As of January 1, 2018, marijuana sale for recreational use will be legal in Nevada. And with the “early start” program that went into effect on July 1, 2017, some medical marijuana dispensaries are already selling recreational marijuana on a trial basis.
What, exactly, does the new law
(known as “Chapter 453D – Regulation and Taxation of Marijuana”) entail, and how could it affect your homeowners association (HOA)? Most importantly, what – if anything – can your HOA do to regulate marijuana use in your community?
In an article
that appeared in our Winter 2017 FirstService Residential Connections
newsletter, Attorney Donna A. Zanetti of Leach Johnson Song & Gruchow offered examples of situations that could present dilemmas for HOA boards. Although there are still some unknowns regarding the impact of the law, your board should become as informed as possible so that you’re not left “holding the bag” when residents begin asking about onsite recreational use.
Here as some of the factors you should consider:
1. Community common areas. The law specifically prohibits the use of marijuana in public places. Does that include your community’s common areas? Probably not since your common space is privately owned by the association. However, the law does allow property owners to impose marijuana-related restrictions. This means that your HOA can ban or restrict its use or possession in common areas.
Many HOAs already have policies prohibiting smoking in common areas. According to Steven Parker, president of FirstService Residential Nevada, if yours is one of them, you may be able to apply your existing policies to marijuana smoking – depending on how those policies are written. “Check to see what’s in your governing documents about smoking,” suggests Parker. “If smoking policies don’t specify just tobacco, you may not need to make any changes to address marijuana.”
2. Private residences. Here is where things can get a bit more tricky. The law specifies that consumption on private property is now legal, and HOAs are generally limited in how much they can restrict residents’ behavior within their own homes. If, for example, you live in a condo community that doesn’t already restrict smoking in units, you won’t be able to ban marijuana smoking that easily. Homeowners will have to vote to amend your current regulations.
One possible limitation may be if marijuana smoke becomes a nuisance to other residents. Most HOAs have a provision in their governing documents regarding nuisance activities. These provisions are often cited when tobacco smoke becomes an issue. Just like with tobacco smoke, however, enforcing nuisance provisions may prove difficult.
Unlike tobacco, marijuana can also be consumed as an edible. Preventing or banning residents from consuming edibles in their own home could prove even more challenging for HOAs.
3. Cultivating plants. The Nevada law only allows individuals to grow marijuana plants for personal consumption if they live more than 25 miles from a licensed retail marijuana store. In that case, an individual is allowed to grow up to six plants, for a total of no more than 12 plants per household. These plants must be grown within an enclosed and locked area.
Can your HOA prevent a community resident from growing marijuana? That depends. Of course, the law will be on your side if there is a marijuana store within 25 miles of your community. You may also have grounds for enforcing restrictions if, for example, the grower is causing a spike in your community’s commonly metered electricity and water.
4. Workplace policies. Under the law, an employer is still permitted to have a policy prohibiting or restricting the use of marijuana. FirstService Residential currently has a zero-tolerance policy regarding drug use of any kind by associates. According to Kay Mabson, corporate recruiting manager at FirstService Residential Nevada, “The new marijuana law will have no effect on this drug-free workplace policy.” Check with your contractors to verify whether they prohibit drug use by their employees and whether they have any intention of loosening their rules because of the new law.
5. DUI laws and underage use. Just like with alcohol, driving under the influence (DUI) of marijuana continues to be illegal. In addition, you must be at least 21 years old to buy or use marijuana recreationally. The new law also prohibits someone from undertaking any task while under the influence that would constitute negligence or professional malpractice.
Until we see cases in court that pit HOA policies against residents who use marijuana, we may not fully know where communities will land on this issue. In the meantime, Parker recommends that your board take the following proactive steps:
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- Consult with your HOA attorney. Your attorney is in the best position to interpret the law for your community and to advise you on the enforceability of your HOA rules and regulations with regard to marijuana use.
- Talk to your community management company. If you are considering making changes to your governing documents, your management team – in partnership with your attorney – can help ensure that you are going about it in accordance with Nevada’s HOA laws and with your existing policies. Your management team can also help you to craft new language, inform homeowners of the upcoming change and distribute ballots.
- Communicate with your community. Hold meetings to educate residents about the new law and its impact. Find out how members of your community feel about marijuana use within the community. Knowing where your residents stand can help you determine your best course of action. Your management company can also help you send out emails, post information onto your website and distribute letters by postal mail to keep community members informed.
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