Many states have placed the legalization of medical marijuana on their ballots in recent years and Florida is no different. A measure legalizing medical marijuana failed in Florida in 2014, gaining only fifty-eight (58%) percent of the vote. However, this past November, Florida voters overwhelmingly approved Amendment 2 which legalized medical marijuana. Seventy-one (71%) percent of Floridians voted in favor of Amendment 2 surpassing the sixty (60%) percent threshold required for passage.

The new amendment took effect in January and could impact an estimated 450,000 Floridians that qualify for medical marijuana. Under the amendment, a non-euphoric strain of cannabis is legalized for patients that have certain medical conditions, such as seizures, through a state-approved physician. Full-strength medical marijuana is legalized for patients that have illnesses deemed terminal. Of note, Amendment 2 does not prohibit the smoking of medical marijuana, which some proponents of the law assert is the best method of administration for certain patients.

Rules still need to be drafted by lawmakers regarding the implementation and regulating of the law – a process that will begin in March. It is unclear whether  lawmakers will attempt to ban the smoking of medical marijuana.   If  smoking medical marijuana is allowed the issue of residents smoking  marijuana in a community’s common areas, or their residence, will surely arise leading to questions of whether community associations will have to make exceptions to their rules to allow disabled residents to smoke medical marijuana.

In analyzing that question, it is important to note that Amendment 2 states, in part: “[n]othing in this section shall require any accommodation of any onsite medical use of marijuana in any correctional institution or detention facility or place of employment or of smoking medical marijuana in any public place.”  If the phrase “public place” includes the common areas of an association, then it stands to reason an association could prohibit the smoking of medical marijuana in common areas.  However, whether associations can prohibit the smoking of medical marijuana on balconies or within a residence may be another story.

Many legal experts have raised the issue of whether the Fair Housing Act (“FHA”) will require community associations to grant reasonable accommodations to patients prescribed medical marijuanaOn initial blush, all the factors exist needed to qualify for such an accommodation.  However, such request may be unreasonable, especially if the drug is administered through smoking.  Community associations may have a multitude of grounds to deny such requests.  Consider:

  1. Marijuana is still regulated as a Schedule I drug under the Controlled Substances Act. The U.S. Supreme Court has held that Congress has the power under the Controlled Substances Act to regulate medicinal marijuana regardless of its legalization by states. It is hard to imagine the Department of Housing and Urban Development (“HUD”) would consider something a reasonable accommodation that would constitute a federal crime.
  1. Section 504 of the Rehabilitation Act, which guarantees certain rights to those with disabilities, states “[t]he term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs.” That means that any disabled individual that uses illegal drugs, which includes marijuana, will not be considered disabled under that law.
  1. On July 19, 2016, the Drug Enforcement Administration (“DEA”) denied a petition to reschedule marijuana from Schedule I.
  1. As is the trend with cigarette smoke, the smoking of medical marijuana could constitute a nuisance. Allowing the smoking of an illegal drug within a unit could result in second-hand smoke trespassing into neighboring units.
  1. HUD’s general counsel’s office is on record that an accommodation request for the use medical marijuana is not reasonable, and, therefore does not have to be granted.

Notwithstanding the above, housing providers and community associations should always proceed with extreme caution when receiving any reasonable accommodation request under the FHA.  Immediate consultation with your legal counsel is highly recommended. Given that the law has just been enacted, requests for accommodation have yet to become commonplace. But that could soon change.