The State of Smoking Legal Marijuana vs. Smoking Policies

While the exhortation to “smoke ‘em if you got ‘em” has never really gone out of style, one should take caution before lighting up just anywhere. Many places, from restaurants to airplanes to hospitals, expressly and strictly forbid anyone from smoking anything at all. And while those nonsmoking spaces are fairly cut-and-dry, the rules are less uniform and absolute in condominium and cooperative residential properties. Some properties allow smoking in private units or even certain common areas, while other buildings conform to the restaurant/plane/hospital model and forbid smoking outright. It falls to an association’s board to decide whether and where residents can smoke. And, with marijuana becoming increasingly legal to certain degrees in various states, that smoking conversation is becoming ever more complex. 

Legalize It!

While marijuana is still illegal on the federal level, states have the authority to relax laws for both medical and recreational use with little threat of federal enforcement, as Colorado and Washington state have already proven via their broad approaches to legalization. Recently, Massachusetts has followed suit in legalizing marijuana, but there has been immediate push-back from some local legislators, and what is or is not permissible can vary, depending on where one resides. Condominium boards have their own responsibilities to draft and enforce rules that are in the best interests of their owners. The language and limitations formerly applied to cigarettes may provide a template as to how to handle pot on your community’s premises.

“We have been doing amendments in regard to marijuana since 2012,” says Stephen M. Marcus, a partner with Marcus, Errico, Emmer & Brooks, a law firm based in Braintree, Massachusetts. “We have language pertaining to cigarettes and marijuana that we commonly use in amendments. That said, one need not smoke marijuana, as it can be baked into brownies or cookies, used in gummy bears, etc., and thus it need not create second-hand smoke.”

For reference, Marcus provides an example of the kind of language he recommends regarding marijuana prohibition in common interest communities:

“Effective immediately, smoking shall be prohibited everywhere on the property of the Condominium including, but not limited to, individual units, indoor and outdoor exclusive use areas, and indoor and outdoor common areas. No Unit Owner shall smoke, or permit smoking by any occupant, agent, tenant, invitee, guest, friend, or family member anywhere on the property. Smoking shall include the inhaling, exhaling, breathing, carrying, or possession of any lighted cigarette, cigar, pipe, other product containing any amount of tobacco, or other similar heated, smoldering or lit product including marijuana.  The growing and harvesting of marijuana is also prohibited.  Notwithstanding the said prohibition against smoking, the Board may designate (or remove from designation), an outdoor area for smoking (except for marijuana), provided this smoking area(s) shall not cause secondhand smoke to drift into indoor common areas, exclusive use areas or individual units.  Notwithstanding the said prohibition against smoking, smoking (except for marijuana), shall be allowed in the following units (collectively the “Grandfathered Units”) but only until such time as the unit is conveyed or transferred. Grandfathered units occupied by tenants shall become no smoking upon current tenant no longer renting his or her unit.”

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