Medical Marijuana: You Can Regulate Smoking in Your Association

As you probably know, Arizona is the most recent state to adopt a medical marijuana law in the election last November.  A slim majority of voters approved the ballot initiative, and the Arizona Department of Health Services (“DHS”) is now tasked with implementing the law, including creating rules for the issuance of cards to qualified medical marijuana patients and the licensing of dispensaries, among other items.  The rules will be finalized at the end of March, and after that, medical marijuana will be a reality in Arizona.

When I first considered the possible impact of medical marijuana on our community association clients, my reaction was that it would raise a variety of disability related Fair Housing issues.  I anticipated that many associations would at least consider implementing prohibitions on smoking marijuana in common areas, yards, patios and perhaps even in condominium units.  I wondered if a rule that prohibited marijuana smoking only (and not tobacco) would be viewed as discriminating against disabled persons because such a rule would target patients but not non-disabled tobacco smokers.  However, the more I considered the issue, the less concerned I became about that prospect for two primary reasons.

First, the fact that a person has a card issued by the state allowing them to possess and consume marijuana does not, in and of itself, qualify a person as disabled under the Fair Housing laws.  I suspect that the majority of ultimate medical marijuana users, as in other states, will be those suffering from the generic catch-all of “severe pain” as a pretext for recreational use of marijuana.

Second, the disability issue most often presents itself in the context of a resident seeking an accommodation (i.e. a variance) to the association’s rules or deed restrictions.  If an association implemented a rule or restriction prohibiting the smoking of marijuana in certain areas, could a resident claim that their disability should allow them to smoke marijuana there anyway?  No, smoking would almost certainly never be a reasonable accommodation of a disability.  There are numerous ways for a patient to ingest medical marijuana that do not involve the creation of second-hand smoke that could be a nuisance to other residents.  Marijuana can be ingested through foods, candies and liquids; it can be vaporized; and it can be consumed as an oral medication like most pharmaceutical products.  I cannot think of any reason why a qualified medical marijuana patient would ever need to actually smoke marijuana to obtain the relief they are seeking.  That being said, my advice is always to be open-minded to a resident’s accommodation request and seek additional information before making a quick decision.

For any other disability accommodation request, the medical marijuana card does not contain sufficient information for associations to grant accommodations.  You will need to go through the standard analysis for disability accommodation requests, which includes having a medical provider identify the disability and show how the accommodation will improve the effects of the disability on the resident’s day-to-day life.

As many of you know from attending our seminars last week or from the newsletter article in the Republic, the DHS is currently taking public comments on its draft rules.  One rule is of particular importance to community associations.  Proposition 203 prohibits smoking of marijuana in public places.  The DHS’s draft rules define public places to include “common areas of apartment buildings, condominiums, or other multifamily housing facilities.”  This does not cover common areas in planned communities, and it is ambiguous as to what parts of condominium projects are off-limits for marijuana smoking.  You can provide your comments on this draft rule to DHS at http://www.surveymonkey.com/s/H6LMK72.  You have until February 18, 2011 to submit your comments on this rule or any other portion of the draft rules, which can be found at http://www.azdhs.gov/prop203/documents/Medical_Marijuana_Draft_Rules.pdf.

Despite what the final DHS rules may say about prohibiting smoking in public places, associations can implement and enforce their own rules on marijuana smoking.  Associations typically have the authority to regulate conduct on the common areas or common elements.  There is often authority to create rules to regulate behavior on private property as well.  This is especially true in condominiums, but it also exists in many planned community documents.

Boards need to consider whether they have concerns about marijuana smoking in their communities and, if so, how they want to respond to that prospect.  Our firm is offering a flat fee legal services package that includes reviewing your governing documents, providing the board with a detailed written opinion on how marijuana can be regulated in your community, and drafting proposed rules or amendments, if necessary, to implement the board’s chosen policy for $595.00.

If you have any questions about medical marijuana or Fair Housing issues, please contact Jason Smith in our office for more information.