Q&A: Advertising a bong on an association bulletin board may be inappropriate but is not illegal
Question: Our homeowner association’s official bulletin board is located by the mailboxes where residents have easy access to it. Normally it’s used for typical resident announcements, such as personal items and cars for sale, or owners looking for a babysitter.
Immediately after the November election when California voters passed the marijuana legalization law, I went to get my mail and noticed a flier with a large picture of a “bong” used for smoking marijuana. Under the picture it said, “For sale, $20 dollars or best offer, good condition, clean.”
I was shocked to notice that the advertiser’s phone number belongs to the association president. And yesterday on the same bulletin board, there was an advertisement by a company selling marijuana by mail order, pickup or delivery. Is any of this legal?
Answer: Proposition 64, or the Adult Use of Marijuana Act, makes it legal for adults to smoke marijuana lawfully but the sale of recreational marijuana is not legal until the state rolls out a licensing scheme for suppliers. The sale of medical marijuana has been legal in California for a number of years but it is restricted to certain cities and counties and requires compliance with the Compassionate Use Act, which does not permit general advertisements on association bulletin boards.
The sale of marijuana-related paraphernalia is not prohibited. It is also arguable whether your president’s advertisement is for a bong intended for use with marijuana, as bongs, though commonly associated with pot, can be used with tobacco products as well. However, having a large picture of the bong and perhaps pictures of marijuana plants will mean the intent for marijuana use is clear.
Regardless of the laws pertaining to the sale and use of marijuana in California, an association bulletin board may not be the most appropriate place for these types of advertisements, especially if the bulletin board is in an area where minor children in the complex may have access to it.
That being said, if the board has not already implemented rules for posting advertisements on the association’s bulletin board, then there is probably nothing that the association or its members can do to prevent this type of solicitation at this time. If the bulletin board is available for personal use, then the board president is able to participate. A reasonable restriction that you or other members may propose to the board is to limit postings to items and services that are available to readers of all ages. Even if a bong is advertised for tobacco use, it may only be used by someone over the age of 18.
In addition, if the company advertising the sale of marijuana is not being run by a member of the community, then even without rules it can be removed. If there are issues with members adhering to posting rules or third parties making use of the board for commercial purposes, then the board should also consider an enclosed bulletin board with a locking glass frame. Restricting access without permission from the board is permissible so long as the board has clear guidelines for use and a process for reviewing and approving submissions.
Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.
