CATER Sends Anaheim Cease and Desist Letter Over Improper Agendizing of Fireworks Ordinances

San Diego fireworks explosion

Council’s fireworks ordinances look like a big bust, as CATER sends a cease and desist letter.  Source: San Diego’s oopsie.

[Just as do you probably do, CATER and its officers and staff wish that we did not have to both make the news and cover the news, as well as litigate when the Council doesn’t act lawfully — but, given our personnel shortage in this city, we have little choice.  So: here’s coverage of the cease and desist letter that CATER (and Cynthia Ward, Brian Chuchua, and yours truly) sent to the City Council this afternoon prior to their 5:00 open session.  We will be speaking to this matter as well today during public comments at Anaheim’s Council meeting.  Come join us if you’d like!]

May 5, 2015

Mayor Tom Tait
Mayor Pro-Tem Lucille Kring
Councilmember Jordan Brandman
Councilmember Kris Murray
Councilmember James Vanderbilt

200 S. Anaheim Blvd.
Anaheim, CA  92805

 

[BY EMAIL, BY US MAIL, AND BY PERSONAL SERVICE TO THE OFFICE OF THE CITY CLERK, CITY OF ANAHEIM]

Demand to Cease and Desist from Violations of the Brown Act re New Fireworks Ordinance

This demand to cease and desist from violating Section 54960.1 of the Ralph M. Brown Act (“Brown Act”) is filed on behalf of the Coalition of Anaheim Taxpayers for Economic Responsibility (hereinafter, “CATER”) as well as individually on the part of three persons associated with it: CATER’s President, Cynthia Ward; CATER’s Secretary/Treasurer, Brian Chuchua; and its General Counsel Greg Diamond.  It regards the vote you apparently intend to take today on Item 18, an ordinance that would establish new rules for the sale of so-called “safe and sane” fireworks in the City of Anaheim.

Item 18 on the May 5, 2015 Agenda apparently presents the Council’s intent to take action, specifically calling for the “adoption” of two ordinances:

#6323, Amending Title 6 (Public Health and Safety) of the Anaheim Municipal Code to regulate how “safe and sane” fireworks may be sold and used in Anaheim, and taking Action of “finding” the action exempt from CEQA,  and

#6324, amending Title 18 (Zoning), regulating where (Public Health and Safety) such fireworks may be sold and used.

You apparently intend to take action, as defined by Gov Code 54952.6.  yet the second reading requirement of the City Charter has not been met.  (Violation of City Charter is a misdemeanor.)

54952.6.  As used in this chapter, “action taken” means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.

Your description in the agenda packet concludes by saying that the ordinances were “([b]oth Introduced at the Council meeting of April 21, 2015, Item No. 23).”

Both Brown Act violations involve the requirement that each agenda and its items must be posted in advance of the meeting.

54954.2.  (a) (1) At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words.

BROWN ACT VIOLATION #1: Council Action Would Violate the Public’s Expectation that an Agenda Item Would Be Accurate in its Description Not Violate City Charter and/or.

While the Brown Act requirement for a “brief general description” is minimal, permitting local agencies as little as 20 words to describe the item of business to be transacted, there is a presumption that the description would be truthful, and accurate, and that the Action to be taken would comply with the City Charter.

The ordinances being considered at today’s meeting differ so greatly and fundamentally from those proposed to the Council on April 21 that they gravely undercut the requirements of the Anaheim City Charter Section 511, which reads in relevant part:

“[I]n the event that any ordinance is altered after its introduction the same shall not be finally adopted except at a regular or adjourned meeting held not less than five days after the date upon which such ordinance was altered.”

The City may wish to argue that the ordinances were “altered” per Charter Section 511 as of the day of the issuance of the Staff Report along with the May 5 agenda.  Five days after Friday May 1 would be Wednesday May 6; so this meeting would be premature even under that interpretation.

We believe, however, that it is more reasonable to say that the ordinance would not have officially been “altered” until its presentation to the City Council at today’s open meeting, in which event a second meeting for its consideration could not take place until May 11 – but as a special meeting is not a regular meeting, no regular meeting is scheduled to take place until May 19.  (The Council cannot vote to add another regular meeting on May 12 because such an item is not on today’s agenda.)

To the extent that this agenda presents Ordinances #6323 and #6324 as undergoing their second reading tonight, it is so fundamentally mislabeled as to deny the public fair opportunity for input into the political process.  As such, it cannot satisfy the requirements of the Brown Act.

BROWN ACT VIOLATION #2 – The Agenda’s Vague Language Prevents the Public From Understanding Whether This is a First or Second Reading of the Ordinance  

The Brown Act should be read to require the Council to present to the public what reading of this ordinance is taking place tonight in advance of the meeting.  Unfortunately, the lack of clarity in the inclusion of the phrase “([b]oth Introduced at the Council meeting of April 21, 2015, Item No. 23)” is likely to have confused the public in two separate ways.

Members of the public who do recognize that very substantial changes have been made in the first draft may believe that they are today facing their first reading of these ordinances.  They may thus presume that they will have a later chance to speak to the merits of these proposed ordinances.

In contrast, members of the public who are not watching very closely and comparing the two draft documents may not realize that many of the critical features of the proposed ordinances are literally being presented to the public for the first time.  To the extent that any members of the public may have been more comfortable with aspects of the previous ordinances – including aspects emphasized in the Staff Report and in Council consideration during the meeting – this catches them flat-footed.

The implications of the phrase “([b]oth Introduced at the Council meeting of April 21, 2015, Item No. 23)” in today’s agenda are so unclear that to proceed with either a first or second reading of these ordinances would deny the public of its lawful opportunities for input on the ordinances.  As the April 21 ordinance diverged so greatly from anything the public might have thought that it was supporting when it passed Measure E – a separate matter that will be addressed elsewhere – it is unsurprising that the public, once is learned of these discrepancies, would want every opportunity to weigh in on the policies.  (It is highly unlikely that the public would have approved Measure E at all had it understood what City Staff intended to do with it.)

DELAY IN THE ORDINANCES’ ADOPTION CAUSES NO HARM: Honda Center Sales Cannot Begin in 2015

One interesting difference between the April 21 and May 5 draft proposals is that while the former clearly intends approval of the fireworks ordinances in time for sales to begin this year, the May 5 draft is almost entirely silent on the subject, stating solely that the ordinance would go into effect 30 days after their adoption and that the economic impacts would be presented in the 2015-2016 budget (which does not go into effect prior to the beginning of the sales period in late June.)

We would like to believe that this change is due to the City’s realization that it is absurd to imagine that it can hold firework sales in the Honda Center up until 9:00 p.m. on July 4 and then host the Dalai Lama for his 80th Birthday Celebration the next day, July 5.  Tearing down a (presumably large) fireworks booth on July 4 and cleaning up the area would problem enough.  A larger problem involves public safety.

While Anaheim being chosen for this speech by the Dalai Lama is an astounding great honor for Anaheim, it also raises a significant security concern.  The Dalai Lama is widely beloved – although he is also strongly opposed by others including the government of China and those hostile to Eastern religions.  Other widely beloved figures of the past century have included Mohandas Gandhi, Rev. Martin Luther King Jr. and John F. and Robert F. Kennedy, and Ronald Reagan.  All of them suffered violent attacks, which ended all of their lives except the last.

Any major public speech by the Dalai Lama would obviously require enormous security efforts.  Those efforts would likely include the deployment of bomb-sniffing dogs.  The City has presumably realized that security measures such as bomb-sniffing dogs and the sale of combustible fireworks in the same parking lot area are a bad – and potentially disastrous – combination.  If we are raising this concern to the City for the first time, we are glad to have – barely, given this rush to vote – had the opportunity.

Conclusion

We will detail the major divergences between the April 21 draft ordinances and the May 5 ordinances in another venue at another time.  We will also then share the major divergences between this set of Ordinances and what was promised to voters in June 2014, when the sale of “safe and sane” fireworks was presented largely as a fundraiser for local non-profits, while the proposal before us tonight for the first time offers the lion’s share of profits to the private for-profit operators of the Honda Center (who are also the owners of the Anaheim Ducks) while guaranteeing them a monopoly on pyrotechnics sales in Anaheim.

Here and now we simply want to convey to the City Council that there is no rush to approve this ordinance – which is a good thing because under the circumstances it cannot be considered to be either a properly notice first reading or a second reading under the Brown Act.

Should the City go ahead and approve the ordinances tonight as a second reading, or even consider this a first reading, we will proceed with a Cure and Correct letter under the Brown Act.  We may also seek to enjoin the sale of fireworks this year if the City indicates, despite the above, that it intends to go forward with them.

As provided by § 54960.1, Anaheim would then have 30 days from the receipt of such demand to either cure or correct the challenged action, or to inform CATER of your decision not to do so. If the Anaheim City Council failed to cure or correct these violations as demanded, CATER would be entitled to and would plan to seek judicial invalidation of Council action and other injunctive relief pursuant to Brown Act § 54960.1, in which event CATER would also seek the award of court costs and reasonable attorney fees pursuant to Gov. Code § 54960.5.

This notice has been emailed to the City Clerk in the interest of time, so that those responsible for the City’s compliance with the law are aware of the issues prior to the beginning of the May 5, 2015 meeting. We intend to notify the City Council during Public Comments portion of today’s meeting, in the event that our message has not been received by the proper authorities prior to the Council’s calling the meeting to order at 5 p.m.

We will also present the letter to the City by mail, as required by Gov Code Section 54960.2(a) because CATER is currently reviewing other past actions taken by the City Council in which were believe actions by Council were based upon staff reports and information so erroneous that the misrepresentation of facts no longer complied with the Brown Act’s requirement for a brief description of the Agenda items. While time limitations prevent the voiding of past actions in most cases, there is no limit on a request for judicial oversight for future actions to prevent such false notice from deceiving the public into the future.

In short, we respectfully request you reconsider taking any improper action tonight.  We further suggest that you bring back clearly and correctly labeled ordinances that accurately reflect the intent of the Ballot measure presented to voters in June 2014, and that present that information to the public with an accurate first and second reading when said ordinances are complete and defensible.

Sincerely,

Greg Diamond

Gregory Diamond, Esq.
Law Office of Gregory A. Diamond
Counsel for CATER

cc:  Michael Houston, City Attorney, Anaheim, CA
Cynthia Ward, President, CATER


About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)