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If ever there were a hazy (no pun intended) area of law, it is in the area of medical marijuana. Federal law makes essentially any use of marijuana illegal, but 29 states and counting – including Arizona – have legalized the use of medical marijuana. Thus, as it stands now, it is legal for those in Arizona with a valid medical marijuana card to possess and use medical marijuana, and presently the federal government is not taking action to enforce federal marijuana law against medical users. But what about HOAs? A number of HOAs have rules prohibiting illegal drug use on the property – and marijuana is again illegal at the federal level. Can and should those HOAs enforce those rules against residents who use medical marijuana?

HOAs May Prohibit Use of Medical Marijuana in Common Areas

Under Arizona’s medical marijuana law, it is specifically not required for any “person or establishment in lawful possession of property to allow a guest, client, customer or other visitor to use marijuana on or in that property.” Because the HOAs themselves are the lawful owners and possessors of common properties – including walkways, hallways, pools, lobbies, gyms, laundry rooms, garages, and so on – it is completely within the HOA’s rights to ban the use of marijuana, medical or otherwise, in those common areas.

HOAs Should Take Caution in Regulating Medical Marijuana in Private Areas

Even though a number of HOAs do in fact regulate the smoking of tobacco in private residences and outdoor patios and lawns, there are complications in applying that same type of rule to medical marijuana. HOAs can run into a number of state and federal regulations which protect patient’s rights to use medicine to treat disabilities (you may highly doubt the genuineness of either a resident’s disability and/or the efficacy of marijuana to treat it, but, so long as the resident has the medical marijuana card, it is hard to overcome that presumption, and likely not worth it). Even more likely is that you will run up against residents who will fiercely defend their state right to use medical marijuana.

Does this mean that your HOA has to tolerate clouds of marijuana smoke pouring out from a private property into other people’s residences? Not necessarily. But it does mean that HOAs might have some obstacles in attempting to regulate medical marijuana use in private areas. They should choose their battles, and, if they do decide to move forward in attempting to regulate it, work with an HOA attorney to avoid even bigger problems.

Contact an HOA Lawyer for Further Help

At Goodman Holmgren, our sole focus is on meeting the legal needs of HOAs, including creating and implementing HOA policy and responding to homeowner concerns. Contact us today to discuss any legal challenge your HOA is facing.