Medical Marijuana and ESA Trends - Checking in Again with FHA Expert JoAnn Nesta Burnett
Aug 30, 2023
Donna DiMaggio Berger
Are you confused about whether your board can stop residents from smoking marijuana in your community even if they claim it is for medical purposes? Join Donna DiMaggio Berger and guest JoAnn Nesta Burnett, Shareholder at Becker, as they unravel the intricacies of marijuana use within community associations. Donna and JoAnn dig deep into the U.S. Department of Housing and Urban Development’s (HUD) current position on complaints related to medical marijuana and look closely at the proof required for smoking accommodations. They also explore the potential dilemmas posed by marijuana use, particularly in multifamily buildings, and discuss strategies that associations can implement to shield themselves from legal repercussions.
Shifting gears, Donna and JoAnn delve into the emotionally charged topic of fraudulent ESA and service animal requests. Their discussion reveals some bizarre requests for accommodations, such as chickens and bees! They share valuable insights on how these requests can impact homeowners’ associations and equip you with practical advice to navigate this minefield. Tune in to learn how to respond to ESA and service animal requests.
Conversation highlights include:
HUD’s position on medical marijuana use in multifamily properties
Handling an employee's medical marijuana breaks
Using an “unlawful use clause” to restrict marijuana smoking
Using a “nuisance clause” to address marijuana smoke odor
HUD’s criteria for evaluating reasonable accommodation requests for emotional support/service animals
Are you confused about whether your board can stop residents from smoking marijuana in your community even if they claim it is for medical purposes? Join Donna DiMaggio Berger and guest JoAnn Nesta Burnett, Shareholder at Becker, as they unravel the intricacies of marijuana use within community associations. Donna and JoAnn dig deep into the U.S. Department of Housing and Urban Development’s (HUD) current position on complaints related to medical marijuana and look closely at the proof required for smoking accommodations. They also explore the potential dilemmas posed by marijuana use, particularly in multifamily buildings, and discuss strategies that associations can implement to shield themselves from legal repercussions.
Shifting gears, Donna and JoAnn delve into the emotionally charged topic of fraudulent ESA and service animal requests. Their discussion reveals some bizarre requests for accommodations, such as chickens and bees! They share valuable insights on how these requests can impact homeowners’ associations and equip you with practical advice to navigate this minefield. Tune in to learn how to respond to ESA and service animal requests.
Conversation highlights include:
HUD’s position on medical marijuana use in multifamily properties
Handling an employee's medical marijuana breaks
Using an “unlawful use clause” to restrict marijuana smoking
Using a “nuisance clause” to address marijuana smoke odor
HUD’s criteria for evaluating reasonable accommodation requests for emotional support/service animals
How to address criticism of rule enforcement
Speaker 1:
Hi everyone, I'm attorney Donna DiMaggio-Burger and this is Take it to the Board where we speak Kondo and HOA. On today's episode we are going to talk about marijuana, also known as cannabis, weed or pot. These names all refer to the dried flowers, leaves, stems and seeds of the cannabis plant. The cannabis plant contains more than 100 compounds, which include THC, which is impairing, meaning it causes the user to feel high, and CBD, which is not impairing. Marijuana was temporarily categorized as a Schedule 1 narcotic under the Controlled Substances Act of 1970, but a review led by Pennsylvania Governor Raymond Schaefer recommended decriminalizing the possession and distribution of marijuana for personal use in 1972. Then President Richard Nixon chose to ignore that recommendation and marijuana remains illegal at the federal level to this day.
Speaker 1:
However, more than 50% of the states have legalized marijuana for medical use. Many states are also legalizing marijuana for recreational use. Still, using marijuana is not without some health risks, including a negative interaction with some prescription drugs. Problems surrounding marijuana usage have increasingly become a problem for a growing number of multi-family communities. My partner, joanne Nesta-Bernett, is back on the podcast today to discuss marijuana and your community association Now. Many of you may remember Joanne from her episode last season on emotional support and service animals. That episode remains one of our most listened to episodes and, joanne, you are our first repeat guest I've taken to the board, so welcome back.
Speaker 2:
Thank you so much for having me. I appreciate it.
Speaker 1:
Well, I'm sure you're going to have a lot of listeners for this episode too. So the first question I want to ask you is what does the US Department of Housing and Urban Development, or HUD? What does HUD have to say about the use of marijuana in multi-family properties?
Speaker 2:
Well, as you just said, it is still considered. Marijuana is still considered a substance, one drug, and it is still considered a crime to smoke marijuana or any kind of form of marijuana at this point. So HUD has advised that they will not accept a HUD complaint based on medical marijuana. So if someone were to claim that they needed to use medical marijuana as an accommodation and an association didn't permit it and they tried to file a HUD complaint, I was told that HUD would dismiss that complaint.
Speaker 1:
Okay, so that's huge that if an association goes after somebody for smoking medical marijuana as a nuisance, so in their nuisance clause the neighbors are complaining about the odor, the, you know the rim of smoke, and that individual, the user of the marijuana, complains to HUD and tries to file a complaint. You're saying you've been told that HUD, as of right now, will not entertain that complaint.
Speaker 2:
Correct. Hud will not investigate that complaint and will dismiss it because they do consider it a crime.
Speaker 1:
Well, I think we can just end the episode here, all right, but we won't. We won't. So when you were last on the podcast, we talked about the criteria to evaluate a request for reasonable accommodation for pet restrictions for individuals who are claiming they need a service or a support animal. One of the things I was going to ask you, before you just dropped that bombshell, was what kind of evidence would somebody need for an accommodation to smoke medical marijuana? Do we even need to entertain this now that, what is said? They're not going to listen to these complaints?
Speaker 2:
I still think we have to entertain them and the reason is, although HUD may not do anything with this and while a federal claim may not be permitted, I have seen at least two cases brought where defense counsel has been brought in to defend the claims and I've always said move to dismiss these claims based on the federal statute. Most of them end up settling. So there's no clear line of case law. But because we have Florida Fair Housing Act as well as the medical marijuana statute, which I believe is found at 381.986, if an association denies someone the right to smoke medical marijuana or any other form of marijuana, there's a potential for a state FHA violation.
Speaker 1:
Right. So what does somebody have to do? And to prove that they have the need, first of all, that the marijuana they're smoking is indeed medical marijuana.
Speaker 2:
Usually they're given some type of a medical marijuana card and based on that, I don't think we would need anything further. As long as someone can show that they have a prescription in their name for the marijuana, that should be sufficient.
Speaker 1:
Is there any ability to get that card off the internet, like we see with people who print out the prescriptions for support and service animals? In other words, you say, all what they need is that card, but is there any way to get that card without actually having to prove that you have a medical?
Speaker 2:
need for it. I can't say what happens in other states. I can tell you in Florida there's no way to get a card without having gone to a doctor, been evaluated and then the card issuing.
Speaker 1:
Would you want to see the original card, or is a copy, okay? Is a scan of it? Okay? I mean, are there any guardrails regarding how you would you know how you would think somebody would best present that evidence?
Speaker 2:
I'm sure it would be great to be able to get your hands on the actual card, but in theory you're probably not going to. You're probably going to get a copy.
Speaker 1:
Okay, and no need for a medical letter from the treating physician, just the card itself.
Speaker 2:
The card itself should be sufficient here in Florida, because that means a doctor has evaluated you, has determined that you fall within the criteria of a disability, within one of those listed diagnoses, and that medical marijuana is the way for you to relieve your symptoms. So I don't think we would be able to request a letter although again, hud's not involved in this and I'm always thinking from a HUD perspective but under the Florida Fair Housing Act we probably would still be okay with just the card.
Speaker 1:
So let's say we have a card and the card is saying you know, mrs Smith is entitled to use medical marijuana. Does the card actually say for what type of condition, or just says this person is entitled to use medical marijuana? Just say they're entitled to use it. Okay, and I would assume please confirm that the devices don't ask what your condition is, that you're using this medical marijuana.
Speaker 2:
Absolutely never. Ask for a diagnosis only whether you have a physical, mental disability.
Speaker 1:
So the next question that I get asked a lot from boards is okay, so we agree, they have the card, they have a need for medical marijuana, but do they have to smoke it? Because when they smoke it, everybody can can smell the fumes and sometimes they feel like they're actually. Remember, I said in the introduction, there's THC and CBD. When you're smoking it, you've got the THC, which is the impairing component. Is there an ability to say okay, we understand you need medical marijuana, but what other form can you use it other than one that's going to potentially impact your neighbors?
Speaker 2:
I think it's certainly a fair question to ask. From the research that I've done, a lot of people use edibles or vape instead of use you know actually smoking marijuana. My understanding from the research that I've done is that a lot of times people will claim that the edibles or vaping are not as strong as actually smoking marijuana. So people with severe pain someone's using this for chronic pain or something like that they may claim that they're unable to use the edibles or to vape. It just doesn't give them the same type of amelioration of their disability. So we can always ask, always try and see what we can do there and some people will be agreeable, some will not, but it's going to depend on that and in fact I think that there's something in the statute that addresses you know, there's some people that can get additional marijuana to be smoked. That's a larger dose than what's normally prescribed. You have to go to see a second doctor, I think things like that. But it really is going to depend on the person and whatever their disability might be.
Speaker 1:
I mean unless somebody is bed rid and so they have to smoke the marijuana from the bed or the couch because they really cannot move. Let's assume we have somebody who is mobile. One question I get asked a lot show and as well why can't they just take their medical marijuana off premises right where they're not smoking it, in the unit around the balcony, where it's impacting other people? I really know the answer to this. I don't. You know. I don't know that there's places around where you can just, you know, drop by and smoke your medical marijuana. The other issue is in a lot of our communities they do have designated smoking locations in the community, but when you're talking about marijuana, there is still that stigma. It is still a crime. We still have many parents who don't want children smoking marijuana and they don't want their kids walking past a designated smoking spot where people may be, you know, getting hot. Have you come across?
Speaker 2:
any of those issues, I have it. In fact, in doing some research for this, I found out that there are a lot of proponents of. We know that marijuana is going to be smoked now. That's a fact. So what we need to do, then, is to try and find outdoor common use spaces and social use locations that maybe are, you know, somewhat segregated from the hotspot common elements. You know, let's not go smoke at the pool, let's have this, you know, somewhere away from the busier areas, in the green, screened off, screened off from view for people, right? So try and set something up that is going to allow people to do this, and if we do that, then perhaps we'd have much less people who are fighting it, you know, less complaints, less problems Depending on how many people are in this designated spot, and could wind up like a grateful dead concert.
Speaker 1:
Absolutely true, there should be some signage. I mean, listen, there's still the stigma, for sure, even though there's many states now that are, you know, allowing the recreational use of marijuana in addition to medical usage. But at the outset I asked you about bringing a cause of action. So a condo board calls and says, look, we've got this problem. You know, obviously this person is smoking marijuana, it's coming through, it's smelling up the corridor, getting complaints. So we decided we're going to do something about it. Most governing documents have an unlawful use clause which prohibits owners and residents from engaging in activities that are unlawful. As we said at the outset, this is still a crime. So is that a clause that you use, joanne, when you're asked to go after and enforce against somebody who's smoking marijuana in a building?
Speaker 2:
Yeah, it's probably not what I would use, and the reason being because under state law, if it's medical marijuana, it is permitted, so they're technically not. It's not a crime, you know, under Florida law, while it's still a crime under federal law. So I'd probably go for something else in the documents.
Speaker 1:
What about nuisance? So I'm like you know, yes, cigarette smoke has a you know, and pipe smell, for in cigar smoke all really irritating. But marijuana has a very distinctive odor. Some people like it, a lot of people don't. Do you use the nuisance clause?
Speaker 2:
I would use the nuisance clause as my first plane. Yes, absolutely. In fact. I had a call yesterday from a potential new client who is a unit owner within a condominium and he has asthma, severe asthma. His adult child has severe anxiety whenever he smells it for whatever reason. That's a trigger for him, and the next door neighbor smokes marijuana out on their balcony and it seeps right into their unit and it's a problem for both of those individuals. He asked the association to make an accommodation for him and have the unit owner at least smoke within the confines or within the boundaries of the unit, and the association's taking the position that they're not getting involved. So if we were representing the association we would probably try and work this out with the unit owners and see what we could do, but in this case we're likely going to end up in court and perhaps the trespass cause of action because the smoke is seeping into his unit.
Speaker 2:
It could be. In fact, there's really not a lot of case law on this at all, but I did find a DC trial court case where one unit owner sued another unit owner for nuisance and that unit owner prevailed. Now it didn't go up on appeal, so it's not a case we can rely on or anything like that. It's not going to set precedent, but it is out there.
Speaker 1:
So the association who didn't want to get involved again. If I was association counsel, one of the things I would point out to the directors is look, you have a fiduciary duty to enforce the governing documents and I have never seen a set of governing documents that's not contained in nuisance clause. They actually all contain unlawful use clauses as well. So, yeah, I you know certain things. You just boards can just not take a hands-off approach, and I would think this would be one of them. So we let's talk about a community. Like a lot of our large 55 and over communities, they have an abundance of recreational amenities. A lot of times they have these theaters where they put on shows and it's open to the public so people can come. Now you've got potential ADA issues as well. So what if somebody coming into those type of communities claims that they, you know, need to smoke their marijuana In a common element type area.
Speaker 2:
Yeah, that, I think, is going to be a problem. Like I said, if there's not a designated area for smoking, then in my opinion, at this point in time, unit owners should be confined to their homes or to their units to smoke marijuana.
Speaker 1:
Let's talk about employees. So a lot of our communities have employees, whether they're you know, whether they're the management company's employees or they are direct employees of the association. What happens if an employee says I have to take a smoke break and the the smoking they're doing is marijuana.
Speaker 2:
Right, so I'm not an employment lawyer, so I did. I did discuss this issue with Jamie DeCovna from our firm, who is an employment lawyer, and she told me that, generally speaking, if you have a drug-free workplace, there is no need to just like under the Fair Housing Act, under the ADA, there would be no need to accommodate someone to allow them to smoke while they're working. Now they might be able to smoke on their own time, on their off time, but they shouldn't be smoking on property in those, you know, smoke-free or drug-free workplaces.
Speaker 1:
I just want to be clear though we're talking about marijuana. That doesn't impact. If you have a drug-free workplace and I want to go have a cigarette that's not going to be impacted.
Speaker 2:
We're talking about smoking marijuana Right, smoking marijuana, not smoking cigarettes.
Speaker 1:
So, again, you know that's. You know, we have a lot of associations who are direct employers, joanne, and who have not taken the steps to to create a drug-free workplace, so that may be something that some of our listeners want to consider after listening to this episode.
Speaker 2:
Absolutely, and Jamie explained to me that there are some insurance benefits and things like that to drug free workplaces. So you know, oftentimes an employer will want to take advantage of that.
Speaker 1:
So a lot of our clients, as you well know they have, their units are leased out and a lot of them want to create some guardrails around the leasing relationship to protect the association because, frankly, the owners who are leasing out their units they're concerned mostly about the amount of rent they're going to get each month. One of the things we do is we create a uniform lease rider and it inserts certain protections for the association. Recently some clients have asked if they can add language into a uniform lease rider that would allow them to evict any tenant found to be using marijuana, smoking marijuana, medical or otherwise inside the units. If that language were added, do you think that creates any sort of fair housing issues?
Speaker 2:
I think again, it could cause, it could create a problem under the Florida Fair Housing Act. Now, the good news about that is because HUD would not be involved. That person, who the tenant that wants to smoke marijuana, or whatever the case might be, they would actually have to file suit. I mean, there's nothing short of that, because there is no administrative procedural issue to this at this level, so it would have to be a state court action.
Speaker 1:
And there are some barriers to entry for most people when it comes to that. But you just, that's a perfect segue, because I wanted to ask you if it were regular smoke, just excessive secondhand smoke from a cigar or a cigarette, would that be subject to arbitration in Florida under 718.1255? Yes, it would, yes, it would. What about marijuana, though? If it's marijuana smoking?
Speaker 2:
Again. Well, now the division does not have jurisdiction over claims regarding disability or fair housing, so they would not I don't believe they would accept jurisdiction over a medical marijuana complaint. Gotcha.
Speaker 1:
But is the excessive secondhand smoking complaint related to nuisance and cigarette smoke? They would accept jurisdiction over that?
Speaker 2:
Yes, they would so. If an association, if one of our clients, were to file a petition for arbitration with the division to prevent a unit owner from smoking marijuana, what I think the arbitrator would do is accept jurisdiction of the claim, strike the defense and then tell them to go file a HUD complaint within 30 days, which is what they typically do. But in this situation there is no HUD complaint to be filed. So I'm guessing and I have not seen this, I haven't come across it yet I'm guessing the arbitrator would then strike the defense and have the case proceed.
Speaker 1:
Interesting, I said at the outset, your episode, Joanne, on emotional support animals, the animals and service animals. It remains one of the most listened to episodes on Take it to the Board. I remember you mentioned one case that still sticks with me. That I still mentioned to people is a case involving 28 sheep and four goats, I think, or vice versa. Do you have any updates for us in terms of these kinds of cases?
Speaker 2:
Well, those sheep and the goats are gone. We prevailed there. The newest request for accommodations for animals now are chickens. I have three cases right now where people want multiple chickens in one of our homeowners associations. So you look out your backyard and there's a unit owner or a homeowner with a chicken coop. That's literally. I mean, you can hear the chickens clucking, you can smell the waste. It's terrible, it's absolutely terrible.
Speaker 1:
I have a theory as to why this is and you may laugh, but we both have, you know, adult kids is it's being driven by TikTok and the celebrity craze for chickens? I'm telling you, I think that's what it is, because a lot of these celebrities have their, you know, homes in Montecito and they've got their chickens and they put it on TikTok. That's, that's my theory.
Speaker 2:
They have quite a bit of acreage as well. This is, you know, a homeowner's association where you back right up to your neighbors and your neighbors are, you know, three feet away from you on either side. While it might be great for these celebrities who have all this acreage, it doesn't really work well in our homeowners associations.
Speaker 1:
Did I tell you my personal B story? No, I did not tell you the story. Not last Mother's Day, but the Mother's Day before my son, ryan, gave me a card and it came. It was a. It was a beekeeping kit with a book and a card saying 10,000 Italian bees are going to be delivered to you. In the box was the beekeepers hat, the gloves, the smoker, the, and I called him and I said, ryan, this is a.
Speaker 1:
Why, why would you send me? You said you wanted to be a beekeeper. I said, ryan, I have never told you I wanted to be a beekeeper. I said bees were important and we should protect them. Anyhow, long story short, bees are livestock. I said, ryan, we live in an HLA, we live on a golf course and I could see you know I'm going to be out there with the whole beekeeper kit and the outfit and the golfers are going to look over and see, you know, swarms of bees. Long, long story short. I donated it. I called the company. I said, please don't send me 10,000 bees. I can just see the headlines. You know, known community association attorney violates covenants. But yeah, that was that's something I had to contend with and he was really irritated that I didn't take, you know, possession of all these bees.
Speaker 2:
I have had a request for an accommodation for bees and you know they have to be within certain zoning districts and things like that, and that was a whole huge nightmare.
Speaker 1:
Well, we have Mavie Kear on the show and he is the Broward County property appraiser and you can get. You know, tax deductions for agricultural property and bees would constitute livestock. So you could, but the tax offset was not enough for me to risk getting stung to death by 10,000 bees, I don't know. So you know we're. Here's the thing. What do you say to people who just say you're a killjoy, you're a joy, you just party killjoy. I really don't mean you're gonna mess up to it.
Speaker 2:
I don't really have a good response to that. Yes, that is exactly what I am.
Speaker 1:
Well, any last advice for people who are listening and who are really struggling with, with someone in their community who just doesn't care that their medical marijuana usage, or just a regular marijuana usage is, you know, impacting their neighbors. Any suggestions, advice?
Speaker 2:
I definitely think that we have options that we can help you with. We can with eliminating HUD. You know, taking them out of the equation is huge and I think that it would give an association a fighting chance of getting rid of tenants who smoke or and refuse to do what should be done and, like I said, to set up these common spaces where people can go to smoke that's out of the way of everyone else and allows everyone to live happily in.
Speaker 1:
Maybe put it. Maybe put it some strobe lights in there too, Right In your little space. Folks, the typical disclaimer Joanne was kind enough to come on and share her brilliance, but she is not giving specific legal advice to your community. So please reach out to your community association attorney to discuss if you have this issue. Joanne is always a resource. Joanne, you want to give your contact information in case anybody wants to reach out to you, Sure.
Speaker 2:
My email is jbernette B-U-R-N-E-T-T at beckerlawyerscom and my phone number is 954-985-4192.
Speaker 1:
Well, you'll let us know if your phone starts ringing off the hook, I will. So much. You're, as I said, you're our first repeat guest, and something tells me you're going to make it a third appearance at some point too.
Speaker 2:
Thank you, I would be happy to Thank you for having me. Thanks, chipley.
Speaker 1:
Thank you for joining us today. Don't forget to follow and rate us on your favorite podcast platform, or visit tickettotheboardcom for more ways to connect.