Sick of smelling her neighbor’s legal pot, this woman sued

The Washington Post / Meryl Kornfield

12:23 JST, January 16, 2023

Josefa Ippolito-Shepherd tried cleaning, pleading and suing, but she said the attack on her home of 30 years was unrelenting. Sometimes she felt as though she couldn’t breathe, couldn’t sleep, couldn’t live out her retirement in her manicured colonial in Washington, D.C.’s Cleveland Park neighborhood.

The assailant? The smell of marijuana.

Ippolito-Shepherd believed it drifted into her house through the cracks along her stairs, behind the web of pipes underneath a kitchen sink and above the recessed lights from her downstairs neighbor, a tenant of the adjoining home’s owner. She asked the neighboring landlord to evict her tenant and she told the smoker to cease lighting up inside, but both refused her.

Before the legalization of marijuana, Ippolito-Shepherd could have called 911 and police would have criminally charged her neighbor, but now officers told her nothing could be done. She wrote to D.C. Council chair Phil Mendelson, who said the only way to rectify her problem would be to undo the legalization of marijuana.

So she took the dispute to court, claiming the smell is a public nuisance, and the trial, which began this week, is the first of its kind to make it this far in the District court.

Marijuana is now permitted in most states in some form, and that has brought complaints of the scent and possible secondhand-smoke exposure from neighbors of marijuana farms, dispensaries and smokers. The debates surfacing around the country have led to new restrictions on where people can smoke as well as lawsuits over the nuisance.

The divide over the smell of marijuana is sharp, with one camp of nonsmokers decrying the odor as noxious and potentially detrimental, while smokers contend that such complaints have impeded their ability to freely partake in the drug – for medicinal or personal reasons – within the comforts of their own homes. The detrimental effects of secondhand marijuana smoke remain shrouded in uncertainty due to federal regulations on research – a relatively new frontier after decades of contention over tobacco smoke.

“I have the right to breathe fresh air in my home,” Ippolito-Shepherd told The Washington Post before the trial. “I’m not talking about if I go to someone else’s house or a place people go to smoke pot. They have the freedom to do whatever. I just do not want to be invaded in my own home.”

Overall, local governments are not passing major reform on this front. The National League of Cities and the National Association of Counties told The Post they are not tracking policy changes related to marijuana smell. But the signature scent of marijuana – once used by police to provide probable cause to search homes, cars and people – is now an increasingly ubiquitous olfactory experience in cities where smoking is most common.

California cities have begun to seriously contemplate the prospect of outlawing smoking within the confines of apartments and residential buildings, a development brought about by the anti-smoking movement, said Dale Gieringer, who leads the California chapter of a pro-decriminalization advocacy group, the National Organization for the Reform of Marijuana Laws. San Francisco had considered a proposal that would ban smoking tobacco and marijuana in apartments due to the secondhand smoke but narrowed the restriction after cannabis activists argued users already could not smoke in public places.

Gieringer argues such restrictions are “draconian” because they limit where medical marijuana patients can smoke.

“If you are a medical marijuana user – and we have hundreds of thousands of them, actually – you can’t smoke outside your house and in public,” he said, “and now with these no-smoking ordinances, you can’t smoke in your apartment either. So we’ve been fighting those ordinances.”

Gieringer, one of the authors of the California law that made medical marijuana legal, said despite the success in cities such as San Francisco that did not ultimately ban marijuana smoking, “it’s an ongoing issue” as people who do not like the distinctive smell complain. He said the odor should not dissuade its legalization, pointing to the alternative forms of consuming marijuana that do not cause as much of a smell, such as eating edibles and vaping oils.

Secondhand marijuana smoke contains many of the same cancer-causing toxins as secondhand tobacco smoke, said Brooke Hoots, a Centers for Disease Control and Prevention epidemiologist. The substance within marijuana that causes a high – tetrahydrocannabinol, or THC – can be passed to young children from secondhand smoke, according to the CDC. Researchers in New York City found that about one-third of parents surveyed reported marijuana smells in their home while their child was there, according to an Academic Pediatrics article published in January 2021.

Hoots, the team leader of the Cannabis Strategy Unit at the CDC, said researchers do not fully understand the long-term health consequences due to the federal government classifying marijuana as a Schedule I drug.

“It’s very difficult to do cannabis research,” Hoots said. “It’s difficult to obtain products, to do research and honestly jump through a lot of the regulatory requirements to qualify to do cannabis research.”

President Biden in October urged his administration to expedite a review of the schedule of marijuana when he announced he would offer pardons to anyone convicted of a federal crime for simply possessing the drug, the most drastic reform to federal marijuana policy in more than a half-century.

Despite the federal legal status of marijuana, a swell of states have pivoted in their stance on the drug, decriminalizing and legalizing it after decades of police disproportionately charging Black and Brown people with possession. It has also become more mainstream: Marijuana use is at a record high among young adults in the United States, according to the National Institutes of Health.

But with the newfound acceptance of marijuana and its increasing availability comes questions about how society will reform, from new protections for employees who fail drug tests to evolving conversations parents have with their kids. More Americans are smoking marijuana than cigarettes, according to a recent Gallup poll, as legal battles over tobacco have waned.

In the first case over secondhand tobacco smoke in 1976, New Jersey’s superior court sided with an office worker who sued her company for allowing co-workers to smoke cigarettes at their desks. Since that case, hundreds of lawsuits have followed over the health threats of exposure to secondhand smoke, establishing a decades-long record of liability when smoke drifts into people’s homes. But the matter of marijuana smoke is less established.

The stench can be disconcerting, especially for those who are unaccustomed to it or dislike it.

Meredith Kinner, an attorney who represents members of the cannabis industry in D.C., said zoning is something potential cannabis businesses keep in mind when they think about location, especially if their shop might invite people to hang around outside smoking.

“You don’t want to be in a residential neighborhood,” Kinner said. “Because odor and nuisance complaints are a concern.”

After legalization went into effect in 2015, D.C. was quick to adopt a more casual attitude toward marijuana and the distinctive waft that accompanied it. A Washington Post poll conducted that year found that 57 percent of District residents said they smelled marijuana at least once a month.

Of those residents, 45 percent said the smell didn’t bother them at all; fewer than 4 in 10 respondents said the smell bothered them to a significant degree.

Unwelcome aromas are not uncommon in densely populated cities such as D.C. According to the D.C. Office of Unified Communications, which processes odor and air quality complaints, there were 202 odor complaints entered into the city’s 311 system in 2022, though the data does not include marijuana smell complaints.

As more states give marijuana the green light, more litigation from squabbles over scent are likely to arise.

Ippolito-Shepherd, who is representing herself, said she is not seeking the illegalization of marijuana but rather a restriction on smoking in multiunit buildings. She said she will never move and has resolved to take her case as far up the judicial chain as she must until she prevails. The owner of the adjoining home, Angella Farserotu, and Thomas Cackett, who rents a ground-level accessory apartment, have argued in court that they have no legal responsibility for Ippolito-Shepherd’s ailments.

Farserotu confirmed she was once good friends with Ippolito-Shepherd but declined to comment further other than that she “felt sorry for her.” Cackett did not respond to multiple requests for comment from The Post.

Meanwhile, Ippolito-Shepherd is convinced that traces of marijuana are all over her house: in the fibers of her eggshell-colored mid-century couches, her numerous Oriental rugs, the embroidered pillow Farserotu once gifted her that exclaims “Snowflakes, Friendship, And Winter Cheer!”

In a wood-paneled courtroom in early January, the trial over the contentious issue of the smell has devolved into a protracted and fiery dispute. The neighbors have engaged in heated verbal exchanges, speaking over each other and accusing each other lying. The judge has had to intervene repeatedly, imploring everyone to uphold the decorum of the court.

“I understand emotions are high,” she said.