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
I am extremely disappointed by the turnout in opposition to the homeless shelter. One guy, railing on Toro or Torez what a fool.
Mayor Tait appeared as interested in the plight of the homeless as one would be the harness racing at Los Al.
This Mayor and Council has to go. Millionare’s who have their OWN best interest in mind. What about the people.
What about the people Mayor Tait?
What a crock of crap your comment is. It’s so poorly written that I can’t tell if you’re attacking our Ricardo Toro (and I doubt that you don’t know his name) or defending him. I can tell that you’re attacking Tait, but with no evident basis. (He wasn’t even in the room for the vote due to what the City Attorney alleges is his “conflict” given his firm’s dealing with the county.) So you either didn’t see the discussion, or you don’t care, or you’re another anonymous SOB acting in bad faith. It was a coin toss as to whether to even leave this up.
What you saw tonight was people patting themselves on the back for helping the homeless (which is good) by shunting a relative few of them to an out-of-the-way place where most of them won’t want to go, most of them won’t stay if they do go, but above all the “good people” of Anaheim won’t have to see them — with the exception of the not-wealthy people who live out where Ricardo does.
It does help the “down on their luck” homeless who recently lost a house and such and want a respite from the cruel world while they recover. It does not help the sorts of less sympathetic homeless that you see out by Santa Ana’s Walk of Honor — and that you don’t see living in the riverbeds and such.
Supporting this facility, which burdens mostly a small portion of relatively powerless residents, is not the moral test. Being willing to house many more homeless temporarily, and offer them storage and washroom facilities as well as shelter, out in the midst of the city where they want to be — that is, in the Carl Karcher lot purchased by the city — is the real moral test. What you saw tonight was people celebrating at having “solved a problem” by dumping the burdens onto someone else. It’s “out of sight, out of mind” — whereas the Karcher property would mean the homeless would be in sight and in mind.
As I saw the various faithful celebrating the exile of homeless to where they won’t spoil the view for the rest of us, I did wonder: what would Jesus do?
The commenter sounds like the CoC PR. Thanks for your response.
Deciding to “flip a coin” as to determine which comments to leave up would be more fair then discriminating based on content.
Let’s hope we are not there on this blog YET.
No, “Mike Pine,” almost every website distinguishes based on “content,” which is why this site’s comments section is not primarily composed of ads for nutritional supplements and knock-off fashion products. You’re talking about discriminating based on “viewpoint.”
We discriminate on content when we don’t let people post racist or sexist screeds, threats, heinous charges that would be defamatory if false, and some other categories. We don’t discriminate on viewpoint per se. Unintelligibility, apparent bad faith (such as intentional or grossly negligent lies), hijacking a discussion to make it too difficult to continue, etc., are borderline categories.
Hope that puts you at ease. If not, hope you don’t fall into that final category.
ooooohhhhh ….. BFD ……
At first glance I thought that the photo of the fireworks display was the top of Diamond’s head – or it could have been mine as well ..
“…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.”
Please elaborate.
Just read the staff report. 70% goes to AAM with their exclusive point of sale, plus anything else they can rake off buyers. The City effectively gets up to a $100,000 for doing nothing.
Now let’s see…could AAM have engaged the services of a well-known local lobbyist to cook up this sweet public-private partnership?
It will be amusing to observe the Kleptoblog ignore this hijacking of freedom friendliness.
No, it’s more complicated than that — and what you really would enjoy digging into is the difference between the April 21 version and the May 5 version, which is probably best assessed by comparing their respective redlines.
In both the April 21 and May 5 proposals, 10% of the gross sales (up to $100,000) would go to the Anaheim Community Foundation, which would dole it out to local interests. (Anticipating your question, I don’t see anything in their annual report that would prevent the entire $100,000 from going to the Anaheim Chamber of Commerce to fund its, ahem, “good works.” The ACF seems like a stolid and respectable group, with (as of 2013-2014) was led by people from Merrill-Lynch, Kaiser Permanente, the Cypress Chamber of Commerce, the Anaheim Hills Golf Course Clubhouse, the Disneyland Report, Crown Ace Hardware, Rutan & Ticker, the OC Sanitation District, etc. The only “advantage” I can see in having the ACF dole out this money rather than the City Council doing so is … insulation from the political process and lack of transparency required by the Brown Act, Public Records Act, etc. To me, that’s a dubious advantage at best.
In the April 21 version, 30% of the profits (I believe it was the net — which is fair — but I’d have to look it up) would go into a pool to be shared by any Anaheim non-profit (although in the ordinance, as opposed to the Staff Report, you find that this is limited to either school groups or those with a permanent office, meeting place, or area where they provide services in Anaheim — which is very malleable language) for them to share. This was a big selling point on April 21 — how this plan would benefit many more nonprofits than merely those able to staff fireworks sales stands.
In the May 5 version, the non-profits now get 30% of the gross, rather than the net, sales. Wow — generous! But there is a catch. Rather than just registering to be in a pool, the non-profits only get 30% of the gross sales that they generate. And, just like a fundraiser at your local chain family restaurant, a non-profit only gets revenue if the person buying the fireworks comes in with a flyer crediting the non-profit with the sale. That means that by far most non-profits who (in the April 21 version) would have gotten money simply for registering will now get no money because of the difficulty of “generating sales.” If no one gets credit for the 30% — then either the stand will have a “default” flyer there showing sponsorship from some non-profit like, oh, the Anaheim Chamber of Commerce, or that 30% of the gross is lumped in the with residual profits that go to Anaheim Arena Management in exchange for their, uh, hosting the fireworks monopoly on land that they rent from the City.
Who is Anaheim Arena Management? It’s owned by Henry Samueli, owner of the Anaheim Ducks. Pringle may not even have been necessary for this heist. But if the Anaheim CoC gets its cut, I suppose that he’ll be happy.
*Seems to be a lot of money in that black powder…eh?
Less than in the white one.
Why is 30% generous? The mark-up on that crap must be enormous and the whole idea was to generate money for non-profits. AAM would hire a few dozen minimum wage people for a week or so.
The notion of trying to figure out who generated what is unduly complicated.
Here’s the real deal: if the people who voted on this thought the enterprise was going to be essentially run by the City via one and only one selected vendor they might not have gone for it so readily. I imagine people who voted for it envisaged little stands in supermarket parking lots – not a single pyrotechnic depot.
jesus christ guys…..its fireworks
It’s the “principle” of the thing …… not buying it?
hummmm … well .. okay, it’s really because we are petty wanna-be gadflies who got nothin’ better to do and want to look important
and the truth will set you free
Mike and Skally, I won’t bother discussing principles with you two. So how about we talk money? That is what this is all about after all, the gift of money to well connected businesses, while creating a dangerous situation to make it happen.
There was no organic push from residents to bring back fireworks in Anaheim, I think most folks figured out that the IQ level of our community has dropped considerably in the years since Happy Days was airing on prime time, which is why the residents demanded fireworks be made illegal with a Charter change to begin with. The push for fireworks came from the Charter Review Committee, coincidentally chaired by Todd Ament. Yes, the same Todd Ament who went on to lead a major campaign push to talk residents into fireworks. You think he did that for the “principle” of it? Or did “safe and sane” dump a hefty win bonus on the Chamber of Commerce?
Voters approved the ballot measure last June based on promises of higher safety enforcement and money going to local community groups.
Fast forward to today, and the only enforcement built into this Ordinance is enforcement of where you may purchase fireworks, enforcement that uses public resources to grant one corporate giant a monopoly on sales, with the full weight of the government coming down on anyone who dares buy or sell them in Anaheim other than the one business entity. Huh? Oh never mind that we are in a drought, let’s hand people stuff they light and are known to throw into the air even though they are not supposed to. The City exempted everything from the 55 freeway and 91 freeway, so the hills have been declared “safe” but how do we patrol to stop idiots who set them off anyway? Also, with half of Anaheim’s geographic base exempt from use, and industrial and commercial properties disallowed, you get to come down to the flatlands to enjoy your fireworks, effectively doubling the fire hazard, and asthma response, for those of us lucky enough to live in the fireworks zone. And while they exempted themselves from CEQA, I see the potential for a challenge brewing from “environmental justice” communities, as the lower income areas that make up a disproportionate amount of the remaining space left as OK for fireworks, has kids with significantly higher rates of asthma (not sure why) so we just created a situation making it that much harder on those kids to breathe, by approving the use of KNOWN CARCINOGENS. And for those who think only the hills are dry and brittle, you wanna come check my ALL WOOD home that has been baking in the sun for 107 years? Flatlands Anaheim still has areas with the original wood shake roofs from their 196s era construction. When the Fire Chief gave his report on April 21, he looked like a man who was clearly in Hell, he knows he cannot protect the city and do his job, not without every man woman and Dalmation on the fire teams riding patrol alongside every patrol officer that APD can put on the streets, and since THAT has not been budgeted for, watch Beirut come to life in North-Central OC.
And WHY are we endangering our homes, safety, and water supply? So the Anaheim Arena Management can make 70% of profits (after expenses) when patrons remember to bring the flyer for the charity of their choice, and 100% if they follow the standard human condition and forget the flyer that supports the local Girl Scouts, Little League, or Rotary.
No, this has NOTHING to do with the “principle” of it, we are tired of the Anaheim City Council putting money into the pockets of their friends, and really, really, really tired of them pulling this bait and switch crap lying about what they are doing to get away with it.
The real Devil will be in the details of the agreement. However I see some problems:
The City has used its police power to hijack the program and create a monopoly that will in turn be given to a “sole source” vendor. This probably violates the City’s own purchasing policy.
The City has also suggested what amounts to a 10% tax that will be given to it’s own favored charity to dispense to whomever they choose – that strikes me as wrong and possibly illegal. This is a surcharge that is essentially coerced from fireworks consumers.
The amounts of money involved is probably significant to non-profits, but more alarming to me is the way the City has insinuated itself into the distribution of “charity,” something we should all be concerned about, especially in the political realm when the time comes to mobilize the non-profits to support this or that kleptocratic grab.
There are other issues too – mostly dealing with the single point of sale, but no matter.
The biggest problem is that the deal described in the staff report bears little resemblance to anything anybody was told a year ago. Hardly surprising.
Anyway, fear not. It’s being described as a “pilot” project; sort of the same way that the Angel MOUs were described as a starting point.
It seems to me that the Angel MOU’s were both a starting and an ending point.
They were only a starting point as far as the City’s talking points went. Something was going on behind the scenes all spring and summer of 2013 to get to that point on September 3 when the only thing left for the council to do was wait a respectable period of time and then ratify the deal.
They tipped their hand by including all those specific numbers in the MOUs – which should have had no specific numbers at all if they had been legit.
11% tax.
If the City promised that community groups would benefit from fireworks sales and that is not going to happen – I am with you. Show me – but keep it short and to the point please.
Benefit to the tune of 30%? And that a sole source “vendor” was going to grab twice that? That would have made some interesting reading in the City Charter.
Can anyone boil this down to one page or less?
Given that it’s intended to be a direct quote from a document, with context, no.
Don’t worry, we’ll have more on the topic.