 This is Stink Tech, Hawaii, Community Matters here. Aloha and welcome to The Condo Insider, everything you ever wanted to know about condo ownership and condo living here in Hawaii. I'm your host and also your guest today here on The Condo Insider. We're doing something a little bit different today in that I'm going to be discussing issues involving medical marijuana and how that affects your condominium association. Little background first on why we're going to be discussing this and that is the fact that I have been writing and teaching realtor continuing education courses for nearly 20 years. And I keep track of what seems to be the common issues when it comes to condominium living. And as you know from previous episodes we've discussed a couple of times the issue of emotional support animals and that's been the number one issue I think over the last few years. Following close behind is the issue of smoking and medical marijuana as it pertains to living in a condominium. So first off before we get into the issues of the condominiums it might be important to understand where these medical marijuana laws do come from. And you'll be proud to know that as of April of 2000 Hawaii became the first state to permit medical marijuana use and also in that legislature that Governor Ben Cayetano signed it allowed for the Department of Public Safety to help create the rules. Now I have always admitted that Hawaii was a little bit backwards in their process. Yes we were the first to allow medical marijuana but we were one of the last to do dispensaries which we've only just had in the last year or so. The reason I've been tracking the issue of medical marijuana in particularly in the place of condominiums and for long term property management is there are conflicts in the law and it also may create a scenario both in the condo and the long term management scenario that you may violate fair housing laws or at least state fair housing laws because there is conflict within the state and federal laws and that's one of the reasons I've been tracking these laws over the years or at least since 2000. One of the things we need to understand right off the bat that even though Hawaii allows for the use of medical marijuana this does not mean it is legal federally. So technically speaking you can still be found violating the law and prosecuted on the federal level. Now as far as I know that hasn't happened in Hawaii but you never know when that situation will change depending on what administration is in at the federal level. So speaking of that one of the reasons I've tracked the law over the years is the problem that the long term property managers have in dealing with this situation. If they have a tenant that uses medical marijuana and the law says that we cannot deny them a rental based on the fact that they are using medical marijuana the landlord is put in a position where they move a qualified tenant in and then later on how do they explain to an owner when let's say the feds do take action and seize the property because of that scenario and then they have to call up the owner and say well the state law said I had to accept this person as a tenant but the federal laws it's still illegal so they seized your property for medical marijuana use. Of course that scenario has not happened but we should all understand what the outcome and possibilities are under the medical marijuana laws and actually they point out that the federal authorities they all the arrests made only 1% account for marijuana arrest and that doesn't break down the fact that some may be medical and some may not be medical. So as I pointed out April of 2000 the legislature passed a law that allowed Hawaii to have patients use medical marijuana and since that time there have been about 4,000 patients being registered every year for the use of medical marijuana and now remember that was in 2000 so that's quite a jump in number over the years. Also in the meantime it's also good to know what qualifies a person to be on medical marijuana and right now the list at least for the state of Hawaii they say any debilitating medical condition which could include cancer glaucoma, HIV, AIDS, also severe pain, severe nausea, seizures including those of epilepsy and severe and persistent muscle spasms are some of the conditions that would allow a doctor to suggest the use of medical marijuana and also the Department of Health has been allowed to add any additional conditions into that situation. A number of years ago they did try to pass legislation where they would only signify certain medical conditions that would allow the use of medical marijuana but as studies have grown over the years it would have placed a situation where every year the legislature would have had to add to that list so rather than have a list that was very limited for a period of time they allowed the Department of Health to make additional additions to what is considered to be a qualifying medical condition for medical marijuana. Also the law allows for a person with medical marijuana use to have what is called an adequate supply and that has also caused a little bit of concern among long-term property managers and condo associations because basically what this means is that the patient can grow their own medical marijuana and what a lot of people don't realize also stated in that law that the caregiver of somebody who has a disability or condition that requires the use of medical marijuana also has the ability to grow for that patient as long as they're a caregiver. Now what is an adequate supply? Well according to Hawaii statute that would be seven plants in various stages of growth and also three ounces of usable marijuana on hand at any given time. Where this becomes an issue is in a condo association or in a long-term rental where is the person going to grow their medical marijuana supply? I've seen instances where they're actually growing it right on their lanai at the condo association. So this is an interesting aspect which I think personally will be resolved in a couple years now that we do have the ability to have dispensaries and what has happened because of the dispensaries is that caregivers who are currently now allowed to grow for their patients and are protected under the statute will not be allowed to grow for their their patients by December 31st of 2018 which means that they will now have to get their supplies from dispensary illegal dispensary within the state of Hawaii. The only exception to that rule however for the caregiver is that the exception would be is if the island you happen to live on or the patient in the caregiver live on does not have a dispensary. So a good example of that would be let's say Molokai which doesn't have a dispensary would allow the caregiver or the patient to be able to grow their own medical marijuana. Now remember I said that the previous law said up to seven plants well act 70 which was passed or excuse me act 170 which was passed by this year's legislature actually increased that amount to 10 plants in various stages of growth usually it would be immature plants and sustainable plants and a combination thereof. One of the other things that is important to realize because we see this happen and we see concerns about it is the statute does not allow for medical marijuana use in public places so they can't just be out in front of Walmart or someplace like that using their medical marijuana or smoking it so to speak. They also cannot use it on the bus or a moving vehicle or in the workplace now I'm not going to discuss medical marijuana and employment that should be done by somebody else who has specialty in employment law. You also cannot use it on school grounds or use it in an area that the endangers the health or well-being of any other person. So that sometimes becomes an issue with the condo association which we'll get to in just a bit. So the other thing you need to realize with medical marijuana is what are the doctors allowed to do and it's interesting to note that doctors do not write a prescription for medical marijuana there's not a prescription pad where they actually write out that the person can use medical marijuana they actually write a recommendation for medical marijuana use on a prescription form. They also are not allowed to assist the patient in getting medical marijuana and they are not allowed to cultivate or possess marijuana on behalf of their patient and they cannot assist the patient in using medical marijuana and they cannot recommend the use of medical marijuana without a justifiable medical cause. So those are important things to remember. So now we get into the issue of what happens in long-term rentals and condo associations. Well back in 2014 your legislature passed Act 60 and I'll read it out for you as it states a provision in a rental agreement allowing for the eviction of a tenant who has a valid certificate for medical use of marijuana as provided in the statute in any form is void unless the rental agreement allows for eviction for smoking tobacco and the medical marijuana is used by means of smoking. That is an important clause in Act 60 from 2014. Basically what they're saying is that we can't evict you because you're a medical marijuana patient however if the landlord the condo association or such has a non-smoking policy then you can enforce the non-smoking part of it meaning that you're not allowed to smoke cigarettes nor are you allowed to smoke medical marijuana on the property. That's important to understand because the trend over the last couple of years with a lot of condo association is not just to ban smoking in common areas which is already covered under the state's smoking laws it gives them the ability to ban smoking 100% at the condo association. So as an example the association would vote to amend their bylaws and let's say get 67% of the owners to approve they can ban smoking throughout the condo association including inside the unit. If they have done this then they can also ban the smoking of medical marijuana that doesn't mean they're preventing the person from using medical marijuana they only are preventing them from smoking it on the property or within the unit and landlords have done this as well in rental units by indicating that they have a no smoking policy with all of their rentals which is probably covered by about 99% of the property managers in the market today. So before we move on to more let's take a quick break and when we come back we'll discuss more of what a condo can do in regards to medical marijuana. This is Think Tech Hawaii raising public awareness. Ted Rawson here folks you're a host on where the drone leads our weekly show at noon on Thursdays here on Think Deck where we talk about drones anything to do about drones drones remotely piloted aircraft unmanned air christmas whatever you want to call them emerging into Hawaii's economy educational framework and our public life we talk about things associated with the use the misuse technology engineering legislation with local experts as well as people from across the country please join us noon on Thursdays and catch the latest on what's taking place in the world of drones that might affect you. Welcome back to the condo insider and our discussion today on medical marijuana and the law and how it affects condo associations quickly I'd like to also point out that I should have added in that Hawaii has some of the strictest smoking laws not just medical marijuana but regular smoking and over the last couple years a couple of things that the state has done within their smoking statutes is to also include electronic cigarettes into the smoking ban meaning wherever a regular cigarette is banned so our electric cigarettes and vaping devices which have become very popular and very common now and even on the aspect of a condo association if you have banned smoking you can also incorporate the fact that vaping is also included into the state's non-smoking laws so if somebody is using a vaping system to take their medical marijuana that is also banned under our statutes and just as a side note Hawaii was one of the first states to also make it illegal to buy cigarettes or vaping devices unless you're over the age of 21 and Hawaii being the first to do that many other states are now following suit over the last couple years passing similar legislation now for all intents and purposes I will admit that I am a cigarette smoker and nothing gives me greater joy than walking into let's say 7-eleven and buying a pack of cigarettes and having them ask me if I'm over 21 that actually does make my day but continuing on with the medical marijuana situation people are concerned particularly property managers and board of directors at condo associations that if they try to ban the smoking of medical marijuana are they going to violate somebody's disability rights or fair housing rights both under federal and state law and the issue is that you cannot reject somebody for strictly for the use of medical marijuana what you can control is the smoking of it and this has become a very big concern in condo associations in regards to the smoking of medical marijuana or better yet taking it out on the little and I of the condo association or doing it out in the common areas because you're not allowed to do it within the unit and again those are also protected areas and one way associations can attack the issue of smoking on the line I whether it be cigarette smoke or medical marijuana is you can add to the house rules that there are no noxious fumes coming from the lanai which would include like electric barbecues and things like that which can bother other people's right to quiet enjoyment of their unit so one of the issues that has come up recently in my discussion with condominium managers and property managers is when somebody complains that they can smell the medical marijuana coming from a unit and the problem with that is is how do you actually pinpoint that it's coming from the unit so I always recommend to property managers at condo associations make absolutely sure you know it's coming from that particular unit before you post a notice because it might be coming from another unit and everybody is assuming it's coming from the unit next door when in fact it may be a unit on the other side of that unit where they're actually smelling it another issue that comes into play is people have concern that they have employment where they're drug tested regularly and if the neighbor is smoking medical marijuana then that is going to show up in their drug test well that actually is not the case you may be able to smell it but you're not going to have it affect your drug testing at whatever your employment is because you'd actually have to be standing right there next to the person smoking it and actually sucking it in as well in order for it to be in your system enough to show up on a drug test so again as I mentioned before one of the ways a condo association can deal with not only the medical marijuana but also the smoking aspect altogether is to amend the bylaws get the proper vote of the ownership and ban smoking 100 percent in your condo association this is actually happening throughout the state of hawaii where they're mending their bylaws to make smoking 100 percent not allowed at the condo including inside the unit we all know that of course with medical marijuana that the smell is a lot stronger than with regular cigarettes and so that's why it has become so noticeable within a condo association but again back in 2015 they added more to the statute they added in that there are protections for reasonable accommodation it prohibits discrimination against medical marijuana patients and their caregivers by schools landlords courts with regard to medical care or parental rights and plan community associations and condominium property regimes basically what it is saying particularly in the issue which I thought was interesting and parental rights is the court cannot use the fact that you are on medical marijuana to restrict visitation rights let's say in the divorce case and a school cannot suspend or expel a student because they are on medical marijuana the first thought that pops into your mind in those situations though is you're thinking of some teenager in high school walking down the hallway smoking a joint and saying well this is my medical marijuana as we said earlier you cannot smoke medical marijuana in school or in public so to speak but there are other means of taking medical marijuana and one of those is the liquid format of medical marijuana which has been shown to assist people who are prone to seizures and prone to epileptic seizures or seizures of any type so if a student in school is using medical marijuana to prevent seizures the school cannot expel or suspend that student for that a landlord or condo association cannot demand a person be evicted because they're using medical marijuana but again they can enforce the aspect of smoking if smoking is not allowed then smoking of the medical marijuana is no longer allowed either but they can take it in other formats and as you've probably seen in the news the dispensaries right now are selling the smokable versions but eventually they will have what they call edibles and other versions which those who are on medical marijuana will not have to smoke it in order to get their medication from the marijuana they would be allowed to use it in other formats and that's what their department of health is basically saying in the issue of not being allowed to smoke it wherever smoking is banned but one of the issues that has come up that sort of slipped through the legislature not a lot of people had noticed it but I actually took the time to read the bill is the passage of Act 170 which was in this year's legislative session and the legislature finds that the term marijuana actually originated as a slang term and has no medical meaning to it and so what this legislature is saying that the scientific term for marijuana is actually cannabis and so the term marijuana has no scientific basis and they also pointed out that in the early part of the 20th century usually in the 20s it also had a racial stereotype attached to it that pretty much most people I think had forgotten about even though they might have learned about it in a history class or watched one of those crazy early movies about marijuana so effective with Act 170 all statutes all administrative rules brochures etc that mentioned medical marijuana will now be changed to serve the term of medical cannabis and so any of the statutes you've seen since 2000 that refer to it as medical marijuana will eventually be changed to refer to it as medical cannabis personally I think we missed our chance in Hawaii in that we are in Hawaii so we should have changed it from medical marijuana instead of calling it medical cannabis we could have called it medical paka lolo as some of us had remembered in the past but that is going to be the new official term will be medical cannabis and so all statutes all administrative rules any brochures that reference medical marijuana will eventually be changed to state medical cannabis now one of the issues that is probably going to come up over time because this has been a growing issue is whether or not Hawaii will be one of those states that eventually legalize the recreational use of marijuana not just in the fact of medical use and this is something that will probably be looked at very closely with our legislature over the next couple of years mostly because they're watching those states that have legalized recreational use and using Colorado as an example since they instituted legal recreational use has collected over a billion dollars in taxes on that so if you think about it if we make it recreational then we could probably pay for about a quarter mile of the new rail system in the process so just to highlight what we've talked about today in medical marijuana in your little history lesson is that if you are a condo association and it doesn't matter if it's a tenant or an owner and you have passed rules through your bylaws through your house rules that ban smoking that smoking rule also applies to the smoking of medical marijuana it doesn't prevent the use of medical marijuana it only prevents the smoking of it and the condo association does have the right to do that and then the patient will have to use it in other formats such as liquid form or edibles well I hope I've made a little bit of the medical marijuana laws clear we could actually go on for quite a while discussing that but for the condos you know you do have a position that you can stand by in regards to the smoking of it at your condo association I again thank you for allowing me to be here today on the condo insider and be sure to tune in every Thursday for interesting aspects and discussion in regards to condominium living right here on the condo insider aloha and thank you for watching