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How Your Community Association Should Handle Marijuana Use in Light of Evolving Laws

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Dazed and confused about how to legally and effectively manage marijuana use in your community association because of the evolving laws? You are not the only one.

This article explains the current state of the laws on marijuana use in the Washington, D.C. metro area and discusses the options available to your association for conducting business in light of those laws.

Hippocratic Growth: The Decriminalization of Marijuana

The District of Columbia, Maryland, and Virginia now all have decriminalized marijuana use for medical reasons. However, what constitutes medical use is highly regulated, so check the laws of your state. For example, in Maryland, to use medical marijuana in compliance with the law, one must register with the state’s Medical Cannabis Commission and suffer from a debilitating medical condition as diagnosed by a physician, among other things.

What about recreational marijuana use? It remains criminal in Maryland and Virginia, as in most states. D.C., however, is one of the few jurisdictions that has decriminalized certain recreational marijuana uses. Initiative 71 (also known as the Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Initiative) became DC law in February 2015. Initiative 71 permits adults 21 years and older to:

  • Possess, use, purchase, and transport up to two ounces of marijuana;
  • Cultivate six marijuana plants in their primary residence (no more than three of which are mature); and
  • Gift up to one ounce of marijuana to other adults 21 and older.

It remains illegal in D.C. to:

  • Possess more than two ounces of marijuana;
  • Sell any marijuana; and
  • Smoke or consume marijuana in public spaces, including restaurants, bars, shops, parks, streets, and alleys (including inside private vehicles on streets and alleys).

By contrast, under federal law, the Controlled Substances Act continues to prohibit any use of marijuana, including medical use. Anyone using marijuana is breaking federal law even if she/he is complying with the state laws.

That said, people using marijuana in full compliance with their state’s laws, who are not using on federal property, should not have to worry about the feds for the time being. For now, Congress has prohibited the Department of Justice from spending money on prosecuting state-compliant individuals. (See United States v. Trevino, --- F. Supp. 3d ---, 2019 WL 211064, at *2 (W.D. Mich. Jan. 16, 2019)).

Budding Issues Facing Community Associations

With the trend toward the decriminalization of marijuana, there is more marijuana smoke and odor than ever before in the hallways of condominium buildings and the common areas of homeowner associations across the DMV. Disputes between neighbors have ensued.

Neighbors of marijuana users claim to suffer from marijuana odors emanating into the common spaces and their homes, and from allergies and other negative health effects due to secondhand smoke.

Marijuana users have responded that they use the drug under a physician’s care to manage the symptoms of an illness or disability. They claim that any actions to curb their use of marijuana is discrimination on the basis of disability. Marijuana users have cited their states’ laws in support of their rights to cultivate and enjoy marijuana in the privacy of their own homes.

Each side has called upon the community’s property managers and/or boards of directors to support their position and to take action in an effort to remedy the dispute. What can and should a community association do?

Dope Discretion

Even if your state’s laws allow for marijuana use, the community association may prohibit and/or regulate it if it so chooses. Residents of a community association must comply with their association’s governing documents, and an association’s governing documents may be more restrictive than state law.

Moreover, claims of discrimination on disability grounds based on the use of medical marijuana are unlikely to succeed in the courts. The Fair Housing Act generally makes it unlawful for community associations to refuse to make reasonable accommodations that afford persons with disabilities full enjoyment of the premises. However, the term “disability” under this federal act does not extend to the use of drugs that are illegal under federal law.

For the same reason, where a resident suffers from cancer or another legitimate disability, a court is unlikely to hold that the use of a drug that is illegal under federal law constitutes a “reasonable” accommodation under the federal FHA. While the case law is still evolving on this subject, it is doubtful that the courts will hold that community associations are required to accommodate requests for medical marijuana use under the federal FHA.

The same is likely to be true under state anti-discrimination laws. As a matter of constitutional law, federal law reigns supreme. In addition, the Maryland and Virginia statutes rely heavily on the federal laws, including for their definition of disability, which does not encompass the use of drugs that are illegal under federal law. In D.C., Initiative 71 provides that it shall not be construed to prohibit any entity that controls real property from prohibiting or regulating the possession, use, or growing of marijuana.

In short, community associations have a lot of discretion.

Hashing Out Your Options

Associations facing issues due to marijuana cultivation or use have the following options:

  • Grant or deny requests to use medical marijuana on disability grounds. For the reasons stated above, community associations may legally deny requests to use medical marijuana to treat a disability or illness. However, to avoid conflict and oblige sick residents, and in light of the evolving laws, they may choose to grant such requests. It may be helpful for associations to approve requests to use medical marijuana on the condition that the drug be ingested as an edible or some other format that eliminates or reduces any resulting odor and smoke.
  • Enforce existing provisions in the association’s governing documents. Most community associations have a provision in their bylaws prohibiting noxious or offensive activities. If one resident is smoking marijuana and the smoke bothers another resident, the association may enforce this provision, including by imposing fines on the smoker. Check with your community association attorney to see what sanctions are available in light of your community’s documents, and whether there are prerequisites to imposing sanctions, such as notice and an opportunity to speak before the board of directors.
  • Do nothing. A community association may wish to stay out of a dispute between neighbors regarding marijuana, especially given the progressive legal climate on the subject. If your association prefers this approach, we recommend that its board of directors take an official vote on the subject and that the board meeting minutes include the vote. This way, if the resident taking issue with the smoke or odor claims the association failed to enforce its governing documents (for example, the provision prohibiting noxious or offensive activities), the board will be better equipped to defend itself based on the legal doctrine commonly referred to as the business judgment rule.
  • Regulate marijuana use. If the board wishes to take action to curb marijuana smoke and odor in the community, but the existing provisions of the governing documents are insufficient to achieve this result, the board may want to adopt rules regarding marijuana use. For example, the board may adopt a rule prohibiting marijuana smoke and odors outside the units and/or may require smokers and growers to install air filtration systems and seal their doors. Contact your community association attorney to assist with drafting rules and ensuring proper adoption.
  • Prohibit marijuana use. If your community wishes to prohibit marijuana use, then it may amend its governing documents to include such a prohibition. To ensure that such an amendment is not subject to challenge, contact your community association’s attorney. It is important to consider carefully which document to amend and to ensure there is a vote in favor of the prohibition that faithfully complies with all legal requirements. If a smoking prohibition extends to the units or lots – as opposed to only the common elements or common areas – then we strongly recommend that the association amend its declaration and not merely its bylaws.

In sum, the decriminalization of marijuana cultivation and use by certain states has had minimal, if any, impact to date on an association’s right to determine for itself what is acceptable in its community.

Shirley Steinbach is an attorney who counsels community associations in Maryland, DC, and Virginia. For more information about community associations handling marijuana use with evolving laws, contact her at 301-657-0172 or smsteinbach@lerchearly.com.

This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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