On June 16, 2014, Governor Rick Scott signed two bills into law, collectively referred to as Charlotte’s Web, which legalize the use of marijuana to treat conditions such as epilepsy, Lou Gehrig’s disease, and cancer. As medical marijuana laws continue to spread across the nation, so too will the number of dispensaries and individuals permitted to use the substance. When compared with other states such as Colorado or California, the new medical marijuana law appears to be severely limited; however, both of these states started with similar restrictive laws before enacting more permissive legislation. In Florida, there is already a more expansive medical marijuana referendum up for vote in November. As other states have seen, and what community associations in Florida should now expect to see, is a bout of novel and unexpected controversies with homeowners as courts and lawmakers attempt to define the parameters of the new regulations. With that being said, there are a number of mechanisms currently in place that may give associations a foothold on an otherwise unfamiliar terrain.
Within condominiums, it’s extremely common for owners to complain about the smoking habits of their neighbors. Smoke will sometimes travel through electrical outlets and common walls; other times, smoke travels through common vents. Non-smokers hate to have their homes smell of smoke, and it is easy to imagine how this is compounded when the scent is marijuana smoke. The Florida Supreme Court addressed the issue of cigarette smoke in the 1995 case City of North Miami v Kurtz, where it held that smoking was not a fundamental right protected by the Constitution. Ten years later, in Merill v Bosser, a Florida trial court found that the secondhand smoke caused by a condominium owner was so pervasive as to be considered a nuisance under the declaration of the condominium and that it thereby violated the covenant for quiet enjoyment. The court ordered the neighbor to pay $1,000 in damages for medical expenses and for the loss of use of the condominium.
However, a common theme among these and other related nuisance court cases is that a nuisance usually requires extreme circumstances. Apart from when an owner’s private activities impact a neighbor’s right to the use and enjoyment of their property, associations are not typically empowered to impose rules and regulations on how owners and residents behave inside their homes. Although owners could approve an amendment to the declaration to restrict smoking within the home, if it is not causing a nuisance, a court could find the provision to be unreasonable infringement on an individual’s right to the use and enjoyment of their property.
Common Areas and Limited Common Areas
Most associations have the authority to create rules and regulations that control activities in outdoor and indoor common area spaces. Some communities may want a more restrictive regime if the smell of cannabis becomes offensive to owners within the community. If your association already regulates tobacco smoking in these areas, the association, through board of director action, may consider extending those smoking policies to marijuana use. Boards will want to pay particular attention to areas of their communities where the use of marijuana will impact other residents, such as smoking near doorways and windows of other units. Although community associations have the authority to regulate such activities on common property, such restrictions must be reasonable.
Additionally, association boards can often regulate activities within limited common areas, such as patios and balconies, but you will need to look to your documents to determine the extent to which your association can adopt rules affecting these areas. As with the common areas, the closer proximity to other units and areas where the public are likely to be affected with help ensure such provisions are viewed as reasonable. Furthermore, an outright ban might be viewed as unreasonable, whereas a requirement to provide for proper ventilation might withstand a court’s scrutiny.
Covenant Enforcement and Amendments
Some declarations contain language addressing disability accommodations and require owners requesting such accommodations to provide reasonable proof of disability. However, the level of inquiry into such matters is fairly superficial and is usually satisfied by a letter from a doctor or a prescription.
Many covenants prohibit “illegal activity.” However, when an activity is “kind of” legal, an association should determine whether enforcing its “illegal activity” prohibitions against that activity is the best course of action. With any area of the law that is untested, there is often a test case, which often means pursuing a case through the appellate courts. In such case, the parties might be involved in litigation for potentially four or five years, the cost and expense of which might not put the association in the most desirable light within the community.
As new issues arise, associations should be prepared to use the powers granted within their governing documents to address them. Because medical marijuana is a relatively new issue in community association law, most governing documents do not directly address the topic. We frequently advise condominium associations interested in banning smoking of any kind to pass an amendment to their declaration before making such a ban enforceable. We also strongly urge any association interested in adopting rules or imposing restrictions related to marijuana to consult with legal counsel beforehand. Don’t wait until you smell the reefer.