Condo Media - October 2011 - 32

LEGAL

would prevent the smoke from migrating to other units. • Restrict smoking to designated areas outside of the building. The goal is to find an accommodation that meets the needs of the medical marijuana user without annoying or harming other residents. Rhode Island’s medical marijuana statute suggests another possible avenue for boards that want to ban the drug. The statute contains a provision specifically prohibiting the otherwise permitted smoking of marijuana “where exposure to smoke significantly affects the health, safety or welfare of children.” Rhode Island communities in which children reside might argue that this provision allows them to reject “reasonable accommodation” waivers of smoking bans that they would otherwise have to approve. But, again, it’s not clear how courts will react to this argument or any oth-

ers in what is an emerging and still largely undefined area of the law. Unless your community wants to finance a test case that will provide guidance for others, boards should do whatever they can to resolve medical marijuana disputes out of court.

Dealing With “Caretakers”
Most of those disputes will probably involve owners who are using marijuana, but some may involve “caretakers” who are growing marijuana for the use of others but aren’t using it themselves. The Rhode Island statute allows caretakers to possess up to 24 marijuana plants and five ounces of “usable” marijuana. The proposed Massachusetts statute also would permit 24 plants for caregivers plus four ounces of usable marijuana “for each qualifying patient” for whom the caregiver is responsible. This represents a sizable amount of marijuana — enough to make caretakers and users potential targets for thieves.

And the potential for crime is a major concern of residents who don’t want drugs of any kind, in any form, for any use in their communities. Depending on how it is worded, a bylaw prohibiting commercial activities might apply to the cultivation of marijuana for distribution to others. For example, if many clients visit the caregiver regularly to obtain their marijuana supplies, the activity might violate a bylaw barring home-based businesses that increase traffic in the community. The activity also might qualify as a nuisance if the odor of the plants (reportedly more pungent than the smell of marijuana smoke) bothers other residents. In any event, caretakers, unlike medical marijuana users, cannot demand a “reasonable accommodation” because they do not have a disability that requires special consideration.

Drug Evictions
Although Massachusetts does not have a medical marijuana statute — yet — another law, making possession of less than an ounce of the substance a civil rather than a criminal offense, is raising some questions about how landlords and community associations deal with complaints about the drug. Further complicating the issue, the Massachusetts Supreme Judicial Court (SJC) ruled recently that because the possession of a small amount is no longer a criminal offense, the smell of marijuana did not give a police officer probable cause to search a car after stopping the driver for speeding. A Massachusetts law (Chapter 139, Section 19) allows landlords to evict tenants found to be in possession of illegal drugs through an expedited eviction process that usually takes days rather than months to complete. In light of the SJC ruling, some are questioning whether the possession of less than an ounce of marijuana still qualifies as an offense justifying an eviction under this statute. Although possession of marijuana in small amounts is no longer punishable as a crime in Massachusetts, it is still illegal

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CONDO MEDIA • OCTOBER 2011

Condo Media - October 2011

Table of Contents for the Digital Edition of Condo Media - October 2011