Following a three-year legal battle, a Washington, D.C. man was ordered to stop smoking medical cannabis in his apartment following a complaint from a neighbor who claimed the smell was a nuisance to her own apartment and was making her sick.
Judge Ebony Scott ruled Thomas Cackett has a license to purchase medical cannabis but “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.”
Court documents show 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, with Ippolito-Shepherd claiming Cackett smokes cannabis all day and the “foul and pungent odor enters and permeates (her) home, making her violently sick.” The case was dismissed in 2021 because Ippolito-Shepherd “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.” A court of appeals reversed the dismissal, and the case was reopened last year.
“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,” said Scott in the ruling.
Cackett said he smokes medical cannabis to help him sleep and treat pain caused by various health issues. He told the court he smokes outside on the patio to abide by the no smoking clause on his lease, but Farserotu allows him to smoke inside when the weather is bad. Scott ruled Cacket was indeed causing a nuisance but didn’t award any damages to Ippolito-Shepherd because she failed to provide any evidence that Cackett’s cannabis use was making her ill. Scott barred Cackett and anyone visiting him from smoking or burning cannabis in any way that causes an odor within 25 feet of Ippolito-Shepherd’s home.
Since filing her lawsuit, Ippolito-Shepherd said she has received many messages from other people with similar issues seeking to file claims. J.P. Szymkowicz, an attorney representing neighbors in a similar case, said the Ippolito-Shepherd case does not set a legal precedent like an appellate decision would, but has “persuasive value.”
“Hopefully this is a wake-up call for cannabis smokers that they should be fighting for outdoor common use spaces and social use locations,” said cannabis rights activist Adam Eidinger. “It’s a complicated issue when you [have] people living in an urban environment and they have no lawful place to smoke outdoors.”
Washington, D.C. recently passed a bill that contained a number of reforms to expand the capital’s medical cannabis program, including lifting the cap on the number of dispensaries allowed, creating new license types and codifying emergency measures that were passed in 2021 and 2022. The amendment initially proposed an increased cap on the number of dispensaries but was later revised to include no maximum number, although the Alcoholic Beverage and Cannabis Board has the power to establish a cap one year from the passage of the bill in January 2024. The amendment also allowed for new cannabis license types for cannabis delivery services, online sales, educational programs, and areas dedicated to cannabis consumption, with at least half of all the licenses given going to social equity applicants. Residents are also able to “self-certify” and no longer need a medical recommendation from a doctor. The act also codified emergency measures that were implemented for cannabis, including the emergency measure passed in November 2021 that provided extra support for Washington, D.C. medical cannabis patients with expired cards and also provided help for struggling dispensaries.
