Local medical marijuana collective alleges discrimination in suit against city of Berkeley

Alex Turney/Staff

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Christopher Smith, co-founder of 40 Acres Medical Marijuana Growers’ Collective, filed a lawsuit Sept. 24 against the city of Berkeley and some of its departments, alleging the city discriminated against the collective.

The lawsuit, filed at Alameda County Superior Court, alleges the city of Berkeley, the city’s Medical Cannabis Commission and a number of other departments and officials denied Smith the permits needed to ensure 40 Acres’ continued legality without due process.

The lawsuit also alleges the defendants violated the equal protection clause of the 14th Amendment to the U.S. Constitution by discriminating against Smith in favor of medical marijuana organizations run by white people.

“We think the lawsuit lacks merit and will defend against it,” said City Attorney Zach Cowan in an email. Cowan declined to comment further due to the pending litigation.

Although 40 Acres was established as a legal collective in 2009, Measure T, which was passed by voters in 2010, set new guidelines for marijuana dispensaries and collectives. Under Measure T, collectives are prohibited from functioning in commercial or manufacturing districts, unlike dispensaries, and are allowed only in residential areas.

Smith originally operated his business in a commercial district at 1820 to 1828 San Pablo Ave. As of January 2012, 40 Acres had closed and moved out of the location, although Smith still resides there. According to the lawsuit, Smith was not aware his work was illegal under the city’s zoning ordinance.

On Tuesday, Berkeley city inspectors and police officers conducted a surprise visit to the building for a code enforcement inspection.

The property had previously been inspected in early September. At the time, Smith did not allow Berkeley Code Enforcement Unit supervisor Gregory Daniel to inspect Units 1 through 3 and 11, which he rents. Supervising building inspector Patrick Emmons, however, found a number of safety violations in Units 4 through 10, which prompted the second inspection this week.

Lee Hepner, Smith’s attorney, said he believes the inspection was a violation of state and local laws, perhaps even the Fourth Amendment against unreasonable search and seizure.

According to a search warrant, Cowan received permission from Alameda County Superior Court to forgo the usual 24-hour notice inspectors are usually required to issue. The court also allowed inspectors to enter by force, if necessary.

Smith’s attorneys noted that 40 Acres would like to become a dispensary, but the Berkeley Medical Cannabis Ordinance limits the city to three dispensaries. A fourth dispensary will be allowed once Berkeley adopts a licensing ordinance.

City spokesperson Matthai Chakko said there are a number of reasons the city has not adopted a licensing ordinance yet.

“City Council processes in general can take a while, and sometimes it’s just a matter of time,” Chakko said.

Contact Tahmina Achekzai at [email protected].