Prior to adopting a Rule and Regulation, the board must have the authority to do so. Boards should most special attention when establishing and adopting rules and regulations concerning unit or property use. All rules must be reasonable and tie in some manner to the safety, health and welfare of all community members.

Boards should NOT enforce the rules in an arbitrary manner.

Generally, rules made by an Association are subject to a three (3) pronged test for enforceability, to wit:
        1.      The Board of Directors must have authority to promulgate the rule (authority granted by the Declaration of Condominium or other governing documents);
        2.      The rule cannot conflict with any of the rights conferred by any of the documents of higher priority, whether those rights are expressly stated or reasonably inferable; and
        3.      The rule must be reasonable (explained as rationally related to a legitimate objective of the Association).

Florida is one of the many states that legalized the use of medical marijuana and therefore it is a safe bet that at some point an owner or tenant will request the ability to smoke or the substance as a reasonable accommodation for a disability.

On December 29, 2014, the U.S. Department of Housing and Urban Development (HUD) issued a Memorandum regarding the use of marijuana in multifamily properties. That Memorandum reinforced that while the use of marijuana for medical purposes has been decriminalized by several states, the Controlled Substances Act (CSA), 21 U.S.C. Section 801, et. Seq. still classifies marijuana as a Schedule 1 substance and therefore the manufacture, distribution or possession of marijuana remains a federal crime.

HUD emphasized in that Memorandum that a public housing agency or owner of federally assisted housing must take active steps to terminate the tenancy of any household with a member who illegally uses a controlled substance or whose use of such substance interferes with the health, safety or right to peaceful enjoyment of the premises by other residents.

Therefore, the following questions have arisen with regard to private housing providers like condominium, cooperative and homeowners’ associations:

1. Do community associations have a duty similar to that imposed on public housing providers to deny occupancy to residents who will be using a substance that remains illegal under federal law?
2. Can a Florida resident request a reasonable accommodation to use medical marijuana and must the association grant that request?
3. Can the association inquire on a purchase or rental application whether or not any of the proposed occupants in the home or unit currently use or plan on using marijuana?
4. Are owners who rent out their properties to Section 8 tenants required to investigate possible marijuana use and deny applications accordingly if such use is confirmed?
5. Does the prescription for medical marijuana mean an individual automatically has a disability as defined by state and federal law?