investigation, right?
9
10
A. Yes.
10
11
Q. And prior to that time, which was early
11
12
September Wr
12
13
A. I believe that was August of 107.
13
14
Q. So prior to August of '07 had you ever visited
14
15
Fury?
15
16
A. No.
I 16
17
Q. When you opened up this file to investigate,
! 17
18
you said you then received some notice from somebody in
18
19
the public. Was that in writing?
19
20
A. 1 believe it was in writing, and I also made
20
21
contact with the individual.
21
22
Q. That writing is also not here, correct?
22
23
A. Idon'tknow.
23
24
Q. But it's not one of the items that you were
24
25
asked about on direct examination a little bit ago,
25
T Page 486:
1
correct'.'
1
2
A. Correct.
2
3
Q. The items or item that the planning department
3
4
asked you to look at included what? Just the parking
4
5
issue?
5
6
A. Parking.
6
7
Q. And the item or items that the member of the
7
8
public asked you to look at or complained about was
8
9
what?
9
10
A. Satan, parking.
10
11
Q. And that was parking in this shared parking
11
12
lot, right?
12
13
A. Parking and valet in the shared parking lot.
13
14
Q. And the person in the public you said you met
14
15
with them, who was that?
15
16
A. I didn't meet with him I spoke with him on
16
17
the phone, and I don't know if I'm at liberty to say who
17
18
it is.
18
19
MS. AILIN: I was going to object on privacy
19
20
grounds. There is a privilege to make complaints of
20
21
this type under Civil Code section -- I believe its
21
22
Civil Code 47.
22
23
MR. JAMIESON: Civil Code section 47 doesn't apply
23
24
to preventing identifying the name of a person who makes
24
25
a complaint. We may not be able to do certain things,
25
34 (Pages 485 to 488)
Page 487
and he may be protected from any kind of civil
liability, but it's not going to prevent the
identification of that person. That is a witness who
initiated an investigation that has now in part caused
us to be in this proceeding today, so I would like to
know the name of the person. It's possible it's a
competitor. There are two other major restaurants
sharing that parking lot. There were no other residents
around that we have established, so if someone is
complaining as a member of the public, I would like to
know who it is and what its about; and therefore, go
and find out what the investigation is.
MS. AB.IN: Confidentiality of that individual is
also covered by the Newport Beach Municipal Code.
MR. JAMIESON: The Newport Beach Municipal Code is
not going on tramp state and federal laws of a
constitutional process. I would like to know who it is.
THE HEARING OFFICER: I don't know the law, and I
haven't heard from either one of you definitively on the
subject. To keep matters moving, please come up with
some authority by tomorrow. The witness can give the
information to Ailin, and Miss Ailin can provide it if
we rule that there is not a confidentiality or privilege
involved. And then if you need to ask any other
questions right now other than the identity of this
Page 488
person about the nature of the complaint, I think that's
appropriate for him to do that.
MR. JAMIESON. Right.
THE BEARING OFFICER: Just not the identity of the
Person.
MR. JAMIESON: Let's 0 defer on that. Ill defer
on that. That's fine. I understand.
Q. So, with regard to this member of the public,
was this member of the public someone who was, to your
knowledge, or did he identify himself in any way that
made you understand that he was in any way related to
either one of the two businesses that share that parking
lot?
A. I'm not sure if Pm allowed to speak to that
on behalf —
THE HEARING OFFICER: We are going right to the
identity, aren't we?
MR JAMIESON: fm not askmg for the name, but
pmt of what is going on here --
THE HEARING OFFICER: You are one step away from
it.
MR JAMIESON: Part of what's going on here is --
and you generally see this in this type of proceeding is
you have got a shared parking lot. You have got two
other businesses there. There are no other residents
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FURY REVOCATION HEARING - 4/18/2008
35 (Pages 489 to 492)
Page 491
If it is, they are competitors and so forth, but it may
not be evident on the face of who this is, but that's
the guy. So again, it may very well be something that
THE HEARING OFFICER: Will you know that when
we -- do you know that whether that -- I mean, I'm not
asking you, but I'm asking whether you would be able to
answer it as to whether that person is in close
proximity and is a neighbor?
THE WITNESS: I think I could answer it.
THE HEARING OFFICER: Then you can tell that to
Miss Ailin as well.
THE WITNESS: Okay.
THE HEARING OFFICER Let's move om
MR. JAMIESON: All right.
Q. So upon initiating that investigation, did you
at that time pull out the conditional use permit for the
property at 4221 Dolphin Striker Road?
A. Yes.
Q. And when you looked at that conditional use
permit, did you then read through all the conditions?
A. Yes.
Q. And based on your education, experience and
training as a code enforcement officer, had you looked
at conditional use permits before and do you feel that
Page 492
you are qualified to at least read through and
understand what the language means?
A. Yes.
Q. How long have you been a code enforcement
officer?
A. Almost five years.
Q. And I gather you have looked at a lot of
conditional use permits before?
A. Yes.
Q. And so you look at the conditional use permit.
At that moment in time you are only looking for parking
issues; is that right?
A. No.
Q. Well, at that moment in time when you pulled
the CUP and you are looking at it, were you also aware
in some way that you should be looking at other issues
as well?
A. Yes, what we say in our tine of work is if you
go in on an inspection you look for something and you
see other things that are maybe in violation.
Everything becomes part of the inspection, of the
Investigation. So if I notice that there are other
things that are out of order or in violation, I also
have to take those into account.
Q. And I'm sure that you like to get a full and
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35
Page 489)
1
around, so nobody else really cares, so if somebody is
1
2
complaining about parking and it's not the city who is
2
3
looking to see if there is a compliance with s
3
4
particular provision, usually, at least what I see, is
4
5
its a competitor which affects the veracity and
5
6
credibility of what they are complaining about because
6
7
clearly they would like to do something about that. We
7
8
need to test them. We can't test them without at least.
8
9
going into that issue.
9
10
THE HEARING OFFICER: So again, we have to wait
1 10
11
until we know whether we can disclose the identity, and
11
12
you have made the point, you know.
12
13
MR. JAMIESON: Okay. So I'll defer on that.
13
14
THE HEARING OFFICER: It seems to me.
14
15
BY MR. JAMIESON:
15
16
Q. Upon opening up this — and just so it's
16
17
clear on the record, I'll then defer that line of
17
18
questioning subject to providing that information to the
18
19
hearing officer, a ruling, and then If Miss Levin needs
19
20
to come back for that limited purpose, I gather we will
20
21
be able to do that.
21
22
THE HEARING OFFICER: Well, can we -- that slows
22
23
down the process. What else would you want to ask
23
24
Miss Levin other than the identity and proximity of this
24
25
witness?
25
Page 490
1
MR JAMIESON: On that issue?
1
2
THE HEARING OFFICER: Yeah.
2
3
MR. JAMIESON: Maybe nothing. It depends on who it
3
4
is, and 1 suspect --
4
5
THE HEARING OFFICER: I don't want to hold this
5
6
hearing up to arrange for Miss Levin to come back and
6
7
have to testify again, so tees -- where is the
7
8
paralegal? Can we get this privilege situation figured
8
9
out and done with?
9
10
MS. AII-IN: She stepped out. I'tn not sure where
10
11
she went
11
12
THE HEARING OFFICER: Maybe we will take an extra
12
13
15 minutes for a break for some lunch, and we can figure
13
14
it out and get it done.
14
15
MR. JAMIESON: Okay. So 1 will just --
15
16
THE HEARING OFFICER: fn the meantime can you think
16
17
about — let's assume for purposes of discussion that
17
18
it's someone in the immediate vicinity that's
I 18
19
complaining. What else would you need to know besides
19
20
who they were?
20
21
MR. JAMISON: The only thing 1 can think of that 1
! 21
22
might need to know might be something that would allow
22
23
us to determine if, in fact, this person, whatever the
j 23
24
name of that person is, is, in, fact related to these
! 24
25
two surrounding businesses that share that parking lot
25
35 (Pages 489 to 492)
Page 491
If it is, they are competitors and so forth, but it may
not be evident on the face of who this is, but that's
the guy. So again, it may very well be something that
THE HEARING OFFICER: Will you know that when
we -- do you know that whether that -- I mean, I'm not
asking you, but I'm asking whether you would be able to
answer it as to whether that person is in close
proximity and is a neighbor?
THE WITNESS: I think I could answer it.
THE HEARING OFFICER: Then you can tell that to
Miss Ailin as well.
THE WITNESS: Okay.
THE HEARING OFFICER Let's move om
MR. JAMIESON: All right.
Q. So upon initiating that investigation, did you
at that time pull out the conditional use permit for the
property at 4221 Dolphin Striker Road?
A. Yes.
Q. And when you looked at that conditional use
permit, did you then read through all the conditions?
A. Yes.
Q. And based on your education, experience and
training as a code enforcement officer, had you looked
at conditional use permits before and do you feel that
Page 492
you are qualified to at least read through and
understand what the language means?
A. Yes.
Q. How long have you been a code enforcement
officer?
A. Almost five years.
Q. And I gather you have looked at a lot of
conditional use permits before?
A. Yes.
Q. And so you look at the conditional use permit.
At that moment in time you are only looking for parking
issues; is that right?
A. No.
Q. Well, at that moment in time when you pulled
the CUP and you are looking at it, were you also aware
in some way that you should be looking at other issues
as well?
A. Yes, what we say in our tine of work is if you
go in on an inspection you look for something and you
see other things that are maybe in violation.
Everything becomes part of the inspection, of the
Investigation. So if I notice that there are other
things that are out of order or in violation, I also
have to take those into account.
Q. And I'm sure that you like to get a full and
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Page 495
When you say you determined it was larger than
just you, is it correct that what you determined was is
that by the time you were asked by planning to look into
the parking Issue, this other part that was larger than
you was already ongoing and existing, right?
A. By the time I was involved with parking, it
was apparent that there was a larger issue at hand.
Q. That there was already another investigation?
A. That there was something else, correct.
Q. So when you looked, then, at the conditional
use permit, in going back to my original question, did
you ever also look at the live entertainment permit?
A. No.
Q. Did you ever also look at the cafe dance
permit?
A. No.
Q. Did you notice in the conditional use permit
that this use at 4221 Dolphin Striker Road included
within its components of things it could do restaurant
as well as providing live entertainment and dancing?
A. Well, from my experience I had known the
property for the last eight years or so. I've seen
different establishments go through, and I'm very
familiar with restaurant use permits, and that use
permits because it might mention that you can obtain a
Page 496
cafe dance permit does not necessarily mean that you can
have a dancing permit, doesn't mean you can have
dancing. So at that point when I realized that there
was more going on and that there were issues at hand
regarding permits, parking agreements, that's when I
stepped back so we could get the bigger picture at hand.
Q. Did you ever go inside Fury?
A. No.
Q. Did you ever become aware that there was, in
fact, a dance floor approved at Fury?
MS. AILIN: Objection; relevance. She said she
never went inside. She has been talking about parking,
outdoor storage.
MR. JAMIESON: I'm getting to that.
MS. AILW: What is the connection?
MR. JAMIESON: I'm getting to that.
THE FEARING OFFICER: What was the question again?
Did you ever go inside?
MR. JAMIESON: She said didn't -- yes, and she said
she didn't go inside, and then 1 said, did you become
aware that there was a dance floor in Fury.
THE HEARING OFFICER: Overruled.
BY MR. JAMIESON:
Q. Were you aware of it?
A. I was aware there was a dance floor at Fury.
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1
accurate understanding of the permits and licenses that
1
2
affect the piece of property that you are investigating,
2
3
true?
3
4
A. Yes.
4
5
Q. So when you looked at the conditional use
5
6
permit at that time and you looked and saw that there
6
7
were indeed conditions that allowed the use at that
7
8
property to provide live entertainment and to provide
8
9
dancing as well as restaurant, food, eating, did you
9
10
look to see if there is a live entertainment permit that
10
11
had been issued by the city?
11
12
A. When I started the investigation, I started
12
13
with the parking as we discussed. When I realized that
13
14
there was an issue with parking, l realized that what
14
15
was happening was maybe bigger than what I had
15
16
originally anticipated. And at this point is -- I
16
17
started communication with the police department, and
j 17
18
they informed me that there is an investigation on their
18
19
side, so we worked together. I was working on parking,
19
20
exterior issues, and that anything else basically in
20
21
that use permit I was not necessarily investigating as
21
22
thoroughly because of the ongoing police investigations.
22
23
Q. So if 1 understand you correctly, even though
I 23
24
normally as a code enforcement officer if you were to go
24
25
into a piece of property, you would fully familiarize
25
page 494
1
yourself with all permits and licenses to look for all
1
2
possible violations. In this situation you were told by
2
3
other places in the city, police department, whatever,
3
4
that your task here would be specifically delineated in
4
5
certain ways and you should follow that?
5
6
A. No, the police department never told me how to
6
7
do my job. But I as a code enforcement officer know
7
8
when not to step on toes especially the police
8
9
department, fire department, building officials. When
9
10
there is something that is outside of my scope of work
10
11
as grand as building code violations, I'm not a
11
12
structural engineer. 1 can't tell you -- or maybe
12
13
occupancy load or occupancy of a building perhaps or
13
14
things that are going on in a police investigatory
14
15
nature. That is not my business. 1 can do what I can
i5
16
— only what I'm assigned to do.
16
17
At that point when this reached bigger than my
17
18
scope of work is when we involved the planning
18
19
department, the city attorney's office, and we all got
19
20
together to work. So as far as — yes, I did do
20
21
parking.
21
22
THE HEARING OFFICER: Sony. You asked.
22
23
BY MR. JAMIESON:
23
24
Q. No, actually that's one of the better answers
24
25
I have gotten all day. Appreciate that.
25
30 IYayCS • j.� t-v 47DJ
Page 495
When you say you determined it was larger than
just you, is it correct that what you determined was is
that by the time you were asked by planning to look into
the parking Issue, this other part that was larger than
you was already ongoing and existing, right?
A. By the time I was involved with parking, it
was apparent that there was a larger issue at hand.
Q. That there was already another investigation?
A. That there was something else, correct.
Q. So when you looked, then, at the conditional
use permit, in going back to my original question, did
you ever also look at the live entertainment permit?
A. No.
Q. Did you ever also look at the cafe dance
permit?
A. No.
Q. Did you notice in the conditional use permit
that this use at 4221 Dolphin Striker Road included
within its components of things it could do restaurant
as well as providing live entertainment and dancing?
A. Well, from my experience I had known the
property for the last eight years or so. I've seen
different establishments go through, and I'm very
familiar with restaurant use permits, and that use
permits because it might mention that you can obtain a
Page 496
cafe dance permit does not necessarily mean that you can
have a dancing permit, doesn't mean you can have
dancing. So at that point when I realized that there
was more going on and that there were issues at hand
regarding permits, parking agreements, that's when I
stepped back so we could get the bigger picture at hand.
Q. Did you ever go inside Fury?
A. No.
Q. Did you ever become aware that there was, in
fact, a dance floor approved at Fury?
MS. AILIN: Objection; relevance. She said she
never went inside. She has been talking about parking,
outdoor storage.
MR. JAMIESON: I'm getting to that.
MS. AILW: What is the connection?
MR. JAMIESON: I'm getting to that.
THE FEARING OFFICER: What was the question again?
Did you ever go inside?
MR. JAMIESON: She said didn't -- yes, and she said
she didn't go inside, and then 1 said, did you become
aware that there was a dance floor in Fury.
THE HEARING OFFICER: Overruled.
BY MR. JAMIESON:
Q. Were you aware of it?
A. I was aware there was a dance floor at Fury.
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FURY REVOCATION HEARING - 4/18/2008
37 (Pages 497 to 500)
Page 499
Q. Right in front of you, Exhibit 2, and the
conditions are identified there.
A Noy 2. I had No. 3, 5, 31, 32.
Q. For parking?
A. Oh, no, no.
Q. Just for parking. We'll go into the other
things at that time.
A. Okay.
Q. For parking you identified conditions 3 and 5?
A. 3 — yes, 3 and 5. 3 — I'm so sorry.
Q. That's all right.
A. And part of 4.
Q. So 3,4 and 5?
A. They kind of roll in together.
Q. They do.
A. 4 and 5 do.
Q. I agree. So conditions 3, 4 and 5, and when
you testified that you formed the opinion that the
conditional use permit was violated by the way in which
you saw parking occur at 4221 Striker, you were talking
about violations of these three conditions?
A. I was talking about the valet service.
Initially it was valet service. There is an agreement
with the three businesses there that they share the lot,
and that -- and also in this use permit it doesn't
Page 500
oudine that they can have any valet service, so the
issue was they weren't allowed valet service for this
use permit. That's why they were cited using the
changes in operational characteristics. Then it
developed into the off -site parking agreements.
Q. I was going to do it a different way, but we
will deal with the valet first since you brought that up.
Is it correct that the conditional use permit
doesn't prohibit valet parking; yes or no?
A. Let's see. The conditional use permit may
not —
Q. Let's stay within the bounds of my question.
A. I'm sorry. Maybe you should say it again.
Q. Is it correct that the conditional use permit,
conditions 3, 4 and 5, do not prohibit valet parking?
A. I don't think it prohibits.
Q. And is it correct that there is nothing else
within the conditional use permit itself that prohibits
valet parking? Take your dare to look at it, and I'm
just asking about the conditional use permit.
A. In my experience with ids permit, I
believe — it's my understanding that valet parking must
be expressly written into this use permit or have a
reference to the Municipal Code, which is in response to
the changes in operational characteristics about the
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1
Q. When you were doing your investigation, at
1
2
that time when you were looking at parking, had you
! 2
3
formed the opinion that dancing at Fury was violative of
3
4
the conditional use permit?
4
5
MS. AILIN: Objection; relevance, outside the scope
5
6
of the witness' testimony, outside the scope other '�i
6
7
expertise and her investigation.
7
8
THE HEARING OFFICER: What was the question again? 1
8
9
MR. JAMIESON: 1 don't know. I need to eat. 1
9
10
will just go back and rephrase the question.
j 10
11
Q. Did you form the opinion that dancing at Fury
11
12
was outside the scope of the conditional use permit?
12
13
MS. All -JN: Objection; relevance, outside the scope
13
14
of her investigation. He might as well be asking her
14
15
about things that were going on over at the Classic Q.
15
16
It's not what she is here to testify about Are we
16
17
going to ask every person who testified about what they
17
18
know about every single aspect of Fury's operation
18
19
whether or not they looked at it, knew about it, had
19
20
anything to do with it?
20
21
MR. JAMIESON: Well, these are the witnesses that
21
22
are observing what is going on at Fury that are being
22
23
produced by the city, so I don't think --
23
24
THE HEARING OFFICER: I'm going to overrule the
24
25
objection. It may lead to some meaningful information
25
Page 498
1
that Mr. Jamieson can obtain, and we are not limited
1
2
entirely to Fury.
2
3
THE WITNESS: So when I began my investigation and
3
4
was introduced to the parking issues, I didn't -- I had
4
5
no idea what was going on at Fury. I had no idea. When
5
6
the parking issues developed, that's when I turned it
6
7
over with the larger picture with the other departments
7
8
involved, and that's when I learned the nature of the
8
9
establishment.
9
10
BY MR. JAMIESON:
10
11
Q. And you learned — when you say you learned of
11
12
the nature of the establishment, you are talking about
12
13
what other people were telling you about what was
13
14
happening there; is that true?
14
15
A. There was —
15
16
MS, AIUN: Objection; relevance.
! 16
17
MR. JAMIESON: I'll withdraw. It's not necessary.
j 17
18
Q. Directing your attention, then, to the
18
19
parking issues.
19
20
A. Okay.
20
21
Q. The conditional use permit conditions that you
21
22
focused on as I understand it for puking were
22
23
conditions 3 and 4; is that right?
23
24
A. Do you have an exhibit where I can look at the
24
25
CUP?
25
37 (Pages 497 to 500)
Page 499
Q. Right in front of you, Exhibit 2, and the
conditions are identified there.
A Noy 2. I had No. 3, 5, 31, 32.
Q. For parking?
A. Oh, no, no.
Q. Just for parking. We'll go into the other
things at that time.
A. Okay.
Q. For parking you identified conditions 3 and 5?
A. 3 — yes, 3 and 5. 3 — I'm so sorry.
Q. That's all right.
A. And part of 4.
Q. So 3,4 and 5?
A. They kind of roll in together.
Q. They do.
A. 4 and 5 do.
Q. I agree. So conditions 3, 4 and 5, and when
you testified that you formed the opinion that the
conditional use permit was violated by the way in which
you saw parking occur at 4221 Striker, you were talking
about violations of these three conditions?
A. I was talking about the valet service.
Initially it was valet service. There is an agreement
with the three businesses there that they share the lot,
and that -- and also in this use permit it doesn't
Page 500
oudine that they can have any valet service, so the
issue was they weren't allowed valet service for this
use permit. That's why they were cited using the
changes in operational characteristics. Then it
developed into the off -site parking agreements.
Q. I was going to do it a different way, but we
will deal with the valet first since you brought that up.
Is it correct that the conditional use permit
doesn't prohibit valet parking; yes or no?
A. Let's see. The conditional use permit may
not —
Q. Let's stay within the bounds of my question.
A. I'm sorry. Maybe you should say it again.
Q. Is it correct that the conditional use permit,
conditions 3, 4 and 5, do not prohibit valet parking?
A. I don't think it prohibits.
Q. And is it correct that there is nothing else
within the conditional use permit itself that prohibits
valet parking? Take your dare to look at it, and I'm
just asking about the conditional use permit.
A. In my experience with ids permit, I
believe — it's my understanding that valet parking must
be expressly written into this use permit or have a
reference to the Municipal Code, which is in response to
the changes in operational characteristics about the
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FURY REVOCATION HEARING - 4/18/2008
38 (Pages 501 to 504)
Page 503
Q. I was looking for the exhibit.
MS. AILIN: Exhibit 30.
MR. JAMIESON: Thank you.
Q. Let me direct your attention to Exhibit 40.
Now, on Exhibit 40 — do you have that in front of you?
A. Yes.
Q. On Exhibit 40 this reflects that when you went
there on September — Exhibit 40 reflects that you
visited Fury on what day?
A. It doesn't say that I was there on any certain
day.
Q. Exhibit 40 is dated September 4; is that
correct?
A. That's correct.
Q. And on September 4th you identified in this
Exhibit 40 that you observed valet to occur, right?
A. No.
Q. The citations that you have referenced in the
couple of pages in Exhibit 40 after the first page, do
you see those?
A. Yes.
Q. Do any of these citations indicate that you
observed valet parking to occur?
A. Yes.
Q. And was it both or Just one?
Page 504
A. It was September 13th.
Q. Where on this citation does it indicate that
that's the day you were there?
A. It's in photographs that I have of the valet
service on September 1311L
Q. So looking at the citation itself, it says
here citation September 13,'07, right?
A. Uh -huh.
Q. Is that "yes "?
A. Yes.
Q. But it also says — it really says citation,
slash, correction dated September 13,'07; is that
right?
A. Yes.
Q. And based on your education, experience,
training and history as a code enforcement officer, the
date that's placed in that citation correction can
either be a citation or a correction date, correct?
A. Yes.
Q. And here with regard to valet, this — you
believe that this was actually issued on September 13?
A. This was issued on September 13.
Q. And it was based on your observation with
respect to valet?
A. Yes.
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Page 501!
1
valet parking. So when I — because I work with the
1
2
planning department on the valet parking issue, that it j
2
3
was an agreement that it was not in their use permit, so j
3
4
they had to have an agreement or permit for the valet, !
4
5
and it was not expressly in here that they could have a
5
6
valet service.
6
7
MR. JAMIESON: fm going to move to strike as being
7
8
nonresponsive the entire testimony by the witness and
8
9
also on the basis of lack of foundation, speculation and
9
10
hearsay.
10
11
THE HEARING OFFICER: I'll sustain itjust on the
11
12
basis that the -- the question was whether the permit
12
13
deals with valet
13
14
MR. JAMIESON: Actually, excuse me, with due
14
15
respect. The question was does the CUP prohibit valet.
15
16
Q. Within the team of the CUP does it prohibit
16
17
valet parking?
17
18
A. I — let me see.
18
19
THE HEARING OFFICER: Her answer extended out was j
19
20
essentially saying the permit itself doesn't prohibit
20
21
it, but it's my understanding that the city prohibits
21
22
valet parking unless permitted in the permit; therefore,
22
23
it does deal with it. So its very confusing and let's
23
24
stay with striking the answer and deal with the
24
25
straightforward question of what the permit allows or it
25
Page 502
1
doesnt.
1
2
MR JAMIESON: Thank you.
2
3
Q. The conditional use permit, condition No. 3
3
4
does not prohibit valet parking, does it?
4
5
A. Not that I can see.
5
6
Q. Condition No. 4 does not prohibit valet
6
7
parking, does it; yes or no?
7
8
A. Pm reading it. No, 4 does not.
8
9
Q. And condition No. 5 does not prohibit valet i
9
10
parking, does it?
10
11
A. No.
11
12
Q. Is that correct?
12
13
A. It does not prohibit.
13
14
Q. Now, with respect to valet parking, let's
14
15
assume for a moment, without conceding from my
15
16
standpoint that valet parking is prohibited or illegal
16
n
in any manner, not conceding any of that, let's assume
17
18
for a second that for some reason there is a basis for
18
19
that, just assume for purposes of argument and for this
19
20
question.
20
21
Let me direct your attention now to the first
21
22
time that you went out there, which was what? September
22
23
something?
23
24
A. The first time I would have been out there was
24
25
in September.
25
38 (Pages 501 to 504)
Page 503
Q. I was looking for the exhibit.
MS. AILIN: Exhibit 30.
MR. JAMIESON: Thank you.
Q. Let me direct your attention to Exhibit 40.
Now, on Exhibit 40 — do you have that in front of you?
A. Yes.
Q. On Exhibit 40 this reflects that when you went
there on September — Exhibit 40 reflects that you
visited Fury on what day?
A. It doesn't say that I was there on any certain
day.
Q. Exhibit 40 is dated September 4; is that
correct?
A. That's correct.
Q. And on September 4th you identified in this
Exhibit 40 that you observed valet to occur, right?
A. No.
Q. The citations that you have referenced in the
couple of pages in Exhibit 40 after the first page, do
you see those?
A. Yes.
Q. Do any of these citations indicate that you
observed valet parking to occur?
A. Yes.
Q. And was it both or Just one?
Page 504
A. It was September 13th.
Q. Where on this citation does it indicate that
that's the day you were there?
A. It's in photographs that I have of the valet
service on September 1311L
Q. So looking at the citation itself, it says
here citation September 13,'07, right?
A. Uh -huh.
Q. Is that "yes "?
A. Yes.
Q. But it also says — it really says citation,
slash, correction dated September 13,'07; is that
right?
A. Yes.
Q. And based on your education, experience,
training and history as a code enforcement officer, the
date that's placed in that citation correction can
either be a citation or a correction date, correct?
A. Yes.
Q. And here with regard to valet, this — you
believe that this was actually issued on September 13?
A. This was issued on September 13.
Q. And it was based on your observation with
respect to valet?
A. Yes.
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Page 505
Page 507
1
Q. And that is then sent to Fury apparently, oM1,
1
Q. Now, let's go back and look at the balance of
2
let's say it hit the Newport Beach police — strike
2
it. We have taken care of the valet issue. The next
3
that.
3
Issue you identified is the issue of the parking and
4
It hit the Newport Beach Post Office September
4
where employees should be parking, right?
5
1& That's what that—
j 5
A. Yes.
6
A. No, that is the return. They signed for this.
6
Q. Once again, with regard to that issue, you
7
It looks like it's cut off when they actually signed for
1 7
looked at the conditional use permit. You identified
8
it. It has a date of delivery. They are supposed to
8
conditions 3, 4 and 5, true?
9
write it. They signed it. This is the date that the
9
A. Yes.
10
Newport Beach Post Office received it back
10
Q. Any other conditions you looked at with regard
11
Q. That's fine. All 1 really care about is the
11
to that particular issue?
12
fact that when you issued the citation you then mailed
12
A. I worked with the planning department on the
13
it to Fury and at some point it got there or it got back
13
issue for parking because it was apparent at that point
14
September 18th?
14
that there was a parking agreement that had been agreed
15
A. I received it after September 13th.
15
upon by the owners of the old El Torito and where the
16
Q. The next document that we looked at here is
16
current parking structure is, and the agreement that we
17
Exhibit 8, so let me direct your attention to that,
17
reviewed, Rosalinh — you may or may not have her as one
is
which is a November 15 memo, which reflects your visits
18
of your witnesses. We reviewed the parking agreement
19
November 21st, November 10th and November 15th, correct?
19
that they had 16 off -site spots that they were supposed
20
A. Uh -huh, yes.
20
to adhere to, so at that point — and this date was in
21
Q. And on those dates the question being asked,
21
November that you are referring to, these November
22
was there a valet service, and on those three dates you
22
dates, right?
23
identified that, no, there was not a valet service,
23
Q. Ultimately I'm not.
24
correct?
24
A. Justingeneral.
25
A. That is correct.
25
Q. Do you know what? Let me try and do this
Page 506
Page 508
1
Q. So that indicates, then, that when you visited
1
because --
2
Fury on September 13th and you observed a valet service
2
A. There is just so much, you know.
3
to occur there and you issued a citation telling them
3
Q. I realize they but let me try and do what I
4
that they should not be doing a valet service, that when
4
can to keep you focused and keep me focused.
5
you next went back and took photographs and did an
5
A. Yes.
6
investigation and were there for three days and then
6
Q. Here is my question: When you initiated your
7
issued a memo, you formed the conclusion as of that time
7
investigation and the valet issue we have talked about
8
at least that whatever valet service had been occurring
8
already, and you moved, as you said, to the issue of
9
had ceased to exist' correct?
9
where people park, bad issue itself, employees,
10
A. I spoke with the manager of the valet
10
whatever. The conditions that you looked at the
11
service. After Fury received the citation for the valet
11
conditional use peradt were 3, 4 and 5, right?
12
service, within a few days I spoke with the manager of
12
A. Regard parking, yes.
13
the valet service. I believe his mane was Alex, and I
13
Q. And no other conditions within the conditional
14
explained to him if the valet service continued, he was
14
use permit with respect to parking?
15
going to accrue serious fines. They would start going
15
A. I don't believe so. It looks like it's just
16
to $500 a day for a valet service, so at that point
16
these ones unless I'm missing something right now,
17
thereafter when 1 went out there I did not witness a
17
but —
18
valet service.
18
Q. Now, in addition to looking at the conditional
19
Q. And that's really all I'm trying to get to is
19
use permit, you also determined that there was a parking
20
that after September 13th of 2007 and we are sitting
20
agreement of some sort that provided 16 spaces in a
21
April 18th, 2008 — you never saw the valet service in
21
multi -level park structure adjacent to the shared
22
place for Fury ever again?
22
parking lot where Fury I% right?
23
A. I don't believe so.
23
A. Correct
24
Q. is that correct?
24
Q. That parking agreement that you looked at you
25
A. I believe that's correct.
25
identified at some point in some report you did as
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FURY REVOCATION HEARING - 4/18/2008
40 (Pages 509 to 512)
Page 511
Q. And part of what you were looking at is to see
whether or not the employees of Fury parked in those 16
spaces, right?
A. Yes.
Q. There is no contention that those 16 spaces
weren't available in that multi -level structure per this
written agreement between the property owners, right?
A Between the property owners — I'm sorry. Say
it again. I'm getting confused.
Q. There is no contention on your part that there
was no agreement in place to provide the 16 spaces in
the multi-level structure. I gather your contention is
that they were provided there, they could have used
them, and they didn't; is that fair?
A. That's fair.
Q. So we are not discussing whether or not they
are available. We'll just assume that that's true based
on your investigation and what you saw and whatever
documentation you saw, right? 16 spaces available in
the structure?
A. Yes.
Q. Now, so directing your attention to condition
No.3 that you looked at when you were doing the
investigation, having those 16 spaces available
satisfies and does not violate condition No. 3, true?
Page 512
A. It doesn't violate No. 3. They just must be
utilized, I believe.
Q. We are not there yet. Condition No. 3 says it
has got to be provided. It satisfies that condition, so
condition No. 3 is not violated, correct?
A. Well —
Q. Just 3, just bear with me on this.
A. It is violated.
Q Why?
A. 1 mean, if they are not being utilized, then
it's a basic violation.
Q. Let's stop right there. Let's stop right
there. Now, Miss Levin, you are fully familiar with —
you've got education, experience and training being a
code enforcement officer. You have stated and testified
that you have learned to review conditional use permits.
Part of your duties is to review conditional use permits
and help determine whether or not you feel there is a
violation or not. You have made that clear. Okay?
Here is my question — that's just a preface.
Here is my question: Condition No. 3 says very clearly
by its language a minimum of 16 off -site parking spaces
shall be provided on the property.
A. Okay.
Q. Right?
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Page 509)
1
86. 149743; is that right?
1
2
A. Yes.
2
3
Q. That parking agreement that provided the
3
4
ability — that provided for the ability of the
4
5
occupants of 4122 Striker to use 16 spaces In that
5
6
multi-level park structure is that agreement that you i
6
7
are referencing, right?
7
8
A. Yes.
8
9
Q. With respect to the conditional use permit,
9
10
because we are here for — to determine if there is a
10
11
violation of the conditional use permit, so with respect
11
12
to the conditional use permit, I want to direct your j
12
13
attention to first condition No. 3. In condition No. 3
13
14
it says: !
14
15
"A minimum of 16 off -site parking
15
16
spaces shall be provided on property
16
17
described as parcel No. 1, on parcel map j
17
18
83-705 located at 1500 Dove Street and
18
19
4141 MacArthur Boulevard. Said parking
19
20
spaces shall be provided for the duration
20
21
of the restaurant use."
21
22
Did 1 read that correctly?
22
23
A. Yes.
23
24
Q. Solely with respect to condition No. 3 and
24
25
based on your observation of this parking agreement that
25
40 (Pages 509 to 512)
Page 511
Q. And part of what you were looking at is to see
whether or not the employees of Fury parked in those 16
spaces, right?
A. Yes.
Q. There is no contention that those 16 spaces
weren't available in that multi -level structure per this
written agreement between the property owners, right?
A Between the property owners — I'm sorry. Say
it again. I'm getting confused.
Q. There is no contention on your part that there
was no agreement in place to provide the 16 spaces in
the multi-level structure. I gather your contention is
that they were provided there, they could have used
them, and they didn't; is that fair?
A. That's fair.
Q. So we are not discussing whether or not they
are available. We'll just assume that that's true based
on your investigation and what you saw and whatever
documentation you saw, right? 16 spaces available in
the structure?
A. Yes.
Q. Now, so directing your attention to condition
No.3 that you looked at when you were doing the
investigation, having those 16 spaces available
satisfies and does not violate condition No. 3, true?
Page 512
A. It doesn't violate No. 3. They just must be
utilized, I believe.
Q. We are not there yet. Condition No. 3 says it
has got to be provided. It satisfies that condition, so
condition No. 3 is not violated, correct?
A. Well —
Q. Just 3, just bear with me on this.
A. It is violated.
Q Why?
A. 1 mean, if they are not being utilized, then
it's a basic violation.
Q. Let's stop right there. Let's stop right
there. Now, Miss Levin, you are fully familiar with —
you've got education, experience and training being a
code enforcement officer. You have stated and testified
that you have learned to review conditional use permits.
Part of your duties is to review conditional use permits
and help determine whether or not you feel there is a
violation or not. You have made that clear. Okay?
Here is my question — that's just a preface.
Here is my question: Condition No. 3 says very clearly
by its language a minimum of 16 off -site parking spaces
shall be provided on the property.
A. Okay.
Q. Right?
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Page 510
1
provided for 16 spaces in that adjacent multi -level
1
2
parking lot, did, in fact, there exist 16 on -site
2
3
parking spaces in that lot per that agreement; yes or
3
4
n0?
4
5
A. Per the agreement — you know, it's not in
5
6
front of me. I can't reference it. This issue is —1
6
7
know you are trying to keep me — but there was a
7
8
meeting between city staff and Fury.
8
9
Q. I'm sorry, but I've got to stop. You looked
9
10
at the agreement. Do you know whether or not that
10
11
agreement provided for the ability of the occupants at
11
12
4121 Striker to use 16 spaces in that multi -level
12
13
parking structure?
13
14
A. Do we have a copy of the agreement?
14
15
Q. Not here.
15
16
MS. AILIN: Not here.
16
17
THE WITNESS: Okay. I'm song. Say it again
17
is
because I'm trying to —
18
19
BY MR, JAMIESON:
19
20
Q. Do you know as you sit here today based on
20
21
your investigation whether or not there were, in fact,
21
22
16 spaces that were available per the agreement to be
22
23
used in that multi -level parking structure?
23
24
A. There were at least 16 spaces in that parking
24
25
structure for use.
25
40 (Pages 509 to 512)
Page 511
Q. And part of what you were looking at is to see
whether or not the employees of Fury parked in those 16
spaces, right?
A. Yes.
Q. There is no contention that those 16 spaces
weren't available in that multi -level structure per this
written agreement between the property owners, right?
A Between the property owners — I'm sorry. Say
it again. I'm getting confused.
Q. There is no contention on your part that there
was no agreement in place to provide the 16 spaces in
the multi-level structure. I gather your contention is
that they were provided there, they could have used
them, and they didn't; is that fair?
A. That's fair.
Q. So we are not discussing whether or not they
are available. We'll just assume that that's true based
on your investigation and what you saw and whatever
documentation you saw, right? 16 spaces available in
the structure?
A. Yes.
Q. Now, so directing your attention to condition
No.3 that you looked at when you were doing the
investigation, having those 16 spaces available
satisfies and does not violate condition No. 3, true?
Page 512
A. It doesn't violate No. 3. They just must be
utilized, I believe.
Q. We are not there yet. Condition No. 3 says it
has got to be provided. It satisfies that condition, so
condition No. 3 is not violated, correct?
A. Well —
Q. Just 3, just bear with me on this.
A. It is violated.
Q Why?
A. 1 mean, if they are not being utilized, then
it's a basic violation.
Q. Let's stop right there. Let's stop right
there. Now, Miss Levin, you are fully familiar with —
you've got education, experience and training being a
code enforcement officer. You have stated and testified
that you have learned to review conditional use permits.
Part of your duties is to review conditional use permits
and help determine whether or not you feel there is a
violation or not. You have made that clear. Okay?
Here is my question — that's just a preface.
Here is my question: Condition No. 3 says very clearly
by its language a minimum of 16 off -site parking spaces
shall be provided on the property.
A. Okay.
Q. Right?
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Page 515
A. Correct.
Q. So now let's look at the last one you looked
at. It says:
"No. 5. The restaurant employees
shall be required to use the 16 off -site
parking spaces."
Did I read that correctly?
A. Yes.
Q. Now, did you ever determine how many employees
this restaurant has in total at that time?
MS. ALIN: Objection; relevance.
MR. JAMIESON: That's very relevant.
THE HEARING OFFICER: Overruled.
THE WITNESS: Yes, tbere was an employee list
obtained from a meeting, Fury staffand city staff
meeting that had a list of employees on there.
BY MR. JAMIESON:
Q. And when did you obtain that?
A. I don't know if 1 even have it in my records.
It was part of the city record I probably received it
in early November.
Q. Is it your recollection that the number of
employees at this location exceeded 60?
A No.
Q. Is it correct that the number of employees at
Page 516
this location exceeded 30?
A. I cannot say.
Q. Because you don't know, right?
A. I can't remember. I can see the list in my
head. dust can't count all the numbers.
Q. If the number of employees at the Fury
exceeded 30, or exceeded 60, would you agree that either
one is greater than 16 spaces?
A. Yes.
Q. Now, is it correct that there is no condition,
3, 4 or 5 — well, let's leave 3 and 4 out of it because
we are done with that. Is it correct that condition No.
5 does not say that the restaurant employees are not
allowed to use any part of the shared parking in that
shared parking lot? It only says that the restaurant
employees shall be required to use the 16 off -site
parking spaces?
A. That's correct.
Q. So it never says anywhere in this conditional
use permit that the restaurant employees are prohibited
from parking in the shared parking lot, right?
A. There is —
Q. It doesn't say that?
A. The agreement was that the 16 off -site parking
spaces must have been used first and then they could go
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Page 513
1
A. Right.
1
2
Q. That is the operative language; would you
2
3
agree?
3
4
A. Yes.
4
5
Q. And that language says it's to be provided.
5
6
Since it was provided condition No. 3 is complied with,
6
7
correct?
7
8
A. Correct.
a
9
Q. So we'll move condition No. 3 off the plate.
9
10
Now let's look at condition No. 4. Condition
10
11
No. 4 says, "The applicant, which is 4221 Striker" —
11
12
A. Correct.
12
13
Q. — "shall maintain the records and
13
14
covenants against the property comprising
14
15
of the approved off -street parking
15
16
location, form and content of which is
16
17
acceptable to the City binding the
17
18
applicant and its successor in interest
16
19
in perpetuity to provide a minimum of 16
19
20
parking spaces for the subject
20
21
restaurant."
21
22
Did I read it correctly?
22
23
A. Yes.
23
24
Q. And in fact, what you found in your
24
25
investigation is that that part of condition No. 4 was,
25
Page 514
1
in fact, complied with and satisfied, right? The
1
2
agreement did provide iy 16 parking spaces, just to
2
3
provide it?
3
4
A. Okay.
4
5
Q. Do you agree?
5
6
A. That the parking agreement must provide 16
6
7
off -site parking spaces.
7
a
Q. And based on your observations it did provide
s
9
it?
i 9
10
A. Yes.
10
11
Q. Now, the next part of condition No. 4 says:
11
12
"This covenant shall continue in
12
13
effect until such time as the restaurant
13
14
has been discontinued or suitable
14
15
replacement parking is provided at a
15
16
location acceptable to the planning
16
17
commission," right?
17
18
A. Yes.
18
19
Q. And there is no violation of condition No. 4,
19
20
then, because the covenant, which is that agreement that
20
21
you looked at, providing for those 16 spaces was, in
21
22
fact, in place at the time when you were doing your
22
23
investigation?
23
24
A. Yes.
24
25
Q. So now 3 and 4 are not violated, right?
25
41 (Pages 513 to 516)
Page 515
A. Correct.
Q. So now let's look at the last one you looked
at. It says:
"No. 5. The restaurant employees
shall be required to use the 16 off -site
parking spaces."
Did I read that correctly?
A. Yes.
Q. Now, did you ever determine how many employees
this restaurant has in total at that time?
MS. ALIN: Objection; relevance.
MR. JAMIESON: That's very relevant.
THE HEARING OFFICER: Overruled.
THE WITNESS: Yes, tbere was an employee list
obtained from a meeting, Fury staffand city staff
meeting that had a list of employees on there.
BY MR. JAMIESON:
Q. And when did you obtain that?
A. I don't know if 1 even have it in my records.
It was part of the city record I probably received it
in early November.
Q. Is it your recollection that the number of
employees at this location exceeded 60?
A No.
Q. Is it correct that the number of employees at
Page 516
this location exceeded 30?
A. I cannot say.
Q. Because you don't know, right?
A. I can't remember. I can see the list in my
head. dust can't count all the numbers.
Q. If the number of employees at the Fury
exceeded 30, or exceeded 60, would you agree that either
one is greater than 16 spaces?
A. Yes.
Q. Now, is it correct that there is no condition,
3, 4 or 5 — well, let's leave 3 and 4 out of it because
we are done with that. Is it correct that condition No.
5 does not say that the restaurant employees are not
allowed to use any part of the shared parking in that
shared parking lot? It only says that the restaurant
employees shall be required to use the 16 off -site
parking spaces?
A. That's correct.
Q. So it never says anywhere in this conditional
use permit that the restaurant employees are prohibited
from parking in the shared parking lot, right?
A. There is —
Q. It doesn't say that?
A. The agreement was that the 16 off -site parking
spaces must have been used first and then they could go
Precise Reporting Service
714 - 647 -9099
c"l"a,
FURY REVOCATION HEARING - 4/18/2008
,±z kratyes �1? Lo 5�v)
Page 519
September, to start off with.
Did you ever cite Fury for what you
understood to be employees parking in the shared parking
lot?
THE HEARING OFFICER: I'm sorry. What exhibit are
you referring to in September?
MR, JAMIESON: Exhibit 40.
THE HEARING OFFICER: 40?
MR. JAMIESON: Uh -huh,
THE WITNFSS: I did not cite for employee parking.
BY MR JAMIESON:
Q. In September?
A Ever, 1 don't believe.
Q. I appreciate that, and I'm going to get there,
but in September —
A. In September I did not cite Fury for employee
parking issues.
Q. And in September the letter that you wrote to
Mr. Schillind says according to UP3162 conditions 3 and
5, all employees are to park In the 16 offsite parking
spaces, right? You wrote that?
A. 1 did.
Q. But that's incorrect, isn't it?
A. That is incorrect.
Q. Because at that time in September as now that
Page 520
conditional use permit did not require all employees to
park In the 16 offsite parking spaces, correct?
A. That's correct, we can probably strike the
"all."
Q. Now, when you were there in September, you
observed people or cars to utilize the shared parking
lot?
A. There were patrons using the shared parking
lot — patrons using the shared parking lot and patrons
using the off -site park lot
Q. Neither one of which violates the conditional
use permit in your estimation, right?
A. No.
Q. 1 mean, that's correct, yes?
A. Correct.
Q. Now, in September you did not observe anything
that you felt needed a citation for the parking issue,
right?
A. That's incorrect.
Q. Other than the valet?
A. The valet,
Q. I appreciate that Other than the valet you
didn't see anything that required a citation on the
parking issue, right?
A. Correct.
Precise Reporting Service
714- 647 -9099
� �a
Page 517
1
into the — into the shared lot.
1
2
MR. JAMIESON: I'm going to object; move to strike,
2
3
nonresponsive, calls for hearsay and speculation.
3
4
Q. If the agreement — do you remember — first
4
5
of all, I need a ruling, I guess.
5
6
THE HEARING OFFICER: Well, Pm going to overrule
6
7
that, and the reason for it is that she responded that
7
8
the agreement requires and condition 4 talks about the
8
9
covenant, which I assume is the agreement.
9
10
MR. JAMIESON; Right.
10
11
THE HEARING OFFICER: And so if you want to do it
11
12
again, so that I will try it.
12
13
BY MR. JAMIESON:
13
14
Q. The agreement — the conditional use permit
14
15
requires this covenant to provide 16 spaces, correct?
15
16
A. That's correct.
16
17
Q. The conditional use permit says the restaurant
17
18
employees shall be required to use the 16 offsite
18
19
parking spaces, correct?
19
20
A. That's correct
20
21
Q. The conditional use permit nowhere says the
21
22
employees have to use those 16 off -site parking spaces
22
23
first, does it? I
23
24
A. The use permit does not say that.
24
25
Q. And whatever this other document is, parking
25
Page 518
1
agreement, covenant, whatever it is, do you remember
1
2
every line and provision in that parking agreement?
2
3
A. No.
3
4
Q. So the parking agreement that you are
4
5
referencing is going to say whatever it's going to say.
5
6
1 understand that. I'm asking about the conditional use !
6
7
permit right now. And if there are more than 16
7
8
employees for this Fury location, this 4221 Striker,
8
9
then we can assume as we sit here today that these
9
10
employees are going to be parking once it gets over 16
10
11
someplace else?
11
12
A. I'm not going to assume that.
12
13
Q. There is nothing in the conditional use permit
13
14
that requires the employees to arrive by bus, is there?
14
15
Some CUPS say that You have got to take a
15
16
bus; you have got to take a bicycle. There is nothing
16
17
in this CUP that requires the employees to travel to
17
1 B
work in a particular way or manner; is that correct?
18
19
A. No, there is not.
19
20
Q. And this conditional use permit simply says
20
21
that the restaurant employees shall be required to use
21
22
the 16 off -site parking spaces. It doesn't say
22
23
exclusively, does it?
23
24
A No, it does not say exclusively.
24
25
Q. Now, let's take a look at what you observed in
25
,±z kratyes �1? Lo 5�v)
Page 519
September, to start off with.
Did you ever cite Fury for what you
understood to be employees parking in the shared parking
lot?
THE HEARING OFFICER: I'm sorry. What exhibit are
you referring to in September?
MR, JAMIESON: Exhibit 40.
THE HEARING OFFICER: 40?
MR. JAMIESON: Uh -huh,
THE WITNFSS: I did not cite for employee parking.
BY MR JAMIESON:
Q. In September?
A Ever, 1 don't believe.
Q. I appreciate that, and I'm going to get there,
but in September —
A. In September I did not cite Fury for employee
parking issues.
Q. And in September the letter that you wrote to
Mr. Schillind says according to UP3162 conditions 3 and
5, all employees are to park In the 16 offsite parking
spaces, right? You wrote that?
A. 1 did.
Q. But that's incorrect, isn't it?
A. That is incorrect.
Q. Because at that time in September as now that
Page 520
conditional use permit did not require all employees to
park In the 16 offsite parking spaces, correct?
A. That's correct, we can probably strike the
"all."
Q. Now, when you were there in September, you
observed people or cars to utilize the shared parking
lot?
A. There were patrons using the shared parking
lot — patrons using the shared parking lot and patrons
using the off -site park lot
Q. Neither one of which violates the conditional
use permit in your estimation, right?
A. No.
Q. 1 mean, that's correct, yes?
A. Correct.
Q. Now, in September you did not observe anything
that you felt needed a citation for the parking issue,
right?
A. That's incorrect.
Q. Other than the valet?
A. The valet,
Q. I appreciate that Other than the valet you
didn't see anything that required a citation on the
parking issue, right?
A. Correct.
Precise Reporting Service
714- 647 -9099
� �a
FURY REVOCATION HEARING - 4/18/2008
43 (Pages 521 to 524)
Page 523
off -site parking spots for the valet service.
Q. We'll move on to No. 3. I'm not sure if you
understood that, but it doesn't natter. No. 3, "Is the
off -site lot being utilized by employees" is the next
question, right?
A. Yes.
Q. And your response here is "I did not witness
any employees parking off -site and walking to Fury,"
right?
A. That's correct.
Q. Let's stop here for a second. On November
Ist, November 10th and November 15, on any of those
three occasions did you station yourself at all times
while you were there in the portion of the multi-level
parking lot that included the 16 reserved spots?
A. The 16 reserved spots were agreed upon that
they would use I believe it was the first and second
Boors, so 1 would park in different locations every
time to get a different angle to see if I was in the
wrong place if I wouldn't see something. I parked on
the top level. 1 parked on the second floor. I parked
on the on -site lot, so there is — yes, I —
Q. Okay.
A. —was everywhere.
Q. Fair enough. On November 1st, 10th and the
Page 524
15th, right?
A. Yes.
Q. Then you state, "I noticed certain employees
parking in the shared lot and walking to the back door
of Fury"; is that correct?
A. Yes.
Q. Do you agree that we now understand from the
conditional use permit that there is nothing in the
conditional use permit that prohibits the employees from
using the shared lot, right?
A. Sure.
Q. So the photos you attached here of these
three cars, you say the white Ford 150, the green Honda
Civic and the white Chevy Lumina, you have identified
license numbers, right?
A. Yea
Q. And by the time you are there on November 1st,
10th and 15th, you are aware that the police department
is investigating and whoever else is looking into this
within the city, right?
A. Yes.
Q. And did you ask the police department to
identify who the registered owners were of those three
vehicles so you could cross- reference them to somebody
who actually was an employee of Fury?
Precise Reporting Service
714 - 647 -9099
J�
Page 521
1
Q. By the way, in your letter of September 4, 1
1
2
2007 identified as Exhibit 40 when you were explaining 1
2
3
to Mr. Schillizzi that certain violations have occurred,
j 3
4
you also identified on the valet issue, you said in the
4
5
fourth paragraph down, second sentence, you said, "You!
5
6
are also to immediately cease any blocking or reserving
6
7
of parking In the" — "at the shared lot, right?
7
8
A. Yes.
8
9
Q. The conditional use permit doesn't prohibit
9
10
any blocking or reserving of parking at the shared lot,
! 10
11
does it?
11
12
A. That's not in reference to a use permit.
12
13
That's in reference to a Newport Beach Municipal Code.
13
14
That lot is a first -come, first- served lot, and
14
15
reserving parking spaces is not a first -come,
15
16
first- served sharing of a lot
16
17
Q. Do you cite the code section that says that?
17
18
A. I didn't cite it, no. No, I did not 1
18
19
don't believe 1 did. Maybe it's in 2082060. I could
19
20
look it up or 06.
20
21
Q. Let's direct our attention now to —when you
21
22
say maybe, you don't know for sure as you sit here right
22
23
now, right?
23
24
A. I'd have to look, but off the top of my head
24
25
1 can't tell you what it says.
25
Page 522
1
Q. The next one you talked about was Exhibit 8,
1
2
so let's direct our attention to Exhibit 8. Do you have
2
3
that in front of you?
3
4
A. I do. I have it in front of me.
4
5
Q. And that's a November 15, 2007 memo. We
5
6
referred to it briefly a couple of minutes ago, and it's
6
7
referencing your activities at 4221 Striker on November
7
8
1st, November 10th and November 15th of 2007, correct?
a
9
A. Correct.
9
10
Q. We have already talked about the valet
! 10
11
service, so we won't deal with that. The second
11
12
question the city attorney asked you to find out about
12
13
is are they stacking cars in the off -site lot, correct?
13
14
A. Correct.
14
15
Q. And your answer to Mr. Harp's question in that
15
16
regard was based on your observations on those three
16
17
occasions there was no stacking of vehicles off -site,
17
18
correct?
18
19
A. That's correct
19
20
Q. And by the way, there is nothing in the
20
21
conditional use permit that prohibits utilizing the
21
22
off -site lot, is there? Just looking at the conditional
22
23
permit
23
24
A. This follow -up question was in, I believe, if
24
25
I'm correct, the vale p81419{df they were using
I 25
43 (Pages 521 to 524)
Page 523
off -site parking spots for the valet service.
Q. We'll move on to No. 3. I'm not sure if you
understood that, but it doesn't natter. No. 3, "Is the
off -site lot being utilized by employees" is the next
question, right?
A. Yes.
Q. And your response here is "I did not witness
any employees parking off -site and walking to Fury,"
right?
A. That's correct.
Q. Let's stop here for a second. On November
Ist, November 10th and November 15, on any of those
three occasions did you station yourself at all times
while you were there in the portion of the multi-level
parking lot that included the 16 reserved spots?
A. The 16 reserved spots were agreed upon that
they would use I believe it was the first and second
Boors, so 1 would park in different locations every
time to get a different angle to see if I was in the
wrong place if I wouldn't see something. I parked on
the top level. 1 parked on the second floor. I parked
on the on -site lot, so there is — yes, I —
Q. Okay.
A. —was everywhere.
Q. Fair enough. On November 1st, 10th and the
Page 524
15th, right?
A. Yes.
Q. Then you state, "I noticed certain employees
parking in the shared lot and walking to the back door
of Fury"; is that correct?
A. Yes.
Q. Do you agree that we now understand from the
conditional use permit that there is nothing in the
conditional use permit that prohibits the employees from
using the shared lot, right?
A. Sure.
Q. So the photos you attached here of these
three cars, you say the white Ford 150, the green Honda
Civic and the white Chevy Lumina, you have identified
license numbers, right?
A. Yea
Q. And by the time you are there on November 1st,
10th and 15th, you are aware that the police department
is investigating and whoever else is looking into this
within the city, right?
A. Yes.
Q. And did you ask the police department to
identify who the registered owners were of those three
vehicles so you could cross- reference them to somebody
who actually was an employee of Fury?
Precise Reporting Service
714 - 647 -9099
J�
FURY REVOCATION HEARING - 4/18/2008
Page 526)
Page 525
1 unless things have changed and patrons walk through the
1
MS_ AILIN: Objection; asked and answered.
1
2
MR. JAMIESON: I don't think I ever asked that
2
3
There are many questions I ask more than once, but I
3
4
don't think I asked that one.
4
5
THE HEARING OFFICER: She was asked --
5
6
MS. AILW: By me —
6
7
THE HEARING OFFICER: -- whether she tan any
7
8
plates, and the answer was no, but I don't know whether
8
9
that precisely answers your question.
9
10
MR, JAMIESON: I'm asking if she asked them to do
10
11
it.
11
12
Q. Did you ask them to do it?
12
13
A. I did not.
13
14
Q. However, your intent here was to relate these
14
15
cars up to people that were actually employed by Fury,
15
16
right?
16
17
A. That is correct.
17
18
Q. Did you ever ask anybody who got out of those
18
19
cars the simple question, are you employed by Fury?
19
20
A. No, 1 did not.
20
21
Q. Did you ever ask anybody in the business
21
22
whether or not these can were owned by people or driven
22
23
by people that are employed by Fury?
23
24
A. I never spoke to anybody. I witnessed people
24
25
exiting their vehicles and walking in to Fury. Now,
25
Page 526)
1 unless things have changed and patrons walk through the
1
2 back door, so —
2
3 MR. JAMIESON: 111 move to strike that as being
3
4 nonresponsive.
4
5 THE HEARING OFFICER: So.
5
6 MR. JAMIESON: Is that a "so" or "overruled "?
6
7 THE HEARING OFFICER: It was a "yes" or "no" answer
7
8 question.
8
9 THE WITNESS: Would you like me to re- answer it?
9
10 MR. JAMIESON: Actually what I'd like to do is
10
11 strike it from the record is what 1'd like.
11
12 THE HEARING OFFICER: Sustained.
12
13 BY MR, JAMIESON:
13
14 Q. Now, Miss Levin, I appreciate that there are
14
15 times when you make assumptions and conclusions and draw
15
16 Information from other information, but when my question
16
17 just asks you for a "yes" or "no," I really appreciate
17
18 if you would do that
18
19 Did you ever ask anybody that was standing
19
20 outside who you concluded in your mind to be an employee
20
21 of Fury, whether or not they were, In fact, employees of
21
22 Fury?
22
23 A. No.
23
24 Q. And you were there on multiple occasions for
24
25 minutes, half hour, hours at a time to watch this occur,
25
YT tC0.�,. Gil JGJ l-V J4V /
Page 527
and you never once approached any of these people that
got out of the cars and asked them if they were, in
fact, employed by Fury?
A. No, I did not.
Q. Did you ever ask any one of these people if
they were, in fact, delivering uniforms?
A. No.
Q. Did you ever ask any one of these people if,
in fact, they were food vendors coming to check and we
if, in fact, there was enough food for the evening to
make sure that the restaurant could actually serve
meals?
A. The foods vendors come in the daytime.
Q. You were there before dinner, correct?
A. I was there at dinner sometimes.
Q. 4:30 is dinnertime?
A. 4:30, five o'clock, that's when restaurants
begin serving dinner.
Q. Did you ever ask any one of these people if
they were, in fact, food vendors coming to check and see
if anything was needed by the Fury restaurant?
A. No.
Q. Did you ever ask anybody that was there if, in
fact, the people that got out of these can were
checking to see if the electrical system was working?
Page 528
A. No.
Q. Or the plumbing system was working?
A. No.
Q. And would you agree that generally businesses,
if they need help in electrical, plumbing, things
delivered, they have people walking in their backs doors
to do that, don't they?
A. Usually in marked vehicles, yes.
Q. Not necessarily. It's not always the case, is
it?
A. Pretty much.
MS. AILIN: Objection; argumentative.
MR. JAMIESON: 1 think it's an important part. We
have got a lot of assumptions going on, and I'm asking
her questions.
MS. AILIN: Life is based on assumptions. If we
didn't all assume that the sun was coming up tomorrow,
we wouldn't bother going to bed tonight
MR. JAMIESON: But we don't revoke multi- million
dollar conditional use permits on bases like that. We
have real --
MS. AILIN: Reasonable --
MR. JAMIESON: — real evidence with real specific
testimony that we can rely on to do that. Otherwise, we
don't do it That's what I'm asking.
Precise Reporting Service
714- 647 -9099
a,q A
FURY REVOCATION HEARING - 4/18/2008
45 (Pages 529 to 532)
Page 531
Q. Which condition is that?
MS. AILIN: I recognize you are asking Miss Levin,
but to speed things along its condition 32.
THE WITNESS: 32.
BY MR. JAMIESON:
Q. Is that the only condition that you felt was
responsive to what you observed that day?
A That's — well, there is that condition 32,
and also condition 18 which is in response to compliance
of federal, state and local laws, so that also has to do
with the Municipal Code. So our Municipal Code also has
a nuisance section, so that would — any other storage
would also violate our nuisance code.
Q. Any other condition? So you have got 18 and
32.
A. As far as storage; is that what we are looking
for?
Q. Just on that one question they are asking that
question, four.
A. Outside storage. It would also go along with
35, the storage of trash bins.
Q. So 32, 18 and 35; is that correct?
A. Yes.
Q. Now, the memo that you did November 15, 2887,
when you say in your answer to the question "Is there
Page 532
outdoor storage" and your answer is "Yes, there is
outdoor storage of boxes, trash cans, refuse bin, mop
cart, blue 55- gallon barrels, brooms, dust pans and
crates, photo attached," these are the photos that we
are looking at here that are attached?
A. Yes.
Q. And all of those photos were taken November
15th, correct?
A. Yes.
Q. And all these photos that we are referring to
that were taken November 15th were taken at between
about 4:30 and 5:30; is that right?
A. Yes.
Q. And the photos that you referenced as being
responsive to that issue to show that there were things
outside, that would be C 8F and C 8B, right?
A. Yes.
Q. Now, if we look at C SA and C 8B, your
assumption was that these were employees that were
standing outside next to these materials, right?
A. Yes.
Q. And would you agree that the Mash enclosures
and the location where the refuse was kept for this
business was, in fact, close to that door and where
these people are standing?
Precise Reporting Service
714 - 647 -9099
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a
Page 529
1
MS. AQ.IN: Reasonable inferences are --
1
2
THE HEARING OFFICER: Overruled.
2
3
MS. AB.IN: -- permitted, and this is turning into
3
4
an object lesson for why the courts have said that these
4
5
should be informal proceedings rather than full -blown
5
6
trials.
6
7
MR. JAMIESON: Why? Because there can bejust a
7
8
steamroller going over the rights of the people who have
8
9
millions of dollars invested.
9
10
THE HEARING OFFICER: Enough, enough. Proceed.
10
11
THE JAMIESON: Thank you.
11
12
Q. Did you ever walk up to these vehicles and
12
13
look inside on November 1st, IOth or the 15th and see if
13
14
there was anything inside that identified the name of
14
15
the person who was driving the car, papers, documents?
15
16
A. No.
16
17
Q. Nothing like that.
17
18
Now, with respect to what you observed on
18
19
November 15th of 2007 as depicted in these photographs
19
20
under Exhibit 8, the first photograph with respect to a
20
21
car parked in the shared parking lot is C 8C; is that
21
22
right?
22
23
A. Yes.
23
24
Q. And that is taken at about what time?
24
29
A. 4:30, five o'clock, 5:30.
25
Page 530
1
Q. Would you agree that at that time there were
1
2
multiple other parking spaces available in that shared
2
3
parking lot for people to park?
3
4
A. Yes.
4
5
Q. And, in fact, in that photograph we are
5
6
looking at least three of them, right?
6
7
A. Yes.
7
8
Q. And directing your attention similarly to
e
9
C 8F, that was also taken at about that time; is that
j 9
to
right?
10
11
A. Yes.
11
12
Q. And would you agree that at that time of the
12
13
day that shared parking lot also had multiple other open
: 13
14
parking spaces available, correct?
14
15
A. Yes.
! 15
16
Q. Directing your attention back to November 15,
16
17
2007 and the fourth question the city attorney's office
17
18
asked you to find out about, "Is there outdoor storage";
18
19
do you see that?
19
20
A. Yes.
20
21
Q. Was it your understanding that there was a
21
22
particular condition of the conditional use permit that
22
23
would be violated in some way if there was outdoor
23
24
storage of boxes, trash cans, et cetera?
24
25
A. Yes, l believe so.
25
45 (Pages 529 to 532)
Page 531
Q. Which condition is that?
MS. AILIN: I recognize you are asking Miss Levin,
but to speed things along its condition 32.
THE WITNESS: 32.
BY MR. JAMIESON:
Q. Is that the only condition that you felt was
responsive to what you observed that day?
A That's — well, there is that condition 32,
and also condition 18 which is in response to compliance
of federal, state and local laws, so that also has to do
with the Municipal Code. So our Municipal Code also has
a nuisance section, so that would — any other storage
would also violate our nuisance code.
Q. Any other condition? So you have got 18 and
32.
A. As far as storage; is that what we are looking
for?
Q. Just on that one question they are asking that
question, four.
A. Outside storage. It would also go along with
35, the storage of trash bins.
Q. So 32, 18 and 35; is that correct?
A. Yes.
Q. Now, the memo that you did November 15, 2887,
when you say in your answer to the question "Is there
Page 532
outdoor storage" and your answer is "Yes, there is
outdoor storage of boxes, trash cans, refuse bin, mop
cart, blue 55- gallon barrels, brooms, dust pans and
crates, photo attached," these are the photos that we
are looking at here that are attached?
A. Yes.
Q. And all of those photos were taken November
15th, correct?
A. Yes.
Q. And all these photos that we are referring to
that were taken November 15th were taken at between
about 4:30 and 5:30; is that right?
A. Yes.
Q. And the photos that you referenced as being
responsive to that issue to show that there were things
outside, that would be C 8F and C 8B, right?
A. Yes.
Q. Now, if we look at C SA and C 8B, your
assumption was that these were employees that were
standing outside next to these materials, right?
A. Yes.
Q. And would you agree that the Mash enclosures
and the location where the refuse was kept for this
business was, in fact, close to that door and where
these people are standing?
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condition that says that refuse has to be screened from
view, that when these employees are getting ready to
start — if they are employees getting ready to start
the evening and putting boxes in and breaking down boxes
and they are putting the trash in that they have got to
have some place to do it, right?
A. 1 don't think[ can Judge on how you run your
business, how you break down your boxes.
Q. But you saw the location that was, in fact,
enclosed for the refuse containers, and that was large
enough for the refuse containers. It could, in fact, be
enclosed off so that people could not see it. It's just
that these things you were looking at at the moment were
out in front of it?
A. They were out in front of the refuse
enclosure, yes.
Q. And the people you assume to be employees were
actively working with that junk right?
MS. AMIN: Objection.
THE WITNESS: I don't think —
MS. An-IN: Objection; vague and ambiguous.
THE HEARING OFFICER: No, its a fair question,
overruled. What- -
THE WITNESS: It's hard for me to say what they
were actually doing. Half the time they were standing
Page 536
around smoking cigarettes and greeting their friends.
THE HEARING OFFICER: You need to focus on what was
stored there.
THE WITNESS: And what was stored there was stored
there most of the titre. There was outside storage most
of the times that I was there, and if these boxes
weren't them, it was other boxes, and they weren't all
cleared out at all limes, and so they would work They
would come out. However, I have to say thatjust
because its next to the refuse enclosure doesnt mean
that what they were doing was right. They could have
had this stored inside the restaurant and broken them
down next to the exit.
BY MR. JAMIESON:
Q. But the conditional use permit doesn't require
them to break down the materials and prepare them for
putting into the refuse container, does it?
A. But it prohibits outside storage.
Q. That's right, storage itself but not preparing
for storage, does it?
MS. AILIN: Objection; vague and ambiguous.
BY MR. JAMIESON:
Q. Well, the conditional —1 will withdraw.
The conditional use permit does not — does
not — does not state where the business has to prepare
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1
A. Yes.
1
2
Q. And so when the refuse truck or whatever comes
2
3
to pick up this material, this is apparently where it
3
4
palls up, gets the refuse containers and the boxes and
4
5
various things and loads it in; is that correct?
5
6
MS. AB,IN: Objection; no foundation, assumes facts
6
7
not in evidence.
7
e
THE HEARING OFFICER: Well, let's -- would you
a
9
please go back and read the last question?
9
10
MR. JAMIESON: I can rephrase. I will withdraw and
10
11
rephrase.
11
12
Q. Miss Levin, when you saw these people working
12
13
with these boxes and materials and things here, you
13
14
assumed they were employees of Fury, right?
14
15
A. 1 knew they were employees of Fury. They
15
16
walked — yes.
16
17
Q. 1 can go through it again, but you didn't ask i
17
is
them if they were employees of Fury?
18
19
A. No, l didn't ask them.
j 19
20
Q. You don't know their names? 1
20
21
A. Sure.
21
22
Q. You never asked the people that were inside
22
23
whether these people outside were employees, correct? I
23
24
A. Correct
24
25
Q. But you assumed that they were employees, and
25
Page 534'
1
they were moving these boxes around and breaking them
1
2
down and organizing them I suppose, is that fair?
2
3
A. Okay. Yes.
3
4
Q. Now, the location where the refuse and the
4
5
boxes and the materials that are getting ready for the
5
6
refuse pickup to come is right there in the same spot,
6
7
right?
7
9
A. I'msorry?
8
9
Q. Or close to it?
9
10
A. Well, the refuse containers should be inside
10
11
the enclosure, but as far as the boxes, I mean, they
11
12
weren't in the refuse enclosure.
12
13
Q. Right, but the refuse enclosure was
13
14
immediately back behind?
14
15
A. Yes.
15
16
Q. And you can actually see it If you could see
16
17
it with a little more clarity, if the photograph had a
17
1e
little more clarity. You can see the enclosures. There
18
19
are enclosures there for the refuse containers?
19
20
A. Yes.
20
21
Q. It's just that these boxes and materials that
21
22
these guys were working with at that moment when you
22
23
took the photograph are outside that enclosure, right?
23
24
A. Yes.
24
25
Q. And you would agree that even in this
25
q0 (Ydy Cb' 733 LV 730)
Page 535
condition that says that refuse has to be screened from
view, that when these employees are getting ready to
start — if they are employees getting ready to start
the evening and putting boxes in and breaking down boxes
and they are putting the trash in that they have got to
have some place to do it, right?
A. 1 don't think[ can Judge on how you run your
business, how you break down your boxes.
Q. But you saw the location that was, in fact,
enclosed for the refuse containers, and that was large
enough for the refuse containers. It could, in fact, be
enclosed off so that people could not see it. It's just
that these things you were looking at at the moment were
out in front of it?
A. They were out in front of the refuse
enclosure, yes.
Q. And the people you assume to be employees were
actively working with that junk right?
MS. AMIN: Objection.
THE WITNESS: I don't think —
MS. An-IN: Objection; vague and ambiguous.
THE HEARING OFFICER: No, its a fair question,
overruled. What- -
THE WITNESS: It's hard for me to say what they
were actually doing. Half the time they were standing
Page 536
around smoking cigarettes and greeting their friends.
THE HEARING OFFICER: You need to focus on what was
stored there.
THE WITNESS: And what was stored there was stored
there most of the titre. There was outside storage most
of the times that I was there, and if these boxes
weren't them, it was other boxes, and they weren't all
cleared out at all limes, and so they would work They
would come out. However, I have to say thatjust
because its next to the refuse enclosure doesnt mean
that what they were doing was right. They could have
had this stored inside the restaurant and broken them
down next to the exit.
BY MR. JAMIESON:
Q. But the conditional use permit doesn't require
them to break down the materials and prepare them for
putting into the refuse container, does it?
A. But it prohibits outside storage.
Q. That's right, storage itself but not preparing
for storage, does it?
MS. AILIN: Objection; vague and ambiguous.
BY MR. JAMIESON:
Q. Well, the conditional —1 will withdraw.
The conditional use permit does not — does
not — does not state where the business has to prepare
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Page 539
BY MR JAMIESON:
Q. So the only thing we have are the photographs
from November 15th between 4:30 and 5:30 or thereabouts,
right?
A. Yea
Q. Let me direct your attention back to Exhibit
8, and the fifth question that the city attorney asked
and information you provided — actually before I go
there, I withdraw.
Let me direct your attention back to the fifth
question on Exhibit 8, and the question is.
"Are they complying with the
conditions related to trash," and your
response in this memo says, "Condition 34
of UP 2005-018 requires periodic steam
deaning of dumpsters, and dumpster areas
to be cleaned according to NBMC section
14. This is required" — "this
requirement is on an as- needed basis.
There are no findings for this
condition."
When you say there are no findings for this
condition, that means you didn't find —
MS. AILIN: Objection; asked and answered. I asked
the question. We are going to go over every single
Page 540
thing again?
THE HEARING OFFICER: Sustained.
BY MR. JAMIESON:
Q. Let's look at condition No. 35. Is it your
testimony that there are also no findings for this
condition; is that what you testified to in your direct
testimony?
A. No.
Q. So in this one you say that there were
findings. That says:
"Requires all refuse dumpsters to he
stored within a waled enclosure. One
dumpster is being stored outside of the
trash enclosure."
That was your finding in your November 15,
2007 memo?
A. Yes.
Q. And that was based on your photograph attached
hereto. It says, "Photos attached for November 15,
2007 "; is that correct?
A. Yes.
Q. And the two photos that reflect the area where
the dumpsters would be located are on C 8A and C 8111,
right?
A. Yes.
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Page 537'.,
1
its trash to be put into the refuse. It just says that
1
2
it be ultimately screened from view?
2
3
MS. AUAN: Objection; assumes facts not in
3
4
evidence. There is an testimony that that's what these
4
5
people were, in fact, doing, and you can't tell that
5
6
from a still photograph.
6
7
THE HEARING OFFICER: Does the conditional permit
7
8
say where the trash is supposed to be?
8
9
THE WITNESS: Yes.
9
10
BY MR. JAMIESON:
10
11
Q. Wait. Where the trash is supposed to be what?
11
12
A. The trash is in the trash enclosure, and a
12
13
trash -- a trash bin is supposed to be in the trash
13
14
enclosure. The trash is supposed to be in the trash
14
15
can, and there is supposed to be no outside storage.
15
16
THE HEARING OFFICER: What was stored here?
16
17
Storage is different than temporary location of trash,
17
18
you know.
1 e
19
THE WITNESS: Exactly. There was boxes, barrels,
19
20
mops, a little mop cart.
20
21
THE HEARING OFFICER: Did you see the barrels there
21
22
day after -- each time you were there or were they only
22
23
there once?
23
24
THE WITNESS: Im trying to remember, and I want
24
25
to reference the other pictures.
25
Page 538
1
THE HEARING OFFICER Because that's what we see is
1
2
barrels and naps.
2
3
THE WITNESS: Right, and like a little trash can on
3
4
wheels. it's hard to tell from these pictures. I'm
4
5
really sorry.
5
6
BY MR JAMIESON:
6
7
Q. The fact is that there are no other
7
8
photographs of any other date and time with any of this
8
9
material out there, is there?
9
10
A. Let's see.
10
11
MS. AILIN: May I look at these?
11
12
THE WITNESS: Sure.
12
13
MS. AILIN: These areal in color, are they?
13
14
THE WITNESS: These are noL They were pretty
14
15
focused on the cars.
15
16
MS. AILIN: I don't know for a fact that that is
16
17
Mr. Ridgeway, but he is on Mr. Jamieson's witness list,
1 17
18
and witnesses I thought were to be excluded.
l8
19
MR JAMIESON: That's true, witnesses are excluded,
19
20
so you need to step outside, please.
20
21
THE HEARING OFFICER Yes, unless you have become a
21
22
party, and if you choose to become a party, l would like
22
23
to hear from you, and that's on the record.
23
24
THE WITNESS: From the pictures there is no other
24
25
evidence of outside storage.
25
47 (Pages 537 to 540)
Page 539
BY MR JAMIESON:
Q. So the only thing we have are the photographs
from November 15th between 4:30 and 5:30 or thereabouts,
right?
A. Yea
Q. Let me direct your attention back to Exhibit
8, and the fifth question that the city attorney asked
and information you provided — actually before I go
there, I withdraw.
Let me direct your attention back to the fifth
question on Exhibit 8, and the question is.
"Are they complying with the
conditions related to trash," and your
response in this memo says, "Condition 34
of UP 2005-018 requires periodic steam
deaning of dumpsters, and dumpster areas
to be cleaned according to NBMC section
14. This is required" — "this
requirement is on an as- needed basis.
There are no findings for this
condition."
When you say there are no findings for this
condition, that means you didn't find —
MS. AILIN: Objection; asked and answered. I asked
the question. We are going to go over every single
Page 540
thing again?
THE HEARING OFFICER: Sustained.
BY MR. JAMIESON:
Q. Let's look at condition No. 35. Is it your
testimony that there are also no findings for this
condition; is that what you testified to in your direct
testimony?
A. No.
Q. So in this one you say that there were
findings. That says:
"Requires all refuse dumpsters to he
stored within a waled enclosure. One
dumpster is being stored outside of the
trash enclosure."
That was your finding in your November 15,
2007 memo?
A. Yes.
Q. And that was based on your photograph attached
hereto. It says, "Photos attached for November 15,
2007 "; is that correct?
A. Yes.
Q. And the two photos that reflect the area where
the dumpsters would be located are on C 8A and C 8111,
right?
A. Yes.
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Page 543
THE 1- BARING OFFICER: Off the record.
(Discussion ensued off the record.)
MR. JAMIESON: I can go on?
THE HEARING OFFICER: Yes.
BY MR. JAMIESON:
Q. Miss Levin, directing your attention back to
Exhibit 8, and we left off with talking about the
answers you had to question 5; do you remember that?
A. Yes.
Q. Are you looking at that now?
A. Yes.
Q. Is it correct that you did not issue any
administrative citations for any violation that you saw
of condition 35?
A. Let me look at this.
MS. AILIN: Objection; condition 35?
MR. JAMIESON: Yeah. in question 5 she references
condition 35, and before we left for break --
MS. AHJN: Objection; asked and answered.
MR. JAMIESON: -- she said it was violated.
THE WITNESS: No, that's not true, then. I'm
Sony.
THE HEARING OFFICER: Go ahead and answer the
question.
THE WITNESS: That's not true. When I sign it — I
Page 544
did not necessarily cite for individual code -- or use
permit conditions. Rather I cited for general nuisance
violations of use pera Abide by use pemrit 3162.
These permits are available through the planning
department. So technically I did cite for it. I didn't
necessarily cite on that day.
BY MR. JAMIESON:
Q. Let's Just talk about what you cited for. The
only citations that I see in this record and that I'm
aware of are the citations that are included in Exhibit
40, which is under the letter dated September 4, 2007.
So I'm asking you if you cited the Fury for what you
observed as reflected in your memo in November. So did
you ever cite them for what you observed in November?
A. I don't believe I cited for November. No, I
wanted to tell you that that is a blanket violation of
use permit code section.
MR. JAMIESON: I'm going to move to strike as being
nonresponsive, if I may.
THE HEARING OFFICER: What did she -- what was the
question again?
MR. JAMIESON: fm asking for the November 15, 2007
memo. It identifies her observations on three days in
November. I said, did you ever cite for what you
observed in November as reflected in your memo. She
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Q. Now, at the moment when these photographs were
1
2
taken between 4:30 and 5:30 approximately on November
2
3
15, 2007, where is there a dumpster that is not being
3
4
stored inside the walled enclosure for the dumpsters?
4
5
A. There is a dumpster, and I apologize that it's
5
6
not explicitly clear, but it's there. There is in
6
7
picture 8A you can see the top of a blue container, and
7
8
it's in the right comer above the vehicle, and it is
8
9
not stored inside. It's actually stored outside that
9
10
enclosure.
10
11
Q. Now, that particular dumpster is a dumpster
11
12
that's used to load trash into, correct?
12
13
MR. AILIN: Objection; no foundation.
13
14
BY MR. JAMIESON:
14
15
Q. Okay. It's not a dumpster?
15
16
MS. AfLIN: Relevance.
16
17
BY MR. JAMIESON:
17
18
Q. It's not a dumpster to load trash?
18
19
MS. AU-IN: No foundation. This witness --
19
20
MR. JAMIESON: Fine. It's not a dumpster then.
20
21
MS. AILIN: I mean, we arc going to ..
21
22
THE HEARING OFFICER: Just — okay.
22
23
MS. AILIN: — have evidence about what a dumpster
23
24
is? Come on.
24
25
MR. JAMIESON: Isn'1 the observation here that
25
Page 542
1
there is a dumpster?
1
2
THE HEARING OFFICER: Shejust observed that there
2
3
is a dumpster at that location; is that correct?
3
4
THE WITNESS: Yes.
4
5
THE HEARING OFFICER: Now, what is your point?
5
6
BY MR, JAMIESON:
6
7
Q. My point is I'd like to find out if this item
7
8
that you referred to as a dumpster is the one that they
8
9
load the trash that's out there into; yes or no?
9
10
A. I don't —
10
11
MS. AILIN: No foundation.
11
12
THE WITNESS: I don't know.
12
13
THE HEARING OFFICER: Well, she said she doesn't
13
14
know. Ifs there, right? I
14
15
THE WITNESS: It's there. it's there. !
is
16
BY MR. JAMIESON:
16
17
Q. Did you check and see if that dumpster was on
17
18
rollers?
18
19
A. It doesn't matter if it's on rollers or not.
19
20
Q. Is it correct that a dumpster that's stored
20
21
behind a walled enclosure —
21
22
THE HEARING OFFICER: This is a prospective
22
23
witness --
23
24
THE WITNESS: I'm not sure.
24
25
MR. JAMIESON: That's just a legal --
2S
48 (Pages 541 to 544)
Page 543
THE 1- BARING OFFICER: Off the record.
(Discussion ensued off the record.)
MR. JAMIESON: I can go on?
THE HEARING OFFICER: Yes.
BY MR. JAMIESON:
Q. Miss Levin, directing your attention back to
Exhibit 8, and we left off with talking about the
answers you had to question 5; do you remember that?
A. Yes.
Q. Are you looking at that now?
A. Yes.
Q. Is it correct that you did not issue any
administrative citations for any violation that you saw
of condition 35?
A. Let me look at this.
MS. AILIN: Objection; condition 35?
MR. JAMIESON: Yeah. in question 5 she references
condition 35, and before we left for break --
MS. AHJN: Objection; asked and answered.
MR. JAMIESON: -- she said it was violated.
THE WITNESS: No, that's not true, then. I'm
Sony.
THE HEARING OFFICER: Go ahead and answer the
question.
THE WITNESS: That's not true. When I sign it — I
Page 544
did not necessarily cite for individual code -- or use
permit conditions. Rather I cited for general nuisance
violations of use pera Abide by use pemrit 3162.
These permits are available through the planning
department. So technically I did cite for it. I didn't
necessarily cite on that day.
BY MR. JAMIESON:
Q. Let's Just talk about what you cited for. The
only citations that I see in this record and that I'm
aware of are the citations that are included in Exhibit
40, which is under the letter dated September 4, 2007.
So I'm asking you if you cited the Fury for what you
observed as reflected in your memo in November. So did
you ever cite them for what you observed in November?
A. I don't believe I cited for November. No, I
wanted to tell you that that is a blanket violation of
use permit code section.
MR. JAMIESON: I'm going to move to strike as being
nonresponsive, if I may.
THE HEARING OFFICER: What did she -- what was the
question again?
MR. JAMIESON: fm asking for the November 15, 2007
memo. It identifies her observations on three days in
November. I said, did you ever cite for what you
observed in November as reflected in your memo. She
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Page 547
A. Oh, l could have sworn — yeah, I'm not sure
if this — I'm honestly pretty positive that the sign on
the frontage was the one was one permitted, so on the
MacArthur frontage.
MR JAMIESON: fm going to move to strike as being
nonresponsive and calls for speculation, lacks
foundation.
THE DARING OFFICER: Overruled. She attempted to
answer and wasn't certain, but she nevertheless answered.
BY MR. JAMIESON:
Q. In any case, there is a temporary sign permit
identified by that BN20070085, correct?
A. Correct
Q. And that sign permit would allow for certain
signs, temporary signs and how long it would stay up
there and that type of thing, correct?
A. Correct.
Q. And the photographs that you have provided
here as part of Exhibit 8 that you took November 8,
2007, they reflect only one sign in the location as
depicted on the building, correct?
A. That's correct.
Q. Let me direct your attention next to Exhibit
9. Exhibit 9 is the memo dated December 5th, 2007, and
on that particular occasion you indicated that
Page 548
Sergeant Ron Vallercamp was with you; is that right?
A. Yes.
Q. Who is Mr. Matt Cosytion that was also with
you, C o- s- y- I- i -o -n?
A. That's my co- worker.
Q. Another code enforcement person?
A. Yes.
Q. At approximately what time were you present on
that particular day? It says 4:30. How long did you
stay?
A. An hour and a half.
Q. So you were there until about 6:00?
A. Yes.
Q. You have no knowledge of how many employees
showed up for work after you left at six o'clock on that
date, do you?
A. No, I don't.
Q. And your statement at the bottom of this memo,
when you state, "it has been determined that Fury is
neither adhering to the parking agreement, nor utilizing
structure parking for employees" only references what
you observed at that time between 4:30 and 6:00,
correct?
A. Thatiscorrect.
Q. However, in terms of your conclusion here,
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said, no, 1 didn't cite for that, but, and then she went
1
2
on to say that her cite I guess fmm September —
2
3
THE HEARING OFFICER Strike the balance of the
3
4
response.
4
5
MR. JAMIESON: Thank you.
5
6
Q. The citation that you issued in September was
6
7
for observations you made at that time when you issued
7
8
that citation, correct?
8
9
A. That's correct.
9
10
Q. And you never issued any citations after that,
10
11
did you?
11
12
A. No, l believe that's incorrect.
12
13
Q. If you have any other citations in there,
13
14
let's just deal with them right now.
14
is
A. I don't know what is in the record. I don't
15
16
know if there are other citations. I believe I cited
16
17
for signage in December and January.
17
18
Q. That's not part of this record.
18
19
MS. AB.IN: I m sorry. Can we hold on for one
19
20
second?
20
21
MS. PARKER: This is Glen Everode.
21
22
MS. AILIN: He needs to sit outside.
22
23
BY MR. JAMDESON:
23
24
Q. Let me direct your attention to Exhibit 8 to
24
25
question No. 6 the city attorney has posed to you. It
25
— Page 546
T
1
says, "Is there any unpermitted signage," and then your
1
2
response is as indicated there; do you see that?
2
3
A. Yes.
3
4
Q. You did not cite Fury or anyone else for
4
5
which you observed with respect to signage in November,
5
6
did you?
6
7
A. No, I don't believe — unless it's — I don't
7
8
believe so.
8
9
Q. Thank you.
9
10
Now, with reference to the testimony you gave
10
11
about the two temporary signs, you talked about where
11
12
one was located and all. The photographs that you have
12
13
here under Exhibit 8 only reflect one temporary sign; is
13
14
that right?
14
15
A. That's correct, yeah. Do we have a copy of
15
16
the banner permit?
16
17
Q. And one temporary sign reflected in this
17
18
exhibit shows that there is a sign permit for that sign;
18
19
is that right?
19
20
A. I'm not sure. The banner permit would explain
20
21
where the sign is posted, and this one might be in
21
22
violation. The other one might have been approved.
22
23
Q. But you don't know one way or the other? As
23
24
you sit here today, you don't know one way or the other,
24
25
correct?
25
vy Irages DAD w 7'101
Page 547
A. Oh, l could have sworn — yeah, I'm not sure
if this — I'm honestly pretty positive that the sign on
the frontage was the one was one permitted, so on the
MacArthur frontage.
MR JAMIESON: fm going to move to strike as being
nonresponsive and calls for speculation, lacks
foundation.
THE DARING OFFICER: Overruled. She attempted to
answer and wasn't certain, but she nevertheless answered.
BY MR. JAMIESON:
Q. In any case, there is a temporary sign permit
identified by that BN20070085, correct?
A. Correct
Q. And that sign permit would allow for certain
signs, temporary signs and how long it would stay up
there and that type of thing, correct?
A. Correct.
Q. And the photographs that you have provided
here as part of Exhibit 8 that you took November 8,
2007, they reflect only one sign in the location as
depicted on the building, correct?
A. That's correct.
Q. Let me direct your attention next to Exhibit
9. Exhibit 9 is the memo dated December 5th, 2007, and
on that particular occasion you indicated that
Page 548
Sergeant Ron Vallercamp was with you; is that right?
A. Yes.
Q. Who is Mr. Matt Cosytion that was also with
you, C o- s- y- I- i -o -n?
A. That's my co- worker.
Q. Another code enforcement person?
A. Yes.
Q. At approximately what time were you present on
that particular day? It says 4:30. How long did you
stay?
A. An hour and a half.
Q. So you were there until about 6:00?
A. Yes.
Q. You have no knowledge of how many employees
showed up for work after you left at six o'clock on that
date, do you?
A. No, I don't.
Q. And your statement at the bottom of this memo,
when you state, "it has been determined that Fury is
neither adhering to the parking agreement, nor utilizing
structure parking for employees" only references what
you observed at that time between 4:30 and 6:00,
correct?
A. Thatiscorrect.
Q. However, in terms of your conclusion here,
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A. The Fury parking would have been on the fifth
floor.
Q. So November 29,'07 when you were there you
didn't took on the first and second floor. You only
looked on the fifth floor?
A. Let me see here. Sorry. On what day?
Q. On November 29th.
A. Oh, did I look —1 was up there, and at no
time — I witnessed one person walking from the
structure into Fury once, so —
Q. That's not what I'm asking.
A. Okay.
Q. You were looking at the fifth level. Your
memo says that at no time did anyone park on the fifth
level of the structure, but it says nothing about anyone
on the first, second, third or fourth.
A. I can deduce that one person, they would have
parked either on the first, second, third or fourth.
She did not park on the fifth floor. That's the answer.
Q. But you never looked on the first, second,
third or fourth on that day at that time, correct?
A. I didn't have to. I was on the fifth floor
overlooking — I was on the structure overlooking the
shared lot, so I could see everything that was coming in
and out.
Page 552
Q. You got there at 4:30, so you don't know who
was parked there before 4:30, did you?
A. No, f don't
Q. And you didn't look to see on the other floors
who was parked there before you got there, did you, as
of the time you arrived?
A. No.
Q. Let me direct your attention to Exhibit 10,
which is your February 5th memo, and this is also to
City Attorney Aaron Harp. It indicates that you did a
daytime inspection about 1:45 p.m. on January 30th,
correct?
A. Yes.
Q. Did you ever run any of these license plates
to see who owned those cars at that time as reflected in
paragraph A?
A. No,
Q. Now, you do identify here these tags, tag 004,
606, etcetera, right?
A. Yes.
Q. And you saw those tags actually had the name
Fury on them, right?
A. Yes.
Q. And your contention was that these were people
that were somehow related to Fury, correct?
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1
that Fury is not adhering to the parking agreement, all
1
2
you really observed was that there were people you
2
3
thought were employees that were parking in the shared
3
4
lot, correct?
4
5
A. I'm sorry. Repeat that.
5
6
Q. All you really observed were people that you
6
7
thought were employees or different cars that parked in
7
8
the shared lot and did not park in the multi -level
8
9
structure, correct'.
9
10
A. That's correct.
10
11
Q. And when you say, "Nor utilizing structure
11
12
parking for employees," other than these four cars and
12
13
whatever happened after six o'clock until they dosed at
13
14
2:00 a.m. on that day, you have no knowledge?
14
15
A. I have no idea what happened after 6:00.
15
16
Q. Now, on that particular day, a Thursday,
16
17
November 29th about 7:00, the photographs that you took
17
18
that identify these particular license plates as being
18
19
located somewhere — where were these cars located, by
19
20
the way?
20
21
A. These were located in the shared lot.
21
22
Q. These particular cars — you had
22
23
Sergeant Vailercamp with you from Newport Beach Police
23
24
Department. Did you ask Sergeant Vallercamp at that
24
25
time to run these plates to Had out who the registered
25
Page 550
1
owners were?
1
2
A. No.
2
3
Q. Did you ever at that time walk into Fury and
3
4
ask anybody that was working there if they knew anyone
4
5
who was driving, operating or owned the four can out in
5
6
the shared parking lot?
6
7
A. No.
7
8
Q. Did you ever try and compare the license
8
9
plates numbers to any information about any of the
9
10
numbers of employees that work at Fury to determine if
10
11
they actually belonged to employees?
11
12
A. No.
12
13
Q. At that time in the shared parking lot there
13
14
were two other businesses that were utilizing that
14
15
parking lot, correct?
15
16
A. Yes.
16
17
Q. By the way, your memo here, it says, "At no
17
18
time did anyone park on the fifth level of the
18
19
structure," but previously you testified that you looked
19
20
at the first and second levels. What was the particular
20
21
relevance of the fifth level if no particular space was
21
22
reserved for them on that level?
22
23
A. At this point we were told that the parking
23
24
would have been on the fifth floor.
24
25
Q. Okay, so—
25
DU (eaves 747 co SSLJ
Page 551
A. The Fury parking would have been on the fifth
floor.
Q. So November 29,'07 when you were there you
didn't took on the first and second floor. You only
looked on the fifth floor?
A. Let me see here. Sorry. On what day?
Q. On November 29th.
A. Oh, did I look —1 was up there, and at no
time — I witnessed one person walking from the
structure into Fury once, so —
Q. That's not what I'm asking.
A. Okay.
Q. You were looking at the fifth level. Your
memo says that at no time did anyone park on the fifth
level of the structure, but it says nothing about anyone
on the first, second, third or fourth.
A. I can deduce that one person, they would have
parked either on the first, second, third or fourth.
She did not park on the fifth floor. That's the answer.
Q. But you never looked on the first, second,
third or fourth on that day at that time, correct?
A. I didn't have to. I was on the fifth floor
overlooking — I was on the structure overlooking the
shared lot, so I could see everything that was coming in
and out.
Page 552
Q. You got there at 4:30, so you don't know who
was parked there before 4:30, did you?
A. No, f don't
Q. And you didn't look to see on the other floors
who was parked there before you got there, did you, as
of the time you arrived?
A. No.
Q. Let me direct your attention to Exhibit 10,
which is your February 5th memo, and this is also to
City Attorney Aaron Harp. It indicates that you did a
daytime inspection about 1:45 p.m. on January 30th,
correct?
A. Yes.
Q. Did you ever run any of these license plates
to see who owned those cars at that time as reflected in
paragraph A?
A. No,
Q. Now, you do identify here these tags, tag 004,
606, etcetera, right?
A. Yes.
Q. And you saw those tags actually had the name
Fury on them, right?
A. Yes.
Q. And your contention was that these were people
that were somehow related to Fury, correct?
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Q. And how long after that did you leave the
premises?
A. Ten minutes.
Q. So for anybody that did not have a tag up that
had been there before, you wouldn't know if they were
related to Fury, correct, in the multi -level parking
lot?
MS. AILIN: Objection; vague and ambiguous.
THE HEARING OFFICER: Say the question again.
MR. JAMIESON: Sure.
Q. You were there for 10 minutes, right?
A. I drove through the parking lot Took me
maybe 10 minutes, and I specifically looked for Fury
hang tags in the parking lot as prescribed by Fury and
city staff, that there was an agreement that if they
parked, they were to park In the structure and identify
themselves with Fury hang tags, which is meant to do two
things, identify Fury parking and also let the people
who are at the gate, the kiosks, know that they don't
have to pay to exit the structure. I never once noticed
a Fury hang tag in the parking structure.
Q. And you were therefor approximately 10
minutes ".
A. At this — at this inspection, yes.
Q. And at that inspection, after you left there,
Page 556
after spending about ten minutes driving through that
parking lot, you don't know who parked for what period
of time at a6, if ever, in the multi-level structure,
correct?
A. That's correct
Q. And also when you were driving through the
multi -level parking structure, there were spaces
available in the shared lot, weren't there, at 1:45?
A. That's correct
Q. Now, let's look at paragraph B. It says, "I
conducted an inspection on January 31 from 5:00 to
6:00," and you parked in the last row of the shared lot?
A. Yes.
Q. At the start of your inspection, which 1
gather was at live o'clock p.m., you observed the
vehicles identified there by license plate and tag
number, right?
A. That's correct.
Q. Did you ever run those tags numbers?
A. No, I didn't.
Q. I'm sorry. Did you ever run the license plate
numbers?
A. No, l didn't
THE HEARING OFFICER: Let's refrain from that
question again, which she testified in the beginning
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1
A. Yes.
1
2
Q. But you don't know if they were employed by
2
3
Fury or if they were somebody that was visiting Fury and
3
4
they were handed a tag to put on the car?
4
5
A. They were Fury employees.
5
6
Q. How do you know that?
6
7
A. Because it was arranged through Fury and city
7
8
staff that Fury would identify themselves with hang tags
i e
9
for the parking structure.
9
10
Q. Because those tags, then, could be utilized in
10
11
that parking structure, correct?
11
12
A. That's correct.
12
13
Q. On the multi-level parking structure, correct?
13
14
A. That is correct.
14
15
Q. But we have already established that there is
15
16
nothing violative of the CUP for employees to park in
16
17
the shared parking lot, remember that?
( 17
18
A. That is correct.
18
19
Q. Now, these can with these tags were parked In
I 19
20
the shared parking lot, correct?
20
21
A. That's correct
21
22
Q. And they didn't need tags to parkin the
22
23
shared parking lot, did they?
23
24
A. No.
24
25
Q. So the only reason that they needed tags was
1 25
-
Page 5541
1
actually to use the multi -level parking structure.
I 1
2
correct?
2
3
A. Thatiscorrect.
3
4
Q. So one would assume from that, wouldn't one,
4
5
that by having those tags up at some point in time those
5
6
can were indeed parked in the multi -level parking
6
7
structure?
7
8
A. No, l would never assume that.
8
9
MS. ARJN: Objection; calls for speculation, we're
9
10
not talking about some point in time. We're tamng
10
11
about a specific inspection on a specific day.
11
12
BY MR. JAMIESON:
12
13
Q. Let's talk about January 30, 20 IIGNP
13
14
paragraph A it says that these were can that were
14
15
parked in the Fury parking lot, which I gather you mean
15
16
the shared parking lot?
16
17
A. Yes.
17
18
Q. On January 30, 2008 did you go to the
18
19
multi-level parking lot?
19
20
A. Yes.
20
21
Q. And when you went to the multi -level parking
21
22
lot, what Boors did you go to?
22
23
A. All the Boors.
23
24
Q. What time did you do that?
24
25
A. Immediately after 1:45.
25
DI kraye5 »a w »oi
Page 555
Q. And how long after that did you leave the
premises?
A. Ten minutes.
Q. So for anybody that did not have a tag up that
had been there before, you wouldn't know if they were
related to Fury, correct, in the multi -level parking
lot?
MS. AILIN: Objection; vague and ambiguous.
THE HEARING OFFICER: Say the question again.
MR. JAMIESON: Sure.
Q. You were there for 10 minutes, right?
A. I drove through the parking lot Took me
maybe 10 minutes, and I specifically looked for Fury
hang tags in the parking lot as prescribed by Fury and
city staff, that there was an agreement that if they
parked, they were to park In the structure and identify
themselves with Fury hang tags, which is meant to do two
things, identify Fury parking and also let the people
who are at the gate, the kiosks, know that they don't
have to pay to exit the structure. I never once noticed
a Fury hang tag in the parking structure.
Q. And you were therefor approximately 10
minutes ".
A. At this — at this inspection, yes.
Q. And at that inspection, after you left there,
Page 556
after spending about ten minutes driving through that
parking lot, you don't know who parked for what period
of time at a6, if ever, in the multi-level structure,
correct?
A. That's correct
Q. And also when you were driving through the
multi -level parking structure, there were spaces
available in the shared lot, weren't there, at 1:45?
A. That's correct
Q. Now, let's look at paragraph B. It says, "I
conducted an inspection on January 31 from 5:00 to
6:00," and you parked in the last row of the shared lot?
A. Yes.
Q. At the start of your inspection, which 1
gather was at live o'clock p.m., you observed the
vehicles identified there by license plate and tag
number, right?
A. That's correct.
Q. Did you ever run those tags numbers?
A. No, I didn't.
Q. I'm sorry. Did you ever run the license plate
numbers?
A. No, l didn't
THE HEARING OFFICER: Let's refrain from that
question again, which she testified in the beginning
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by other people, which is why its hearsay, lacks
foundation and speculative.
THE HEARING OFFICER: Well, as I understated it, the
UP references a covenant. is the covenant and the
agreement the same thing?
THE WITNESS: No.
MR. JAMIESON: She is talking about totally a
different thing. She is talking about —
THE HEARING OFFICER: We do not have the agreena
as pan of any exhibits or --
MR. JAMIESON: Correct.
THE HEARING OFFICER: — information in this
proceeding correct?
MR, JAMIESON: That is cored There is no
evidence about it.
MS. PARKER: The recorded covenant?
THE WITNESS: The meeting that was in October --
MR. JAMIESON: Just to make sure we are clear, she
talked about some supposed alleged agreement as to these
parking hanging tags and when they are supposed to be
used and how they were supposed to be used and all that,
and that's what she said. That's what Pm objecting to
now and moving to strike because she wasn't present for
when that agreement was apparently made. There is
nothing in writing. She only heard from other people
Page 560
about something; and therefore, it's irrelevant, lacks
foundation, speculative, and its hearsay clearly.
THE HEARING OFFICER: It sounds like she used the
tags as a part of her investigatory process, and I guess
she can be attacked for not knowing -- not knowing
specifically about the agreement, but she was told to
use those tags for a specific purpose, right? So --
MR. JAMIESON: But its —
THE HEARING OFFICER: The tags were there. What
would be —
W. JAMIESON: The relevance is --
THE HEARING OFFICER: Why should she not be abh
testify as to what her understanding of the tags were?
MR. JAMIESON: That's not the point She can say
what she saw, what the tags were, the numbers on it,
whatever it is, but she testified --
THE HEARING OFFICER: And the purpose of them fir
the city's perspective as I would see it
MR. JAMIESON: She testified about an agreement
that was supposedly made between my client and the city,
and she down t have the ability to testify to that
agreement. She can say there were tags there.
THE HEARING OFFICER: But if it was her
understanding. She may not be able to testify about all
of the agreement, but if it was her understanding based
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1
that she didn't ran any plates. You keep asking it.
1
2
MS. ABJN: Yes.
2
3
MR. JAMIESON: Fan enough.
3
4
THE HEARING OFFICER: Its just one more cumulative
4
5
effect here.
5
6
MS. AB-IN: And more indication of a deliberate
6
7
attempt to sway thejury.
7
8
MR. JAMIESON: Counsel, you know, I really take
8
9
offense to that. Its a completely opportunistic,
9
10
ineffective and Incorrect statement
10
11
Q. Now, Miss Levin, with regard to the tags that
11
12
are identified, the Fury tags, and the agreement that
12
13
you said was reached, were you present when there was
13
14
some type of agreement reached about the use of the
14
15
tags?
15
16
A. No, my supervisor was.
j 16
17
Q. So you have no personal knowledge or
17
18
observation of what agreement was actually reached about
18
19
when tags would be used or why they would be used,
19
20
correct?
20
21
A. I left it to the city attorney to direct me in
21
22
the right direction, to put me in the right direction.
22
23
Q. But you testified about an agreement that took
23
24
place at a time when you were not present, true?
24
25
A. That is correct.
25
-�.& trayc5 Z)Dr t.v Z)ovJ
Page 559
by other people, which is why its hearsay, lacks
foundation and speculative.
THE HEARING OFFICER: Well, as I understated it, the
UP references a covenant. is the covenant and the
agreement the same thing?
THE WITNESS: No.
MR. JAMIESON: She is talking about totally a
different thing. She is talking about —
THE HEARING OFFICER: We do not have the agreena
as pan of any exhibits or --
MR. JAMIESON: Correct.
THE HEARING OFFICER: — information in this
proceeding correct?
MR, JAMIESON: That is cored There is no
evidence about it.
MS. PARKER: The recorded covenant?
THE WITNESS: The meeting that was in October --
MR. JAMIESON: Just to make sure we are clear, she
talked about some supposed alleged agreement as to these
parking hanging tags and when they are supposed to be
used and how they were supposed to be used and all that,
and that's what she said. That's what Pm objecting to
now and moving to strike because she wasn't present for
when that agreement was apparently made. There is
nothing in writing. She only heard from other people
Page 560
about something; and therefore, it's irrelevant, lacks
foundation, speculative, and its hearsay clearly.
THE HEARING OFFICER: It sounds like she used the
tags as a part of her investigatory process, and I guess
she can be attacked for not knowing -- not knowing
specifically about the agreement, but she was told to
use those tags for a specific purpose, right? So --
MR. JAMIESON: But its —
THE HEARING OFFICER: The tags were there. What
would be —
W. JAMIESON: The relevance is --
THE HEARING OFFICER: Why should she not be abh
testify as to what her understanding of the tags were?
MR. JAMIESON: That's not the point She can say
what she saw, what the tags were, the numbers on it,
whatever it is, but she testified --
THE HEARING OFFICER: And the purpose of them fir
the city's perspective as I would see it
MR. JAMIESON: She testified about an agreement
that was supposedly made between my client and the city,
and she down t have the ability to testify to that
agreement. She can say there were tags there.
THE HEARING OFFICER: But if it was her
understanding. She may not be able to testify about all
of the agreement, but if it was her understanding based
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1
Q. So you have no personal observation about what
( 1
2
that — what agreement there was, what the content of
2
3
that agreement was or whether it was written or in
3
4
writing. You weren't there, correct?
4
5
A. I also wasn't around for the seatbelt law, but
5
6
1 wear my seatbelt now.
6
7
MR. JAMIESON: Move to strike that as being
7
8
nonresponsive.
8
9
Q. Please answer that question. Is it correct
9
10
that you were not there at any time when whatever
10
11
agreement was reached, if it was reached, happened?
11
12
A. 1 was not present at that meeting. I was on
12
13
vacation.
13
14
MR. JAMIESON: IT make a belated motion to strike
14
15
any information about any agreement because she has no
15
16
personal knowledge or observation, complete speculation,
16
17
hearsay and lacks foundation.
17
18
MS. AILIN: But the reality is that the parking
18
19
hang tags were being used.
19
20
MR. JAMIESON: That's not the relevant point.
20
21
MS. AILIN: Actually it is.
21
22
MR. JAMIESON: No, she testified about some
22
23
agreement about when and how it was supposed to be used,
1 23
24
and she wasn't there for the agreement. She doesn't
24
25
know what that agreement was except for being toll maybe
25
-�.& trayc5 Z)Dr t.v Z)ovJ
Page 559
by other people, which is why its hearsay, lacks
foundation and speculative.
THE HEARING OFFICER: Well, as I understated it, the
UP references a covenant. is the covenant and the
agreement the same thing?
THE WITNESS: No.
MR. JAMIESON: She is talking about totally a
different thing. She is talking about —
THE HEARING OFFICER: We do not have the agreena
as pan of any exhibits or --
MR. JAMIESON: Correct.
THE HEARING OFFICER: — information in this
proceeding correct?
MR, JAMIESON: That is cored There is no
evidence about it.
MS. PARKER: The recorded covenant?
THE WITNESS: The meeting that was in October --
MR. JAMIESON: Just to make sure we are clear, she
talked about some supposed alleged agreement as to these
parking hanging tags and when they are supposed to be
used and how they were supposed to be used and all that,
and that's what she said. That's what Pm objecting to
now and moving to strike because she wasn't present for
when that agreement was apparently made. There is
nothing in writing. She only heard from other people
Page 560
about something; and therefore, it's irrelevant, lacks
foundation, speculative, and its hearsay clearly.
THE HEARING OFFICER: It sounds like she used the
tags as a part of her investigatory process, and I guess
she can be attacked for not knowing -- not knowing
specifically about the agreement, but she was told to
use those tags for a specific purpose, right? So --
MR. JAMIESON: But its —
THE HEARING OFFICER: The tags were there. What
would be —
W. JAMIESON: The relevance is --
THE HEARING OFFICER: Why should she not be abh
testify as to what her understanding of the tags were?
MR. JAMIESON: That's not the point She can say
what she saw, what the tags were, the numbers on it,
whatever it is, but she testified --
THE HEARING OFFICER: And the purpose of them fir
the city's perspective as I would see it
MR. JAMIESON: She testified about an agreement
that was supposedly made between my client and the city,
and she down t have the ability to testify to that
agreement. She can say there were tags there.
THE HEARING OFFICER: But if it was her
understanding. She may not be able to testify about all
of the agreement, but if it was her understanding based
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Page 563
THE HEARING OFFICER: It's asked and answered, so
it's sustained.
THE WITNESS: No.
BY MR. JAMIESON:
Q. Let me direct your attention to Exhibit 13.
Actually, I withdraw that. I have nothing further of
this witness.
FURTHER DIRECT EXAMINATION
BY MS. AILIN:
Q. Miss Levin, we have talked a bit about the
question of valet parking and whether there was anything
prohibiting valet parking at Fury, and during your
testimony earlier, if I remember correctly, you referred
to a municipal code provision?
A. The changes in operational characteristics.
Q. And you brought back with you from our break a
copy of the provision on changes in operational
characteristics, correct?
A. Yes.
Q. And what section of the Newport Beach
Municipal Code is that?
A. 20.82.060, eating and drinking establishments,
changes in operational characteristics.
Q. And what does that section provide with regard
Page 564
regard to valet parking?
A. 20.82.060(a) 7 and 9 read:
"Major changes, a use permit or
amendment to a use permit shall be
required for any major change in the
operational characteristics of an eating
and drinking establishment requiring the
use permit under provision section
20.82.020. For purposes of this chapter
a major change in operational
characteristics shall include without
Bmitation any of the following: No. 7,
introduction of valet, tandem or compact
parking spaces; No. 9, any change that
would affect a condition of approval."
Q. Now, earlier you testified that there was no
condition in the use permit that prohibited valet
parking. Does the fact that there is nothing in the use
permit prohibiting valet parking mean that valet parking
is permitted?
MR. JAMIESON: Objection; calls for a legal
conclusion. The witness has not —
THE HEARING OFFICER: She is a code enforcement
officer enforcing the code. Let her testify.
Overruled.
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Page 561
1
upon what her superiors told her, that that was what she
1
2
was supposed to do, you can discredit that later, but I
2
3
don't think you can decline to allow her to testify
3
4
about it based upon what her understanding was as to
4
5
what they meant. So I'm going to overrule it.
5
6
MR. JAMIESON: Certainly can't rely on any ruling
6
7
that there was any violation of such an agreement
7
a
because there is no competent evidence of any such
8
9
agreement. That's --
9
10
THE HEARING OFFICER: I agree with that because
10
11
there is no agreement in, but that doesn't affect her
11
12
understanding of it.
12
13
MR. JAMIESON: Okay.
13
14
Q. Now, Miss Levin, with respect to these Fury
14
15
hang tags, they have specific numbers that you wrote
15
16
down?
16
17
A. Yes.
17
18
Q. Those specific numbers, did you ever —let me
l8
19
withdraw and try to make a more clear question.
j 19
20
Did you ever compare or correlate the
20
21
particular numbers on these particular tags with a
21
22
particular employee or person related to Fury?
22
23
A. There is an employee list with tag numbers,
23
24
and 1 don't know if it's in the record, but I never went
24
25
back and found Joe Blow a tag 200, Mary Smith with 203.,
25
Page 5621
1
There is a list somewhere.
1
2
Q. That's tine.
2
3
THE HEARING OFFICER: But you didn't use it?
3
4
THE WITNESS: I didn't use it.
4
5
BY MR. JAMIESON:
5
6
Q. Now, the below — may be part of B — you
6
7
start talking on this memo, which is Exhibit 10,
7
8
starting out at 5:03 p.m. extending through 5:55 p.m.
8
9
about various observations you made at specific times;
9
10
do you see that?
10
11
A. Yes.
11
12
Q. My question to you In that regard is, did you
12
13
ever question any of the people that you saw getting out
13
14
of these vehicles and going into the building?
14
15
MS. AILIN: rm going to object based on asked
15
16
and answered. You have asked that question about four
16
17
times. You have never tied it to any specific memo.
17
18
It's always been have you ever asked anyone you saw
18
19
walking into the building if they work for Fury . How
19
20
many times are we going to go over the same thing?
20
21
MR. JAMIESON: Ijust said. Ion looking at this.
21
22
Q. From 5:03 to 5:55 p.m. with the people that
22
23
you observed there, the Incidents that you observed, did
23
24
you ask any of them if they work for Fury? How much
24
25
more specific can you get?
25
-)3 tkdyQs Doi cc SO4)
Page 563
THE HEARING OFFICER: It's asked and answered, so
it's sustained.
THE WITNESS: No.
BY MR. JAMIESON:
Q. Let me direct your attention to Exhibit 13.
Actually, I withdraw that. I have nothing further of
this witness.
FURTHER DIRECT EXAMINATION
BY MS. AILIN:
Q. Miss Levin, we have talked a bit about the
question of valet parking and whether there was anything
prohibiting valet parking at Fury, and during your
testimony earlier, if I remember correctly, you referred
to a municipal code provision?
A. The changes in operational characteristics.
Q. And you brought back with you from our break a
copy of the provision on changes in operational
characteristics, correct?
A. Yes.
Q. And what section of the Newport Beach
Municipal Code is that?
A. 20.82.060, eating and drinking establishments,
changes in operational characteristics.
Q. And what does that section provide with regard
Page 564
regard to valet parking?
A. 20.82.060(a) 7 and 9 read:
"Major changes, a use permit or
amendment to a use permit shall be
required for any major change in the
operational characteristics of an eating
and drinking establishment requiring the
use permit under provision section
20.82.020. For purposes of this chapter
a major change in operational
characteristics shall include without
Bmitation any of the following: No. 7,
introduction of valet, tandem or compact
parking spaces; No. 9, any change that
would affect a condition of approval."
Q. Now, earlier you testified that there was no
condition in the use permit that prohibited valet
parking. Does the fact that there is nothing in the use
permit prohibiting valet parking mean that valet parking
is permitted?
MR. JAMIESON: Objection; calls for a legal
conclusion. The witness has not —
THE HEARING OFFICER: She is a code enforcement
officer enforcing the code. Let her testify.
Overruled.
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54 (Pages 565 to 568)
Page 567
MS. AB-IN: Yes, its a color picture of the
photograph on Exhibit C I OF in the right -hand comer of
the page.
THE HEARING OFFICER: C I OE on the upper right?
MS. AUJN: Yes, l think when you see the color
photo you'll —
THE HEARING OFFICER: Not mine.
MS. AU-JN: C WE
THE HEARING OFFICER: Maybe. Ifs hard to tell,
but -- oh, I see. Yeah, so that's a Fury dumpster?
MS. AILIN: Yes.
THE HEARING OFFICER: Is that permanently located?
Was it there each time you saw it or --
THE WITNESS: I had more pictures of it some that
were real clear, some that weren't. That's why I think
some of my pictures were omitted because they were so
grainy, but then, yeah; it was in multiple pictures.
THE HEARING OFFICER: So that means you were there
multiple times?
THE WITNESS: Yes.
THE HEARING OFFICER: Slide this down.
MS. PARKER: Those are in my computer if you want
me to project it.
MS. AO -IN: That's okay.
Q. Now, Mr. Jamieson has questioned you at length
Page 568
about whether the people you saw going from cars and
into the back door at Fury were employees. On what did
you base your conclusion that the people you saw getting
out of cars in the shared parking lot and going into the
back door of Fury were employees?
A. Their clothing. They were dressed in Fury
attire or 1 saw them on multiple occasions coming in and
out of the establishment back into their vehicle.
Q. And when you say Fury attire, what do you
mean?
A. There is an instance there is a cocktail
waitress. She is in black pants and the black tank top,
and then there is a gentleman. He is wearing black
pants and a white chefs shirt, and another gentleman
brought a hanging — brought a jacket in with a big Fury
logo on it, hung it in his car, walked back into the
establishment, so there were instamms where they
actually had apparel that showed who they were,
identified they were employees.
Q. And when you were observing the parking lot,
did you see anyone carrying multiple items of what you
have referred to as Fury attire in to the back door of
the restaurant?
A. No.
Q. Did you see anyone delivering food for the
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Page 565
1
THE WITNESS: On review of the use permit, No. 18:
! 1
2
"A conditional use applicant shall
2
3
comply with all federal state and local
3
4
laws. Material violation of any of those
4
5
laws in connection with the use mil be
5
6
cause for revocation of this permit."
6
7
20.82.060 is Newport Beach Municipal Code,
7
8
which is one of our local laws.
8
9
BY MS. AMIN:
9
10
Q. And Is it your understanding that if a use
10
11
permit doesn't say that you can have valet parking that
11
12
means that you can't have valet parking?
12
13
A. A use permit is an establishment's Bible.
13
14
Those are the rules by which they must operate, so if it
14
15
doesn't state it, they need to seek clarification, do
15
16
something, especially with the Newport Beach Municipal
16
11
Code and -- it states in here that they have to abide by
17
18
this as well as the use permit, and in most cases
18
19
whichever is most strict, that is the Code by which to
19
20
go.
20
21
Q. One of the things Mr. Jamieson questioned you
21
22
about at same length is the placement of trash dumpsters
22
23
inside or outside of the trash enclosure, and after our
23
24
break you brought with you a color copy of one of the
24
25
photographs that we previously had only in black and
25
Page 566
1
white. Can you tell us which photograph you brought
1
2
with you?
2
3
MR. JAMIESON: Can I see it now?
' 3
4
MS. AILIN: Yes.
4
5
MR. JAMIESON: Thank you.
5
6
THE WITNESS: It is Exhibit C I OE, the picture in
6
7
the upper right corner -- you're looking at landscape,
7
8
and it does show a dumpster again stored outside.
8
9
BY MS. AILIN:
9
20
Q. In the background of the photograph on the far
10
11
left?
11
12
A. Yes, on the far left there is a dumpster not
12
13
stored in the trash enclosure with debris on top.
13
14
Q. What time of day was this photograph taken?
14
15
MR. JAMIESON: Can we mark this --
15
16
THE WITNESS: Five o'clock.
16
17
MR. JAMIESON: Five o'clock you said?
17
18
THE WITNESS: Yes.
18
19
BY MS. AILIN:
19
20
Q. And on what day was this photograph taken?
20
21
A. January 31, 2008. (
21
22
MS. AILIN: We can mark it as a separate item if
22
23
you like. I will make it Exhibit 42.
23
24
MR. JAMIESON: Is it a color picture of a document
24
25
that we have already marked?
25
54 (Pages 565 to 568)
Page 567
MS. AB-IN: Yes, its a color picture of the
photograph on Exhibit C I OF in the right -hand comer of
the page.
THE HEARING OFFICER: C I OE on the upper right?
MS. AUJN: Yes, l think when you see the color
photo you'll —
THE HEARING OFFICER: Not mine.
MS. AU-JN: C WE
THE HEARING OFFICER: Maybe. Ifs hard to tell,
but -- oh, I see. Yeah, so that's a Fury dumpster?
MS. AILIN: Yes.
THE HEARING OFFICER: Is that permanently located?
Was it there each time you saw it or --
THE WITNESS: I had more pictures of it some that
were real clear, some that weren't. That's why I think
some of my pictures were omitted because they were so
grainy, but then, yeah; it was in multiple pictures.
THE HEARING OFFICER: So that means you were there
multiple times?
THE WITNESS: Yes.
THE HEARING OFFICER: Slide this down.
MS. PARKER: Those are in my computer if you want
me to project it.
MS. AO -IN: That's okay.
Q. Now, Mr. Jamieson has questioned you at length
Page 568
about whether the people you saw going from cars and
into the back door at Fury were employees. On what did
you base your conclusion that the people you saw getting
out of cars in the shared parking lot and going into the
back door of Fury were employees?
A. Their clothing. They were dressed in Fury
attire or 1 saw them on multiple occasions coming in and
out of the establishment back into their vehicle.
Q. And when you say Fury attire, what do you
mean?
A. There is an instance there is a cocktail
waitress. She is in black pants and the black tank top,
and then there is a gentleman. He is wearing black
pants and a white chefs shirt, and another gentleman
brought a hanging — brought a jacket in with a big Fury
logo on it, hung it in his car, walked back into the
establishment, so there were instamms where they
actually had apparel that showed who they were,
identified they were employees.
Q. And when you were observing the parking lot,
did you see anyone carrying multiple items of what you
have referred to as Fury attire in to the back door of
the restaurant?
A. No.
Q. Did you see anyone delivering food for the
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55 (Pages 569 to 572)
Page 571
MS. AILIN: No, I was the one who mentioned civil
code section 47.
THE HEARING OFFICER: Did you cite any section, airy
authority for your position?
MR. JAMIESON: No, I didn't cite any section -
THE HEARING OFFICER: You arejast arguing, so you
can --
MR. JAMIESON: I'm citing constitutional principles
of due process that say that if this is what initiated
it and we are in a proceeding like we are here, we are
entitled to know who it was that made the complaint
because it initiates this whole process, so unless the
city that wants to proffer this evidence can show an
adequate legal basis for allowing it to be excluded, I
think it's a violation of the constitutional rights of
my client. Whether or not Newport Beach Municipal Code
says that will endeavor to keep it confidential unless
it's required by law, I would argue first of all that
doesn't trump constiwtional principles, and secondly,
okay, its required. We are in a proceeding, a formal
proceeding where the city's trying to revoke a
conditional use pemtit.
THE HEARING OFFICER: I really agree with that. I
think the identity has to be disclosed. That doesn't
mean they can be brought in, but I think if you want to
Page 572
rely on a citizen complaint in this context, that the
identity, if known, should be allowed, otherwise, the
fact that there was a citizen complaint should be
stricken. I realize there is a city policy, but they
admitted its a policy and that there are -- them have
to be circumstances where it needs to be disclosed, and
I think this is one of them.
MS. AILIN: If we don't disclose it, what me we
talking about striking? Just the fact --
THE HEARING OFFICER: Just the fact that there was
a citizen complaint the way I see it. I mean, you said
that there were complaints from -- the testimony from
Miss Levin was that there was a planning department
complaint or a police complaint.
MR. JAMIESON: Planning department.
THE HEARING OFFICER: In addition, this was a
complaint, a public complaint, I think she said, and so
that's what would have to be stricken. The other
question is was the complaint -- we can spend the next
hour on this. As you know, this isn't a clear issue,
and it never has been in my mind, having been involved
in this sort of thing for a long time. My feeling was
that once it got to a focus level of a hearing or a
court appearance that you had to disclose the identity
if you were going to use it, but the question becomes
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Page 5691
1
restaurant"
1
2
A. There is one occasion in the pictures. It's
2
3
on IOE. It's on the bottom right corner, and there is a
3
4
Sysco truck
4
5
Q. But that wasn't the vehicle that you were 1
5
6
focused on as being parked —
6
7
A. No.
7
8
Q. — improperly?
8
9
A. No.
9
10
Q. Did you see anyone get out of a car in the
10
11
shared lot and go into Fury's back door who was carrying
11
12
tools of some kind for plumbing or electrical worn.'
12
13
A. No.
13
14
Q. Going back to — I'm going to bring this up
14
15
now because we still have Miss Levin here, but there was
15
16
an issue raised earlier about whether the identity of
16
17
someone who made a complaint to the city should be
17
18
disclosed. and I have been provided with a copy of the
18
19
city counsel's code enforcement policies, which reads in
19
20
part, quote:
20
21
"The city considers code enforcement
21
22
complaints to be confidential. The city
22
23
will use its best efforts to preserve the
23
24
confidentiality of any complaint with the
24
25
understanding that the city will be
25
Page 5701
1
required to disclose the identity of the
1
2
complainant to the extent required by
2
3
law," close quote.
3
4
There is also government code section 6254, F
4
5
as in Frank, which states that records of complaint are
5
6
not public records. And revisiting that issue, if this
6
7
were a matter of someone who had made a false complaint,
7
8
there might be some justification for disclosing it
8
9
here, but the evidence that we have is that the person
9
10
who reported that there was an issue with valet parking,
10
11
in fact, made a complaint that was accurate, and I
11
12
don't see how It's relevant for purposes of this
12
13
proceeding who it was who made the complaint.
13
14
MR. JAMIESON: Can I he heard on that?
14
15
THE !-TEARING OFFICER: Oh, sure.
15
16
MR. JAMIESON: Whether or not the public records
16
17
act requested 6254, which is the area of the code that
17
18
talks about that, provides that certain types of
18
19
complaints are confidential, is not going to apply to
19
20
this particular type of complaint in this particular
20
21
circumstance, and I would bet —
21
22
THE HEARING OFFICER: Mr. Jamieson, you are just
22
23
going to have to argue what your opinion about the law
23
24
is here, and you cited civil code section 47, I believe?
24
25
MR. JAMIESON: No, she did.
25
55 (Pages 569 to 572)
Page 571
MS. AILIN: No, I was the one who mentioned civil
code section 47.
THE HEARING OFFICER: Did you cite any section, airy
authority for your position?
MR. JAMIESON: No, I didn't cite any section -
THE HEARING OFFICER: You arejast arguing, so you
can --
MR. JAMIESON: I'm citing constitutional principles
of due process that say that if this is what initiated
it and we are in a proceeding like we are here, we are
entitled to know who it was that made the complaint
because it initiates this whole process, so unless the
city that wants to proffer this evidence can show an
adequate legal basis for allowing it to be excluded, I
think it's a violation of the constitutional rights of
my client. Whether or not Newport Beach Municipal Code
says that will endeavor to keep it confidential unless
it's required by law, I would argue first of all that
doesn't trump constiwtional principles, and secondly,
okay, its required. We are in a proceeding, a formal
proceeding where the city's trying to revoke a
conditional use pemtit.
THE HEARING OFFICER: I really agree with that. I
think the identity has to be disclosed. That doesn't
mean they can be brought in, but I think if you want to
Page 572
rely on a citizen complaint in this context, that the
identity, if known, should be allowed, otherwise, the
fact that there was a citizen complaint should be
stricken. I realize there is a city policy, but they
admitted its a policy and that there are -- them have
to be circumstances where it needs to be disclosed, and
I think this is one of them.
MS. AILIN: If we don't disclose it, what me we
talking about striking? Just the fact --
THE HEARING OFFICER: Just the fact that there was
a citizen complaint the way I see it. I mean, you said
that there were complaints from -- the testimony from
Miss Levin was that there was a planning department
complaint or a police complaint.
MR. JAMIESON: Planning department.
THE HEARING OFFICER: In addition, this was a
complaint, a public complaint, I think she said, and so
that's what would have to be stricken. The other
question is was the complaint -- we can spend the next
hour on this. As you know, this isn't a clear issue,
and it never has been in my mind, having been involved
in this sort of thing for a long time. My feeling was
that once it got to a focus level of a hearing or a
court appearance that you had to disclose the identity
if you were going to use it, but the question becomes
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Page 5741
1
Page 573
1
1
what is the nature of the possibility that this is going
1
2
to create a problem for the person who registered the
2
3
complaint, for instance. Has that person even requested
3
4
or demanded that his or her identity be, you know, kept
4
5
confidential?
5
6
MS. AILIN: Well, the city was not the party that
6
7
elicited the testimony about there having been a
7
8
complaint, so it is not particularly a concern to the
a
9
city that the record indicate that there was a citizen
9
10
complaint.
10
11
THE HEARING OFFICER; Okay, Let's just indicate
11
12
that there were planning complaints and police
12
13
complaints, and I end it there or complaint, whatever
I 13
14
that exact testimony was. She identified complaint as
14
15
being -- they call it a complaint when they are
15
16
interdepartmental as I understand it.
16
17
THE WITNESS: Correct.
17
18
MR. JAMIESON: It was a planning department
18
19
complaint that initiated it.
19
20
THE HEARING OFFICER: Yes.
20
21
MR. JAMIESON: And then a complaint supposedly by a
21
22
member of the public, and that's the part that will then
22
23
be stricken. Is that what ton hearing?
23
24
THE HEARING OFFICER; The public.
24
25
MR. JAMTESON: Right. So if that's what it is,
25
Page 5741
1
t tar's what it is.
1
2
MS. AM: 1 have no further questions for this
2
3
witness at this time.
3
4
MR. JAMIESON: Just a couple.
4
5
5
6
FURTHER CROSS- EXAMINATION
6
7
BY MR. JAMIESON:
7
8
Q. Miss Levin, the people that you said were
8
9
dressed in Fury attire, you are talking about just that
9
10
one occasion that you saw people walking in or on every
10
11
occasion?
11
12
A. On multiple occasions.
12
13
Q. And did you ever writedown anywhere who it
13
14
was that was connected to any particular car?
14
15
A. Yes.
15
16
Q. And do you have that?
16
17
A. I don't names, but I have instances.
17
18
Q. That's part of our record here.
18
19
A. On the memo dated 12 -5-07.
19
20
Q. What number—
20
21
A. I'm sorry. Exhibit 9. There is one employee.
21
22
She walked from the parking structure. It was on that
22
23
date.
23
24
Q. Whoever that particular employee was was
24
25
actually walking from the multi-level structure, right? !
25
56 (Pages 573 to 576)
Page 575
A. She was walling from the structure into Fury,
and she was wearing cocktail, bartender attire, and she
only had a small bag in her hand, so it wasn't like she
was going to change into an outfit on the property.
Q. Just so we are clear, that particular employee
person who you have referenced actually was walking from
the structure, the multi -level structure?
A. That is correct.
Q. You don't have any problem with her?
A. 1 don't have a problem with anybody.
Q. t understand. Bad choice of words on my part.
I apologize.
A. Then on January 31st, 2008 —
Q. Which exhibit?
A. 10. 1 noticed — "At 5:05 p.m. employee
exited rear door and walked to Toyota, dropped offs
Fury jacket and returned into establishment, and then by
10:00 p.m. employee exited rear door and retrieved bag
from Honda Accord and reentered Fury, and he was wearial
a chefs shirt."
Q. Is that it?
A. Yes.
Q. Let me direct your attention back to the
discussion that you had with Miss ASin about 20.82.060.
20.82.060, right? Do you have that in front of you?
Page 5761
A. Yes.
Q. Now, that particular section as you read it to
us said that— the use of the language major change in
the operational characteristics, right?
A. Yes.
Q. And then it also says "For purposes of this
chapter, a major change in operational characteristics,"
and then it goes down to talk about what you have
referenced, right?
A. Yes.
Q. And the onetime that you issued a citation
was on that one occasion when you observed valet being
used back in September and then never again; is that
right?
MS. AILIN: Objection; asked and answered.
MR. JAMIESON: I will cross on that. I have got a
couple questions.
THE HEARING OFFICER: Ovemtled.
THE WITNESS: Ask it again.
BY MR. JAMIESON:
Q. Sure. That one instance when you issued the
citation back in September when you observed the valet
in place, was the only time that you ever saw a valet in
that location, correct? You testified to that already?
A. Correct.
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1
Q. And is it your testimony that that one
1
A. Yes.
2
occasion seven months ago or thereabouts as a code
2
Q. And I'm asking you that because the memo for
3
enforcement officer is a material violation?
3
Exhibit 10 reflects that on January 31st you were there
4
A. That the one instance Is a material violation?
4
from 5:00 to 6:00, correct?
5
Q. Thai the one instance that you saw Is a
5
A. That is correct.
6
material violation?
6
Q. And you do not have any pictures of that-
7
A. One instance is a material violation.
7
strike that actually.
8
Q. And you have never observed any other
a
The dumpster that we were looking at in your
9
violations of that particular issue since September?
9
other photographs that were taken back in November there
10
MS. AILIN: Objection; asked and answered.
10
is no dumpster reflected in that location, is there?
11
MR. JAMIESON: That's true, it has been asked and
1 11
MS, AIL N: Objection; misrepresents the witness'
12
answered. I will withdraw it.
12
testimony.
13
MS. AILIN: Four or five times.
13
BY MR. JAMIESON:
14
MR. JAMIESON: Maybe 6.
14
Q. Well, let's take a look
15
Q. Now, with regard to the dumpster issue, you
15
THE HEARING OFFICER: Are you referring to that
16
have this color photograph which is an expanded version
16
photograph that shows the dumpster above the rear window
17
we have identified now as Exhibit 42, City 42 —
17
of the caO
18
THE REARING OFFICER: 42?
1s
MR JAMIESON: Yes. And that's Exhibit 7, 8.
19
MS. AILIN: Yes, Mr. Jamieson asked that this color
19
MS. AB.IN: A.
20
photograph, color copy of the photograph be made an
20
BY MR, JAMIESON:
21
additional exhibit.
21
Q. Exhibit SA, November 15, that dumpster that we
22
THE HEARING OFFICER: All right. Thank you.
22
are looking at is actually in a different location,
23
MR. JAMIESON: It's the same -- as I understand it,
23
isn't It?
24
though, it's the same photograph as that other one in
24
A. 1 don't know.
25
the upper right -hand comer.
25
MS. AUJN: Objection; relevance.
Page 578
Page 580
1
THE HEARING OFFICER: Yes, E.
1
BY MR. JAMIESON:
2
BY MR. JAMIESON:
2
Q. Well, the relevance is that it's only
3
Q. This photograph was taken on what date, did
3
prohibited to have a dumpster outside the enclosure on a
4
you say?
4
permanent basis, so if it's outside because they are
5
A. January 31st.
5
filling it up like we see in the November 15, 2007 or
6
Q. Now, this photograph doesn't bear a date,
6
it's outside for some other purpose and ultimately it's
7
right?
7
stored behind the closed section —
8
A. No, it doesn't. That's when my camera was on
8
A. No, that's incorrect.
9
the fritz, so —
9
Q. — then that would not be a violation?
10
Q. Well, you took other photographs on January
10
A. That's incorrect. Actually dumpsters are to
11
31st that did bear a date, right?
11
be stored at all times in their trash enclosures except
12
A. Yes.
12
when the trash service is there, and it must
13
Q. Did you take all the photographs on January
13
immediately be returned into the trash enclosure.
14
31st at the same time with the same camera?
14
Q. Then it comes down to the definition of
15
A. That was with a cell phone. !
15
storage, so is there a definition of storage that would
16
Q. The one I'm holding up, Exhibit 42 is actually
16
prohibit someone from moving the trash dumpster out of
17
with your cell phone?
17
the fenced in area so that they can fill it up and get
18
A. The ones without dates were with my cell phone
18
it ready so that it's taken out or have it out there on
19
because I had my batteries inside out like the wrong way
19
a temporary basis? That would not be storage, would it?
20
in toy camera before I figured it out, so —
20
A. It might be in the Municipal Code.
21
MS. AILIN: That was which exhibit?
21
THE HEARING OFFICER: Now it's becoming
22
BY MR- JAMIESON:
22
argumentative.
23
Q. So was this photograph, Exhibit 42, that was
23
MR. JAMIESON: I am. I apologize.
24
taken January 31st, this then was taken what? Between
24
THE HEARING OFFICER: It's available faryou to
25
five o'clock p.m. and six o'clock p.m,?
25
refer to so that you can elicit her testimony.
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Page 581
1
Page 583
1
MR. JAMIESON: I have nothing further. Thank you.
1
M5. AaJN: On pretty much the same basis on almost
2
MS. AILIN: I have no further questions for this
2
all of them.
3
witness.
3
THE HEARING OFFICER: The same basis on all of
4
THE HEARING OFFICER: Good.
4
them, that's correct
5
MS. PARKER: Officer Yee is on his way.
5
MS. AILIN: Any evidence is confusing and
6
THE HEARING OFFICER: Do we need to use the back
6
irrelevant.
7
room?
7
THE HEARING OFFICER: But in any event, ifs
B
MS. AILIN: Let's go off the record for a minute.
8
entirely appropriate to make that a part of the record,
9
(Discussion ensued off the record.)
9
and it can be -- is that — I presume --
10
THE HEARING OFFICER: So there has been an
10
MR. JAMIESON: Yeah, we could do. It could be A4?
11
objection to introduction or admissibility of the video
11
THE HEARING OFFICER: A4 is fine. Will you copy it
12
into evidence, and I understand the basis for that. I
12
and get it back to me, though? Will you mail me a copy?
13
think authentication is the critical issue with respect i
13
MR. JAMIESON: Sure, I can do that. So I will
14
to this video. Miss Parker testified as to where the
j 14
give this A4 to the court reporter.
15
video was taken from, and she is the one that downloaded
15
(Discussion ensued off the record.)
16
it. She has no idea what the interior of Fury looks
j 16
(Arbitrator's Exhibit 4 was
17
like, so she could not authenticate the validity of the
i 17
marked for identification and is
18
video with respect to its depiction of the interior or
18
bound separately)
19
the exterior, but she nevertheless testified where she
19
(Viewing videotape.)
20
received it Then, I believe, three police officers,
20
"ERIN: Hi. I'm Erin.
21
detectives, said they viewed the video on that morning
21
NATALIE: And Ion Natalie.
22
before their testimony, and they were unanimous in
22
ERIN: We are with SoCal Club Review.
23
indicating that they did recognize the interior of the
23
Don't you hate it when you are trying to get
24
Fury and exterior based on their personal observations
24
ready and your friends are blowing up your phone asking
25
of those areas in the past.
25
you stupid questions like, "What do I wear? Can I wear
Page 582
Page 584
1
Back to Miss Parker forjust a minute, and
1
a speedo? No, you cant wear a speedo. Can I wear a
2
with reference to the appearance on the video of
2
T -shirt? Can I wear flip - flops?
3
Mr. Sclullizzi, Miss Parker indicated that she had met
3
Well, we are going to answer all those
4
him on five or six occasions and that she recognized him
4
questions and more at SoCal Club review that will be on
5
on the video, and at least one if not more of the
5
My5pace, so come on up on the Magic Carpet Ride through
6
officers indicated they recognized him on the video.
6
Fury, one of the hottest spots in Orange County.
7
So my ruling is that the video is sufficiently
7
NATALIE: Hey, this is Natalie. We are in line at
B
authentic for the purposes sought to have it introduced,
8
Fury on a Friday night. This is the line. And I'm
9
which is to document Mr. Schillizzi's statement and
9
going to pretty much tell you, if you really want to get
10
depict the interior and exterior of the Fury. The end.'.
10
into Fury at all on a weekend, you probably don't want
11
Are we staying — while we are still on the
11
to show up at 10:30. That's just my advice. That's
12
record, the evidence code section and the Jackson versus
12
good advice. I have a reason for it.
13
I think ifs Department of Motor Vehicles with respect
13
ERIN: Hey, Pm here with Brian. One of the owners
14
to 1280 is solid insofar as it relates to allowing the
! 14
of Fury. Brian, what made you to decide to buy this
15
introduction of the police reports given their presence
15
rundown hamburger joint and flip it into an awesome
16
and Mr. Jamicson's ability to cross - examine them.
16
night club?
17
MR. JAMIESON: And I guess solely for purposes of
17
BRIAN: Well, one of the things here in town and
18
the record we have already objected to that.
18
down in Orange County, there is only dance firms in
19
THE HEARING OFFICER: Yes.
19
town. This is one of the grandfather clause dance
20
MR. JAMIESON: We have already submitted our
20
fimns, so I kind of got lucky.
21
objection. We'll stand on those objections.
21
ERIN: Okay. So your grandfather owned it; is that
22
THE HEARING OFFICER: As far as Ion concerned, you
22
what you are saying?
23
have this set of written objections. It's a big, long
23
BRIAN: My grandfather owned it, yeah. h was one
24
-- it's an objection to every one of the city's
24
of three firms that's still legal in the town, so it was
25
exhibits.
25
a great -- it was a great spot to grab.
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77 traye8 DOD co DUO)
Page 587
if you see MySpace and you get the a -mail, come down to
whatever they are promoting.
How do people get on your guest list?
MR. MATTICK: You can get ahold of us either — the
easiest way is to contact us on our web site. All the
information that you will need about any event that we
have going on -- especially all the special events we
have here at Fury you can find us on
www.thesmialgrp.com. Info lines for guest lists,
special events, anything coming up.
ERIN: Matter of fact, you have some bottle service
and things like that as well?
MR. MATTICK: Yeah, we can hook you up with bottle
service, VIP service. Anything you want done we can do.
NATALIE: We are here with Bridget, she is one of
the hottest bartenders here. Bridget, what do we do to
get a drink fast?
BRIDGET: Show me your black AMEX.
NATALIE: Yeah.
BRIDGET: Totally kidding. Be nice to me, ask me
nice things and you will get a drink so quick you won't
even know it.
NATALIE: Beautiful. What is the weirdest pickup
line you have ever heard?
BRIDGET. Oh, my Cod, I've heard so many weird
Page 588
pickup lines. God, a lot of them involve me caning home
with the guy. So I don t even know that you can say it
on camera, but its really bad.
NATALIE: No, you are doing fine.
BRIDGET: You can totally imagine, right?
NATALIE: Yeah, l can totally imagine. What are
you doing later.
BRIDGET: All the girls hying to pick up on me. I
love it. Free drinks.
(Music playing)
NATALIE: You've got ladies?
PAUL: Lot of them.
NATALIE: You mean like us being here right now,
are those your ladies?
PAUL: Two is better than one.
MALE: Go home Shamu.
NATALIE: Really? Yeah, lets cut this short.
(Through the crowd again.)
ERIN: I'm here with Melissa. Melissa is one of
the representative of the VIP hostess this year. If
somebody is coming down to Fury, what is the minimum
they can expect to spend to get bottle service?
MELISSA: Its going to vary. Its usually going
between $275 at a minimum. So anywhere from 8,000 like
one of my regulars spent last weekend So it really
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1
ERIN: What do you think it is about Club Fury that
1
2
makes it one of the most awesome, if not the most
2
3
awesome spot in Orange County?
3
4
BRIAN: I think it's like we cater to upscale
4
5
crowds. We try to get people to pull out their nice
5
6
outfits. The girls pull their dresses and their high
I 6
7
heels out, and we kind of keep the riffraff out.
7
8
ERIN: We appreciate that, Brian,
8
9
(Walking through the club)
9
10
ERIN: We are here with the local club -goers here.
j 10
11
Paul, how many times have you been to club Fury?
11
12
PAUL: Probably about 20 times.
12
13
ERIN: Twenty times. And what it is about this
13
14
place that makes you keep coming back and spending your
14
15
entire paycheck?
15
16
PAUL: Mostly the girls and my boy David Gonzalez,
16
17
he owns it. So I come out and represent his club, why
17
18
not?
18
19
ERIN: I talk to you like when girls kiss girls?
19
20
MALE: I like it when they kiss themselves and me.
20
21
(DJ demonstration.)
21
22
NATALIE: Are you girls having a good time tonight?
22
23
FEMALE: Yeah, we are.
23
24
FEMALE: Absolutely.
24
25
NATALIE: What are you looking for? What are you
25
Page 586
1
looking for? What kind of guy are you looking for?
1
2
FEMALES: No faux hogs (phonetic).
2
3
NATALIE: Oh, they are looking for you. Yeah, they :i
3
4
should be. Damn straight.
4
5
ERIN: I'm here with Matt Mattick, one of the
5
6
owners of Social Group. Social Group promotes for Club
6
7
Fury Friday and Saturday nights.
7
8
Matt, how long have you been a promoter for?
8
9
MR, MATTICK: I've been a promoter for about eight
9
10
years.
10
11
ERIN: What made you decide to promote for Club
11
12
Fury?
12
13
MR. MATTICK: It's the newest club in town. 1
13
14
always go to the new spots and this is the place.
14
15
ERIN: Smart entrepreneur. What do you think,
15
16
aside from how awesome this club is -- you know, it's
16
17
only been open for four months, what do you think it is
17
18
about this club that has made it so successful in such a
18
19
short amount of time? '
19
20
MR. MATTICK: Without being too cocky Pd have to
20
21
say it's because the Social Group is here.
21
22
ERIN: I would have to agree. We have been to a
22
23
lot of the Social Clubs promotions, been to a lot of the
23
24
clubs they have been promoting at. It always a good
24
25
time. If you ever get the chance, if you get the flier,
25
77 traye8 DOD co DUO)
Page 587
if you see MySpace and you get the a -mail, come down to
whatever they are promoting.
How do people get on your guest list?
MR. MATTICK: You can get ahold of us either — the
easiest way is to contact us on our web site. All the
information that you will need about any event that we
have going on -- especially all the special events we
have here at Fury you can find us on
www.thesmialgrp.com. Info lines for guest lists,
special events, anything coming up.
ERIN: Matter of fact, you have some bottle service
and things like that as well?
MR. MATTICK: Yeah, we can hook you up with bottle
service, VIP service. Anything you want done we can do.
NATALIE: We are here with Bridget, she is one of
the hottest bartenders here. Bridget, what do we do to
get a drink fast?
BRIDGET: Show me your black AMEX.
NATALIE: Yeah.
BRIDGET: Totally kidding. Be nice to me, ask me
nice things and you will get a drink so quick you won't
even know it.
NATALIE: Beautiful. What is the weirdest pickup
line you have ever heard?
BRIDGET. Oh, my Cod, I've heard so many weird
Page 588
pickup lines. God, a lot of them involve me caning home
with the guy. So I don t even know that you can say it
on camera, but its really bad.
NATALIE: No, you are doing fine.
BRIDGET: You can totally imagine, right?
NATALIE: Yeah, l can totally imagine. What are
you doing later.
BRIDGET: All the girls hying to pick up on me. I
love it. Free drinks.
(Music playing)
NATALIE: You've got ladies?
PAUL: Lot of them.
NATALIE: You mean like us being here right now,
are those your ladies?
PAUL: Two is better than one.
MALE: Go home Shamu.
NATALIE: Really? Yeah, lets cut this short.
(Through the crowd again.)
ERIN: I'm here with Melissa. Melissa is one of
the representative of the VIP hostess this year. If
somebody is coming down to Fury, what is the minimum
they can expect to spend to get bottle service?
MELISSA: Its going to vary. Its usually going
between $275 at a minimum. So anywhere from 8,000 like
one of my regulars spent last weekend So it really
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Page 591
THE REPORTER: That was inaudible at some points.
MS. AILIN: It is difficult. I've watched several
times myself, and with repeated viewings and listenings
the audio gets a little more intelligible, but --
MR. JAMIESON: So for purposes of the record that
was actually Exhibit 19, correct?
MS. AILIN; That's correct, that was Exhibit 19.
MR. JAMIESON: And for purposes of the record,
we'll just re- interpose the objections that we have
previously stated.
THE HEARING OFFICER: Right.
MR. JAMIESON: Plus what I'd like to do since we
have now looked at it to also interpose the objections
or perhaps reiterate -- we may have done that already --
relevance, foundation, 353, hearsay, foundation and
inability to cross - examine the people that were making
statements in the video, puts us in a position of not
being able to cross - examine, confront, et cetera.
MS. AILIN: I think that one of the central issues
in these proceedings is whether Fury is a restaurant or
a nightclub. I think it is certainly relevant to that
issue because the atmosphere that you see, the
activities that you see are consistent with it being a
nightclub rather than a restaurant. No one mentioned
food. Even Mr. Schillim when he was on camera didn't
Page 592
mention anything about this being a restaurant It is
presented to essentially show what goes on at Fury.
It's like trying to cross- examine a painting. I don't
think you need to cross - examine a painting.
In addition, I would hike to make the point,
and well have additional testimony related to this next
week, that just die fact that this video was made is a
violation of the use permit --
THE HEARING OFFICER: Yeah.
MS. AILIN: Because condition 12 states that there
shall be no on -site radio, television, video, film
electronic media broadcasts including recordings for the
broadcast at a later time, which includes the service of
alcohol beverages without first obtaining an approved
special event permit as issued by the state (sic) of
Newport Beach, and we will have testimony next week that
no special event permit was obtained for the making of
the video.
MR. JAMIESON: Well, I guess I need to be --
THE HEARING OFFICER: Is Officer Yee here --
MS. AILIN: I don't know. Let me look.
THE HEARING OFFICER: -- because we can go on.
MR. JAMIESON: I would like to make a statement,
and 1 don't know if you want to stay here while Pm
doing that.
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1
depends.
1
2
ERIN: So like $275 bottle, is that like well
2
3
Vodka?
3
4
MELISSA: It is. Its like a Grey Goose.
4
5
ERIN: Grey Goose is the well vodka?
5
6
MELISSA: Yeah.
6
7
ERIN: That's awesome.
7
e
MELISSA: So remember --
8
9
ERIN: Free bars out there. So if they get their
9
10
table, they come out and they are going to get their VIP
10
11
service, what is the bottle that it takes to make this
11
12
place look like 4th of July?
12
13
MELISSA: We have done 4th of July many a times.
13
14
Its usually on weekends, everybody comes out on
14
15
Saturday and has a good time. Bottle of Crystal is
15
16
about $600. We have these special fireworks that are
16
17
called birthday candles. But it will light up the
17
18
place, which is wild. Sometimes we will do up to six
18
19
sparklers at a time. Depending on how many girls I can
19
20
gather.
20
21
ERIN: That's pretty awesome. It's an awesome site
21
22
You have to come down and see it. It's only $600.
22
23
Really, that's like a half a paycheck for a day for all
23
24
the city residents.
24
25
So other than that, what do people do if they
25
- - - - -�- Page 590
1
want to rent a table and they want to come down here and
1
2
act like a VIP. What do they need to do?
2
3
MELISSA: The good news, there is only one point of
3
4
contact. There is a girl that you need to call her
4
5
information is everywhere -- on our web site. Everybody
5
6
knows who it is that they need to speak to. And she is
6
7
basically the contact, and she can put you wherever.'!
7
B
And if you specifically request the VIP area, she will
a
9
put you there. If not, then we will put you anywhere in
9
10
the club and there is three specific back areas.
10
11
ERIN: And you know club Fury is on our top
11
12
friends. So if you click on SoCal Club Review you are
12
13
going to see Club Fury. And our top friends, just click
13
14
on it. They have got all the information.
14
15
Let me show you how to roll like a ball or a
15
16
soap. Come down. Spend your fuckin' money. It doesn t
16
17
matter. We are not going to keep it where we are going
17
18
anyways. So come back and have a good time."
18
19
MR. JAMIESON: There we go.
19
20
MS. AILIN: We're done, and I guess we probably
20
21
should say for the record since we don't do it at the
21
22
start of the video that what we were doing was watching
22
23
the Fury video that Miss Parker pulled off YouTube, and
23
24
what the court reporter has been doing is her best job
24
25
of transcribing the audio.
25
bu lraycs o07 tU »GI
Page 591
THE REPORTER: That was inaudible at some points.
MS. AILIN: It is difficult. I've watched several
times myself, and with repeated viewings and listenings
the audio gets a little more intelligible, but --
MR. JAMIESON: So for purposes of the record that
was actually Exhibit 19, correct?
MS. AILIN; That's correct, that was Exhibit 19.
MR. JAMIESON: And for purposes of the record,
we'll just re- interpose the objections that we have
previously stated.
THE HEARING OFFICER: Right.
MR. JAMIESON: Plus what I'd like to do since we
have now looked at it to also interpose the objections
or perhaps reiterate -- we may have done that already --
relevance, foundation, 353, hearsay, foundation and
inability to cross - examine the people that were making
statements in the video, puts us in a position of not
being able to cross - examine, confront, et cetera.
MS. AILIN: I think that one of the central issues
in these proceedings is whether Fury is a restaurant or
a nightclub. I think it is certainly relevant to that
issue because the atmosphere that you see, the
activities that you see are consistent with it being a
nightclub rather than a restaurant. No one mentioned
food. Even Mr. Schillim when he was on camera didn't
Page 592
mention anything about this being a restaurant It is
presented to essentially show what goes on at Fury.
It's like trying to cross- examine a painting. I don't
think you need to cross - examine a painting.
In addition, I would hike to make the point,
and well have additional testimony related to this next
week, that just die fact that this video was made is a
violation of the use permit --
THE HEARING OFFICER: Yeah.
MS. AILIN: Because condition 12 states that there
shall be no on -site radio, television, video, film
electronic media broadcasts including recordings for the
broadcast at a later time, which includes the service of
alcohol beverages without first obtaining an approved
special event permit as issued by the state (sic) of
Newport Beach, and we will have testimony next week that
no special event permit was obtained for the making of
the video.
MR. JAMIESON: Well, I guess I need to be --
THE HEARING OFFICER: Is Officer Yee here --
MS. AILIN: I don't know. Let me look.
THE HEARING OFFICER: -- because we can go on.
MR. JAMIESON: I would like to make a statement,
and 1 don't know if you want to stay here while Pm
doing that.
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guy with a video camera, pretty conspicuous in a dark
establishment. In addition, we have one of the owners
on camera. They can hardly say they didn't know that
this was being done, and it's continually referred to as
a club. Mr. Schillizzi didn't correct the reference to
it as a club.
As far as when the video was made, the blond
woman on the video says, "You've been open about four
months now." They opened in July. It was made in
November. Day of the week, the dark - haired woman says,
forget about getting in here alter 10:30 on I believe
she said Saturday night. It could have been Friday
night, but it's certainly one or the other. Dancing is
only permitted Thursday through Sunday, so that also
helps to pin it down.
Time of day, they are outside in front with
the line. It's dark outside. It's night. 1 don't
think authentication requires that you be able to say a
specific date, a specific day of the week or that it was
11:32 p.m.
MR. JAMIESON: Yeah, but --
THE HEARING OFFICER: Each side in the process of
this has to decide the degree, the weight that's going
to be given to this thing. It's in, and I'll certainly
delineate what weight I think should be given to it.
Page 596
It's in.
MR. JAMIESON: That's part of what I was saying
here is it has to do with the relevance of it or
irrelevance we might say.
THE HEARING OFFICER: Correct.
MR. JAMIESON: Anyway, Officer Yee?
MS. AILIN: Is Officer Yee here?
JUSTIN YEE,
having been first duly administered an
oath in accordance with CCP 2094, was
examined and testified as follows:
DIRECT EXAMINATION
BY MS. AII.W:
Q. Good afternoon, Officer Yee. Would you please
state and spell your name for the record?
A. Justin Yee.
Q. How are you employed?
THE HEARING OFFICER: Y -e-e?
THE WITNESS: Yeah, Y -e -e.
Employed w a police officer with the City of
Newport Beach.
BY MS. AILIN:
Q. How long have you been a police officer with
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Page 593
1
First of all, with respect to this video,
1
2
there was no indication that this video was made by or
2
3
on behalf or on the behest of anybody at Fury.
3
4
Secondly, with respect to the supposed argued violation
4
5
of 12, that's the first time I have heard that is in
5
6
this hearing at this moment, so I would object to any
6
7
proceeding based on that type of violation. It goes
7
a
back to notice and opportunity to be heard and due
8
9
process. The whole idea is you lay it out there as to
9
10
why you bring a proceeding to revoke. You put out there
10
11
what the basis is. You go and you and try prove it up,
11
12
and that wasn't something that was brought up previously
12
13
in terms of that --
13
14
THE HEARING OFFICER: You are saying that it
14
15
wasn't brought up that they allowed to have a video done
15
16
in there?
16
17
MR. JAMIESON: No, what I'm saying is that the
17
18
first time that I have had heard that there is a ;
18
19
violation, alleged violation of condition No. 12 is i
19
20
right now, right at this moment when she said it. The
20
21
video itself -- the video itself was out there in terms
21
22
of what we were arguing about for evidentiary, purposes,
22
23
conditional purposes, whatever, but in terms of
23
24
condition No. 12 and that being a statement, seems to me
24
25
that if notice and an opportunity to he heard has any
25
Page 594)
1
specific applicable, then it has got to identify with
1
2
some specification as to what they're proceeding on and
2
3
relying on, and that's not it. So that's part of it
3
4
The other part of it is there's no indication,
4
5
again, when this video was made, what time of day, what
5
6
day of the week, who the people are that are involved.
6
7
And finally with the respect to the characterization
7
8
that this is not what it is supposed to be, this
8
9
conditional use permit says specifically it's an eating
9
10
and drinking establishment with live entertainment and
10
11
dancing so long as these other permits are obtained, and
11
12
the evidence is clear that the other permits were
12
13
obtained. The process itself when they obtained the
13
14
permit originally identifies in the floor plan a dance
14
15
floor. The dance floor is there. The dance floor is
15
16
there, and so if they are dancing and there is
16
17
entertainment, pursuant to these permits and it's an
17
18
eating and drinking establishment, which it is, there is
18
19
-- its like saying this video indicates that you can't
19
20
have fun at a place where you can also get great food,
20
21
and that's what this is, so to -- save it for argument,
21
22
but I'm responding to what counsel said.
22
23
MS. AILIN: And with regard to that, whether or not
23
24
it was made at their behest, it was certainly made with
24
25
their knowledge. Two women walking with microphones, a
25
el lrages D73 LU OV01
Page 595
guy with a video camera, pretty conspicuous in a dark
establishment. In addition, we have one of the owners
on camera. They can hardly say they didn't know that
this was being done, and it's continually referred to as
a club. Mr. Schillizzi didn't correct the reference to
it as a club.
As far as when the video was made, the blond
woman on the video says, "You've been open about four
months now." They opened in July. It was made in
November. Day of the week, the dark - haired woman says,
forget about getting in here alter 10:30 on I believe
she said Saturday night. It could have been Friday
night, but it's certainly one or the other. Dancing is
only permitted Thursday through Sunday, so that also
helps to pin it down.
Time of day, they are outside in front with
the line. It's dark outside. It's night. 1 don't
think authentication requires that you be able to say a
specific date, a specific day of the week or that it was
11:32 p.m.
MR. JAMIESON: Yeah, but --
THE HEARING OFFICER: Each side in the process of
this has to decide the degree, the weight that's going
to be given to this thing. It's in, and I'll certainly
delineate what weight I think should be given to it.
Page 596
It's in.
MR. JAMIESON: That's part of what I was saying
here is it has to do with the relevance of it or
irrelevance we might say.
THE HEARING OFFICER: Correct.
MR. JAMIESON: Anyway, Officer Yee?
MS. AILIN: Is Officer Yee here?
JUSTIN YEE,
having been first duly administered an
oath in accordance with CCP 2094, was
examined and testified as follows:
DIRECT EXAMINATION
BY MS. AII.W:
Q. Good afternoon, Officer Yee. Would you please
state and spell your name for the record?
A. Justin Yee.
Q. How are you employed?
THE HEARING OFFICER: Y -e-e?
THE WITNESS: Yeah, Y -e -e.
Employed w a police officer with the City of
Newport Beach.
BY MS. AILIN:
Q. How long have you been a police officer with
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Page 5971
pages of Exhibit 30 into evidence and offer Mr. Yee for
1 the City of Newport Beach?
1
2 A. Sworn in October 10, 2003, so about four and a
2
3 half years.
3
4 Q. And let's see. In this binder in front of you
4
5 we something we have marked as Exhibit 30, or C 30, and
5
6 the fourth and fifth pages of this document have your
6
7 name at the bottom
7
8 MR. JAMIESON: Exhibit 30?
8
9 MS. AILIN: Exhibit 30, fourth and fifth pages.
9
10 Q. Have you seen these two pages before?
10
11 A. Yes.
11
12 Q. And are you the person who drafted this
12
13 two-page report?
13
14 A. Yes.
14
15 Q. Was this report prepared in the course and
15
16 scope of your duties as a police officer?
16
17 A. Yes.
17
18 Q. Was it prepared based on observations that you
18
19 made?
19
20 A Yes.
20
21 Q. On what date did you make those observations?
21
22 A. It's like January 26th of this year.
22
23 Q. And when did you prepare the report?
23
24 A. Approximately 1:30 in the morning.
24
25 MS. AILIN: And with that, I would move these two
25
Page 598
1
pages of Exhibit 30 into evidence and offer Mr. Yee for
1
2
cross- examination.
2
3
MR, JAMIESON: I interpose my objection that this
3
4
lacks foundation, is replete with hearsay. It is not
4
5
admissible pursuant to Evidence Code section 1280 or any
5
6
other exception to the hearsay rule and is irrelevant.
i 6
7
THE HEARING OFFICER: Overruled.
7
8
MR- JAMIESON: You are turning to me?
8
9
MS. AILIN: I said I was open for
9
10
cross- examination.
10
11
THE HEARING OFFICER: Oh, I'm sorry.
11
12
MS. AILIN: He did say overruled.
12
13
THE HEARING OFFICER: I did say overruled, that's
13
14
right, and I thought maybe you were going to ask another
14
15
question or two. Please proceed.
15
16
16
17
CROSS - EXAMINATION
17
18
BY MR. JAMIESON:
18
19
Q. All right. Hi Officer, how are you?
19
20
A. Good, how are you?
20
21
Q. I'm good. Officer, when you were at the Fury
21
22
on January 26, 2007, you were there in the context of
22
23
doing what you call a project?
23
24
A. Actually 2008. There may be a typo.
24
25
MS. AILIN: No, actually the report says --
25
oa irayt:�:i »r L�v QVVJ
Page 599
THE WITNESS: On the front page it says 2008. It
looks like in the narrative I actually wrote 2007. his
actually 2008, January. I'm sorry.
BY MR. JAMIESON:
Q. Where does it say 2008?
A. On the front page. Where it says date and
time of report, top left. Date of original incident,
directly below it.
Q. Did you type out the second page of this
document?
A. I did.
Q. You typed it out yourself?
A. I did.
Q. And you did it at 2:30 in the moraine?
A. Yes.
Q. Were there any fire department officers
present at the time?
A. No.
Q. The occupancy load that you identified as
being the amount of occupancy for this location was
obtained from where?
A. I'm —
Q. What's the number of the occupancy?
A. Maximum occupancy allowed at the location?
Q. Yes.
Page 600
A. How did I obtain that?
Q. First of all, what is it?
A. I don't recall what it is.
Q. Does your report reflect?
A. 1 believe so.
Q. What does it say?
THE HEARING OFFICER: It say 297 at the bottom of
page one there.
MR. JAMIESON: Not on mine.
MS. AILIN: Well, I believe that the hearing
officer is looking at the first page of Exhibit 30.
THE HEARING OFFICER: Right
MR. JAMIESON: The first page of Exhibit 30 is not
part of this. He is only on --
MS. AILIN: Mr. Yee prepared the fourth and fifth
page
MR. JAMIESON: Oh, that --
MS. AILIN: The maximum occupancy is identified in
the stipulation that we marked as A2.
MR. JAMIESON: This is crass- examination, and
between advising the officer what the number is from the
other page and what the stipulation is, it kind of
eviscerated a little bit of my cross - examination, so
when you --
MS. AILIN: What a crying shame.
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Page 601
Page 603
1
MR. JAMIESON: I guess so.
1
Q. Yes.
2
THE HEARING OFFICER: We are keeping it moving for
2
A. It's in my duty bag, so it's constantly with
3
you.
3
me every night I go out
4
BY MR. JAMIESON:
4
Q. Now, when you went to Fury that night, you
5
Q. Officer Yee?
5
were with a partner by the name of Dugan; is that
6
A. Yes, sir.
6
correct?
7
Q. Do you have recollection as you sit here today
7
A. It was two partners, Officer Dugan and
B
independent of any report that you have read or heard of
8
Officer Hardy.
9
what the occupancy limit was in Fury?
9
Q. Did all three of you go in the same car?
10
A. I can't remember the exact one offhand, but we
10
A. Yes.
11
do have papers that I carry while on duty that reflected
11
Q. When you got in the car to go to Fury, had you
12
the number. That I know.
12
gone in that car to any other locations?
13
Q. Do you have those papers with you now?
13
A. Not directly, no.
14
A. I don't.
14
Q. And after you went to this particular
1s
Q. The papers that you are talking about, were
15
location, you didn't go to any other locations, did you?
16
those papers that you had obtained before you went to
16
A. No, that was the end of our shift.
17
Fury that night?
17
Q. And on that particular night this is the only
18
A. Correct.
18
location that you went to with these other two officers
19
Q. And when you went to Fury that night and you
19
in that vehicle, right?
20
had the papers in hand, did you know while you were in
20
A. You know, our primary focus is down here on
21
the process of going to Fury that you were going to do a
21
the peninsula in this area. If we go to any other bars
22
countdown or at least potentially do a countdown?
j 22
in the city, we take our bike, not a vehicle, and so
23
A. Potentially.
23
primarily we are on our bicycles, and we — so good
24
Q. You do that for every location around that's
24
chance that we went to other bars that night
25
got an occupancy limit?
25
Q. Once you got in the vehicle — and 1
Page 602
Page 604
1
A. Yeah, I work bike patrol, and our primary
1
understand that you are normally on a bicycle, and
2
focus is the bars, bars' patrons, including over-
2
that's why I'm asking you these questions, and 1
3
intoxicated patrons and overcrowding, so oftentimes,
3
understand that you are normally down in the peninsular
4
yeah, we keep records of what the occupancy load for
4
area here and not out on MacArthur.
5
each location is, and we regularly — each time we go to
5
A. Okay.
6
a bar we kind of refresh ourselves on what their load
6
Q. You are on your bike down here, but to go out
7
may be. We do a bar check, and if they appear to be
7
to MacArthur you have to with these other two officers
8
over, we are ready to possibly count them out
8
get into a vehicle and drive out to this place on
9
Q. In this particular situation on January 26,
9
MacArthur, right?
10
'08 when you went to Fury, you weren't on your bicycle,
10
A. Correct.
11
were you?
11
Q. From the time you got in the car to the time
12
A. No.
12
you got to Fury that night, did you go to any other
13
Q. In fact, you had gone there in a patrol car of
13
location?
14
some sort, right?
I 14
A. Not that I can recall, no.
15
A. Right
( 15
Q. Prior to January 26, of '08, did you — strike
16
Q. And when you got in your patrol car to go to
16
that
17
Fury that night, was your intent to look to we if they
17
On that particular night, January 26 of 2008,
16
were overcrowded and then count them out?
18
did you go to Fury as a result of being directed to do
19
A. Our intention was as we go to every bar we do
19
in by anybody else in your department?
20
a bar check is to first check for overly intoxicated
20
A. Yes.
21
patrons and look for possible overcrowding.
21
Q. And who directed you to go there?
22
Q. When during that process did you obtain the
22
A. We were requested by vice intelligence
23
information that you said you had on your paper about
23
officers.
24
what the occupancy limit was for that night?
24
Q. Do you know who among the vice intelligence
25
A. For that night?
25
officers asked you to go there? Was it Detective Jones
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Page 607
Q. When is Jamboree?
A. Jamboree — the 73 crosses both MacArthur and
Jamboree. Jamboree would be west of MacArthur as it
crosses the 73. Jamboree and MacArthur also intersect a
block down just north of that.
Q. I see, and that's where you were, in that
area?
A. Correct.
Q. When you arrived and met up with Stark and
Jones, were you at that time with Dugan and Hardy?
A. Yes.
Q. Did Stark and Jones tell you that they had
already been at the Fury?
A. Yes.
Q. What did they tell you they had observed while
at the Fury?
MS. AILIN: Objection; calls for hearsay, which I
find a hilarious objection to have to make with all of
Mr. Jamieson's objections about hearsay.
MR- JAMIESON: Unless you are going to --
THE HEARING OFFICER: Overruled provided you will
focus on the overcrowding issue that the substance of
what this report is about
MR. JAMIESON: I want to find out why Officer Yee
went there in the first place. We have now found out
Page 608
that Jones and Stark and these guys got together an how
before, and so I Want to find out what they talked
about.
THE HEARING OFFICER: That's not relevant to the
overcrowding issue that we we discussing, and it's five
after 5:00.
MR, JAMIESON: In cross - examination anytime that
bias, independence and the reason that they are there
and what they expected to find when they are there is
always going to be something that's relevant.
THE HEARING OFFICER: Not necessarily. Focus it in
and go.
BY MR. JAMIESON:
Q. So what did you talk about?
A. Is that focused down now?
Q. Focused down as far as I'm concerned. That's
my question. If she wants to make an objection, if she
wants a direction, I want you to answer my question.
A. We were asked to conduct a bar check.
Q. What else did they tell you about their
observations about Fury that night?
MS. AILIN: Objection; relevance, hearsay.
THE HEARING OFFICER: Sustained.
BY MR. JAMIESON:
Q. What did they tell you about the level of —
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1
or Detective Stark?
1
2
A. Detective Jones.
2
3
Q. Detective Jones asked you to do that by radio
3
4
or in person or what?
4
5
A. By radio.
5
6
Q. How long before you actually got to Fury did
6
7
you get that call from Detective Jones?
7
8
A. I believe we were asked to do a bar check at
8
9
some point during the night. We were advised that they
9
10
would be up there, and we were asked that they may
10
11
request our assistance to go up there and conduct a bar
11
12
check. Probably a couple hours before we got up there.
12
13
Q. And when Detective Jones asked you to come
13
14
out, did — strike that
14
15
When you arrived at Fury, was Detective Jones
15
16
still there?
16
17
A. 1 don't recall seeing him.
17
18
Q. When you arrived at Fury, was Detective Stark
18
19
still there?
j 19
20
A. I don't recall seeing him.
j 20
21
Q. Did you make any contact with Jones or Stark
j 21
22
at Fury that night?
j 22
23
A. At Fury, no.
23
24
Q. Did you make any contact with Jones or Stark
24
25
at any time that night where you had any discussion
j 25
Page 606
1
about Fury?
1
2
A. Yes.
2
3
Q. And was that before or after you got to Fury?
3
4
A. Before.
4
5
Q. How long before you went to Fury?
5
6
A. I don't recall, probably within the hour.
6
7
Q. Where did you meet up with them?
7
8
A. There is a parking lot off of Bristol North
8
9
and Jamboree.
9
10
Q. Now, bear with me because I'm not familiar
10
11
with that area. Bristol North and Jamboree would be
11
12
what direction from where Fury was?
12
13
A. The way we call it, it would be south,
13
14
southeast
14
15
Q. 73 runs along and crosses MacArthur down
15
16
there, doesn't it?
16
17
A. Yes, and Bristol North and South run adjacent
17
18
to the 73.
18
19
Q. So when you come off of 73, as soon as you got
19
20
off the freeway, Bristol runs parallel to the 73 on the
20
21
north side?
21
22
A. Correct.
22
23
Q. Now that I have kind of got that in mind,
23
24
where did you meet up with them?
24
25
A. On the corner of Bristol North and Jamboree.
25
64 (Pages 605 to 608)
Page 607
Q. When is Jamboree?
A. Jamboree — the 73 crosses both MacArthur and
Jamboree. Jamboree would be west of MacArthur as it
crosses the 73. Jamboree and MacArthur also intersect a
block down just north of that.
Q. I see, and that's where you were, in that
area?
A. Correct.
Q. When you arrived and met up with Stark and
Jones, were you at that time with Dugan and Hardy?
A. Yes.
Q. Did Stark and Jones tell you that they had
already been at the Fury?
A. Yes.
Q. What did they tell you they had observed while
at the Fury?
MS. AILIN: Objection; calls for hearsay, which I
find a hilarious objection to have to make with all of
Mr. Jamieson's objections about hearsay.
MR- JAMIESON: Unless you are going to --
THE HEARING OFFICER: Overruled provided you will
focus on the overcrowding issue that the substance of
what this report is about
MR. JAMIESON: I want to find out why Officer Yee
went there in the first place. We have now found out
Page 608
that Jones and Stark and these guys got together an how
before, and so I Want to find out what they talked
about.
THE HEARING OFFICER: That's not relevant to the
overcrowding issue that we we discussing, and it's five
after 5:00.
MR, JAMIESON: In cross - examination anytime that
bias, independence and the reason that they are there
and what they expected to find when they are there is
always going to be something that's relevant.
THE HEARING OFFICER: Not necessarily. Focus it in
and go.
BY MR. JAMIESON:
Q. So what did you talk about?
A. Is that focused down now?
Q. Focused down as far as I'm concerned. That's
my question. If she wants to make an objection, if she
wants a direction, I want you to answer my question.
A. We were asked to conduct a bar check.
Q. What else did they tell you about their
observations about Fury that night?
MS. AILIN: Objection; relevance, hearsay.
THE HEARING OFFICER: Sustained.
BY MR. JAMIESON:
Q. What did they tell you about the level of —
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Page 611
the count.
Q. Neither you nor they issued any citations for
any other potential violations, but there was a citation
issued for overcrowding?
A. We —1 believe there were other arrests made
by one of the three of us.
Q. You didn't do it?
A. I did not.
Q. And as far as this alleged overcrowding, did
you ever testify in a court of law with regard to an
overcrowding citation?
A. No.
Q. Did you ever provide any testimony of any sort
with regard to any citation alleging overcrowding?
A. Can you rephrase that? Say that again.
Q. Sure, did you ever testify in any type of
court proceeding where you were placed under oath about
what occurred that night in relation to a citation that
was issued?
A. No.
Q. And you don't know what concluded with the
citation that was issued for overcrowding that night, do
you?
A. No, I do not.
Q. Now, in terms of the count out itself, you
Page 612
didn't operate the counting apparatus. The other two
guys did, right?
A. Wrong. We had one — Officer Dugan operated a
handheld clicking counter. You turn a little stile.
Q. Right.
A. And I actually did a written count
Basically, I had a pad of paper. Every 10 or 15 patrons
or so I wrote down 10 or 15 depending on the speed that
they would come out, and at the end of that count out I
added all that up.
Q. So was — you said it was Dugan that had the
apparatus, the roller. What do you call that thing?
A. Just a clicker.
Q. Who had the clicker. Did anybody else have
another clicker that was clicking out at the same time?
A. No.
Q. Did anybody obtain the clicker that was wed
by the personnel within the establishment that
identified the number of people that had been let in at
a given time?
A. Did we obtain it, physically take it?
Q. Yes.
A. Did I look at it? Yes.
Q. When you looked at it, did it reflect that it
was under 300 or under 297?
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1
the number of people at Fury when you got together an
1
2
hour before?
2
3
MS. AILIN: Objection; relevance, hearsay.
3
4
THE HEARING OFFICER: I would overrule that one.
4
5
THE WITNESS: They said based on their
5
6
observations that there was a potential that they had --
6
7
that they were overcrowded, but that they had never
7
6
actually been inside the location.
8
9
BY MR. JAMIESON:
9
10
Q. So then an hour later you went to the
10
11
location, and when you got — is that right?
11
12
A. Correct.
12
13
Q. And when you got to the location, Stark and
13
14
Jones weren't with you, but the other two officers were
I(I
14
15
with you, correct?
15
16
A. Correct
16
17
Q. Where the did other two officers station
1 17
18
themselves?
q 18
19
A. All three of us walked up to the front of the
I 19
20
location.
20
21
Q. Were you in uniform?
21
22
A. Correct
22
23
Q. When you walked up, did you Idenfffy anyone
23
24
that said they were related to the ownership of Fury?
24
25
A. Did l identify? Yes.
25
Page 610
1
Q. Who did you identify?
1
2
A. I can't recall his name offhand. He
2
3
identified himself as the owner. I can't recall his
3
4
name.
4
5
Q. And did you tell them what you were there to
5
6
do?
6
7
A. Uh -huh.
7
8
Q. Is that "yes "?
8
9
A. Yes.
9
10
Q. Did you come with any kind of counting !
10
11
apparatus?
11
12
A. I did not.
12
13
Q. Did any of your fellow officers come with a
13
14
counting apparatus?
14
is
A. Yes.
15
16
Q. Where did they station themselves in order to
16
17
count out the premises?
17
18
A. Well, actually prior to any count,
18
19
Officer Hardy and Officer Dugan entered the bar to do a
19
20
bar check like we normally do in bars where we walk
20
21
through a location potentially to look for overly
21
22
intoxicated patrow or looking for overcrowding. They
22
23
were In there probably a good 15 minutes until they came
23
24
out, and they were there visually estimating the
24
25
overcrowding, and at that point we decided to conduct !
25
65 (Pages 609 to 612)
Page 611
the count.
Q. Neither you nor they issued any citations for
any other potential violations, but there was a citation
issued for overcrowding?
A. We —1 believe there were other arrests made
by one of the three of us.
Q. You didn't do it?
A. I did not.
Q. And as far as this alleged overcrowding, did
you ever testify in a court of law with regard to an
overcrowding citation?
A. No.
Q. Did you ever provide any testimony of any sort
with regard to any citation alleging overcrowding?
A. Can you rephrase that? Say that again.
Q. Sure, did you ever testify in any type of
court proceeding where you were placed under oath about
what occurred that night in relation to a citation that
was issued?
A. No.
Q. And you don't know what concluded with the
citation that was issued for overcrowding that night, do
you?
A. No, I do not.
Q. Now, in terms of the count out itself, you
Page 612
didn't operate the counting apparatus. The other two
guys did, right?
A. Wrong. We had one — Officer Dugan operated a
handheld clicking counter. You turn a little stile.
Q. Right.
A. And I actually did a written count
Basically, I had a pad of paper. Every 10 or 15 patrons
or so I wrote down 10 or 15 depending on the speed that
they would come out, and at the end of that count out I
added all that up.
Q. So was — you said it was Dugan that had the
apparatus, the roller. What do you call that thing?
A. Just a clicker.
Q. Who had the clicker. Did anybody else have
another clicker that was clicking out at the same time?
A. No.
Q. Did anybody obtain the clicker that was wed
by the personnel within the establishment that
identified the number of people that had been let in at
a given time?
A. Did we obtain it, physically take it?
Q. Yes.
A. Did I look at it? Yes.
Q. When you looked at it, did it reflect that it
was under 300 or under 297?
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A. It did.
1
MR. JAMIESON: All I can do is object.
2
Q. And did you check the accuracy of that
2
THE HEARING OFFICER: Do you want to rephrase the
3
clicker, look to see if that clicker was working
3
question?
4
correctly?
4
BY MS. AILIN:
5
A. Did I physically test it? No.
5
Q. Is the gentleman sitting in the front row here
6
Q. Did you question the people who were holding
6
in the audience the person who identified himself as the
7
that clicker about whether or not they did it correctly?
7
owner?
8
A. 1 asked them if that was an accurate count of
8
A. There was one person who identified
9
the number of patrons they had inside. They had told me
9
themselves —
10
yes,
10
Q. But there was someone else present —
11
Q. Who was it that told you that?
11
A. There was someone else. It was his birthday
12
A. It was — if I may refer to my report. 1 J
12
party that night, special event for him, and once he —
13
don't know if I have his name.
13
I think once he kind of realized that they may have been
14
Q. Why don't you Just look at your report?
14
over the count he left. So this owner was outside.
15
A. I'm just looking at mine. Witness Ko
15
MS. AILIN: 1 have no further questions.
16
(phone tic), which is one ofthe head — one ofthe +
16
THE HEARING OFFICER: I don't either.
17
doormen.
17
MR. JAMIESON: 1 don't either.
18
Q. That was the only person that you talked to
18
THE HEARING OFFICER: Who is our next witness?
19
that night about the clicker that Fury — JI
19
(Discussion ensued off the record.)
20
A. When I arrived there, I talked to — I don't
20
MS. AILIN: I will make my comments, then. At
21
recall what doorman I talked to. I asked specifically
21
various times during the day when we were off the record
22
because — at the Fury because I have been there !
22
and talking about scheduling and how we were going to
23
numerous times they normally have one person who keeps a i
23
move this forward, the hearing officer has expressed
24
count, and 1 asked who had their count for the night,
24
concern about the ability to complete this hearing by a
25
and Ko identified himself with counters in each hand as
25
date that will allow him to get a recommendation to the
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Page 614
Page 616
1
being the one who had the count for the night.
1
planning commission. And I think that, as I have
2
Q. After the place was counted out, this was,1
2
already said on the record and I will say again, I think
3
guess, before one o'clock in the morning, right?
3
this hearing has become a poster child for why the
4
A. Right.
4
courts of appeal have said we are not going to turn
5
Q. 12:30 or something. Did the location reopen?
5
these things into civil trials or criminal trials. They
6
A. No.
6
are informal hearings, and that is perfectly acceptable
7
Q. Did the location actually shut down by that I
7
from a constitutional due process standpoint. I think
e
time? Did they lock up, shut down, not let anybody else
8
that the courts recognize that having this kind of
9
in?
9
hearing creates all kinds of possibilities for delay.
10
A. They were letting people in to close tabs, but
10
I think we have a situation here where Fury is
11
as far as serving anybody else, I don't recalk I
11
already aware that if this hearing can't be completed
12
didn't go inside.
12
and the hearing officer can't prepare his recommendation
13
MR. JAMIESON: I have nothing further. Thank you. I
13
by the end of April, then this whole matter is going to
14
i
14
get put over to May 22nd, and I think that Fury's
15
FURTHER DIRECT EXAMINATION
15
motivation is to make this process take as long as
16
BY MS. AILIN:
16
possible because while this process is going on, the
17
Q. Officer Yee, we have sitting here in the
17
doors are open and they are making a lot of money, and
is
front row today David Gonzalez, one of the owners. Is
18
its worth it to them to spend money to keep this
19
he the gentleman you saw at Fury that night that
19
process going for as long as possible. And in
20
identified himself as the owner?
20
recognition of that, I suggest to the hearing officer --
21
A. He later identified himself as —
21
certainly the hearing officer has to make his own
22
MR. JAMIESON: Objection; leading question. It's a
22
decision about what he is going to do, but I suggest to
23
leading question. She has identified him by name. She
23
the hearing officer that we do as much as we can and
24
has identified him, so it's a leading question.
24
that the hearing officer base his recommendation on the
25
THE HEARING OFFICER: Its been asked, you know.
25
evidence that has come in by that point.
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Page 619
1
Due process calls for notice and a reasonable
1
do, what we can't do, moving things along, and, quite
2
opportunity to be heard, not an interminable opportunity
2
frankly at this point in tune, I have heard that all the
3
to be heard or as much time as you can figure out a way
3
city has left to do, I think, is three other witnesses
4
to consume. By the time we are finished with this, I
4
that it expects to put on or maybe four other witnesses
5
expect we will have spent 30 hours in hearing on this,
5
it expects to put on on what would have been Monday when
6
which is a more than reasonable amount of time for
6
we all had it calendared, but she can't be here Monday,
7
dealing with an issue that could have been dealt with
7
which is fine, so we'll do it on Tuesday.
8
informally in front of the planning commission, and if
8
So all of that being said, I really do take
9
Mr. Jamieson £eels that the hearing has not been
9
offense that for some reason there's an ulterior purpose
10
completed by that point, he can certainly register that
j 10
here. This is a very important proceeding. Its got
11
objection, bring it up when this matter goes to the
' 11
constitutional principles of due process. It affects
12
planning commission, but I would strongly encourage the
12
the constitutionally vested property interests and First
13
hearing officer to prepare a report and a reconmieudation
13
Amendment right interests. We have said that. We have
14
based on the evidence that is received doting what I
14
stated it, and we are here because it's an important
15
think is a more than reasonable amount of time for this
15
issue. That is the only reason that we are here.
16
hearing.
16
This business is important. This whole
17
MR. JAMIESON: May I?
17
proceeding is important, and it needs to be treated with
18
THE HEARING OFFICER: Sure.
18
that level of respect and integrity, and I think it is
19
MR. JAMIESON: 1 amjust absolutely flabbergasted
19
treated that way. The hearing officer is treating it
20
about this. I have said several times both before today
20
that way. rat treating it that way. Pm sure the city
21
and today that I will make myself available every day
21
attorney is treating it that way because of the
22
next week, Monday, Tuesday, Wednesday and Thursday for
22
witnesses and the extensive situation that we are
23
as much time as is necessary for as long is necessary
23
involved in, so that's my statement. I don't see any
24
according to everybody's schedule. The only day next
24
reason for the statement the city attorney made, but
25
week I couldn't do anything is Friday.
25
since it was, 1 am responding to it.
Page 618
Page 620
1
That type of representation is certainly
1
MS. AILIN: I don't mean to suggest that the
2
inconsistent with any -- and I will refrain from
2
proceeding is not important, but we have seen
3
defining it -- from any allegation that either I or my
3
examples -- and I apologize for not being available on
4
client are trying to somehow stem these proceedings to
4
Monday. I thought I had trade it clear that I wasn't
5
something that is unwarranted for an ulterior purpose.
5
available on Monday. I will make myself available the
6
If it were, I would say very easily that there are many r
6
rest of the week except for Wednesday morning. I don't
7
other things that could be done during next week. We j
7
think this is that big a change in the schedule. I had
8
don't need to do it every week, et cetera, so that's
8
always thought we were resuming on April 22nd. I have
9
just a ridiculous assertion. j
9
been unfortunately put in a position where there are a
10
Secondly, with regard to the nature of the
10
number of witnesses who are not available today who
11
type of proceeding that we have here, the nature of the
11
frankly also are not available on Monday, which I
12
type of proceeding that we have here as I have said
12
believe is one of the reasons that we have decided we
13
many, many times is a very important proceeding because
13
weren't going to convene on Monday. While I don't think
14
we have a business that the city has indicated it has
14
— Mr. Jamieson, I really would appreciate it. I sat
15
set for revocation of this CUP, which then puts this
15
here and listened when you were speaking without
16
location out of business. It had multi- millions of
16
shuffling my papers around and getting ready to leave,
17
dollars it has invested in this location in this 117
and I would appreciate the same courtesy.
18
proceeding, and, quite frankly, I have seen nothing in
18
But we have seen examples -- despite the fact
19
my opinion so far in this hearing that warrants
19
that you are available, I have seen indications that it
20
revocation of this CUP.
2 0
is your obj ective even though you are going to make
21
Nevertheless, there are many witnesses that
21
yourself available to not conclude this hearing by the
22
are being put on by the city. When those witnesses are
22
end of next week. We sat there and watched you in the
23
being put on by the city, then we have the obligation
23
conference room the other day reading police reports as
24
and the right to cross- examine them The hearing
24
if you had never seen them before, which was
25
officer has been very specific in terms of what we can
25
particularly odd because you turned around and pointed
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Page 623
it done by next Thursday evening?
MR. JAMIESON: I don't see -- I don't see any issue
with that at all. I'm available all next week through
that Thursday. 1 don't see any reason we can't do
that. If my understanding is correct, the witnesses
that the city intends to put on on Tuesday, next time we
meet are -- there are three or four of them What
witnesses are they, Counsel?
MS. AILIN: Well, there are actually more than
three or four. In light of comments made about the
making of the video, I'll limit it to Detective
Peterson, Detective Graham, Detective Garrity,
Patrol Officer Hardy and Paul Salmko, the senior crime
analyst.
THE HEARING OFFICER: That's a lot of people.
MR. JAMIESON: That's a lot of people. You are
complaining about the timing.
THE HEARING OFFICER: Are those essential?
MS. AILIN: They are essential -- I could say more,
but I know what the response will be that I will get.
If we had been able -- I had hoped to be able to get
through three or four more of the officers when we
convened earlier in this week. I was only able to get
through three them And so, you know, as long as
Mr. Jamieson is objecting to police reports being relied
Page 624
on and as long as he wants to cross- examine the police
officers notwithstanding clear case law that says
cross - examination is not a required element of due
process in these proceedings, then it's going to take as
long as it takes.
THE HEARING OFFICER: Well, okay.
MR. JAMIESON! That's an inconsistent statement
with saying that we need to push this thing along. You
will need to put on whatever case you need to put on.
Fine. The hearing officer is asking about the tinting of
it. You are complaining that it's taking too long, and
yet you are coming up with these five, six officers.
I'm not complaining about that. I understand you've got
a case --
MS. AILIN; They've been on the list.
MR. JAMIESON: I understand you have gat a ease to
paten. Thafs fine, but I'm not the one that brought
up this thing about saying we have got to put something
on the record about this, so --
MS. AILIN: I took five or six witnesses off my
list.
MR. JAMIESON: So who do you plan on Tuesday? I
will look at that. I will do my best to make sure that
we go through it from my perspective as fast as
possible. Peterson, Graham --
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1
out that you had seen them before and had copies that
1
2
were [narked up, and we sat there for seconds at a time
2
3
between questions. We spent -- I don't know -- four
3
4
hours today, five hours with Shannon Levin with
4
5
questions -- just the same questions over and over
5
6
again that could be dealt with in a much more efficient
6
7
way that would have been just as effective to bring out
7
8
the points that you wanted to bring out.
8
9
MR. JAMIESON: You know, Counsel, this is really
9
10
silly, l have to say. This proceeding just like any
,,,, to
11
other proceeding where we have important rights is'�
11
12
subject to rigorous cross - examination. The simple fact
! 12
13
that somebody says something doesn't mean that it's
13
14
true. The simple fact that somebody wrote something in
14
15
a report doesn't mean that it's credible. We are
15
16
entitled to cross- examination. As I indicated when we
16
17
were sitting in that back room, we have obtained
17
18
documents with respect to the various issues here that
18
19
we have certainly prepared for, and this has certainly
19
20
been effective cross - examination. You can have a
20
21
different opinion about what you would do if you were
21
22
sitting in my chair. I've been doing this a long tithe.
22
23
I've been doing this 23 or 24 years, and I'm pretty
23
24
successful at it. I know what I want to get done. I
24
25
know what I need to get done. I'm not commenting on
25
Page 622
1
what I think you do or don't do, and I really don't want
1
2
to base it down to that. I don't want to bring it down
2
3
to that level.
3
4
Also with respect to moving this thing along
j 4
5
and getting this thing done, we dealt with another
5
6
attorney from your office originally that unfortunately
6
7
had to withdraw from this proceeding. That put us all
7
8
back a couple of weeks. rm not complaining about that,
8
9
and rm not -- there is no reason for me to even bring
9
10
that up but for the fact that you are making this idea
10
11
that we are dying to extend it We were ready to go.
11
12
Unfortunately he couldn't do thaL Fine. You had to
12
13
come in and pick up the slack, and you had to get ready,
13
14
and you had to get time to get ready to proceed. Fine.
14
is
You didn't hear me complaining about that, but don't
15
16
turn this around and make it a personal issue -- a
16
17
personal attack on me or my client We are entitled to
17
18
due process rights. Ion entitled to asset it for
18
19
them, and they are entitled to due process rights, and
19
20
that's what this proceeding is all about, and that's
20
21
what --
21
22
THE HEARING OFFICER: I think that's good. I think
; 22
23
you have all had your say.
23
24
Is there in your minds reason why we will need
24
25
to go beyond next Thursday evening? Why can we not get
25
68 (Pages 621 to 624)
Page 623
it done by next Thursday evening?
MR. JAMIESON: I don't see -- I don't see any issue
with that at all. I'm available all next week through
that Thursday. 1 don't see any reason we can't do
that. If my understanding is correct, the witnesses
that the city intends to put on on Tuesday, next time we
meet are -- there are three or four of them What
witnesses are they, Counsel?
MS. AILIN: Well, there are actually more than
three or four. In light of comments made about the
making of the video, I'll limit it to Detective
Peterson, Detective Graham, Detective Garrity,
Patrol Officer Hardy and Paul Salmko, the senior crime
analyst.
THE HEARING OFFICER: That's a lot of people.
MR. JAMIESON: That's a lot of people. You are
complaining about the timing.
THE HEARING OFFICER: Are those essential?
MS. AILIN: They are essential -- I could say more,
but I know what the response will be that I will get.
If we had been able -- I had hoped to be able to get
through three or four more of the officers when we
convened earlier in this week. I was only able to get
through three them And so, you know, as long as
Mr. Jamieson is objecting to police reports being relied
Page 624
on and as long as he wants to cross- examine the police
officers notwithstanding clear case law that says
cross - examination is not a required element of due
process in these proceedings, then it's going to take as
long as it takes.
THE HEARING OFFICER: Well, okay.
MR. JAMIESON! That's an inconsistent statement
with saying that we need to push this thing along. You
will need to put on whatever case you need to put on.
Fine. The hearing officer is asking about the tinting of
it. You are complaining that it's taking too long, and
yet you are coming up with these five, six officers.
I'm not complaining about that. I understand you've got
a case --
MS. AILIN; They've been on the list.
MR. JAMIESON: I understand you have gat a ease to
paten. Thafs fine, but I'm not the one that brought
up this thing about saying we have got to put something
on the record about this, so --
MS. AILIN: I took five or six witnesses off my
list.
MR. JAMIESON: So who do you plan on Tuesday? I
will look at that. I will do my best to make sure that
we go through it from my perspective as fast as
possible. Peterson, Graham --
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1 MS. AILIN: Peterson, Graham, Garrity, Hardy.
2 MR, JAMIESON: Garrity, Hardy.
3 MS, AILIN: Paul Salenko is not an officer, so j
4 there are no police reports involved there.
5 MR. JAMIESON: So that's five people?
6 MS. AILIN: Right.
'7 MR. JAMIESON: And that's it, and that's the city's
8 case?
9 MS. AILIN: Subject to, of course, whatever comes
10 up on crosse arnination. I suppose I have a right of
11 rebuttal, but at this point I don't have any rebuttal
12 planned. `
13 THE HEARING OFFICER: Maybe we can -- the reporter
14 can go because, you know, go off the record. Is there
15 anything else you went to say on the record?
16 (Discussion ensued off the record.)
17 (This proceeding ended at 5:26 p.m)
18
19
20
21
22
23
24
25
Page 626;
1 STATE OF CALIFORNIA )
) ss.
2 COUNTY OF LOS ANGELES )
3
4 1, NANCI L. GRUBE, a Certified Shorthand
5 Reporter for the County of Los Angeles and the State of
6 California, do hereby certify-
7 That said proceedings was taken before me at the
8 time and place therein set forth, and was taken down by me
9 in shorthand and thereafter transcribed into typewriting
10 under my direction and supervision; that the said
11 transcript is a true record of the proceedings;
12 I further certify that I am neither counsel for
13 nor related to any party to said action, nor in anywise
14 interested in the outcome thereof.
15
16 IN WITNESS WHEREOF, I have subscribed my name
17 this 9th day of May, 2006.
18
19
20
21
22 Certified Shorthand Reporter
for the State of California
23
24
25
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