Berkeley moves to shut down cannabis operation

Perfect Plants Patients Group on Sacramento St. shortly after it opened in September 2011. Photo: Frances Dinkelspiel

More than a year after it opened its doors in an apparent violation of Berkeley’s zoning laws, city officials are taking steps to shutter the Perfect Plants Patients Group (3PGs) at 2840-B Sacramento Street.

City staff will ask the Zoning Adjustments Board on Thursday to find that 3PGs is a public nuisance and is in violation of Berkeley’s municipal code. If the ZAB board agrees, the matter will be referred to the City Council for action.

The city believes that 3PGs is violating numerous zoning and municipal code laws: it is operating a retail outlet without a permit; it is operating as a medical cannabis dispensary without a permit; if it tries to claim it is a cannabis collective rather than a dispensary it is still operating illegally because collectives cannot be in commercial districts. 3PGs is also located just 546 feet from Longfellow Middle School. The law requires a 600-foot buffer.

“As a result of the above facts and investigation, it is apparent that Perfect Plants Patients Group cannabis operation at 2840-B Sacramento Street has repeatedly and consistently operated in violation of BMC Chapter 12.26 and the Zoning Ordinance,” states the staff report’s conclusion.

Steve Whitworth, the attorney for 3PGs, did not respond to Berkeleyside’s request for an interview.

The action to close 3PGs comes after dozens of neighbors and the PTA of Longfellow School sent letters and emails to the city and police pointing out and complaining about the cannabis sales in the store and what appeared to be spillover drug activity. Berkeleyside wrote an article about the store in October 2011, shortly after publishing another article about the Forty Acres Medical Marijuana Growers Collective on San Pablo Avenue, which also appeared to be operating in violation of city zoning laws. That business shut down briefly in early 2012, but has since reopened.

The city did send a cease and desist order in December 2011 to Eric Thomas, the managing member of 3PGs, and Lian Rui Tan, the owner of the building.  When they did not comply, the city levied fines of $12,500 each. Only $1,000 of that has been paid.

While cannabis dispensaries or collectives are not required to reveal their income, a $12,500 fine is just a tiny fraction of what even a small commercial operation can bring in each month. Berkeley Patients Group, which is the city’s largest cannabis dispensary, brought in $15 million in 2009, according to a report by the Center for Investigative Reporting. Another indication of the amount of money that flows through a dispensary came in 2010 when BPG filed a lawsuit against its former executive director. The lawsuit contended that if BPG had opened four dispensaries in Maine (as it was trying to do) it expected to gross more than $2 million serving 691 patients in the first year, selling medical cannabis for $340 an ounce. It projected gross revenues of almost $7.4 million in its second year of operation, serving 1,159 patients. That worked out to revenues of $5,500 to $7,500 per patient, depending on the location.

Neighbors are pleased that Berkeley is taking steps to shut down the cannabis collective, but are frustrated it has taken a year.

“If the city really took public safety in this neighborhood seriously, it would have acted a long time ago,” said Ryan Kerian, who lives in the area. “I’m really dismayed it has taken so long. What is says to me is the city doesn’t take public safety in my neighborhood as seriously as it does in other neighborhoods.”

Kerian has written numerous letters to the city and city officials, but does not plan to attend the Thursday hearing. He said he, like many of his neighbors, fears for his safety. He doesn’t want 3PGs supporters to attach a face to his name.

“A lot of us feel it is going to be an us or them scenario, between us, the owner, the landlord, and the people who get their medical cannabis there,” said Kerian. “We expect it will be heated. We don’t feel safe being a part of it. The neighbors have lost their faith that the city will do anything since it has been over a year.”

At the heart of the matter is where 3PGs is located and what kind of business it is.

Berkeley law allows three medical cannabis dispensaries to operate in the city and is working to license a fourth. These dispensaries must operate in a commercial zone.

Berkeley residents also can band together to form their own small cannabis collectives, but these groups can only operate in residential areas and must be “incidental” in nature to the house or apartment in which is operates.

3PGs does not fit either classification. It appears to be acting like a dispensary since it advertises its wares on Weedmaps.com and allows anyone who comes to become a member by paying a fee. But Berkeley has not handed out a permit for a fourth dispensary, so 3PGs is not legally allowed to operate as one, according to city documents.

If Eric Thomas, the managing member of 3PGs (who also runs another cannabis operation in Vallejo) claims he is operating as a collective, the organization is still out of compliance with Berkeley laws since collectives cannot be in commercial districts, according to city documents.

The universe of Berkeley’s cannabis industry has changed drastically since November 2010, when voters passed a measure allowing a fourth dispensary and the establishment of a number of large-scale commercial grow areas. The law set up a new Medical Cannabis Commission, which has been working since July 2011 to establish guidelines.

But a new push by a group of US Attorneys, including Melinda Haag, who runs the Bay Area office, has transformed the climate. Haag and others sent out a slew of letters to medical cannabis dispensaries and collectives telling them they had to shut because they were operating too close to schools or parks. The US Attorneys told the owners told the owners of the properties that they would be seized unless the cannabis operations shut down.

Berkeley Patients Group was forced to move from its longtime home on San Pablo Avenue because it was located too near a school. It is currently remodeling another building on San Pablo and plans to open soon. It started up a delivery service while it was closed, and plans to continue that even after its new site opens.

In the uncertain climate, a number of cannabis operations opened up in Berkeley without regard to the zoning laws. In addition to 3PGs and Forty Acres, another business opened up at 1515 Dwight Street.  Currently, there are at least 12 organizations that deliver medical cannabis throughout Berkeley.

Staff report and other documents relating to 3PGs

Related:
Berkeley Patients Group finds new home on San Pablo (08.09.12]
Berkeley orders two cannabis collectives to shut down
[02.22.12]
Councilmember: Look at unauthorized cannabis collectives [12.06.11]
Rapid growth of cannabis collective raises concerns [9.20.11]
Concerns raised about new medical cannabis collective [10.27.11]
Commission ponders growth of unlicensed pot clubs [11.4.11]

Berkeleyside publishes many articles every day. To see all our stories in chronological order, and read ones you may have missed, check out our All the News grid.

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  • bgal4

    There are three bad actors in this nuisance case in order of responsibility:
    1. the City of Berkeley
    2. Property owner Tan and Wong
    3. Eric Thomas

  • Completely_Serious

    My kid goes to Longfellow.  Kid is under strict instruction to NEVER go toward Sacramento for any reason.

    Why does it take a year when this nuisance was identified almost from the minute it opened?  And will take another year for the hearing, continuances, appeals, etc.  Then, Zach Cowan will recommend the Council write a big check to PPP to “settle” the case and the nincompoops on the Council will approve it in secret.

    Vote all of the incumbents out!  Get new nincompoops!

  • 3rdGenBerkeleyan

    ITS ABOUT FREAKIN’ TIME! 

  • The Sharkey

    Why does it take over a year to shut down an illegal pot store, but only a couple days to shut down an illegal backyard cafe?

    Berkeley’s City government is ridiculous.

  • 3rdGenBerkeleyan

     I agree my child goes to Longfellow also and that was a large roadblock that almost made us choose a different middle school. We need to clean house with all council members and school board members,
    we need a fresh start, it’s been business as usual for far too long!

  • 3rdGenBerkeleyan

    disqus is disqusting the way it works…my post was supposed to be a reply but it keeps getting posted as a new comment.

  • 3rdGenBerkeleyan

    disqus fail!

  • deirdre

    I’m another Longfellow parent who’s incredulous that it took this long.

  • Biker 94703

    546 feet vs 600 feet?  Sometimes laws are ridiculous.  They should just move to the long vacant space at 2973 Sacramento.

  • 3rdGenBerkeleyan

     actually the state law states 1000 ft.

  • bgal4

    what is ridiculous is you are missing the substance of the violation. 3PG is not the 4th permitted dispensary, and cannot jump ahead in the selection process by operating an illegal shop.

    second point, never in any sane world would a city permit a medical cannabis club in a location between the methadone clinic and a blighted, empty property of 30 years with a history of gang activity and drug dealing.

    not to mention that Berkeley’s ordinance is meant to prohibit over-concentration in an area, south Berkeley already has 2 permitted pot shops and plenty of delivery services available.

  • TizziLish

    I esp. like your recognition that it is very likely that if we elect new city council representatives they will likely be nincompoops. More and more, it seems, no sensible, sane, caring humans want to run for office.  

    And think about the word ‘representative’. Politicians are supposed to represent their constituency but which ones do?
    What does it say about us as a citizenry that the best we can do is elect nincompoops?

    The horror, the horror!! 

    Thanks, Completely_Serious, for the sad laugh. Nincompoops indeed, new or old.

  • TizziLish

    I say this gently:  chillax and let it go. If disqus fail is the worst thing in your day, you are blessed.

  • SoBerkeleyNeighbor

    This isn’t about splitting hairs over the number of feet from a school. This is a fragile neighborhood trying to emerge from sporadic violence and come into its own. In addition to Longfellow there is a large park and community center – with a preschool and after-school program for elementary-aged kids – within just a few blocks. This is NOT the right location for a cannabis dispensary. And of course the other big point is: It’s been operating illegally all along. It astounds me the city has let this go on for over a year.

  • Guest

    I think federal law is 1000 ft. I thought CA state law is 600ft. COuld be wrong though. Here’s waht i found…. In 2012, AB 2650 prohibited a collective, cooperative, or dispensary with a storefront or mobileretail unit from dispensing medical marijuana within a 600-foot radius of a school for studentsbetween kindergarten and 12th gradeh h

  • 3rdGenBerkeleyan

     agreed!

  • Guest

    oh and i do agree this place needs to go. it is not good for our neighborheed and is operating illegally. I was just curious about the actual law.

  • 3rdGenBerkeleyan

     It cant be federal because the fed doesn’t recognize collectives or Marijuana.

  • bgal4

    Dmitri Belser and Jacquelyn McCormick are both SENSIBLE and CARING people, not to mention CAPABLE. I suggest folks speak with them,  their good qualities are unmistakeable.

  • Irisandjules

    Despite the fact that cannabis dispensaries are/can be mega-businesses, the reported 15 million+ a year income of BPG for example, I am 100% convinced that they will always be concentrated in the poorer areas of town like South and West Berkeley. They surely have enough income to open up in Elmwood or North Berkeley but I know all hell would break loose in those neighborhoods. But why anyways, for that we have have Sacramento and San Pablo Avenue – you can sell and buy gold, stop of for a vibrator, get some good ethnic food, a little pot to go along, hey, maybe even get an oil change for your car….and you can stop at Berkeley Bowl West for groceries. I am so glad everything is so close.

  • bgal4

    Federal trumps state and local, which is why the best practice is to align local with the federal standard, the new city operating standards for the permitted dispensary do align with the 1000′, which is why BPG found a location compliant with this standard.

  • bgal4

     Berkeley voters approved the by-right status for the dispensary location thus removing the public hearing for a use permit. Berkeley permitted dispensaries do not have a zoning certificate or use permit, I have asked what type of permit they do have, and have yet to learn the answer. In order to attached the new operating standards to the permitted use and enforce the city’s medical marijuana ordinances there must be a procedural method tied to the permitting process. It is unclear what the legal logic is in Berkeley, except to say, the city supports cannabis biz (big$$$) at the expense of the community.

    Oakland has a special permit provided to the authorized dispensaries. All illegal operations are shut down swiftly and directly by the city attorney and code enforcement administration. They target the property owner to evict the tenant for illegal use. The community is not asked to testify in a public hearing for nuisance, there is no circus, no waste of limited resources, no foot dragging and meaningless drama.

    The city knows they have the legal authority to force Tan and Wong to evict Thomas. This public hearing is legal voodoo and a ruse to help the city save face. The only reason they are finally taking action, is  pressure from residents.

  • Completely_Serious

     Yeah, and like 10 minutes overtime on a meter to get a parking ticket?  It’d be cool if I could park illegally for a year before the city got around to ticketing me.

  • Completely_Serious

     Who in their right mind would want to be an elected official in this town? 

  • bgal4

    Example of security failure by Eric Thomas, owner/operator of 3PG:

    Vallejo marijuana dispensary hit in armed robbery – Vallejo Times-Herald, April 9th, 2012

    A Vallejo marijuana dispensary was robbed Friday night, police said Sunday.

    At about 8 p.m., police responded to an armed robbery at Perfect Plants Patients Group “3PG’s,” 1988 Broadway.

    Two armed men entered the dispensary and demanded money from the
    store owner, police said. The owner gave them an undisclosed amount of
    money, before being pistol whipped by one suspect, police added.

    Before fleeing, the suspects also took an undisclosed amount of
    marijuana that the owner just brought in from his Berkeley dispensary,
    police added.

    The owner sustained facial injuries, but declined medical attention, police said.

    The suspects were described as black men, between 18 and 20, 5 feet,
    10 inches tall, about 225 pounds. They were seen driving off in a black
    S500 Mercedes Benz.
     

  • Haselstein

    It isn’t surprising. The city gets taxes from the dispensaries. Win-win, except for the neighborhood. 

  • RK

    The city doesn’t receive any tax revenues from rogue operations like 3Pgs, however.

  • Haselstein

    I was speaking about the approved dispensaries. I am not happy about BPG’s new location, and we residents had no opportunity to review the proposal. Oh, wait! I’m a NIMBY!

  • free2think

    I voted against and in support of public hearing and a use permit.

    Measure JJ was approved with 62.71% of the vote.

    “Shall the City’s ordinances be amended to eliminate limits on
    medical marijuana possessed by patients or caregivers; establish a peer
    review group for medical marijuana collectives to police themselves; and
    permit medical marijuana dispensaries as a matter of right under the
    zoning ordinance rather than through a use permit subject to a public
    hearing?”

  • PragmaticProgressive

    I wrote to JM with specific questions. No response.

  • John Holland

    Example of security failure by owner/operator of Chevron gas station at Ashby/Domingo:

    An armed robbery this afternoon at the Chevron station on the corner of Ashby and Domingo led to an extensive manhunt that was continuing at time of writing.The Chevron gas station was robbed at 2:04 p.m. today at gunpoint by a single suspect who fled on foot. Berkeley police officers were on the scene within a minute, according to BPD Lieutenant Andrew Greenwood. Over one hour after the incident, eight to ten Berkeley officers were still scouring the neighborhood in the hope of finding the suspect.According to a manager in the Chevron station, the robber took approximately $50. No one was hurt in the incident.Greenwood said the police had checked the grounds of nearby John Muir Elementary School as a priority. He said there was no reason to think the public was at risk. The police were issuing no description of the suspect at this point.

  • guest

    I am in no way mocking your concern for your child’s safety.
    But.
    Having lived near Sacto for 16+ years, I’d have to say that 3pgs did not create the safety issues in the Sacto/Ashby area.
    They should be shut down, of course, for numerous violations.  But if you think that will mean you and your kids will be heading down to the market there you’re kidding yourselves.

  • 3rdGenBerkeleyan

     the bully is back!

  • Guest

    Unfortunately, it is impossible to vote out Zach Cowan.  He should go out right along with baby, bathwater, kitchen sink and sundry of City administration.

  • guest

     “More and more, it seems, no sensible, sane, caring humans want to run for office.”

    Is it possible that they are willing to run but cannot win?

  • free2think

     Look John,

    go talk with BPG management and review the security requirement drafted by the Med Marijuana commission then read some of the reviews by 3PG customers. The failure of Thomas to control effective door security is why 3PG is vulnerable to an armed robbery.

    Authorized dispensaries are MANDATED to implement the specific security standards. Thomas is in violation of the most if not all of those standards. Poor management by dealers like Thomas damage the repudiation and viability of other dispensary.

    Los Angeles versus Oakland.

  • Haselstein

    So did I. Thanks. 

  • Charles_Siegel

     It would be cool for you.  It wouldn’t be very cool for people who are looking for an available metered space.

  • The Sharkey

    She also ignores all questions here on Berkeleyside.

  • bgal4

     Not sure which questions, nor has any other candidate or the Mayor responded to the comments section, not sure how this qualifies as a negative, nor sure I have ever seen a question posed to Jac here on B-Side.

    But do count me among the few sane, sensible and caring people who have run for office and come up against the wall of power brokers, so do count me among those that support Jacquelyn for many reasons, including her courage and willingness to run for office.

  • Completely_Serious

     Yeah, but in Berkeley I’ve learned that the rule is, I get what I want, and get to stop you from getting what you want.  That’s what the hippies in their 70s have taught me with their constant objection to everything, even while they illegally and unpermittedly remodel their illegal in-law units.  (“It’s cool, man.  I was an electrician in the 70s.”)

  • bgal4

     and I support Med Marijuana, which I suspect you do to.

  • Haselstein

    For cancer patients’ pain control, glaucoma, and other uses for serious diseases I don’t know about. I think as it has been in operation, it has become a racket and people are self-medicating when they should be getting medications from doctors. 

  • Charles_Siegel

     It is good to see where you get your values from.

  • http://profile.yahoo.com/62QLMBX52XE2V62MMKM4JMMOYU bebop

     Concerned South Berkeley residents and Longfellow parents – please attend the Zoning meeting tonight to show support for shutting down 3PG (7 pm, 2134 MLK, City Council Chambers in Old City Hall).  If you can’t make it, please send an email showing your desire to enforce the zoning laws to Terry Blount TBlount@ci.berkeley.ca.us the City Clerk and to Mayor Tom Bates mayortombates@gmail.com

  • bgal4

    Voters’ Guide to Berkeley Measure JJ
    By J. Douglas Allen-Taylor
    Tuesday October 21, 2008

    Kriss and Max are responsible for why south Berkeley is and will continue to be burdened by unregulated and illegal pot clubs.

    MEASURE JJ Medical Marijuana

    Shall the City’s ordinances be amended to eliminate limits on medical marijuana possessed by patients or caregivers; establish a peer review group for medical marijuana collectives to police themselves; and permit medical marijuana dispensaries as a matter of right under the zoning ordinance rather than through a use permit subject to a public hearing?

    Majority Approval Required

    If Measure JJ looks awfully familiar to Berkeley voters, there’s a good reason. The issue originally appeared on the November, 2004 ballot as Measure R, with Alameda County declaring the measure a loser by 191 votes out of more than 50,000 cast. Measure R proponents filed a lawsuit charging that the ballots were improperly tallied by the old Diebold electronic voting machines. But in large part because the machines were returned to Diebold and erased, thus making it impossible to verify if the count had been accurate, a Superior Court judge ordered the measure put back on the ballot for this November.

    So here we are again.

    Measure JJ adjusts the laws governing legal medical marijuana growing and dispensation in Berkeley in several ways. 

    To help the city regulate existing medical marijuana dispensaries and to try to ensure that new dispensaries have a proper management and safety plan, Measure JJ proposes establishing something called a Peer Review Committee for such purposes. The Peer Review Committee will consist of appointed representatives of the marijuana dispensaries themselves, and will have no enforcement powers, only the power to make referrals back to city officials. While this would not eliminate the Berkeley Police Department from the regulation and law enforcement process, it would appear to serve to put the police in more of a criminal law enforcement mode with regard to the dispensaries, rather than the city’s first line of regulation. Whether this is a good or bad thing is up to voters to decide.

    The measure would raise the amount of marijuana that a single medical marijuana user could keep or grow in the City of Berkeley, as well as limiting the amount in the possession of a dispensary itself, substituting a statutory quantity for “a reasonable quantity of dried cannabis and cannabis plants to meet the medical needs of patient members.” If Berkeley residents who use marijuana for medical purposes need more marijuana than is called for in the present Berkeley ordinance, the raised amounts in the new ordinance would serve to reduce the amount of illegal marijuana bought by legal users in Berkeley. On the other hand, if the medical marijuana need is actually less than the newly proposed amounts, the excess will probably make its way onto the illegal market. Again, voters have to decide which is the best way to go.

    Probably the most significant change proposed by Measure JJ would allow medical marijuana dispensaries to open in the City of Berkeley “as a right” with the status of a retail sales outlet in locations zoned for that purpose, rather than having to apply for a use permit under the current process . Medical marijuana advocates will say that the current ordinance allows the city–intentionally or unintentionally–to freeze the number of dispensaries in the city, eliminating a legal and medically necessary treatment for some residents. Opponents will say that eliminating the need for a use permit–which can only be granted after a public hearing–also eliminates any say residents might have in keeping medical marijuana dispensaries out of their particular neighborhood. Again, Berkeley voters will have to decide which right is the more important.

    The ballot argument in favor of Measure JJ was signed, in part, by Councilmembers Kriss Worthington and Max Anderson. 

  • franhaselsteiner

    Darryl Moore has also been a proponent. (This is, in fact, one of the rare occasions that he has proposed council action in his second term.) See http://www.ci.berkeley.ca.us/uploadedfiles/clerk/2008-01-29_item_27_medical_cannabis_sanctuary_resolution_and_opposing_u.s._dea_dispensary_raids.pdf

  • Che Joubert

    Meanwhile liquor stores go on operating with impunity all over town while they destroy neighborhoods right and left. I can’t believe someone has given strict instruction for their child to ‘NEVER go toward Sacramento . . .’  Please.

    Why can’t we get rid of the liquor stores? The one at Sacramento and Dwight, the one at Sacramento and Ashby, the tons of them all the way up and down San Pablo – all nuisances, all dangerous spots, all bringing the most dangerous drug on earth to our doorstep. If you live near them you will see they bring the worst kinds of people and atmosphere – please, please get rid of them – they ruin neighborhoods at record speed.

  • 3rdGenBerkeleyan

    the
    Zoning Adjustments Board took an action last night to abate them as a public
    nuisance. It will likely have to go before the City Council, but this,
    hopefully, should be relatively soon. 

    http://www.cityofberkeley.info/uploadedFiles/Planning_and_Development/Level_3_-_ZAB/2012-09-27_ZAB_Staff%20Report_2840B%20Sacramento.pdf 

  • 3rdGenBerkeleyan

     More like insult to injury…but nonetheless it has to go.