“Pleading the Fifth” at Fresno City Hall is turning out to be no simple matter for one local business owner.
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The case of Shuling Lui is another example of how code enforcement can be one sexy topic.
In a nutshell, Lui is facing the complicated fallout from an effort by the Police Department to shutter her massage parlor, Reborn Spa.
A police investigation in January uncovered a handful of alleged law violations at Reborn Spa, including prostitution. The police in a Feb. 7 letter told Lui that her business permit was being revoked.
The prostitution charge is a criminal matter. It’s now working its way through the criminal court.
But Reborn Spa’s owner is also fighting the revocation of her business permit. That’s a civil matter. Lui appealed the Police Department’s revocation to Michael Flores, the city’s independent administrative hearing officer.
Here’s the rub for Lui and the Constitution. The appeal hearing in front of Flores is scheduled for May 16. Flores, a former deputy city attorney, always poses a lot of tough questions to any appellant who comes before him. Lui’s arraignment on the criminal matter is scheduled for a date after May 16 (it’s unclear in the records I reviewed what that date is).
Lui and her lawyer, Roger Bonakdar, want the hearing with Flores postponed until after the criminal arraignment. Their worry: Flores’ questions could cause Lui to say something that will be used against her in the criminal case.
In other words, Lui might incriminate herself in her attempt to save her business permit.
We all know our Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Flores last month held a hearing on whether to grant Lui’s request for a delay of the revocation hearing.
Flores wrote in his five-page opinion that he had received a letter from Bonakdar in mid-April. Bonakdar stated that holding the revocation hearing before the criminal arraignment “would violate her (Lui) Due Process and Fifth Amendment rights,” Flores wrote.
When I think of Pleading the Fifth, I see Teamster bosses and Communist-leaning Hollywood screenwriters sitting before Congressional committees in the 1950s. I assumed that the law always bows to a defendant (or appellant) who asserts the Constitutional right against self-incrimination, regardless of the context.
But as Flores explained in his decision of April 25, legal precedent reveals a more nuanced interpretation of the Fifth Amendment.
State and federal courts have gone down this path before, Flores wrote, and “the courts have held that in most cases, an appellant’s Due Process and Fifth Amendment rights are not violated by holding an administrative hearing prior to the related criminal proceedings.”
Flores dug into several of these cases. The gist of those cases is that the ultimate decision is best left to the particular court that is hearing the case.
Flores noted that the court in Keating v. Office of Thrift Supervision listed five factors to consider when deciding whether holding an administrative hearing before a criminal proceeding violates the Fifth Amendment rights of a defendant/appellant.
For example, one of the factors is how the administrative and criminal cases might affect the public interest.
Flores wrote that both proceedings “are related to alleged activity by Appellant that violates the law, and the public’s interest in making sure that the illegal activity is stopped (permit revocation), and that Appellant and others are deterred from either engaging in or continuing to engage in that illegal activity (fines and/or incarceration) is very high.”
Flores wrote that the pivotal question is simple: Is Reborn Spa still open?
“If Appellant’s massage business is currently operating,” Flores wrote, “there is a possibility that the alleged illegal activity which the City has used as one of the grounds for revoking Appellant’s business permit is continuing, and the City and the public have an important and urgent interest in having the Hearing Officer determine whether the alleged illegal activity did in fact occur and, if so, affirm the City’s revocation of the permit.”
Add it all up, Flores wrote, and his tentative decision is that holding Lui’s revocation hearing before her criminal arraignment would not violate her Fifth Amendment rights.
“However,” Flores added, “this decision is conditional upon the status of the Appellant’s business….”
If the city can prove that Reborn Spa is still operating, then Lui’s request for a continuance of the revocation hearing is denied. Lui will get her day in Flores’ courtroom on May 16.
However, Flores wrote, if Lui can prove that her business is closed, then her request for a continuance until after the criminal arraignment is granted.
Flores ended his decision by telling city officials and Lui that they “are still directed to appear on May 16, 2017 to provide any necessary oral argument regarding this Decision.”
