QUESTION: The board passed a rule banning marijuana in garden plots. Is the board's action legal?
 
ANSWER: Yes, it's legal. Qualified persons are allowed to cultivate marijuana (H&S §11362.775) but may not keep more than six mature or twelve immature plants (H&S §11362.77(a)). However, just because California does not prosecute citizens for growing a federally banned substance does not mean your association must allow it.

Conflicting Laws. 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. (H&S Code §11362.5 et seq.) Medical marijuana 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).)

Medical Marijuana. What if the person has a prescription (also known as a “card” or “license”) for medical marijuana? Although federal law does not recognize a distinction between medical and recreational use of marijuana, California does. In 1996, marijuana was legalized for limited medical use. Under California’s Health & Safety Code §11362.77, qualified patients are allowed to cultivate up to 6 mature or 12 immature marijuana plants. If an HOA resident has a prescription to grow pot, the state will not prosecute provided the grower stays within proscribed limits.

Garden Plots. The January 1, 2015 change in the Davis-Stirling Act that allows garden plots in backyards (Civ. Code §4750.) does not allow for the growing of marijuana. The Civil Code defines “Plant crop” to means plants that bear edible "fruits or vegetables." Although marijuana can be eaten, it's not a fruit or vegetable. Moreover, the statute specifically excludes "marijuana or any unlawful crops or substances" from the definition of "plant crops." (Civ. Code §1940.10(a)(3).)

Nuisance. Virtually all CC&Rs have a provision against creating a nuisance. Regardless of the legality of the marijuana plants under state law, their presence may still be deemed a nuisance. Marijuana plants have a strong odor that some find extremely unpleasant, and several plants grouped together can produce an overwhelming odor for neighbors or passers-by. Other concerns include:

• Security. The plants could attract criminal activity.

• Safety. The heat lamps and other materials to grow plants inside a unit could be a fire hazard.

• Business. If the person is raising the plants for resale for "medical purposes," he/she is running a business out of their unit.

• Insurance. Will the safe/security/business issues create problems with the association's insurance if the board does nothing to address the problem?

• Litigation. Litigation may ensue if the board does not abate the nuisance.

Recommendation. Boards must make a business decision regarding enforcement. Just because an association can go after a pot grower does not mean it should. Directors must first decide if the plants represent a nuisance, i.e., (i) Is there any criminal activity associated with the plants? (ii) Is the odor strong enough to really affect anyone? (iii) Do the plants represent a visual blight? (iv) To what degree are members impacted by the plants?

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.