HOA( Florida) Pot Smoking in a Common Area

Hi Everyone,

For the last couple of months we have received various complains from various residents
that someone who lives in the community is constantly smoking pot in the visitor parking lot (Common Area)
Unfortunately, This person smokes various times a day.
Some of the residents have asked this person to please smoke somewhere else but he has not stopped from doing so.

I reached out to our management company and the advice they gave us was to first seek legal advice in order to not be exposed with any liabilities.
Below are other suggestions they sent us.

1. Amend the declaration to declare marijuana smoke to be a nuisance. As our declaration states no nuisance shall be permitted.
2. Drug Free Zone, any space within 1000 feet of a certain type of facility ( we have a day care and community center near by)

For now those are the only options they have given us.

If anyone has any recommendations or how to handle this in the state of Florida I would appreciate your help.

Is weed even legal in your area (haven't heard of it in Florida)? If not, you could give a complaint with the police, but I don't see this as something urgent they'd address. They'd also have to witness the guy lighting up.

You will have to talk to your association attorney about options - the declaration of a drug free zone could be a start. In the meantime, what does your board have to say about this? If the smoke is irritating people with allergies or other respiratory issues (more than the usual contact high), or there are roaches all over the area (not the insects!), and/or more pot smokers are showing up and causing other problems with noise, parking and the like, there may be nuisance clauses in your documents you can use (read them yourself) that may be useful. Continue to document the incidents if you haven't already started

Recreational weed is illegal in Florida from my understanding. Medical is allowed.

When I reached out to our management company this is what they said.

*The cops have stated that if an individual is smoking inside their vehicle it is considered private property
*the association can take some measures, and the most important is to obtain legal advice as depending on the Association’s procedures or non action the same can be exposed to a liability.
*Amend the Declaration to declare marijuana smoke to be a nuisance
*Keeping a detailed record of all complaints, including information about how the marijuana smoke is interfering with other owners use of their units, may help show that marijuana smoke is, in fact, a nuisances.
They highly recommend an attorney before proceeding.

Can the board just make a rule banning smoking materials and now have to amend the declaration?
The board would like to move forward with prohibiting this on the community. People are getting irritated of the smell ( Most families here have small children)
For the most part the area is clean and no other pot smokers are showing up.

Is this a condominium?

Does FS 720 apply?

Short answer: Yes, AFAIC.

Long answer:

FS 718 says:

The entity or entities responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common elements, common areas, and recreational facilities.

FS 720 says similar.

Is such a rule reasonable? I say yes. Others might say no.

My advice: The board should make the rule and see what, if any, objections there are. Hopefully no wise-arse steps up and complains about the new rule.

Do you have a rules and regulations document separate from your declaration and bylaws? If so, you can probably (depending on what your bylaws say) just create and adopt a rule.

Even if you don't have rules and regs separately, if it were my association and I was on the board, I would draft a resolution prohibiting smoking or vaping of any kind on common property and pass it at a properly noticed board meeting so you don't have to just rely on the nuisance clause.

However, the harder part is going to be enforcement. You can pass the resolution, but how are you going to follow up so you can send the person a violation? Do you know he's a homeowner or tenant in the community? If he's not, you should be able to get the police to trespass him from the property. If he is an owner, you would have to prove his identity in order to follow up.

This is not an easy situation. Clearly he's doing it in the parking lot because he can't do it at home. We have a police community liaison and I know he would send someone to check on the car a few times to make the guy uncomfortable. We pay for sheriff's deputies to patrol here and they would do that too.

Maybe this is the reason why they want us to seek legal advice
since its does not specifically tackle the problem?

@LoriM15 Yes the By Laws and Rules and regulations are two separate documents.

But indeed drafting a resolution to prohibit smoking/vaping in the common area would be a great start. But even if the By Laws dont tackle weed as a nuisance, would we still be able to include in the rules and regulations?

Regarding the enforcement, we are in the process of installing security cameras in the area so we have access to video footage if anything

Here's what our CC&Rs "7.3.8 Offensive Conduct; Nuisances. No noxious or offensive activities shall be conducted within the Project. Nothing shall be done on or within the Project that may be or may become an annoyance or nuisance to the residents of the Project. No odorous matters shall be emitted upon or about the Project in such quantity as to be readily detectable outside the physical boundaries of the space within which such odor was generated."

As can be seen, it does not refer solely to a nuisance that bothers me in my home. And as also can be seen, the Section could stand alone without the odor sentence. We're a multistory condo bldg. and as Lori, a seasoned FL director recs,, make a rule, especially now that we know your Rules (as in most HOAs) are a separate document from your Bylaws . (Bylaws rarely contain rules about the conduct of Owners.). Please cite your CC&R's nuisance clause. How specific must it be??? It's d be very difficult o name every thing that COULD be a nuisance, so I don't think a list is typical.

Our Condo building first only had a rule against smoking in the interior commons areas (ca. 2001). A few years later, the Board created an additional rule that no smoking materials were permitted in our exterior common areas, e.g., around the pool & BBQ areas. About 7 years ago, we added that smoking materials are not permitted on "exclusive (or limited) use common areas" i.e., our condo balconies, decks and patios. I do recall we checked with our HOA attorney for every rules change.

We restated our CC&Rs in 2022 and added all of the above PLUS, no smoking materials are permitted in (200+) condo units.

It seems to me that "NOTHING shall be done on or within the Project that may be...an annoyance or nuisance to the residents of the Project," doesn't refer to a physical boundaries or odors. It's very clear on its own. Our attorney(s) gave us the OK on every version of the smoking materials limitations that we initiated. They have long experience with HOA covenants

I mention that because Carlos should, as advised, get their attorney's opinion.

Even if you are approved medical marijuana, you can’t drive under the influence. If I saw them smoking, I would watch the car and call the cops for operating under the influence when they left the HOA to grab some munchies.

It is an issue many have been dealing with.

See:

Marijuana and HOAs – What Can HOAs Do? from an attorney

Marijuana in your Community Association: Regulate or Not to Regulate? from a MC

Pot may be legal, but homeowner agreements can ban 2014 USA Today article

HOAs and Medical Marijuana From ECHO (CA based HOA education group)

Weeding Out Marijuana in Your HOA 2022 article from an attorney

My HOA Banned Marijuana use. They say I can not smoke pot even INSIDE my home 2023 post from a forum supporting the use.

Navigating an Uneasy Balance: Medical Marijuana in Florida HOAs 2023 article from a FL attorney

Marijuana in HOAs from CAI

An interesting point made in most of the articles (and I'll quote the last article) "smoke is smoke is smoke"
This is basically saying one might be able to ban all smoking but could have a fight if only banning one form of smoking.

Of course, enforcement is a completely different issue.

This is a fiction. Drug free zones are created by statutes, not HOAs or any other private corporation.

If you want to be entertained, ask the MC staffer what he/she means by a "drug free zone." If the MC staffer is smart, he/she will say go seek legal counsel.