Addressing Complaints of Marijuana Smoke In Community Associations Following Legalization Of Recreational Marijuana Use In Delaware and Maryland
Date: September 19, 2023
What can you do? As a rule of thumb, communities should refer to the language within their governing documents when reviewing complaints related to marijuana smoke. If the governing documents contain a prohibition on smoking in units or on the common elements, or both, then such prohibition likely includes marijuana smoke. In the absence of an express ban on smoking, a majority of governing documents prohibit activity that creates a nuisance or annoyance to owners. Without an express prohibition on smoking, however, communities may struggle prohibiting the smoking of marijuana within a unit based solely upon a nuisance restriction, especially in Maryland, where the court has held that tobacco smoke is not a nuisance per se. If the governing documents do not contain a prohibition on smoking but the community desires to prohibit smoking, the community may consider an amendment to its governing documents and/or promulgation of a Board adopted rule depending on the location within the community of the smoking ban.
Whether enforcing a strict ban on smoking or a nuisance provision in the governing documents, communities should follow their respective processes for enforcement of violations consistent with their governing documents, enforcement policies and/or state statutes. In doing so, communities should be mindful to verify complaints, conduct reasonable investigations and provide owners of alleged violations with notice of the violation and an opportunity to be heard. Absent emergent circumstances, we recommend consulting your WTP counsel before exercising self-help to abate an alleged violation.
A brief overview of the Delaware and Maryland laws are below. As always, if you have questions or would like assistance in handling your community’s smoke complaints or the review, interpretation or amendment of your governing documents, please contact your association’s Whiteford legal counsel.
Delaware
HB 1 amends Title 16 of the Delaware Code relating to marijuana. It removes all penalties for use or possession of a personal use quantity of marijuana and marijuana accessories. It further specifies that adult sharing of a personal use quantity or less of marijuana is legal for those 21 years of age or older and those 21 or older may possess, use, display, purchase, or transport accessories and personal use quantities of marijuana without penalty. The statute also specifies certain activities which remain unlawful, including consuming marijuana in an area accessible to the public or in a moving vehicle. Finally, the definition of "personal use quantity" of marijuana is updated to include not only 1 ounce or less of leaf marijuana, but also 12 grams or less of concentrated cannabis, or cannabis products containing 750 milligrams or less of delta-9-tetrahydrocannabinol.
HB 2, in part, amends Title 4, 11, 16 and 30 of the Delaware Code relating to the creation of the Delaware Marijuana Control Act, which regulates and taxes marijuana for recreational use and creates a framework for the production, manufacturing and sale of marijuana in a legal recreational industry.
Maryland
Possession. Individuals 21 and older may legally possess the “personal use” amount of cannabis. Personal use possession includes: (1) up to 1.5 ounces cannabis; or (2) up to 12 grams concentrated cannabis; or (3) cannabis products containing up to 750 mg strength delta-9-THC; or (4) up to 2 cannabis plants.
Cultivation. Individuals 21 and older may grow up to two (2) cannabis plants but no more than two (2) cannabis plants can be grown per residence, regardless of the number of adults who reside at the residence. The plants must be out of the public view and reasonable precautions must be taken so that they are not accessible by unauthorized individuals under the age of 21. Additionally, cannabis plants may only be grown on property owned by the grower or with the consent of the property owner.
Use. The law prohibits smoking of cannabis in specific locations, including public places. Smoking cannabis in a public place is a civil offense and may be penalized by up to a $50 fine for a first offense. Subsequent offenses can incur fines up to $150. The law also prohibits a driver from smoking cannabis in motor vehicles.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.