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You Can Sort of Legally Smoke Weed in California but Maybe Not in Your Apartment

| Apr 25, 2017 | Articles, News

by Hayley Fox // LA Weekly

Although the state of California has given adults the green light to smoke weed recreationally and approved a limited amount of home grow, Angelenos who rent their residence may still have one big hurdle to jump: landlords.

Under Proposition 64 and reigning landlord-tenant policy, rental leases can ban smoking on the premises, tobacco or otherwise. Even if the contract doesn’t explicitly address marijuana, there are a number of other pre-fabricated stipulations — including a “no illegal drug” policy, a nuisance clause and a rule banning tenants from violating state or federal law — that can be invoked to put the kibosh on your cannabis, experts say.

Even Angelenos with a therapeutic need for weed may have few rights to it, as medical marijuana users are not a protected class, attorney Eric Shevin, general counsel for cannabis private equity investment firm 7th Point LLC, said in an email.

“This is true even under the Americans With Disabilities Act due to the current federal scheduling, which denies any and all medical use,” he said. “The only classes of people who cannot be discriminated against are those in protected classes: race, gender, age, sexual orientation and alienage.”

More often than not, landlords aren’t looking to interfere with what you do in the privacy of your own home. But in a multifamily dwelling with nearby neighbors, smoking weed can lead to complaints, said Debra Carlton, senior vice president of public affairs at the California Apartment Association. Even before recreational pot was legalized last year, issues began to arise with the proliferation of medical marijuana prescriptions.

“Quite frankly, cards are not that hard to get,” said Carlton. “So it became still a problem and a nuisance for neighbors, who complained to the landlord.”

The issue of smoking in multi-unit homes began years ago with cigarettes, she added, forcing landlords to serve as the referee between tenants and address concerned residents with asthma or children who were inhaling the smoke. Lease agreements began including clauses that prohibited smoking, and now, many shared spaces have simply banned the practice on the premises entirely, Carlton said.

In addition, when Proposition 64 passed in November 2016, it brought with it a clause that outlaws smoking in public spaces and prohibits smoking weed in locations where tobacco smoking is not allowed.

Renters won’t have much better luck with home cultivation. Although the Adult Use of Marijuana Act allows individuals to legally grow up to six plants, landlords typically don’t condone the practice because plants can create a stench, lead to mold growth and rack up high utility bills, Carlton said. And Proposition 64 clearly dictates that although adults have the right to consume and grow cannabis free from “criminal consequence,” this does not trump the power of landlords to control what goes on on their property, said Michael Chernis of the Santa Monica-based Chernis Law Group.

“A consumer, both a medical and a recreational consumer, doesn’t have a lot of legal leg to stand on in arguing against a contract restriction,” Chernis said.

While a landlord is “probably within their rights” to bar medical marijuana users from smoking on a rental property, he said, the legal rights surrounding edibles and concentrates are a little fuzzier. For one, ingesting weed as opposed to smoking it is less likely to bother neighbors, Chernis said, and if a lease contained a clause that outright bans the quiet consumption of cannabis edibles or oils, there could be a little wiggle room to contest it.

While protections are greater for medical marijuana users than recreational consumers, the Compassionate Use Act still only affords limited immunity, and tenants are bound by the stipulations of their lease.

“Unfortunately, unlike other medications, there are just limits to your right as a consumer of this particular medicine,” Chernis said.

Although landlords seem to already have ultimate power when it comes to cannabis consumption at home, Assemblymember Jim Wood of Healdsburg (supported by a collection of real estate agencies including the California Association of Realtors) introduced legislation in February of last year that would further solidify their control. AB 2300, which ultimately died on the vine in the Senate in November, would have amended existing Health and Safety codes about tobacco consumption on rental properties to include smoking and vaping as well.

While there’s a lot left undetermined in regards to smokers’ rights, there’s one silver lining for smokers. If your landlord does try to evict you for violating federal drug laws, the court that would typically hear your case is a state facility, where weed is legal, so it may be hard to make the eviction stick, Carlton said.

Ultimately, landlords reign. So if you’re planning on smoking weed in a home that you don’t own, your best bet is to try to find a 420-friendly site. Or, maybe it’s time to switch to edibles.