Smoking Marijuana
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 expressly prohibit smoking of any kind. The right of associations to prohibit smoking is well established. Secondhand 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 assist, deny assistance, or terminate medical marijuana users and others on the property.
The January 2015 HUD Housing and FHA Monthly Review, at the 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 its Prop 65 carcinogen list. Marijuana smoke and tobacco smoke share many characteristics about chemical composition and toxicological properties. At least 33 individual constituents present in both marijuana smoke and tobacco smoke are already listed as carcinogens under Proposition 65. See "Evidence on the Carcinogenicity of Marijuana Smoke." 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 units and should not have to endure the problems associated with secondhand smoke wafting into them. 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. In both cases, THC will show up in their system even though it was acquired by contact with secondhand smoke. Failure of the Board to address the problem could result in legal action and a judgment against the association. (Chauncy v. Bella Palermo 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 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, 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.
Growing Marijuana
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.) 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.
Recreational Marijuana. In 2016, Proposition 64 was passed and chaptered in the Health & Safety Code, effective in 2017. Health & Safety Code §11357 decriminalized the possession of not more than 28.5 grams of cannabis, or not more than eight grams of concentrated cannabis, by a person at least 21 years of age. Health & Safety Code §11358 decriminalizes the planting, cultivating, harvesting, drying, or processing of no more than six living cannabis plants by a person at least 21 years of age, with certain exceptions. None of these changes in the law prohibit Associations from imposing stricter restrictions, including banning cannabis from personal gardens.
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 mean 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 raises the plants for resale for "medical purposes," they are running a business out of their unit.
- Insurance. Will the safety/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 affect anyone? (iii) Do the plants represent a visual blight? (iv) To what degree do the plants impact members?
Additional Information. Secondhand Cigarette Smoke and E-Cigarette Ban
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.