The recent Florida appellate ruling in Williams v. State of Florida (2nd DCA 2025) has reshaped the legal landscape surrounding marijuana and police investigations. The court held that the smell of cannabis alone no longer provides probable cause for police to conduct a warrantless search. While this ruling primarily applies to criminal law, it also has important consequences for landlords. If the odor of marijuana, by itself, is no longer sufficient proof of illegal marijuana, then landlords must more carefully reconsider how they enforce leases, especially if their leases do not specifically address marijuana.
Criminal Activity on Rental Property
Landlords often depend on “illegal activity” lease provisions to protect their properties. In the past, marijuana odor almost automatically suggested unlawful drug use. But under Williams, odor alone is no longer evidence of a crime. Hemp is legal, medical marijuana is legal for qualified patients, and the odor of cannabis could come from either lawful or unlawful activity.
For landlords, this means:
- You cannot assume criminal activity based only on suspected marijuana odor alone.
- Evicting on smell alone could invite legal disputes or wrongful eviction claims.
- Additional evidence—police reports, admissions, disturbances, or repeated violations—is necessary before alleging criminal conduct.
Lease Enforcement
Florida Statutes does not provide that a landlord may terminate the lease for illegal activity on the property, unless the tenant has in some other way violated his obligations under F.S. 83.52. Thus, if the lease does not mention marijuana at all, enforcement becomes risky if not impossible.
If the lease does prohibit criminal activity, a landlord may argue that a “no illegal activity” clause covers use or possession of marijuana, but because certain forms of cannabis are legal in Florida, a tenant could push back, such as alleging that prohibiting medical marijuana use violates fair housing laws or medical marijuana use is legal conduct.
This is why lease provisions are essential to enforcing a tenant’s obligations regarding prohibitions of marijuana use and possession.
Best Practices for Landlords
To avoid uncertainty, landlords should take proactive steps:
- Update Your Lease. Address prohibition of marijuana use explicitly.
- Use Smoking/Nuisance Clauses. Regulate smoke, odor, and disturbances regardless of substance, especially inside the rental unit.
- Gather Evidence. Never rely on smell alone; document with photos, witness accounts, or police involvement.
- Enforce Neutrally. Focus more on property protection and nuisance prevention rather than singling out the smell of cannabis.
Sample Lease and Policy Language
Below are three sample approaches landlords may insert into leases or house rules.
Option 1: Total Ban on Marijuana
Marijuana and Cannabis Prohibition. Tenant, occupants, and guests shall not possess, use, cultivate, or distribute marijuana, cannabis, hemp, or related substances on the Premises, whether for recreational, medical, or other purposes. Violation of this provision shall constitute a material and non-curable violation of the Lease pursuant to Section 83.56(2), Florida Statutes, and shall be grounds for immediate termination of tenancy.
Option 2: Smoking Ban / Limited Marijuana Policy
Smoking and Marijuana Use. Smoking of any substance, including but not limited to tobacco, marijuana, hemp, or vaporized products, is strictly prohibited inside the dwelling, hallways, common areas, and within __ feet of entrances, windows, and ventilation openings. Unlawful use or possession of marijuana under Florida law is prohibited. Any violation of this section shall constitute a material lease violation and may result in a notice to cure or termination.
Option 3: Nuisance and Odor Control Policy
Nuisance and Odor Policy. Tenant shall not permit any activity that creates excessive or intrusive odors, smoke, or disturbances that interfere with the quiet and peaceful use and enjoyment of other residents. This includes but is not limited to the smoking or burning of marijuana, hemp, or other substances. Even where possession or use may be lawful, nuisance activity is prohibited. Complaints of odor or disturbances shall constitute a lease violation and may result in termination of tenancy.
Can a Landlord Ask for Proof of Medical Marijuana Use?
Many landlords wonder if they can ask a tenant to provide proof of medical marijuana authorization when marijuana use is suspected or when enforcing lease restrictions. This raises two concerns: HIPAA compliance and tenant privacy rights.
1. HIPAA Does Not Apply to Landlords
The Health Insurance Portability and Accountability Act (HIPAA) applies to “covered entities” such as doctors, hospitals, and insurers. Landlords are not covered entities under HIPAA. Therefore, a landlord asking for proof of medical marijuana use is not a HIPAA violation.
2. Privacy and Fair Housing Considerations
While HIPAA does not apply, tenants have privacy rights under fair housing and disability laws. Medical marijuana use in Florida is lawful only for qualified patients with a valid medical marijuana card. Asking a tenant to provide proof of lawful use may be permissible if:
- it is narrowly related to enforcing a lease restriction on illegal drug activity; and
- the request is handled in a neutral and non-discriminatory manner.
However, landlords must be cautious:
- Demanding full medical records is improper and unnecessary.
- If a tenant discloses that they are a qualified medical marijuana patient, the landlord may not retaliate or discriminate based on disability status.
- The safest approach is to require the tenant to show only the state-issued medical marijuana card, not private medical details but only when the landlord is asking for lawful purposes to enforce the lease with credible evidence that the tenant may be in violation.
3. Practical Policy Language Example:
Medical Marijuana Verification. If a Tenant claims medical use of marijuana as permitted under Florida law, Landlord may request to view the Tenant’s valid state-issued medical marijuana card for verification. Landlord shall not require disclosure of medical records or details beyond proof of lawful authorization. Tenant acknowledges that medical marijuana use does not excuse violations of other lease provisions, including smoking prohibitions, nuisance restrictions, or damage to the Premises.
Summary
The Williams decision makes one point clear: the smell of marijuana is no longer automatic proof of illegal activity. For landlords, the key takeaway is to enforce leases through clear policy language and evidence-based documentation. When marijuana use is suspected, landlords may request proof of lawful use, but must balance this with respect for tenant privacy. A narrow, businesslike request for a medical marijuana card is generally permissible, but broad demands for medical information risk legal exposure.