Berkeley dismisses official who made ‘insensitive’ racial comment during cannabis collective appeal

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 city of Berkeley on Thursday dismissed the official who was overseeing the nuisance abatement appeal by the Forty Acres medical cannabis collective after he made “insensitive” remarks concerning race during the hearing.

It is the fifth hearing officer to be assigned, and then withdrawn, from the case. Berkeley officials are now uncertain how to proceed.

R. Craig Scott, a former mayor and city councilman from Laguna Hills in Orange County, questioned the race of Chris Smith, the owner of the Forty Acres Medical Marijuana Growers’ Collective. While Smith’s former partner, Toya Groves, was on the witness stand, Scott said he did not think Smith was African-American. Smith’s attorneys have been arguing that Berkeley is persecuting Smith because he is black.

“He doesn’t look black to me, sir, and didn’t from the moment he walked into this room,” Scott said in the hearing.” In a comment directed at Smith’s attorney, Whitney Leigh, Scott said: “You sir look black. I employ…I employ black people. I know what black people look like. Mr. Smith does not look black to me, so I hope you and the witness are enjoying this moment, but it is a serious inquiry for me…If he’s not black, you’re telling me he is.”

Read a partial transcript of Scott’s remarks

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

On Thursday morning, Leigh sent an email to Scott, Zach Cowan, the city attorney, and Laura McKinney, an assistant city attorney, asking that Scott recuse himself. Leigh also asked that Berkeley dismiss him and stated that he intended to ask an Alameda County Superior Court judge to intervene.

Scott was dismissed later that day.

“The City did not agree that the hearing officer was biased, but the City did agree that the comments were insensitive and could be perceived as demonstrating bias,” Matthai Chakko, a City of Berkeley spokesman, said in an email. “For that reason the City dismissed the hearing officer because we want the validity of all decisions related to City actions to be beyond question.  Next steps in terms of the abatement action are being considered.”

Smith’s attorneys had previously asked Scott to recuse himself because he had voted against medical cannabis collectives when he was an official of Laguna Hills. They also said they thought Scott had made up his mind about the case before hearing any evidence. Scott refused to recuse himself.

Smith’s attorneys have not only been fighting Berkeley’s ruling that the Forty Acres collective at 1820-1828 San Pablo Ave. is a public nuisance and should close, but have also been arguing that the case should be heard publicly before the Zoning Adjustments Board. Leigh said that two other cases involving cannabis collectives were considered by ZAB and then, on appeal, by the City Council. Smith wants the same treatment so the public can hear his explanation about why he is operating, said Leigh.

Berkeley has said under zoning regulations it has the right to conduct a closed hearing on the matter. An Alameda County judge refused on June 13 to intervene.

The public nuisance abatement appeal started on Tuesday June 17 and was supposed to go on for three days.

Read Berkeleyside’s coverage of Forty Acres

Leigh said he believes the city will now turn the matter over to ZAB. Berkeley officials said they are not certain what they will do next.

The City of Berkeley declared Forty Acres a public nuisance in Oct. 2013 because it was acting as an unauthorized dispensary. Smith appealed the declaration the following month, on 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.

Berkeley had agreed to pay Scott as much as $12,000 to hear the case, according to Smith’s attorneys.

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.

Related:
Berkeley City Council: Let’s add 4th cannabis dispensary (06.18.14)
Berkeley still battling cannabis collective (06.12.14)
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)

Would you like a digest of the day’s Berkeley news in your inbox at the end of your working day? Click here to subscribe to Berkeleyside’s free Daily Briefing.

Print Friendly
Tagged , , , , , , , , , ,
  • a noble goal

    “we want the validity of all decisions related to City actions to be beyond question”

    Huzzah!

  • Just Sayin

    Well, is he?!?!

  • guest

    I’m so glad I don’t live in Orange County. http://quickfacts.census.gov/qfd/states/06/06059.html

  • bgal4

    what a bunch of crap… Chris Smith has written incendiary racially charged letters to city council slandering good folks from south Berkeley in his failed attempt to challenge enforcement action against B-Town Dollar for public nuisance. B-Town was a hot spot for violent crime on Sacramento St.

    Don’t forgot which council members supported 40 Acres for the years leading up to this endless catastrophe: Anderson, Arrequin, Worthington.

  • Hildah

    Who cares what color skin he has. He has violated the law. Throw the bum out, he is a menace.

  • John Burris

    .

    based on the photo, Chris Smith does not appear to be black

    .

  • guest

    “The city of Berkeley on Thursday dismissed the official who was overseeing the nuisance abatement appeal by the Forty Acres medical cannabis collective…”

    “Berkeley had agreed to pay Scott as much as $12,000 to hear the case…”

    I’m confused. Was Scott a contractor, an employee, or something else? If he was a contractor, in what way did that make him an “official”? Please explain his role with the city.

    Thanks.

  • http://berkeleyside.com Frances Dinkelspiel

    I can see how that is confusing. I went into detail on that in previous stories, which are linked to below, Smith’s attorneys did not want a Berkeley city employee to hear the appeal. Berkeley agreed to hire an independent official, called a hearing officer, to oversee the case. Scott negotiated a fee that might reach $12,000.

    I used the word official because I did not want to use the word hearing twice in the first sentence.

  • Amazed by Stupidity

    Berkeley should be ashamed of themselves. From the start 40 acres has been breaking the law and the city knew it. And the farce drags on. Perhaps the next time I’m in Berkeley I’ll apply their laws as I see fit. After all, it worked for Chris Smith.
    Oh, and about that dab bar Mr Smith….

  • batardo

    Judging from the excerpt below (p.137), this battle was pitched on racial terms from the day the enterprise was conceived. Considering it’s a marginal business to begin with this seems very disingenuous; hiding behind the race issue. I appears likely that claiming racial persecution when the inevitable intervention occurred was part of the original business plan.

    Q “.. The name of our collective, 40 Acres medical marijuana
    growers’ collective is taken directly from a historical
    time in history, the 40 Acres and the mule which constantly
    consistently represents the African-Amer ican
    community in a historic piece of time where
    African-Americans were denied — were initially given
    40 Acres and a mule after slavery and then the
    forefathers never gave it to them. So if you have
    knowledge of history and you know 40 Acres, it’s the –”

    Q. “It’s a signal fire to the black community?”

    A. “Exactly, to the African-American community.”

  • The Obama Yardstick

    He certainly looks a lot less black than our President, and he’s only half black to begin with.

  • guest

    But enforcing the law against a self-identified black person running an illegal business is RACIST!

  • Doc

    In a year or so pot will be state regulated like alcohol. This is much adu about nothing.

  • tennesseetuxedo59

    get bent

  • Completely_Serious

    Well, that would be nice if applied across the board. Hahahahahahahahahaha!

  • Don’t be An Ignorant Fool
  • Dude.
  • PC Berkeley

    .

    .

    I don’t know about this “Black” thing

    How “black” to you have to be to be “Black” ?

    It’s probably like opening an Indian Casino…..if you can find a great-great-great-grandfather somewhere in your Tree, ‘presto’, you are now an Indian!

    woo-hoo !

    This guy, somewhere WAY down the line, got some African DNA in him

    so now, when it’s politically or financially advantageous, “hey, I’m Black, and you’ve just insulted me!”

    oy vey

    .

  • guest

    Racism sucks, but the whole “40 acres” trope is transparent bullshit. Still, points for cleverness.

  • Obviously

    Hey, Berkeleyside, wake up, this is not John Burris. Are you still moderating?

  • Maven

    So, are you claiming to be Jewish already?

  • guest

    Really great point.
    If my great-great-great-grandmother is Jewish, I am considered FULLY Jewish.
    What I don’t understand is: why is this guy’s race an issue?

  • guest

    Editors: Please Google this expression.

  • John Freeman

    If my great-great-great-grandmother is Jewish,

    In our society, Jews are socially permitted to self-identify, even when staking claims of anti-semitism. There is a social taboo against ridiculing Jewish identity or attributing to Jews a tendency to lie about anti-semitism to gain advantage. This is as it should be, I hope we all agree.

    Our social norms grant Jewish identity at least that most rudimentary level of respect.

    To the extent Berkeleyside comments represent local values, Black self-identification is inherently suspect and must be verified by non-Blacks, especially in relation to claims of racism. It is common, not taboo, to broadly dismiss claims of racism as lies to gain advantage.

    This ethnically keyed differential in the norms of basic respect is actively policed by those who regularly attack Black identity with accusations of political correctness, pseudo-science, shocking anecdotes and character assassinations, etc.

  • Mistah Cassanova

    For anyone mad at 40 Acres, redirect your attention to alcohol and the DUIs and violence that ensue from purchases made at liquor stores and beverage depots. How many of the people expressing racial hatred on this site own their own businesses? Do not be mad when a neighbor lives the American Dream, start dreaming… Clearly it is time to bring back Wayne Jeronimus!

  • guest

    Criticism of bogus cries of racial persecution does not amount to an expression of racial hatred. On the other hand, the attitude you are expressing reflects an special kind of myopic intolerance that prevents honest public policy debate.

    Creating a nuisance that negatively impacts your community isn’t living the american dream, it’s being obnoxious.

  • guest

    I’ll agree with you that any protected class should be granted the freedom to self-identify and to claim persecution on the basis of belonging to that class. I disagree however that it should be taboo to challenge those claims when they appear to be false or overstated, especially when they may be designed to gain advantage.

    Two sides of the same coin — respect and responsibility.

    I have no opinion about this guy self-identifying as AA, but his business is a nuisance and the claims of racial harassment are crap.

  • guest

    Stop picking on vctims of the Lawfulness Gap..

  • guest

    For anyone mad at 40 Acres, redirect your attention to alcohol and the
    DUIs and violence that ensue from purchases made at liquor stores and
    beverage depots.

    Berkeley residents complain about and try to shut down liquor stores all the time. The liquor store across the street from 40 Acres has been a source of complaints for many, many years but that business is operating legally and there isn’t much that residents or the city can do about it. 40 Acres on the other hand is operating completely outside the law and flagrantly violating local ordinances so there IS something that can be done to get rid of them.

    Too bad our elected and unelected officials are too damn incompetent to shut down an illegal business. If this was a restaurant selling bad beef or something the health board would have them shuttered in a heartbeat but somehow the city can’t seem to figure out how to shut down an illegal pot store. It boggles the mind.

  • Guest

    There is a social taboo against ridiculing Jewish identity or
    attributing to Jews a tendency to lie about anti-semitism to gain
    advantage. This is as it should be, I hope we all agree.

    Why should it be? In past comments you have ridiculed statements about anti-white racism and ridiculed white identity, so why do you believe that white people should not be afforded what you believe is the correct amount of respect for Jews, blacks, etc?

  • Bro.

    The “one drop” rule died a long time ago. If you want to self-identify as a purple unicorn you can go head and do so but everybody is going to think you’re a little off.

  • John Freeman

    I disagree however that it should be taboo to challenge those claims

    What we have seen here in comments is not at all an ethnically even-handed standard for what is counted as a reasonable, respectful, permissible challenge.

    Plucking two examples from this article we have one commenter lampooning Black identity with a “joke” (? it’s hard to tell) about blood purity assessments; another reading a race conspiracy into the choice of the name “40 Acres”.

    These strike me as more analogous to blood libels against Jews than to any “challenge” that ought to be regarded as civil or non-racist.

  • Mistah Cassanova

    40 Acres is another cannabis club pioneering the path for America to pull away from its pharmaceutical dependency. The healthcare system is beyond broken. What is the difference between caine shots at the hospital versus at the tattoo parlour? This is not some new, oh my goodness Elvis gyrates his hips Earth shattering moment here. Buddah had cannabis. The cannabis plants have served a purpose to humanity. A person choosing the natural cannabis vapours and paying tax dollars should not be labeled as a nuisance. Are the fast food joints on San Pablo Avenue doing more harm than the 40 Acres joints?

  • Mistah Cassanova

    Late night Jack N the Box operations pose more of a threat to this community than 40 Acres. I know people who had bullets fly through their windows because of the foolish, malnourished late night meltdowns at Jacks. Do not be silly and point a finger at 40 Acres. If you had the guts to look into the local murders then you would know that 40 Acres is not to blame for the violence in our community. Ban cigars, but do not ban 40 Acres.

  • guest

    In our society, Jews are socially permitted to self-identify

    Actually, Jews are not permitted to self-identify. Orthodox Jews will consider you a Jew only if your maternal ancestry is Jewish or if you are converted by an Orthodox rabbi. (Not any great-great-great grandmother; it must be your mother’s mother’s mother’s mother’s mother.)

    If you don’t meet one of those two standards, and if you say that you self-identify as a Jew, an orthodox Jew will answer “by you, you’re a Jew, but by real Jews, you’re a goy.”

  • Guest3

    Ugh. This place is so far out of code / zoning compliance I laugh at how long it drags on.

  • guest

    The name “40 acres” isn’t race conspiracy?

  • guest

    Skepticism of 40 acres transparently bogus attempt to play on Berkeley guilt is a lot like blood libel. Sure.

  • John Freeman

    I’m sorry but your example proves my point, it doesn’t disprove it.

    Yes, there are disagreements among Jews (in the broader sense) about who is and is not actually and/or authentically Jewish. Jews are socially permitted to self-identify. They are not socially obligated to be unanimous in their judgment on these matters.

    One would not respond to a claim that the city has display anti-semitism by asserting that the person making the complaint doesn’t look Jewish or by wondering aloud what percentage of a person’s blood line makes one Jewish.

    It would in fact be galling given the history of racial purity laws, the application of phrenology to the practice of bigotry, and so forth.

    Yet on Berkeleyside is perfectly acceptable to direct similar comments against a Black person.

  • John Freeman

    The name “40 acres” isn’t race conspiracy?

    Shame on you.

  • John Freeman

    As such “skepticism” has been expressed in these comments, yes, it is.

    Skepticism of 40 acres transparently bogus attempt to play on Berkeley guilt is a lot like blood libel.

  • guest

    “These strike me as more analogous to blood libels against Jews”

    This is a grotesquely false statement.

    The blood libel was used as a reason for killing Jews, based on the claim that they murdered Christian children. No one here has said anything remotely analogous to that.

    There must be some analogy to Godwin’s law that applies to your post.

  • http://berkeleyside.com Frances Dinkelspiel

    The comments are veering wildly off topic. This comment thread is closed