Monday, September 19, 2011

Killer Weed in the Common Area?

How do Boards of Directors deal with the use of Medical Marijuana in Community Associations?

By Paul Windust
    Community Associations increasingly face issues with medical marijuana.  It is a confusing area because federal and state laws conflict and social mores are in constant flux—especially when it comes to marijuana.  Long gone are the days when the high school health teacher could show “Reefer Madness” and his students would accept that marijuana use leads straight to jail, depravity, or worse!  Today, attitudes toward many substances, including marijuana, are more relaxed—at least at the state level. But regardless of current social opinions on the use of marijuana, the question that board members and managers ask us is whether the use of marijuana, medical or otherwise, is a violation of their CC&Rs, and if so what can or should be done about it?

Current Law
The Controlled Substances Act makes it unlawful to manufacture, distribute, dispense, or possess any controlled substance. The federal government does not recognize any acceptable medical use for marijuana. 21 U.S.C. 812(b)(1). Therefore, under any version of Federal Law, marijuana use for any purpose is illegal. 
     California, on the other hand, legalized marijuana for medical purposes.  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 a physician for use of medicinal marijuana, patients may apply for and be issued a medical marijuana identification card.  With one exception, qualified patients may possess no more than eight ounces of dried marijuana. H&S Code 11362.77(a). Therefore, provisions in CC&Rs that make any violation of law a violation of the CC&Rs do not work when trying to prevent medical marijuana use in a community association. But the problem is more complicated than just that. Marijuana, the controlled substance, also produces smoke when burned, and just like with tobacco, secondhand smoke can be a nuisance to neighbors.
     Controlling secondhand smoke in the common area is supported by the typical nuisance provisions found in most CC&Rs. Secondhand smoke, whether cigarette, cigar, marijuana or otherwise, that drifts into other units, balconies, or common areas can be restricted by the Association.  Members have a right to the quiet enjoyment of their own units and don’t have to endure secondhand smoke of any kind wafting into their units and few people would question the validity of CC&R provisions that prohibit secondhand smoke.
     An Association's authority to regulate the use of medical marijuana inside units is less clear.  Health & Safety Code 11362.79 implies that smoking medical marijuana in one's residence is allowed.  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 is probably allowed under California law. As a result, a board might have better success regulating marijuana use by focusing on the secondhand smoke or nuisance aspects. 

     Qualified persons are allowed to cultivate (grow) 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 in a community association, growing it can also be regulated.  For example, boards could require that plants be grown in the person's unit and not on balconies or in open view. What follows are some guidelines on how a community association can legally regulate certain uses of medical marijuana.

Enforcement under the Nuisance Provision of the CC&Rs
     A typical nuisance provision in the CC&Rs of a homeowners association might provide as follows:
“No noisy, hazardous, noxious, illegal, or offensive activity shall be allowed on or emanating from any Lot or portion of the properties, nor shall anything be done or kept on Lots or Common Area which may be or become an annoyance, a disturbance, a nuisance, or safety hazard to the neighborhood, or which shall unreasonably interfere with the quiet enjoyment of the other residents. . . .”
The law recognizes two types of nuisances: (1) a private nuisance, and (2) a public nuisance.  A private nuisance affects one or a few property owners.  A public nuisance affects an entire community or neighborhood.  A nuisance is “anything that is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.”  California Civil Code § 3479.  To constitute a nuisance, the invasion of the owner’s interest in the use and enjoyment of his or her property must be substantial, based on proof of significant harm judged by an objective standard.  San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893.  The legal test for determining whether an owner has suffered an unreasonable interference with the use and enjoyment of his or her property is whether the gravity of the harm outweighs the social utility of the offending conduct. 

    In the usual CID context, the conduct complained of would likely be a private nuisance.  If only a few owners complain about marijuana plants or marijuana smoke, it really is not a community-wide issue or one that a municipality would enforce.  The affected owner and the Association have standing to enforce the nuisance provision.  If the Association determines that this is an issue that it should enforce, the Association will need to determine whether the claimed invasion of the complaining owner’s property right is substantial.  That means it is determined by what a “reasonable person” should have to endure living in close proximity to others.  It is not judged by what only the complaining owners consider substantial.  Cases dealing with this issue have held that a nuisance can exist where fumes, odors, or smoke are unreasonably offensive to persons of ordinary sensibilities, even though they do not cause material injury to property or endanger health and safety.  So, while an owner does not have to be hyper-sensitive or allergic to claim a private nuisance, their opinion alone is not enough.

    When an issue arises, the Association should investigate the claimed smoke or odors and determine if there is secondhand smoke escaping from the unit or if any smell connected with the marijuana use is unreasonably offensive to persons of ordinary sensibilities.  If it so concludes, the Association may take action to abate the nuisance by banning smoking indoors and/or by requiring the removal of the plants from the lot or restricting them to indoor cultivation.  This assumes that the offensive smell from the plants, when grown indoors, does not proceed outdoors.  If this cannot be accomplished, or in the case of secondhand smoke, the Association may require the owners to install negative air or HEPA filters to ensure that smoke odors do not proceed outdoors or into adjacent units.

    The procedure in enforcing the nuisance provision can be taken administratively or judicially.  The administrative procedure involves noticing a hearing with the offending owner per the rules set forth in the Bylaws and having the Board make a determination that a nuisance exists.  The Board would order the owner to remove the plants and perhaps refrain from smoking outdoors.  The owner’s failure to abide by this decision would result in the Board issuing a fine to the offending owner.

    Judicial enforcement involves a two-step process.  First, the Association would serve a Request for Resolution on the owner demanding that the owner attend mediation of the dispute.  If mediation does not result in the desired removal of the plants, then the Association could initiate a lawsuit seeking a court order that the plants be removed from the outdoors and an order that the owner refrain from smoking outdoors.  If the Association prevails in this action, the offending owner would be required to pay the Association’s legal expenses.

Enforcement by Amending the CC&Rs
    Another enforcement tool is an amendment to the CC&Rs.  Many cities and counties currently have in place provisions prohibiting smoking in public places such as restaurants, public meeting places, and office buildings.  Many associations have amended their governing documents to include anti-smoking provisions prohibiting smoking in common areas.  The enforceability of these private anti-smoking provisions has not yet been tested in the courts.  However, given the health and safety issues implied, and the success of municipal ordinances covering the same issues, it is our opinion that association’s anti-smoking provisions would be enforceable.
    The issue for an association is whether to enact an anti-smoking provision as an Association rule or to amend the CC&Rs.  Further, the Association must decide whether to target marijuana smoking or smoking in general.  Generally speaking, an amendment to the CC&Rs prohibiting smoking in the common area and outdoors would be more enforceable than adopting an operational rule.  Restrictions in a recorded declaration are presumed reasonable and can only be overcome when it is shown that the restriction violates some public policy or infringes on an important property right.  The California Supreme Court has held as follows:

“Under the holding we adopt today, the reasonableness or unreasonableness of a condominium use restriction that the Legislature has made subject to section 1354 is to be determined not by reference to facts that are specific to the objecting homeowner, but by reference to the common interest development as a whole. As we have explained, when, as here, a restriction is contained in the declaration of the common interest development and is recorded with the county recorder, the restriction is presumed to be reasonable and will be enforced uniformly against all residents of the common interest development unless the restriction is arbitrary, imposes burdens on the use of lands it affects that substantially outweigh the restriction's benefits to the development's residents, or violates a fundamental public policy.”

This standard presents a formidable hurdle for anyone challenging a provision in an association’s CC&Rs.

    CC&R amendments and their presumed reasonableness should be contrasted with a “rule,” which is not entitled to a presumption of reasonableness.  To enforce an operational rule, the burden is on the Association to show that the rule is reasonable and should be enforced.  The Association would have to provide evidence that the anti-smoking rule is reasonable and show this with evidence, testimony, and likely expert testimony, if the rule is ever challenged in court.

    A second issue is whether to target marijuana smoking only or smoking in general.  The problem with targeting only marijuana smoking is that, at least under California state law, there are statutes that support marijuana smoking.  If the rule or CC&R amendment focuses only on marijuana smoking, a person with a valid medical marijuana smoking card could claim prejudice or bias based on his or her health issue or disability.  Therefore, we consider an anti-smoking provision restricting smoking of any kind to be more likely to withstand scrutiny, and we consider a CC&R amendment preferable to an operational rule.  In either case, the Association would not be able to restrict smoking inside the residential structure, although it could require an owner to use negative air or HEPA filters to ensure that smoke does not proceed outdoors or into adjacent units.

Frequently Asked Questions
    1) Should the Board of Directors consider adopting a no smoking rule?  If the Board determines that the community would not pass a CC&R amendment, then that’s the best bet.  As discussed above, an amendment to the CC&Rs would more easily withstand a challenge because it would be presumed reasonable.  However, voter apathy or disapproval may prevent passage of an amendment.  Targeting only marijuana plants and marijuana smoking could pose a problem for the reasons discussed above and why we favor a general smoking restriction.  However, the issues raised by a complaining owner could also be addressed under an existing nuisance provision of the CC&Rs.

    2) Should the Board amend the CC&Rs with an anti-smoking provision?
  As discussed above, a CC&R amendment would be presumed reasonable and would be a better option.  The issue is whether the Association could obtain the requisite approval of the owners.  A related issue is whether the amendment would prohibit only marijuana smoking or all smoking. Targeting only marijuana smoke opens the Association up to claims of bias and prejudice. 

    3) Should the Board adopt an anti-smoking rule now, pending a CC&R Amendment?  Yes, if the Board determines that immediate action is required short of enforcing the nuisance provision.  The Board must follow the procedures set forth at Civil Code §1357.130 which requires a 30-day comment period and a 15-day notice period following adoption by the Board.

    4) What about outreach--should the Board meet with the offending owners?  Yes.  The Board should verify the existence of the plants, interview the owner to determine when, why, and where the smoking of marijuana occurs.  It should also collect information concerning the alleged medical marijuana license and determine why the owner must grow the plants in the community rather than purchase medical marijuana from licensed dispensaries.

    5) Should the Board meet with the complaining owner?  Yes.  The Board should determine if the marijuana plants emit an odor that is unreasonably offensive to persons of ordinary sensibilities.  If the Board does not feel qualified to make this determination, then it should consider hiring an expert or consultant to advise the Board on what level of odor is considered unreasonably offensive. 

    Marijuana use poses unique problems for boards of directors, especially given California law.  Boards of directors of community associations should view marijuana like tobacco or any other nuisance when considering anti-smoking amendments or enforcement actions that involve unit interiors or exclusive use common area—control the smoke or the odor, not the substance. 

Paul Windust is a partner at Berding|Weil

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