Medical marijuana: OK, it's legal. Now, how do we live with it?
Some 20 states have legalized the use of medical marijuana. But the struggle is just beginning over how to make it work where people live, such as this housing association in Phoenix.
TUCSON, ARIZ. — Cancer survivor Tom LaBonte had vowed to collect enough signatures in his Phoenix-area subdivision over the weekend to overturn his homeowners association's ban on marijuana use, but it won't be necessary. Amid an outcry from residents, the HOA rescinded the ban.
Mr. LaBonte maintains that the HOA was out of line in trying to keep people from smoking pot for medical reasons in their own homes and says he is glad common sense prevailed.
"They're there to dictate things about house callers and make sure that nobody does car repairs in their front lawn and have cars up on jacks, things of that nature," he says of association leaders.
This HOA in Chandler, Ariz., and others like it, more accustomed to dealing with gaudy decorations than pot smoking, are having to tread into uncharted waters as states increasingly liberalize marijuana laws. Arizona voters narrowly passed a medical marijuana law in 2010.
It's just one example of the issues arising across the US as new marijuana laws take hold. In Tigard, Ore., the city council voted Tuesday night to outlaw medical marijuana dispensaries, even before they become legal in March. Last week, a state Senate panel in Salem, Ore., heard testimony on whether municipalities should be able to issue such bans.
Meanwhile, Michigan's highest court last week ruled that cities cannot bar medical marijuana because that would conflict with the state's 2008 law that allows the use of medical marijuana.
"It's a brand-new ball game," says Bob Meisner, a Michigan attorney who focuses on laws related to community associations. "Associations are going to have to decide: Do they want to do anything about prohibiting this kind of conduct?"
Twenty states and the District of Columbia have adopted medical marijuana laws since California first allowed pot use as therapy in 1996, according to the National Conference of State Legislatures.
In 2012, Colorado and Washington State approved the recreational use of marijuana amid rising nationwide support for legalization. A CNN/Opinion research poll released in early January found that 55 percent of Americans support making weed legal, while 44 percent oppose it.
But opposition to legalization still runs high among senior citizens and those identifying as Republicans, two groups well represented in Arizona. Half of those 50 to 64 believe marijuana should be legal, but that number drops to 39 percent for those age 65 and older, the poll found.
While such differences may wash out in a statewide vote on whether to legalize marijuana, they can loom large for a housing association coping with the outcome of that vote.
To head off disputes, communities must find a balance between rulemaking and their state's marijuana laws, Mr. Meisner says.
Also coming into play: state and federal fair housing laws that mandate reasonable accommodations for residents with disabilities.
"Most of these associations probably don't have any prohibitions against smoking, let alone marijuana," Meisner adds.
At Carrillo Ranch in Chandler, the association board prohibited residents from smoking pot, either medical or recreational, in their yards and patios. The move set off a storm and, over the weekend, residents received a notification in the mail that the HOA had lifted the restriction.
LaBonte, who says he does not smoke marijuana but supports those who do for medical relief, says the board's reversal was the right decision.
Brian Lincks, whose Phoenix company manages the Chandler HOA, in a statement, called the experience "a teachable moment" and noted that associations will have to adapt to changing marijuana laws.
In Colorado, where pot shops cater to weed enthusiasts, attorney David Firmin says he doesn't believe that associations would have a problem banning marijuana smoking when it poses a nuisance, but they probably would have a tough time enforcing it.
Without a doubt, such cases eventually will end up in court, he says.
"The one thing that I continually hear is that the marijuana lobby is well-funded and that they're looking to challenge any restrictions on their rights," adds Mr. Firmin, who works with various associations.
In California and other states increasingly unfriendly toward tobacco use, attorney Kelly Richardson predicts that the question of how to handle marijuana in residential communities "will escalate the level of intensity of the anti-smoking sentiment in a lot of states."
"People may not go specifically after marijuana; they're going to go after any kind of smoking."
Richardson, who sits on the Community Associations Institute board, says the organization has fielded many calls from members across the country about what can and cannot legally be done about pot restrictions.
Gary Kujawski, HOA information officer for the Colorado Department of Regulatory Agencies, says his office is getting similar calls. He advises associations to seek legal advice.
Meisner, the Michigan attorney, says that given the proliferation of marijuana laws, it is to the benefit of associations – especially those in condominiums and townhouses sharing airways and tight space – to draft provisions that address marijuana use before any conflicts arise.
Another way to head off disputes is for pot users to be open to ways to accommodate their neighbors. Seeking alternative solutions may head off disputes over the use of marijuana, says Jason Smith, a Tucson attorney who puts on seminars about medical marijuana and their relation to HOAs.
Rather than smoke it, pot users can turn to pills, oils, and food products made with cannabis, he adds. Or, smokers can light up in a room outfitted with a special filtration system.
"If they're taking it for medical reasons, wouldn't a vaporizer be just as useful, if not more useful?" Mr. Smith asks. "I just don't know how convincing the argument is that they have the right to smoke it and impact other people as opposed to utilizing one of the alternative means."
But for LaBonte, the Chandler resident, the fight in his neighborhood was not just about the marijuana ban. "It's about individual rights of freedom and a homeowners association overstepping its bounds," he says.