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Zoning board reviews code violations for local medical cannabis outfit

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Perfect Plants Patient Group is one of several medical marijuana dispensaries in Berkeley.


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Senior Staff Writer

SEPTEMBER 28, 2012

City officials met Thursday night to discuss the fate of the Perfect Plants Patient’s Group, a medical cannabis operation that they say has been operating illegally for months.

According to a Zoning Adjustments Board staff report, the business — also known as 3PG — is operating under multiple code violations, including operating a medical cannabis collective in a commercial zone, operating a cannabis dispensary within 600 feet of a school and using the structure for something other than what it is zoned for.

Part of the city’s concerns stemmed from confusion over whether the business is operating as a collective or a dispensary — a distinction that dictates separate zoning regulations.

City records show the building was last approved to operate as a clothing retail establishment in 2008.

In November, residents began complaining to the city’s Code Enforcement Unit about an “illegal cannabis operation at 2840-B Sacramento Street,” according to city documents. Following the complaints, code enforcement officers were sent to 3PG in December, where they found the dispensary in violation of the Berkeley Municipal Code. Code Enforcement Supervisor Gregory Daniel first notified 3PG and building owner Lian Rui Tan of its alleged violation in a Dec. 8 letter.

“It has come to the City of Berkeley’s attention that you are operating a medical marijuana establishment that is dispensing medical marijuana in a non-residential zoning district,” said Daniel in the letter. “Accordingly, you are required to immediately cease your operation at 2804-B (sic) Sacramento Street.”

After not complying with the Dec. 8 letter, the city continued to send multiple notices to 3PG, according to the city report. Later that month, Daniel sent a citation warning letter to both Eric Thomas — the managing member of 3PG — and Tan instructing them to contact the city’s Code Enforcement Unit to schedule an inspection to verify that the alleged unlawful activities had ceased.

On Jan. 18 — three days before 3PG’s deadline to contact the CEU — Daniel received a letter from the law offices of Steve Whitworth, who was hired to represent 3PG.

“Please be assured that Mr. Thomas and I will do our diligence and immediately move to ameliorate any potential problems with the situation,” said Whitworth in the letter.

Since that letter, the business relationship between 3PG and Whitworth has ended, said Whitworth.

The January letter was also the last time any representatives of 3PG contacted the CEU, according to the report.

More than two months after the January letter, code enforcement issued citations to both Thomas and Tan for $12,150 each. Both have paid $500 so far, according to the report.

City records show that Thomas later tried to contest the citation, but his requests were denied because he failed to file it during the appeal period and did not include an advance deposit of the penalty fee or a deposit hardship notice waiver.

“I have measured the distance to the school,” said Thomas in a request to the city that the citation be reviewed. “It is greater than 600 feet. I cannot move the business to another location that is residential because residential zoning does not approve of this type of activity by people’s homes.”

The city, however, said that if 3PG is operating as a dispensary, it is located approximately 546 feet away from Longfellow Middle School, which is less than the minimum 600-foot distance from schools required under the municipal code. The city code also requires that collectives operate “incidental to residential use,” meaning they cannot operate in commercial or manufacturing districts.

Thomas did not respond to requests for comment.

Other cannabis establishments in the city have run into conflicts with city and federal regulations as well.

After receiving a notice from the U.S. Attorney’s Office warning that its old location was operating too close to a school, a violation of federal law, Berkeley Patients Group shut its doors in May. It is currently constructing a new location several blocks away from its original spot.

Another citation was issued to 40 Acres Medical Marijuana Growers Collective in December along with 3PG for operating in a nonresidential area. The collective is currently still operating at its 1820 San Pablo Ave. location.

At Thursday’s meeting, the board was scheduled to hear testimony regarding 3PG and possibly direct staff to draft a resolution declaring it a nuisance and in violation of the municipal code. That resolution would then be brought up again at the board’s Oct. 11 meeting. From there, it could go to the City Council, which will conduct a hearing within 60 days of the board’s recommendation.

UPDATE Friday, Sept. 28 1:30 p.m.: According to Zoning Adjustments Board member Sara Shumer, the board voted 7 to 0 with one abstention to find 3PG in violation of city code.

“What we declared was that it was in violation of the zoning ordinance,” said Shumer. “The Zoning Adjustments Board does not consider questions of the practices of that institution,” Shumer said, noting that the board only considers violations of zoning code.

“As a collective it would have to be in a residential area,” said Shumer.

Ultimately, however, Shumer said the City Council will make its own decision on whether to declare 3PG a nuisance when the issue is brought before the council.

Contact Mitchell Handler at [email protected]

SEPTEMBER 28, 2012

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