MEDICAL MARIJUANA UNDER MICROSCOPE

CLEARLAKE -- In light of an expired moratorium prohibiting the
issuing of new business licenses for medical marijuana dispensaries,
the Clearlake City Council has chosen to fall back on a city
ordinance that has brought into question the legality of the section.

Liz Byrd, owner of Lakeside Herbal Solutions, was recently issued a
business license only to have that license revoked. Byrd and her
attorney William McPike, who specializes in medical marijuana
defense, addressed the council at its Dec. 11 meeting appealing the
revocation of the license. After a lengthy discussion that lasted
more than hour, the council still made no decision and continued the item.

The city issued the moratorium on April 13, 2007, imposing a
temporary 45-day prohibition on the establishment of new medical
marijuana dispensaries. In May 2007, the moratorium was extended to
10 months and 15 days. The moratorium had originally prohibited the
renewal of existing businesses licenses for medical marijuana
dispensaries as well; however, in August 2007, the council decided to
grant renewals of such licenses.

According to the staff report that originally accompanied the
moratorium, it was established to allow city staff time to establish
zoning regulations pertaining to medical marijuana dispensaries;
however, no zoning regulations have yet been established. It was also
the council's intention at the time the moratorium was implemented to
sidestep the issue until it was resolved in federal courts.

In April, the council allowed a moratorium to expire and decided to
rely on Clearlake Municipal Code 6-3.6, which states that "The
issuance of a license under this section shall not entitle the
licensee to engage in any or do any, which, for any reason, is in
violation of any federal, state, or municipal law, rule, or
regulation." Wording of the section has brought up a question as to
whether or not the city has the obligation or the right to enforce
federal laws.

"You are really dealing with legal issues here," McPike said, adding
that Clearlake police officers and city officials are not federal
employees and therefore have no legal obligation to enforce federal laws.

The U.S. Supreme Court recently refused to review a landmark decision
in which California state courts found that its medical marijuana law
was not preempted by federal law.

The state appellate court decision from Nov. 28, 2007, ruled that "it
is not the job of the local police to enforce the federal drug laws."
Despite the Nov. 2007 ruling, the city staff still contends that the
issue remains in litigation and no definitive answers have been given.

Councilmember Joyce Overton spoke in favor of the city making a decision.

"We can't wait for the state to get something done. They can't even
get their budget done," she said. "We can not wait for the state to
make a decision. We need to be the ones that make a decision for our city."

The city does not have a business license application specifically
for establishing a medical marijuana dispensary. The city's business
license application does, however, request information describing the
type of business for which the applicant is seeking the license.
Prior to the moratorium, there were three or more businesses with
city-issued business licenses, knowingly providing the dispensary
services within the city, one of which had reportedly been in
operation for more than four years.

Revoking Byrd's business license could open the city up to
litigation. Byrd said that she spent approximately $20,000 opening
her business based on the issuance of her business license. She said
she had been completely honest in disclosing her intentions when
seeking the license and application information from city staff.

"I never misrepresented my intentions to anyone," Byrd said. "I'm not
doing this for greed. I'm taking care of people. I'm in shock that
I'm standing here before you. I've been truthful from the get-go."

According to Byrd, her original application had specifically
identified services for providing medical marijuana. She said,
however, when she spoke with city staff, it was recommended that she
use wording other than "medical marijuana."

Byrd's alleged discussion with city staff has been contested. "I have
tried to reconcile the differing opinions of events leading up to the
issuance of a business license to Liz Byrd, but staff and Liz Byrd
remember the event happening differently," City Administrator Dale Neiman said.

According to Byrd, upon recommendation by city staff, she chose to
use the word "holistic" to describe the services she intended to
offer. Because there was already a dispensary in the city using the
word in its business name, she said she did not question its use.

Use of the word, however, caused Councilmember Chuck Leonard to
accuse Byrd of committing perjury in the application she submitted.
Leonard read a definition of the word as "of or relating to holism;"
and "relating to or concerned with wholes or with complete systems
rather than with the analysis of, treatment of, or dissections into
parts." Based on this definition, Leonard claimed that Byrd knowingly
signed the business license application against penalty of perjury.

However, further definition of the word, according to
Merriam-Webster's Collegiate Dictionary, includes "medicine attempts
to treat both the mind and the body."

Upon a motion put forth by Councilmember Roy Simons, the item was
continued until such time that the council may converse with legal
counsel. The motion passed on a 4-1 vote count with Leonard casting
the dissenting vote.