MAN FIGHTS FRESNO CITY ORDINANCE ON MEDICAL MARIJUANA

A Fresno man who grows medical marijuana for himself and more than two
dozen others says an emergency city ordinance limiting the number of
people he can serve conflicts with state law and should be nullified.

James Mitchell said he will ask Fresno City Council members at today's
meeting to void the ordinance, which was approved Oct. 26 at the
request of Police Chief Jerry Dyer.

"They've opened up a can of worms with all kinds of constitutional
issues that they will now have to answer for," Mitchell said Monday.

The city ordinance allows medical marijuana dispensaries at permanent
addresses to serve no more than three patients. The ordinance bans
mobile operations.

Mitchell, 47, said he will bring a 4-foot, budding marijuana plant to
City Hall with him today. He grows marijuana for his own use as
treatment for medical conditions, which he does not publicly disclose.
He also grows the drug for about 25 others.

Mitchell said the city ordinance conflicts with the Compassionate Use
Act, adopted by state voters in 1996. The law allows people to obtain
and use marijuana with a doctor's order for the treatment of cancer,
AIDS, glaucoma and other diseases. It allows patients to designate
primary caregivers to grow marijuana.

Mitchell says the city ordinance interferes with his right to honor
medical marijuana contracts he holds with patients. "They stepped on
my feet by trying to regulate me, saying I can only have two
patients," he said.

Dyer said the Fresno City Attorney's Office researched the issue. "We
feel ... this ordinance is very defensible," he said.

Dyer said the ordinance does not prevent individuals who qualify under
the Compassionate Use Act from obtaining marijuana or using pot for
medicinal purposes. But it does restrict their means of obtaining it
by limiting the dispensing of marijuana to two patients per caregiver.

The ordinance should prevent large marijuana dispensaries from popping
up in the city, Dyer said.

He requested the ordinance after talking with law enforcement in
Roseville, Oakland, Hayward, Fairfax and Lake County. Those
communities have experienced problems of people smoking marijuana
outside dispensaries and in nearby parks, the chief said.

Dyer said since state voters approved the use of marijuana for medical
purposes, police departments throughout the state are being forced to
propose regulations to implement the law.

In addition to California, states that permit the medical use of
marijuana are Alaska, Colorado, Hawaii, Maine, Montana, Nevada,
Oregon, Vermont and Washington. Arizona permits prescriptions but
doesn't have an active program. On Monday, the U.S. Supreme Court
heard oral arguments about whether federal law that prohibits
marijuana possession can be enforced in the states.

Shaver Lake attorney Bill McPike said Fresno has been slow to
implement state law, which he believes the Supreme Court will uphold.

The Fresno ordinance violates California's medical marijuana law, he
says.

"I don't see how the city can modify the state law. They can't
pre-empt the state law," he said.

McPike said he submitted a business plan to the city in August for a
medical marijuana dispensary he proposed to open in the Tower District
that would serve 2,500 to 5,000 people.

He believes his business proposal precipitated the ordinance. "I was
very upset I wasn't contacted, since I had a business plan before the
zoning department," he said. "It violated my due process rights to be
notified and heard."

Council members approved the ordinance 5-2, with members Jerry Duncan
and Mike Dages dissenting.

Duncan said Monday he voted against the ordinance because "I didn't
support the idea of anybody selling marijuana in Fresno."

His view hasn't changed, he said. But the ordinance passed and Duncan
said: "I don't think there's much danger of it being reversed."

Dages said he, too, will not vote to nullify it. The dispensing of the
drug "needs to be limited," he said.

However, Dages said his wife, Janet, who works with cancer patients,
changed his zero-tolerance stance for medical marijuana. "She said she
has seen a lot of patients have a lot of relief from the medical
marijuana," he said. "I never took that aspect of it in mind."