HERCULES QUIETLY DENIES MEDICAL POT CLUBS

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."