Bothered by pot smell, she sued her neighbor to stop smoking — and won

MSN  08th Jun 2023

A D.C. judge has ruled that a man who smokes medical marijuana in his apartment must stop after a neighbor complained that the odor from his marijuana crept into her home and caused a nuisance.

Judge Ebony Scott ruled late Monday that while Josefa Ippolito-Shepherd could not prove she is entitled to damages, she successfully made the case that the smell is a private nuisance, and Scott ordered Thomas Cackett to stop smoking. Scott said that Cackett is licensed to buy marijuana but “he does not possess a license to disrupt the full use and enjoyment of one’s land.”

“Indeed, the public interest is best served by eliminating the smoking nuisance and the toxins that it deposits into the air, toxins that involuntary smokers have no choice but to inhale,” Scott wrote in her decision.

Cackett is banned from smoking at his address or within 25 feet of Ippolito-Shepherd’s address.

The decision is believed to be the first of its kind and could open the door to additional legal action.

Ippolito-Shepherd told The Washington Post on Tuesday that she believed the decision was a win for people like her who have complained about the smell of marijuana since the drug has been allowed in most states in some form.

The 76-year-old argued during the trial in January that she has faced health problems including difficulty sleeping ever since she noticed the smell of marijuana, which is legal in the District, in her Cleveland Park home. She said the owner of the adjoining home, Angella Farserotu, has allowed Cackett, who rents a ground-level, accessory apartment, to smoke without consequences. Farserotu and Cackett responded that they have no legal responsibility for Ippolito-Shepherd’s ailments.

The decision comes as complaints over the smell of marijuana have arisen amid a boom in the cannabis industry. In a legal gray area where marijuana is still illegal federally but sanctioned by states, users, sellers, growers and others have operated with caution about pioneering a new frontier. Now, the concern about the legal repercussions of the smell is another issue.

Cackett testified in court that the medical marijuana relieves his pain and helps him sleep after physically intensive shifts as a restaurant manager. He said that he smoked about “eight to 12 puffs” at night after he gets off work, typically outside if the weather was tolerable, and he denied smoking “all day and all night as the plaintiff alleges.”

“I am not Snoop Dogg,” he said during the trial.

Farserotu did not respond to requests for comment after the judge’s decision. Cackett said in an email that he contests that he smokes inside his apartment.

“It’s a big win from the public health perspective because it’s setting a precedent for all the people that are in similar situations,” said Ippolito-Shepherd, who represented herself in the case.

Since The Post first reported on her case, Ippolito-Shepherd said she has received messages from others considering legal action.

Public health experts previously told The Post that secondhand marijuana smoke has some of the same cancer-causing toxins as secondhand tobacco smoke. However, the federal government’s classification of marijuana as a Schedule I drug has made it difficult to study the long-term effects of the drug or its secondhand smoke.

Marijuana legalization proponents have expressed concerns that restrictions on where people can smoke would limit people’s ability to use the drug for medical or recreational reasons. Federal disability protections do not extend to medical cannabis patients because of marijuana’s federal legal status. Some California cities have weighed imposing bans on smoking in multiunit housing as complaints have arisen amid the newfound popularity of the now-legal drug.

On Tuesday, Dale Gieringer, who leads the California chapter of the National Organization for the Reform of Marijuana Laws, and Paul Armentano, the deputy director of NORML, said that long-term exposure to marijuana smoke has not been linked to serious respiratory ailments as researchers have found with tobacco smoke.

J.P. Szymkowicz, an attorney representing complaining neighbors in a similar ongoing case, said Ippolito-Shepherd’s legal win does not set a legal precedent as an appellate decision would.

“If you’re faced with the neighbor that has a smoking problem and it’s coming into your house, you can go to them and say ‘Look we can do this the easy way or the hard way. If we go to court, it’s going to take money, it’s going to take time and eventually I’m going to win,’” said Szymkowicz, who is also an advisory neighborhood commissioner. “That’s the persuasive value.”

Some advocates for legal cannabis are among those sympathetic to the idea that marijuana smoke can be a nuisance and broadly agree that part of being a responsible cannabis consumer is being mindful of neighbors and surroundings. The best solution, they argue, is to expand and regulate public spaces where people can legally consume cannabis, just as was done with tobacco.

Adam Eidinger, a Washington-based cannabis-rights activist who spearheaded the proposal to legalize marijuana in D.C., said the problem of cannabis smokers annoying their neighbors “will go away tomorrow” if District leaders would legalize its public use.

He supports having reasonable guidelines to regulate smoking in public places — such as requiring people to smoke a certain distance from entrances or from children — but said it should not be outright banned.

“Hopefully this is a wake-up call for cannabis smokers that they should be fighting for outdoor common use spaces and social use locations,” Eidinger said.

Under the District’s current policy, with some exceptions for minors and those with outstanding warrants, most people cited for smoking marijuana in public must report for booking to a police station within two weeks and can choose between fighting the citation in court or paying a $25 fine.

Eidinger said the rule disproportionately affects residents who live in public housing, who are subject to eviction and arrest under federal laws if caught using marijuana, even for approved medical reasons. More broadly, he said, the density of Washington, where many people don’t have private yards or patios, makes lighting up indoors the only legal option for many.

“It’s a complicated issue when you have people living in an urban environment and they have no lawful place to smoke outdoors,” he said.