Landlord's effort to ban pot in apartments starts debate

Bob Young / The Seattle Times /


Published Jan 20, 2013 at 04:00AM / Updated Nov 19, 2013 at 12:31AM

SEATTLE — A Mercer Island, Wash., landlord is trying to ban marijuana in an apartment building, raising questions about what’s allowed under Washington’s medical marijuana law and the state’s recent legalization of the drug.

Abode Management sent notices to tenants in 171 apartments saying that marijuana, in all forms, would be strictly prohibited and grounds for eviction.

What’s more, the company required tenants to report on others suspected of using marijuana. And it wanted all tenants to sign an amendment to their leases saying they would comply with the new edict.

At least one tenant, medical marijuana patient Alex Aversano — who uses a liquid form of marijuana for pain relief — balked. That’s led the company to backpedal. On Thursday, Abode said its intention is to ban smoking of any substances. The company acknowledged it can’t force tenants to sign the ban mid-lease, only when they’re renewing or signing a new lease. A company spokeswoman left the matter of liquid or edible marijuana cloudy.

“This is a cutting-edge issue that plays into several areas of law: medical marijuana, Initiative 502, landlord-tenant law, and privacy matters,” said Hilary Bricken, an attorney who has offered to represent Aversano pro bono.

At the center of the legal thicket is the conflict between federal law, which considers all forms of marijuana illegal, and more liberal state laws.

This much is clear: Landlords can ban smoking — including marijuana smoking — in their properties, despite I-502.

State law allows that. And there is no exception for medical marijuana patients.

An Iraq War veteran, Aversano, 31, came home from his college classes last week to find a notice on his door saying he had to sign a lease amendment which, among other things, required him to tattle on neighbors. “To spend $1,600 on rent and be told we can’t use something that we’re told is legal is un-Washingtonian,” Aversano said.

Aversano uses a marijuana tincture for chronic pain and to ease his PTSD symptoms. He and his girlfriend, Alyssa Berg, 27, say they’ve never smelled any kind of smoke in their building and never heard a smoke or fire alarm.

“I don’t know what would prompt the notice other than pre-emptive action” against the new law, which allows social users over 21 to possess up to an ounce of marijuana, Berg said.

The state’s indoor-smoking ban is meant to protect nonsmokers. To carve out a smoking exception for medical marijuana, advocates would need to show scientifically that secondhand marijuana smoke is substantively different from tobacco smoke, said Alison Holcomb, drug-policy director for the ACLU of Washington. “I’m not aware of that case being made,” Holcomb said.

But there is another option for patients, she said. They can vaporize their marijuana, using devices that heat marijuana and release key chemicals without igniting dried plant matter. Instead of creating smoke, users inhale vapors.

Holcomb says vaporizing is as effective as smoking and healthier, not to mention legal. “The law is silent on vaporization,” she said. “The clean-indoor-air act prohibits acts of smoking, and vaporization is not smoking.”

Doug Hiatt, a criminal-defense attorney and medical marijuana advocate, said he doesn’t see how landlords could ban edible or liquid forms of marijuana. He called the Abode Management strategy “an incredibly misguided effort; there’s no way they can properly police it.”

“What would they do,” Hiatt said, “search everybody’s chocolate chip cookies? It’s reefer madness all over.”

Spokeswoman Talvinder Sahota said Abode Management would consult an attorney if tenants wanted to recreationally use nonsmokable forms of marijuana.

Landlords can try to rely on federal law, several attorneys said, which maintains marijuana is an illegal substance. And, indeed, the state’s largest association of landlords is telling rental property owners they can use the federal law to ban marijuana.