We have people complaining they can smell pot coming through their bathroom

Hello All! Really need some recommendations! We have people complaining (in numerous buildings) they can smell pot coming through their bathroom cabinets or vents. You can’t pinpoint if it is coming from an upstairs neighbor or someone else. Because of HIPAA this is a very sensitive subject. How do you go about addressing this issue? TIA!

Um, HIPPAA? I guess you live in a state where it's legal?

no but there is medical marijuana and it is a HIPAA violation to ask to see their card

Darcie Leigh oh...still a really hard one. You cant really prove it unless someone admits it.

Even if it is medical marijuana, that doesn't extend the right to disrupt the peaceful enjoyment of other neighbors.

Have you pinpointed who the smoker is? Have they told you it's medical?? I can't imagine it would be illegal to see the card. It's like any other disability. You can ask for a letter from the doc saying the medicine/service animal/etc is needed, you just can't ask WHAT their disability is.

And if you know who the smoker is and they haven't told you it's medical.... treat it as though you don't know it's medical and they're violating the lease until they say otherwise.

Not illegal to ask for a copy of their MMJ card. HIPPA does not apply here. Marijuana medical or otherwise is still against federal law therefore you can deny it use on your property. Check with your attorney but it has been decided in an appeals court

federal government not approved and lease states it so they would be given notice

The resident has a responsibility to not disturb or cause a disturbance to another. If they choose to create an offensive odor in their apartment it is their responsibility to keep it from others. That goes for complaints for the smell of tacos and cookies also..

Doesnt matter if it's legal if it's a non smoking property.... There's other options for using it than smoking.

Unless the tenant is disabled, and the marijuana use is related to the disability. Although, one might be able to make the case that the tenant in this case could use the medication elsewhere, but it gets very sticky.

could a tenant with a rightful need for it take it in Another method/form since smoking is not allowed? I am not familiar with the forms that one can get it in now. Just curious.

That is exactly the question I would ask the doctor. If the doctor says yes, then you may be able to say that the accommodation request is NOT reasonable because the physician says another form would work. Note, this is not legal advice. I am not an attorney, and I don't even play one on TV. Consult with an actual FH attorney before taking action.

Doctors and hospitals are governed by HIPPA, not property managers. That said, releasing any records from one resident to another could violate other obligations. If they are disabled, AND if the use of marijuana is related to the treatment of the disability, then you MIGHT have an issue. There is nothing to stop you from inspecting apartments to see where it came from. Find out where it comes from, then go there

so that would also allow applicant to not have to disclose at time of application? Due to Fair Housing? Knowing it's a non-smoking property?

No one is required to disclose a disability. If they are disabled and claim the marijuana use is because of that, then you'd be wise to go through the steps of Reasonable Accommodation so you do not get involved in legal action.

Marijuana, medical or otherwise is still against federal law, therefore you can deny its use in any form. Not against the law to require a copy of the card for your file. We have a MMJ addendum that states their card must be on file with the office and they can’t smoke it on the property.

Find another reason for your post as I don't think HIPPA rules apply here unless you are a doctor working as a property manager.

Best to ask such a specific question of your legal department.

It's something incredibly hard for property management companies to regulate. Unless we see someone smoking in plain sight, even if we know for sure that is the person smoking marijuana, we cannot do anything about it.

I tell residents when this occurs to simply call the police, because simply an odor of an illegal substance is enough for THEM to search and do something, and then you as the property manager can give a lease violation in accordance with police findings. But this really is a police issue first.

Expensive way is to vent the fans outside instead of blowing in ceiling or wall

When verifying the need for a disability-related accommodation, often the landlord is not specific enough. For example, don't just ask the third party verifier "does this person need their dog", ask whether "does this person need their 150 pound Newfoundland". In this post context the question for the third party verifier is not "does this person need marijuana" it is "does this person need to smoke marijuana" as quite often the effective method of use is either oil or pills and not actual smoking. Unless things have recently changed when I was not paying attention, I believe HUD has said that allowing for the smoking of marijuana is not required.

Treat it as only a violation. If anything becomes a nuisance to other residents like smoking in the apartments in general. Not properly cleaning their apts causing rodents. Dog excessively barking day in and day out. Noise issues, etc. You can handle this situation the same.

If you are affordable/tax credit, or the resident is assisted by a housing choice voucher...... the resident is no longer eligible for the assistance as the programs are written and funded at the federal level(just administered locally). As we know, there is no valid use of marijuana that is recognized at that level.

There is no tax credit (LIHTC) rule of which I am aware which prohibits the use of weed.

Colin R. Ferguson, then why did the notice we receive specifically identify the MMJ use as the cause for my resident's disqualification for program eligibility? Our legal team reviewed it and determined that there was a clause in the program that MMJ use violated since the federal government doesn't recognize any valid use of it.... we appealed on the resident's behalf and still failed....

Hi Johnny Karnofsky, there is no tenant assistance in tax credits to terminate. Tax credits are tied to the units. For a unit to generate the annual credit the following must be true on 12/31 (or the end of the partnership tax year): The unit must be able to pass a UPCS inspection, the rent must be properly restricted, and the unit must be currently (or if vacant most recently) occupied by a qualified household. The household must meet income eligibility requirements and must not be composed entirely of full-time students, unless at least one member of the HH meets an exception. Other assistance programs might not allow it. LIHTC is not considered to be federal funding, and many HUD regs do not (currently) apply. State HFAs may have additional regulations, but I know of no state which reviews items like this. I'd love to know more if you want to PM me.

If the building is non smoking or has any federal funds they can use pot but it has to be in another form such as edibles or cookies etc

I actually had to evict a resident from a tax credit facility when the housing authority learned(independently from me or my team) of her legal MMJ use and informed us that her eligibility was set to be terminated....

Is your community non-smoking??

it is not.

To help prevent the odor transfer to other units, seal all plumbing inlets under sinks and behind toilets with foam sealant in all connecting apartments. Also check behind the stove and frig. Often times the wall is not finished out with baseboard and there is an air gap at the bottom. Seal that with foam too.

I'm having some issues as well so thank you for asking the question.

The current issue of NAA Operations just hit my in-box with an article on medical marijuana and fair housing. Check it out!

Your buildings are probably like mine. The bathroom vents connect in the ceiling and go out one central vent. If someone is smoking in their unit it will go up the vent and into other people's units.
I don't allow smoking in my buildings. It doesn't matter what kind of smoke it is. Just because they have medical pot I don't believe you have to let them smoke it in the building. It's still a drug, there are kids in the building, and people may have drug screenings to pass for work. They can easily get CBD oil to use instead of smoking it, plus it doesn't have the drug effect when it's the oil either. It just has the medicinal properties.
I had people smell it in my building. I sent out a text to everyone saying that someone could smell it, that they had all signed a contract that they would not do drugs in the building, that they are illegal in MN, and that if they smell it to call the police and let them handle it. I haven't had any complaints since.
Maybe a call to the local police department might help clear it up. They should know the rules for it.

Related to this question, I have had complaints of cigarette-smoking in our non-smoking property. I have been trying to find HUD guidance regarding random inspections if staff actively smells cigarette smoke when standing outside a unit. Does anyone know how HUD feels about random inspections? I know we have to give a certain amount of notice for the annual apartment inspections.

If the property has more than two units then I usually handle it by sending a letter to ALL of the tenants (including the person who complained) advising that smoking inside the building is not allowed (unless, of course, you allow the tenants to smoke).

I agree. Treat as though you don't know it's medical. If they're legit, they shouldn't mind providing you proof. If you can somewhat pinpoint the resident, schedule some inspections and see if you can detect the exact location. Also, I'm not sure how your lease reads but it's not legal in any capacity in my state and we have a crime-free addendum that includes anything drug-related that residents to have to sign. So with that specifically included in our lease, that gives us the right to inspect, detect and even do an emergency eviction if necessary. Like the others are stating, you have to think about the disruption of the other neighbors as well. Now if it's legal medically, that's going to be tricky and I'd consult an attorney as well. You might want to add a new section in your lease addressing this very issue moving into 2019 and beyond. Good luck!