Following a three-year long legal battle, a Washington, D.C. judge banned a man from smoking medical marijuana in his home after his neighbor filed a lawsuit claiming the smell drifted into her home and made her sick.
Judge Ebony Scott ruled this week that although Thomas Cackett has a license to purchase medical marijuana “he 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.”
According to court documents, 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. Ippolito-Shepherd alleged in her complaint that Cackett “‘smokes marijuana 24/7’ and that the ‘foul and pungent odor enters and permeates (her) home, making her violently sick …'”
The case was dismissed in 2021 when a judge found 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.” But a court of appeals reversed that dismissal, and the case was reopened last year.
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Ippolito-Shepherd, a public health scientist, then testified in D.C. Superior Court that she experienced health issues including severe headaches, nausea, vomiting and respiratory issues within minutes each time Cackett smoked. Ippolito-Shepherd told USA TODAY she complained about the smell in 2018 and 2019 to Cackett and Farserotu, who acknowledged her tenant had been smoking marijuana.
“So the battle begun,” Ippolito-Shepherd said.
Ippolito-Shepherd sent more than 200 emails to the defendants urging Cackett to stop smoking marijuana on the property, according to court documents.
Cackett, a restaurant manager, testified that he smokes medical marijuana two to three minutes per day to help him sleep and alleviate pain caused by various health problems. He told the court he smokes outside on the patio to abide by a no-smoking clause in his lease, but that Farserotu allowed him to smoke inside when the weather is bad. Cackett did not immediately respond to a request for comment from USA TODAY.
Scott ruled that Cackett had created a nuisance, but stopped short of awarding damages to Ippolito-Shepherd because she failed to provide medical evidence proving the marijuana smoke made her sick. Scott barred Cackett and anyone who visits him from smoking or burning marijuana in any way that emits an odor at his home or within 25 feet of Ippolito-Shepherd’s home.
Ippolito-Shepherd said while the odor is “horrible” her primary concern is the toxins in the smoke. Secondhand marijuana smoke contains many of the same toxic and cancer-causing chemicals in tobacco smoke – some of which are found in higher amounts – but more research about the effects of needs to be done, according to the Centers for Disease Control and Prevention.
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“Because I am a public health person, I know the dangers for me, for my lungs, for my family, especially for children, and elderly. They are the two groups that are most vulnerable,” she said. “So I am very concerned.”
Since filing her lawsuit, she said she’s gotten messages from many other people in similar situations. Ippolito-Shepherd stressed that she supports the decriminalization of marijuana, but hopes to advocate for legislative changes that would allow others to resolve similar situations without having to go through the court system.
“Judge Scott’s decision is for public health,” she said. “it’s a big win because now people can use this case to plead for their case.”
J.P. Szymkowicz, an attorney representing neighbors in a similar case, told the Washington Post Ippolito-Shepherd’s case does not set a legal precedent like an appellate decision would, but has “persuasive value.”
Now that the legal battle has concluded, Ippolito-Shepherd said she plans to have her house thoroughly cleaned and hopes the defendants will obey the judge’s ruling.
