By Donna DiMaggio Berger, Esq. / Published February 2017
Citizens in the Sunshine State approved Amendment 2, which legalized the use of medical marijuana by a 71 percent vote last November. Florida is expected to log more than $1 billion in medical marijuana sales by 2019 according to a report compiled by marijuana industry analysts, New Frontier Data and Arcview Market Research. The full extent of this decriminalization of a Schedule 1 substance remains to be seen, and much will depend on the rules governing medical marijuana, which have yet to be passed by the State Legislature and the Department of Health. In terms of your community association, it is likely a safe bet that at some point an owner or resident will either be discovered to be using marijuana in his or her unit or on the common elements or will request the use of same as a reasonable accommodation for a disability.
On December 29, 2014, the U.S. Department of Housing and Urban Development (HUD) issued a Memorandum regarding the use of marijuana in multifamily properties. That Memorandum reinforced that while the use of marijuana for medical purposes has been decriminalized by several states in our Union, the Controlled Substances Act (CSA), 21 U.S.C. Section 801, et. Seq. still classifies marijuana as a Schedule 1 substance; and therefore the manufacture, distribution, or possession of marijuana remains a federal crime.
HUD emphasized in that Memorandum that a public housing agency or owner of federally-assisted housing must take active steps to terminate the tenancy of any household with a member who illegally uses a controlled substance or whose use of such substance interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents.
Naturally, the following questions have arisen with regard to private housing providers like condominium, cooperative, and homeowners associations:
• Do community associations have a duty similar to that imposed on public housing providers to deny occupancy to residents who will be using a substance that remains illegal under federal law?
• Can a Florida resident request a reasonable accommodation to use medical marijuana and must the association grant that request?
• Can the association inquire on a purchase or rental application whether or not any of the proposed occupants in the home or unit currently use or plan on using marijuana?
• Are owners who rent out their properties to Section 8 tenants required to investigate possible marijuana use and deny applications accordingly if such use is confirmed?
• Does the prescription for medical marijuana mean an individual automatically has a disability as defined by state and federal law?
There is analogous case law we can consider when discussing the topic of medical marijuana use and its attendant issues for your community. In the case of Hidden Harbour Estates, Inc. v. Norman, 309 So.,2d 180 (Fla. 4th DCA 1975), the Court was presented with the question of whether a condominium association, through the exercise of its rule-making powers, could prohibit the consumption of alcoholic beverages in the common areas of the condominium. The Court held that the restriction on the consumption of alcoholic beverages was reasonable because it was designed to promote the health, happiness, and peace of mind of the majority of the unit owners.
If an association were to pass a rule restricting the use of marijuana, medically prescribed or otherwise, on the common areas and perhaps even inside the units, the board would have to clearly articulate its reasons for doing so. In the case of marijuana, those reasons might include the following:
• The fact that the use of the substance remains a crime under federal law regardless of the permissible use for certain medical reasons under Florida law.
• The fear that the smoke from marijuana may create a hallucinogenic effect and/or health impact on others.
• The impact on minors who might witness the use.
Since there are other forms of marijuana (pill and ingestibles), which do not emit smoke and thus are not easily detectable by others, allowing the use of the substance in other forms may provide a compromise position in some communities. Currently in Florida, medical marijuana is only available in ingestible form although that may change. Other communities may be most concerned about preventing the use of this substance on the common areas and limited common areas such as balconies or patios, but for some communities, the concern may extend to use of the substance even inside the privacy of one’s unit, particularly if the building is old and the insulation between units is not great.
Fortunately, board members are not held to a standard of perfection; they are required, however, to be reasonable and to exercise prudent judgment when making decisions that impact their members and the community overall. In the case of medical marijuana use, the competing interests involved are clea-rly the resident’s desire to use the substance to alleviate the symptoms associated with a medical condition and the association’s concerns about the impact such use can have on the other residents as well as concerns about the continued criminality of such activity under federal law. Until accompanying rules are adop-ted by the State Legislature and the Department of Health (and those rules are imminent), the safest path to follow is to only allow medical marijuana, which is only available currently in ingestible form, to be used to treat children with seizures and a few other medical issues. It is too soon to predict how any claims brought under the Florida Fair Housing Act will fare. Since the use of medical marijuana inside private residential communities is a new and emerging area, the decision on whether to regulate, restrict, prohibit, or permit the use is one which requires a detailed conversation with the community’s association attorney, who needs to be fluent in this area of the law.
Donna DiMaggio Berger, Esq.
Becker & Poliakoff