City attorney: Hercules complied with open-meeting law

May 08, 2006

Tom Lochsner, ANG Newspapers

The Hercules City Council bent or even broke the Brown Act in connection with an ordinance it passed in late April that would make medical marijuana dispensaries illegal, a pair of open government experts said Tuesday. But the Hercules city attorney said he is confident the council complied with the law while he conceded the meeting agenda could have been more specific.

The ordinance will come up for a second reading tonight. The council meets at 7 p.m. at City Hall, 111 Civic Drive. The meeting will be televised on Hercules Cable Channel 28.

The agendas for the April 25 and tonight's council meeting refer to "an ordinance ... amending Title 8 (Finance, Revenue & Taxation) Chapter 6 (Business License Tax) of the Hercules Municipal Code."

The ordinance, it turns out, overhauls the licensing restriction on any "Unlawful Business" in the Municipal Code Sec. 8-6.103, as follows:

"No license shall be issued ... authorizing the conduct or continuance of any business which violates state or federal law."

While neither the ordinance nor an accompanying staff report mentions any specific business, the amendment covers medical marijuana dispensaries, also known as cannabis clubs, which are legal under state law but illegal under federal law, Hercules City Attorney Mick Cabral agreed.

The agenda item "certainly violates at least the spirit of the Brown Act if not the letter," said Rachel Matteo-Boehm an attorney with Holme Roberts & Owen LLP of San Francisco, general counsel to the California First Amendment Coalition.

"The Brown Act requires that the agenda description give members of the public notice as to what is going to be discussed," Matteo-Boehm said. The Hercules council agendas of April 25 and tonight, "don't give notice of what's potentially a very controversial topic."

The clear purpose of the law is to give people notice of what will be discussed, she said.

Jim Ewert, legal counsel for the California Newspaper Publishers Association, went further.

"I think that the agenda description is definitely misleading. I wouldn't even qualify it as a description because it really doesn't say what it is they're attempting to do to the ordinance," he said.

"With regard to whether this violates the Brown Act, I think that it does," Ewert said. "Unless you're clairvoyant, no citizen would understand what it is they're attempting to do here."

California voters in 1996 approved marijuana for medical use on the recommendation of a doctor. But the federal government considers marijuana an illegal drug with no medical use.

Cabral said that while the medical marijuana issue prompted the council's action, "it was not intended to regulate medical marijuana. It deals with all matters that are illegal under federal or state law, not just medical marijuana."

Asked what other types of business the ordinance might target, Cabral said, "nothing comes to mind here." Moments later, he cited businesses that do not report cash earnings.

Cabral agreed the ordinance "serves the same purpose as a moratorium," but one that "does not have a limited duration."

The city is currently under a one-year moratorium on the opening of cannabis clubs that expires in July.

Cabral said the new ordinance is "an interim step."

"We will continue to work on a comprehensive medical marijuana regulatory scheme," he said. He could not predict a timetable but said the city is not waiting for the federal-state conflict to play out before acting.

Cabral said that although the city complied with the noticing requirements under the Brown Act, "I think the criticism is well taken. We could have been more specific although I don't think under the law we needed to be."

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