What Associations Should Know About Medical Marijuana

What Associations Should Know About Medical Marijuana

By Carol Johnson Perkins, Esq.

Across the country, momentum has been building to legalize marijuana—at least for medical use. Though marijuana is still illegal under federal law, more than 20 states have adopted comprehensive medical marijuana laws—and more may soon follow. This fall, Florida voters will decide whether to amend the state’s constitution to allow for comprehensive medical marijuana legislation.

Colorado and Washington have gone further—to legalize possession of small amounts of marijuana for recreational use by adults 21 and older. And they may soon be joined by Alaska and Oregon, if voters in those states approve similar measures this fall.

Despite the trend toward legalization, it’s important to remember that marijuana is still an illegal drug under federal law. Until the law is changed, it’s a federal crime to possess, manufacture, or distribute marijuana.

Meanwhile, there are more questions than answers about the laws in states that have already approved medical marijuana use. It’s a confusing area with conflicting laws, evolving regulatory systems, and uncertainty about fair housing requirements.

Given this state of affairs, you may be wondering what, if anything, you should do about medical marijuana use at your community and how to address problems, such as complaints about second-hand marijuana smoke. To date, there’s been little official guidance on how medical marijuana laws affect housing, leaving communities struggling to balance the needs of medical marijuana users with the rights of other residents living at the community.

In this special issue of the Insider, we’ll review federal and state marijuana laws, along with fair housing rules protecting individuals with disabilities. And we’ll boil it all down to what you should know about medical marijuana laws—and how they might affect your community.

Marijuana Is Still Illegal Under Federal Law

Under federal law, the Controlled Substances Act, marijuana is classified as a Schedule 1 controlled substance, which means that it’s considered to have a high potential for dependency and no accepted medical use. The manufacture, distribution, or possession of marijuana is a federal criminal offense, and it may not be legally prescribed by a physician for any reason.

State marijuana laws don’t change the fact that using marijuana continues to be an offense under federal law, according to the White House Office of National Drug Control Policy, which states: “The Administration steadfastly opposes legalization of marijuana and other drugs because legalization would increase the availability and use of illicit drugs, and pose significant health and safety risks to all Americans, particularly young people.”

Nevertheless, federal officials have relaxed enforcement of federal criminal laws against individuals using marijuana for medical purposes in states where it’s legal. In a 2013 memo, the Justice Department instructed federal prosecutors to defer to state and local authorities regarding prosecuting seriously sick individuals using medical marijuana, while keeping the door open to investigating violations by large-scale marijuana operations.

Marijuana Is Still Illegal in Most States

In most states, marijuana remains an illegal drug—even if it’s used for medical purposes. In the absence of comprehensive medical marijuana legislation, marijuana possession is still a criminal offense under both federal and state law—and users may be subject to arrest for possessing, growing, or using marijuana.

Consequently, you may enforce rules in your governing documents that prohibit illegal activity, including illegal drug use, against medical marijuana users. If you have grounds to take action against a member for illegal marijuana use, you need not overlook the infraction simply because he says he’s using it for medical purposes. In states where marijuana use is illegal, most experts agree that the community is not required to grant an accommodation to allow use of medical marijuana since marijuana possession is a violation of both state and federal law.

Practical Pointer: Medical marijuana may not be legal in your state now, but the trend toward legalizing medical marijuana use is expected to continue for some time to come. Across the country, proposals to permit use of medical marijuana are introduced each year, so you should monitor what’s going on in your state and local government.

Significant Differences in State Medical Marijuana Laws

Since 1996, many jurisdictions have passed medical marijuana laws, but there are critical differences from one state, county, and city to another, according to the White House Office of National Drug Control Policy. Early legislation was aimed at removing criminal penalties against medical marijuana users by creating a defense to state criminal possession charges or removing state criminal penalties for medical marijuana use.

Since then, many have evolved to authorize state programs to produce and distribute medical marijuana. Currently, 23 states and the District of Columbia allow for comprehensive public medical marijuana and cannabis programs, according to the National Conference of State Legislatures. In addition, 11 states allow use of “low THC, high cannabidiol (CBD)” products for medical reasons in limited situations or as a legal defense.

Despite the differences, there are some common elements. In general, the laws protect patients, their caregivers, and doctors from arrest or prosecution for possession, sale, or distribution of medical marijuana under state drug laws. Most have some form of patient registry—some well established, but others still being implemented—and issue ID cards, though few recognize ID cards issued in other states.

The laws generally apply to individuals with certain medical conditions such as seizure disorders, cancer, or HIV/AIDS, or symptoms such as pain or nausea, but the list of qualifying conditions is different in every state. And the laws limit the quantity of medical marijuana, either by weight or number of plants, though the limits vary by state.

If your state has approved medical marijuana use, then you should learn as much as you can about what the laws say, how they work, who’s covered, and what’s permitted. In addition to state laws, there may be laws on the county or city level that regulate medical marijuana.  

And find out whether the law permits home cultivation of medical marijuana. In states where it’s allowed, it’s important to know the rules about who may grow it, when and where they may grow it, and how much they may grow. For example, some permit not only patients, but also their caretakers, to grow a specified number of plants for medical use.

Explore Options for Regulating Medical Marijuana Use

If your state has—or is considering—a medical marijuana law, then review your options with your attorney about whether—and to what extent—the association may regulate its use at the community.

For starters, ask whether the law in your state permits you to limit or ban use of medical marijuana. In Maryland, for example, the law allows condominium boards and rental property owners to adopt a policy against marijuana smoking at the community. Similar measures have been proposed in other states, but few have gained much traction.

Otherwise, legal experts have been wary about the implications of regulating medical marijuana in condominium communities. The conflict between federal and state laws has left HOAs in a legal limbo—with little guidance from the courts or state officials about their rights and responsibilities related to medical marijuana use in private housing communities.

To determine how to deal with the issue at your community, you should review your governing documents with your attorney. In general, most governing documents allow the association’s board of directors to adopt “Rules and Regulations” without obtaining the approval of the full membership. These Rules and Regulations act as a supplement to the Declaration of Covenants, Conditions and Restrictions (CC&Rs) and often regulate activities in common areas, explains attorney Rebecca J. Fortune, a partner at the San Diego-based law firm, Kimball, Tirey & St. John LLP. Therefore, acting through its board, an HOA has the option to adopt rules prohibiting medical marijuana use in common areas—or to extend existing rules against smoking in common areas to specifically include marijuana smoking.

But restricting medical marijuana use inside members’ units—or attached outdoor areas, such as balconies or patios—is a different matter. Unless the restriction is clearly stated in the CC&Rs, the HOA cannot limit or restrict what an owner does on his or her own separate interest, Fortune explains. Consequently, the HOA can’t prohibit members from smoking in their units—unless there’s an applicable covenant or restriction against it in the CC&Rs. It’s a huge problem when condos have adjoining, and deeded, patio areas that are adjacent to common areas, she says.

Though effective, it may be difficult to adopt a broad policy to prohibit smoking—or restrict medical marijuana use—at the community since most associations require a majority of 50 to 75 percent of members to amend the CC&Rs.

Consider Fair Housing Requirements

Homeowners associations have the same fair housing responsibilities as landlords and management companies do, says fair housing attorney Lynn Dover, a partner at Kimball, Tirey & St. John LLP. HOAs are required to consider and grant accommodations for condo owners (or the owner’s tenants) with disabilities if the accommodation is reasonable, she says. The test for reasonableness is: Does the accommodation pose an undue financial or administrative burden?

HUD’s position is that requests to permit use of medical marijuana are not reasonable under the FHA, at least in federal public and assisted housing. In a 2011 memo, HUD reasoned that granting an accommodation to use medical marijuana would require a fundamental alteration of the nature of the providers’ operations—by requiring them to condone violations of federal criminal law. As a result, federal and state nondiscrimination laws don’t require those housing providers to accommodate requests by current or prospective residents with disabilities to use medical marijuana, according to HUD, although these providers may exercise discretion in whether to evict current residents who engage in the use of medical marijuana.

Though HUD’s memo was directed to public and federally assisted housing communities, many believe it unlikely that HUD would pursue a federal fair housing claim against other housing communities for refusing to permit the use of medical marijuana.

It’s still unclear whether such a refusal could lead to a complaint under state fair housing law—it hasn’t happened yet, but some have raised that concern. In the courts, most discrimination claims involving medical marijuana are related to public housing or employment. In general, courts in both types of cases have ruled against medical marijuana users on claims of disability discrimination or failure to accommodate their medical marijuana use. Some contain broad language emphasizing that marijuana use is still illegal under federal law, so there’s no duty to accommodate medical marijuana use.

Ask your attorney to keep you updated on any rulings by the courts or state officials on potential discrimination complaints related to medical marijuana. In Oregon, for example, the agency that handles fair housing complaints announced that it would not accept medical marijuana cases after the state’s highest court rejected an employment discrimination claim based on off-duty medical marijuana use.

Practical Pointer: Follow your standard procedures on handling reasonable accommodation requests—even if it’s for medical marijuana. The law may not require you to grant the request, but there’s nothing to stop members from asking—and from pursuing a state fair housing claim if they don’t get the answer that they want. If the claim gets some traction, it can only help your case to produce documentation that you treated the member fairly and followed standard procedures for evaluating the request.

Be Prepared for Complaints about Medical Marijuana

As medical marijuana laws take effect, HOAs should be prepared to handle associated problems, particularly complaints about second-hand smoke drifting into common areas or neighboring units through shared ventilation systems or smoking on balconies or patios.

Get legal advice to help you weigh your options and review governing documents to determine the best way to proceed. Unless there’s a covenant or restriction in the CC&Rs that forbids smoking or marijuana use, then you’ll have to look toward rules forbidding members from maintaining a nuisance or interfering with their neighbors’ quiet enjoyment of the property.

If it’s a dispute about second-hand smoke drifting into a neighbor’s unit, most HOAs make this an owner-to-owner issue and try to stay out of it altogether, says Fortune. Unless there is an enforceable provision within the CC&Rs, the HOA can do little to nothing and only exposes itself to liability if it attempts to intervene. Offensive second-hand smoke is most often treated as an issue of nuisance between the owners of separate interests, she says.

If the smoke travels from a separate interest into common areas, then the HOA can claim nuisance just as another owner can, she says.

As a defense, the member may claim protection under fair housing laws as an individual with a disability. He may argue that his right to an accommodation for his disability-related need for medical marijuana outweighs the rights of others to be free from second-hand smoke.

“It is our opinion that there are arguments to be made that it is not reasonable,” Dover says. First, she says, marijuana use, growth, or possession is still illegal under federal law. If the CC&Rs and rules prohibit the use of the property for any purpose that violates federal, state, or local law, then she argues that this would still be a violation even though it’s legal under state law. The bigger issue, however, is the nuisance that drifting marijuana smoke creates for other owners. This would give the stronger argument that it is not reasonable, she says.

But that’s not the end of the matter: If an accommodation is deemed to be unreasonable, there is a duty to engage in an interactive process with the goal of finding another reasonable accommodation, Dover says. One option would be to look into ways to block second-hand marijuana smoke from escaping from the unit interior. Or, Dover says, the association may ask the owner to ask his healthcare provider if there’s another method of delivery that would allow him to use the marijuana for medical reasons without creating a nuisance for the community—or his neighbors.

About the Author

Carol Johnson Perkins, Esq. is the contributing editor of Fair Housing Coach (www.FairHousingCoach.com), the Insider’s sister publication. Each month, the Coach presents a fair housing topic in a lesson-and-quiz format, and provides clear, plain English explanations of the law and helpful case study examples to share with staff. The Coach summarizes recent housing discrimination cases and settlements, fair housing-related reports and studies, and new HUD guidance. Ms. Perkins is an attorney with extensive experience as editor in chief of legal compliance newsletters on landlord-tenant, workers compensation, and employment law. She thanks the following experts for contributing their comments to this article:

Lynn N. Dover, Esq.: Partner, Kimball, Tirey & St. John LLP, 7676 Hazard Center Dr., Ste. 900, San Diego, CA 92108; www.kts-law.com.

Rebecca J. Fortune, Esq.: Partner, Kimball, Tirey & St. John LLP, 7676 Hazard Center Dr., Ste. 900-B, San Diego, CA 92108; www.kts-law.com.