Lighting up. Three years after Local Law 147 required co-op and condo boards to adopt a written policy on smoking and to distribute it to shareholders and unit-owners, the landscape has changed again. In March 2021, New York’s Marijuana Regulation and Taxation Act legalized the use of recreational cannabis for adults, allowing them to smoke pot anywhere cigarette smoking is allowed, posing a continuing challenge for smoke-free co-ops and condos.
Making allowances. “If the board had written a smoking policy that didn’t specifically ban marijuana, they might be seeing a spike in usage and feel the need to amend their policies to include pot,” says Jennifer Stewart, a partner at the law firm Smith Buss & Jacobs. But boards would still have to make an exception for medical marijuana, which is where they may run into headaches. “If a resident is suffering from a condition that can be qualified by a doctor or a therapist as being a disability, then they are going to be entitled to a reasonable accommodation under anti-discrimination laws,” explains Adam Finkelstein, a partner at the law firm Kagan Lubic Lepper Finkelstein & Gold.
The rules still apply. However, “that doesn’t give you a license to stink up the whole building,” says Dawn Dickstein, the president of MD Squared Property Group. “You still have to keep the smoke and odors confined to your own apartment. So that person would be responsible for filling cracks, crevices, vents or whatever it might be to keep the smell from escaping.”
Alternative solution. That responsibility should be made clear to any resident requesting an accommodation. If residents cannot or will not take steps to mitigate smoke and odors, Stewart advises opening up a dialogue to try to resolve the problem, exploring alternative ways medical marijuana can be ingested, including vaping or edibles. “You can talk to them about obtaining the same benefits in a way that is not likely to enter the ventilation system and cause secondary smoke to affect your neighbors,” she says. “The board can ask and should engage in a process to come up with the best solution for everyone.”