: What about smoking medical marijuana as
prescribed by a doctor? We have a smoking ban and if I can't smoke in my
unit, where can I use my legal medicine?
: Associations are allowed to adopt complete prohibitions
on smoking, including inside units. 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.
. 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
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),
any workplace (Labor
), or on school grounds, or while operating a vehicle
§11362.79). If the State can impose restrictions, associations can also impose reasonable restrictions on the use of medical
Right to Quiet Enjoyment.
have a right to the quiet enjoyment of their own units and
should not have to endure the problems associated with secondhand smoke
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
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
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,
install weather stripping and door sweeps on doors to stop smoke from
into the common areas and surrounding units.
Alternatives to Smoking
. There are ways other than smoking to take the medication. Smokers can use e-cigarettes to inhale THC without producing odors or secondhand smoke. It can be ingested as brownies, candies, or other edible forms. Users don't have to smoke to get their medicine.
: Associations needing legal assistance can contact us
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