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Their Way or the Highway…
Emily Earlenbaugh access_time 6 min read

There has been a fair bit of press focusing on proposed California law AB 2300, and its implications for tenants and landlords. AB 2300, proposed by assembly member Jim Wood, specifies that the law which allows qualified cannabis patients in california to possess and use their medicine does not entitle them to smoke their cannabis if it is in an area where smoking has been prohibited by their landlord.

According to the recent news, this law would enable landlords to kick out patients caught smoking cannabis in their rentals, opening the floodgates for landlords across the state to bar cannabis patients from smoking cannabis on their premises. But in all the concern over tenant rights, reporters may have missed the most important change that would be brought about by AB 2300. In fact, what most reporters have failed to mention is that AB 2300 does not actually affect current tenant rights in the least. While the law may encourage landlords to adopt cannabis non-smoking policies, simply by drawing attention to this option, it is already the case that landlords can prohibit smoking cannabis (as well as all cannabis use) in their rental properties.  

Wood argues that this law is needed to protect other tenants from the effects of secondhand smoke, which can travel through ventilation. But it is unclear that the law will actually accomplish this goal. If protecting the other tenants from secondhand smoke is the intention, AB 2300 doesn’t go far enough. While it will continue to allow landlords to decide the smoking rules in their buildings, and protect their property assets from any damage the smoke may cause, it will not give neighbors of cannabis smokers any additional recourse or protection if they are being exposed to smoke through ventilation or open windows. Neighbors can continue to be exposed in buildings where the landlords have decided to allow smoking, as well as in situations where smoke might pass from one privately owned residence to another.

Luckily, no additional laws are needed to deal with this second hand smoke problem. We already have nuisance laws in place, and neighbors can complain if they if they are being negatively affected by a nearby cannabis user’s smoke. Under current law anything that is “offensive to the senses” of a complaining neighbor is considered a nuisance. In these cases, keeping cannabis smoke in one residence is far from an impossible task. Patients could simply be asked to install HEPA filters in their living spaces to prevent smoke from escaping into a neighbor’s airspace. Patients unwilling to modify their space or habits to prevent this nuisance to their neighbors could, under current law, be taken to court and sued for damages. AB 2300 adds nothing to this picture.

So, if AB 2300 is not about protecting tenants from secondhand smoke, what is it about? While AB 2300 does not change the law surrounding landlord/tenant rights, it does change the law about using cannabis in vehicles. In addition to the part about landlords, the law also includes a clause specifying that cannabis patients are not authorized to use their medicine in a moving car or while operating a boat.

Unlike the redundant laws for landlords, this is a big change. Current law only prohibits driving under the influence. And to convict someone of a DUI you need to show that they lack the “ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.” This has been notoriously difficult to show, as accurate testing for cannabis intoxication is not yet possible. What AB 2300 does is specify that cannabis patients are not authorized to use cannabis in a moving car or while operating a boat. This essentially removes the need to prove intoxication. Any use of cannabis in this circumstance will not be allowed.

This law would in some ways parallel open container laws for alcohol. If you are caught with an open drink in your car, you are held accountable whether you are intoxicated or not. Patients caught with a car full of cannabis smoke would be similarly held accountable. Still some may wonder if this is going too far. The research on cannabis’ effect on driving is fairly consistent. Cannabis use can lead to measurable but mild effects on psychomotor skills, but unlike alcohol which is responsible for an incredibly high tally of roadway accidents, research has repeatedly failed to show that cannabis use correlates with an increase in roadway accidents.

In fact, some researchers are even arguing that cannabis improves driving ability, as the states with legalized cannabis have seen a decrease in accidents, rather than the increase you would expect if cannabis was a danger to driving. This is partly because, unlike with alcohol which increases risky driving behavior, cannabis use causes drivers to slow down and drive more carefully.

Chronic users are even less affected by cannabis use, and often don’t even show mild psychomotor skill changes. These chronic users sometimes have health conditions which may prevent them from driving if they don’t have access to their medicine. For example, patients with conditions that affect focus like ADHD, Fibre Malaysia and OCD can find that driving becomes difficult if they aren’t using cannabis. With decreased focus, patients may be more susceptible to accidents, and may become unable to drive themselves around. This could radically change their ability to live independent lives. And for what reason, when their driving skills are not harmed by cannabis use? For those cannabis patients who use cannabis as a daily medicine, and can drive safely under it’s influence, this law seems overly restrictive. It would be a strange decision to allow recreational tobacco smokers to freely smoke in their cars, but not allow medical cannabis patients the same right to utilize their medicine.

Whatever you view on smoking cannabis in cars, it is important to understand the implications of AB 2300. With all the focus on landlord and tenant rights this crucial bill may pass through legislation without any discussion of its true implications. While it won’t change the legal rights between landlords and tenants, it may have a big impact on how cannabis patients travel.