Hercules quietly denies medical pot clubs

May 08, 2006

Tom Lochsner, ANG Newspapers

The Hercules City Council on Tuesday adopted an ordinance that makes medical marijuana dispensaries illegal without mentioning them specifically. The vote was 4-0-1, the same as when the ordinance was introduced two weeks ago, with Councilwoman Charleen Raines abstaining both times.

Earlier on Tuesday, a pair of open government experts said Hercules bent the Brown Act by failing to adequately notify the public about the matter it was preparing to act on; a third expert went further, saying Hercules violated the act.

But the city attorney said he is confident Hercules complied with the law while he conceded the meeting agenda could have been more specific.

The agendas for the April 25 and Tuesday'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, rewords Municipal Code Sec. 8-6.103 on "Unlawful Business" as follows:

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

The old language said no license should be construed as authorizing "any illegal or unlawful business."

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.

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 clear purpose of the law is to give people notice of what will be discussed, Matteo-Boehm said. The Hercules council agendas of April 25 and Tuesday, "don't give notice of what's potentially a very controversial topic."

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."

The staff report, prepared by Police Chief Fred Deltorchio, says "the proposed amendment clarifies any ambiguity by preventing business activities which violate either federal or state law."

That statement provides some clarity, said Terry Francke, general counsel of Californians Aware. But it belongs "not in the background but in the foreground -- on the agenda," he said.

An Attorney General's booklet on the Brown Act provides for a "brief general description" on the agenda to help interested members of the public decide whether to monitor or participate in a public meeting, Francke said. "The reference is to 'interested members of the public' -- not lawyers or municipal government wonks with a copy of the city code at their elbow."

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.", Upon reflection, 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."

Hercules is 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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