Pot and apartments: clear restrictions, hazy realities

By Scott Hewitt, Columbian Arts & Features Reporter

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Kristin Dorsett lived at the Esther Short Commons apartment building for two years, and she logged her fair share of complaints about the place — including deferred maintenance and the stink of cigarette smoke, which her elementary-age daughter found especially gross, she said.

But the skunky smell of marijuana is what finally drove them out. That smell had lurked around the edges of the place all along, she said — until November 2012, that is, when Washington voters legalized recreational marijuana.

The proper pot industry has taken a year and a half to get off the ground, but Dorsett was aware of the smell spreading through her building almost the moment the vote was announced.

“I noticed after legalization that it was everywhere in the building,” she said. “That classic weed smell. That college dorm smell.” Before long she said she resorted to an inhaler, just like an older woman in the building who also complained bitterly about the irritating, penetrating smell.

“It has been a problem,” agreed Lyon Richardson, who lives in the building with his wife and three children. “There seems to be a split culture in the building. There’s that segment, and then there’s the segment that’s just trying to live without having that stuff around.”

As of the 2012 vote to legalize, Dorsett said, pot smokers “must just think, ‘Oh, we can smoke it anywhere now.’ But a lot of people live in apartments and condos and our air is being affected. Our health is being affected.”

Esther Short Commons is strictly nonsmoking. “Welcome to Esther Short Commons, a non-smoking community!” declares the building’s website, www.esthershortcommons.com.

The building is the property of the Vancouver Housing Authority and managed by Coast Real Estate of Everett, which handles several local rent-restricted buildings. Not every tenant is subsidized, but all are income-verified. Dorsett was not a subsidized tenant, she said.

“They all smelled it, they all knew,” Dorsett said of several building managers and maintenance staffers whom she approached about the problem. Richardson said complaints have resulted in “polite reminders being posted on everyone’s door. I honestly think it’s had a positive effect. But that’s just recently.”

Roy Johnson, the executive director of the Vancouver Housing Authority, said the federal agency “does not permit smoking in … any of our units. Smoking pot is no exception.”

But Kris Hanson, VHA’s director of affordable housing, added that it can be difficult to “sniff out” the offender.

“The resident has to be caught in the act in order to build a case for eviction. It isn’t always obvious which unit the smoke is coming from, which adds to the difficulty in determining who is breaking the rules. Property management staff is diligent in following up on complaints but it takes time to determine who the offender is and then obtain evidence to prove a lease violation has occurred,” Hanson wrote.

“The residents who complain about the smoke don’t usually know or see all that staff is doing to identify the offending resident; however, that doesn’t mean that nothing is being done,” Hanson wrote.

Nothing yet

Especially when it comes to big multifamily buildings where you just can’t avoid sharing air, failing to enforce your no-smoking policy is a big mistake and a slippery slope, according to Lyn Ayers, president of the Clark County Rental Association.

“It’s up to the landlord,” he said. “You have to enforce your policies. If you don’t, problems can get out of control.”

Managers who shrug off violations are only encouraging higher-quality tenants to head for the exits and welcoming lower-quality tenants to get comfortable — maybe a little too comfortable, he said.

The Clark County Rental Association represents approximately 350 local landlords who own as many as 10,000 rental units. And yet, Ayers said he has heard surprisingly few complaints like Dorsett’s, about ambient, unavoidable pot smoke.

“I think the reality is, until (earlier this month), access to legal marijuana has been so limited, we just haven’t seen anything yet,” he said.

Smoke vs. vapor

That doesn’t mean his group hasn’t been getting ready. Washington State landlord/tenant law “still says you can declare your property no smoking and that’s that,” Ayers said. He has been encouraging local landlords that have no-smoking policies to write pot into that paperwork. Many rental agreements specify tobacco but stop there; others ban “smoking” in general.

Ayers has been encouraged by Clark County Public Health, which promotes smoke-freedom everywhere, including private homes, according to program manager Theresa Cross. Cross is accustomed to taking complaints from both tenants and landlords about “drifting secondhand smoke”; now, complaints about marijuana smoke are starting to enter those conversations, she said.

“We are telling landlords and property owners, if you are concerned about marijuana use on your property, now would be the time to write that into your policy. You are legally allowed to make your property smoke free,” she said.

But banning “smoking” still doesn’t cover consuming tobacco or marijuana in other ways. Ayers had no answer — other than a sardonic laugh — to the question of whether vaporizing marijuana with an electronic cigarette or “pen” is the same as smoking it.

Cross had the answer: Vaporizers are not covered by a 2005 state law banning smoking in public places and near entrances to facilities such as apartment buildings. Vaporizers “are not regulated by the state smoking ban,” she said. King County alone has passed local restrictions on vaporizers, she said.

Battery-powered vaporizers and so-called “e-cigarettes” have gained popularity in recent years as a theoretically cleaner, healthier way to get your nicotine fix; they can also be used with marijuana. To proponents the crucial difference is that these devices deliver their psychoactive product via water vapor, not smoke.

“We do get a lot of questions about that,” Cross said. “There’s so much more known about secondhand smoke than about vapor. It’s probably a lot less toxic than secondhand smoke. It’s still being studied.”

Hanson of VHA said: “If it is an e-cigarette, that is a new issue that we haven’t really had any complaints about and haven’t developed a policy around. Cigarette smoke has a costly impact on unit interiors, but I’m not sure if there are any residual effects from e-cig smoke. Due to the lack of traditional smoke emitted from an e-cig, it will be difficult for other residents or staff to detect whether someone is engaging in this activity.”

Meanwhile, window banners are promising that one vacant ground-floor retail space at Esther Short Commons is soon to become “The Common Vapor.”

Federal vs. state

Ayers pointed out the ongoing conflict between federal and state laws. Washington state may have legalized marijuana, he said, but the federal government certainly hasn’t — and federal law is the big dog when it comes to housing policy, he said.

“It’s still illegal in any form,” as far as the federal government is concerned, he said. “That’s what we fall back on.” That includes medical marijuana. Buildings with no-smoking policies do not have to make exceptions for medical pot, Ayers and Cross said.

But, Ayers also noted, the federal government has not been particularly aggressive in enforcing pot laws lately. “It’s an interesting conundrum,” he said.

The bottom line for landlords is that they’re concerned about property damage, which includes any smoky, sticky smells.

“If you can consume it in a way that doesn’t damage the property, I don’t think we care,” Ayers said. “Just don’t smoke it and don’t grow it in the closet.”