SMOKING POT
QUESTION:
We have a resident who is smoking "pot" and growing marijuana on his patio (2
large plants) in full view of residents. He says he has a permit to do so. Is
this allowed?
ANSWER:
When faced with a similar situation, one of my condo boards approved, provided the resident shared his stash. Other boards, however, may wish
to prohibit the growing and
smoking of pot on balconies.
Federal Law. The Controlled
Substances Act makes it unlawful to manufacture, distribute, dispense, or
possess any controlled substance. 21 U.S.C. 801. The federal
government does not recognize any acceptable medical use for marijuana. 21 U.S.C. 812(b)(1). California, on the other hand, legalized marijuana
for medical purposes.
Medical Marijuana. Medical marijuana is
authorized by Health & Safety Code 11362.5 et. seq. for the treatment of serious
medical conditions, and is administered by California's Department of Public Health. Upon obtaining a recommendation from their
physician for use of medicinal marijuana, patients may apply for and be issued a
medical marijuana identification card. ID cards may be verified at www.calmmp.ca.gov. With one exception,
qualified patients may possess no more than eight ounces of dried marijuana. H&S
Code 11362.77(a).
Restrictions. Just because
someone has a permit to use medical marijuana does not mean he can light
up whenever and wherever he wants. For example, users cannot smoke a joint in a courtroom
or inside any governmental buildings (Gov. Code 7597), or within 20 feet of a main exit,
entrance, or operable window of any public buildings (Gov. Code 7597), or in
any workplace (Labor
Code 6404.5), or on school grounds, or while operating a vehicle (H&S
11362.79). Reasonable restrictions may be imposed on the use of medical marijuana.
Quiet Enjoyment. Based on the nuisance provisions in CC&Rs, secondhand smoke,
whether cigarette, cigar, marijuana or otherwise, that drifts into the windows
of other units, balconies, or common areas can be restricted. Members have a right to the quiet enjoyment of their own units and
should not have to endure the problems associated with secondhand smoke wafting
into their units. If associations prohibit smoking on balconies, it should be
all smoking, not just marijuana. Otherwise, the restriction may be struck down
as discriminatory.
Reasonable Accommodation. An association's
power to prohibit medical
marijuana inside units is less clear. Health & Safety Code 11362.79 implies that
smoking medical marijuana in one's residence is allowed. As a result, boards should
not prohibit pot smoking in units but, instead, should address the nuisance aspects. As long as
the smoke does not create a nuisance and provided the person has
been authorized to use medical marijuana, smoking it in
a unit should be allowed.
Inside Units - Nuisance. If the user cannot confine the smoke to his own unit, the smoke becomes a nuisance that
must be abated. The smoker can be required to take appropriate measures to
cease his violation of the CC&Rs. The person may need to run HEPA filters
inside his unit, seal all penetrations in walls, ceilings and floors, and
install weather stripping and door sweeps on doors to stop smoke from migrating
into the common areas and surrounding units.
Growing Pot. Qualified persons are allowed
to cultivate marijuana (H&S 11362.775) but may not keep more than six mature or
12 immature plants (H&S 11362.77(a)). Just as smoking marijuana has
limitations, growing it can be regulated. Boards could require that plants be
grown in the person's unit and not on balconies.
RECOMMENDATION:
Boards who encounter this issue should seek legal counsel.
EARTHQUAKE
INSURANCE
QUESTION: Our association carries less than 50% earthquake coverage with a
$100,000 deductible. If they're responsible for repairing the
common areas, shouldn't they carry 100% earthquake insurance?
ANSWER: It
has been my experience that governing documents do not require associations to
carry earthquake insurance. If yours require it, then your board must comply
with whatever is called for in your documents. If your CC&Rs are silent, then
coverage is at the discretion of the board, i.e., the decision to buy, the
amount of coverage, and the size of the deductible. One hundred percent coverage is ideal but
not always feasible because of the cost. One way to reduce cost is through
higher deductibles.
Deductible. The $100,000 deductible
carried by your board significantly reduces the cost of the insurance policy.
Unfortunately, the deductible is probably per unit. If so, it puts each
owner at risk for special assessments to pay their portion of the deductible in
the event of a loss. To reduce their risk, each owner should obtain a personal earthquake policy through the California Earthquake Authority (CEA).
The cost of a CEA policy is quite reasonable and will cover special assessments
up to $75,000. Because the maximum is limited to $75,000, your board should
consider reducing the deductible so as to eliminate the $25,000 gap in coverage.
Homeowners can calculate the cost of a personal CEA policy with their "Premium Calculator."
Total Insurable Value.
Boards should consult with an insurance broker and possibly an appraiser to
determine the total insurable value of the association's structures. Boards can then factor in the amount of a potential loss,
the cost of coverage, and the ability of the membership to pay higher
assessments to cover premiums. Another way to reduce risk is to install a seismic gas valve. Once an association starts carrying earthquake insurance,
boards should be cautious about discontinuing coverage without membership approval.
Thank you to Dennis Socher, Executive Broker
for the Socher Insurance Agency, for his
assistance with this question. -Adrian Adams
BOARD MEETING
CONSENT
AGENDA
QUESTION: 
Do you see any
reason why the board could not use a "consent agenda" for routine items
that it believes does not require discussion and will garner a unanimous vote?
ANSWER:
A "Consent Agenda" is a grouping of non-controversial agenda items that are
expected to be approved without discussion. (Robert's Rules of Order, 10th Ed.,
pp. 349-350). As such, it can be a significant time saver for board meetings.
Consent Process. Routine
items can be grouped
together on the agenda with a heading of "Consent Calendar" or "Consent Agenda."
When the board reaches that portion of the agenda, the Chair asks if any member wishes to remove
(or pull) any item from the consent agenda. They may do so by
stating "I pull item #__." Pulling an item does not require a second.
After all the "pulls" are
made, the Chair states, "Without objection, the remaining items (or all the items
if none have been pulled) are adopted by general consent."
Silence is Consent. If any
director wants to vote against an item, he/she must pull it from the consent
agenda. This is a case where silence not only implies
consent, silence is consent. If any items are pulled, the board can either take
them up immediately for discussion and vote or put them in their appropriate
place in the
agenda. The approval of minutes is not considered routine and should not be on a consent agenda.
Notice of Agenda. The consent agenda is
part of the board's meeting agenda that must be posted four days in advance of the meeting.
A special thanks to Mr. Parliamentarian James H. Stewart,
PRP for his input with this question. -Adrian Adams
FEEDBACK
Newsletter Typo.
There is a typo in your June 13, 2010 newsletter: "Restricting recalled
directors would make good directors intelligible along with the actual target of
the recall." -Steve G.
Funny Pun! You made a typo (and a funny
pun!). :-) Restricting recalled directors would make good directors intelligible
along with the actual target of the recall. -Ken M.
At Last! At last! After many years, a typo: "ineligible" not "intelligible." -Larry G.
Couldn't Resist. What's wrong with having "intelligible" directors?
Not usually listed as a qualification, but a characteristic that might be
beneficial during board discussions. I
couldn't resist. -H.J.C.
RESPONSE:
A typo. Gads, I hoop I don't do that again! -Adrian
Nominating Committees. Don't know if I
agree with you about nominating committees being done away with. I think a
nominating committee can nominate candidates and then a letter can be sent to
all owners with notice that they have right to self-nominate. -Jim A.
RESPONSE:
A nominating committees can still be utilized for soliciting candidates.
However, if it nominates candidates and the committee's candidates are so
designated on a ballot, is that a form of campaigning using association media?
An interesting question for the courts.