Opinion: Prepping for Hash Bash 2019, Ann Arbor’s suspension of sidewalk permits isn’t supported by city code

The city of Ann Arbor is making plans for the Hash Bash, to be held on April 6. Advance preparations include clearing sidewalks of vendors, by suspending (for one day) some already-issued sidewalk occupancy permits.

The one-day suspension appears to be unsupported by the specific local laws that the city administrator has cited to justify his planned action.

First a bit of background. The Hash Bash gathering, held annually since 1972 on the University of Michigan campus, promotes reform of marijuana laws. The event will bring several thousand people to town. In 2016 the Associated Press estimated around 8,000 people attended Hash Bash that year.

This year could see increased interest in Hash Bash, as advocates might be looking to celebrate the passage last November of Proposition 1, which legalized recreational marijuana in the state.

No question, city officials have a duty to maintain public safety. But they also have a duty to follow the law, at the same time they’re keeping everyone safe. And it doesn’t look like the planned permit suspension follows local law.

The city administrator’s memo, attached to the agenda of the March 4 city council meeting, states:

[A]ll sidewalk occupancy permits and peddler’s licenses already granted in the respective area described above are revoked and suspended and considered invalid in those areas on April 6, 2019.

In support of the revocation and suspension, the memo cites the part of the city code that regulates the suspension or revocation of permits generally. From the memo (emphasis added):

In accordance with Chapter 76, section 7:17 of the City Code, the Administrator is authorized to suspend any license or suspend or revoke any permit for just cause. As defined in this chapter “cause” means an act, omission or condition that is (1) contrary to the health, morals, safety or welfare of the public.

The general idea conveyed by the memo is that Hash Bash presents a public safety “condition” that the city has “just cause” to mitigate, by keeping vendors off sidewalks in the area. And under these circumstances, the city code allows the city administrator to suspend sidewalk occupancy permits—at least according to the memo.

Does Ann Arbor city code support this approach to revocation and suspension of sidewalk occupancy permits? I don’t think it does.

Just cause? 

The first hint that the memo might misrepresent the City Code is the phrase “for just cause.” The wording feels odd, because there’s a different, shorter phrase that’s typically used in legal contexts to describe possible reasons for terminating a privilege. The standard phrase is simply “for cause”.

Sure, the city’s perspective is something like: Keeping vendors off sidewalks in the interest of public safety is a righteous and “just” cause. But does the city code merely require the city administrator to have a “just cause” in order to suspend and revoke a permit? No, it requires something different.

The city code uses the term “for cause,” not “for just cause.” And the phrase “for cause” has a different meaning from “for just cause.”  It’s different in two ways—with respect to specificity, and with respect to connotation of wrongdoing. If a privilege is revoked “for cause” then it is revoked for a specific action or non-action on the part of a specific revokee. And if a privilege is revoked “for cause” then it is revoked based on the wrongness of the action or non-action by the revokee.

The city code that is cited, but not quoted, by the memo reads in relevant part:

7:17. – Suspension or revocation.
Any license issued by the city may be suspended by the City Administrator for cause, and any permit issued by the city may be suspended or revoked by the issuing authority for cause. The licensee shall have the right to a hearing before the Council on any such action of the City Administrator, provided a written request therefor is filed with the City Clerk within 5 days after receipt of said notice of such suspension. The Council may confirm such suspension or revoke or reinstate any such license.

That part of the city code makes clear that revocation or suspension “for cause” is supposed to be based on the usual interpretation of the phrase “for cause.” That is, “for cause” is for a specific action a specific permit holder or licensee has done or failed to do, not for some general state of affairs or condition.

Based on the enforcement strategy described in the memo, it’s hard to see how an individual vendor might have a reasonable timeframe to exercise their right under the local law to an appeal in front of the Council. From the memo:

City officials enforcing the law on April 6, 2019 with respect to such permits and licenses will inform the permit or license holder orally of the revocation or suspension, order that the permit or license holder and all property occupying the area or being peddled vacate the area immediately, and take such further enforcement action as is deemed necessary.

What condition our condition is in

But what about the city code’s definition of “cause”? It’s cited in the memo as support for the idea that a “condition” (for example, a large gathering like the Hash Bash) can justify the suspension of a side walk occupancy permit.

The definition in the city code makes clear that “condition” doesn’t mean some general state of affairs over which the vendor has no control:

7:18. – “Cause” defined.
The term “cause”, as used in this chapter, shall include the doing or omitting of any act, or permitting any condition to exist in connection with any trade, profession, business or privilege for which a license or permit is granted under the provisions of this Code, or upon any premises or facilities used in connection therewith, which act, omission or condition is:

(1) Contrary to the health, morals, safety or welfare of the public;

To revoke a sidewalk permit, according to the definition of “cause” it’s not enough for a condition to exist that poses a threat to public safety. To justify revocation, a vendor has to permit the unsafe condition to exist, which presupposes the vendor has some ability to control the condition.

To sum up, the part of the Ann Arbor city code cited by in the city administrator’s memo sure doesn’t look like it justifies the planned suspension of already-issued sidewalk permits.

Pay up!

If Ann Arbor’s city administrator wants to keep sidewalks clear of vendors in the vicinity of Hash Bash this year, it looks to me like there might still be a way to do it.

The city code says that if the space is needed for “other street purposes” the permit can be revoked. But if that’s the reason for revocation, the city owes the holder of the permit a partial reimbursement:

Any street or sidewalk occupancy permit may be revoked by the Administrator upon a finding that the occupancy does not meet the standards of this Section, any other provisions of this Code or other applicable law or that the space is needed for other street purposes or as provided for the revocation of permits under Chapter 76. Upon a revocation because the space is needed for other street purposes, only, the fee paid for any period after termination of the street occupancy shall be refunded.

I think the phrase “other street purposes” might be vague enough to encompass Hash Bash. And the cost to the city—for the prorated fee refund fee for one day—would surely not strain the financial resources of the city.

Or the city could simply reward those who had the foresight to obtain sidewalk occupancy permits and let them enjoy the benefits of Hash Bash commerce.

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