A loophole in the state's new medical-marijuana law could open thousands of neighborhood parks, playgrounds, greenbelts and artificial lakes to resident joint smokers, legal experts say.
The law approved by Arizona voters in November prohibits marijuana smoking "in any public place," but properties controlled by homeowners associations are considered private property. Many post "no trespassing" signs threatening non-residents with arrest and fines around community swing sets and picnic tables.
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Scottsdale attorney Curtis Ekmark, who said his firm represents more than 3,000 Arizona HOAs, recently alerted his clients about the issue and is asking them to weigh in before the Arizona Department of Health Services comment period ends Feb. 18.
In a notice he sent out last week, Ekmark said, "The definition of 'public place' does not expressly include the common areas of planned communities. . . . We would recommend that concerned associations consult with a qualified attorney to determine whether they may restrict the use of marijuana in their common areas."
The law approved by voters in November allows qualifying patients with certain debilitating medical conditions to receive up to 2 1/2 ounces of marijuana every two weeks from dispensaries or cultivate up to 12 marijuana plants if they live 25 miles or farther from a dispensary.
Critics have said leaving it up to physicians to determine patients' needs without requiring medical tests makes it uncertain how many would qualify to purchase marijuana. That's leading to concerns about smoking in places such as private HOA parks.
The DHS is expected to finish writing medical-marijuana rules in March, and dispensaries likely will begin operating in April.
Opening neighborhood parks to marijuana smokers may not have been the intent of the law, but "the language is ambiguous, and we are really hoping for some clarification," Ekmark said.
Chandler Planning Director Jeff Kurtz said the issue may have to be resolved in court. During his city's work on zoning laws for medical-marijuana dispensaries, Chandler is proposing distance requirements from public parks, but not "private" HOA parks.
Allan Sobol, owner of Phoenix-based Marijuana Marketing Strategies and founder of one of the Valley's first mock dispensaries in preparation for the new law, said the law intends to limit smoking to homes and backyards. It would be inappropriate for someone to light a joint in an HOA park "because there may be a lot of children around," he said.
HOAs might have to write their own rules to close the loophole, Sobol said.
That could be difficult and costly, said Cynthia Dunham, a former Gilbert mayor and founder of the Leadership Centre, a training program for HOA leaders. Amending deed restrictions to ban marijuana smoking on HOA property "would be nearly impossible," she said. The change would require elections, and, in most HOAs, approval from 75 to 80 percent of the property owners. Dunham said HOA boards can implement less formal regulations to ban marijuana smoking, but those are more difficult to enforce.
Kayte Comes, executive director of the Central Arizona Chapter of the Community Associations Institute, said there are more than 10,000 HOAs in the state. According to Arizona Corporation Commission records, 5,360 corporate names contain the words "homeowners association" or "community association."
Laura Oxley, DHS spokeswoman, said the medical-marijuana law is supposed to restrict marijuana smoking to private homes.
"I thought we'd pretty much put the 'public place' issue to bed, but this is what the public-comment period is about," she said. "The last thing we need is more people exposed to any kind of smoke."
by Edythe Jensen The Arizona Republic Feb. 6, 2011 12:00 AM
Arizona law may allow marijuana in some parks
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