How Community Associations Are Adapting to Legal Marijuana Use

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The Prairie State is now over six (6) months into its experiment with legal marijuana, as the Cannabis Regulation and Tax Act (“Cannabis Act”) went into effect in January. Community managers have seen an uptick in marijuana odor complaints as COVID-19 keeps folks in their homes for both work and recreation, and as more association occupants expand their definition of the word “recreation” to include cannabis usage. Suffice it to say, Illinois cannabis dispensaries, like Netflix, backyard kiddie pool makers, and toilet paper distributors are making money hand-over-fist during the novel coronavirus pandemic.

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At the end of 2019, the shared fear among boards and managers was that they would have to field constant complaints of marijuana odors and nuisances from those community members who oppose the use of cannabis in the association and demand board action.

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So, were the fears realized? How are associations adapting to legal marijuana use? We’ll answer those questions, along with a few others, but first, a quick refresher: the Cannabis Act added Section 33 to the Illinois Condominium Property Act (“ILCPA”), which allows condo associations to ban cannabis smoking via combustion anywhere on association property including within the units. The ban must be enacted via a declaration amendment with unit owner approval. The association, however, may not prohibit the use of marijuana within units through other, less conventional methods, such as consuming food or beverages infused with cannabis, cannabis-infused topical ointments, or “vaping.” There was no such amendment for HOA’s and townhome associations governed by the Common Interest Community Association Act (“CICAA”).

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1. Are the non-smoking amendments working? 

To a large extent, yes. Given the expansive methods of using cannabis, a quick warning to smokers in a building that has adopted a declaration ban should usually do the trick. Declaration prohibitions are the “gold standard” for limiting smoking, and most cannabis users understand that. One cease and desist letter will usually result in the user switching to another, less offensive method (again, ointments, tonics, cannabis-laden “gummy bears” – the sky is truly the limit when it comes to ingesting cannabis these days). Thus, provided a board follows the proper steps to prohibit smoking via amendment, community managers and boards are generally (with certain exceptions) seeing those limitations respected.

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2. Do we need to update our rules? 

Yes, probably, if your association’s rules do not already discuss cannabis usage in some firms. Short of an association amending its declaration or bylaws to prohibit smoking in units, a board may adopt rules (without owner approval) that put some limitations on smoking, such as banning cannabis use in the common areas, requiring specific mitigation methods to prevent too much smoke seeping from within a unit into the common elements, etc. Carefully drafted rules can avoid problem escalation so long as those rules are in place preemptively. Stated another way, boards should not wait until marijuana smoke becomes a problem to update the rules. Get with the association’s attorney and put the rules in place to get in front of any issues before they occur. 

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3. What about conflicting rights and demands, where one individual cites a medical need to smoke marijuana, and another cites a medical issue with second-hand smoke? 

Let’s start by talking about the “right” to smoke marijuana and the “right” to live in a community association without second-hand smoke. 

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First, some cannabis users like to cite a right to smoke cannabis for medical use as a “reasonable accommodation” under the Federal Fair Housing Act (like the right to have a support animal). However, marijuana use (medical or recreational) remains illegal under federal law, so citing federal law is a dead-end. However, while the board must make certain accommodations under Illinois state law, the requirement for a board to reasonably accommodate traditional “smoking” is questionable. Most attorneys take the position that a board’s responsibility to reasonably accommodate a medical user need not extend to smoking cannabis in the traditional sense – certainly not where there are multiple alternative methods for cannabis use. 

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Second, some association occupants like to cite their right to live in a smoke-free environment due to health concerns or issues, which is a flawed argument as well. While an association must accommodate individuals to a certain extent, and consider the health and well-being of all residents, a board cannot ban smoking unilaterally simply because an occupant has a medical sensitivity to second-hand smoke. The extent to which the board is responsible for taking certain actions remains questionable and highly fact-specific. A case in the state of Maine involving a condo association, a medical-marijuana user, and a unit owner who claims the smoke aggravates her medical condition is now working its way through federal court. While that case is pending, it’s possible the whole mess could have been avoided if the association had a firm smoking policy in place before the issue arose. 

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4. Can Unit Owners grow marijuana? If so, can they do it on a Limited Common Element patio or porch? 

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The Cannabis Act only allows medical marijuana patients/users to grow marijuana for personal use, but those medical users must have a medical marijuana card. Those users may have up to five (5) plants at a time. Non-patients are not allowed to grow marijuana in their home. 

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Furthermore, Section 10-5(b)(4) of the Cannabis Act also prohibits growing a plant in “a location where they are subject to ordinary public view” or where the plant is accessible to “unauthorized access.” Thus, even a card-carrying medical marijuana patient may not grow his/her plants on a townhome patio where neighbors or other owners can see the plants or where a person can walk onto the terrace and grab it freely. In that case, the board can demand the plants be moved to a less conspicuous location.

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5. Aside from rules and amendments, what else should we do to control the situation?

After robust rules and carefully drafted declaration language, encouraging frank discussion among neighbors should be the first line of defense against any nuisance. As marijuana use becomes more prevalent and socially acceptable, the preferences of different occupants are going to conflict. To the extent the board can help facilitate communication among neighbors who may have issues with one another – one neighbor who dislikes marijuana odor versus another neighbor who likes to smoke within his/her unit – the better off the association will be. Sometimes, a dialogue between two neighbors can be far more constructive than board involvement, letters from attorneys, and the levying of fines.

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Article provided by Nicholas Bartzen, ESQ. Altus Legal, LLC.