Berkeley still battling Forty Acres cannabis collective

Berkeley officials contend that Forty Acres operatied an illegal cannabis operation on the top floor of this building at 1820-1828 San Pablo Avenue. Photo: Google Street View

Berkeley officials contend that Forty Acres operated an illegal cannabis operation on the top floor of this building at 1820-1828 San Pablo Ave. Photo: Google Street View

The lawyers for Chris Smith, the owner of Forty Acres Medical Marijuana Grower’s Collective, will ask an Alameda County judge Friday to force the city of Berkeley to hold a public hearing on Smith’s appeal of the declaration that his collective is a public nuisance.

Berkeley officials have scheduled a closed-door hearing, with no press or public allowed, for June 17 on the appeal and have hired an outside administrator to rule on the case — at a cost of as much as $12,000.

Smith wants his appeal to be heard, instead, by the city’s Zoning Adjustments Board (ZAB), where he and others can talk openly about operations of the collective, said Lee Hepner, Smith’s attorney. When the city declared medical cannabis collective Perfect Plants Patients Group, or 3PG, to be a public nuisance, both the zoning board and the Berkeley City Council heard the matter, said Hepner. Forty Acres wants that opportunity as well, and suspects Berkeley has political reasons for choosing a closed-door hearing.

“We believe it is because they don’t want a public airing of the city attorney’s and city manager’s costly persecution of Mr. Smith (spanning over three years) brought before the City Council and ZAB, who have a level of expertise on zoning and use issues and can grant Mr. Smith various additional relief to which he is entitled,” said Hepner.

Hepner will ask the judge on Friday for an order to delay the closed hearing.

But Berkeley officials say there is no similarity between the public nuisance declarations of 3PG and Forty Acres, which is why they are being handled differently. The 3PG matter was a zoning issue, according to City Attorney Zach Cowan. It was a cannabis collective operating in a commercial district, which is not allowed under zoning laws. (Collectives can only operate in residential areas.) That is why the zoning board heard the matter.

Forty Acres, in contrast, was declared a public nuisance under the city’s laws governing medical marijuana. The city believes Forty Acres was operating as a dispensary when it didn’t have a permit. City laws permit only three dispensaries within city limits. Forty Acres does not hold one of those permits, said Cowan.

So the appeal is being treated much like a parking ticket, said Cowan.

“The City has a number of enforcement mechanisms at its disposal, and it is within the City’s discretion to choose the one it believes is most appropriate,” Cowan wrote in an email. “The City is required to provide due process and is doing so. In this case, there is no zoning issue presented, so there is no reason that this case should be heard by the ZAB.”

Cowan also said Smith and his attorneys think they could use a zoning board hearing like a court hearing, which is not the case.

“They’ve been asserting at every opportunity that they are entitled to due process,” said Cowan. “That they can pick the judge, call witnesses. They want to have a trial. That is totally inconsistent with having a public hearing before ZAB.”

Hepner said Smith wants his appeal heard before the zoning board because the panel has the right to grant variances for zoning issues. He said he would like Forty Acres to get one so it can remain and operate in place.

The city of Berkeley declared Forty Acres at 1820 San Pablo Ave. a public nuisance in October 2013 because it was acting as an unauthorized dispensary. Smith appealed the declaration Nov. 5. His attorneys argued that the inspection warrant the city obtained to examine the premises was based on spurious information and that, contrary to the city’s claims, Smith lived on the premises.

Smith’s attorneys also asked in the Nov. 5 letter that no one from the city manager’s office be allowed to preside over the appeal because they could not be impartial. They asked Berkeley to appoint an independent arbiter.

The city agreed to hire an arbiter, but not to Smith’s attorneys’ demands that they be allowed to consult on who was selected. The first three arbiters hired by Berkeley dropped out for various reasons, including because of protestations from Smith’s attorneys, according to court documents. Now, R. Craig Scott is set to consider the appeal Tuesday, June 17.  The hearing should take three days, said Cowan.

In addition to concerns about the closed-door nature of the hearing, Smith’s attorney asked Scott to recuse himself as arbiter. He declined. Hepner said Scott is not impartial because he voted to shut down medical cannabis collectives when he was the mayor of Laguna Hills in Orange County. The city agreed to pay him up to $12,000, said Hepner.

In papers presented to the court, Berkeley contends that Smith and his attorneys have consistently stalled attempts to set a date to hear the appeal so Smith could earn more money from the sale of medical cannabis.

“Smith has doggedly stalled it in order to continue to operate and, thereby, continue to profit from his illegal enterprise,” read the court papers.

Smith’s attorneys have contended — since October — that Smith no longer operates a medical cannabis operation. He has opened Chris Smith House of Compassion, or CSHC, which is an advocacy organization and does not sell cannabis. However, CHSC is listed on WeedMaps.com as a place to get medical marijuana.

Related:
Berkeley orders Forty Acres to stop cannabis operations (10.29.13)
Berkeley forcibly enters Forty Acres Cannabis Collective (10.09.13)
Cannabis collective 3PG closes its Berkeley operation (11.29.12)
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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  • guest

    40 Acres is acting as a dispensary, not a collective, as evidenced by the fact that they list themselves as a dispensary on popular medical marijuana store review sites.

    CSHC (CSCC / House of Compassion)
    Medical Dispensaries / Berkeley
    https://weedmaps.com/dispensaries/california/berkeley/cscc

    It is nothing short of shocking that the city of Berkeley’s government is so mind-blowingly toothless and incompetent that it takes more than three years for them to shut down an illegal drug den.

  • Kraken

    ‘Illegal drug den’?
    And yet not one person killed, robbed, or overdosed because of this harmless plant.

    [This comment has been moderated.]

  • guest

    The idea that no one has ever been killed or robbed because of marijuana is laughably ludicrous.

    http://www.sfexaminer.com/sanfrancisco/murder-charges-unlikely-in-shooting-of-robber-at-marijuana-grow-house/Content?oid=2492702

    Berkeley has plenty of legal marijuana dispensaries and collectives. We don’t need illegal operators like Mr. Smith literally stinking up the neighborhood with fumes pouring out the windows onto the street.

  • John Freeman

    Harmless? I think legalization will give some of these critics strokes.

  • Cheap Taxpayer

    Could the City of Berkeley save itself, and its taxpayers, money and
    time by asking the United States Attorney for the Northern District of
    California and/or the DEA to intervene in this situation? Or shall the
    Berkeley taxpayer continue to pay for this seemingly unending eviction
    process?

  • B2B

    Berkeleyside, this maybe the only picture in existance that they shows the door closed there! I was just down by there today, and they were, as usual open for business doorman having out on the street and everything. The entire street smelled strongly of weed.

  • Curious

    In what way do you think that this ad hominem attack adds to the discussion?

  • guest

    Open again today, guard at the door, customers coming in and out, stink of weed filling the sidewalk.

  • جاك الحشايشي عبد المميت

    What a noble and important cause for the city of Berkeley, AL to take up. Again, Berkeley proves itself to be a disingenuous ‘progressive’ entity that hand picks the issues on which it desires to be progressive. On medical marijuana, it is downright fascist. California, uber alles.

  • person

    ive got nothing against weed, .. ive smoked more joints in my time than youve had hot dinners. im not a big fan of the berkeley city government either,… full of politicans … eeeew ! that being said, in this case im in favour of getting chris smith out. hes either an illegal drug pusher or a cynical person profiteering off the misery of others .. illegaly. he has dragged the eviction process out for years because every day he stays open translates into thousands of tax free dollars, in cash, going into his pocket. he is a weasel capable and willing to use any and all tricks in and out of the book to stay open lining his blingy pockets. .. enough allready.

  • Guest

    >On medical marijuana, it is downright fascist.

    You clearly do not understand what the word “fascist” means.

  • guest

    Just leave ‘em alone, the most harm that they’re doing to the city is competing with BPG. People should be outraged that their money was wasted on this.

  • toya

    Its funny when white or rich people exercise their legal rights they are hailed as activists but when poor or people of color do so they are deemed criminal ! Chris Smith is a lifelong resident of Berkeley, who attended all 3 Berkeley Unified Schools! He is father of 4, one of which is disabled, a son of a mother who recently passed away of cancer (while the city has unjustly attacked) and the son of a civil rights pioneer and the first organic farming movement in Berkeley. All he requests is justice and his right to provide medicine to his community ( which is comprised of black, white, brown, gay straight, rich and poor). HIS COLLECTIVE WAS IN EXISTENCE BEFORE MEASURE T WHICH WAS ENACTED IN 2011 WHICH RESTRICTS COLLECTIVES TO RESIDENTIALS ZONES! He resided at the San Pablo Ave apartment for 20 years prior and began his collective in 2009! WHY AREN’T YOU PEOPLE READING THE LAWS CORRECTLY. HE ONLY REQUESTS TO BE GRANDFATHERED IN AS IS USUALLY DONE WITH ESTABLISHMENTS WHEN LAWS ARE CREATED AFTER THEIR CONCEPTION. This is a man who is truly compassionate as he gave away 500 turkeys to poor families on thanksgiving, holds events for at risk youth (let me add that there is no medicine present! Now you are requesting DEA! You need to tell the city to stop spending your tax money, to attack this man. In fact, the costs associated with the dispelling of these collectives is in direct conflict with Berkeley’s Medical Marijuana Laws. Chris Smith is a truly compassionate PERSON, BERKELEY MADE! YOU, THIS PAPER, AND THIS CITY HAVE CRIMINALIZED HIM. LET ME ALSO REMIND YOU THAT THE CITY IS ALSO USING HIS TAX MONEY TO ATTACK HIM AS WELL. BERKELEY IS SUPPOSED TO A CITY OF PEACE AND LOVE AND LIBERALISM AND PROGRESSIVE MOVEMENTS, HOWEVER ALL THAT EMANATES IS HATE AND CONSERVATIVE EVIL WHICH SEEMS TO BE PERPETUATED BY THIS ONLINE PAPER. APPROPRIATLY TITLED BERKELEYSIDE because obviously it is the voice of a SIDE of Berkeley that is too ashamed to reveal themselves.

    The City has lied when they say Chris Smith is operating a Dispensary! He never wanted a Dispensary, he wanted to organize under the honored Berkeley idea of Collective Organizing. Forty Acres organized under state law and attorney general guidelines in 2009. Collectives were not restricted to residential zones until 2011! Get it straight and stop the hate!

    READ THE LAW CITY OF BERKELEY HEALTH AND SAFETY CODE 12:24: Reduce the current expenditure of public funds for senseless enforcement of marijuana laws; available funds should be used for needed community services, not harassment;

  • cj

    Its funny when white or rich people exercise their legal rights they are hailed as activists but when poor or people of color do so they are deemed criminal ! Chris Smith is a lifelong resident of Berkeley, who attended all 3 Berkeley Unified Schools! He is father of 4, one of which is disabled, a son of a mother who recently passed away of cancer (while the city has unjustly attacked) and the son of a civil rights pioneer and the first organic farming movement in Berkeley. All he requests is justice and his right to provide medicine to his community ( which is comprised of black, white, brown, gay straight, rich and poor). HIS COLLECTIVE WAS IN EXISTENCE BEFORE MEASURE T WHICH WAS ENACTED IN 2011 WHICH RESTRICTS COLLECTIVES TO RESIDENTIALS ZONES! He resided at the San Pablo Ave apartment for 20 years prior and began his collective in 2009! WHY AREN’T YOU PEOPLE READING THE LAWS CORRECTLY. HE ONLY REQUESTS TO BE GRANDFATHERED IN AS IS USUALLY DONE WITH ESTABLISHMENTS WHEN LAWS ARE CREATED AFTER THEIR CONCEPTION. This is a man who is truly compassionate as he gave away 500 turkeys to poor families on thanksgiving, holds events for at risk youth (let me add that there is no medicine present! Now you are requesting DEA! You need to tell the city to stop spending your tax money, to attack this man. In fact, the costs associated with the dispelling of these collectives is in direct conflict with Berkeley’s Medical Marijuana Laws. Chris Smith is a truly compassionate PERSON, BERKELEY MADE! YOU, THIS PAPER, AND THIS CITY HAVE CRIMINALIZED HIM. LET ME ALSO REMIND YOU THAT THE CITY IS ALSO USING HIS TAX MONEY TO ATTACK HIM AS WELL. BERKELEY IS SUPPOSED TO A CITY OF PEACE AND LOVE AND LIBERALISM AND PROGRESSIVE MOVEMENTS, HOWEVER ALL THAT EMANATES IS HATE AND CONSERVATIVE EVIL WHICH SEEMS TO BE PERPETUATED BY THIS ONLINE PAPER. APPROPRIATLY TITLED BERKELEYSIDE because obviously it is the voice of a SIDE of Berkeley that is too ashamed to reveal themselves.

    The City has lied when they say Chris Smith is operating a Dispensary! He never wanted a Dispensary, he wanted to organize under the honored Berkeley idea of Collective Organizing. Forty Acres organized under state law and attorney general guidelines in 2009. Collectives were not restricted to residential zones until 2011! Get it straight and stop the hate!

    READ THE LAW CITY OF BERKELEY HEALTH AND SAFETY CODE 12:24: Reduce the current expenditure of public funds for senseless enforcement of marijuana laws; available funds should be used for needed community services, not harassment;

  • toya

    “Collectives can pool their resources as they see fit”. It is the law BMC 12:26! All types of Medical Marijuana Organizations are on Weedmaps: collectives, coops, dispensaries, delivery services! Be Truthful and tell the complete story please

  • guest

    few people in Berkeley seem to…

  • guest

    >THIS PAPER, AND THIS CITY HAVE CRIMINALIZED HIM.

    Chris Smith is the only one who has criminalized himself, but running an illegal pot dispensary in an unapproved space and lying to officials about what he’s doing.

  • guest

    Getting Chris Smith’s illegal business out of the neighborhood WOULD be a service to the community.

  • guest

    Nobody lives in the property he is currently using, and he is operating as a dispensary not as a collective.