Article Courtesy of The Daily Business Review
By Barney Weinkle
Published July 28, 2019
Not since the release of the Cheech & Chong movie “Up in
Smoke” has there been so much discussion about smoking medical marijuana in
Florida, especially in condominiums. Due to the ever-increasing number of
condominium developments in South Florida, associations, owners and
residents are abuzz about restrictions and regulations preventing owners who
wish to indulge in smoking marijuana in the privacy of their own apartments
or on their balconies. It may be high time for condominium associations, and
their respective management companies, to take a more direct approach.
Florida’s medical marijuana market is booming, with an average of nearly two
dispensaries opening each week across the state. The number of enrolled
patients recently blew past the 200,000 mark with now more than 10,000 new
patients signing up each week. Florida voters passed Amendment 2, legalizing
medicinal marijuana in 2016. On March 18, 2019, Gov. Ron DeSantis signed new
medical marijuana changes into law. Currently known as Chapter 2019-1, the
legislation expands upon the medical marijuana laws previously implemented.
Of particular interest is that the revised laws now permit the smoking of
medical marijuana to fall within the definition of “medical use.” However,
the smoking of medical marijuana is limited, and is still prohibited on
public transportation such as in a school bus, vehicle, aircraft, or
motorboat, and in an enclosed indoor workplace.
Analysts predict that Florida’s medical marijuana market may approach $1.1
billion by 2020. To be to blunt, the number of owners and residents smoking
marijuana in condominium units and common areas is blooming rapidly. As a
result, many property managers are seeking guidance and clarification on the
law, to better understand how to handle issues that may arise.
Many condominium associations are cracking down on residents who smoke
marijuana in their units or in common areas. Even as acceptance of medical
and recreational marijuana use grows across the nation, there’s an increase
in neighbors objecting to the odor. Some fear health concerns from second
hand smoke creeping into their own homes through ventilation systems. Some
merely object to the idea of it going on around the corner, in the next
apartment or in a shared hallway. Condominium associations should maintain a
record of all marijuana smoking complaints it receives. It important that
the condominium associations keep a report that includes information such as
the date and time, the name of the parties involved, and any health concerns
expressed by the complainant.
It appears that in most cases, a condominium association is well within
their right to ban an owner or tenant from smoking marijuana in their
buildings, even if the building’s bylaws and documents are changed well
after the resident has moved in. If a condominium association bans all
smoking, including tobacco, it may be harder to prove discrimination if
tenants cannot smoke their medical marijuana. There is also discussion about
the type of device that is used to ingest the marijuana, which could have a
bearing on owner’s rights as well.
It is important for association property managers to establish a policy
regulating the use of medical marijuana, including the ability of an owner
to smoke medical marijuana on limited common element property or common
element property. The new law does not specifically address a condominium
unit owner’s right to smoke medical marijuana in his or her unit.
Presumably, a unit owner now has a legal right to do so, however, this right
may be limited by other restrictions in the governing documents and rules
and regulations prohibiting the interference with the rights of other unit
owners to peaceably enjoy their units. The condominium board should
carefully review their governing documents. These typically include bylaws,
covenants, conditions, and restrictions as well as rules and regulations.
When reviewing these documents, look for any provisions that relate to
“smoking” or “cigarette smoke.” There may already be a rule that prohibits
smoking in units or in common areas. Also look for language that prohibits
owners from creating nuisances. Many condominium associations have outlawed
smoking altogether and others have recently encountered a lot more issues
enforcing the no-smoking ban due to the increase of medical marijuana
smoking.
The fact remains that smoking marijuana is still against federal law and
most condominium governing documents require compliance with all laws for
the use of your unit. That really puts condominium associations in the
dilemma of enforcing your governing documents against somebody who may in
fact be under a disability and is operating lawfully under your state law
for medicinal purposes. In many cases, those will be persons with
disabilities under the federal Fair Housing Act and the Americans with
Disabilities Act. Although a condominium association may have rules
restricting owner’s actions, disputes may arise by attempting to enforce
them.
Condominium association property managers should contact their property’s
legal counsel to discuss implementation of a policy regulating smoking or
vaping of medical marijuana. Due to the potential liability and legal
uncertainty this issue poses, the condominium association should seek legal
advice from an attorney. Regardless of what action or inaction the
condominium association is considering, legal advice is critical ensuring
the board does not get involved in a lawsuit. Should it be necessary to
modify existing rules and regulations regarding smoking or vaping of medical
marijuana, all changes should be communicated to owners and renters in a
timely manner.
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