Going to Pot

Going to PotStates are relaxing restrictions on marijuana, which means conflict is coming to community associations. What is clouding the debate?

It doesn’t happen often. But every couple of months, there’s that unmistakable smell wafting through a hallway at Penn Square Condominium high-rise in Denver: marijuana.

Manager Michael Milburn’s strategy is always the same. He knocks on the door where he suspects the smoker lives. He advises the occupants they must take steps, such as installing weather-stripping or an air purifier, to prevent further seepage.

“We treat it just like cigarette smoke, somebody’s cooking odors, incense or whatever would be coming out into the hallway,” he says.

The problem usually ends there. “Most people are pretty cooperative here with that kind of thing,” Milburn says. “I haven’t had any rebellion, so to say. I think most people have gotten it through their heads that (marijuana) is legal, but still there are parameters.”

Things were a little more turbulent for Brighton, Colo., homeowners association resident Jim Denny. When he was preparing to plant industrial hemp in his yard, the board president expressed disapproval. Denny says the community leader confused hemp—a plant typically used to make textiles, rope and other products—with its mind-altering cousin, marijuana.

The entrepreneur went ahead with the seeding anyway. In response, the board scheduled a violation hearing. Denny says by then the objections to his thriving hemp crop were couched in technical terms. “It was all about the fact that we were running a business on our property that was visible from the street,” he says.

In July, Denny removed the hemp to avoid escalating fines. He sold most of the plants and managed to break even on his $1,500 investment but says the experience has left him disillusioned.

Such are the growing pains in Colorado, which was one of the first states to legalize, regulate and tax the recreational use of marijuana (it also OK’d the cultivation of industrial hemp). The new law took effect in 2014.

Washington state legalized recreational marijuana the same time as Colorado but has lagged behind in implementing a distribution system. Last November, voters in Alaska and Oregon approved similar measures. Voters in the District of Columbia did the same, but the U.S. Congress, which has power over the District’s share of federal funds and locally raised tax revenue, may not allow the city to enact the initiative.

Recreational-use measures may make the ballot over the next couple of years in Arizona, California, Maine, Massachusetts and Nevada, among other states.

The Emerging Haze

The days of simply calling the cops on the pothead next door are over for an increasing number of Americans, and it’s a given that some community associations will experience conflict as residents incorporate marijuana into their lifestyles. It’s expected to be most acute in communities with shared walls, floors, ceilings and central ventilation systems.

In Colorado, for example, an airline pilot expressed concern that his career could be jeopardized by his next-door neighbor’s pot habit. He was worried the migratory smoke could end up in his own system, says David Firmin, a partner at HindmanSanchez in Arvada.

“He said, ‘I can’t have a false negative. I can’t have some kind of test show up on my employment record,’ ” the lawyer recalls.

Firmin advised the pilot to get tested privately at his doctor’s office and told him “to the extent it becomes an issue, we can address it,” he says. “Until it does, it’s really not a nuisance.”

A number of Colorado condominiums have drawn a line in the sand by banning marijuana within units, Firmin notes. Such strict measures—effectively entering someone’s residence—require an amendment to the governing documents, which in turn requires a high support threshold among owners.

“Many associations are able to do that, I think, because of the stigma that marijuana still has,” he says, noting a recent request from a 55+ community. “In many cases, they have military service and would like to prevent (marijuana) in the community.”

It’s potentially a different story in Washington state, says Michael Brandt, a Seattle-based lawyer who speaks at legal seminars about marijuana statutes. He says his state has protected the right of tobacco smokers to light up within their own homes, including condominiums. He suggests that also may be the case for recreational marijuana, which can only be consumed in a private setting.

Community associations can impose requirements on smokers to prevent smoke seeping outside a unit, Brandt adds, provided they are not unduly burdensome. His advice is to find a middle ground, if possible.

“If you’re like-minded people, you’ll work it out. If you like conflict, you won’t work it out, and you’ll keep people like me in business,” says Brandt, who typically represents individual owners in disputes with neighbors or community associations.

Meanwhile, state legislators in Oregon are developing rules to govern its new recreational marijuana law. Already, a number of issues have surfaced for community associations there, says Jason Grosz, a partner at the law firm Vial Fotheringham in Lake Oswego, Ore.

Here’s one example: At some condominiums, utility costs are split evenly by all owners. What if the pot grower uses an inordinate amount of electricity and water compared to the neighbors?

“There’s some precedence for this issue in the context of electric vehicles. Some (residents) will have charging stations, and so they’re using a disproportionate amount of electricity to charge their electric vehicles,” Grosz says.

Another example: If a grower is using high-intensity lamps, that could compromise safety—and insurance rates. “If you’re going to do something that increases either the insurance costs for the association or the risk of the casualty loss, you’ve got to get permission from the board to do that,” Grosz says.

Same Story, New Joint

The tension between community associations and pot users isn’t new. Some communities in the 23 states that have already authorized the use of medical marijuana for qualifying patients have had a dry run.

California became the first medical-marijuana state in 1996. Today, an estimated 573,000 residents are pot-using patients, according to the research website procon.org. Jasmine Fisher, a senior associate with Adams Kessler, says medical marijuana has rarely become a flashpoint for the California condominiums she represents—with perhaps one notable exception.

At a Marina Del Rey high-rise, a tenant began growing cannabis plants for research. The pungent smell annoyed neighbors, prompting the association to send the renter and his landlord notices. Then the association levied fines. The tenant moved out after several months but not without some tussling,
Fisher says.

“This is an extreme example,” she says. “As far as the marijuana co-existence is concerned, I think that the people who are smoking at least medical marijuana in California have struck a much better balance than people who are smoking tobacco.”

Fisher says traditional tobacco products and the relatively new, nicotine-infused electronic cigarettes are a bigger issue. Condominium associations increasingly are asking to draft restrictions for common areas or outright bans for those items.

“People will smoke (e-cigarettes) in elevators when they’re riding up with another person and say, ‘Well, it’s not harmful,’ ” Fisher says. “Actually, there’s some research that suggests vapors from e-cigarettes could be harmful.”

Migratory smoke—marijuana included—isn’t considered as big an issue at communities with detached homes and lawn buffers, professionals agree.

Not that it has never become an issue. A controversy erupted in early 2014 at a Phoenix-area community that banned owners from smoking medical marijuana in their yards and on their patios.

Board members at Carrillo Ranch Homeowners Association encountered pushback from owners, including longtime resident Tom LaBonte. The 55-year-old computer data service professional says he began collecting signatures challenging the ban because he considers marijuana a viable therapy for some patients; he estimates a half-dozen residents at Carrillo Ranch are eligible to use the drug.

“I’ll be damned if I’m going to let someone who is ignorant and doesn’t have the facts about marijuana tell me, as a cancer survivor, or other people in my neighborhood, that I can’t do something legally on my property,” LaBonte says. “I did not sign up for a select group of people taking my constitutional rights away.”

The association rescinded the ban in February. Carrillo Ranch representatives did not respond to interview requests from Common Ground, but a news release issued by the community’s management firm, City Property Management, credited residents with helping steer the board’s review.

“This was truly a teachable moment not only for us, our client, but also associations all over the country that must adapt to changing and evolving laws on medical marijuana,” said Brian Lincks, CMCA, a City Property Management executive, in a prepared statement.

Fair Warning

As if things weren’t complicated enough, the federal government still considers marijuana illegal, though the U.S. Justice Department has signaled it won’t go after casual users in states that regulate the drug.

That was no protection for a Dish Network employee in Colorado who was fired after he failed a drug test attributed to medically prescribed marijuana. The state Supreme Court heard arguments in September 2014 about whether the employee, a quadriplegic who ingested marijuana to control seizures and spasms, was being punished for a “lawful” activity. The company said it does not allow employees to use illegal drugs, including marijuana; the ex-employee’s attorney argued there should be an exception for marijuana when a worker is not on the clock. As of press time for this article, the court had not issued a ruling on the matter.

The glaring disconnect on marijuana between the federal government and some states may be cause for concern within the community association industry because there is no firm guidance where fair housing is concerned.

In general, industry professionals don’t think medical-marijuana patients are protected under the U.S. Fair Housing Act and its requirement that “reasonable accommodation” be made for people with disabilities. At the very least, they say, associations should not have to tolerate smoke from medical-marijuana patients, because the drug can be ingested other ways.

“Who says you need to smoke marijuana? Eat a brownie or a lozenge; cook with marijuana oil,” says Grosz, the community association lawyer from Oregon.

There has been no pivotal legal case—yet. Thus, some attorneys advise community associations to be cautious when a resident argues they must use medical marijuana for a health problem.

Observers don’t think U.S. lawmakers will give their formal blessing to medical and recreational marijuana any time soon. But if it occurs one day, community associations that have imposed restrictions may have to regroup.

“I think it’d be a game-changer,” says Firmin, the Denver-area lawyer.

Back in Brighton, Colo., Denny, the association resident who tried to grow hemp, is weighing his options. He says he may try to plant a hemp crop in 2015, but in a way that would pass legal muster with the community. Management representatives and the former board president of Denny’s association did not comment for this article.

Another idea Denny and his wife are considering: leaving.

“We’re definitely thinking of moving,” he says. “The stigma of marijuana and hemp being attached together, and the lack of interest in being educated about them, causes me to think about getting out of here.”

Everything’s Coming Up Cannabis

Marijuana is still illegal in many states and at the federal level. Yet the American view of pot has softened in recent years.

In a 2014 Gallup survey, 51 percent of U.S. residents said they favor legalizing marijuana. That’s down seven points from 2013, when 58 percent endorsed legalization, but far ahead of the 34 percent support reported a decade before in 2003, according to the polling organization.

In greater contrast, only 12 percent of adults favored legalizing the drug back in 1969, Gallup said.

“It’s public support in the abstract,” says Texas A&M business professor and marijuana-law blogger Franklin Snyder of today’s wider acceptance. “The question then becomes: Will I want somebody pot-smoking in the hallway outside my apartment? The answer to that is probably not. The difficulties we’re having is in crafting approaches that take care of peoples’ legitimate concerns.”

Meanwhile, a generational tug-of-war continues. Younger Americans, particularly millennials, are thought to be somewhat tolerant of marijuana, while abhorring cigarettes as dangerous. In the case for older adults and retirees, it may be just the opposite.

“They grew up in an era where smoking was accepted,” says Denver-area community association lawyer David Firmin. “To them, in the waning years of the boomers, cigarettes aren’t the issue—it’s pot.”

Oregon lawyer Jason Grosz has had clients at two younger-skewing, urban condominiums pose an interesting question to him: Can they impose a community-wide ban on tobacco-smoking while specifically allowing marijuana? Voters in his state recently legalized recreational pot.

“It’s a cultural shift,” says Grosz, who has advised clients not to make exceptions for marijuana.

“If it’s the volume of smoke that bothers you—not the type of smoke that it is—then wouldn’t you do a flat ban on all smoking, including marijuana?” he asks. “If it’s a very small volume of smoke that’s being generated by an occasional recreational user, is anybody going to notice that?”

Observers say the U.S. mindset has gradually shifted on marijuana, especially of the medical variety, as a concession that prohibition hasn’t worked on a variety of levels. State governments are considering the tax revenues that can be collected if they regulate the drug.

How big is the marketplace? Surveys and statistics suggest nearly 10 percent of the population uses marijuana on a semi-regular basis, says Douglas A. Berman, a professor at The Ohio State University Moritz School of Law. He says that’s an estimated U.S. customer base of 30 million, which could one day give rise to a “Big Marijuana” industry.

“You’re going to have lots of industry show interest, to the extent they can,” Berman says. “Most fundamentally, that’s likely to be the justification or at least the break on any kind of significant federal reform.” —M.R.

by: Mike Ramsey is a Chicago-based freelance writer.

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