HIGH TIMES!!!….Should Massachusetts Condominiums Consider Smoking Bans In Response To Passage of Medical Marijuana Law

Published on: November 28, 2012

On November 6, 2012 Massachusetts voters overwhelmingly voted in favor of ballot question 3. The approval of Petition Number 11-11, “An Initiative Petition for a Law for the Humanitarian Use of Marijuana,” legalizes the medical use of marijuana in the Commonwealth.  With almost all precincts reporting, 63% of voters registered their approval for the measure. In so doing, Massachusetts joins 17 other states and Washington D.C., including nearby Connecticut, Maine, Rhode Island and Vermont, in permitting the medical use of marijuana.

Effective January 1, 2013, the law allows qualifying patients to use marijuana and possess a 60-day individual supply without being subject to civil and criminal penalties. A qualifying patient must have a “debilitating medical condition.” The Petition cites examples of such conditions, which include “cancer, glaucoma, HIV-positive status or AIDS, hepatitis C, Crohn’s disease, Parkinson’s disease, ALS, or multiple sclerosis.” A physician in a physician-patient relationship with the individual will be required to certify that the medical use of marijuana will be beneficial. Once the individual is entitled to use marijuana medically, they may identify a personal caregiver who meets certain qualifications for assistance.

Qualified patients will receive marijuana from non-profit treatment centers that must be registered with Massachusetts’s Department of Public Health. The Petition limits the number of treatment centers that may be opened in 2013 to 35, with more than 1 but no more than 5 treatment centers in each county.  However, if there is limited access to a treatment center may a patient register to cultivate their 60-day supply at home.  As of the wiring of this article, there are no treatment centers, and the law goes into effect in less than 60 days, so you can expect people to start cultivating and growing in their homes or condominium units.

The new law also specifies that Marijuana is still illegal under Federal Law and that employers, schools and perhaps others do not have to make to accommodate a person’s use of medical marijuana.  Thus it seems unlikely that a unit owner would be allowed an accommodation to smoke and/or grow marijuana in their unit in the face of a ban contained in the governing documents of a condominium.

While a condominium should be sympathetic to people with debilitating diseases, that sympathy should be balanced with the potential adverse effects that can be inflicted on others by someone growing and/or smoking marijuana.  Growing marijuana indoors requires special lamps and equipment and could be a potential fire hazard.  The dangers of second hand smoke have also been well documented.  Second hand smoke from marijuana is just as deadly.  It might also pose a practical problem in a community with young children.  Even the Massachusetts law recognizes that nobody under the age of 21 should have access to medical marijuana, so should your children have to inhale it on a second hand basis?

Across, the country numerous lawsuits have been filed (with varying degrees of success) against landlords, condominium boards, cooperative boards alleging the existence of a nuisance caused by the existence/ allowance and travel of second hand cigarette smoke in their buildings.  Garden style and high rise condominiums are especially susceptible to these types of claims as they often have common HVAC and/or ventilation systems through which smoke can travel and are in tight quarters.  Worse still in the event of this kind of lawsuit, it is unlikely that a Condominium’s liability insurer would defend such a claim, as most insurance policies contain an absolute pollution exclusion which by definition includes “smoke”.  We are not aware of any policy that differentiates between the kind of smoke (i.e. cigarette, cigar, or marijuana).  Accordingly, a condominium that does not at least consider attempting to pass a smoking ban (including smoking and/or growing marijuana in units) might just find itself “high” and dry in the event of a nuisance lawsuit brought by a unit owner.  While a ban in units would require a Master Deed Amendment to be enforceable (and likely a 67 or 75% unit owner vote) if the prohibition or ban is at least proposed by a Board and ultimately rejected by the owners, if faced with a lawsuit, a Board could at least argue that it attempted to alleviate and/or eliminate smoking, but that the unit owners refused to vote in favor.  While that might not eliminate potential liability entirely, it could “resinate” favorably with a jury or a Judge.