Marijuana Matters: Has your association taken a shot at regulating pot?

As you’re probably aware, effective January 1, 2014, recreational pot became legal in Colorado. This new law is already affecting homeowners associations. While some associations started planning for pot smoking residents last year when the law was passed, not every community association moved quickly to adopt rules and regulations or amend restrictive covenants to address anticipated issues related to recreational pot smoking. If your association has not yet considered whether the new marijuana laws will affect your community, or if you’re thinking about how to tackle problems before they occur, here are some things to consider:

Shared spaces. Most associations have the authority to create rules and regulations that control activities in outdoor and indoor common area spaces. If your association already regulates tobacco smoking in these areas, the association, through board of director action, may consider extending those smoking policies to marijuana use. Associations should also evaluate the extent to which local laws interact with association rules and regulations and seek to fill any regulatory gaps that warrant attention in specific communities. Boards will want to pay particular attention to areas of their communities where use of marijuana will impact other residents. For example, with tobacco smoke, smoking near doorways and windows of other units are areas that typically result in complaints from residents.

Limited common area patios and balconies. Association boards can often regulate activities within limited common areas, but you will need to look to your documents to determine the extent to which your association can adopt rules affecting these areas. Patios and balconies in close proximity to other units are certain to give rise to complaints from residents affected by smoking neighbors. Associations should carefully consider how enforcement will take place if marijuana use is regulated in these areas.

Private residences. In contrast to associations’ ability to regulate activities in shared common areas, associations are not typically empowered to impose rules and regulations on how owners and residents behave inside their homes—at least not where private activities do not impact neighbors’ use and enjoyment of their homes. If your association’s recorded covenants do not prohibit smoking and a resident chooses to smoke in his or her home, the association board of directors most likely cannot simply adopt a rule that prevents that resident from lighting up. In most cases, the owners will need to approve an amendment to the declaration to restrict smoking within the units. It remains to be seen whether Colorado courts will allow associations to rely solely on nuisance provisions in their covenants as a way of prohibiting marijuana smoking within private residences. However, based on other related nuisance court cases, a Colorado court would probably only allow an association to rely on a nuisance provision under extenuating circumstances. If your covenants prohibit residents from doing anything that violates federal law, your association may determine that regulation of marijuana activities within the units is permissible without first amending the covenants.

Other considerations for resident rules. The new marijuana laws do not address use alone. Cultivation of marijuana is another factor for boards to consider. In addition, state and local fair housing laws come into play in the context of medicinal marijuana cultivation and use.

Employees. Associations with employees should implement policies concerning marijuana use on the job and showing up to work under the influence of marijuana. Court cases concerning employment practices suggest that employers are permitted to prohibit marijuana use by their employees.

Enforcement. As your association considers how to regulate marijuana activities in your community, give careful thought to how the association will enforce any new restrictive covenants or rules and regulations. Now that pot is legal in Colorado, local law enforcement may not be there to help. Associations will best position themselves for effective enforcement by creating rules with clear violations and not violations based on one person’s opinion. To the extent your association can document violations, you will have a better chance of holding the violator accountable. That accountability can come in several forms, including fines, suspension of privileges, and, in the more extreme cases, court-ordered injunctions.

Consult with legal counsel. The number of issues for boards to consider is too numerous to address completely here, and your community and its unique needs should inform how marijuana activities are regulated. Associations should always consult with legal counsel before adopting rules or imposing restrictions related to marijuana.