Ask the voters who legalized Mary Jane

November 26, 2012 | Apartments, Boston, Enforcement, Inclusionary zoning, Landlords, Law, Leases, Marijuana, Massachusetts, Regulation, Rental, Torts, Zoning

By:David A. Smith


By fits and starts, out of fiscal necessity (dressed up in compassion and tolerance) America is legalizing marijuana – and as the collapse of an order is often more chaotic than its establishment, the law we Massachusetts voters just passed is already giving landlords headaches, as revealed in this snickering article from the Boston Herald (November 9, 2012):


You’ll be happy to pay taxes on this!


Landlords steaming over pot: Worry about medicinal law’s effect on property


Burned up landlords are begging Beacon Hill pols to ban pot smokers from growing 6-foot high ganja plants in their apartments — a loophole in the state’s newly passed but hazy medical marijuana law.


Is it a loophole, according to our definition of loophole?



Actually, this law was so hastily and clumsily drafted it’s impossible to say whether the apartment option is a loophole, an oversight, or a feature:


It’s not a Bug, it’s a feature!


The law — rolling out Jan. 1 — grants medical marijuana users the right to grow a two-month supply of weed at home if they cannot get to a pot dispensary because they are too sick or too broke.


‘Or too broke’?  That’ll be fun to regulate!


Skip Schloming, executive director of the state’s Small Property Owners Association [And indefatigable opponent of rent control – Ed.] said a 60-day supply could be huge.


Carrying the fight for little-guy landlords against big-patrician-rent-control tenants


“You could have as many as 24 plants that are 6 feet tall,” Schloming told the Herald. “And that could cause all sorts of property damage, from water damage, to mold and humidity, to wiring issues that could cause a fire. … This has the potential to be a disaster.”


It’s all for personal consumption, man!  I’m indigent!


Mr. Schloming is absolutely right about the landlord’s exposure, because under landlord-tenant law, the landlord is nevertheless liable (and far more collectible) even if the tenant does something to violate the lease, such as this typical language:


Neither the Lessee nor his family, friends, relatives, invitees, visitors, agents or servants shall make or suffer any unlawful, noisy or otherwise offensive use of the leased premises, nor commit or permit any nuisance to exist thereon, nor cause damage to the leased premises, nor create any substantial interference with the rights, comfort, safety or enjoyment of the Lessor or other occupants of the same or any other apartment, nor make any use whatsoever thereof than as and for a private residence.


Nor does the landlord have a right of unannounced entry – the tenant’s right of ‘quiet enjoyment’ has generally been interpreted to require ‘reasonable notice’ (a day or two).


More importantly, though ‘medical’ marijuana is exempted, Federal law still classifies it as Schedule 1, meaning as dangerous and addictive as:


Heroin, lysergic acid diethylamide (LSD), peyote, methaqualone, and 3,4-methylenedioxymethamphetamine (“Ecstasy”).


Heroin addict, Pakistan


This sets up a potentially nasty clash between Federal and state law, with the landlord in the middle. 


You’d have to be some kind of dope to open up one of the 35 pot shops authorized under Massachusetts’ new medical-marijuana law, according to California and Colorado defense lawyers who say the feds can and do strike down those operations — and even lock up the owners.


“Don’t do it,” said Harris Taback, a veteran San Francisco attorney who says he represented a pot club that lost more than $1 million in federal seizure. “As an attorney, the best advice a lawyer can give to their client is: ‘Do not violate federal law.’ Even if you’re 100% in compliance with state law, you still risk being prosecuted by the federal government.”


Attorney Taback recommends you not violate federal law


For instance, if the tenant is engaged in fraud (claiming a medical condition when in fact he or she is just growing and dealing dope), the landlord could easily be dragged in as an accessory to felonies.


He added, federal drug agents who still bust pot-growing operations — medicinal or not — could seize the property.


Absolutely right, and far from theoretical.


“You could lose your property. You could be bankrupt,” Schloming added.


For that matter, the cops won’t be the only intruders a landlord will have to worry about, adding that legalization:


Could boost crime as medical marijuana users are targeted by thieves.


Looks to me like inventory worth stealing


Nor will landlords have any means of even knowing about the doper they are housing, much less preventing or monitoring the activity:


“Anti-discrimination laws say you can’t discriminate against people with disabilities, so right now, we can’t even ask about it,” Schloming added.


So if your applicant is, say, “self-medicating for depression,” and needs medical marijuana to help her stay cheerful, then sells her excess production to medical-marijuana customers, you as the landlord may be prohibited from knowing about it. 


Don’t discriminate against the non-sick, right?


Schloming took his weed warning to the halls of the State House yesterday, trying to convince lawmakers to blunt the law, and give landlords the right to reject tenants who use medicinal marijuana.


Oh man, blunt it?


While Mr. Schloming’s fears are entirely well founded, and I understand his proposed remedy, it more than likely goes further than it should.  Rather, the Rental Housing Association and the Greater Boston Real Estate Board need to come up with language, for the standard lease, that is both landlord-exculpatory (landlord not liable), and tenant-warranted (tenant commits fraud by making a false statement).


He’s not alone in his pot jitters.


Paranoid about dope? Me?


While the property-related problems are greatest for landlords, police are not looking forward to the transition either.


The head of the Massachusetts Municipal Association yesterday also called for a six-month delay in implementing the law and opening up 35 pot dispensaries statewide.


In fact, the new law is already creating its own version of NIMBYism:


Following voter approval of the ballot initiative, several cities and towns have taken, or plan to take, steps to prohibit or restrict the location of marijuana dispensaries in their communities.

On Nov. 15, town meetings in Wakefield and Reading approved zoning bylaws prohibiting marijuana dispensaries. In Reading, nearly three-quarters of town meeting members supported the ban. Support was even higher in Wakefield, which has an open town meeting.


As far as I know, there is no inclusionary-zoning law for pot distributors.


“Communities need to have more than a few weeks during the holidays to gather, have deliberative discussions and make important policy decisions,” said Geoffrey Beckwith, who added cities and towns deal with strip clubs and tobacco sales — but regulating pot remains too fuzzy.


Well, we were kinda high when we wrote the law


Without clear state guidelines, Wakefield Police Chief Rick Smith said pot dispensaries “could open up next to a school or a church, a playground or right next to your house. … The law as written has no parameters.”


Chief Smith likes parameters


The medical marijuana law won by a landslide 63% to 37% Tuesday. The beleaguered state Department of Public Health — already reeling from a national meningitis outbreak and a rogue chemist at the state’s drug lab — must now roll out the law.


Let them smoke dope.


Dr. Lauren Smith, interim DPH commissioner, pledged to consult health care and public safety officials in the coming months but declined to go into specifics on pot policies in a statement to the Herald.


DPH’s new head, who wasn’t involved in Massachusetts’ meningitis outbreak scandal


Chief Smith worries it’s still the Wild West when it comes to regulating weed.


High noon, eh?


Smith’s not taking any chances and is pushing for new zoning laws to ban pot dispensaries in Wakefield.


In light of the potential stoning to come, DPH wants more time to implement the law:


The Department of Public Health’s interim director indicated Wednesday that the department might need more time to get things right.


The law takes effect Jan. 1, and the department has 120 days, or roughly four months, from Jan. 1 to write regulations governing the registration of medical marijuana treatment centers, home cultivation, dispensaries, and medical marijuana registration cards. “The timeframe is there, so you can’t completely ignore it,” said interim Public Health Commissioner Lauren Smith.”  But to try to meet that timeline would be potentially contrary to the more important emphasis on trying to do it correctly, so there may be support possibly to adjust that timeline.” Smith said the aim would be “not to delay it forever but just to give us some time.  … I think it’s fair to say there hasn’t been a state that’s absolutely gotten it right yet,” Smith said.

Medical marijuana industry interests are already descending on Massachusetts to check out business opportunities here.

When does the party start?