Dozens of people crowded into City Council chambers Jan. 20 to speak in favor of letting Forty Acres continue operations. Photo: Emilie Raguso

Even though more than 40 people testified about the importance of the Forty Acres Medical Marijuana Growers Collective to the black community, the Berkeley City Council voted 7-2 Tuesday night to declare it a public nuisance.

But the decision, which came almost four years after Berkeley officials first told its co-founder, Chris Smith, that his cannabis collective was operating illegally, may not be the last word on the operation. Lee Hepner, Smith’s attorney, said before the meeting that they would almost certainly challenge the action in court. Any legal challenge would join the three other lawsuits that Smith currently has pending against Berkeley and a number of employees.

Read more about medical marijuana issues in Berkeley.

Another possibility is for Smith to apply for the permit to open a fourth dispensary in the city. Applicants have until March 20 to declare they are interested.

City council members Kriss Worthington and Max Anderson voted against the city staff recommendation to declare Forty Acres a public nuisance. Worthington’s suggestion to table the motion for 60 days to work out a compromise was not accepted by the council.

The story of Forty Acres is a long and complex one. Smith moved into the second floor of 1820-1828 San Pablo Ave. in 1998. Unbeknownst to him and other tenants, the building was not zoned for residential use. It is in a commercial district and the last approved use was a dance studio on the second floor in 1972.

Smith and Toya Groves started Forty Acres in 2009, in part to create a cannabis collective that was welcoming to African Americans. Groves had started using medical cannabis that year after her right arm was seriously damaged when a drunk driver struck her car. Groves had visited the three cannabis dispensaries in Berkeley, but found they were unable, or unwilling, to help her address some of her issues, she said.

Toya Groves and Chris Smith listen at the Jan. 20 city council meeting. Photo: Emilie Raguso

The law governing cannabis collectives in Berkeley at that time, Measure JJ, did not do a good job distinguishing the difference between dispensaries and collectives. It only stated that cannabis collectives be “incidental to residential use.” It also only allowed three dispensaries — large commercial operations that sold paraphernalia, offered massages and therapy as well as selling cannabis — in the city.

Berkeley residents passed measures S and T in November 2010. Those measures established a tax on cannabis. They allowed the creation of a fourth permitted dispensary. The law also said that cannabis collectives could only operate in residential zones, not commercial districts. They still had to be incidental to residential use.

By 2011, Forty Acres was flourishing. It had about 7,000 patients. It not only sold medical cannabis on site, but paraphernalia. It advertised in the East Bay Express, set up booths at cannabis fairs, and had a job development program aimed at bringing a new generation of African Americans into the lucrative cannabis industry. Forty Acres was also open later each night than the permitted dispensaries. It closed at 10 p.m. on weeknights and midnight on weekends, even though the dispensaries had to close by 9 p.m. every night.

Forty Acres cannabis collective is on the second floor of 1820-1828 San Pablo Ave. Photo: Frances Dinkelspiel

To city officials, the scope of Forty Acres’ business operations made it look more like a dispensary than a cannabis collective, which was assumed to be a small group of people banding together to get cannabis. In February 2011, Berkeley sent a letter to Groves and Smith informing them that they were in violation of city zoning codes. They were operating a collective in a commercial zone, which was illegal, city officials said.

The scope of Forty Acres’ business had also drawn the ire of the operators of the three dispensaries. They said Forty Acres was not paying city taxes and was flouting the laws the dispensaries had to obey. (Smith eventually started paying taxes to the state and has repeatedly tried to pay taxes to Berkeley. The city has turned down his offer because Forty Acres does not have an operating permit.)

Smith and Groves said Forty Acres was being singled out because African Americans ran it and the industry was controlled by whites.

Berkeley sent Forty Acres a cease and desist order in 2012 and has spent the intervening three years trying to evict the collective from its space. Berkeley also told the owner of the San Pablo building that he was violating zoning laws by allowing residential units on the second floor and threatened to fine him.

The owner, Clarence Soe, took Smith to court to evict him. An Alameda County jury decided that Smith’s Forty Acres was a public nuisance. After the sheriff came to evict Smith from his apartments on the second floor, he moved into several units recently vacated by other tenants. When Soe went back to court to forcibly evict Smith from those units, Smith told the court he had an informal verbal agreement with Soe to take over any vacant units. The court agreed with that, and allowed Smith to remain. Soe has filed another lawsuit to evict Smith again.

After that, Smith filed a lawsuit against Soe for unfair business practices, three others against Berkeley, including one for violating his constitutional rights.  The suits had been stayed until the public nuisance matter made its way through the City Council, said Hepner. Berkeley also conducted a surprise inspection of Forty Acres, declared it a public nuisance in October 2013, held a closed door hearing to try to shut it down (which the city abandoned after the administrative hearing judge made racist remarks) and held a hearing at the Zoning Adjustments Board, which determined in November 2014 that it was a public nuisance.

Many Forty Acres supporters attended Tuesday’s council meeting. Photo: Emilie Raguso
Many Forty Acres supporters attended Tuesday’s council meeting. Photo: Emilie Raguso

The testimony of patients and employees of Forty Acres clearly resonated with some council members. Anderson, who once appointed Groves to the city’s Medical Cannabis Commission, urged Berkeley to come to a compromise with the collective. Otherwise many people would be put out of work. He also said he thought Forty Acres should have been grandfathered in.

“We’re trying to seek justice here, not some punitive medieval forcing them to comply with what norms are,” he said.

Worthington said Forty Acres sounded like “a phenomenal, amazing place.”

But a number of neighbors also appeared before council to discuss what they consider the negative impacts of the collective on the neighborhood. There are groups of people going in and out, talking loudly, parking in neighbors’ driveways and littering, they said. City Councilwoman Linda Maio said she had received letters and emails from neighbors who were too intimidated to testify publicly about their concerns.

She said that, although Groves and Smith might be good people, that was not this issue.

“It looks like a dispensary,” said Maio. “Clearly, the way it is functioning, it is a dispensary. It’s about where they are located now, how it’s operating now. To me it seems illegal. It’s important for us to support the purpose of medical marijuana and at the same time to support our laws.”

Berkeley to decide if cannabis collective must go (1.20.15)
Zoning Board says cannabis collective is a public nuisance (11.13.14)
Official who made insensitive racial remarks dismissed (06.20.14)
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)

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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...