If Recreational Marijuana is Legal, Why Can’t I Smoke It?

City of Beverly Hills in 2017 adopted a strict no smoking policy that extends to private spaces in multifamily buildings (including condominiums). The ban includes marijuana and the use of electronic smoking devices too. So despite voter approval in 2016 of the Adult Use of Marijuana Act (Proposition 64) the recreational use of marijuana in apartments is prohibited by the city. That may frustrate would-be stoners yet some households still complain about the neighbors smoking pot. Let’s take a look at this complicated issue.

No Smoking of Any Kind in Apartments (Including Marijuana)

City of Beverly Hills enacted a far-reaching ban on the smoking of tobacco and other products with ordinance 17-0-2730 signed in 2017. It kept smoking out of outdoor dining areas and even sidewalks unless the smoker was walking. Later 2017 the city banned smoking in multifamily units with ordinance 17-O-2737. That meant that beginning January of 2018 smoking would be prohibited in all common areas in a multi-unit building as well as all residential units regardless of whether they are owned or leased. The definition of smoking was encompassing:

The carrying, holding, or operating of a lighted pipe, cigar, cigarette, electronic cigarette, or other kind of smoking equipment. Smoke also means the lighting, operating, emitting, or exhaling of the smoke or vapor of a pipe, cigar, cigarette, electronic cigarette or other kind of smoking equipment. Smoke also means the gaseous or vaporous products and particles created by the use of a lighted or operated pipe, cigar, cigarette, electronic cigarette or other kind of smoking equipment. (BHMC 5–4–1)

Clearly smoking pot would be included in that ban (even if our local ordinance does not explicitly reference marijuana). But the state does allow the recreational use of marijuana through the Adult Use of Marijuana Act. Of course it presumed the smoking of marijuana!

Coincidentally the state law took effect the very same day as our local ordinance banned smoking. However the state law did allow localities broad discretion to regulate marijuana just as a locality may regulate smoking tobacco. Which our city did by adopting a comprehensive ban on marijuana through ordinance 17-O-2734.

Our city’s total ban on smoking thus extends to the recreational smoking of marijuana and anything associated with growing, marketing and selling it.

What About Medical Marijuana?

There is no argument to be made that smoking tobacco offers a health benefit. However the California Compassionate Use Act does recognize that marijuana can provide a medical benefit. From Health & Safety Code (§11362.5):

The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.

The law seems to recognize marijuana as more than a benefit: it is framed as a treatment under the Compassionate Use Act, which was enacted pursuant to voter approval of Proposition 215 in 1996. It serves a medical purpose. And that where the local ban on smoking gets complicated!

Our local ban on smoking does not necessarily preempt the Compassionate Use Act. A city staff report from 2016 highlights the problem when state and local laws conflict.

The California Compassionate Use Act [Prop 215] allows registered individuals to use medical marijuana, but does not override local laws that are designed to protect the health of others. Therefore, cities would not need to provide medical marijuana users with exemptions from following a smoke-free multi-unit housing policy. This is corroborated by the fact that medical marijuana can be consumed through other methods that are smoke-free (i.e. pills or food). If the resident in question can smoke only inside the unit and is unable to consume medical marijuana through smoke-free methods such as pills or edibles, smoking might be permissible under the “reasonable accommodations” standard for disabilities.

That would seem to open the door to smoking inside a multifamily unit despite the local smoking ban. In this circumstance, it seems, the marijuana user would have to request a ‘reasonable accommodation.’ Under federal disability law, that is an accommodation to a disability that would not unduly burden the landlord (in this case)…no different than any other accommodation for a disabled individual.

On the medical aspect, California law allows marijuana not by prescription but rather by physician recommendation. There is no such thing as a marijuana prescription from a physician; the user must only register with the state.

Moreover, marijuana is not federally licensed by the FDA as a medical treatment or drug. The efficacy of marijuana has not been conclusively supported in the medical literature much less emerged from any FDA review as an approved substance.

In fact the federal government still classifies marijuana as a Schedule 1 controlled substance (like narcotics). It is recognized to have no medical use.

The crux here is that federal law categorically excludes users of Schedule 1 drugs from consideration as disabled and thus eligible for reasonable accommodation:

For purposes of this chapter, the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. — 42 U.S. Code §12210

Case law in the ninth circuit (James v. City of Costa Mesa, 2012) established that a disability claim made in reference to federal law cannot stand when federal law categorically excludes illegal drug use as a protected accommodation for those with disabilities. Simply put, federal law does not include any exception for marijuana use even for medical reasons.

The current administration would seem disinclined to extend to Schedule 1 drug users any reasonable accommodation at all. It has shown renewed interest in pursuing marijuana distributors despite any state and local law that allows it.

The medical marijuana user would be advised to look for another means of delivery that would not run afoul of the local smoking ban.

What About E-Cigarettes?

City of Beverly Hills explicitly prohibits the use of an electronic smoking device in our smoking prohibition ordinance. It calls out electronic cigarettes and, more broadly, “smoking equipment” as prohibited. So ‘vaping’ (as it is called) is not allowed.

Moreover state law regulates tobacco products and includes in the definition any electronic vaporizing device. Here is the relevant section of the Business & Professions Code:

An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah. — § 22950.5(d)(1)(b).

The expansive state and local definition of ‘smoking’ pretty much excludes virtually any kind of delivery device whether it be for nicotine or any another substance including marijuana.

Enforcement

Local ordinance prohibits smoking and the use of electronic devices multifamily common areas and dwelling units (read the fact sheet). But that does not mean that a resident will comply. When a smoker disturbs the peace the first step is a request to the offending tenant and/or placing a sign at the entrance of the building. (Download the city sign here.)

If the offender does not comply with a request or hint, then there exists two avenues for the tenant who would seek relief: appeal to the the landlord to crack down on the unlawful activity; and/or make a complaint to the city’s Community Preservation division. (In our view it is not worth a call to the police.)

Landlord Enforcement

The preferred avenue here is simply asking the landlord to enforce the smoking ban. It is likely that his lease already prohibits smoking. The Civil Code explicitly gives that power to landlords:

A landlord of a residential dwelling unit, as defined in Section 1940, or his or her agent, may prohibit the smoking of a cigarette, as defined in Section 104556 of the Health and Safety Code, or other tobacco product on the property or in any building or portion of the building, including any dwelling unit, other interior or exterior area, or the premises on which it is located, in accordance with this article. — §1947.5 (a)

In fact, any lease signed after January of 2018 must include a no-smoking clause pursuant to the city ordinance. But even if the original lease was signed without such a clause, the landlord could have imposed it, and may yet impose it (even on a month-to-month tenancy), as a change in the terms of tenancy under Civil Code §1947.5 (b)(2). It would take effect after 30 days.

Regardless the city ban in multifamily units offers no wiggle room. Even the state law that would allow for recreational marijuana smoking gives the locality the final word:

This section shall not be construed to preempt any local ordinance in effect on or before January 1, 2012, or any provision of a local ordinance in effect on or after January 1, 2012, that restricts the smoking of cigarettes or other tobacco products. — Civil Code §1947.5 (2)(d)

What can be done? The offender should be served with a 3-day correct-or-quit notice by the landlord because he is either in breaching of the lease or he his in violation of the city’s law or both. In either case there is cause for eviction.

Code Enforcement

If the landlord is reluctant to enforce the prohibition on smoking, or otherwise drags his feet after a couple of requests, then the tenant should contact the city. There are two objectives here: reminding the landlord that the city has a law on the books; and bringing in city enforcement resources if the landlord simply won’t act.

Under the city no-smoking ordinance the landlord is required to give written notice to tenants and to post signage about the prohibition. This is an example of the signage as provided by the city.

No Smoking sign via the city

If the landlord has not taken both steps he is not in compliance with the city law. At the very least a call to the city to notify officials that the landlord has not taken those required steps may prod the landlord to follow up on the tenant complaint.

Second, contacting code enforcement (read our explainer, How to File a Complaint) allows the city to contact the tenant. This should be all that is necessary. However code enforcement officers are not like the police: they don’t show up when called; ongoing enforcement may take some time and effort on the part of the tenant. The cat-and-mouse work nature of a smoking violation can be frustrating, and once a citation is issued there is an administrative process that can stretch that timeline out to 30 and 60 days.

Better for the landlord to take action. Today the landlord has an additional tool: a new Disruptive Tenant provision in the rent stabilization ordinance. The relevant section of the ordinance says that a landlord may evict a tenant if that tenant “repeatedly or continually disturbs the peaceful and quiet enjoyment of one or more tenants who occupy other rental units….”

Arguably smoking can be construed as a nuisance that is actionable by the landlord under that provision. The two-member City Council committee that adjudicates ‘Disruptive’ cases is likely to see it that way.

It is conceivable that a tenant who insists on continuing to smoke marijuana in particular may want to invoke the medical disability argument. But local ordinances and federal law appear to offer little room for the claim.