The passage of Prop. 64 (Marijuana Legalization Initiative) on the California ballot on November 8th is not a “carte blanche” (total permission) for the use of marijuana wherever and whenever people desire and decide to use it. Rather, the result is the de-criminalization of marijuana use accompanied by a complex series of regulations which will take time to put in place and to fully understand. The bottom line question for this article: can landlords ban the smoking of marijuana in order to protect their properties and their tenants from marijuana smoke? The answer very simply is YES.
Marijuana Smoking Can Be Regulated
The smoking of marijuana, like the smoking of tobacco products, can be regulated and even banned in apartments (and condominiums). But it is important to make that clear as soon as possible to existing and to prospective tenants. The use of marijuana is still illegal under Federal law, and a landlord can use this information to explain the reason for banning it. However, it may be more helpful to provide your tenants with information about the health risks of exposure to secondhand smoke from marijuana cigarettes and electronic smoking devices using marijuana.
Based on the many calls and e mails we have received from landlords and tenants even before the passage of Prop. 64, there is more worry about being exposed to marijuana smoke than being exposed to tobacco smoke. Landlords have the responsibility to provide a healthful environment for their residents. Smoking tobacco products or marijuana in a unit or on a balcony or patio may be a legal activity which enables the tenant who is smoking to use and enjoy the unit. But if that smoke drifts into another tenant’s unit, it could be preventing that tenant from using and enjoying his or her premises. In addition, the drifting tobacco or marijuana smoke could be considered trespass and/or battery and represents a serious health hazard.
Health Risks of Marijuana Smoke
Because marijuana is illegal under federal law, there have been a limited number of studies examining health risks associated with marijuana use and exposure in the United States. However, enough studies have been done to indicate that exposure to secondhand marijuana smoke has health risks similar to the health risks of exposure to secondhand tobacco smoke. In 2009, the California Office of Environmental Health Hazard Assessment added marijuana smoke to its Proposition 65 list of carcinogens and reproductive toxins. It reported that at least 33 chemicals present in both marijuana smoke and tobacco smoke can cause cancer.
Some of the chemicals include ammonia, arsenic, formaldehyde, hydrogen cyanide, lead, and mercury. In fact, marijuana smoke contains 20 times the amount of ammonia and 3-5 times more hydrogen cyanide than tobacco smoke.
In addition, secondhand smoke from marijuana smoke contains fine particulate matter that can be breathed deeply into the lungs. This can cause lung irritation, asthma and asthma attacks, and makes people more vulnerable to respiratory infections. This is especially dangerous for people with existing respiratory conditions. Because of the similar chemical composition of marijuana and tobacco smoke, exposure to marijuana smoke can also cause heart attacks and stroke.
Children are especially impacted by the effects of breathing secondhand tobacco smoke and perhaps by marijuana smoke as well. Secondhand tobacco smoke interferes with the ability to learn and causes children to be more likely to suffer from pneumonia, bronchitis, and ear infections. Secondhand smoke exposure can also cause asthma, and children who have asthma will have more asthma attacks and the episodes can be more severe.
The American Society for Heating, Refrigeration, and Air Conditioning Engineering (ASHRAE), is the organization that develops engineering standards for building ventilation systems. ASHRAE now bases its ventilation standard for acceptable indoor air quality on an environment that is completely free from secondhand tobacco smoke, secondhand marijuana smoke, and emissions from electronic smoking devices.
New regulations under Prop. 64 for marijuana use include the requirement that all locations with existing laws or policies with regard to tobacco smoke now include marijuana smoke as well. But it is wise for a landlord who has already adopted no smoking policies for his/her buildings to remind residents that the policy will now also include smoking of marijuana.
What about the use of marijuana for medical purposes? Although a tenant may request a “reasonable accommodation” under Fair Housing laws, we suggest as a compromise that marijuana can also be inhaled using a vaporizer or ingested using foods available in medical marijuana stores. It may also be possible to find recipes for preparing marijuana in cooked foods. However, there are still some illnesses and treatments of illnesses which make it difficult for patients to “hold food down.” It has been suggested that in these situations, the smoking of marijuana is the only measure that helps the patient to eat. If your tenant can provide a letter or prescription from a doctor that the smoking of marijuana is vital for nutrition, that may necessitate allowing marijuana to be smoked. Perhaps the landlord can provide an outdoor area away from the building where the marijuana can be smoked by that tenant.
Growing Marijuana in an Apartment Unit?
Can your tenant grow marijuana? With regard to cultivation of marijuana in an apartment unit, your tenant can grow up to six plants at any one time. Personal cultivation is subject to local ordinances, but none have been enacted as yet. Plants in excess of 28.5 grams must be kept in a locked space, and not visible from a public space. Persons 21 or older can possess, transport, purchase or give away to a person 21 or older not more than 28.5 grams of marijuana and not more than eight grams of concentrated cannabis. However, they cannot sell marijuana without a license. We understand that there is sufficient clarity in Prop. 64 which allows landlords to establish whatever policy they require on the use of marijuana and that could also include the growing of marijuana plants.
It is vital to include these requirements in your lease or contract.
Esther Schiller is the Executive Director of the non-profit organization Smokefree Air For Everyone (S.A.F.E.) and directs the Smokefree Apartment House Registry, www.smokefreeapartments.org For questions and additional information, she can be reached at firstname.lastname@example.org.