Forty Acres Ashby Avenue. Photo: Frances Dinkelspiel
Forty Acres is operating from 1510 Ashby Ave., which the city says is an illegal use. Photo: Frances Dinkelspiel

Three months after the city council ordered the Forty Acres Medical Marijuana Growers Collective to shut its doors at 1820-1828 San Pablo Ave. because it was a public nuisance, the medical marijuana organization has relocated to 1510 Ashby Ave. – and is once again operating illegally, according to city officials.

Chris Smith, the co-founder of Forty Acres, opened up the Chris Smith House of Compassion/Forty Acres (he uses both names) on April 11 at his home on Ashby Avenue near Sacramento Street. Berkeley ordered Smith to shut operations on April 16.

City officials told Smith that 1510 Ashby Ave. straddles a residential and commercial zone, with most of the property being inside a commercial zone. His new location does not fit city zoning guidelines for a number of reasons:

  • If Forty Acres is a collective, it cannot operate in a commercial or manufacturing district, according to Berkeley zoning laws. In addition, collectives must have not more than five visitors a day and be “incidental to residential use.” Berkeley officials have observed many people going in and out of 1510 Ashby Ave., some as late at 10:30 p.m. Collectives cannot have visitors after 9 p.m.
  • Dispensaries can operate in commercial zones, but Forty Acres is not licensed to be a dispensary, according to city officials. Three dispensaries are currently licensed. Forty Acres has applied for a permit to operate a fourth dispensary, but officials are in the process of vetting applications. So operating at 1510 Ashby is not permitted, according to Berkeley. In addition, dispensaries are not allowed in residential zones. (Berkeley officials have long regarded Forty Acres as a dispensary because of its size and operating hours, which extend to midnight on Saturday night and 10 p.m. other nights).

Forty Acres did not move from its long-time home at 1801 San Pablo Ave. after the city council ordered it to on Jan. 20, 2015. Smith and his attorneys fought the eviction in court, but lost. Smith has filed an appeal, according to Whitney Leigh, one of his lawyers.

Toya Groves and Chris Smith listen at the Jan. 20 city council meeting. Photo: Emilie Raguso
Toya Groves and Chris Smith, co-founders of Forty Acres, listen at a Jan. 20 city council meeting. Photo: Emilie Raguso

On April 20, Smith and four other Berkeley residents filed a new lawsuit against the city and the Medical Cannabis Commission alleging that the three dispensaries in Berkeley were operating illegally. They are Berkeley Patients Group, Berkeley Patients Care Collective, and Cannabis Buyers Club of Berkeley. The lawsuit does not name the dispensaries as plaintiffs. According to the lawsuit:

  • None of the three dispensaries have filed for non-profit status. State law requires that medical cannabis operation not be operated for profit. “The existing three dispensaries are not operating on a Not-For-Profit basis in violation of Berkeley Municipal Code and controlling state law,” reads the lawsuit.
  • Berkeley never established any regulations to or held any hearings to determine that the three dispensaries should have gotten permits to operate. Thus they are not “authorized” under any legal process, according to the lawsuit.
  • The existing dispensaries are exploiting Berkeley residents because they are selling medical cannabis at an inflated price. The lawsuit contends that Berkeley Patients Group has in the past made a 300 percent profit on medical cannabis.

Zach Cowan, the city attorney, said Berkeley’s 2004 ordinance allowing medical cannabis operations only says the dispensaries have to operate in a not-for-profit manner. The ordinance does not set out what legal form the dispensaries may adopt. The lawsuit assumes that the three dispensaries must have a particular, mandated organization.

Cowan said he believes the existing dispensaries are lawful.

“I assume they are complying,” said Cowan. “If they don’t, they will have a problem.”

City of Berkeley notice concerning 1510 Ashby Ave.
Newest Forty Acres lawsuit against Berkeley

Berkeley tells cannabis collective to shut down (01.22.15)
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...