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Berkeley forcibly enters Forty Acres cannabis collective

The online cannabis resource, Weed Maps, shows the location of Forty Acres Medical Marijuana Growes' Collective at 1828 San Pablo Avenue.

The online cannabis resource, Weed Maps, shows the location of Forty Acres Medical Marijuana Growers’ Collective at 1828 San Pablo Ave.

In the latest battle between Berkeley officials and the medical cannabis collective Forty Acres, police and city inspectors forcibly entered four apartments at 1820-1828 San Pablo Ave. on Tuesday to look for code violations.

A contingent of Berkeley police accompanied members of Berkeley’s code enforcement division in the surprise Oct. 8, 8 a.m. visit to the second floor of the building, which is near the intersection with University Avenue. An attorney for Chris Smith, a founder of Forty Acres and a resident of the apartments, said police broke down the door to his client’s home and may have pulled their guns. City officials said a door was removed from its hinges and there was no-one at the apartments at the time.

The inspection came two weeks after Smith filed a lawsuit against the city of Berkeley, the Medical Cannabis Commission, Greg Daniel, a code enforcement officer, Elizabeth Greene, a city planner and staff member of the cannabis commission, Nathan Dahl, a planner, and a variety of city departments.

In the suit, Smith contends that he has tried to diligently work with the city to ensure the legality of his collective, Forty Acres Medical Marijuana Growers’ Collective, but the city has repeatedly thwarted his efforts. Smith contends that the city has discriminated against him and denied him due process.

“Forty Acres is different that the other collectives and dispensaries in the city,” said G. Whitney Leigh, Smith’s attorney. “It is run by a minority, someone who is not white. It services a wide variety of people, not just whites. Since its inception the city has been discriminating against Forty Acres in favor of a few insiders who have special access to members of the Berkeley government.”

Berkeley attorney Zach Cowan said: “We think it (the suit) lacks merit and we will oppose it.”

Chris Smith, co-founder of the Forty Acres Medical Marijuana Collective. Photo: Frances Dinkelspiel

Chris Smith, co-founder of the Forty Acres Medical Marijuana Collective. Photo: Frances Dinkelspiel

Berkeley officials have been attempting to shut down Forty Acres since December 2011, contending that it is a cannabis collective operating in a commercial district, which is against Berkeley’s zoning laws. Collectives are supposed to operate in a residential area and be “incidental” to the rest of the house, according to the law.

City officials sent Smith and Forty Acres a cease-and-desist letter in December 2011 informing them they had to stop operations. Toya Groves, who co-founded Forty Acres but parted ways with Smith and the collective in early 2012, said in February 2012 that the collective had shut down.

But it appears that Forty Acres is still operating, according to Gregory Daniel, a Berkeley code enforcement officer. He and other city officials went to inspect the second floor of 1820-1828 San Pablo Avenue on Sept. 4, 2013 to check for code violations. He was able to enter some of the apartments, but not the ones occupied by Smith, who said he had not received advance notice of the inspection. While at the building, Daniel noted the presence of two security guards, one at a door by the street, and one upstairs, according to an affidavit filed in court. Daniel also noticed that a guard asked a woman for her driver’s license and medical cannabis card. He also smelled marijuana when he was on the second floor.

Forty Acres is also listed on Weed Maps, an online service to locate cannabis organizations. The collective’s website, however, is no longer operational.

When Daniel and other city inspectors went to 1820-1828 San Pablo Ave. in September, they discovered numerous code violations in the apartments not occupied by Smith, including exposed wires, uncapped gas valves, and a water heater improperly installed in a closet, among other deficiencies.

Since there were so many problems in those units, numbered 4-10, it seemed likely there would be problems in Smith’s units, 1-3 and 11, according to a court affidavit. Daniel asked Smith if a housing inspector could look inside his home, but Smith said no. Smith told Daniel that he “was partying with the people and d [id] not want to disturb them,” according to the affidavit.

The city of Berkeley then went to court to ask for a “warrant for forcible inspection” to search Smith’s apartments. On Oct.3, a judge granted Berkeley permission to forcibly enter the premises and also waived the requirement that the city give Smith a 24-hour warning. Consequently, the inspection on Tuesday was a surprise.

Smith’s attorney did not know anything about the judge’s order until 4 p.m. on Tuesday, when he received a fax with the warrant attached, he said. Prior to that, he expressed concern that Berkeley officials had forced their way into the premises without prior notification. He suggested it was part of the city’s pattern of harassment against Smith.

“If this was an inspection, it was conducted in violation of state and local laws,” said Leigh.

Battle between Chris Smith and his landlord, Clarence Soe

The city of Berkeley is not the only entity trying to evict Smith and Forty Acres from the building on San Pablo Avenue. Clarence Soe, who owns the structure with his two sisters, has been trying to use the courts to get rid of Smith, but with mixed results.

In November, 2012, an Alameda County Superior Court jury voted 12-0 that Forty Acres was a nuisance and an unlawful use of the property. In April 2013, deputies from the Alameda County Sheriff’s Department evicted Smith from units 4-10.

Smith promptly moved into the other vacant units in the complex, numbers 1-3 and 11, according to Michael McLaughlin, an attorney for Soe. The landlord returned to court to try and force Smith from those units, claiming that Smith took them over forcibly and without permission from Soe. He is not paying rent either, said McLaughlin.

City inspectors forcibly entered four apartments at 1820-1828 San Pablo Ave. on Tuesday

But Smith argued successfully in court that he had always had an informal arrangement with Soe that let him take over units as they became vacant and this was no different. The jury agreed with Smith and denied Soe’s “forcible detainer action.”

Soe is now considering other legal remedies, said McLaughlin.

Smith has also filed a lawsuit against Soe arguing that the landlord had rented him apartments under false pretenses because they were illegal. The city determined in December 2011 that Soe had illegally converted a dance studio to an apartment complex. That case is set to go to trial on Nov. 11, according to Leigh.

Smith appears to want to stay on at 1820-1828 San Pablo Ave., in part because it is the basis for which he wants to obtain the fourth license for a medical cannabis dispensary.

Smith moved into the apartments in 1998 and started Forty Acres in 2009. In 2010, voters approved Measure T, which established new guidelines for collectives and dispensaries. Measure T stated that collectives could only operate in residential areas and be incidental to their use.

Smith has argued to city officials and in his lawsuit that Forty Acres existed before the passage of Measure T and is thus legal.

“If a government changes its zoning rules to make an existing business illegal, that business is exempted from the rules,” said Leigh.

City officials have repeatedly disagreed with this assertion and have told Smith that not only is Forty Acres operating in a commercial district – which is prohibited – but that the property is not even residential, so a collective cannot operate there.

City code officials are still processing what they found in Tuesday’s inspection, and have not yet released their findings, according to Matthai Chakko, a city spokesman.

Update 10/10: This story has been modified to swap out the word raid for inspection in the third paragraph.

Related:
Court orders eviction of Forty Acres cannabis collective (11.09.12)
Berkeley moves to shut down cannabis operation (09.26.12)
Berkeley orders two cannabis collectives to shut down (02.22.12)
Rapid growth of cannabis collective raises concerns (11.29.11)

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  • BerkeleyCommonSense

    Good.

  • Vladislav_Davidzon

    I agree with you Sharkey. I have to say that I am somewhat baffled by the mention of skin color as a basis for justifying an otherwise illegal business; it’s notable that the same people who often demand privileges based on their skin color (which is really just another type of blatant racism), only to then complain the loudest about racial profiling by the police. You can’t have your cake and eat it too.

  • Just Sayin

    Let’s not forget one of the founders, Toya Groves, used to be on the MMJ Commission and was also appointed by max Anderson to the Zoning and Adjustments Board.

    PS – Everybody and their brother knows they are still operating as a dispensary.

    PSS – Everybody and their sister is tired of racist insinuations. Pathetic.

    http://www.berkeleyside.com/2011/09/29/rapid-growth-for-cannabis-collective-raises-concern/

  • Just Sayin

    Toya Groves – founding member – quoted in 2011 Berkeleyside article:

    “I am uncomfortable with people bringing up that we are playing the race card,”

  • guest

    The cannabis business must be pretty good, since Smith manages to pay his lawyer. What I feel is particularly stunning is that a jury allowed him to continue to squat. Not to mention that because he is not operating a legal facility, he is basically a drug dealer.

  • Doc

    Berkeley needs state regulated marijauanna so such retail abuse won’t be the city’s concern.

  • high anxiety

    A few years ago I posted this comment in response to this story about 40 acres:

    http://www.berkeleyside.com/2011/09/29/rapid-growth-for-cannabis-collective-raises-concern/#comment-326141423

    Since I posted it, to say 40 acres has deteriorated, is an understatement. After it started back up after the first shutdown, there was a sketchy gangster vibe, and the employees were surly. Once, I remember one of them talking to another about having an appointment to see his parole officer. I’m all for giving parolees a place to work, but I don’t want them working at dispensaries I visit — especially if they were convicted of a violent crime. I had increasingly unpleasant experiences there until one time when the mean bud tender intimidatingly said with a scowl, “tips ARE appreciated!” pointing to a tip jar. Of course I didn’t tip — the whole idea of tipping someone for selling you medicine is ridiculous — but the whole vibe was terrible and I stayed away from the place for well over a year.

    Recently, I saw that it was still open for business, so I took a chance because it was late at night and 40 acres was the only dispensary open. It was pretty empty inside. Most of the product I looked at smelled awful, and the stuff I finally settled on turned out to be moldy — and there’s nothing like finding that out on your first (and only) hit of the expensive medicine you just purchased.

    40 acres is no longer a compassionate dispensary with competitive prices, providing a great service to the community. It’s just a grungy hash bar which sells moldy weed. I hope it closes soon.

    That said, there is a need for more dispensaries in this town. Pot still costs an arm and a leg. The more dispensaries there are, the cheaper the price. If Berkeley doesn’t want 40 acres and greanleafs popping up all over the place, adding a few more dispensary permits would go a long way to preventing that from happening.

  • Truth Sayer

    Fact is, Berkeley is breaking the Federal Laws, and all those who they gave permission to sell weed are with them. If you are “So sick of this law-breaking” why do we not included the city and the sellers? It is because we can be a hipocrit on the State level, and the Federal level don’t count? I think we need to have a chat with the Justice Department to find out who is right.

  • Truth Sayer

    Selling weed is illegal regardless of color.

  • guest

    more dispensaries doesn’t lower prices it just means there are more dispensaries

  • Truth Sayer

    Can anyone imagine what will happen of the City of Berkeley, county and perhaps the state, and the involved officials are faced with a discrimination suit filed in Federal Court by Forty Acres? In this case the city and those officials conspired and picked and chose businesses to be licensed to sell weed without competition or bid process. Almost like crime bosses are they not? Not to mention that the activity they chose is illegal as far as the feds are concerned. This is going to be a real cluster….k.

  • what’s really going on?

    By growing up in this city i have seen the changes that have taken place on a social level as well as on the city-government level for over 30 years. I am no longer surprised to see the high level of immaturity that exists within the “adult” community of Berkeley. i can see how childish, wars, really are, and speaking of childish wars, why should a medical marijuana operator have to battle with the city about a clearly legal non-conforming use issue or with a landlord who fraudulently represented commercial units as residential units and has been getting away without reporting the income from those 11 units for over 30 years. The only people who end up getting hurt are the patients who use medical marijuana. It seems as if the Berkeley city council doesn’t care about the medical marijuana patients of Berkeley, California or California period. Why would the city spend so much time trying to close down a legal medical marijuana collective and why would City Council support such a move? When 5 Berkeley city council members visited the 40 Acres Medical Marijuana Growers Collective in early 2010, they never told them to shut down. In fact, they are the ones who showed Chris the Berkeley Municipal Code, Chapter 23C.04, section 23C.04.040. which summarily state that “any use which is non-conforming solely by reason of the ABSENCE of a Zoning Certificate or a Use Permit may be changed to a conforming use by issuance of a Zoning Certificate” etc.
    The first people to ever complain about 40 Acres were Berkeley Dispensary owners(See Earlier articles from the Berkeleyside newspaper about 40 Acres) that Chris met at Berkeley Medical Marijuana Peer review Committee meetings in 2010-2012 after his house was illegally raided by the Berkeley Police Dept. in 2009(the case was dropped). At that time, there were no Zoning Regulations established by the city nor was there a permit process for collectives that were incidental to residential use(see measure jj 2008). Chris is a patient and is a member at every dispensary in Berkeley, however when he stands up for his rights it turns into a fight?
    Why would Dispensary owners who supposedly stand for patients rights spend so much time trying to knock off a patient who is a member of their dispensary, who was born, raised and lives in Berkeley and who is standing up for his own Patient rights? If anything, they should offer him support. Chris has attempted to pay taxes but the city of Berkeley wont accept his application, yet in the meantime, The city complains to itself of not having enough money to satisfy its own goals and community needs. So what’s really going on?
    I have spent some time looking into the matter and the more I seek the more i find….. This story, wont be thoroughly investigated or told objectively by Francis Dinkiespiel. I mean she’s helping sell an online newspaper with a comment section. Its like she’s creating a hate forum around this subject by leaving out copious amounts of information that not only contradicts what she is writing but actually proves the city is not only taking the wrong position against 40 Acres but are actually hurting and promoting fear within the medical marijuana community. Berkeley used to be on the forefront of the Medical marijuana movement, however as soon as they focused on helping deny medical marijuana patients like Chris, their rights Berkeley has taken the backseat to the worldwide medical marijuana movement .
    Why is this city “inspection” termed a “Raid”? and was this raid an act of retaliation for Smith filing a lawsuit against the city for lack of due process?
    If you search city records you will find that Chris requested an inspection of these very same units late last year(2012) and was given a scheduled appointment, however, code enforcement never showed up. As well, the city took no recourse of action to grant A Berkeley resident their right to an inspection.
    So again, was this a city “inspection” or a “raid”? because Francis Dinkielspiel doesn’t seem to know the difference,
    I dont really know the full story and I hope Smith will come out and express his concerns so that we, the community, can fully understand the “full story” and make a proper judgment of things. However, the more I dig up, the more it stinks. The Berkeley City Council should be held accountable for their actions if they are not standing up for patients rights in Berkeley because there are just too many discrepancies and inconsistencies on the citys part that show they are not playing a fair game.
    As patients rights in Berkeley are getting trampled the only ones who seem to not care, but prosper, are the competing dispensaries(which raises the issue of the actual number of “legal” dispensaries on record before 2012) and really, it seems like City Council is not into protecting patients rights of Berkeley(or just some them).
    So whats really going on? Because, if you aren”t outraged, you aren”t paying attention.
    Wake up Berkeley City Council!

  • http://berkeleyside.com Frances Dinkelspiel

    I see your point that the term raid is loaded and will change it in the story. I used it because of the presence of the police (there were numerous police cars parked outside and police officers accompanied the city inspectors inside.)

  • guest

    “The only people who end up getting hurt are the patients who use medical marijuana.”

    AND THE COMMUNITY WHERE THESE PUNKS ARE FIGHTING + SELLING DRUGS ON THE STREET

  • KM in Berkeley

    I have driven down San Pablo and can smell the marijuana from this place on many occasions. It should not be operating there; the odor is very strong and there is a security guard standing in front. I sm not against dispensaries if operated professionally but this business is not professional. It’s like a crack house for weed.

  • bgal4

    the security guard is just one of their staffers with a stinking badge, no background check or training, likely a hazard if the shop was to be robbed at gunpoint.

  • lunice

    Ya but it sounds like the landlord was doin some hella shady stuff against them too. And why’s 40 Acres not allowed to operate but all these others are? I think this onion has lots of layers.

  • Just Sayin

    Exactly. Price of marijuana in dispensaries has not dropped significantly in the last 10 years.

  • Name

    the others aren’t breaking the law. duh.

  • Just Sayin’

    When the Police have to break down your door to get inside, it’s a raid.

  • Guest

    I live around the corner from the “collective” and pass it frequently. To call the gentleman at the door a “security guard” is a stretch. Usually there is a guy sitting on a chair at the doorway, possibly checking ID’s or something. He is not in a security uniform. Often, he is talking with others who are loitering around the street. It is not unusual to see people hanging around on adjacent street corners, just lingering there…

    Pulling the race card was ridiculous and so predictable. However, if one looks to the other legit pot clubs in town and compares this thinly veiled drug dealing operation, it’s very easy to see the differences in how they conduct business.

    The post below about the weed being moldy and smelling disgusting also makes me concerned if it’s heavily pesticided or treated. Smoking mold certainly can’t be good for one’s health.

  • Patient6832

    As a patient who has been visiting Berkeley dispensaries for 10 years, including one visit to “40 Acres”, I have to say that there is a big difference in the atmosphere, professionalism, and quality of medicine there vs. sanctioned dispensaries. They claim that they are here to help the underprivelidged by providing affordable access, as opposed to the big greedy dispensaries, but on my visit the medicine was low quality, overpriced and the place had a grungy, hash-den vibe.

    40 Acres real problem is that they have chosen to break all the rules: smoking on site, late opening hours, calling themselves a “collective” but operating as a dispensary, and too many reports of late night parties serving alcohol. If they truly want the coveted “4th dispensary permit”, they shouldn’t be flaunting the fact that they aren’t conforming to the city’s rules. Had they presented a plan to open a dispensary that is minority-run, and specifically geared towards serving Berkeley’s minority communities, they would be the city’s darlings. Instead, they just opened up shop in some run-down, illegally converted apartments, proving that making fast money was more important than actually building a community based business that helps those in need.

    The race angle is embarrassing. Being “not white” is a poor excuse for breaking the law. On my visits to dispensaries, Berkeley & elsewhere, I have noticed what an amazing cross-section of people are served there: every age, race, & economic status from wealthy to homeless. I haven’t seen any discrimination against patients for the color of their skin, size of their wallet, or anything else. 40 Acres should be ashamed of themselves for squandering an opportunity to create something great.

  • Hanratty

    If they have a “guard card” they’ve been through a livescan fingerprinting and standard law enforcement background check. Felons cannot legally be security guards at this time.

  • T-Rex

    You Know alot for something that was secret nearly a year ago. You obviously have an invested agenda.

  • http://www.caviarcommunism.com/ West Bezerkeley

    Sounds like a possible news topic for Berkeleyside. Why the City Manager’s Office isn’t enforcing code until after something becomes a criminal problem.

    You aptly mentioned 3PG, which I forgot about. Then there’s the issue of 40 Acres. On my block there was an apt with numerous code violations that was turned into a drug house and brothel. None were dealt with until the outrage reached a volume so high the city couldn’t sweep it under the rug. (I’m sure there are countless other examples — bside can reach out to you and me for places to start poking around).

    Something is rotten in the state of Denmark….or in this case, Berkeley

  • Guest

    http://www.bsis.ca.gov/forms_pubs/guard_fact.shtml

    the new MM dispensary rule include the requirement the security guards be registered with the state dept.

  • Father Thyme

    An illegal marijuana collective going into Federal court seeking relief?
    The legal doctrine of ‘clean hands’ suggest that is a bad idea.

  • Truth Sayer

    For the government crime bosses or both? As, there is no such thing as a legal marijuana collective within the federal system. As it is illegal. Simply put, if you cite legal doctrine of “clean hands” when referencing the Federal courts, you can not exclude the city and state, as they are the ones who set up the collectives which are illegal under Federal law. One do not have to be an attorney to know that in this instance, Federal law trumps state law.

  • Truth Sayer

    All of these facilities are drug dealers. All are federally illegal. I see many comments which writers are ignoring the complete truth. Is it the Berkely Way to be deceptive with truth?

  • Truth Sayer

    True, Berkely laws are a joke.

  • Patients first

    Everyone, including the city must reapect due process here, this will be decided in the courts. Raids, because that is what all of us would call it ifnit were our home or business, is embarrassingly outside of the law. Let the courts sort our this mess without damning this man or his business. Pot will soon be openly legal soon, the city is living in theb past.

    Those who use the term drug, as if we don’t have drug stores all over town, need to recognize that many of your friends, coworkers, family, congregation, use this medicine. Many need it. Look a sick person in the eye and tell them how bad ‘drugs’ are.

  • BigMama

    I’m a Regular at 40 Acres, and I’ve seen none of the Negative things that I’ve seen Posted. I’m Disabled and there are Days that I can’t walk that well, not one time have I been disrespected or treated Bad in anyway. And about the Club being all Black is a Lie, most of the Time there are more Racists then Blacks when I’m there, so were is all this Ghettoness. It’s all Lies, they are so helpful to me, even with the question pertaining to my needs and requests. Stop the Lies and Hate

  • http://berkeleyside.com Tracey Taylor

    Thanks pothead. Have made those fixes, although technically “can not” and “cannot” are interchangeable. But we like to keep our readers happy!