Can You Sue Your Neighbor Over Smelly Marijuana Plants?

Despite her best efforts, Josefa Ippolito-Shepherd has been struggling with constant attacks on her beloved home for 30 years. Despite her valiant attempts to preen, plead, and even sue, the onslaught continued relentlessly. Feeling stifled at times, she was unable to find rest or peace in her carefully tended colonial style in Cleveland Park during her retirement.

Blame the constant invasion on none other than the pungent aroma of marijuana. Ippolito-Shepherd suspected it seeped into her home through the smallest of openings, like the cracks along her stairs, the maze of pipes under her kitchen sink, and even the recessed lighting. She believed the source of the problem was her downstairs neighbor – a tenant of the landlord of the adjacent property. Despite their pleas for the landlord and tenant to evict the smoker and stop smoking indoors, their demands fell on deaf ears.

A determined tenant

Before cannabis was legalized, Ippolito-Shepherd could have asked the authorities for help and her neighbor could have been prosecuted. But now that the laws were changed, the police couldn’t help her. She reached out to DC Council Chair Phil Mendelson for help, but he informed her that the only solution was to reverse marijuana legalization altogether.

Determined to find a solution, Ippolito-Shepherd took the matter to court, claiming the smell was a public nuisance. Her case went to trial this week, marking the first in district court. With marijuana now legal in some form in most states, complaints from neighbors of marijuana farms, dispensaries and smokers about the odor and possible exposure to secondhand smoke are mounting. Debate and lawsuits surrounding the issue have led to new restrictions on where people can smoke and lawsuits over harassment.

Opinion on the scent of marijuana is highly divided, with some non-smokers denouncing it as a toxic and potentially harmful odor. At the same time, smokers argue that such ailments have prevented them from consuming the drug in the comfort of their own homes, for medical or personal reasons.

The effects of secondhand smoke from marijuana remain uncertain due to federal regulations on research — a relatively new area of ​​study after decades of discussions about tobacco smoke and court hearings. “I am not asking for anything out of the ordinary, just the opportunity to breathe fresh air in the sanctuary of my own home. While others can go about their business, I shouldn’t have to suffer the intrusion of unwanted smoke into my own home.”

No major action yet

Despite the growing number of complaints, local governments have yet to take significant action on this matter. The National League of Cities and National Association of Counties have not pursued policy changes related to marijuana odor. However, the distinct aroma of marijuana — once used by law enforcement as a likely reason for searches — has become a more common olfactory experience in cities where smoking is widespread.

In California, cities have begun to seriously consider the possibility of banning smoking in homes and subdivisions, fueled by the anti-smoking movement, according to Dale Gieringer, head of the California chapter of the Pro-Decriminalization Advocacy Group, the National Organization for Die Reform of Marijuana Laws. San Francisco had proposed a ban on smoking tobacco and marijuana in homes because of second-hand smoke. Still, he scaled back the restriction after cannabis activists argued that users shouldn’t smoke in public places.

Passive smoking of cannabis

According to Brooke Hoots, an epidemiologist with the Centers for Disease Control and Prevention, second-hand marijuana smoke contains similar cancer-causing toxins as second-hand tobacco smoke. The active component in marijuana, which causes high levels of tetrahydrocannabinol (THC), can also be transmitted to young children through secondhand smoke, the CDC warns. Recent research in New York City found that about a third of parents surveyed reported smelling marijuana in their homes. At the same time, their children were in attendance, as reported in an Academic Pediatrics article in January 2021.

Hoots, who leads the Cannabis Strategy Unit at the CDC, explained that because of the federal government’s classification of marijuana as a Schedule I drug, researchers still lack a full understanding of the long-term health consequences of marijuana smoking. “Conducting cannabis research is a challenging task,” Hoots said. “It’s a hassle to source the products, navigate the regulations, and meet the requirements to qualify for cannabis research.”

In the first second-hand tobacco smoke case in 1976, the New Jersey Supreme Court ruled in favor of an office worker who sued her company for allowing co-workers to smoke cigarettes at their desks. Since then, hundreds of lawsuits have been filed over the health risks of secondhand smoke, creating a decades-long record of liability when smoke enters people’s homes. However, the problem of marijuana smoking is less established legally.

The aroma of marijuana can be off-putting and unsettling, especially to those who aren’t used to it or find it unpleasant. Meredith Kinner, an attorney representing members of the DC cannabis industry, explained that zoning is a key consideration for potential cannabis companies when selecting a location. He urged that such considerations should be looked into, particularly if the business could attract people to gather outside and smoke.

With the enactment of legalization in 2015, DC took a more relaxed approach to marijuana and made the familiar scent common. A Washington Post poll found that more than half of residents smell marijuana at least once a month.

The distinct scent of marijuana wafting through town didn’t seem to be a problem for many DC residents, with 45% saying it doesn’t bother them. However, a minority of respondents expressed discomfort with the smell. Although unpleasant odors are not uncommon in urban areas like DC, the city’s 311 system reportedly received just 202 odor-related complaints in 2022. It’s worth noting that complaints about marijuana smell were not included in this data.

Conclusion

As more states legalize marijuana, disputes over its aroma are likely to become more common. Ippolito-Shepherd, representing herself, explained that she is not advocating criminalization of marijuana, but rather stricter regulations on smoking in apartment buildings. Determined to see her case through, she insists she will not budge and, if necessary, will take her case to the highest court for a favorable outcome.

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