Q: Are property owners allowed to enforce “no smoking” policies to tenants with medical marijuana cards? I’m worried about second-hand smoke for other tenants, and also potential damage to the unit.
A: A “marijuana card” only permits the holder to possess a certain amount of marijuana. It does not confer any additional rights on a tenant. In San Francisco, smoking is defined by the Health Code as “inhaling, exhaling, burning or carrying any lighted smoking equipment for tobacco or any other weed or plant.” Restrictions on conventional cigarettes and cigars therefore also apply to marijuana. Smoking is always prohibited in the enclosed common areas of multi-unit housing structures under the San Francisco Health Code. Landlords cannot alter the restriction on smoking in common areas through agreements with tenants. However, Article 19F, Section 1009.22(j) of the Health Code specifically prohibits violations of the health code from being cited as grounds for eviction. If a landlord can prove that a tenant’s smoking is causing damage to the common areas, they could recover money damages from the tenant, but could not evict them. Landlords can still ban smoking within single family residences, or individual units in multi-unit structures, through the terms of a lease or rental agreement. Violation of the lease or rental agreement would be grounds for eviction under Section 37.9(a)(2), which is different from eviction for violation of the Health Code, even though the conduct might be the same. Just keep in mind that any eviction action would likely have to be decided by a jury, which may be reluctant to evict someone for smoking marijuana in their own unit, especially if it is for an ostensibly therapeutic purpose. On the other hand, a tenant who admits to smoking in violation of the lease may be vulnerable to a motion for summary judgment. If a landlord wants to ban smoking inside a unit which allowed smoking by the terms of the lease or rental agreement, the landlord has to formally change the terms of tenancy with a 30 day notice. However, unilateral changes in terms of tenancy cannot be used as ground for eviction in San Francisco. In addition, If the unit is subject to rent control, banning smoking inside a unit where the tenant was previously smoking is likely to cause the tenant to file a Rent Board petition for “reduced housing services.” If the tenant’s petition is approved, the Rent Board will order a permanent reduction in the tenant’s rent to reflect the reduced value the tenant is receiving for their rental payments. Because the reduction in services must be “substantial”, tenants who were not already smoking are not likely to receive a reduction in rent because the smoking ban would not substantially change the use or value of the unit to them. Depending on the circumstances, the reduced risk of fire, long-term wear and tear on the unit, and complaints from neighbors may be worth the reduction. Otherwise, if tenants continue to insist that their “marijuana card” exempts them from a preexisting smoking ban, remind them that there are many other ways to ingest marijuana that do not have the hazardous environmental effects associated with smoking. Copyright © 2017 by Fried & Williams LLP. All Rights Reserved. The information in this article is general in nature and should not be considered legal advice. For any specific matter, please consult with an attorney.