Published on: February 17, 2013
Massachusetts voters last fall said a resounding “yes” to medical marijuana, approving a petition legalizing the use of that otherwise illegal drug for medical purposes. The Bay State joins 17 other states ― Rhode Island, Vermont, Maine and Connecticut among them ―and the District of Columbia on a rapidly growing list of states that have approved similar measures and are grappling with the avalanche of legal questions they have spawned.
Those questions are proving particularly challenging for condominium boards, adding several layers of complexity to the already complicated issue of how to deal with smoking in their communities.
The new Massachusetts statute allows individuals with “debilitating medical conditions” to use marijuana and possess a 60-day supply of it without being subject to civil or criminal penalties that otherwise apply to the possession of illegal drugs. “Debilitating “conditions include, but aren’t limited to: cancer, glaucoma, Crohn’s disease, AIDs (or HIV-positive status) Hepatitis C, Parkinson’s disease, ALS or multiple sclerosis. The statute also allows eligible marijuana patients and their caregivers to grow marijuana plants in their residences.
It will only be a matter of time, and probably not very much time, before residents of some condominium communities begin exercising their newly-won right to possess marijuana, smoke it and grow it in their homes. Association boards must decide how they are going to respond.
- Associations that have not enacted rules or bylaws restricting smoking or prohibiting it entirely will have to decide whether they want to do so as a means of controlling or prohibiting marijuana use in their communities.
- Associations with smoking bans in place, and those that choose to enact them, will have to consider how they will respond to the inevitable requests from residents seeking “accommodations” under federal and state fair housing laws. Marijuana patients will ask boards to waive no-smoking policies so they can use a medically necessary drug.
- Associations with and without smoking bans will have to decide how to deal with medical marijuana users and their designated caretakers, who want to grow marijuana plants in their residences.
The first question on that list is the easiest to answer. There are many good reasons for communities to ban smoking, as we have discussed in previous alerts. The new marijuana law adds another incentive to a list that includes concerns about the health risks of second-hand smoke for non-smoking residents. The second-hand smoke from marijuana is every bit as toxic as the second-hand smoke from tobacco; associations must have a by-law or a board resolution in place in order to restrict either or both. (Because it requires the approval of a super majority of owners, a by-law provides a stronger foundation, more likely to withstand legal challenges.)
States Say Yes – Feds Say No
Deciding how to deal with accommodation requests from medical marijuana users will be more difficult. Some legal analysts are arguing that associations do not have to grant these requests. Although laws in Massachusetts and many other states now permit the use of marijuana for medical purposes, marijuana is still a prohibited drug under federal law, which contains no medical exemption.
The Department of Housing and Urban Development (HUD) makes precisely that argument in a memo prohibiting medical marijuana accommodations for residents of HUD-financed housing developments. The memo cites HUD’s zero tolerance policy for the use of illegal drugs and notes that marijuana is still illegal under federal law.
The memo states: “Persons who are currently using illegal drugs, including medical marijuana, arte categorically disqualified form protection under the disability provisions of…the Rehabilitation Act and the Americans with Disabilities Act…and such accommodations are not reasonable under the Fair Housing Act, because they would constitute a fundamental alteration in the nature of a public Housing Authority or owner’s operations.” The memo goes on to note that housing authorities administering HUD projects are required to prohibit rentals based on the illegal use of controlled substances, ”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.”
That memo notwithstanding, the Colorado Civil Rights Division, which enforces federal and state fair housing laws in that state, decided that a housing authority discriminated illegally against a tenant by refusing to consider the tenant’s medical marijuana accommodation request – a good illustration of how confusing the conflict between the state and federal drug laws is going to be.
In another case, The Ninth Circuit Court followed HUD’s reasoning – that federal law prohibiting marijuana use trumps state law permitting it – in ruling against a plaintiff who had argued that the closing of a medical marijuana dispensary violated his right to an accommodation under the Americans with Disabilities Act (ADA). In the court’s view, marijuana use is illegal and so is not eligible for protection under the ADA.
A Fair Housing Argument?
A Michigan case (Casias v. Wal-Mart Stores) dealing with employment law suggests a rationale other courts might apply in the residential housing arena. In this case, a Michigan federal district court upheld the firing of an employee who had tested positively for marijuana. The court ruled that the state’s medical marijuana law protects individuals from prosecution for possession of the drug, but it doesn’t regulate the actions of private employers nor overrule their policies barring the use of drugs.
The California Supreme Court reached a similar conclusion in Ross v. RagingWire, finding that employers are not required to accommodate the use of medical marijuana and are not guilty of discrimination for firing employees who test positively for its use.
Would Massachusetts courts apply that reasoning to a fair housing accommodation request and conclude that community associations aren’t required to waive their smoking prohibitions for medical marijuana users? At this very early stage, anyone’s guess is going to be as good, or as bad, as mine. The more important question for community associations is: Do you want to finance the test case that will answer the question?
The answer for most communities is probably no. Medical marijuana users who challenge a community’s smoking ban will no doubt have the backing of advocacy organizations with deep pockets; associations will have to reach into the pockets of owners to finance the litigation.
Communities that decide they have the stomach and the wallets for such a battle will also have to consider how they will enforce their smoking ban against medical marijuana users. Possession of medical marijuana isn’t a crime under state law, so local police departments won’t respond to a complaint. Marijuana possession is illegal under federal law, but it is unlikely the FBI is going to arrest condominium residents who are violating it.
The association can fine residents for violating the smoking ban, but the fines will simply accumulate while waiting for the courts to decide whether the ban is enforceable against medical marijuana users. Fines won’t halt the marijuana use in the interim and won’t address the concerns of owners who are complaining about it, but will sour relations with the marijuana users and owners who are sympathetic to them. And there is no way to predict how the courts will rule on your case if you decide to pursue it. The only certainty is that the litigation will be prolonged and expensive.
Managing Accommodation Requests
A more sensible, more productive, less contentious and certainly less costly strategy for community associations will be to treat medical marijuana accommodation requests the same way they treat requests for any other Fair Housing accommodations: sensitively, thoughtfully and fairly, recognizing the need to balance the legitimate medical needs of marijuana users against the equally legitimate concerns of other owners, many of whom will object not only to the second-hand smoke but also to the presence of drugs of any kind in any form in their community.
The first response to any accommodation request is to verify the need for the accommodation. You should ask medical marijuana users to document, with a note from their prescribing physician, the “debilitating medical condition” that requires them to use the drug. Once the need is established, the association should:
- Ask if there are drugs other than marijuana that could provide comparable relief. If not,
- Ask if the marijuana can be administered by means other than smoking it. Marijuana can be incorporated in baked good and it is available in pill and liquid forms.
- If the physician confirms that smoking is the only viable option for this patient, suggest accommodations that will mitigate the concerns of residents objecting to the second-hand smoke. These suggestions will depend largely on the structure of the buildings. Second-hand smoke will be less of an issue in detached townhomes than in multi-story buildings or garden-style communities with shared walls or shared ventilation systems through which smoke can travel easily between units. A reasonable accommodation here might be to require medical marijuana users to smoke someplace other than in their residences – on their decks, in parking areas or other spaces removed from the buildings, possibly even in their cars.
In negotiating with marijuana users, boards should try to be flexible and reasonable. The Fair Housing laws require a good faith effort to identify an accommodation that meets the needs of the resident seeking it without unduly burdening the community or harming other residents. It is best to avoid hard and fast policies or non-negotiable positions.
The state’s new law allows medical marijuana users not only to smoke (or otherwise ingest) the drug, but also to possess an amount sufficient to provide a 60-day supply. The law also allows users and their authorized caregivers to grow marijuana plants in their residences if lack of availability, distance, physical limitations, or other obstacles make it impossible or unduly difficult for patients to obtain the drug elsewhere.
The possession and cultivation provisions of the law create a number of potential concerns for community associations. Security is one. A 60-day supply is a sizable amount of marijuana – enough to be a potential target for thieves who want to use the drug themselves, sell it, or both. At $3,000 to $4,000 per plant, the multiple plants users or their caregivers are allowed to grow would be an even bigger targets and a greater security risk, not just for the cultivators but for the entire community.
Growing marijuana in residences also creates property damage concerns. Marijuana plants require water, heat and intense light; the elevated humidity creates mold risks, the high intensity lights are potential fire hazards; the increased utility usage could unfairly burden other owners in communities where utilities are shared rather than separately metered; and some marijuana varieties emit noxious odors that owners will find offensive – all legitimate concerns and arguments for prohibiting in-residence cultivation.
Such a ban could be enforced easily against caregivers who do not themselves have a debilitating condition requiring an accommodation. Requests from users will be more complicated. The law allows users to cultivate marijuana if their access to authorized dispensaries is limited. Because the law authorizes the opening of only 35 dispensaries statewide this year, with no more than five in each county, it is almost certain that users will assert a need to grow the drug in their homes.
A hardline position for a community association board would be: “Allowing you to smoke marijuana may be a reasonable accommodation; allowing you to cultivate marijuana is not. It creates unacceptable risks for the community and an unacceptable nuisance for other residents.” How would the courts respond?
I think they are more likely to accept a ban on cultivation than a ban on marijuana use, but that’s an informed guess, not a guarantee. For communities that want to reduce their litigation risks, imposing reasonable restrictions on cultivation rather than prohibiting it would be a safer course. For example, boards might establish standards for the kind of equipment residents can use, require periodic inspections to monitor for safety and compliance, and specify that the marijuana user will be responsible for any increased utility charges or other costs related to the cultivation of the plants.
Although Massachusetts’ medical marijuana law has been in effect only a few weeks, it has already raised many questions and will doubtless raise many more before experience and litigation begin to generate answers. Our advice to community associations in the meantime:
- If you have 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. Condominiums that have already amended their governing documents to ban smoking should revised and amend them further to reference both marijuana and tobacco.
- Decide in advance whether the association is going to consider medical marijuana accommodation requests or be prepared to fight them.
- Establish written procedures for processing the requests. Follow those procedures and document the board’s responses.
- Make sure owners are aware of the policies and procedures the board establishes.
- Wait for others to initiate the test case – or test cases ―that will eventually sort out the conflicts between state and federal laws and provide some guidance on how boards can or should manage the presence of medical marijuana in their communities.