Cannabis Legalization and Smoke-Free Housing in Minnesota

By Live Smoke Free
August 17, 2023
Common Interest Communities, Live Smoke Free, Marijuana, News, Public Policy, Tips

Cannabis Legalization and Smoke-Free Housing in Minnesota

As of Tuesday, August 1, 2023, adult-use cannabis (marijuana) is legal in Minnesota. The still evolving policy landscape has created confusion and challenges for property owners and managers, common interest communities, and renters. Minnesota has allowed the use of medical cannabis in oil, pill, and vapor forms since 2014; and it has allowed it in smokeable form since 2022. However, legalization of recreational adult-use cannabis will bring new challenges to residents, owners, and managers of multi-unit housing.

The complexities can be found in other states who have already legalized. Multi-unit housing residents in Massachusetts, Maine, and the District of Columbia have suffered from secondhand marijuana smoke exposure in multi-unit housing after legalization. Some Minnesota property owners and managers are already noticing an increase in secondhand cannabis smoke incidents in their buildings. What does Minnesota’s new cannabis law say about smoking cannabis in multi-unit housing settings? What can be done to protect residents and staff from the harms of secondhand smoke?

Smoke is Smoke: Health Risks Associated with Secondhand Cannabis Smoke Exposure

Although research on the health effects of secondhand cannabis smoke exposure has been limited due to its illegal status at the federal level, a growing body of scientific evidence suggests that there are significant health risks associated with secondhand cannabis smoke exposure and that it should be regulated as tobacco smoke is regulated.

Similar to tobacco smoke, cannabis smoke contains fine particulate matter that can be breathed deeply into the lungs; however, these particulate levels are even higher in cannabis smoke than tobacco smoke ( Ott, W., et al.). Cannabis smoke contains many of the same cancer-causing substances and toxic chemicals as secondhand tobacco smoke (California Environmental Protection Agency). Research shows that exposure to cannabis smoke is dangerous to health; it impairs blood vessel function (Wang, X., et al.) and causes lung irritation, asthma attacks, and makes respiratory infections more likely (U.S. Environmental Protection Agency). Secondhand aerosol from cannabis vaping poses health threats as well. Berkeley Lab researchers found that vaping and dabbing can be a source of ultrafine particles and harmful chemical exposure (Nguyen, Patton Khuu, MPH; Hammond, S. Katharine, PhD).

Additional research on the health effects of secondhand cannabis smoke exposure can be found at the American Nonsmokers’ Rights Foundation’s “Secondhand Marijuana Smoke Fact Sheet.”

Whether it is from tobacco or cannabis, smoke is smoke. Due to the negative health risks of exposure to tobacco smoke, cannabis smoke, and vape aerosol, housing providers should adopt smoke-free policies that protect residents from all types of smoke.

Frequently Asked Questions
from housing providers about Minnesota’s new cannabis law

Can cannabis be smoked in a private residence starting August 1, 2023?

Owned single family homes

The new law states that single-family homeowners can smoke or vape cannabis in their homes, yard, and curtilage (yard/land/buildings associated with a home) starting August 1, 2023. However, cannabis cannot be smoked or vaped any place that a minor may inhale the smoke or aerosol, including a private home.

Private multi-unit housing rentals

The MN law is more complex for multi-unit housing (MUH) settings. Under the Minnesota Clean Indoor Air Act (MCIAA), smoking is currently prohibited in indoor common areas of rental apartment buildings, which has been interpreted to be a minimum of three rental living units.

Starting Aug 1, 2023, MUH managers or landlords cannot ban the possession or use of cannabis or hemp-derived products in rental units except for “consumption by combustion or vaporization of the product and inhalation of smoke, aerosol or vapor from the product.” However, the law also states in another section that adult use is not permitted where owners of private property have prohibited use including the whole range of methods of consumption. Additionally, starting March 1, 2025 the new law will ban the smoking and vaping of cannabis in “a multifamily housing building”, except for use of medical cannabis flower or medical cannabinoid products. So, as it pertains to smoking or vaping cannabis until March 1, 2025, apartment landlords and managers can choose to either A) allow the smoking or vaping of cannabis inside the building (including individual units) or B) prohibit smoking and vaping of cannabis inside the building (including individual units.)

Again, cannabis cannot be smoked or vaped any place that a minor may inhale the smoke or aerosol, including a private home.

At the time of this publication, it is still unclear who will enforce the multifamily housing provision of the cannabis law and how compliance and enforcement will be addressed. Live Smoke Free will share more information on this as it becomes available.

Publicly-owned rental housing

Public Housing has been required to have a commercial tobacco smoke-free policy in place since 2018. Because cannabis is still illegal federally, the Department of Housing and Urban Development (HUD) prohibits the admission of users of cannabis to HUD assisted housing, including those who use medical cannabis. More information can be found on this here.

Sober homes

The new state law allows sober homes to ban possession and use in sober housing.

Common interest communities (e.g. condos, townhomes, and cooperatives)

Common interest communities (CICs) are not covered under the MN Clean Indoor Air Act, however a CIC’s homeowners’ association can adopt rules and bylaws with smoke-free protections including both common areas and private living spaces. Live Smoke Free has information here for CICs interested in adopting smoke-free policies.

Starting March 1, 2025 smoking or vaping cannabis may not legally be allowed in multi-unit CICs. The term “multifamily housing building” is not defined in the new cannabis law, so it is unclear whether a CIC would be included as a “multifamily housing building.” Because most CICs are comprised of multiple families in a shared building structure, it would be reasonable for HOAs to assume the smoking/vaping prohibition would apply to them. More clarity on this provision could come out of the 2024 MN Legislative Session or the rulemaking that the Office of Cannabis Management will do in the coming months to clarify the law that was passed.

For more information on adopting smoke-free policies for multi-unit housing, visit Live Smoke Free.

Nuisance Provision in the Cannabis Law

The cannabis law also recognizes that “any use of adult-use cannabis flower which is injurious to health, indecent or offensive to the senses, or any obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property” is considered a nuisance.

The nuisance provision in the cannabis law, which went into effect July 1, 2023, allows for a lawsuit to be filed by “a person who is injuriously affected or whose personal enjoyment is lessened by a nuisance.” That person may ask a court to order that the behavior causing the nuisance must stop, as well as money damages for the injury caused or a civil penalty of $250. The lawsuit may be brought against a landlord or HOA who fails to enforce the terms of a lease or other governing document, like CIC by-laws or policies related to cannabis flower use. A lawsuit against a landlord or HOA can also seek a court order for the behavior to stop, as well as money damages, or a civil penalty of $500.

This provision broadly defines nuisance and does not specify whether the person who brings a lawsuit must be a tenant or CIC owner of property where the nuisance is taking place, or whether the person engaged in adult-use cannabis and causing the nuisance must themselves be a resident of the subject property. Further clarification of this provision could occur in the next legislative session, or the Office of Cannabis Management may issue rules clarifying this part of the law.

How does the new law impact housing under the Minnesota Clean Indoor Air Act?

The new state law prohibits the smoking and vaping of cannabis anywhere that is currently covered by the Minnesota Clean Indoor Air Act (MCIAA). This includes common areas of rental apartment buildings (e.g. hallways, community rooms, lobbies, laundry rooms, etc.).

Common areas of CICs (like condos, townhomes, and cooperatives with homeowner’s associations) are not covered under the MCIAA. CICs would need to adopt a smoke-free policy to ensure that the smoking of cannabis and tobacco do not take place in common areas. Information for CICs interested in adopting a smoke-free policy can be found here.

Additionally, the MCIAA and the new cannabis law, allows for private property owners to prohibit smoking and vaping of cannabis throughout the property, including units, outdoor patios or balconies, and other indoor and outdoor common areas of the property.

What steps can MUH property owners or managers take to prevent secondhand cannabis smoke infiltration in multi-unit housing properties?

Properties WITHOUT a current smoke-free policy

Managers and HOAs of buildings that do not have a smoke-free policy, should adopt one. Managers and HOAs of buildings with a weak definition of smoking (e.g. doesn’t explicitly include cannabis and/or use of electronic smoking devices/vaping) should update the policy. Steps and resources to adopt a smoke-free policy can be found here.

Properties WITH a current smoke-free policy

Review your smoke-free policy to ensure that smoking is defined to include “natural or synthetic tobacco or plant products intended for inhalation” and explicitly mentions cannabis/marijuana (sample can be found here) and covers use of electronic smoking device (vaping) of any substance. (Where legal, recreational cannabis is frequently consumed by using an electronic smoking device.)
Proactively communicate smoke-free policy details with residents. Emphasize that smoking or vaping cannabis/marijuana inside the building or anywhere on the property, depending on the scope of the policy, is a violation of the smoke-free policy. A violation of the policy could result in lease violations or termination, or penalty per the HOA policies.
Place signage around the property that clearly states what is prohibited in the smoke-free policy. Note: Live Smoke Free is currently unable to provide signage that includes cannabis. A printable sign including cannabis is available here (click here for a version with no printer’s marks). Additional signage available through LSF can be ordered here.
Residents of multi-unit housing should review their building’s smoke-free policy and express their concerns if they are exposed to secondhand smoke to their property manager or homeowners association board.
Promote policy compliance. A majority of property managers report that a smoke-free policy is largely well followed and self-enforced by residents and staff. However, occasionally a small minority of residents struggle or refuse to comply. LSF offers a compliance and enforcement toolkit here. If you would like to consult on solutions specific to your situation, reach out to info@mnsmokefreehousing.org.

Health Equity and Housing Stability

Cannabis has historically been used to penalize and criminalize communities of color in the United States. Cannabis legalization will address some of this harm and the negative health outcomes caused by incarceration for drug crimes. However, cannabis legalization may also present new avenues for cannabis-related inequities. For example, it may lead to increased cannabis use and secondhand smoke exposure continuing the upward trend seen nationally (Hasin DS, et al.). In the housing context, it could also potentially be inappropriately used by housing providers as a tool to remove residents who do not comply with smoke-free policies. Live Smoke Free firmly believes that stable housing and smoke-free housing are both essential to eliminating health disparities and encourages equitable approaches to smoke-free policy enforcement that minimize potential housing instability.