We are often asked whether a condominium association may prohibit cigarette smoking in common areas, or in units or single family homes. Now that using marijuana is legal in Oregon and Washington, some associations are wondering if they can or should specifically ban marijuana usage too. There are several things to consider. Here are a few of the highlights to begin the discussion.
For the majority of condo associations, the power of the association, acting through its board of directors, to regulate uses and behaviors in common areas is virtually sacrosanct. That means banning smoking of anything in common areas (and, likely, limited common areas, too) is often as simple as adopting a rule by board resolution. Regarding banning smoking within homes and units, the question becomes whether you want to ban the act of smoking completely, or just the presence of secondhand smoke that reasonably bothers other residents.
Generally, a community should use the least restrictive rule that accomplishes the association’s goal. (This is true for many types of rules, not just smoking). Some owners believe they have absolute freedom when it comes to what they can do in their homes or units, so even if the authority to ban smoking is clear, smoking prohibitions can definitely engender challenges (meritorious or not) from owners who smoke.
Naturally, a rule banning smoking altogether has a higher potential to engender legal and political challenges than a rule which does not ban smoking in units outright, but instead prohibits smoke from emanating from homes and focuses on the impact on other residents outside the unit. Boards would be well advised to consult association counsel to help with the drafting.
The relatively recent state-level legalization of marijuana for recreational and medical use brings with it the possibility of an association encountering a request for reasonable accommodation under the [federal] Fair Housing Act if that association has prohibited the smoking of marijuana at the condominium. The FHA prohibits discrimination on a number of bases. Relevant to marijuana use is the FHA’s prohibition on disability-based discrimination. Arguably, a flat out prohibition on use of marijuana could violate the FHA with regard to owners who use marijuana medically. The FHA Applies to all owner occupied condominiums over four units. Very generally, the FHA states that condo associations are required to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.
With regard to rulemaking and marijuana, the FHA requirements raise two points. One is that a board should consider a non-smoking rule that does not prohibit smoking marijuana in units, but prohibits the owner from allowing the smoke to emanate out of the unit. As discussed above, such a rule allows an association to control behavior that may bother other residents without completely preventing the activity, and, thereby, hopefully avoiding a request for accommodation under the FHA. Another issue is whether an association is even required to worry about requests for reasonable accommodations under the FHA for marijuana, when marijuana use-medical or otherwise-is still considered illegal under federal law. This is a developing area of the law and beyond the scope of this note except to say that if you receive a request for a reasonable accommodation to use medical marijuana, a you should consult legal counsel.
If your association needs assistance with the issue of smoking or marijuana use prohibitions, the team at Barker Martin is here to help.
* Obviously, Barker Martin are lawyers, so of course we have to point out that each association should first check its own governing documents, particularly the declaration and bylaws, for any unique requirements concerning the rulemaking process or reserved uses of common areas.
