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What to Do About Weed?

First there was the Smoke-Free Air Act of 1995, which banned smoking in most public places in New York City, including the common areas of multifamily dwellings. Then came Local Law 147 in 2017, which requires owners of multifamily buildings to create a smoking policy and share it with current and future residents — though it stopped short of requiring owners to ban smoking. Many co-op and condo boards have since amended their governing documents to ban smoking anywhere on the premises, including inside apartments.

But does the recently legalized smoking of marijuana fall under those bans? If residents are under doctor’s orders to use medical marijuana, would banning them from smoking marijuana in their homes be cause for discrimination complaints?

“Most of the smoking bans we have drafted are pretty broad,” says Lisa Smith, a partner at the law firm Smith Gambrell Russell. “They include the smoking of any substance, including cigarettes, e-cigarettes, cigars, pipes and marijuana. The ban is not saying you can’t practice your religion. It’s just saying smoke cannot emanate from your apartment.”

As for medical marijuana, Smith says: “People have said they need to smoke marijuana to treat a medical condition, such as glaucoma. The point is that they can ingest it in other ways without smoking it — in pill form, drops, edibles.”

When advising her co-op and condo board clients who are considering instituting a smoking ban, Smith tries to avoid halfway measures, such as grandfather clauses or allowing smoking on terraces. “A smoking ban has to be all or nothing,” she says. “Otherwise, it’s hard to enforce.”

Any smoking ban must be established through an amendment to the governing documents, not merely a house rule. As Smith Gambrell Russell’s Legal Alert states: “Like the use of tobacco, the smoking of marijuana inside apartments ... regardless of whether it can be demonstrated that it leaks into public areas, may be banned by amendment to a cooperative’s proprietary lease or a condominium’s bylaws.”

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