Barney Weinkle, Managing Director, AKAM On Site Inc., Dania Beach.

Not since the release of the Cheech & Chong movie "Up in Smoke" has there been so much discussion about smoking medical marijuana in Florida, especially in condominiums. Due to the ever-increasing number of condominium developments in South Florida, associations, owners and residents are abuzz about restrictions and regulations preventing owners who wish to indulge in smoking marijuana in the privacy of their own apartments or on their balconies. It may be high time for condominium associations, and their respective management companies, to take a more direct approach.

Florida's medical marijuana market is booming, with an average of nearly two dispensaries opening each week across the state. The number of enrolled patients recently blew past the 200,000 mark with now more than 10,000 new patients signing up each month. Florida voters passed Amendment 2, legalizing medicinal marijuana in 2016. On March 18, 2019, Gov. Ron DeSantis signed 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 such as in a school bus, vehicle, aircraft, or motorboat, and in an enclosed indoor workplace.

Analysts predict that Florida's medical marijuana market may approach $1.1 billion by 2020. To be to blunt, the number of owners and residents smoking marijuana in condominium units and common areas is blooming rapidly. As a result, many property managers are seeking guidance and clarification on the law, to better understand how to handle issues that may arise.

Many condominium associations are cracking down on residents who smoke marijuana in their units or in common areas. Even as acceptance of medical and recreational marijuana use grows across the nation, there's an increase in neighbors objecting to the odor. Some fear health concerns from second hand smoke creeping into their own homes through ventilation systems. Some merely object to the idea of it going on around the corner, in the next apartment or in a shared hallway. Condominium associations should maintain a record of all marijuana smoking complaints it receives. It important that the condominium associations keep a report that includes information such as the date and time, the name of the parties involved, and any health concerns expressed by the complainant.

It appears that in most cases, a condominium association is well within their right to ban an owner or tenant from smoking marijuana in their buildings, even if the building's bylaws and documents are changed well after the resident has moved in. If a condominium association bans all smoking, including tobacco, it may be harder to prove discrimination if tenants cannot smoke their medical marijuana. There is also discussion about the type of device that is used to ingest the marijuana, which could have a bearing on owner's rights as well.

It is important for association property managers to establish a policy regulating the use of medical marijuana, including the ability of an owner to smoke medical marijuana on limited common element property or common element property. The new law does not specifically address a condominium unit owner's right to smoke medical marijuana in his or her unit. Presumably, a unit owner now has a legal right to do so, however, this right may be limited by other restrictions in the governing documents and rules and regulations prohibiting the interference with the rights of other unit owners to peaceably enjoy their units. The condominium board should carefully review their governing documents. These typically include bylaws, covenants, conditions, and restrictions as well as rules and regulations. When reviewing these documents, look for any provisions that relate to "smoking" or "cigarette smoke." There may already be a rule that prohibits smoking in units or in common areas. Also look for language that prohibits owners from creating nuisances. Many condominium associations have outlawed smoking altogether and others have recently encountered a lot more issues enforcing the no-smoking ban due to the increase of medical marijuana smoking.

The fact remains that smoking marijuana is still against federal law and most condominium governing documents require compliance with all laws for the use of your unit. That really puts condominium associations in the dilemma of enforcing your governing documents against somebody who may in fact be under a disability and is operating lawfully under your state law for medicinal purposes. In many cases, those will be persons with disabilities under the federal Fair Housing Act and the Americans with Disabilities Act. Although a condominium association may have rules restricting owner's actions, disputes may arise by attempting to enforce them.

Condominium association property managers should contact their property's legal counsel to discuss implementation of a policy regulating smoking or vaping of medical marijuana. Due to the potential liability and legal uncertainty this issue poses, the condominium association should seek legal advice from an attorney. Regardless of what action or inaction the condominium association is considering, legal advice is critical ensuring the board does not get involved in a lawsuit. Should it be necessary to modify existing rules and regulations regarding smoking or vaping of medical marijuana, all changes should be communicated to owners and renters in a timely manner.

Barney Weinkle is a managing director with AKAM On-Site, Inc., a leader in South Florida's residential property management industry. He may be reached at: [email protected].