If you can’t smoke your legal weed at home, where can you legally smoke?
by Rowan Nathan · June 12, 2023
Following a three-year long legal battle, Judge Ebony Scott banned a medical marijuana patient from smoking in his home after his neighbor filed a lawsuit claiming the smell drifted into her home and made her sick. The Washington DC judge ruled this week that although Thomas Cackett has a license to buy and possess medical marijuana, however "he does not possess a license to disrupt the full use and enjoyment of one’s land, nor does his license usurp this long established right."
The decision brings debate on personal freedoms and vested property rights. And seemingly establishes a legal pecking order for which personal freedom outweighs the other.
Josefa Ippolito-Shepherd sued Cackett, who lives in the ground level apartment in an adjacent duplex, and her neighbor Angella Farserotu, who owns the duplex, in 2020. The USA Today reported Ippolito-Shepherd alleged in her complaint that Cackett "'smokes marijuana 24/7' and that the 'foul and pungent odor enters and permeates (her) home, making her violently sick ...'"
The case was initially dismissed in 2021 when the presiding judge found the plaintiff "failed to state a claim on the sole ground that smoking marijuana in one’s home is legal in the District of Columbia and therefore cannot constitute an actionable nuisance."
Ippolito-Shepherd, a public health scientist, appealed to have that dismissal overturned, and the case was reopened last year. She testified in D.C. Superior Court that she experienced health issues including severe headaches, nausea, vomiting and respiratory issues within minutes each time Cackett smoked. Ippolito-Shepherd told USA TODAY she complained about the smell in 2018 and 2019 to Cackett and Farserotu, sending more than 200 emails to the defendants urging Cackett to stop smoking weed on the property.
Defendant Cackett, a restaurant manager, testified that he smokes medical marijuana two to three minutes per day to help him sleep and alleviate pain caused by various health problems. He claimed to smoke outside on the patio to abide by a no-smoking clause in his lease, but that building management allowed him to smoke inside his apartment when the weather is bad.
Judge Scott ruled that Cackett had created a nuisance, albeit no damages awarded to Ippolito-Shepherd because she reportedly failed to provide medical evidence the pot smoke made her sick. The ruling specifically bars Cackett and anyone visiting from smoking or burning marijuana in any way that emits an odor at his home or within 25 feet of Ippolito-Shepherd’s home.
The ruling signals a win for property rights..and potentially vape manufacturers.
However the lawsuit also begs the question of what happens in case of travelers and tourists buying legal weed without any designated spaces to legally enjoy the local weed fare. As with tobacco, smoking weed is off limits at hotels, and smoking weed is still considered a public nuisance and can result in an infraction and fine. So travelers can purchase pot with very few, or even no legal ways to smoke cannabis flower.
Although the Washington DC ruling focuses on an individual’s right to enjoy their property, the circumstances can clearly be shifted to victimize cannabis smokers of their right to enjoy what they legally purchased. Alcohol can be consumed in hotels, at sporting events, concerts, and of course bars. With cannabis consumption rising, while beer and alcohol sales drop or remain flat, the lack of cannabis consumption lounges or venues where weed can be consumed and enjoyed will be put under a microscope. And for good measure.