Berkeley Patients Group opened its doors at 2366 San Pablo Avenue in December 2012. Photo: Frances Dinkelspiel
Berkeley Patients Group opened its doors at 2366 San Pablo Avenue in December 2012. Photo: Frances Dinkelspiel

The city of Berkeley filed a claim Wednesday to stop the federal government’s attempts to shut down Berkeley Patients Group, the city’s largest medical cannabis dispensary.

The suit claims that the closure of BPG will materially harm the city because it will mean the loss of hundreds of thousands of dollars in tax revenue. In addition, shuttering BPG, which serves 10,000 patients, will result in the proliferation of unpermitted dispensaries and more illegal street sales of marijuana in Berkeley, according to the claim, which was filed in U.S. District Court.

It will also undermine Berkeley’s efforts to create an orderly and permitted process to control the sale and distribution of medical cannabis in the city.

“The claimed property is vital to the safe and affordable distribution of medical cannabis to patients suffering from chronic and acute pain, life threatening and severe illnesses, diseases and injuries within the city of Berkeley, and to the city of Berkeley’s ability to control and regulate medical cannabis within its community,” reads the suit.

On May 2, U.S. Attorney Melinda Haag filed a forfeiture action against Nahia

U.S. Attorney Melinda Haag. Photo: Department of Justice
U.S. Attorney Melinda Haag. Photo: Department of Justice

Droubi, the owner of 2366 San Pablo Avenue, the site BPG relocated to in the fall of 2012. Haag said BPG was operating illegally because it was within 600 feet of two preschools, Color Me Children on Bancroft Avenue and the Nia House Learning Center on Ninth Street. Haag threatened to seize the property under the Controlled Substances Act.

BPG officials said they were surprised at the letter since state law say cannabis businesses have to be 600 feet from K-12 institutions, but are silent on preschools, according to Sean Luse, BPG’s chief operating officer. After being forced to close its previous dispensary at 2747 San Pablo Avenue because it was too close to schools, BPG scoured the city to find a location that complied with the law, said Luse.

Haag, however, said she warned Droubi before BPG opened its doors that her office did not consider the location legal.

Berkeley officials held a press conference in May to condem Haag’s actions and continue to suggest she would be better off prosecuting more dangerous criminals.

“It is time for the federal government to wake up and stop these asset forfeiture actions,” Mayor Tom Bates said in a press release. “Berkeley Patients Group has complied with the rules and caused no problems in the City.  The federal government should not use its scarce resources to harass local law-abiding businesses.”

Both Berkeley and BPG can fight Haag’s suit against Droubi because the forfeiture law “allows a proces for other parties who have an interest in the property to file a claim,” according to Tamar Todd, an attorney for the Drug Policy Alliance, which filed the lawsuit on Berkeley’s behalf. The organization, which advocates for fighting drug abuse through treatments rather than criminalization, is doing work for Berkeley pro bono. Berkeley residents are not paying for the suit.

This is the second time a city has stepped in to fight the closure of a medical cannabis dispensary. Oakland used a different legal tactic in the forfeiture case against Harborside Health Center, but that was rejected by a U.S. Magistrate in February, said Todd. In that case, Oakland filed a separate lawsuit to try and stop the federal government’s actions rather than joining with Harborside and its landlord, she said. Oakland is appealing that ruling.

See a copy of Berkeley’s lawsuit.

Note: This article has been corrected to say that Berkeley filed a claim to stop the forfeiture action brought by the federal government to shut down BPG. Previously the article stated that Berkeley filed a suit against the government. Berkeley joined those fighting the forfeiture action; it did not file a separate lawsuit.  

Berkeley Patients Group pays fraction of tax bill [06.17.12]
Officials oppose Fed’s suit to shut dispensary [05.18.13]
Berkeley Patients Group finds new home on San Pablo [09.13.12]
Berkeley Patients Group earned $15m in 2009
Sadness surrounds closing of Berkeley Patients Group [05.01.12]
Berkeley’s largest cannabis dispensary to close May 1 
Berkeley cannabis lawsuit reveals bitter infighting [7.18.11]
Berkeley Patients Group owes $6.4 million in back taxes [2.24.11]

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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...