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CLEARLAKE – The owner of a medical marijuana dispensary has received a short stay on having her business permit pulled by the city.
Liz Byrd of Lakeside Herbal Solutions went to the Clearlake City Council Thursday night to appeal the revocation of her business license. The city is pursuing the matter on the grounds that selling medical marijuana is prohibited under a city ordinance which prohibits any business that violates local, state or federal law.
City officials also have alleged that Byrd obtained her license by improperly describing her business, which she said was the result of a city staffer instructing her not to mention medical marijuana.
Following a discussion that lasted more than an hour, the council decided to seek more information from the city attorney to help them decide on how to proceed regarding Byrd's case.
Byrd came to the meeting with about 20 supporters, including attorney Bill McPike, who said he trains other attorneys on how to deal with medical marijuana issues.
He cited a thick set of documents Byrd submitted to the council, which included an e-mail from Council member Joyce Overton, who proposed having a roundtable discussion with city staff in order to get clarity on the issue.
McPike explained that Byrd's business is protected under the Compassionate Use Act of 1996.
“California medical marijuana law has never been overturned in any appellate court, it's never been overturned in any federal court, so we have our law and we have to deal with it,” he said.
Vice Mayor Chuck Leonard asked if Lakeside Herbal Solutions was a cooperative, collective or dispensary. McPike said he believed it qualified as a collective.
Leonard asked if it was a nonprofit or for-profit business. McPike said it was not a nonprofit per se, but said it doesn't make a profit. Quoting from the state attorney general's guidelines on enforcing medical marijuana law, Leonard said no one should profit from distributing it. “It seems to be contradictory to what's going on here,” he said.
According to Police Chief Allan McClain, Malathy Subramanian, the city's attorney, has said the city should remain on its current path, and let the courts decide before taking any action to create local regulations.
He said using marijuana is still against federal law, adding that the way the Compassionate Use Act is written is “bad law.”
City Administrator Dale Neiman said that, according to Subramanian, a number of cities around the state are relying on the same business license provision as Clearlake in dealing with medical marijuana. Specifically, it's a city ordinance that has been in force for years that says issuing a business license doesn't entitle the licensee to engage in any activity that violates federal, state or municipal law.
McPike told the council that local police don't follow federal law, they follow state law. Further, the US Supreme Court let stand an appellate court decision in the case of the city of Garden Grove, which seized a patient's medical marijuana and refused to return in.
The Fourth Appellate District ruled last year in that case that “it is not the job of the local police to enforce the federal drug laws,” as Lake County News has reported.
Byrd defended herself before the council against allegations that she had purposefully been misleading on her business license application, on which she said she was advised by a city staffer to use the word “holistic” when talking about the product she sells, and not to mention marijuana.
When another dispensary operator raised a concern that her license hadn't mentioned marijuana, Byrd said she went to the police department to speak with McClain, who wasn't there, so she spoke to Det. Tom Clemens.
Not long afterward, as she was preparing for her grand opening, McClain and Lt. Mike Hermann visited her shop to tell her she couldn't sell medical marijuana. By that time, said Byrd, she already had clients planning to use her services.
“I love my city. I don't want to be at odds with my chief. I don't want to be at odds with my City Council. I don't want to be at odds with anybody,” Byrd said, attributing the situation to a lack of communication.
Leonard alleged that Byrd did something “fraudulent” on her business license application by not listing cannabis, and pointed out that she signed it under penalty of perjury. Byrd maintained she had been instructed to do so.
Councilman Roy Simons asked about Byrd's business expenses. Byrd, who uses medical marijuana herself for fibromyalgia, said she doesn't take a salary. “It's not about the money, it's about the patients.”
Mayor Curt Giambruno, who was sworn in earlier in the evening for a new term, referred to his oath of office to uphold the US Constitution,
Earlier this year, a temporary yearlong moratorium expired that prohibited medical marijuana dispensaries in the city, but allowed three existing dispensaries to continue, said Neiman.
One of those dispensaries was raided this past May by local and federal officials, but two remain, and they are being allowed to continue operating, McClain said.
Council member Joyce Overton suggested that if they weren't going to allow new dispensaries under the city ordinance preventing business activities that break local, state or federal law, then even those dispensaries which currently are operating are doing so illegally and should be shut down. She said she knew that the city's two operating dispensaries didn't list medical marijuana on their business license applications either.
“It's either all or none,” she said.
Overton said she expected the issue to keep coming back, and asked for a roundtable discussion to look at the legal aspects.
Simons agreed. “There's been a mistake made here.”
He suggested someone will have to come up with the money to cover Byrd's losses if she's shut down. Neiman said she has the option of filing a claim. “And then we'll fight her,” said Simons.
Leonard said he wished the city could easily have medical marijuana cooperatives working in the city. He called the Compassionate Use Act “a nightmare,” and said the fact that Byrd's business license wasn't filled out correctly was a problem for him.
Council member Judy Thein asked Neiman if they could close down the other dispensaries. He replied that it was unclear.
Overton said she wanted clarification from Subramanian on whether or not a city can enforce federal law.
Giambruno said he had a problem with the way the business was licensed, and questioned why the license application didn't go to McClain, who could have stopped it early in the process.
He said he had come to the meeting with one attitude but had developed another, and he, too, asked for Subramanian to get involved and review the situation.
Simons moved to table the issue until they could have a roundtable discussion with Subramanian. Overton seconded, but they were defeated by the rest of the council, who wanted Subramanian involved but didn't want a roundtable.
Leonard then moved to deny the appeal, which died without a second.
Simons again moved to table the discussion until the council could discuss the matter with legal counsel, which was approved 4-1, with Leonard dissenting.
Neiman said while the discussion is tabled, Byrd's appeal is in place, which will allow her to keep operating.
E-mail Elizabeth Larson at
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