If you live in a state where marijuana is legal, you might have encountered smoke where you least expect or desire it. For instance, what if when you're putting your toddler to bed, you can smell marijuana coming from the neighbors' back porch? Short of never opening the window again, does the law offer any way to stop neighbors from smoking weed right next to a child's bedroom?
Regardless of your state or local laws, a good first step could be to talk the neighbors. It's possible they're unaware that smoke is drifting into your house. By approaching your neighbors in a considerate manner, you might be able to resolve the problem quickly, and without straining the relationship.
Another relatively informal way to resolve this type of dispute is through mediation. Meditation allows parties to try to resolve their dispute without going to court (and with a lot less risk and expense). In mediation, a neutral third party (the mediator) meets with the two (or more) sides to help them find a mutually agreeable resolution. Mediation is particularly well suited for non-financial concerns, as is often true of neighbor disputes.
If informal resolution is unsuccessful or not an option, it will be important to become familiar with state and local law on marijuana use. In states like Oregon, Colorado, and Washington, for example, where marijuana is legal to smoke recreationally, the law prohibits public consumption of marijuana.
What this typically means, though, is that the consumer can smoke marijuana in a place not accessible by the general public. A back porch, out of view of the public and on private property, is unlikely to run afoul of the public consumption restriction.
In certain situations, marijuana smoke and odor could be considered a nuisance warranting a civil lawsuit. "Nuisance" is usually defined as something that interferes with the use of property by being irritating, offensive, obstructive, or dangerous. Nuisance cases have been brought in response to a wide range of conditions, everything from a chemical plant's noxious odors to a neighbor's dog barking.
There are two types of nuisances defined by law, public and private.
A public nuisance is an unreasonable interference with a right common to the general public, such as toxic fumes settling over a whole neighborhood. A private nuisance is a condition that is more specific to a person's use of a property (like a neighbor's barking dog). In cases where, say, the smoke is affecting only you, a claim against the neighbors for private nuisance might be your best bet.
To prove a private nuisance, you would need to show that the smoker has unreasonably interfered with your use and enjoyment of your property. The court will weigh the gravity of the harm to the utility of the conduct causing the harm. With both cigarette smoke and marijuana smoke, courts have been hesitant to declare the odor in itself a nuisance. If it's possible to prevail on a nuisance claim, you will likely have to prove some harm beyond being offended by the smell.
Some courts also have been hesitant to declare something a nuisance when it is allowed by law. What that could mean is that, unless there is a law on the books stating otherwise, a court will be hesitant to say marijuana smoke coming from private property is a nuisance because it is lawful to smoke on private property.
However, some cities are drafting ordinances that make marijuana smoke that wafts over to a neighbor's property a nuisance. If that is the case in your area, calling local law enforcement could lead to a citation against your neighbors. A citation might encourage them to start smoking elsewhere on his property, so that the smoke does not make it to your house.
It might also prove helpful, if you live in a subdivision, to become familiar with the Declaration of Covenants, Conditions, and Restrictions ("CC&Rs"), as this document might include restrictions on drifting smoke and odors. If is does, you should review both the CC&Rs and bylaws regarding how to enforce such restrictions.
If there is no prohibition against wafting smoke, you might want to consider raising the issue at the next homeowners' association board meeting.
Since medical and recreational marijuana have only recently been legalized (and not yet in every state), the law relating to wafting marijuana smoke and odor is still developing. An attorney can help make sure you are up to date with the latest developments. And if you are worried about the impact on your child's health, you should talk to a medical professional.