AUGUSTA — One homeowner says secondhand marijuana smoke sickens her; the smoker, a neighbor, says she needs medical marijuana for her own health.
Now their dispute is in Kennebec County Superior Court, where Philip and Jessica Manfre are suing Ashley Seile. Both parties are owners and occupants of adjacent condominiums at 136 Old Winthrop Road in Augusta. The Manfres live above Seile’s ground-floor unit in the secluded, two-story, eight-unit building near Interstate 95.
The case is pending, but the problem is likely to arise more in states such as Maine that have legalized medical and recreational marijuana.
It is unclear whether this is the first lawsuit of its kind filed in the state, because civil complaints in Maine currently are only kept in paper form.
In this instance, a judge already approved a temporary restraining order telling Seile and her guests to “immediately cease and desist any and all smoking” in the building and within 50 feet of the building.
Justice Michaela Murphy issued the order in May following a hearing.
The order says that “the court believes the plaintiffs are likely to succeed on the merits … that the plaintiffs will suffer irreparable injury in the absence of a temporary restraining order, and that the harm to plaintiffs … outweighs any inconvenience to the defendant.”
Murphy concluded that the harm in particular to Jessica Manfre, “who suffers from rheumatoid arthritis, exacerbated by coughing spasms, is immediate and irreparable” and that smoke coming from Seile’s unit into the Manfres’ unit causes the spasms.
An affidavit by Philip Manfre, attached to the lawsuit, says “with little effort,” Seile could smoke outside away from the building or consume marijuana in an alternative method.
The condominium association’s board of directors weighed in on the dispute in December 2017, asking Seile to refrain from smoking in the building and telling her that the smoking of tobacco and/or marijuana within the building “is interfering with the peaceful possession or proper use of the property by the other occupants.”
The letter from the board, which is filed with the lawsuit, cites a paragraph in the association’s declaration: “No nuisances shall be allowed on the property nor shall any use or practice be allowed which is a source of annoyance to its residents or which interferes with the peaceful possession of the property by its residents.”
In responding to the allegations in the lawsuit, Seile admits smoking marijuana indoors but denies other claims by the Manfres. She also notes that she has been issued a Medical Marijuana Certificate “for use in treating anxiety which allows her to smoke marijuana as part of her treatment regime (sic).”
Through her lawyer, Jon Languet, she asks that the court dismiss the lawsuit. She also notes that Maine’s Medical Marijuana Act prohibits her from smoking it in “any public place,” which would place the building’s parking lot off limits.
The Public Health Law Center offers some guidance for such neighbor issues in its publication “Toking, Smoking & Public Health,” which includes information about what was learned with regard to tobacco smoke in multi-unit residential dwellings:
“Secondhand smoke, whether from tobacco or marijuana, spreads throughout multi-unit dwellings. This infiltration of smoke can damage the health of other residents and increase the costs of maintaining the apartments. Concern over the health impact of secondhand marijuana smoke led the American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE) to update its national air standards to include both cannabis smoke and emissions from electronic smoking devices.”
The Manfres’ complaint, filed by attorney Jennifer Bryant, says that both parties have lived at the building since November 2016 and that the Manfres first noticed the second-hand marijuana smoke in August 2017.
In the court filings, the Manfres said they took steps to seal off openings around plumbing, shut their doors and window, sealed up the hot water heater area “and use face masks to try to minimize their inhalation of the fumes.” Then they went to the condominium board, and Seile complied with that request to smoke outside, according to the filings.
However, the Manfres say the marijuana smoke problem arose again as winter approached and the defendant and/or her guests smoked inside again.
The Manfres claim the smoke is a nuisance and causes them “substantial financial and physical harm.” They want the court to order Seile and her guests to stop smoking marijuana in her unit and to award the Manfres damages.
In Seile’s initial response to the lawsuit, which she filed herself, she said, the dispute has increased the anxiety for which she is prescribed marijuana. Also, she said the association has no smoking prohibitions in privately owned units.
Seile also wrote, “The claim that smoke is entering the unit is false and they are mistaking it for the aroma.” She said she initially smoked outside, but then moved into the garage because of complaints. Then complaints there forced her to smoke in her unit, she said.
She said she purchased an air purifier “in an effort to be a good neighbor.”
No one was home at the Manfres or at Seile’s home on Friday; however, a woman who took a message at Seile’s number indicated that a smoke test had been performed recently at Seile’s unit and that nothing permeated the Manfres’ unit.
While Seile did not return the call, Languet called later Friday evening. He said that he conducted a test Thursday that included setting off red smoke flares in Seile’s apartment and then waiting above with the Manfres and their attorney to see if anything permeated.
“There was not even a whiff of smoke,” Languet said.
He added, “Reasonable people ought to find a way so both parties get the medical treatment they need without causing each other a problem.”
Bryant on Friday referred to the test as “home-grown” and noted that another complicating factor is that “in the state of Maine, many of the experts that would test air quality do not have the ability, yet, to test for marijuana.”
“When Ms. Seile opens her windows down below, the marijuana fumes certainly come right up into the Manfres’ home,” she added.
Bryant also cited a 2014 District of Columbia case in which a court issued a temporary restraining order forbidding a neighbor from allowing anyone to smoke tobacco and marijuana in the home after a pregnant woman said the secondhand smoke wafting into her family’s adjacent home was harming her unborn child as well as her 1-year-old.
Both Bryant and Languet said they anticipated seeing more cases involving people’s rights and personal property and competing interests.
Bryant also said the Manfres have not yet pursued a claim under the federal Fair Housing Act.
Betty Adams — 621-5631
Twitter: @betadams
Send questions/comments to the editors.
