Can condos and homeowner associations restrict medical marijuana?

A large number of states now permit medical marijuana, while other states have decriminalized the drug and two have voted to legalize it. But while medical marijuana might be helpful to the seriously ill, many condominiums and homeowner associations are worried about the effects of allowing pot-smoking on their property.

Apart from the fact that marijuana is still illegal under federal law, some residents are also concerned about an increased risk of crime (as the users’ “stash” might be a tempting target), the effects of second-hand smoke inhalation, and the exposure of small children to the drug.

But can the board of an association restrict the right to light up?

This is a brand-new question, and the law is largely unclear.

A number of boards have voted to prohibit tobacco use, which is easier in some ways to justify because tobacco is unquestionably a health hazard. With medical marijuana, though, smokers can argue that the drug is in fact a health benefit. Plus, a federal law called the Fair Housing Act says that disabled residents must be given a reasonable accommodation, and medical pot smokers can argue that their health condition is a disability and the drug is necessary to accommodate them.

Board members who are facing a dispute between pot smokers and other residents – and who want to avoid a lawsuit – might do well to try to find some accommodation that will satisfy everyone. For instance:

  • Can the smoker provide a doctor’s note verifying the need for marijuana, and any alternative medications that might have the same benefits?
  • Can the smoker ingest the drug in some other form (such as brownies)?
  • Can vents and filters be installed to prevent the smoke from entering other units?
  • Can smoking be limited to designated outdoor areas?

Even if this issue hasn’t arisen yet, board members might want to review or amend the community’s bylaws to address the issue and head off possible disputes.

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