Prohibit Pot Smoking. Associations are allowed to adopt complete prohibitions on smoking, including inside units. It can be done by (i) adopting a rule relying on existing nuisance provisions in your CC&Rs or (ii) amending CC&Rs to specifically prohibit smoking of any kind. The right of associations to prohibit smoking is well established. Second-hand cigarette and marijuana smoke are both on California's Proposition 65 list of carcinogens (cancer causing substances). As such, the smoking of either product is a health hazard and constitutes a nuisance. The definition of nuisance includes “[a]nything which is injurious to health….” (Civ. Code § 3479.) H&S Code § 11362.3 specifically states that the statute cannot be construed to permit any person to smoke cannabis in a location where smoking tobacco is prohibited. Therefore, if an association prohibits smoking, marijuana is included. A prescription for medical marijuana does not override a smoking ban.
Federal Restrictions. In 2011, HUD concluded that new admissions of medical marijuana users in public housing must be prohibited and that state laws allowing medical marijuana directly conflict with and are preempted by federal law. Residents using marijuana in states that allow it for medical use are subject to the local Public Housing Agencies which may decide to continue to provide assistance, deny assistance, or terminate medical marijuana users and others in the property.
The January 2015 HUD Housing and FHA Monthly Review, bottom of page two, references a memo issued by the Office of Multifamily Housing regarding medical marijuana in HUD multifamily and senior housing communities. It reiterated the rights of HUD property owners to establish their own policies for existing users and the requirement to deny admission to federal housing to any household members using a federally controlled substance, such as marijuana.
State Carcinogen Restrictions. In 2009, California added marijuana smoke to the state's Prop 65 carcinogen list. Thus, wherever cigarette smoking is banned, so is marijuana. Because secondhand smoke has been declared a human carcinogen, courts are increasingly protecting the rights of nonsmokers to be free from exposure to it. A judge in Washington D.C. issued a temporary restraining order against a pot smoker when neighbors sued alleging negligence, nuisance and trespass from secondhand smoke. A California jury awarded damages against an HOA for not resolving a secondhand smoke dispute.
State Smoking Restrictions. Medical marijuana users cannot smoke 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). If the State can impose restrictions, associations can also impose reasonable restrictions on the use of medical marijuana.
Right to Quiet Enjoyment. HOA 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. Marijuana smoke carries the drug THC which has numerous side-effects such as a decrease in short-term memory, dry mouth, impaired motor skills, reddening of the eyes, and feelings of paranoia or anxiety. It also poses a threat to those in jobs that require regular drug testing or those who are seeking jobs where pre-employment drug testing is used since. In both cases, THC will show up in their system even though it was acquired by contact with second-hand smoke. Failure by the Board to address the problem, could result in legal action and a judgment against the association. (Chauncy v. Bella Palemro Homeowners Assn. (2013) Orange County Sup. Ct., Case No. 30-2044-00461681; Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540.)
HOA Nuisance Restrictions. 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. 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 smoker 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.
Alternatives to Smoking. When it comes to "reasonable accommodation" so pot smokers can get their medicine, associations are not required to accommodate a request for smoking if it endangers the health and quiet enjoyment of their neighbors and especially since alternatives are available. There are ways other than smoking to take the medication. It can be ingested as brownies, candies, or other edible forms. For those who cannot eat because of nausea associated with chemotherapy, patients can use e-cigarettes to inhale THC without producing secondhand smoke odors.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.