Melissa B. Ward, Esq. is a principal with Hughes Gill Cochrane Tinetti, PC in Walnut Creek. Her practice consists entirely of counseling HOAs in all areas of their governance and transactions. PISARCHYK ANDREI/SHUTTERSTOCK.COM
BEFORE RECREATIONAL AND expanded medicinal use of cannabis products became legal in California, handling issues related to cannabis was relatively easy: since its use was largely illegal, associations typically prohibited all cannabis products, except for limited exceptions for medicinal use. Now that use of cannabis products is legal for adults in California, associations are forced to consider new interpretations of existing restrictions.
This article looks at ways HOAs can approach effective enforcement of existing restrictions pertaining to smoking, nuisance and disability accommodations in the context of use of cannabis products.
Regulating smoking has always been a challenge for HOAs. Common area components including ducts and vents can allow smoke and vapor of all kinds to travel from the separate interests onto the common area or other units. In condominium projects particularly, association complicity in allowing smoke to travel (trespass, really) from unit to unit over common areas without some sort of enforcement response can frustrate residents who feel their health is being adversely affected by secondhand smoke and also undermine the ability of an association to enforce any policy restricting smoking. Additionally, failure to investigate the reason that smoke is travelling between units can result in significant liability to an HOA.
There is no longer a legal basis to distinguish between cannabis smoke or vapor and any other type of smoke or vapor. Associations should plan to vigorously enforce their smoking rules regardless of the type of smoke or vapor involved. As with any smoking policy, the association should first determine the level of prohibition of smoking (e.g., prohibited only in common area, whether to include EUCA patios and balconies, and whether a complete prohibition on smoking in the entire development is feasible and supported by local ordinances) and draft rules which support the desired policy. Next it is essential that upon receiving complaints about smoke transmission that the association immediately engage in an investigation to determine how the smoke is travelling and whether a common area element is implicated. Additionally, noticing a hearing to get more information from the affected owners and determine whether a violation of the governing documents has occurred is also recommended. Finally, the enforcement focus should be on requiring physical solutions to the smoke transmission problem, not engage solely in levying fines or other forms of discipline designed to deter smoking behavior.
In light of the prevalence of local ordinances pertaining to smoking and the statewide policy finding second-hand smoke to be a public health risk, associations should not be relying on general nuisance provisions to enforce smoking bans. Even if the local jurisdiction has regulations pertaining to smoking in common interest developments, the association should have its own specific restrictions in its CC&Rs (best) or operating rules (not as good as restrictions contained in the declaration, but much better than nothing). Strict smoking rules, particularly those found in the CC&Rs, support community buy-in for far-reaching smoking bans, prevent fires and other property damage resulting from smoking, and enable fair enforcement of rules pertaining to smoking and smoke transmission.
However, if for whatever reason, an association doesn’t have smoking rules in place, enforcement of smoke transmission activities that affect the health and well-being of neighbors can still occur using the nuisance provisions which are present in nearly all sets of CC&Rs. Nuisance provisions can also be particularly helpful in enforcement actions regarding related behavior not involving smoking, e.g., shutting down "grow houses" where cannabis is being grown in commercial quantities (and often uses excessive amounts of water, poses a security risk to the whole community, and may result in noxious odors and mold) or supporting local law enforcement in eliminating drug dealing from the community.
As with any enforcement action, enforcement of nuisance provisions in the governing documents requires investigation and likely a noticed disciplinary hearing. Police reports, logs of violations and other evidence of ongoing nuisance conduct is particularly important in these types of hearings.
Another challenging issue for associations arises when there are conflicting health needs related to cannabis use. This typically arises when someone with a medical need to use cannabis (perhaps for pain control or nausea relief) lives next to a person who is particularly allergic to smoke (or, like most of us, does not want to suffer poor health due to second-hand smoke exposure). In these cases, the analysis and plan of action is quite similar to a simple nuisance scenario. The biggest difference is that prompt communication and investigation is essential, because ignoring a disability accommodation request can in and of itself constitute discrimination and consequent liability for an association. You do not want to end up in front of the Department of Fair Employment and Housing as that venue is extremely disadvantageous and often unfair to associations.
Therefore, as with all situations where a disability accommodation is implicated, we recommend immediately consulting with counsel before taking action (or inaction). Thorough investigation of why smoke and vapor are moving between units is absolutely necessary. Such an investigation protects the association in two ways: (1) it ensures that the association is reasonably maintaining common area and is not allowing smoke and vapor to be transmitted due to broken HVAC systems or holes in walls, floors and ceilings; and (2) it allows the association to require that the person using cannabis for medical reasons be responsible themselves for making sure that smoke and vapor are not transmitted outside of their unit (or prohibit them from smoking on EUCA balconies or patios if this is found to be the source), because any other solution would be either impossible or prohibitively expensive, in other words, not a reasonable accommodation.
Remember, a reasonable accommodation is not necessarily a requestor’s first or preferred choice of accommodation. If the association has done everything reasonably necessary to seal off the common area from cannabis smoke without success, then it is likely that the resident seeking to use cannabis will have to use a delivery system which does not involve smoke or vapor if they are to be allowed to use cannabis in their unit. However, only if the association has the ability to prove that it has taken all reasonable action with regard to its own maintenance obligations will it be able to require an alternative accommodation which involves a resident modifying his or her own unit (perhaps by sealing off vents, outlets, or using special filters or ashtrays) or changing the delivery system of the medication (perhaps by using edible or topical versions of cannabis rather than smoking it).
In the end, enforcing rules regarding smoking cannabis is often the same as enforcing most other rules and restrictions. When conflict arises, prompt investigation, using experts as necessary, is key. Promptness avoids discrimination resulting from delay alone. Use of experts allows the board to comply with its fiduciary duty of consulting with experts, as well as providing information and strategies which only an expert can provide. Finally, noticing a hearing allows all parties to gather information and come to a cooperative resolution that respects the rights and needs of everyone involved.