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APRIL 2017 | VOLUME 21 | NUMBER 1

THE SOURCE FOR INFORMATION ON COMMUNITY ASSOCIATIONS, CONDOS, TOWNHOMES, CO-OPS & HOAS $8.95

by Nicholas Bartzen and Howard Dakoff, Levenfeld Pearlstein, LLC


For more information, contact nbartzen@lplegal.com, 312.476.7581 or hdako@lplegal.com, 312.476.7556.

Navigating The Issue Of Medical Marijuana


Smoke Causing A Nuisance To Others
Illinois is one of 28 states, not including Washington, D.C., which now authorize users, the law itself states that marijuana users
medical or recreational marijuana use in some form. In the State of Illinois, the do not have a right to smoke in any place they
choose. Medical marijuana registry card
applicable statute is called the Compassionate Use of Medical Cannabis Pilot
holders must still comply with the associa-
Program Act ("Medical Cannabis Act"). tions governing documents or be subject to
applicable association remedies.

U nder Federal law, marijuana


remains an illegal substance with
stiff criminal penalties for using, growing or
use marijuana, whether for medical or recre-
ational purposes. For now, marijuana use is
legal in Illinois only for medical use by persons
So what can a community association do
to address medical marijuana smoke issues?
Violations of provisions of the Declara-
tion or By-law or rules and regulations subject
transporting marijuana. The friction between authorized under the Medical Cannabis Act.
Federal and State law is an area of concern for So given medical marijuana use is cur- medical marijuana registry card holders to
those using medical or recreational cannabis, rently allowed by statute in Illinois, what does association remedies, which generally include
especially given the Trump administrations this mean for a community association when fines and/or mandatory injunctive relief.
recent comments on the issue. Thus the legal medical marijuana smoke transmits to other Smokers should also be advised that section
question remains: does a person authorized to units or the common elements and becomes a 9.2 of the Illinois Condominium Property Act
use medical cannabis under State law receive nuisance to other residents? Must the board allows the association to recover its attorneys
Federal law protection, such as the Federal allow authorized individuals with a medical fees and costs for violations of the governing
Fair Housing Act (FHA) (assuming they are need to smoke medical marijuana whenever documents.
disabled), since Federal law still classifies mar- and wherever they choose? Three methods by which medical mari-
ijuana as an illegal substance? While this The answer to that question is no. The juana smoke use can be addressed in a com-
article will not focus on the State/Federal basic rule of thumb is that while medical munity association are as follows:
interplay of laws, it should be noted that some cannabis use is not criminalized in Illinois, 1. Declaration Provisions;
states have similar protections as those con- that does not mean people authorized to use 2. Use and Occupancy Provisions
tained in the FHA that might give similar medical cannabis have an unencumbered (i.e. "nuisance" restrictions);
rights to users of medical marijuana. right to light up without concern for the asso- 3. Rules Mitigating Smoke
Notwithstanding the current questions ciations governing documents, which likely Transmission.
about the current administration's position on prohibit noxious and offensive activities. In
marijuana use, many believe that the national fact, while the Medical Cannabis Act prohibits
trend is an expansion of individuals' rights to discrimination against medical marijuana

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No part of the publication may be reproduced whatsoever without written consent from the publisher. 04.17 CONDO LIFESTYLES 15
All material herein is copyrighted 2017.
CONDO LIFESTYLES

Declaration Provisions. pungent and second-hand smoke is an unde-


A provision contained in most niable health risk for other individuals. The
Declarations requires compliance American Heart Association has suggested
with applicable laws. In the that second-hand smoke from marijuana has
Medical Cannabis Act itself, similar effects as second-hand smoke from
smoking marijuana any- tobacco insofar as respiratory and cardio-
where a person could be vascular system damage. Accordingly, the
reasonably observed by second-hand smoke from smoking mari-
others, or in close prox- juana wafting into adjacent units or the
imity to anyone under the common elements can reasonably be
age of 18, is prohibited. deemed a noxious and offensive activity
Accordingly, any individual and subject the user to the remedies
smoking in the common under the association's governing docu-
elements/areas of an associa- ments identical to tobacco smoke nui-
tion would be in violation of sance violations.
the Medical Cannabis Act and, Rules Mitigating
consequently, in violation of the Smoke Transmission.
Declaration as well.
Unlike a complete smoking ban via a
Additionally, the Declaration or
Declaration or By-law amendment, both the
By-laws could be amended to prohibit all
Illinois Condominium Property Act and most
smoking in units and the common elements
Declarations allow community association
without violating a medical marijuana users
boards to adopt rules and regulations. While
rights, since there are many options for individ-
medical marijuana registry card holders may
uals to use medical cannabis in their units
smoke in their units, if the smoke emanates
besides smoking, ranging from edibles, topical
from their unit, they may be subject to the
preparation or even vaporization (which Use and Occupancy Provisions same rules for smoke mitigation as tobacco
involves heating the marijuana to a high tem- Prohibiting "Nuisance" Activity. smokers including the requirements to seal
perature, releasing the active ingredient as a
Most Declarations contain a use and their unit and use air filtration systems.
vapor which is then inhaled). Therefore, indi-
occupancy provision against noxious or offen- As such, its more likely than not that
viduals allowed to use medical cannabis in their
sive activities prohibiting occupants, guests marijuana use will continue to proliferate
units have alternatives to ingest the cannabis via
and invitees from engaging in an activity that within Illinois. Community association boards
methods besides smoking and thus, the associa-
causes a nuisance to others. must balance the rights of those individuals
tion may prohibit smoking in all its forms if
There is no question that marijuana who use marijuana for medical purposes with
properly approved by the unit owners as an
smoke can be considered a nuisance just like the comfort, health and safety of those other
amendment to the Declaration or By-laws.
tobacco smoke. Marijuana smoke odor is occupants within the association. Y

REPRINTED WITH PERMISSION OF MCD MEIDA / FOR MORE INFORMATION ON CONDO LIFESTYLES... PLEASE VISIT WWW.CONDOLIFESTYLES.NET OR CALL 630-932-5551.

16 CONDO LIFESTYLES 04.17 No part of the publication may be reproduced whatsoever without written consent from the publisher.
All material herein is copyrighted 2017.