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 as a place to get medical marijuana.

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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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...