Marijuana and HOAs: Can homeowners groups ban people from growing, using pot?
Amendment 64, which allows adults 21 and over to use and possess small amounts of marijuana, includes provisions that allow growing cannabis at home. But can homeowners associations put rules in place prohibiting such grows even though they're fine under the Colorado law?
That question will be addressed at a panel discussion tomorrow. But an attorney who'll be taking part in the event believes the answer is, under certain circumstances, "yes."
Here's the passage pertaining to home grows in Amendment 64. It allows the following:
POSSESSING, GROWING, PROCESSING, OR TRANSPORTING NO MORE THAN SIX MARIJUANA PLANTS, WITH THREE OR FEWER BEING MATURE, FLOWERING PLANTS, AND POSSESSION OF THE MARIJUANA PRODUCED BY THE PLANTS ON THE PREMISES WHERE THE PLANTS WERE GROWN, PROVIDED THAT THE GROWING TAKES PLACE IN AN ENCLOSED, LOCKED SPACE, IS NOT CONDUCTED OPENLY OR PUBLICLY, AND IS NOT MADE AVAILABLE FOR SALE.
|A photo provided by the Colorado Drug Investigators Association when sharing results of a 2012 marijuana mold study.|
"It's not a given that HOAs are going to jump into this issue head over heels," Orten says. "Many of them may look at this and evaluate it and potentially do nothing, leaving all the regulatory authority to either state or local government. But some HOAs might jump into it."
Orten believes they have every right to do so.
"In my view, and probably in the view of most, HOAs have the authority," he maintains. "The constitutional amendments, Amendment 64 and Amendment 20," a 2000 measure that legalized medical marijuana in Colorado, "apply principally to government. It doesn't apply to private rights, and essentially, HOAs are private communities.
"If they want to create a more restrictive regime, they can -- and that's what some communities may want to do, because either the smell of growing cannabis or the smell of smoked cannabis may be offensive to others in the community."
The Colorado Clean Indoor Air Act of 2006 "puts a number of limitations on where you can smoke tobacco," Orten points out, "and also other types of smoke others might find offensive: pipe smoke, cigar smoke, other unique cooking odors." Presumably, marijuana smoke would fall under this measure as well.
But could HOAs ban marijuana simply because those in charge have a moral objection to its legalization? That's where things could get tricky.
Continue for more of our interview about marijuana and homeowners associations.