With the approval of Amendment 2 last November to legalize the use of medical marijuana in Florida, the state legislature and Department of Health are now developing the rules and regulations that will govern the use of cannabis by those who suffer from a number of ailments listed in the new constitutional amendment. Likewise, now is also the time for associations to begin discussing and considering the implementation of their own rules and restrictions regarding the use of the drug by unit owners in their communities.
For most communities, the question of whether the use of medical marijuana should be allowed in the common areas will likely cause the most unease. Other concerns include the use of cannabis inside of the residences, especially in condominiums where the odor could permeate into the common elements or other residences, and some properties may wish to ban the drug from the community in its entirety.
It remains unclear whether the state’s lawmakers will attempt to ban the smoking of medical marijuana. If smoking marijuana is allowed under the laws that will be adopted in order to comply with the amendment, community associations will need to address whether they must make exceptions to their rules in order to allow residents with a doctor’s prescription to smoke medical marijuana.
The exact wording of the amendment sheds some light into the question of whether associations can ban the use of the drug in their common areas. It states that “[n]othing in this section shall require any accommodation of any onsite medical use of marijuana in any correctional institution or detention facility or place of employment or of smoking medical marijuana in any public place.” If the common areas of an association are deemed to be a “public place,” associations will be able to prohibit the smoking of medical marijuana in their common areas.
Because marijuana is still regulated as a Schedule I drug under the Federal Controlled Substances Act, many questions remain to be answered as to whether the Fair Housing Act will require associations to grant reasonable accommodations to patients who are prescribed the drug. Will the U.S. Department of Housing and Urban Development consider it a reasonable accommodation, given that the possession and use of cannabis remains a federal crime? The agency’s general counsel has previously gone on the record stating that an accommodation request for the use medical marijuana is not reasonable and does not have to be granted. However, accommodations may also be requested pursuant to state and local fair housing laws, and if such a request is made, a different rule of law may apply.
Given all of the questions that remain unanswered, community associations should tread carefully in their responses to requests for reasonable accommodations under the FHA by patients with prescriptions for medical cannabis. They will need to keep a close eye on the new rules and restrictions governing medical marijuana that will be implemented by the state legislature and take effect later this year, and they should consult with highly qualified legal counsel to chart the best course on this issue for their particular community.