When it comes to medical marijuana, it’s not what you know but who you know. That’s the best advice experts can give homeowner associations tackling smoking cannabis for medical reasons, according to Joel Meskin, Esq., CIRMS, CCAL, Vice President of Community Association Insurance and Risk Management at McGowan Program Administrators in Fairview Park, Ohio.
“It’s a little bit of the Wild West right now,” Meskin said, regarding sweeping changes in state laws throughout the U.S. legalizing marijuana use.
Currently, 23 states and Washington D.C. have legalized cannabis for medical use. More have pending legislation.
It’s a groundbreaking issue, said Meskin, one that will likely challenge many associations in the near future as they attempt to address residents’ concerns. And, it is one, he believes, should not be handled by boards without proper legal representation.
“A medical marijuana rule in a community association should not be developed and put into place without the advice of counsel, end of story,” Meskin said. “No matter what they do or what they debate, at the end of the day, at this stage in the game, take the advice of an attorney.”
According to Meskin, the board is a between a rock and a hard place when it comes to enforcing an association’s no-smoking rule on a resident smoking marijuana medically.
“If they are smoking non-medically, the smoking rule will apply,” he said. “But, when you put medically in front of it, the board is going to face unique challenges because the attorney that drafted the original no-smoking rule probably wasn’t thinking about medical marijuana at time.”
Meskin said boards are likely to face lawsuits from resident medical marijuana patients who are are told they cannot smoke under the association’s existing no-smoking rules.
“That resident will claim discrimination,” he said. “And, the association will very likely lose.”
Enforcing a nuisance rule to address the odor created by marijuana smoke could be equally challenging.
If a resident is smoking on their balcony and the smoke is wafting up to other units, Meskin said the rule may be enforceable. If the given scenario winds up in court, he said, compromise may be the key to resolving the dispute.
“People are really passionate about issues like this,” said Meskin. “The challenge before a board is going to be finding a reasonable accommodation, because if a board just says you can’t smoke weed anywhere, the board will be sued for disability discrimination, if medical marijuana is involved.”
“A knee-jerk reaction is not what you need to do here,” he added. Community Association Volunteer Boards are most often trying to protect and do the best and right thing for their community. Unfortunately, however, these issues are relatively new, changing daily and are very difficult for experienced attorneys. At this time boards need to defer to counsel.
Likewise, he advised against creating new rules that would ban smoking of all kinds entirely on both common and individually-owned property.
“The thinking behind that is if we include everything, we’ll be safe,” he said. “You won’t.” Meskin, also an attorney, said sweeping rule-making by a board can have unintended consequences that are far reaching. He also emphasized that such policy-making on a community’s behalf whether within a board’s discretion or not may be a trap for the unwary board.
“Even if I weren’t a lawyer, I would still say that decision is not within your pay grade as a board or association,” Meskin said. “You need to seek the advice of counsel to determine what the impact is going to be.”
Many claims result when a board does something it doesn’t need to do, Meskin said. In cases where a board attempts to regulate medical marijuana smoking, the entity charged with protecting the assets of the association should remember that.
“Part of protecting those assets includes the money used to pay an attorney,” he said. “Boards need to retain an experienced community assocaition lawyer that will assist them when a matter, such as medical marijuana smoking, goes beyond both their competency and an area where reliance of a professional current on such developing issues.”