If Condos Ban Smoking, Does it Include Marijuana?

Question: In our condominium, we have a rule that prohibits smoking on the lanai. However, recently an owner told me that he is going to obtain a prescription for medical marijuana and does not believe he can be prevented from smoking it on his lanai. What do you think? – M.A., West Palm Beach

Answer: This is a very cutting edge issue which has been thrust to the forefront in Florida due to the recent adoption of the medical marijuana amendment to the Florida Constitution. Secondhand smoke is a legally recognized nuisance, and it is quite common for associations to prohibit smoking on the lanai and other places because the smoke drifts into other units.

The Fair Housing Act requires associations to grant reasonable accommodations to persons with handicaps or debilitating medical conditions. A reasonable accommodation is an exception to a particular rule. In this case, the person would seek an exception to the no smoking rule so they could smoke legal medical marijuana. While this is a new legal issue and I am sure there will be more to come, my initial opinion would be that the board would not be required to grant an exception to the no smoking rule in this case.

The critical issue is whether the requested accommodation (I want to smoke medical marijuana on the lanai) is reasonable. First, the smoke in general is a nuisance, and in the case of marijuana may have an intoxicating effect, even secondhand. I think this is called a contact high. Second, there are other locations the person may be able to smoke, such as inside the unit, which will not affect others. Third, medical marijuana I believe can be ingested in other non-smoke producing forms. Finally, under current federal law, medical marijuana is still illegal. So for these reasons, at this early stage of analysis, I do not think an association would be required to grant an exception to a no smoking rule to allow the use of medical marijuana.