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Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #79 • September 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, Esq.
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.

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