Reader Questions - Must We Accept Mary Jane in Our Building?

Kelly,

Our condo association started a “no smoking” policy, but one owner continues to smoke marijuana often. The HOA sent a notice to stop and called him to a hearing. He had an attorney send a letter stating he is “disabled” and alleging the HOA is discriminating against him. The owner continuously denies he is smoking anything, but continues to smoke. His unit is adjacent to mine and I smell marijuana often as it permeates through his walls into my unit. The HOA instructed me to keep a log of all this owner’s violations of the rule and I have. But they tell me we need still more evidence.

Is this a normal process? It’s my word against the other owner’s. My clothes reek of smoke for days. Should I have an attorney write a letter to the HOA stating the smoke smell gives me headaches and I have to open all my windows and turn on ceiling fans to get air to circulate?

J.V., Oceanside

Dear J.V.,

Has anyone noticed the neighbor has contradicted himself? If he denies smoking marijuana, why would he claim a disability? Fortunately for people who truly need marijuana for medical reasons, there are a number of delivery systems other than smoking. Edible forms and vaporizers may be available. Disabilities do not give neighbors carte blanche to do what they wish – the association is only required to make “reasonable” accommodations. If the disabled neighbor creates a nuisance for neighbors, that accommodation may become unreasonable.

Neighbor-to-neighbor complaints are always touchy for HOAs – who do they believe? In your case, if your clothing and unit remain smelling of smoke for hours, it would seem a director or manager could quickly observe the smell which is bothering you.

Consider asking for an internal dispute resolution meeting with the neighbor and the association. Hiring a lawyer should be your very last option, if everything else has failed. A good lawyer can be very expensive, and the cost of legal conflict can also be stressful.

Best,
Kelly

Dear Mr. Richardson,

My HOA is getting many questions and concerns, (all negative) from tenants and owners regarding the new marijuana laws. Is there anything that the HOA and/or individual owners can do to disallow its use? Our local apartment association recommends a full “no smoking” ban but this requires informing tenants and loss of good, paying, responsible cigarette smoking tenants. Would you address this?

E.O., Tustin

Dear E.O.,

The passage of Proposition 64 in 2016 did not give residents the RIGHT to smoke marijuana in their homes – that change in the law removed the criminal penalties of smoking or growing (up to 6 plants) in one’s home. A landlord or HOA can still ban marijuana smoking or cultivation, and a growing number of associations are doing that by amending their CC&Rs or rules. Such a ban, if desired to be permanent, is best included in an amendment to the CC&Rs, since rules can be changed by the board. If a resident documents a need for marijuana use due to disability, the association may dialogue with the resident about whether a non-smoking delivery system would meet the resident’s needs while not bothering neighbors.

Thanks for your question,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.