BERKELEY -- An Alameda County Superior Court jury weighed in on the controversy surrounding unlicensed pot distributors by voting last week to close the 40 Acres Medical Marijuana Growers' Collective at 1820 San Pablo Ave.
The collective, which has operated at the location since 2009, came under pressure from the city late last year when city code enforcement served property owner Clarence Soe a notice of violation warning that, under new medical marijuana codes adopted by the city in 2010, operation of such a collective in a commercial zone was illegal.
Faced with the threat of heavy fines, Soe filed a lawsuit to evict 40 Acres against operator Chris Smith with the Alameda County Superior Court in June.
Soe "was perfectly happy if (Smith) wanted to run a pot club there so long as it was in compliance with the laws," said Clifford Fried, Soe's attorney.
The city has three licensed medical marijuana dispensaries, which are allowed to operate in commercial zones. Smaller collectives may cultivate and distribute medical marijuana to members as long as production is "incidental to residential use."
Lately, the city has taken steps toward eliminating pot distributors that don't fit either of these definitions and exist outside the city's laws. At a meeting on Oct. 11, the Berkeley Zoning Adjustment Board passed a resolution recommending the City Council close Perfect Plants Patient's Group, a medical marijuana distributor at 2840-B Sacramento St., for violating city code by operating within 600 feet of a public school.
According to Whitney Leigh, Smith's attorney, 40 Acres had operated lawfully as an unlicensed collective before changes in the city code enacted in 2010 by Measure T, which now restricts collectives to residential areas. But Soe argued that Smith had stopped residing at the property as many as seven years prior, making the cultivation of medical marijuana illegal without a dispensary permit.
To complicate matters further, the city found the residential units on the property owned by Soe also to be in violation of zoning laws, which Soe hadn't previously informed his tenants about, according to Leigh.
"The landlord rented the property out to tenants without telling them that they were in a commercial zone," Leigh said. "Forty Acres is paying the price because the landlord failed to tell 40 Acres about" the zoning.
As a result, Smith has filed a lawsuit against Soe for fraud.
According to Leigh, 40 Acres had an interest in obtaining a permit to operate as a dispensary.
City records show that Smith filed applications in February for permits that would allow him to operate 40 Acres at Soe's property on San Pablo, as well as at another property at 1510 Ashby Ave. Both were denied for zoning reasons.
Measure T allows for the licensing of a fourth dispensary in Berkeley. But the city won't create a process for the approval of such a permit, said Leigh.
"The law's pretty clear that you can't constitutionally withhold a permit," Leigh said. "There's no regulation that (40 Acres has) been unwilling to comply with or meet -- the city's put them in this catch-22."
According to city spokeswoman Mary Kay Clunies-Ross, Berkeley's Medical Cannabis Commission is still developing a set of guidelines for the approval of a permit for the fourth dispensary.
And the commission doesn't seem to be in any hurry to get it done. In response to a letter from Leigh, Gregory Daniel, the city's code enforcement supervisor, rejected the idea that the city could be compelled by its existing laws to adopt additional legislation outlining a licensing scheme, saying the city's code "merely makes the adoption of such a scheme a conditional precedent to allowing additional dispensaries."
In the meantime, Smith said he will continue to look for a new location for 40 Acres, preferably one with wheelchair access. They will also file an appeal, Leigh said.
"We're disappointed with the decision, but it's far from over," he added.