Medical marijuana exempt from “no smoking” law?

New bill would apply same rules for weed and ciggies in apartments

By Sheila Pell,

There are several places in San Diego where local laws ban smoking, such as beaches and parks. But for the 46 percent of residents who are renters, unless they live in public housing, landlords make the rules. That leaves secondhand smoke, a carcinogen, still seeping through walls and windows.

“Unfortunately, no jurisdiction in our region has acted to provide this life-saving protection for apartment or condo residents,” says Ofelia Alvarado of the San Diego office of the American Lung Association.

And smoke is smoke, as the organization sees a new bill that would allow California landlords to ban or restrict medical marijuana smoking — just as a state law let them do with tobacco in 2012. 

“Secondhand marijuana smoke contains many of the same toxins and carcinogens found in directly inhaled marijuana smoke,” Alvarado says. 

A new study by researchers from the University of California–San Francisco suggests that exposure to secondhand marijuana smoke could harm heart and blood vessels as much as secondhand cigarette smoke. 

But marijuana can be recommended by doctors to ease symptoms of diseases from cancer to anorexia. Such use has some protections under California’s Compassionate Use Act of 1996 and the Medical Marijuana Program.

So, when tenants complain about drifting pot smoke, landlords may think twice. Can they be sued for evicting an ill tenant with a medical marijuana card who smokes cannabis at home? What about homeowners in condos where an HOA makes the rules?

Landlords can be sued, even though leases require tenants to comply with local, state, and federal laws, and marijuana isn’t legal at the federal level.

The new bill, sponsored by the California Apartment Association, would make it clear: medical marijuana smoking can be banned wherever smoking is prohibited. That includes within 1000 feet of schools and recreation centers (unless it’s in a residence), on school buses, and while operating a vehicle or boat.

Lincoln Fish, CEO of San Diego–based OutCo Labs, the parent company of Outliers Collective, thinks the law would have little effect on medical marijuana users.

“Those people are already quite used to ‘no smoking’ laws.”

State laws now ban smoking in public workplaces; within 20 feet of main entrances, exits, and windows of public buildings; and at colleges. Also, HUD will soon require a ban on smoking in public housing. Cities and counties have enacted even stronger laws, with 37 jurisdictions having banned smoking in at least 75 percent of new and existing apartment or condominium units.

In San Diego, smoking is prohibited in all county- and city-owned properties. But according to Alvarado, who is working on a smoke-free multi-unit housing program, San Diego lags despite intensive efforts by public health advocates. 

The county’s website on tobacco notes that “El Cajon is leading the way”: it's the only city that restricts smoking in common areas of multi-unit housing complexes. Inside the homes, however, tenants at some rentals are free to smoke.

In the City of San Diego, a task force has worked for about eight years on a strong law, yet Alvarado calls the outcome “a weak ordinance that will only ask landlords to disclose their policy on smoking to prospective tenants.” 

The task force will present its recommendation to the city in May or June, “but there will be no meaningful help for existing apartment and condo residents.”

In National City, a task force has worked since 2009 on a law that requires a ban on smoking in 75 percent of units in stand-alone apartment buildings. It is currently stalled. The ordinance has been with the city attorney for six months, awaiting administrative review.

“No date has been set to bring it to the city council,” Alvarado says.

While less than 12 percent of adults in California smoke cigarettes, Alvarado says their local office receives many calls about drifting smoke in multifamily homes. Often, those who are least able to afford a move are the ones affected. 

Non-smoking rentals have expanded since 2009, when a handful of properties turned up on a Craigslist search, she says. Today, the website has a “no smoking” option that yields more than 1800 properties. Still, with an estimated 1,429,678 renters in the county, the problem is sizable.

As for marijuana users, it’s hard to pin down the numbers, Alvarado says, but by applying national rates to the local population, just over 10 percent of San Diego adults used marijuana in the past 30 days. “Fairly close to California’s adult tobacco-smoking rate.”

Lincoln Fish of OutCo Labs says he hasn’t heard much discussion about secondhand-smoke issues from marijuana.

“However, in general, it would seem to be just good policy and common courtesy to not expose others to secondhand smoke if possible,” he says.

Would the Compassionate Use Act protect those with serious illness under this law?

“It’s not really clear.” Fish says. “It doesn't adequately address smoking versus other forms of consumption.” In fact, the bill excludes edible forms of marijuana, which Fish says “quite a few people actually prefer.”