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Tenant Rights: Medical Marijuana in Florida Apartments

Florida Apartment Buildings

Given rapidly evolving legislation, and a lack of existing case law, many medical marijuana patients are confused about tenant rights. Is it ok to use medical marijuana in your apartment? Can you be evicted? What rights do you have as a resident with a Florida medical marijuana card? CannaMD consults expert legal and property management sources to find the answers.

Federal versus state law

The main problem with using medical marijuana in apartment housing involves a conflict between federal and state law. Although Florida permits the use of medical marijuana for approved conditions, the Controlled Substances Act still classifies cannabis as a Schedule I drug – meaning the substance is federally prohibited.

Grace Hill, one of the leading property management training services in the country, advises landlords:

As you face questions about marijuana use, it may help to keep in mind that federal law supersedes state law. Among other things, this means that you are not obligated to “permit” breaking federal law to allow a resident to do something that is legal under state law.

For the moment, the argument is primarily viewed through three lenses: “no smoking” and “no drug” policies (outlined in the lease agreement) and “reasonable accommodation” requests.

No smoking policies

Attorneys at Haynsworth Sinkler Boyd consulted with Grace Hill to offer landlords the following advise regarding state-permitted marijuana use and “no smoking” policies:

Multifamily housing providers are generally free to prohibit the use or possession of marijuana as part of a smoke-free policy, even in states where recreational or medical marijuana use is allowed…

While Florida law is still developing, states like Michigan have made a strong stance against smoking medical marijuana in smoke-free communities. The Michigan Department of Community Health notes that anywhere from 5% to 60% of air in apartment units comes from other units in the building. Citing this statistic in conjunction with the a 2006 report from the Surgeon General stating that “there is no such thing as risk-free secondhand smoke”, Michigan officials dispute the arguement that landlords should make exceptions for medical marijuana patients.

Florida lawyer David S. Tupler concurs, noting:

Residential landlords may still prohibit tenants from smoking marijuana on their rental property in the same way in which landlords may prohibit cigar or cigarette smoking.

No drug policies

Due to marijuana’s federal prohibition, consuming medical marijuana in any form (i.e., vape, capsules, patches) may be seen as violating a community’s “no drug” policy.

Attorneys note that under the Quality Housing and Work Responsibility Act of 1998 (QHWRA), many HUD-assisted housing owners must deny admission to assisted housing for any household with a member determined to be illegally using a controlled substance. (Since marijuana is classified as a Schedule I drug, it falls under this provision.)

The QHWRA also permits owners to evict current residents for using marijuana.

As with “no smoking” policies, Grace Hill encourages landlords to add explicit language to their lease so that residents understand how medical marijuana is handled under drug clauses and/or addenda.

Reasonable accommodations

Here’s where things get interesting.

According to the Federal Fair Housing Act (FHA):

It shall be unlawful to… discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of: that person, a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available, or any person associated with that person.

Of particular note:

Discrimination includes… a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

This means that people with a handicap (defined by the FHA as “a physical or mental impairment which substantially limits one or more of such person’s major life activities”) may ask their landlord to grant an exception to certain policies. For instance, cancer patients who use medical marijuana might ask for permission to break the “no drug” policy.

However, while Grace Hill acknowledges that laws are rapidly evolving, the current consensus is that – since federal law supersedes state law – granting such a request wouldn’t be a reasonable accommodation because it would place an “undue burden” on the landlord (forcing them to condone the breaking of federal law).

Advice for Florida tenants who use medical marijuana

According to Florida lawyer Ryan McCain, medical marijuana tenant complaints “present fertile ground for litigation”. While states like Michigan have ruled in favor of landlords, other states such as Rhode Island, have shown judicial support for medical marijuana patients. According to state law, Rhode Island landlords “may not refuse to lease to or otherwise penalize a person solely for his or her status as a [medical marijuana] cardholder.”

However, as McCain notes, this places landlords in a precarious position, as federal law supersedes state statutes. The issue, along with other medical marijuana cases, will likely play out in court over the next few years.

Until then, tenants should carefully review all paperwork before committing to a lease. Landlords are permitted to allow medical marijuana in states where the substance is legal– so reading the fine print is key.

If your community allows medical marijuana, you’ll be required to show a copy of your medical marijuana use card. To see if you qualify, fill out an application today.

Find Out If You Qualify

You may be eligible for medical marijuana!

Florida lawyer Harry Heist spoke exclusively to CannaMD about the future of Florida tenant rights and medical marijuana. As Heist explains,

This is nothing new. Just new for Florida.

With that in mind, Heist suggests looking to existing case law in other states. As precedents are set, Florida is likely to follow suit.

Currently living in an apartment and using medical marijuana? We’d love to hear about your experiences in the comments section, below!

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32 Comments

  1. I have been an AIDS patient for many years and lived in HUD properties in Maine where Medical Cannabis (now recreational) was approved. As an advocate for disabilities, I have always been upfront and honest with my local housing authority. I have never been evicted even when growing in an apt in Maine. I was never had a complaint from neighbors about smells or damage due to growing so I never violated the lease. I now live in Key West Florida under a HUD lease and this is new here so I am not going to make it an issue. My advice keep the smells in your own unit and dont damage the property with grows. Always remember it is still ILLEGAL federally.

    1. Thank you so much for sharing – glad to hear your experience has been positive! You raise some great points, and you’re right: it’s important to keep the federal prohibition in mind. Wishing all the best for your continued treatment!

  2. Caselaw is all right and everything, but individual God given in alienable rights as protected in the ninth amendment of the United States Constitution is what I think should be banked on. I don’t have anything nice to say to people who use statues to deprive me of my rights which I claim all of them and I relinquish none of them.

    1. That’s an incredibly valid opinion, and we appreciate you taking the time to share. Hoping the system catches up sooner rather than later!

  3. I live in Florida and am a tenant in a condo apartment. My neighbor ( wall to wall ) smokes marijuana on a daily basis. I respect what other people wish to do but as long as it does not affect me. In this case it does and I have reported the issue to the management. The lease states no smoking as well as no drugs to be in the apartments. The advise I was given from the management was that I should call the police next time the problem occured. I do not think that it is something I would like to do yet and be responsible for what could potentially lead to the neighbor losing their freedom, place of residence and other consequences. I suggested that the management send a letter to the neighbor asking them to comply with the lease agreement, which they did. The management then asked me to contact the condo security and direct them to the apartment where the problem originated as well as to included it into a report if it continued to happen. The problem persisted and I contacted security and explained the case. Security went to the apartment and knocked several times but no one answered even though the tenants were inside to which security reported they sensed the marijuana coming out from the apartment from under the door and door cracks.
    It is unfortunate that this has to be an issue to the neighbor as well to me. I do believe that there are two different legal factors in this situation and are as follows:
    1. The neighbor’s failure to uphold the agreement in the lease with the management (smoking/illegal substances)
    2. The non compliance of the management to me by infringing my right to quality of air as well of the right to quiet enjoyment of my dwelling.

    Furthermore, it upsets me to know, regardless of the smoke, that there actually is a way that air enters from neighbors into my apartment. Trespassing air coming in to mine is unacceptable because of the potential bad air quality or harm to my health that is being introduced into my private living space.

    I will wait and see what action was taken after the condo security report and then evaluate my options if the problem continues…
    -involve the police
    -take legal action
    -other.

    What do you think?

    1. I think you should mind your own business , you don’t know what kind of medical conditions your neighbors might have .

      1. Nick, that is pretty darn rude and ignorant, the air she breathes in the privacy of her own home is most definitely her business. Why should one neighbor, regardless of condition or if recreational use, have the right to infringe on another’s air quality in their own home. Outrageous! LOVE how so many people want to blame the person that is victimized by neighbors that don’t give a dam that their disgusting pot smell is effecting surrounding neighbors, some of which have kids like myself. I feel very strongly about this because I am currently dealing with it from a young couple that moved into duplex next to me. To answer Inquisitive, are these in bad areas?? Not mine, we live in a very nice gated neighborhood on a golf course with a mix of houses and duplexes. We share a kitchen wall with my new young neighbors and for month’s have been smelling their pot smoke since they moved in. Tonight however was one of those rare beautiful nights in FL where I could open windows, I left for a short while to come back and my entire living room and kitchen smelled as if they where in their smoking a joint. I cannot wait to move, only in area temporarily but feel real sorry for person that purchased their unit and is dealing with this. So for all y’all that think your condition gives you the right to stink up neighbors air PLEASE try to empathize and be considerate it is in everyone’s best interest. Also, why not check with your neighbors ask them if smoke smell is bothering them? Alot of non smoker’s would rather not knock on door of pot smoking neighbors and tell them their smoke is bothering them. I have tried being friendly when I see my neighbors, and have never complained till tonight. I could care less what they do as long as I don’t have to partake. The smell makes me sick and I do not want my son to be smelling that.

    2. It’s basically who’s rights are more important. It sucks, but if I were going to smoke and knew it would effect someone else I would look into renting / buying a house. In other words a dwelling that doesn’t share a wall / ventilation with other non-caring individuals with bad habits or a lifestyle not conducive to mine. Not to mention, are these apartments in bad areas??

  4. Is it medical marijuana? Have you discussed the matter with your neighbors? I think that would be the adult thing to do, especially if you are concerned with their well being.

    1. I live in Florida in a unit that I purchased. I’m having the same issue. I’m so angry . I contacted management, they contacted the owner . I even pleaded with him not to smoke inside that it was affecting me . He don’t care . Nothing was done they advised me to call the police, I did call the police nothing they just told me that since he is smoking in his unit , nothing he can do. So here I am feeling sick from the smell and screw the the people that don’t dodrugs. Just don’t know what to do. I don’t think it’s going to end well though .

      1. I have the same problem. I guess marijuana smokers want us, non smokers, to be compassionate. I am! Just don’t smoke in your unit if it is affecting my family. I have a 3 year old and my apartment has been filled with pot smoke. Shame on all who love to smoke, but don’t care about the neighbor next door. Due to my current situation I have changed my opinion on this matter and have advocated to all friends and family on vote against recreational use. Be compassionate of my cause, but screw your rights and screw your life˜

        1. Boo hoo.
          Karen’s…
          The smoke will not kill you, harm you, or your family members.
          However our diseases will kill us.

          Also…
          Did you ever think you bought our rent something built like garbage if “your place is so full of the neighbors smoke?”
          How about if it truly is that bad don’t you think you should worry about the virus being you and not the smoke that has been proven to help heal and protect you?

          Another valid point is if you just can’t up and move your family what in the world makes you this a disabled person can just pick up their untie lives?
          Invest in an air purifier, it honestly sounds like that should be your main worry, not you inspector gadgeting your nose around the building rooting of all the medicationers Karen and Kenny.
          Covid is real, keep your sniffer on your side of the wall.

      2. Truthfully, I wouldn’t care either. Florida prohibits smoking in public, so that leaves smoking at home. No one should have to suffer because you don’t like the smell. Matter of fact, if I were your neighbor, I’d say, f* you to your face. If it bothers you so much, move. Rent your condo to a non-smoker and move somewhere else. No one should be told they can’t medicate because you’re offended by it.

  5. The governor just made smoking medical marijuana, LEGAL, however, if apartment complex has a no smoking restrictions, I think it may apply to marijuana smoking as well, I hope there is a loop hole there, after al medical is medical

    1. Hi Cathy! The new legislation (SB 182) states that private properties reserve the right to prohibit medical smoking; meaning, unfortunately, the decision is still in the hands of the landlord :/

  6. Due to 2 complaints from my new neighbors after residing here for 3 years I have to answer to my property manager about the smell and he has decided to threaten me that he will send the cops to search my residence I’m sure once the cops confirm I have marijuana the property manager can still evict me make me pay to live here and move some else in the only right you have is not to be arrested with marijuana products in your possession and you can only smoke the marijuana on your own private property

    1. Unfortunately, you are correct 🙁 At this time, landlords still reserve the right to set all smoking and marijuana-related rules. Hoping this changes one day soon!

    2. I’m in the exact same situation. I wish my neighbors had just come and talked to me. I only smoke on the lanai, so if they have their windows open just yell out to me and I’d hear it. I don’t understand how medical marijuana can pass by over 70% and I end up with a neighbor who is in the 30%, and a coward. I can’t wait til they don’t pick up after their dog. I will definitely be complaining and they will be fined. Can’t. Wait.

  7. I live in an apartment in Florida and I am a new medical Canabis user. I have tried most forms of Canabis delivery and smoking works best for me.

    I have smoked twice now in my apartment and the smell is bad. Keep in mind, I’m in Florida, opening windows is not an option.
    I am confused about what to do. I read my lease and cannot find a no smoking rule.

    Here is what my OPINION on this is – I am aware that I live in an apartment and I want to be considerate of my neighbors. I will discontinue use of smoking until I can find a way of doing it and not affecting others. I’m not happy about it, but there it is.

    Dave, tampa

  8. I recently moved into a new apartment where I dab regularly. it definitely does not smell as much as flower, however, obviously the consequences for getting caught with Rosin are a lot higher than with flower. I recently received an email from management saying if you are receiving the email you live on the floor I live on and there have been complaints of a smoking smell. I am curious as to what to do from here on out. I definitely am not just going to stop smoking, but I also do not want to risk having any further interaction with management about it. I usually do dab fairly close to the door that leads to the hallway, should I try using a smoke buddy or dabbing in a different area of the apartment? any other advice is more than welcome. I have a driver’s license from a different state so getting a medical card is not an option. thank you

    1. You may still be able to establish residency and proper identification for your medical marijuana card without a Florida license. Please feel free to give us a call at (855) 420-9170 and we’ll be happy to help!

  9. If you live in public housing in FL we have No right to use our state sanctioned medical marijuana.
    They can evict you for just “sispecting” you are smoking marijuana in the init. Florida medical marijuana providers don5 care they are getting rich no matter

    1. On the contrary, we care very much – which is why we wrote this post! 🙂 Unfortunately, our physicians don’t have any control over the law, although we work tirelessly to advocate for improved patient protection and rights. We’re hopeful that as support and scientific literature grows, legislators will step up and do the right thing!

  10. If you can’t smoke in your house, in your car, at work, restaurants, parks and in open spaces where are you supposed to smoke in medication? WTF

  11. As a medical marijuana patient we have been harrassed the hoa hates are house neighbors have complained this is bs I played my state tax for it and the dr and I pay for the over price weed I should be allowed to walk my ass down the road and smoke as well in my car and at my house I pay my 800 in rent what’s the problem

    1. That is what I don’t understand about marijuana users. If you live in a condo you are asking your next door neighbor to basically smoke it with you. There is air passing from unit to unit. Is it fair to ask your neighbor to second hand smoke with you? Is it fair to ask your neighbor who most of the times has children to smoke with you?? Imagine a 3 year old child second hand smoking because of your neighbor!!! I am compassionate about the use for medical purposes, but I guess users are not as compassionate about non smokers.

  12. Easy fix guys listen up go to amazon and buy an air purifier. No more smell and even a healthier air for you inside ur apartment or house. Problem fix
    I Hope this helps

    1. Fortunately my neighbors are cool (so far), but I can pass along a couple tips from the good ole days of hiding out and smoking in the parent’s attic.
      I know, all this sucks, and although PLENTY of our neighbors are just looking for excuses to complain, let’s be honest: the odor of marijuana smoke is not for everybody. It is for me and I love it but it’s entirely subjective.
      Okay, exhaust fans: outward-facing box or window fans are dirt cheap and blow the inside air (and smoke) out, letting in minimal amounts of that hot, outdoor Florida air.
      I’ve never used an air ionizer, so I can’t vouch. Incense (Nag Champa) smells fantastic and will definitely mask any cannabis odor without smelling like cheap raspberry or strawberry or what have you.
      Finally (and my favorite) is the ole “dryer sheets in the toilet paper/paper towel tube” trick, passed on through the ages since the dawn of Snuggles. Stuff 2 or 3 balled-up sheets into the tube, and bam: you’ve got an apparatus that’ll turn GDP smoke into clouds of powdery freshness with no static cling in your facial hair. Just inhale (Mr Clinton) and then exhale into the tube slowly. Whatever enters the tube, exits with absolutely no discernable odor.
      Peace!

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