Medical Marijuana in Your Community

In the 2018 elections, Florida citizens approved Amendment 2, which legalized the use of medical marijuana, by a 71% margin. Florida is on track to log more than $1 billion in medical marijuana sales by the end of the year, according to a report compiled by marijuana industry analysts New Frontier Data and Arcview Market Research. The full extent of this decriminalization of a Schedule 1 substance remains to be seen and much will depend on the rules governing medical marijuana which have yet to be passed by the State Legislature and the Department of Health. In terms of your community association, it is a safe bet that you now have owners or residents using marijuana in their unit or in the common elements or that they will request the use of same as a reasonable accommodation for a disability.

On March 18, 2019, the Florida governor signed the new medical marijuana changes into law. Currently known as Chapter 2019-1, the legislation expands upon the medical marijuana laws previously implemented. Of particular interest is that the revised laws now permit the smoking of medical marijuana to fall within the definition of “Medical use.” However, the smoking of medical marijuana is limited, and is still prohibited on public transportation, in a school bus, vehicle, aircraft, or motorboat, and in an enclosed indoor workplace. Moreover, additional requirements are imposed upon physicians making a determination that smoking is an appropriate route of administration, as well as imposing limits on the amount of marijuana that may be prescribed at one time. Additional labeling requirements have also been established for marijuana in a form for smoking, including a warning that it be kept away from children and a warning that marijuana smoke contains carcinogens and may negatively affect health.

SB- 182 Medical Marijuana. If it’s for medical purposes, does it fall under the ADA? If so, does your community association have to allow marijuana smoking where cigarette smoking is permitted? The legislation permits the use of smokable medical marijuana. The bill allows minors to smoke medical marijuana if they are terminally ill and smoking marijuana is approved by a second physician. Patients are limited to 2.5 ounces every 35 days, unless the Department of Health approves an increase at a patient’s request.

Naturally, the following questions have arisen with regard to private housing providers like condominium, cooperative and homeowners’ associations:

  • Do community associations have a duty to deny occupancy to residents who will be using a substance that remains illegal under federal law?
  • Can a Florida resident request a reasonable accommodation to use medical marijuana and must the association grant that request?
  • Can the association inquire on a purchase or rental application whether or not any of the proposed occupants in the home or unit currently use or plan on using marijuana?
  • Are owners who rent out their properties required to investigate possible marijuana use and deny applications accordingly if such use is confirmed?
  • Does the prescription for medical marijuana mean an individual automatically has a disability as defined by state and federal law?

If an association were to pass a rule restricting the use of marijuana, medically prescribed or otherwise, on the common areas and perhaps even inside the units, the Board would have to clearly articulate its reasons for doing so. In the case of marijuana those reasons might include:

  • The fact that the use of the substance remains a crime under federal law regardless of the permissible use for certain medical reasons under Florida law.
  • The fear that the smoke from marijuana may create a hallucinogenic effect and/or health impact on others.
  • The impact on minors who might witness the use.