The Medical Marijuana Act

Arizona became the 15th state to legalize the use of medical marijuana in late 2010, after voters approved Prop 203 by a narrow margin. The new Medical Marijuana Actis codified at A.R.S. 28-2801 et seq. That Act has created a new set of questions and concerns for planned community associations. The medical marijuana issue is controversial. The rights of medical marijuana patients must be carefully balanced against the right of an association to maintain its property in a safe and welcoming manner.

Medical Marijuana Concerns for Planned Communities

One recent controversy under the Medical Marijuana Act is the definition of “public place,” in A.R.S. 28-2802. The statute provides:

This chapter does not authorize any person to engage in, and does not prevent the imposition of any civil, criminal or other penalties for engaging in, the following conduct. . .

C. Smoking marijuana:

1. On any form of public transportation.
2. In any public place. (emphasis provided)

While the statute clearly prohibits smoking marijuana in, “any public place”, the parameters of a public place have yet to be defined. The intent of the “public place” provision of A.R.S. §28-2802 was to restrict the smoking of medical marijuana to private backyards and homes.  However, because planned community common areas are private, the Medical Marijuana Act does not prohibit the smoking of medical marijuana in such spaces.

Possible Community Strategies

The use of marijuana, both for recreational and medical purposes, is still illegal under federal law. If a planned community’s CC&Rs already include a prohibition against conducting illegal activities in the common areas, the association could use that provision to prohibit medical marijuana use in the common areas. With a serious caveat - federal and state drug laws are currently in conflict, and owners do have the right to smoke medical marijuana in their homes and back yards as envisioned by the Medical Marijuana Act. The association could be placed in the uncomfortable position of attempting to enforce an uneasy combination of federal and state law, and worse, could attract the attention of medical marijuana activists.

Another approach would be to enact a rulespecifically to prohibit the smoking of medical marijuana in community common areas. Please remember that an association may not prohibit owners from smoking medical marijuana in their homes and backyards. Additionally, associations with CC&Rs that already do not permit owners to smoke in units may need to create an exception for owners who have a newly acquired right to smoke medical marijuana. Your association attorney is qualified to review your CC&Rs and make recommendations regarding amendments, or any other type of community regulation regarding the use of medical marijuana.

A Chance to Speak Out

The Arizona Department of Health Services (ADHS) is the regulatory agency in charge of creating the rules that will be used to enforce the Medical Marijuana Act. ADHS released their first draft of the rules on January 31, 2011. The final version of the rules will be released by ADHS on March 28, 2011. Citizens have been given the opportunity to offer their perspective on the draft rules through several forums. First, ADHS will hold four public meetings regarding the proposed rules:

• Flagstaff: Monday, February 14, 2011, at 10:00 am – 1:00 pm, Flagstaff City Hall, Council Chambers, 211 W. Aspen Ave
• Phoenix: Tuesday, February 15, 2011, at 3:30 pm – 6:30 pm, ASU Sandra Day O'Connor College of Law, The Great Hall, 1100 S. McAllister Ave
• Tucson: Wednesday, February, 16, 2011, at 3:00 pm – 6:00 pm, U of A James E. Rodgers College of Law, Ares Auditorium, 1201 E. Speedway
• Phoenix: Thursday, February 17, 2011, at 9:00 am – 12:00 pm, ASU Sandra Day O'Connor College of Law, The Great Hall, 1100 S. McAllister Ave

Second, ADHS will accept additional public Comments regarding the draft rules until February 18, 2011. An electronic forum has been provided for public use here

The Brown Law Group encourages planned communities to use their right as Arizona citizens to speak out regarding the definition of, “public place,” under the Medical Marijuana Act. The phase “public place,” must now be defined to include planned community common areas, in keeping with the original intention of the statute. Our clients care deeply about the quality of life offered by their communities, and the needs of owners who use medical marijuana and owners who do not wish to be exposed to marijuana must be balanced, and respected.

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