Medical Marijuana: What it Means for Community Associations in Arizona - Jason E. Smith, Esq.
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Medical Marijuana:
What it Means for Community
Associations in Arizona
Jason E. Smith, Esq.
CARPENTER, HAZLEWOOD, DELGADO & WOOD
February 23, 20112/22/2011
Medical Marijuana:
What does it mean for
community associations?
Poll
Do you support medical marijuana in AZ?
A. Yes
B. No
C. Don’t care
Poll
You are more interested in . . .
A. The medical marijuana law generally
B. How this will affect your community
C. How to get a prescription
D. Other
12/22/2011
Poll
What percentage of Americans ages 12 and
older have tried marijuana at least once?
A. 2% (5 million)
B. 17%% ((43
3 million)
illi )
C. 41% (105 million)
D. 51% (135 million)
E. 74% (189 million)
One Undeniable Fact
The one undeniable fact is that more and more
Arizonans will be smoking marijuana, more
frequently and more openly than ever before
starting later this year.
year
Your New Neighbor?
22/22/2011
Important Dates
• January 31: ADHS posted official draft rules
for public comment
• February 14‐17: ADHS will hold public
meetings around the state for input
• February 18: Last day for public comments*
• March 28: ADHS will publish final rules
• Summer 2011: ADHS has said they will have
lottery for dispensary licenses
Prop 203 Draft Rules
http://azdhs.gov/prop203/documents/Medical_
Marijuana_Draft_Rules.pdf
Basic Facts of AZ Prop 203
• Not a state crime to sell, possess, distribute or
consume if done in compliance with rules
• 2.5 oz is “allowable amount” for individual use
every 14 days
• Licensed caregivers can help no more than 5
medical marijuana patients
• Dispensaries must be non‐profit organizations
• No consumption at dispensaries is allowed
32/22/2011
Basic Facts of AZ Prop 203
• Prop 203 limits dispensaries to 1 for every 10
licensed pharmacies in the state (about 120)
• If not within 25 miles of dispensary, you may
grow up to 12 plants
• Cities can zone to restrict dispensaries and
grow facilities
Basic Facts of AZ Prop 203
• Not “prescriptions” but “certifications”
• Need to show a “bona fide physician‐patient
relationship” to get a medical marijuana
patient card from ADHS
Basic Facts of AZ Prop 203
There is no requirement that a property owner
allow a guest, client, customer or other visitor to
use marijuana on the property
42/22/2011
Basic Facts of AZ Prop 203
Prohibits smoking in any “public place”
– Under the draft rules, “public place”
includes “common areas of apartment
buildings condominiums or other
buildings,
multifamily housing facilities”
– Can be criminally prosecuted if you violate
this rule, whether you have a card to smoke
or not!
Prop 203 Quiz
Which one cannot certify you for medical
marijuana use?
A. Osteopathic Doctor
B. Naturopathic
hi Doctor
C. Pediatrician
D. Physical Therapist
Prop 203 Quiz
Which medical condition does not qualify a
person for medical marijuana?
A. Hepatitis C
B. Glaucoma
Gl
C. A chronic medical condition that causes
severe and chronic pain
D. Any other illness for which marijuana
provides relief
52/22/2011
Federal Law
• Marijuana is a Schedule I drug (most restricted
class) under the federal Controlled Substances
Act (“CSA”)
• U.S.
U S Supreme Court has upheld Congress’
Congress
finding in the CSA that there is no medical
exception to the CSA’s prohibitions on
manufacturing and distributing marijuana
– Small possession amounts also a federal crime!!!
Obama Administration’s View
Justice Dep’t Memo in 2009:
– Seeks to focus federal resources on “prosecution
of significant traffickers” and “disruption of illegal
drugg manufacturing.” g
– But plainly leaves open the possibility of
prosecution of CSA violators, even if in “clear and
unambiguous” compliance with state medical
marijuana laws
– Memo does not “legalize” marijuana for any use
How will it affect you?
1.Use by Qualified Patients (i.e. smoke)
2.Growing by Caregivers, Qualified Patients and
Dispensaries
3
3.Location
i off Dispensaries
i i
62/22/2011
Use by Qualified Patients
Is marijuana smoking a concern for the
members of your association?
1. Concern about widespread use in
community, y i.e. do you
y want to be
the Haight‐Ashbury of Arizona?
2. Second‐hand smoke health issues,
especially in condos?
3. Other issues?
Smoke
You have two options:
– You can single out marijuana smoke for
separate restriction or prohibition with your
rulemaking authority
OR
– You can equally prohibit all types of smoking
in the same areas
Smoke
Where can you prohibit smoking?
Condos:
Common element, limited common
element,
l units?
i ?
Planned Communities:
Common areas, private yards, inside of
homes?
72/22/2011
Smoke
If you single out marijuana smoke:
• You may face disability discrimination
complaints
• HUD willill not support such h a claim
l i
• AG or City may do so at their own expense,
but is it really disability discrimination???
Smoke
Is a blanket prohibition on marijuana smoking
disability discrimination?
• In my opinion, it is not discrimination.
• What
h if most users are 18‐25
8 2 year oldld
college students with chronic back pain???
• Patients can consume marijuana in a
variety of ways other than smoking.
Smoke
If you restrict both tobacco and marijuana
smoke:
• You avoid any possible claim of disability
discrimination under state law
law.
• Both types of potential nuisances are
greatly reduced.
• Avoids risk of discrimination, but more
politically challenging.
82/22/2011
Other Fair Housing Requests
• Card likely irrelevant to analysis of other
accommodation requests.
• What if cardholder asks for an emotional
support dog?
– We will not know what the impairment is or
how the animal will alleviate the effects of
the impairment. Need to treat like a normal
accommodation request.
Growing Medical Marijuana
• Prop 203 allows patients and caregivers to
grow up to 12 plants if no dispensary within
25 miles.
• Must be grown in a locked and enclosed
facility accessible only to patient or caregiver.
• If grown outdoors, must be “surrounded by
four solid 10 foot walls” plus other specs.
Growing Medical Marijuana
You can prohibit growing marijuana and any
other improvements related to growing
marijuana with proper rules.
Even if you are more than 25 miles from a
dispensary, is growing marijuana a reasonable
accommodation of a disability?
Outside or inside of home?
92/22/2011
Dispensaries
May be an issue in mixed‐use developments
No law that compels landlords (or associations)
to allow
ll didispensaries
i iin commercial
i l areas
Do your documents require association approval
of tenants in commercial areas?
Dispensaries
Business prohibitions in most CC&Rs will effectively
block them in residences if local zoning doesn’t
already prohibit them (most likely they will prohibit
them).
What about growing in a home for a dispensary?
• ADHS says cultivation site must comply with
local zoning
• Is the business evident from the exterior?
Smell?
What Should You Do Now?
You need to decide if the growing and smoking
of marijuana smoke matters to your
communities.
– If not,
not do nothing.
nothing
– If it does, consider a “Medical Marijuana
Plan” to prepare your community for this era
in Arizona life.
102/22/2011
Questions?
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