Condo Counsel

Peering Into The Haze Of Medical Marijuana

PEERING INTO THE HAZE OF MEDICAL MARIJUANA

By Henry A. Goodman and Ellen A. Shapiro

smoke

As a result of reading and discussing  two recent cases, one from Rhode Island and the other from Massachusetts, it occurred to us that  condominium Boards need to educate themselves to the nuances of medical marijuana use not only by occupants but association vendors and service providers as well.   Typically we are advising Boards about making reasonable accommodations as to the use of medical marijuana by unit owners and occupants.  However, the issue can arise in other ways arising out of other people on the common area of the condominium.   Think about the contractor doing a siding job and whose worker used medical marijuana off site?   What if the Board reports to a vendor that the vendor’s employee appears to be under the influence of marijuana but the employer does not come to that conclusion?  What about a lifeguard at the association’s pool?  Does the Board need to make accommodations in those instances?    Some guidance may be found in Callaghan v. Darlington Fabrics Corporation and the Moore Company (the “RI” case) a Rhode Island Superior Court decision, and in Barbuto v. Advantage Sales (the “MA” case)  a Massachusetts Supreme Judicial Court decision.   Both cases deal with an individual’s right to sue for employment discrimination based on possession of a medical marijuana card and use of marijuana while not on the job. Of interest (at least to us)  is that the courts in both states, in analyzing their statutes and the similar legal issues in these cases, decided that there is a private right on the part of an individual to make a discrimination claim but for  two different reasons.  While it appears that these cases discuss employment discrimination arising out the use of medical marijuana it is not a long reach to see how they might be applied to potential problems in condominiums.

The RI case addresses the implication and applicability of the Rhode Island “Hawkins-Slater Act” permitting the use of medical marijuana. In Callaghan, the Plaintiff Callaghan had applied for an internship at a corporation which required drug testing as a condition pf employment. The woman disclosed that she had a medical marijuana card, was a current user of marijuana and would not pass the drug test.  She also stated that she would not use it while working.

marijuanaRhode Island has a medical marijuana act, The Hawkins-Slater Act, which at Section 21-28.6-4(d), specifically states that ”no school, employer, or landlord may refuse to enroll, employ, lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” In Callaghan, the Defendant did not hire Ms. Callaghan after she voluntarily disclosed to them that she had a medical marijuana card and would not pass a pre-employment drug screening test.   She then sued under the Hawkins-Slater Act, seeking a declaration that “the failure to hire a prospective employee based on his or her status as a medical marijuana card holder and user [was] a violation of the” Hawkins-Slater Act, whether the failure to hire her was a violation of the Rhode Island Civil Rights Act (“RICRA”) and whether a violation of the Hawkins Slater Act constituted employment discrimination.

The Defendant argued that the Hawkins-Slater Act did not give an individual the right to sue, i.e. a private cause of action. The Court spent a great deal of time in discussing this but, at the end of its detailed analysis, concluded that the Act did in fact do so.  Therefore, an individual who had been denied employment in violation of that section of the Act (as had happened in this case) would have no way to seek redress for the violation unless there was a private cause of action. Having resolved that issue the Court went on to discuss the defenses raised by the Defendant as to its actual violations of the Act.

Without going into each and every defense asserted by the Defendants, certain of them are interesting. Among the defenses was that  Callaghan was rejected from employment not because she was a medical marijuana user but that the Act only afforded protection to cardholders, that the Act undermined an employer’s right to hire “at will employees”,  that employment is neither a right nor a privilege which was being denied as a result of the possession of a medical marijuana card (the denial of which is prohibited under another section of the Act)  and that if the Court ruled in favor of the Plaintiff employers would have to accommodate  employees who arrived at work under the influence of medical marijuana ingested outside of their employment but which could impact their ability to use dangerous equipment or otherwise impact workplace safety.  The Court made short shrift of these defenses and, as to the latter pointed out that the Act at Sec.21-28.607(a)(1)  did not “permit [a]ny person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice.” The most important analysis undertaken by the Court was to determine the effect of the law if it was unenforceable because it did not provide for a private right to sue.  The Court said that proper legal construction would be to make certain a law was passed that had some effect.  Therefore, they inferred a right to sue even if not spelled out.

Compare this to the MA case which said that while the marijuana law passed by the voters had no private right of suit, one would not be inferred because there was a right to sue for discrimination in Chapter 151B, the anti-discrimination law.  As a private remedy was provided although in a different statute the employee also could prevail on an employment discrimination claim based on possession of a medical marijuana card and use of medical marijuana outside of the work place.

It is also noteworthy that both Courts neatly sidestepped the employer’s argument that the Defendants’ actions in using drug drugs medical-marijuanathat were illegal under Federal law did not constitute a violation of the Rhode Island Civil Rights of Disabilities Act  (“RICRPDA”) or Massachusetts Anti-Discrimination Law which prohibit discrimination in employment based on disability.  The Rhode Island Defendant relied on the RICRPDA definition of “qualified individual” which precludes individual using illegal drugs from being deemed a “qualified individual” afforded protection against discrimination in employment.  In a “gotcha” moment the Court in Callaghan said that RICRA does not include the term “qualified individual” and therefore someone using medical marijuana could make a claim for employment discrimination based on the violation of the Hawkins-Slater Act.

The Court in the  MA case in stating that the Plaintiff was “handicapped” under the statutory definition  glossed over the “qualified” issue and noted that in 1970,when the Federal act was passed, Congress had stated there was “no currently accepted medical use in the United States. “ Fast forward to 2017 when the Supreme Judicial Court in Barbuto compared that statement to the fact that over ninety (90%) percent of the states have some sort of medical marijuana law and that medical marijuana is therapeutic.  The Court went on to say that merely “because it is illegal under federal law does not make it per se unreasonable as an accommodation”.  (As an aside, Boards may wish to take note of this pronouncement which may come back to haunt them if they try to rely on federal law to prohibit smoking medical marijuana than make reasonable accommodations for unit occupants who do so.)

Marijuana-gavelGiven that there is currently no reliable test to determine “impairment” while under the influence of marijuana, how is an employer, whether a vendor or Board, going to determine if the employee’s performance of the task would be “negligent” or would any effort to fire that employee be met with a claim of violation of the Hawkins-Slater Act or G.L.c. 151B.  Of course, the determination may be different depending on the type of work being performed.   Both decisions make it clear that the mere possession of a medical marijuana card and use of medical marijuana off site prior to coming to work will not be sufficient to disqualify or terminate an employee from a job.   While the RI case said that an employer need not make any accommodations to the work place, the MA case came at it from a different angle.  In Barbuto the Court held that a request for an accommodation at the workplace may be made and considered if it “facially reasonable.”[1]  (The MA case was decided under the MA anti-discrimination statute which requires reasonable accommodations to be made for handicapped persons. The possessor of a medical marijuana card is a “handicapped person”)  And of equal if not greater importance, do these cases indicate the beginning of a judicial trend in RI and MA to ignore federal law whenever a marijuana issue of any type arises and not just on these facts?

The takeaway from these decisions is that regardless of what state you are in, there are questions that will need to be asked and judgments made based on the facts of each situation.  If you have any doubts or questions as to the applications of these judicial decisions to your set of facts feel free to contact us.

The full decisions can be read by clicking on the links below:

Read the Massachusetts Barbuto Case Decision

Read the Rhode Island Callaghan Case Decision

 

[1] Whether or not this accommodation may, upon presentation of evidence, may be determined to be hardship to the employer and thus unreasonable has not been decided.

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GSL Sponsored Business Partners Essentials Course a Success

Last Thursday, July 27th, CAI-NE held a first of its kind, GSL sponsored, Business Partners Essentials course for condominium and home owner association professionals.  The event was led by Ellen A. Shapiro, Esq., a principal in the law firm of Goodman, Shapiro & Lombardi, LLC (GSL) and member of the Business Partners Council of the Community Associations Institute (CAI) and Pam Bowman, a regional manager and marketing director of Prime Touch of Simsbury, CT.

Claudette Carini, CAI-NE’s Chapter Executive Director said the inaugural class “went very well and everyone commented on how informative it was” and thanked Ellen Shapiro for GSL’s “generous sponsorship” of the event.  Students who attended and graduated from the class earned CAI’s Educated Business Partners distinction, nationally recognized by thousands of companies supporting common-interest communities.

Business Partners Essentials Class 2017

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Howes Promoted To Partner: Major Changes Announced At Goodman, Shapiro & Lombardi

For Immediate Release

Howes Promoted To Partner:  Major Changes Announced At Goodman, Shapiro & Lombardi

Dedham, MA — The law firm of Goodman, Shapiro & Lombardi, LLC (GSL) announced that Mary-Joy Howes, Esq. has been named a partner of the firm.  Her primary focus will continue to be on general condominium representation, including lien enforcement and requests for reasonable accommodations.  She will remain headquartered at the firm’s Lincoln, RI office, where she manages an expansive condominium lien enforcement department.

MJ

Ellen A. Shapiro, Esq., a principal at GSL, announced that two senior-level attorneys also will be joining the firm.  Craig Rourke, Esq. brings extensive experience in construction defect litigation and insurance defense coverage.  The second attorney was not named due to current commitments but Shapiro added, “the firm is welcoming an attorney, who brings extensive legal expertise in condominium litigation.”  Both replace Frederick C. Casavant and Pamela Jonah.

Additionally, she said, “We are excited that the Honorable Cheryl Jacques, who served in the Massachusetts legislature prior to being appointed Judge of the Industrial Accident Board, will be ‘Of Counsel’ to GSL.”

Howes was admitted to practice in Rhode Island in 2005 and later in the U.S. District Court, District of Rhode Island.  She earned her J.D. from Roger Williams University after completing her bachelor’s degree in English from Providence College, magna cum laude.  Howes has been an associate at GSL for nearly eight years.  She is active with the New England Chapter of the Community Association Institute (CAI) and is a member of CAI’s Emerging Leader’s Network, and CAI Rhode Island’s Legislative Action Committee.

Howes is a frequent speaker at CAI events and a contributor to Condo Media magazine, for which she writes a monthly column that addresses issues in the Rhode Island condominium community, along with Frank A. Lombardi, a principal and manager of GSL’s RI office.  Both attorneys secured a significant victory for condominium associations at the Rhode Island Supreme Court in the case of Twenty Eleven, LLC  v. Botelho, in which the Court confirmed that a condominium association has a priority lien capable of extinguishing a first mortgage.

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For the official press release – please CLICK HERE

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Condo Sales Are Red Hot This Summer!

GSL Condo Stock PhotoCondo Sales Are Red Hot This Summer!

Single family home sales in Massachusetts, Rhode Island, and New Hampshire are on the rise once again this year. Record sales have driven the Massachusetts condominium market up 9% over last year’s figures! The median sale price in MA has been on the rise for 15 straight years, now over $360,000.

In New Hampshire, condo unit sales have increased by 17% since last year. So far, 2017 has reached record highs for sales in the condo industry, creating a very strong market for the summer.

The home values in Rhode Island followed a similar trend, rising by nearly 7% in the last year. This is expected to continue to rise by almost another 2% by year’s end. In the condominium market, sales rose for the fourth consecutive year. The number of closings reached 199 in May, an increase of 12.4 percent from the prior year. The median price was up 2.6 percent to $205,000. Here, too, listings have fallen. The number of active listings was 861 last month, compared to 923 in May 2016.

Sources:

https://pbn.com/mass-single-family-home-median-price-hits-time-high-may/
https://www.zillow.com/ri/home-values/
http://www.unionleader.com/Rebound:-NHs-housing-market-enjoying-highest-sales-numbers-in-more-than-a-decade

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Real Estate Radio Boston In Studio 05/20/2017

  • Featured in the video is GSL Principal Ellen Shapiro during her most recent WBZ Real Estate Radio Boston segment in which she is taped in studio talking about condoization, from when it’s appropriate to who should be involved. Watch as Ellen shares examples for condominium owners and associations. GSL appears frequently as expert contributors on WBZ’s Real Estate Radio Boston with hosts Rick Scherer & Ali Alavi. Hear GSL’s point of view in this segment of Real Estate Radio Boston!

 

  • For information about our future airings, please stay tuned for updates via email, Facebook, and Twitter.

Thanks for Listening!

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GSL In Studio with Real Estate Radio Boston!

  • Featured in the video are GSL Principals Ellen Shapiro and Henry Goodman during their most recent WBZ Real Estate Radio Boston segment in which the two are taped in studio talking about condominium restrictions. What restrictions are reasonable and which ones go too far. Watch as Ellen and Henry share examples for condominium owners and associations. GSL appears frequently as expert contributors on WBZ’s Real Estate Radio Boston with hosts Rick Scherer & Ali Alavi. Hear GSL’s point of view in this segment of Real Estate Radio Boston!

 

  • For information about our future airings, please stay tuned for updates via email, Facebook, and Twitter.

Thanks for Listening!

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In Studio – Real Estate Radio Boston – February 4, 2017

  • Featured in the video are GSL Principals Ellen Shapiro and Henry Goodman during their most recent WBZ Real Estate Radio Boston segment in which the two are taped in studio talking about new Department of Housing & Urban Development regulations defining quid pro quo (“this for that”) harassment and hostile living environment which are applicable to housing under both the Federal and State laws against discrimination. Watch as Ellen and Henry share examples for condominium owners and associations. GSL appears frequently as expert contributors on WBZ’s Real Estate Radio Boston with hosts Rick Scherer & Ali Alavi. Hear GSL’s point of view in this segment of Real Estate Radio Boston!

 

  • For information about our future airings, please stay tuned for updates via email, Facebook, and Twitter.

Thanks for Listening!

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GSL Alert – Ruling from NH Supreme Court

Ruling from NH Supreme Court on Termination of Common Area Privileges and Services.

New Hampshire Housing Finance Authority v. Pinewood Estates Condominium Association.

In a decision issued today (9/20/16) the NH Supreme Court reversed and remanded a Superior Court ruling that pursuant to a Condominium Declaration the purchaser at foreclosure (the first mortgagee) was responsible to pay pre and post foreclosure condominium assessments before common area services have to be restored. In this case, a unit owner in Pinewood was delinquent on common assessments. Pinewood notified the unit owner and first mortgagee, New Hampshire Housing Finance Authority (“NHHF”), of the delinquency. The delinquent amounts were not paid and Pinewood terminated common area services, which included water and sewer. Subsequently NHHF foreclosed on the unit and purchased at the foreclosure sale. Following the foreclosure, Pinewood notified NHHF of the outstanding pre and post foreclosure common assessments. NHHF paid the post foreclosure assessment, refused to pay the pre foreclosure assessments and filed a declaratory judgment action in the Superior Court. NHHF sought a declaration that it took title to the unit free and clear of any junior encumbrances, namely the delinquent common assessments, and that Pinewood had no authority to terminate common area services.

The Court examined the interplay of the provisions of the Condominium Act governing termination of services (RSA 356-B46 IX) and unpaid assessments (RSA 356-B46 I). The statute says that the association’s lien is junior to, among other things, a first mortgage, except for a limited 6 month priority. In this case, Pinewood did not establish a priority lien. The Court concluded that NHHF’s foreclosure extinguished or wiped out the pre foreclosure common assessments on the unit and NHHF took title to the unit free and clear. The Court further concluded that since those pre foreclosure amounts were extinguished and all post foreclosure amounts were paid, that Pinewood had no authority to terminate services.

Link to the case:  NH Supreme Court Opinion 09/20/2016

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Hostile Housing & Harassment Oh My!

GSL ALERT!

HUD RELEASES NEW RULES AND REGULATIONS UPDATING STANDARDS TO BE APPLIED IN INVESTIGATIONS OF CLAIMS FOR HARASSMENT AND HOSTILE HOUSING ENVIRONMENTS

While both the federal and state laws have long prohibited harassment in housing because of race, color, religion, sex, national origin, disability, and familial status, until now there have been no formal standards for assessing claims of harassment under the Federal Fair Housing Act.

Recognizing the need for such standards to use in investigations and adjudication of claims of discrimination based on harassment and hostile environments, the Department of Housing and Urban Development, commonly referred to as “HUD,” on September 14, 2016 released new Rules and Regulations to be applied both in administrative hearings and in cases filed in the State and Federal Courts. These Rules and Regulations will go into effect on October 14, 2016.

It is worth mentioning that both federal law and the state law, in Massachusetts M.G.L. c. 151B had already imposed certain responsibilities on community associations to take action when the Board had been informed of a potential hostile environment allegedly being created by one Unit Owner against another, or a group of Unit Owners, who would be considered to be a protected class.

In fact in a recent matter before the Massachusetts Commission Against Discrimination (the “MCAD”) in which this office successfully represented the Board, the hearing investigator cited the following as the standard to be applied in determining whether a Board created or unjustly allowed a hostile environment to exist.

“In order for the Complainants to establish a prima facie case of discriminatory
harassment in housing, Complainants must show that: (1) they are members of a protected
class; (2) they were subjected to unwelcome verbal or physical conduct related to their
protected class; (3) the harassment was sufficiently severe or pervasive to interfere with
Complainants’ use or enjoyment of their home; and (4) the harassment was either carried
out by the landlord, owner, property manager, or their agent/employee, or Respondent
knew or should have known of the harassment and failed to take prompt remedial action.”
Note, that within the condominium context the laws are clear that the governing Board is deemed to be “the owner.”

With the recent release of the Rules and Regulations by HUD, a more formalized and expanded system of determining when liability will be imposed has been created.

Briefly, the Rule specifies how HUD will treat complaints of quid pro quo (“this for that”) harassment and hostile environment harassment going forward.

The four key components of the Rule are as follows:

  • There is now a formal definition of “quid pro quo harassment” and “hostile environment harassment.”
  • There are now formalized standards that will be used in both State Agencies (in Massachusetts the MCAD) and in both state and federal Courts;
  • The Rule includes illustrations of situations that will be considered to be allowing a hostile environment to exists; and
  • The Rule identifies when a housing provider, including community associations may be held responsible for actions by third parties in allowing harassment or hostile environment harassment to exist.

At a minimum the Rules impose liability when a condominium board knew or should have known of the discriminatory conduct of a third party (i.e. Unit Owner) and failed to take prompt action to correct it when the Board had the power to correct and end a discriminatory housing practice, either under the law or pursuant to its governing condominium documents.

The Rules also state that investigators and courts should look at the totality of the circumstances and apply the “reasonable person standard.” Under the Rules the standard is “Whether unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is evaluated from the perspective of a reasonable person in the aggrieved person’s position.”

As stated earlier while the liability under the both state and federal law already existed for Boards it will be interesting to see how these new formalized standards are applied by the administrative agencies and the courts.

If anything, the new Rules serve as a reminder that when in doubt about a situation described as harassment or creation of a hostile housing environment that has been reported to the Board, Boards would be advised to quickly contact their legal representative for guidance.

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GSL Alert – CAI Federal Government Advocacy

U.S. HOUSE OF REPRESENTATIVES PASSES BILL REGARDING HAM RADIO ANTENNAS AND TOWERS IN COMMUNITY ASSOCIATIONS

On Monday, September 12, the U.S. House of Representatives approved H.R. 1301. H.R. 1301 is the amended Amateur Radio Parity Act of 2016 that contains language adopted from a CAI compromise proposal. The Senate still needs to approve the legislation if H.R. 1301 is to be signed into law.

Initially, Community Associations Institute opposed H.R. 1301, because it contained language preempting association regulations on HAM radio use and severely curtailed association input on the use and placement of amateur radio antennas.

rooftop_hamWorking on behalf of its member associations, CAI’s Federal Legislative Action Committee worked with members of congress to incorporate several key changes to H.R. 1301, making it more acceptable to associations and owners alike. The adopted changes include:

  • Prior consent of the association is required by HAM radio operators to install outdoor antennas
  • Antennas will be prohibited on common property, and
  • Associations will be allowed to establish written rules concerning outdoor HAM radio antennas.

The recently approved H.R. 1301 legislation permits community associations to create and enact reasonable written rules concerning the installation and use of HAM radio antennas. These rules must permit the installation of an effective antenna, but may restrict HAM antennas to height, location, and aesthetic standards.

At this point, the Senate has not indicated when they would take up the amended version of H.R. 1301. If it does not become law in 2016, the bill would need to restart the legislative process in 2017. As always, we will keep you posted on any updates!

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