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 than 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.”
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.
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.
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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