This trend — and it clearly is a trend — will pose unique challenges for community associations, further complicating already complicated and often contentious conflicts over whether and how to restrict smoking (of cigarettes) in common interest ownership communicates. Boards will no longer be dealing only with owners who say they want to smoke and have a “right” to do so; they will also be dealing with owners who say they have a medical need for the drug and a doctor’s prescription allowing them to use it, or with “caretakers” who have a statutory right to grow marijuana for others. And non-smoking (or non-using) residents will not only be complaining about the annoyance and health risks of second-hand smoke; they will also be objecting to the presence of drugs in their communities.
The courts haven’t provided any guidance yet on the legal questions that marijuana battles are likely to produce. But complaints about marijuana will be similar in many respects, although not identical, to complaints about smoking and they can be addressed in the same ways – by enforcing nuisance provisions or amending the association’s bylaws to restrict smoking or to prohibit it entirely, in owners’ units as well as in common areas.
By-law Is Best
The nuisance approach is easiest (boards don’t need owner approval to enact rules or interpret them), but it is also more vulnerable to a legal challenge. Courts tend to give more deference to by-law amendments, because they require the approval of a super majority (usually at least 75 percent) of the owners and are thus viewed as a clear statement by owners of how they want to govern the community in which they live.
A carefully worded amendment banning smoking of any substance anywhere in the community would cover marijuana as well as tobacco. Like cigarette smokers, medical marijuana users will no doubt, object to these bans, but the battle lines will be different.
The primary argument for a smoking ban is that secondhand smoke is not only annoying but potentially harmful to the health of non-smokers. Medical marijuana will turn that argument on its head. Users will insist that their medical condition requires the drug and their inability to use it would be harmful to their health. They will also, almost certainly, insist that communities waive any smoking ban to provide the “reasonable accommodation” the Fair Housing Act requires for residents with a physical or emotional disability.
A Balancing Act
Boards should respond as they would to any fair accommodation request, on a case-by-case basis. Ask for written documentation from a doctor verifying the owner’s need for marijuana, and then seek solutions that balance the competing rights of the owner who “needs” the marijuana and owners who are objecting to it:
- Ask if other equally effective medical remedies are available. If an owner requests a “comfort animal,” a board can argue that a small dog, or cat, or ferret would be a reasonable alternative to the pony the owner has demanded. Similarly, the board might ask if another drug would provide the same relief as marijuana.
- Ask if the resident can ingest the marijuana (as an ingredient in brownies, for example) rather than smoking it.
- Propose remedial actions – plugging vents or installing filters – that would prevent the smoke from migrating to other units.
- Restrict smoking to designated areas outside of the building.
The goal is to find an accommodation that meets the needs of the medical marijuana user without annoying or harming other residents.
Rhode Island’s medical marijuana statute suggests another possible avenue for boards that want to ban the drug. The statute contains a provision specifically prohibiting the otherwise permitted smoking of marijuana “where exposure to smoke significantly affects the health, safety or welfare of children.” Rhode Island communities in which children reside might be able to argue that this provision allows them to reject “reasonable accommodation” waivers of smoking bans that they would otherwise have to approve.
But, again, it’s not clear how courts will react to this argument or any others in what is an emerging and still largely undefined area of the law. Unless your community wants to finance a test case that will provide guidance for others, boards should do whatever they can to resolve medical marijuana disputes out of court.
Dealing With “Caretakers”
Most of those disputes will probably involve owners who are using marijuana, but some may involve “caretakers” who are growing marijuana for the use of others but aren’t using it themselves. The Rhode Island statute allows caretakers to possess up to 24 marijuana plants and 5 ounces of “usable” marijuana. The proposed Massachusetts statute (HB 625 — scheduled for a June hearing before the Joint Committee on Public Health) would also permit 24 plants for caregivers plus 4 ounces of usable marijuana “for each qualifying patient” for whom the caregiver is responsible.
I am told (having no first-hand experience myself) that this represents a sizable amount of marijuana – enough to make caretakers and users potential targets for thieves. And the potential for crime is a major concern of residents who don’t want drugs of any kind, in any form, for any use in their communities.
Depending on how it is worded, a by-law prohibiting commercial activities might apply to the cultivation of marijuana for distribution to others. For example, if many clients visit the caregiver regularly to obtain their marijuana supplies, the activity might violate a by-law barring home-based businesses that increase traffic in the community. The activity might also qualify as a nuisance if the odor of the plants (reportedly more pungent than the smell of marijuana smoke) bothers other residents. In any event, caretakers, unlike medical marijuana users, cannot demand a “reasonable accommodation” because they do not have a disability that requires special consideration.
Although Massachusetts does not have a medical marijuana statute – yet – another law, making possession of less than an ounce of the substance a civil rather than a criminal offense, is raising some questions about how landlords and community associations deal with complaints about the drug. Further complicating the issue, the Massachusetts Supreme Judicial Court ruled recently that because the possession of a small amount is no longer a criminal offense, the smell of marijuana did not give a police officer probable cause to search a car after stopping the driver for speeding.
A Massachusetts law (Chapter 139, Section 19) allows landlords to evict tenants found to be in possession of illegal drugs through an expedited eviction process that usually takes days rather than months to complete. In light of the SJC ruling, some are questioning whether the possession of less than an ounce of marijuana still qualifies as an offense justifying an eviction under this statute. We think it does. Although possession of marijuana in small amounts is no longer punishable as a crime in Massachusetts, it is still illegal under Massachusetts law —subject to a fine rather than a prison term, but still a violation of the law. Also, possession of marijuana in any amount still constitutes illegal possession of a drug and a criminal offense under federal law. For these reasons, we think the statute calling for expedited evictions still applies and can be used by landlords to evict tenants found in possession of drugs. Community associations can also use this statute as a basis for requiring owners to evict marijuana-possessing tenants from units they are renting.
A Federal Case
The conflict between state and federal law is also playing out in a major way in the unfolding medical marijuana debate. The Department of Justice (DOJ) has sent letters to the governors of most of the states with medical marijuana laws (Rhode Island Gov. Lincoln Chaffee was among the recipients), pointing out that the clinics or dispensaries (“compassion center” in Rhode Island) authorized to sell marijuana are operating in violation of federal law. These operations “undermine the federal government’s efforts to regulate the possession manufacturing, and trafficking of controlled substance,” the letters assert, warning that the DOJ “could consider civil and criminal legal remedies against those individuals and entities who set up marijuana dispensaries as such actions are in violation of federal law.”
Making good on that threat, federal agents recently raided marijuana dispensaries in Montana and Washington State, triggering a civil rights suit filed by Montanna dispensaries, claiming that the enforcement actions were unconstitutional and exceeded the authority of the federal government.
But the federal government’s aggressive push-back has led several states to rethink at least some aspects of their marijuana laws. Montana lawmakers recently approved legislation making it illegal to charge for marijuana and limiting the number of patients an individual caregiver can serve; Washington Gov. Chris Gregnoire recently vetoed a law creating state-licensed dispensaries there, and Gov. Chaffee in Rhode Island has delayed implementation of that state’s compassion center program, saying he wants to develop a coordinated response with other governors.
It’s not clear how or when this burgeoning state-federal conflict will be resolved. But it will probably be some time before all of the questions surrounding the medical use of marijuana will be answered.