Davis-Stirling.com by Adams Kessler PLC
QUESTION: We have a resident who is smoking “pot” and growing marijuana on his patio (2 large plants) in full view of residents. He says he has a permit to do so. Is this allowed?
ANSWER: When faced with a similar situation, one of my condo boards approved, provided the resident shared his stash. Other boards, however, may wish to prohibit the growing and smoking of pot on balconies.
Federal Law. 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.
Medical Marijuana. Medical marijuana is authorized by Health & Safety Code 11362.5 et. seq. for the treatment of serious medical conditions, and is administered by California’s Department of Public Health. Upon obtaining a recommendation from their physician for use of medicinal marijuana, patients may apply for and be issued a medical marijuana identification card. ID cards may be verified at www.calmmp.ca.gov. With one exception, qualified patients may possess no more than eight ounces of dried marijuana. H&S Code 11362.77(a).
Restrictions. Just because someone has a permit to use medical marijuana does not mean he can light up whenever and wherever he wants. For example, users cannot smoke a joint 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). Reasonable restrictions may be imposed on the use of medical marijuana.
Quiet Enjoyment. 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. Members have a right to the quiet enjoyment of their own units and should not have to endure the problems associated with secondhand smoke wafting into their units. If associations prohibit smoking on balconies, it should be all smoking, not just marijuana. Otherwise, the restriction may be struck down as discriminatory.
Reasonable Accommodation. An association’s power to prohibit medical marijuana inside units is less clear. Health & Safety Code 11362.79 implies that smoking medical marijuana in one’s residence is allowed. As a result, boards should not prohibit pot smoking in units but, instead, should address the nuisance aspects. As long as the smoke does not create a nuisance and provided the person has been authorized to use medical marijuana, smoking it in a unit should be allowed.
Inside Units – Nuisance. 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 to cease his violation of the CC&Rs. The person 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.
Growing Pot. Qualified persons are allowed to cultivate marijuana (H&S 11362.775) but may not keep more than six mature or 12 immature plants (H&S 11362.77(a)). Just as smoking marijuana has limitations, growing it can be regulated. Boards could require that plants be grown in the person’s unit and not on balconies.
RECOMMENDATION: Boards who encounter this issue should seek legal counsel.