Published on: June 2, 2015
One of our clients received a request recently to waive the association’s smoking ban to allow a resident to smoke medically-prescribed marijuana. This is the first such marijuana-related accommodation request our office has seen (though it certainly won’t be the last) since Massachusetts approved a law permitting the use of this otherwise illegal drug for medical purposes, joining 23 states and the District of Columbia in doing so.
Treating this “reasonable accommodation” request like any other filed under the Fair Housing Act, the board asked the owner to submit the request in writing, documenting the medical need to smoke marijuana. Because the Massachusetts statute requires medical marijuana users to register with the state, the board also asked to see the owner’s state-issued identification card verifying his right to use the medically prescribed drug. This is the procedure we recommend for any board processing a medical marijuana accommodation request.
In this case, the documentation the owner presented was inadequate. Although he provided a letter from his doctor, the letter wasn’t signed and it wasn’t on the doctor’s letterhead. The owner hasn’t yet responded to the board’s request for more detail and for permission to send an information request form directly to his doctor, so we don’t know how this will play out. But we do know that other associations will have to deal with similar requests and with inevitable disputes between residents who say they have a medical need to smoke marijuana, and those who say they are sickened by the second-hand smoke it produces.
How boards handle these disputes will depend in part on whether they have a rule (or even better, a restriction in the master deed or bylaws) prohibiting smoking inside owners’ units. For associations that ban smoking, the question before the board will be whether to approve an accommodation waiving the restriction. And as with any accommodation request, boards must balance the needs of the owner requesting the accommodation against the potentially adverse impact the accommodation may have on other residents.
While the Fair Housing Act requires reasonable accommodations for verified medical or emotional disabilities, it also allows boards to propose reasonable alternatives. So boards can legitimately ask if the marijuana an owner needs can be ingested by some means other than smoking it – by eating it (baked in brownies or cookies, for example) or by swallowing it in pill or liquid form.
If a physician insists that smoking is the only viable option, the board may still have a legal basis for denying the request. Although state law permits medical use of marijuana, possession of the drug remains illegal under federal law. So boards could assert their right to enforce association covenants prohibiting illegal activities in the community, and let a court decide whether federal or state law should prevail.
There is some support for this approach: The Department of Housing and Urban Development (HUD) has directed public housing agencies to enforce the agency’s zero-tolerance policy on the use of illegal drugs, specifically including “state legalized medical marijuana. State laws that legalize medical marijuana directly conflict with [these federal admission requirements] and are thus subject to federal preemption,” the HUD policy statement notes.
HUD’s position notwithstanding, the courts have not yet resolved the conflict between state and federal drug laws, so a condo association that decides to fight this battle in Massachusetts will become a test case here. Any board contemplating this course of action should know this about test cases:
- They take a long time to resolve;
- They are very expensive; and
- Their outcome is unpredictable.
Not surprisingly, the pool of volunteers for test cases tends to be quite small.
Illegal or a Nuisance?
Communities without smoking bans won’t have the option of rejecting an accommodation request from a medical marijuana user, because there is no smoking prohibition for the association to waive. If owners are allowed to smoke tobacco products, boards will have to find some other basis for saying they can’t smoke marijuana. There are two possibilities:
- They could use the ‘violation-of-federal-law’ argument – and decide if they want to test that theory in court.
- They could argue that second-hand smoke creates a “nuisance” for other residents, violating the anti-nuisance provision included in the governing documents of most condo associations. This avenue is also problematic.
The odds that a board might win the nuisance battle are improving, because the legal winds have shifted and continue to shift in favor of non-smokers over smokers. In one recent example (one of many), a District Court Judge in the District of Columbia issued a temporary restraining order prohibiting a homeowner from smoking in his residence, finding that the second-hand smoke seeping into an attached row house endangered the health of the owners and their young children.
HUD Weighs In
HUD has also weighed in on the side of non-smokers. Citing the health risks created by second-hand smoke, the agency issued a policy statement in 2009 urging public housing agencies to create smoke-free buildings. (The Boston Housing Authority was the first and largest to do so.) More recently, the agency urged the owners of federally assisted multifamily properties to go smoke-free as well, providing them with a “tool kit” containing information, advice and resources to help them.
Public opinion and public policy favoring more restrictions on smoking are moving in the opposite direction on marijuana, producing growing support for easing restrictions on that drug — not just for legalizing medical marijuana but for legalizing recreational use of the drug as well. Three states (Colorado, Alaska and Washington) and the District of Columbia have already done so; five states, including Massachusetts and Maine, will ask voters to decide the question next year, and three more states are actively considering that step. Moving in the same direction, the Illinois Legislature recently approved a measure decriminalizing possession of small amounts of the drug.
As the debates over smoking and marijuana use unfold on parallel tracks, the inherent conflicts are becoming clear: How can you prohibit smoking without running afoul of laws that permit medical use of marijuana or allow unrestricted use of the drug? What do you do when the medical marijuana one owner needs sickens others? How do you balance competing rights and navigate conflicting laws?
Advice for Boards
Condo boards will have to confront these questions and many others. And while the times and attitudes are evolving, at least for now, in Massachusetts, the legal framework guiding their decisions hasn’t changed. As a result, our advice to clients remains the same:
- Establish a policy for reviewing Fair Housing accommodation requests and apply that policy to requests involving medical marijuana.
- Try to be flexible, reasonable, and fair. It is best to avoid hard and fast policies or non-negotiable positions and almost always advisable to avoid litigation if you can.
- If your association has not adopted a smoking ban, consider doing so now by amending your governing documents (By-laws, Master Deed or Declaration). Make sure the amended documents reference marijuana as well as tobacco. A bylaw prohibiting smoking will give you more leverage in dealing with medical marijuana requests and will strengthen your defense if you are sued. This cuts both ways, however. If the community has a smoking ban, the board arguably has an obligation to enforce it and could incur liability for failing to do so. To reduce those liability risks, we suggest:
- Include language in the bylaw specifying that the board can use its discretion in enforcing the ban and is not required to act on every smoking-related complaint. Also note that owners have the right to enforce the association’s smoking restrictions by suing residents who violate them.
- Take complaints from non-smokers seriously, documenting the board’s decisions (to enforce smoking restrictions or not) and any actions it takes. If you act on a smoking violation, do everything within the board’s power to address the concerns of non-smokers.
That advice (do all within the board’s power) also applies to associations that don’t have smoking bans in place. Two recent cases in which we were involved illustrate this point. In both cases, when the boards were unable to halt the infiltration of second-hand smoke into their units, non-smoking owners filed complaints with the Massachusetts Commission Against Discrimination (MCAD). The boards argued that they had no legal authority to prevent owners from smoking in their units. Neither association had a smoking ban; owners in one community had rejected a proposal to adopt one. The MCAD agreed that the boards were powerless to act and dismissed both complaints.
- Keep an eye on local and state laws. They are evolving. It is possible (though unlikely in the near term) that some municipalities or the state legislature will ban smoking in multi-family residential properties.
- Also keep an eye on court cases. The courts here and elsewhere will eventually resolve the conflicts between state and federal marijuana laws; test cases (preferably initiated by an association other than yours) may provide some guidance on how to manage medical marijuana issues in condo communities and may eventually give boards stronger legal tools with which to address the health concerns of non-smokers.