The exterior of Perfect Plants Patients Group 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 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

Berkeley Patients Group finds new home on San Pablo (08.09.12]
Berkeley orders two cannabis collectives to shut down
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]

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Frances Dinkelspiel, Berkeleyside and CItyside co-founder, is a journalist and author. Her first book, Towers of Gold: How One Jewish Immigrant Named Isaias Hellman Created California, published in November...