Item No. 1 – DEV2023-00006 Public Comment from Frank A. WeiserLAW OFFICES
Member of the Bar:
United Slates Supreme Court
United States Court of Appeals for Third Circuit
United States Court of Appeals for Fourth Circuit
United States Court of Appeals for Fifth Circuit
United States Court of Appeals for Sixth Circuit
United States Court of Appeals for Eighth Circuit
United States Court of Appeals for Ninth Circuit
United States Court of Appeals for Tenth Circuit
United States Tax Court,
Master of Law in 'taxation
BY PERSONAL DELIVERY.
AND E-MAIL
FRANK A. WEISERt
3460 Wilshire Boulerc��saf 12F2
Los Angeles, Calii`ornia 90010
Telephone: (213) 384-6964
Fax: (213) �$
February 1 3,f2023
Theresa Bass, City Clerk
Office of the City Clerk
200 South Anaheim Blvd, Room 217
Anaheim, CA 92805
E-Mail: tbass@anaheini.net
Re: Letter Brief of Planning Commission
Hearing Re Travel Inn located
at 920 S. Beach Blvd., Anaheim, CA
92804/Conditional Use Permit No. 2494/
Development Project No. 2023-00006
Dear Ms. Bass :
Refer To File No.
I represent the owners and operators of the Travel Inn located at 920 S. Beach
Blvd., Anaheim, CA 92804 ("Motel") with respect to the hearing set for February 13, 2023
before the Planning Commission regarding modifying or revoking Conditional Use Permit ("CUP")
No. 2494.
My clients object to adoption of any resolution modifying or revoking the CUP other
than withdrawing and nullifying the CUP as a whole on the motel.
Theresa Bass, City Clerk
Office of the City Clerk
200 South Anaheim Blvd, Room 217
Anaheim, CA 92805
E-Mail: tbass@anaheim.net
Re:Letter Brief of Planning Commission
Hearing Re Travel Inn located
at 920 S. Beach Blvd., Anaheim, CA 92804/
Conditional Use Permit No. 2494/Development
Project No. 2023-00006
February 13, 2023
Page 2
(By Personal Delivery and E-Mail)
The grounds for the appeal are as follows:
Well settled and long standing United States Supreme Court case law extends the clear
protections of the Fourth Amendment of the U.S. Constitution to the secure and private areas of the
property. As such any entry cannot lawfully be accessed without my clients' consent. Case law is
clear that the City has no authority to access the units without an appropriate administrative warrant
under Fourth Amendment.
In a Ninth Circuit published case that I litigated on behalf of another motel owner, the Ninth
Circuit held that although the "common law tresspassory test does not apply to the public areas of
a private commercial establishment such as a motel, the private secured areas are subject to Fourth
Amendment strictures under the reasonable expectation of privacy test. See Patel v City of
Montclair, 798 F.3d 895 (9th Cir. 2015); See v Seattle, 387 U.S. 541 (1967) (Fourth Amendment
applies to private commercial establishments); Marshall v Barlow's. Inc., 436 U.S. 307 (same). The
City of Anaheim Police Department has entered onto the mote on numerous occassions without
my clients knowledge, consent or a warrant.
Further, there have been threats of criminal or civil penalties as applied to my clients
which violated their First Amendment rights.
Significantly, in the First Amendment context, courts must "look through forms to the
substance" of governmental conduct. Bantam Books Inc. v Sullivan, 372 U.S. 58, 67 (1983).
Informal measures, such as "the threat of invoking legal sanctions and other means of coercion,
persuasion, and intimidation," can violate the First Amendment. Id.
The Ninth Circuit has held that government officials violate this provision when their acts
"would chill or silence a person of ordinary firmness from future First Amendment activities."
Theresa Bass, City Clerk.
Office of the City Clerk
200 South Anaheim Blvd, Room 217
Anaheim, CA 92805
E-Mail: tbass@anaheim.net
Re:Letter Brief of Planning Commission
Hearing Re Travel Inn located
at 920 S. Beach Blvd., Anaheim, CA 92804/
Conditional Use Permit No. 2494/Development
Project No. 2023-00006
February 13, 2023
Page3
(By Personal Delivery and E-Mail)
Mendocino Environmental C tr. v Mendocino Count , 192 F.3d 1283, 1300 (9th Cir. 1999) (internal
citations omitted). Ninth circuit case law establishes that petitioning activity falls within the scope
of this protection.
Here, the threats and threats of criminal prosecution and civil penalties more than meets that
standard and the compelled searches vitiate any argument of consent to the inspections. The same
can be said by the multiple City Police Department officials who conducted the searches.
The City's unconstitutional demands for entry and the subsequent searches and seizures of
claimed evidence were done without proper consent or a administrative warrant or court order the
Fourth Amendment and the evidence and as a result of this the evidence that was obtained by such
unconstitutional searches are excludable and cannot be used by the City in revoking or modifying
the conditions of the CUP.
The City also has never provided the actual alleged crime or police reports
In addition to the clear violations by the City of the First and Fourth Amendments,
this hearing by the City Planning Commission is also in clear violation of the procedural Due Process
Clause of the Fourteeenth Amendments of the United States Constitution.
My clients are entitled to receive the actual police reports under the Due Process Clause. See
Armstrong v Manzo, 380 U.S. 545 (1965) (due process requires reasonable notice and opportunity
to be heard). The administrative burden to the City in providing the police reports is slight and their
private interest in operating the motel is great.. See Matthews v Eldrid«e, 424 U.S. 319 (1976)
(adfopting three factor test as to what process is due under the Due Process Clause). They are also
entitled to know what the City is requesting in this hearing, the reasons why, and the evidence in
support of the request.
Theresa Bass, City Clerk
Office of the City Clerk
200 South Anaheim Blvd, Room 217
Anaheim, CA 92805
E-Mail: tbass@anaheim.net
Re:Letter Brief of Planning Commission
Hearing Re Travel Inn located
at 920 S. Beach Blvd., Anaheim, CA 92804/
Conditional Use Permit No. 2494/Development
Project No. 2023-00006
February 13, 2023
Page 4
(By Personal Delivery and E-Mail)
My clients are not being afforded a fair hearing in compliance with the Due
Process Clause.
Well established law in the United States Court of Appeals for the Ninth Circuit is that the
right to a "fair trial in a fair tribunal", In re Murchison, 349 U.S. 133, 136 (1955), applies not only
to courts, but also to state administrative agencies charged with applying eligibility criteria for
licenses. Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995).
It is also well established in the Ninth Circuit that a biased administrative proceeding is not
a procedurally adequate one and is to be denied preclusive effect. [Clements v. Airport Authority of
Washoe ounty, 69 F.3d 321, 333 (9th Cir. 1995). A biased cannot be cured by subsequent judicial
review in state court, even if the subsequent state court procedures includes de novo review.
Clements, 69 F.3d at 333.
While "[i]n attempting to make out a claim of unconstiutional bias, a plaintiff must'overcome
a presumption of honesty and integrity' on the part of decision -makers", he can do so by showing that
one or more council members "'prejudged or reasonably appears to have prejudged, an issue."'
Stivers, 71 F.3d at 741. (citations omitted). In this circuit, a showing that only one member of the
administrative tribunal was actually biased, or where circumstances create the appearance that one
memberis biased, vitiate the proceedings as a whole. Stivers, 71 F.3d at 746-748. And the issue of
bias is not necessarily waived by failing to seek recusal of the biased administrative member if no
state or local law exists providing a mechanism for recusal. Stivers, 71 F.3d at 748. For procedural
due process analysis, it does not matter what the substantive outcome of the hearing is since the
procedural guarantees of the Due Process Clause are "absolute", and are not dependent on the merits
of the claim. 'lenients, 69 F.3d at 333-334 (quoting Carey v. Pipbu , 435 U.S. 247, 266-67 (1978)
(Carey holds that even if the plaintiff has no substantive case, a claim for nominal damages still can
be prosecuted for the violation of the procedural due process right); see also Peralta v. Hei dhts
Medical Center, Inc., 485 U.S. 80 (1988) (appellant was entitled to have judgment set aside on
Theresa Bass, City Clerk
Office of the City Clerk
200 South Anaheim Blvd, Room 217
Anaheim, CA 92805
E-Mail: tbass@anaheim.net
Re:Letter Brief of Planning Commission
Hearing Re Travel Inn located
at 920 S. Beach Blvd., Anaheim, CA 92804/
Conditional Use Permit No. 2494/Development
Project No. 2023 -00006
February 13, 2023
Page 5
(By Personal Delivery and E-Mail)
grounds of violation of procedural due process even though he admitted he did not have a
meritorious defense to the substance of the claim).
The Ninth Circuit's formulation of an appearance of bias test, consistent with Supreme
Court authority, is that "due process is denied by circumstances that create the likelihood or the
appearance of bias" because such a possibility of judicial bias creates a constitutionally unacceptable
risk of actual bias. Stivers, 71 F.3d at 742; Withrow v. Larkin, 421 U.S. 35, 47 (1975); Peters v.
Kiff, 407 U.S. 493, 502 (1972); Caperton v A.T. Massev Coal Co., Inc., 556 U.S. 868(2009) and
adopted a new more expansive test for determining an appearance of bias claim.
Previously, in imposing the CUP last year, various Planning Commissioners' remarks at the
hearing were deprecatory and slanderous personal remarks and create an appearance of bias claim,
but under Stivers can also be a basis for an actual bias due process claim. Stivers, 71 F.3d 732-743.
In the Ninth Circuit, the appearance of bias or bias by only one member of the Planning
Commission is enough to vitiate the proceedings regardless of whether he had an impact on the other
councilmembers or affects the deliberations of an otherwise impartial tribunal. Stivers, 71 F.3d at
746-748. A recusal motion is not necessarily a prerequisite to invoke the rule. Stivers, 71 F.3d at
746-748.
Further, under California law "[o]nce a licensee has acquired a conditional use permit," or
has deemed approved or grandfatherred status, "a municiplaity's power to revoke [or modify] the
conditional use is limited," and "due process prequires that it act only upon notice to the permittee,
upon a hearing, and upon evidence supporting a finding of revocation [or modification." Bauer v
Cily of San Diego, 75 Cal.App.4th 1285, 1294-95 (1999).
Theresa Bass, City Clerk
Office of the City Clerk
200 South Anaheim Blvd, Room 217
Anaheim, CA 92805
E-Mail: tbass@anaheim.net
anaheim.net
Re:Letter Brief of Planning Commission
Hearing Re Travel Inn located
at 920 S. Beach Blvd., Anaheim, CA 92804/
Conditional Use Permit No. 2494/Development
Project No. 2023 -00006
February 13, 2023
Page 6
(By Personal Delivery and E-Mail)
a CUP at such a hearing cannot "interfere [sic] with the constitutional right to carry on a lawful
business [and] it must be clear the public interests require such interference and that the
means employed are reasonably necessary to accomplish the purpose and are not unduly
oppressive to individuals." Bauer, 75 Cal.App.4th at 1294 (internal quotation marks and citations
omitted) (emphasis added). "It is consequently a very harsh remedy which requires the strictest
adherence to principles of due process. Whenever alternate remedies can achieve the same
goal, such as the imposition of additional conditions or controls, these avenues ought to be
pursued if possible." Bauer , 75 Cal.AppAth at 1294 (internal quotation marks and citations
omitted) (emphasis added).
Any conditions imposed, must be reasonably necessary to accomplish the claimed purpose
of the modification and are clearly unduly opporessive to my clients. The intent is clear. The City
wishes to circumvent my clients' due process rights and submit the CUP to administrative extinction
which is clearly prohibited under federal and state law. Bauer, 75 Cal.App.4th at 1295.
The City did not, as other municipalities such as the City of Los Angeles, even attempt to sit
down and work with my clients in addressing the alleged nuisance issues before taking this action.
It. is clear that there never was an intent to cure any alleged issues the City has with the motel's
operation.
What the City really intends to is to close the motel. The Planning Commission hearing was
pretextual and did not comply with even the most basic rudiments of due process.
Theresa Bass, City Clerk
Office of the City Clerk
200 South Anaheim Blvd, Room 217
Anaheim, CA 92805
E-Mail: tbass@anaheim.net
Re:Letter Brief of Planning Commission
Hearing Re Travel Inn located
at 920 S. Beach Blvd., Anaheim, CA 92804/
Conditional Use Permit No. 2494/Development
Project No. 2023-00006
February 13, 2023
Page 7
(By Personal Delivery and E-Mail)
Further, any search or seizure of the motel's records without consent or a warrant is wholly
unconstitutional. This is now established in a case that I litigated as counsel of record on behalf of
a group of motel owners in the City of L.A. in the United States Supreme Court case of City of Los
Angeles v Patel, 576 U.S. 409 (2015) in which the Supreme Court in a 5-4 decision affirmed a
United States Court of Appeals for the Ninth Circuit ("Ninth Circuit") decision facially invalidating
on Fourth Amendment grounds a motel registration records search ordinance. See Patel v City of
Angeles, 758 F.3d 1058 (9th Cir. 2013)(en Banc).
In the Patel case, the Supreme Court held that even when there is a statute or ordinance that
compels motel owners (and the principle applies to all. business owners) to produce business
documents on demand without a court order or consent upon the imposition of civil or criminal
penalties for failure to do so, such a law is facially and completely unconstitutional under the Fourth
Amendment as the Constitution requires that the owner first be given judicial process in order to
contest the matter.
I successfully litigated as counsel of record the Patel case. Some of my other published cases
are Patel v Penman, 1.03 F.3d 858 (9th Cir. 1996);,Patel v City of San Bernardd,310 F.3d 1134 (9th
Cir. 2002); Patel v Cit • of Montclair, 798 F.3d 895 (9th Cir. 2015); Herrera v Cite of Palmdale, 918
F.3d 1037 (9th Cir. 2019); City of San Bernardino Motel/Motel Association v City of San
Bernardino, 59 Cal.App.4th 237 (1997).
Recently, I litigated a case before the Ninth Circuit regarding the Fourth Amendment rights
of a massage establishment that the Ninth Circuit held was a "closely regulated" industry and did not
enjoy the same Fourth Amendment rights as the hotel and motel industry. The case is entitled
Killgore v City of South El Monte, 3 FAth 1186 (9th Cir. 2021). The the Ninth Circuit itself did
emphasize that "[y]et Patel dealt with a very different business - the hotel industry - one that
Theresa Bass, City Clerk
Office of the City Clerk
200 South Anaheim Blvd, Room 217
Anaheim, CA 92805
E-Mail: tbass@anaheim.net
Re:Letter Brief of Planning Commission
Hearing Re Travel Inn located
at 920 S. Beach Blvd., Anaheim, CA 92804/
Conditional Use Permit No. 2494/Development
Project No. 2023-00006
February 13, 2023
Page 8
(By Personal Delivery and E-Mail)
the Supreme Court has repeatedly recognized enjoys core Fourth Amendment protections."
(Slip Op. At pg. 10) (emphasis added) (internal citations omitted).
This only reinforces the egregious nature of the Fourth Amendment violations which taints
and invalidates the evidence used in this hearing.
Further, my clients have on their own instituted procedures and practices at the motel that
addresses and alleged concerns by the City.
"(T]he primary object of an abatement action - [is] to 'reform' the property and insure
that the nuisance is abated, not to punish for past acts." People ex rel. Van de Kamp v American
Art l nteil2rises Inc (1983) 33 Cal.3d 329, 333 (emphasis added).
The Travel Inn is a family business owned by my clients. Unnecessary interference with the
business would constitute irreparable injury. The Ninth Circuit and the Supreme Coiurt holds that
the right to engage in a particular occupation is constitutionally protected under the Due Process
Clause. See Chalmers v. City f Lgs An �eles (9th Cir. 1985) 762 F.2d 753, 756-759 (collecting
Supreme Court cases); see Greene v McElro - (1959) 360 U.S. 474,492 ('[t]he right to hold specific
private employment and to follow a chosen profession ... comes within the 'liberty' and 'property'
concepts of the Fifth Amendment"), Schware v Bo ird of Bar Examiners (1957) 353 U.S. 232, 238-
39 ("a State cannot exclude a person from the practice of law or from any other occupation in a
manner or for reasons that contravene the Due Process or Equal Protection clause of the Fourteenth
Amendment). Irreparable injury is presumed where a person's fundamental constitutional rights are
threatened. See Elrod v Bum (1976) 427 U.S. 347, 373.
Theresa Bass, City Clerk
Office of the City Clerk
200 South Anaheim Blvd, Room 217
Anaheim, CA 92805
E-Mail: tbass@anaheim.net
Re:Letter Brief of Planning Commission
Hearing Re Travel Inn located
at 920 S. Beach Blvd., Anaheim, CA 92804/
Conditional Use Permit No. 2494/Development
Project No. 2023-00006
February 13, 2023
Page 9
(By Personal Delivery and E-Mail)
State law tracks this concern. California appellate courts have concluded that the continued
operation of a business is a "fundamental vested right" that is entitled to heightened legal scrutiny
in a city's attempted closure of the business. See Goat Hill Tavern v City of Costa Mesa (1992) 6
Cal.AppAth 1519, 1526-29.
In addition to the above referenced constitutional violations, the City's actions violate the First
Amendment Association Clause, Fifth Amendment Takings Clause, and the substantive component
of the Due Process Clause and Equal. Protection Clauseof the Fourteenth Amendment of the United
States Constitution .
My clients also deny that there is credible evidence that they are operating the motel
in violation of local or state law, let alone as a public nuisance. With the onset of the pandemic and
the City and State eviction moratorium, issues about tenant complaints must be understood in light
of an owner's severe limitations in remedying such complaints by way of a court action. My clients
have attempted to cooperate with the City's police department and have instituted a set of strict
guest guidelines to ensure that the hotel operates lawfully.
Further, under the Unruh Act, a guest cannot be arbitrarily refused accomodations on the basis
of specific classifications such as age. Under the Unruh Act, the City cannot adopt a "blanket
policy" that prohibits providing rooms to minors, under 18 years of age. See also Marina Point, Ltd.
v Wolfson, 30 Cal.3d 721 (1985).
Finally, this heraring must be conducted as a legislative hearing not, as required, as an
admiminstrative hearing with the full taking of evidence as if it were being decided by a quasi-
judicial body. See City of Oakland Hotel/Motel Association v Cite of'Oakland, 344 F.3d 959 (9th
Cir. 2003). Modification of a CUP is not general legislation that can be passed without a proper
evidentiray hearing.
Theresa Bass, City Clerk
Office of the City Clerk
200 South Anaheim Blvd, Room 217
Anaheim, CA 92805
E-Mail: tbass@anaheim.net
Re:Letter Brief of Planning Commission
Hearing Re Travel Inn located
at 920 S. Beach Blvd., Anaheim, CA 92804/
Conditional Use Permit No. 2494/Development
Project No. 2023-00006
February 13, 2023
Page 10
(By Personal Delivery and E-Mail)
Should this matter not resolve, my clients willfile a federal civil rights lawsuit against the
City in the United States District Court for the Central District of California for damages and
injunctive relief under 42 U.S.C. § 1983 for violation of their federal civil rights, including but not
limited to the previously referenced constitutional viololations, and seek substantial damages, costs
and attorney's fees under 42 U.S.C. § 1988.
My clients have already filed a 42 U.S.C. §1983 in United States District Court for the
Central District of California for the previous unconstitutional imposition of the CUP on the motel
last year. That case bears a case name of Pravin Ahir, et al. v City of Anaheim, USDC Case No.
Cv22-01581-JVS-ADS. The City's actions now demonstrate that the condition in the CUP placing
a limit on renting rooms to guests under 21 years of age was not only unconstitutional andthe City
admits it as so, and that the CUP was adopted last year on the basis of a unconstitutional Monell
policy discriminating against my clients.
Please make this letter and the documents to be introduced at the hearing a part of the
administrative record and for distribution to the City Council and any other City officials.
If you need to speak to me directly, I can be reached by e-mail at or at
(
Sincerely,
G.. •�,��
Frank A. Weiser
Attorney at Law
cc: Pravin Ahir
FAW:aw