August 19, 2019

Archives for February 6, 2014

Marijuana Matters: Has your association taken a shot at regulating pot?

By Suzanne M. Leff

As you’re probably aware, effective January 1, 2014, recreational pot became legal in Colorado. This new law is already affecting homeowners associations. While some associations started planning for pot smoking residents last year when the law was passed, not every community association moved quickly to adopt rules and regulations or amend restrictive covenants to address anticipated issues related to recreational pot smoking. If your association has not yet considered whether the new marijuana laws will affect your community, or if you’re thinking about how to tackle problems before they occur, here are some things to consider:

Shared spaces. Most associations have the authority to create rules and regulations that control activities in outdoor and indoor common area spaces. If your association already regulates tobacco smoking in these areas, the association, through board of director action, may consider extending those smoking policies to marijuana use. Associations should also evaluate the extent to which local laws interact with association rules and regulations and seek to fill any regulatory gaps that warrant attention in specific communities. Boards will want to pay particular attention to areas of their communities where use of marijuana will impact other residents. For example, with tobacco smoke, smoking near doorways and windows of other units are areas that typically result in complaints from residents.

Limited common area patios and balconies. Association boards can often regulate activities within limited common areas, but you will need to look to your documents to determine the extent to which your association can adopt rules affecting these areas. Patios and balconies in close proximity to other units are certain to give rise to complaints from residents affected by smoking neighbors. Associations should carefully consider how enforcement will take place if marijuana use is regulated in these areas.

Private residences. In contrast to associations’ ability to regulate activities in shared common areas, associations are not typically empowered to impose rules and regulations on how owners and residents behave inside their homes—at least not where private activities do not impact neighbors’ use and enjoyment of their homes. If your association’s recorded covenants do not prohibit smoking and a resident chooses to smoke in his or her home, the association board of directors most likely cannot simply adopt a rule that prevents that resident from lighting up. In most cases, the owners will need to approve an amendment to the declaration to restrict smoking within the units. It remains to be seen whether Colorado courts will allow associations to rely solely on nuisance provisions in their covenants as a way of prohibiting marijuana smoking within private residences. However, based on other related nuisance court cases, a Colorado court would probably only allow an association to rely on a nuisance provision under extenuating circumstances. If your covenants prohibit residents from doing anything that violates federal law, your association may determine that regulation of marijuana activities within the units is permissible without first amending the covenants.

Other considerations for resident rules. The new marijuana laws do not address use alone. Cultivation of marijuana is another factor for boards to consider. In addition, state and local fair housing laws come into play in the context of medicinal marijuana cultivation and use.

Employees. Associations with employees should implement policies concerning marijuana use on the job and showing up to work under the influence of marijuana. Court cases concerning employment practices suggest that employers are permitted to prohibit marijuana use by their employees.

Enforcement. As your association considers how to regulate marijuana activities in your community, give careful thought to how the association will enforce any new restrictive covenants or rules and regulations. Now that pot is legal in Colorado, local law enforcement may not be there to help. Associations will best position themselves for effective enforcement by creating rules with clear violations and not violations based on one person’s opinion. To the extent your association can document violations, you will have a better chance of holding the violator accountable. That accountability can come in several forms, including fines, suspension of privileges, and, in the more extreme cases, court-ordered injunctions.

Consult with legal counsel. The number of issues for boards to consider is too numerous to address completely here, and your community and its unique needs should inform how marijuana activities are regulated. Associations should always consult with legal counsel before adopting rules or imposing restrictions related to marijuana.

Suzanne M. Leff is a partner at Winzenburg, Leff, Purvis & Payne, LLP. She provides general counsel to community associations, and focuses on general business representation, document drafting and interpretation, contract review, covenant enforcement, and governance practices. She presents educational seminars to property managers, board members, and other attorneys who work with community associations. Suzanne writes articles for the firm’s blog on topics such as changes to legislation affecting community associations, fiduciary duties of board members, the practical application of laws affecting associations, and alternative dispute resolution. This article originally appeared on her firm’s blog on January 21, 2014.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Supreme Court: County Court Must Stay Execution of Judgment While Appeal Pending in District Court

The Colorado Supreme Court issued its opinion in In re People v. Steen on Monday, February 3, 2014.

Stay of Execution in County Court—CRS § 16-2-114(6)—Crim.P. 37(f).

In this original CAR 21 proceeding, the Supreme Court held that CRS § 16-2-114(6) and Crim.P. 37(f) require a county court, on request, to grant a stay of execution of a defendant’s sentence pending appeal of a misdemeanor conviction to the district court. Accordingly, the Court made the rule absolute and remanded the case to the district court with instructions that, pursuant to CRS § 16-2-114(6) and Crim.P. 37(f), a stay of execution shall remain in effect until after final disposition of a defendant’s appeal, unless modified by the district court.

Summary and full case available here.

Colorado Supreme Court: Defendant’s Challenge of Waiver of Right to Testify Can Only Be Reviewed in Post-Conviction Proceeding

The Colorado Supreme Court issued its opinion in Moore v. People on Monday, February 3, 2014.

Curtis Advisement—Post-Conviction Review—Contemporaneous Objection—Blehm—Knowing, Voluntary, and Intelligent Waiver—Right of Criminal Defendant to Testify.

The Supreme Court held that the court of appeals erred in considering on direct appeal defendant’s challenge to the knowing, voluntary, and intelligent nature of his waiver of the right to testify, and such a challenge may be brought only in a post-conviction proceeding. The Court also held that a defendant need not make a contemporaneous objection to his or her Curtis advisement in the trial court. [See People v. Curtis, 681 P.2d 504 (Colo. 1984), as modified by People v. Blehm, 983 P.2d 779 (Colo. 1999).]

Accordingly, the Court disapproved of and vacated the court of appeals’ discussion and holding regarding the issue of the validity of defendant’s waiver of the right to testify in this case. Otherwise, it upheld the court of appeals’ judgment of conviction.

Summary and full case available here.

HB 14-1069: Specifying Additional People to be Interviewed by Commissions on Judicial Performance

On January 8, 2014, Rep. Paul Rosenthal introduced HB 14-1069 – Concerning District Commissions on Judicial Performance. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law directs district commissions on judicial performance (commissions), as part of their evaluations of district and county judges, to interview other district and county judges and other interested persons. The bill adds to this list the district attorney, a representative of the state public defender, and a representative of the local bar association.

The commission must issue invitations to the new interviewees not less than 35 days before the interview. A majority of the commission must be present at the interview. The commission may substitute a written submission in place of an interview only with the consent of the invited person. The CBA LPC voted to support this legislation. On Tuesday, Jan. 28, the Judiciary Committee amended and moved the bill to the full House for consideration on 2nd Reading.

Since this summary, the bill passed 2nd Reading with amendments, and it passed 3rd Reading in the House as well.

HB 14-1050: Adding Two Judges in the Eighteenth Judicial District

On January 8, 2014, Rep. Daniel Kagan introduced HB 14-1050 – Concerning an Increase in the Number of Judges for the Eighteenth Judicial District, and, in Connection Therewith, Making an AppropriationThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill increases the number of judges for the 18th Judicial District from 21 to 23. The CBA LPC voted to support this legislation. The bill cleared the House on Jan. 29 and is awaiting an assignment to a committee of reference in the Senate.

Since this summary, the bill was assigned to the Senate Judiciary Committee. It passed out of the Judiciary Committee and was referred unamended to Appropriations.

Colorado Court of Appeals: Announcement Sheet, 2/6/14

On Thursday, February 6, 2014, the Colorado Court of Appeals issued no published opinion and 28 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 2/5/14

On Wednesday, February 5, 2014, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

United States v. Kuhn

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.