There is hardly any area of the law that is evolving and changing as quickly as the law surrounding marijuana, especially medical marijuana. Almost everyone is aware that in 2008 the voters in the State of Michigan legalized marijuana for medical purposes. We are now 10 years into that change, and still the parameters of the permitted use of medical marijuana are anything but clear. In the community association context, there have been a number of growing problems (pun intended) associated with the use of medical marijuana.
First and foremost is the permeation of the smell produced when marijuana is smoked. This remains an ongoing and contentious issue for many communities that often does not have a clear or easy solution. The user may expect that Michigan’s medical marijuana laws give him or her the automatic right to smoke inside his or her unit, especially if the purpose of the use is to treat an illness or disability. By comparison, neighboring owners may find the smell of the smoke offensive, or be concerned about its potential effects on their own health and well-being. In addition, the fact that marijuana use is still illegal under federal law regardless of Michigan’s medical marijuana statute creates further confusion as to whether the owner’s use of marijuana in the condominium is truly “legal.” Indeed, many individuals still consider marijuana to be on par with other types of illicit drugs and simply do not wish to permit the use, keeping, growing or smoking of marijuana within their communities (the term “reefer madness” probably still comes to mind for many older individuals).
The second issue is a product of the medical marijuana statute and its initial lack of a “supply” pipeline. Under the initial Act, the method for obtaining marijuana was either to grow your own or to sign up with a caregiver who is allowed to grow plants for each medical patient under their care.
This part of the Act was recently changed, when Michigan passed the Medical Marijuana Facilities Licensing Act (MMFLA) in 2016. This new law established a Board to regulate medical marijuana and also set up a framework to license and regulate facilities for the production of medical marijuana. In December of 2016, the Michigan Department of Licensing and Regulatory Affairs (LARA) issued rules and applications for licensing such a facility. The process is fairly expensive, and before a license can be granted, the local municipality must opt in to the MMFLA (in November of 2017, the residents of the City of Detroit voted specifically to opt in to the Act).
The impact of the MMFLA on community associations is that it could potentially reduce the number of co-owners who are growing their own medical marijuana in the condominium setting. This reduces the risks that may be associated with growing marijuana indoors. For example, co-owners may add electrical systems for “grow lighting” without the benefit of trained professionals, automatic watering systems that could flood, or fans and filters that cause vibrations and other nuisances for adjoining units. Despite the increased availability of marijuana that the MMFLA may ultimately create, the MMFLA should benefit condominium associations in that users may find less of a need to grow the plants within their units.
The nuisance issue relating to the smell created from marijuana smoking may require even greater attention from condominium boards in the very near future. A ballot proposal to legalize recreational marijuana is quite likely going to be on the 2018 Michigan ballot. If that provision passes (it was recently polling at about 60% in favor), then it may become necessary for associations, if they desire, to take more aggressive action to combat the smell/nuisance issue in their communities. Associations that still wish to prohibit recreational use/smoking of marijuana may have no choice but to amend their condominium bylaws to completely ban the smoking of marijuana (and perhaps smoking generally) on the common elements and/or within units so as to avoid the problem of having to prove a “nuisance” has occurred every time the problem of marijuana smoking arises and a complaining co-owners asks the association to take action. Of course, we would recommend that associations only draft and attempt to adopt such smoking bans with the assistance of qualified legal counsel, given the complexity of the issues involved and the possible challenges and opposition that could arise from pro-smoking elements in the community.
In short, the law regarding medical marijuana use continues to evolve almost daily. As the trend across the nation has been a greater acceptance of marijuana use generally, community association boards will no doubt encounter this issue on an ever-increasing basis.
Mark B. Davis is an associate attorney with the firm. He has extensive experience in community association law and has been with the firm since 2007. Mark served honorably in the U.S. Army, achieving the rank of Sergeant as an infantry soldier. His particular expertise in community association law includes marijuana law, collections, litigation (both federal and state), Fair Housing matters, and bankruptcy law. He is a member of the Marijuana Law Section of the State Bar of Michigan and frequently conducts seminars for community association organizations (such as UCOM) as well as the ZDF Condo & HOA B.E.A.T. Program on the subject.You can reach Mark at our Plymouth office at 734-459-0062 or via email at firstname.lastname@example.org.