nevada-laws-on-marijuana.jpgIn January 2018, new Nevada laws on marijuana made recreational sales legal. With the "early start" program that went into effect on July 1, 2017, some medical dispensaries had already started selling this product under trial conditions. However, on December 31, 2020, the sales of both medical and recreational marijuana have been made legal throughout America.
Since then, this law, known as NRS Chapter 453D – Regulation and Taxation of Marijuana, has been revised and moved to NRS Chapter 678B – Licensing and Control of Cannabis. What do these new changes entail, and how can they affect your homeowners’ association (HOA)? Most importantly, what can your HOA do to regulate these new laws in your community and what are the risks associated with not acting on these new laws?
In an update to an article that appeared in our Winter 2017 FirstService Residential Connections newsletter, Attorney Donna A. Zanetti of Leach Kern Gruchow Anderson & Song offers examples of situations that could present dilemmas for HOA boards since the revision to the law. Although there are still some unknowns regarding the impact of the law, your board should become as informed as possible so that you’re not left “holding the bag” when residents begin asking about onsite recreational use.
Here as some of the factors you should consider:

1. Community common areas. 

Although marijuana is illegal in public spaces, what about private areas like common facilities managed by your HOA? It’s worth noting that state law grants property owners the right to impose restrictions on its use and possession within their domain. As such, it is certainly plausible for an HOA board to impose marijuana-related restrictions if they deem it necessary.

Many HOAs already have policies prohibiting smoking in common areas. According to Steven Parker, president of FirstService Residential Nevada, if yours is one of them, you may be able to apply your existing policies to marijuana smoking – depending on how those policies are written. “Check to see what’s in your governing documents about smoking,” suggests Parker. “If smoking policies don’t specify just tobacco, you may not need to make any changes to address marijuana.”

2. Private residences. 

Nevada laws on marijuana use have made the consumption of cannabis in private properties legal, posing a challenge for HOAs. The laws specify that consumption of marijuana on private property is now legal, and HOAs are generally limited in how much they can restrict residents’ behavior within their own homes. If your community does not have existing restrictions against smoking inside units, then residents must vote to amend the regulations if they wish to prohibit any form of marijuana usage. Unlike tobacco, marijuana can also be consumed as an edible. Preventing or banning residents from consuming edibles in their own home could prove even more challenging for HOAs.
Additionally, it is important to take medical marijuana laws into consideration. Under state law, Nevada HOAs must be accommodating to medical marijuana users. Recreational use of marijuana is not protected by state law; therefore, an HOA can take action against a resident (in terms of a violation notice) if their marijuana use becomes a nuisance. Most HOAs have a provision in their governing documents regarding nuisance activities. These provisions are often cited when tobacco smoke becomes an issue. Just like with tobacco smoke, however, enforcing nuisance provisions may prove difficult.

3. Cultivating plants. 

Nevada laws on marijuana allow individuals 21 years and older to grow marijuana plants for personal consumption if they live more than 25 miles away from a licensed retail marijuana store. However, they are limited to 6 plants per person and 12 plants per household. They must also be grown within an enclosed area that is not visible to the public and is equipped with a security device, such as a closet or greenhouse. Most importantly, the grower must own the property or have permission from the legal owner to grow marijuana.
Can your HOA prevent a community resident from growing marijuana? That depends. Of course, the law will be on your side if there is a marijuana store within 25 miles of your community. You may also have grounds for enforcing restrictions if, for example, the grower is causing a spike in your community’s commonly metered electricity and water.

4. Workplace policies. 

Recreational use of marijuana does not qualify for protection under NRS 613.333 or NRS 678D.510(1)(a); therefore, employees who test positive for marijuana at work may be discharged, even if it was used recreationally outside of work hours.
Under this law, an employer is still permitted to have a policy prohibiting or restricting the use of marijuana. FirstService Residential currently has a zero-tolerance policy regarding drug use of any kind by associates. Check with your contractors to verify whether they prohibit drug use by their employees and whether they have any intention of loosening their rules because of the new Nevada laws on marijuana.

5. DUI laws and underage use. 

With legal recreational marijuana use now in effect, it’s important to remember that driving while under the influence of marijuana is still illegal – just like alcohol. For those who want to purchase or recreationally use marijuana, you must be at least 21 years of age. Additionally, performing any task with impaired judgement due to cannabis consumption could potentially lead to negligence and professional malpractice on their part
Until we see cases in court that pit HOA policies against residents who use marijuana, we may not fully know where communities will land on this issue. In the meantime, Parker recommends that your board take the following proactive steps:
  • Consult with your HOA attorney. Your attorney is the go-to expert for interpreting local laws on marijuana use and evaluating how it affects your HOA rules. They can provide invaluable advice to ensure you stay compliant with regulations while protecting the interests of community members.
  • Talk to your community management company. Your management team and attorney can provide the necessary assistance to ensure your governing documents changes are completed in compliance with Nevada's HOA laws and existing policies. From informing homeowners of any modifications to finalizing ballots - they'll help make the process smooth while ensuring all guidelines are met.
  • Communicate with your community. Hold meetings to educate residents about the new law and its impact. Find out how members of your community feel about marijuana use within the community. Knowing where your residents stand can help you determine your best course of action. Your management company can also help you send out emails, post information onto your website, and distribute letters by postal mail to keep community members informed.
Disclaimer: This article is provided for information purposes only and does not constitute legal advice. Consult with your association attorney.
Tuesday December 20, 2022