AGAWAM, MA (WGGB/WSHM) - Selling vape products in Massachusetts is still illegal as researchers race to determine whether or not vaping nicotine and cannabis products is conclusively the cause of lung illnesses skyrocketing nationwide, but the actual act of vaping is still legal.

You won't get arrested, but you could risk getting thrown out of your home if you live in an apartment.

"Dosing with vaping is the safest way we found for Tim," Agawam resident Francine Weinandy tells us.

After years of suffering from chronic pain, Tim Weinandy began vaping medical marijuana to alleviate his symptoms.

His wife, Francine, doesn't have a prescription, but says vaping the now-legal cannabis helps her anxiety and other emotional problems, but Francine says their vaping has created problems with the apartment complex they lived in for decades, Sutton Place.

"They're saying vaping and smoking are the same thing and they're not," stated Francine.

Over the Summer, the Weinandys were served an eviction notice by the complex, alleging they violated their non-smoking policy and breached the "quiet enjoyment" of their neighbors by vaping, but the Weinandys claim their renters agreement doesn't mention vaping at all.

"No, not a word. Vaping is using heat to move over the marijuana and take moisture out of the marijuana that holds the chemicals needed and what you inhale is that moisture. The marijuana itself is never burned," Francine explained.

Western Mass News obtained their tenant agreement from court documents and found it doesn't mention vaping specifically.

We showed Sutton Place's contract to attorney Scott Foster, who says it reflects the state's "old" definition of smoking.

"It was a cigarette or a pipe or cigar that was lit or lighted. The new definition includes e-cigarettes and vaping specifically," attorney Scott Foster said.

The state adopted the new definition in 2018, but according to the Weinandy's agreement they resigned in 2019...

"This is dated after the law was changed. That should've been updated. That leads to confusion," continued Foster.

Confusion, yes, but Foster believes the argument that smoking and vaping are different is shaky at best when it comes to allowing it in an apartment.

"It's a pretty technical argument for a tenant to put forward. That definitely goes against the spirit of the no smoking policy was set up to protect," stated Foster.

Especially when a neighbor complains about it.

"You have the right to the quiet enjoyment of your premises. [It sounds like a tenant's right to "quiet enjoyment" almost supersedes a tenant's right to smoke or vape in their apartment? They certainly can be in conflict with one another.] It's kind of an impossible position for a landlord to be in, which is why they tend to have no smoking no vaping policies," says Foster.

Western Mass News took a poll of twelve (non-section 8) apartment complexes around the area.

We found five allowed smoking and vaping in their units.

Seven reported to have no smoking and vaping policies, but only three actually changed their language to include vaping products to match the state's new definition of smoking.

"I think it's a good idea to always have your policies at a local level or an individual apartment level be consistent with what the state law now reads," said Foster.

Or else Foster says a property owner could find themselves in a legal battle, like the Weinandys, who believed vaping was okay in their apartment.

More than okay, they say given the alternative.

"The fact that this can keep my husband off of opioids and that anybody would stop that because of a smell is not right," stated Francine.

According to court documents, the case against the Weinandys was dismissed earlier this month, but the couple tells us they chose to move out anyway, no longer feeling welcome in the complex they called home for years.

"When I was a travel agent and I was bringing in four grand a month, Sutton Place was my best friend. I'm not that person anymore. I'm marginalized now," added Francine.

Western Mass News spoke with the lawyer for Sutton Place over the phone, but they did not make a statement on the record.

Copyright 2019 Western Mass News (Meredith Corporation).  All rights reserved.

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