Addressing Medical Marijuana Use at Your Community

In this month’s lesson, Fair Housing Coach reviews the ongoing debate over medical marijuana—and how it may affect your community. Now that it’s lawful in many states, you may be wondering about whether you must allow use of medical marijuana at your community.

     You’re not alone—it’s a confusing area with conflicting laws, evolving regulatory systems, and little definitive guidance on how to handle medical marijuana in conventional multifamily housing communities.

     One thing’s for certain—marijuana is still an illegal drug under federal law. Until—and unless— Congress changes the law, it’s a federal criminal offense to possess, manufacture, or distribute marijuana.

     Meanwhile, we’re witnessing a rapid expansion of state laws easing restrictions on marijuana—at least for medical use. At last count, 20 states plus the District of Columbia have adopted measures allowing marijuana to be made available for a variety of medical conditions. The oldest dates back to 1996, but Illinois just added a medical marijuana law, effective January 2014. And two states have taken it a step further: Last November, Colorado and Washington passed voter initiatives legalizing marijuana use in their states for adults 21 and older.

     You can’t rest easy just because your state hasn’t yet approved use of medical marijuana. Each year, proposals to legitimize medical marijuana are introduced in states across the country—and there’s no reason to believe the tide will turn any time soon.

     For now, let’s focus on your obligations under fair housing law. Among other things, fair housing laws, both federal and state, require communities to consider reasonable accommodation requests for exceptions to rules and policies as needed by individuals with disabilities.

     Most communities ban illegal activities on the premises, including the use of illegal drugs. But in states that have legalized medical marijuana, you may be asked to make an exception to the policy by medical marijuana users who request a reasonable accommodation.

     We’ll review federal and state marijuana laws, along with fair housing rules protecting individuals with disabilities. Then, we’ll suggest six rules to help you address medical marijuana use at your community. After you’ve reviewed the lesson, you can take the COACH’s Quiz to see how much you’ve learned.

TIME OUT!

Federal Drug Law vs. State Medical Marijuana Laws

Federal law: Under the federal Controlled Substances Act, marijuana is classified as a Schedule 1 controlled substance, which means that it’s considered to have a high potential for dependency and no accepted medical use. The manufacture, distribution, or possession of marijuana is a federal criminal offense, and it may not be legally prescribed by a physician for any reason.

And that hasn’t changed, according to the federal government, no matter what states may do to attempt to “legalize” its use, whether for medical or recreational purposes. As noted by the White House Office of National Drug Control Policy, “It is important to recognize that these state marijuana laws do not change the fact that using marijuana continues to be an offense under federal law. Nor do these state laws change the criteria or process for FDA approval of safe and effective medications.”

State law: Currently, there’s a patchwork of medical marijuana laws in 20 states and the District of Columbia. Originally passed to remove state criminal sanctions against medical marijuana users, the laws have evolved to authorize state programs to produce and distribute medical marijuana. As noted by federal officials, the state laws vary greatly in their criteria and implementation, and many states are experiencing vigorous internal debates about the safety, efficacy, and legality of their marijuana laws. And there’s an ongoing battle on the local level over where marijuana dispensaries may be located.

Though there are critical differences among the laws, most have some form of patient registry, which may offer some protection against state arrest for possession up to a certain amount of marijuana for personal medical use. Some laws also permit patients or their caretakers to grow a limited number of plants for use as medical marijuana. In addition to state laws, there may be laws on the county or city level that regulate medical marijuana.  

More detailed information on state medical marijuana laws is available from the National Conference of State Legislatures at www.ncsl.org/issues-research/health/state-medical-marijuana-laws.aspx.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability. Under the disability provisions, it’s unlawful to refuse to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability an equal opportunity to use and enjoy his home.

     According to federal guidelines, housing providers may deny a request for a reasonable accommodation if not made by, or on behalf of, an individual with a disability. Furthermore, an accommodation request may be denied if it’s unreasonable—that is, it would impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the housing provider’s operations.

     HUD has stated that requests to permit use of medical marijuana are not reasonable under the FHA, at least in federal public and assisted housing. In a 2011 memo to public housing agencies and federally assisted housing providers, HUD stated that federal and state nondiscrimination laws don’t require those providers to accommodate requests by current or prospective residents with disabilities to use medical marijuana.

     Under HUD’s analysis of the FHA, accommodations that would allow the use of medical marijuana are unreasonable because they would require a fundamental alteration of the nature of the housing provider’s operation. Granting an accommodation to use medical marijuana would require public housing agencies and owners to condone violations of federal criminal law and thwart a central programmatic goal of providing a safe living environment free from illegal drug use. HUD said that accommodations allowing marijuana-related activity fundamentally alter the housing provider’s operations and are therefore not reasonable.

     Accordingly, HUD stated, public housing agencies and the owners of federally assisted housing may not grant requests by current or prospective residents to use medical marijuana as a reasonable accommodation for their disabilities, and Fair Housing and Equal Opportunity (FHEO) investigators should not pursue fair housing claims against those housing providers for denying a request to use medical marijuana as a reasonable accommodation. Nevertheless, HUD said that the law allows these providers to exercise discretion either to evict—or to refrain from evicting—current residents who engage in the use of medical marijuana.

     So what does that mean for conventional housing communities? Technically, HUD’s 2011 memo was limited to medical marijuana use in public and federally assisted housing communities. There are significant differences in the disability laws governing public and federally assisted housing, on one hand, and conventional housing communities, on the other. There has been no official guidance from HUD’s fair housing enforcement division regarding medical marijuana use in conventional housing communities, but many believe it unlikely that HUD would pursue a federal fair housing claim for a conventional housing community’s refusal to permit the use of medical marijuana.

     But that doesn’t mean you couldn’t face a fair housing claim under state fair housing law. So far, it hasn’t come to pass, but many have voiced that concern. In Massachusetts, for example, industry groups proposed an amendment to pending regulations under the newly minted medical marijuana law to expressly state that landlords are not required to permit the possession, use, or cultivation of marijuana as an accommodation to a person prescribed marijuana for medical purposes.

     In the courts, most discrimination claims involving use of medical marijuana involve either public housing or employment discrimination. In general, courts in both types of cases have ruled against medical marijuana users on claims of disability discrimination or failure to accommodate their medical marijuana use. Some contain broad language emphasizing that marijuana use is still illegal under federal law, so there’s no duty to accommodate medical marijuana use. Many believe that courts would rule the same way in fair housing claims against conventional housing communities, but until they do, there’s no guarantee of protection against accusations of disability discrimination under state law.

TIME OUT!

Medical Marijuana in Federal Public and Assisted Housing

Public housing agencies and the owners of federally assisted housing are not required to grant reasonable accommodation requests for exceptions to federal drug-free laws and policies to permit the use of medical marijuana, according to HUD’s 2011 memo on handling reasonable accommodation requests by medical marijuana users.

In fact, the agency stated, those providers may not permit the use of medical marijuana as a reasonable accommodation because:

• Persons currently using illegal drugs, including medical marijuana, are categorically disqualified for protection under the disability definition provisions of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act; and
• Such accommodations are not reasonable under the Fair Housing Act because they would constitute a fundamental alteration of the nature of the provider’s operations.

Based on federal law, HUD said that public housing agencies and owners of federally assisted housing must deny admission to individuals who, at the time of consideration for admission, are using medical marijuana.

However, HUD noted, the law gives those housing providers discretion on whether to evict current residents on account of their medical marijuana use. They may allow residents currently using medical marijuana to remain as occupants, but as an exercise of their discretion—not as a reasonable accommodation.

6 RULES FOR ADDRESSING MEDICAL MARIJUANA USE AT YOUR COMMUNITY

 

Rule #1:

If:       Your State Hasn’t Approved Medical Marijuana Use

Then:     Stay the Course But Monitor Developments

You don’t have to allow medical marijuana use if your property is in the majority of states that haven’t approved a medical marijuana law. In those states, marijuana remains an illegal drug under both federal and state law—regardless of whether it’s used for medical purposes.

     Consequently, you may continue to enforce lease provisions and policies that prohibit residents from engaging in illegal activity, including illegal drug use, against medical marijuana users. If you have grounds for eviction based on illegal marijuana use, you needn’t grant a request to allow the resident to stay simply because he says he’s using it for medical purposes.

     Just make sure that you are otherwise complying with fair housing requirements. It’s likely that a resident using marijuana for medical purposes may qualify as an individual with a disability under fair housing law. Because of the way the law is written, HUD says, an individual who is otherwise disabled (because of cancer or multiple sclerosis, for example) is not disqualified from protection under the disability provisions merely because he’s also a current illegal user of marijuana. Although you don’t have to allow him to use medical marijuana, you must consider requests for other reasonable accommodations.

     Meanwhile, monitor what’s going on in your state and local government. Across the country, proposals to permit use of medical marijuana are introduced each year. Medical marijuana may not be legal in your state now, but the trend toward legalizing medical marijuana use is expected to continue for some time to come. 

Rule #2:

If:       Your State Has Approved Medical Marijuana Use

Then:     Get Details about the Law

If your state has approved medical marijuana use, then you should find out as much as you can about the law. In general, the laws decriminalize the possession and cultivation of a specified amount of marijuana for medical use under a doctor’s supervision.

     But medical marijuana laws vary from state to state, so it’s important to get the details about what they say, how they work, who is covered, and what is permitted. In general, the laws protect patients, their caregivers, and doctors from arrest or prosecution for possession, sale, or distribution of medical marijuana under state drug laws.

     Most states have a patient registry—some well established, but others still in the process of getting up and running. Most issue identification cards, but only a few recognize ID cards issued in other states.

     The laws generally apply to individuals with certain medical conditions (such as cancer or HIV/AIDS) or symptoms (such as pain or nausea), but the list of qualifying conditions is different in every state.

     The laws apply only to a limited quantity of medical marijuana, either by weight or number of plants, but the limits vary by state.

     And there are different rules on whether, and under what circumstances, home cultivation of medical marijuana is permitted. In states where it’s allowed, it’s important to know the rules about who may grow it, when and where they may grow it, and how much they may grow. In some cases, the rules permit caretakers to grow it for their patients, but that doesn’t mean that you must allow them to do so on your property, according to most fair housing experts.

     Meanwhile, keep track of what’s happening with medical marijuana laws as states roll out or fine-tune their programs. As new laws are passed and implemented, and older laws evolve, the rules are likely to change, so you should monitor developments on the state and local level.

Rule #3:

If:       Your State Has an Active Medical Marijuana Program

Then:     Learn Your State’s Position on Medical Marijuana in Rental Property

Though 20 states have passed medical marijuana laws, only a handful have addressed whether rental property owners may regulate its use on their property. In Arizona, for example, the state’s health department stated that the law doesn’t require the owners of private property to allow the use of marijuana on that property. And in Michigan, the state’s attorney general issued a formal opinion stating that the owner of an apartment building can prohibit the smoking or growing of marijuana anywhere within the facility.

     Fewer still have taken a formal position on whether limiting its use on rental property could trigger a disability discrimination claim. In Oregon, for example, the agency that handles fair housing complaints announced that it would not accept medical marijuana cases after the state’s highest court rejected an employment discrimination claim based on off-duty medical marijuana use.

     And in Washington, the state Human Rights Commission issued a statement that the use of medical marijuana is not a reasonable accommodation. Though it appeared to be addressed primarily to employment discrimination claims, the statement may be broad enough to cover housing cases. Nevertheless, it didn’t rule out a potential claim: “If an individual does file a claim of failure to reasonably accommodate a disability due to an employee’s use of medical marijuana, or a claim of termination due to disability because of the failure to pass a drug test, the investigation would most likely result in a No Reasonable Cause finding. This does not preclude an individual from filing a case in state or federal court.”

     Check with your attorney about whether the law in your state gives property owners the right to limit marijuana use on their property. And ask about whether there has been any formal guidance from fair housing officials on whether banning or limiting its use in multifamily housing communities could lead to a discrimination claim.

     Also ask about discrimination cases related to your state’s medical marijuana law. There may not be any official rulings involving discrimination claims against conventional housing cases, but a number of courts have decided employment discrimination claims. Most have rejected disability discrimination claims by employees fired under company drug policies after testing positive for marijuana in their systems, despite evidence that they are medical marijuana users. Though not controlling, the decisions may offer some guidance on how your state would be likely to view a potential housing discrimination case.

Rule #4:

If:       Your State Has an Active Medical Marijuana Program

Then:     Review Your Options for Handling Medical Marijuana at Your Community

Ask your attorney to help you review your options for handling medical marijuana by current or prospective residents at your community. There are many factors to consider, so the sooner you do so, the better. As medical marijuana programs come online, you can expect to see requests to make exceptions to your policies to allow medical marijuana use by prospects or residents with disabilities.

     Before you start, it’s important to understand what’s currently in your lease forms and community policies that may relate to medical marijuana use. It’s common to include provisions that prohibit residents from engaging in illegal activity, but find out how it applies to medical marijuana, which is illegal under federal law but arguably “legal” under some state laws.

     One option is to adopt a policy banning the use of marijuana, including medical marijuana, for any reason at your community. On the plus side, it complies with federal law and is in line with positions taken by some state officials and court rulings. But on the minus side, you could trigger what may become a test case. You may ultimately win, but you could face years of court battles against a sympathetic plaintiff, backed by an advocacy group with deep pockets.

     Another option would be to adopt a no-smoking policy to prohibit smoking of any sort, including medical marijuana, at the community. Some argue that secondhand smoke from marijuana causes just as many problems as tobacco smoke, but it’s a matter of ongoing debate. You’ll have to check state laws encouraging smoke-free environments; many apply only to tobacco smoke.

     Nevertheless, a medical marijuana user may ask for exceptions to both your “no-smoking” and “illegal activity” policies as a reasonable accommodation. And, of course, a no-smoking policy wouldn’t stamp out any use of medical marijuana at your community, since there are other delivery methods for medical marijuana apart from smoking it.

     Whatever you decide about medical marijuana, you can, and probably should, make it clear that you are not refusing housing to anyone based on disability, advises fair housing attorney J. Kathleen Belville, a partner at the San Diego-based law firm Kimball, Tirey & St. John LLP. All applicants who otherwise qualify (including medical marijuana users) are welcome to reside on-site; they just need to follow all community policies, including restrictions on marijuana use and growth, if any.

Rule #5:

If:       If Your State Allows Medical Marijuana Use

Then:     Deal with Complaints

Given the current state of the law, you may not have to grant reasonable accommodation requests for use of medical marijuana, but you don’t necessarily have to take action against a resident simply because she’s using medical marijuana on your premises.

     And let’s face it: Your residents may be using medical marijuana on your premises right now. You may not know anything about it—until there’s a problem, such as complaints about smoking in common areas, secondhand smoke, or smells from growing marijuana plants infiltrating neighboring units, or property damage from mold, water leaks, or faulty wiring, to name a few possibilities.

     Though there’s a lot of uncertainty over fair housing concerns about medical marijuana, you don’t have to ignore these problems. Get legal advice to help you weigh your options and the best way to proceed to remedy the situation. Depending on the circumstances, you may have recourse under lease provisions that require residents to maintain the premises and forbid them from interfering with their neighbors’ quiet enjoyment of the property or causing a nuisance.

Rule #6:

If:       Your State Allows Medical Marijuana Use

Then:     Follow General Fair Housing Rules

Regardless of how you handle medical marijuana use at your community, make sure that you comply with the general rules banning housing discrimination based on race, color, religion, national origin, sex, familial status, and disability—and any other characteristic protected under state or local law.

     Among other things, it’s unlawful to enforce community rules differently against residents based on their race or other protected characteristic. Ignoring medical marijuana use by white residents, but taking a hard line against racial minorities for the same conduct is a violation of fair housing law.

     And follow your standard procedures for handling reasonable accommodation requests, even if it’s for medical marijuana. Based on the current state of the law, you may not be required to grant the request, but there’s nothing to stop someone from asking—and from pursuing a state fair housing claim if she doesn’t get the answer she wants. If the claim gets some traction, it can only help your case to produce documentation that you treated the applicant or resident fairly and followed standard procedures for evaluating the request.

• Fair Housing Act: 42 USC §3601 et seq.
• HUD guidance: Reasonable Accommodations Under the Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf.
• HUD memo, Jan. 20, 2011: Medical Use of Marijuana and Reasonable Accommodations in Federal Public and Assisted Housing, available at www.nhlp.org/files/3.%20KanovskyMedicalMarijunanaReasAccomm(012011).pdf.

COACH Sources

Jo Becker: Education/Outreach Specialist, The Fair Housing Council, 506 SW 6th Ave, Ste. 1111, Portland, OR 97204; (503) 223-8297; jbeckerfhco@yahoo.com.

J. Kathleen Belville, Esq.: Partner, Law Offices of Kimball, Tirey & St. John LLP, 7676 Hazard Center Dr., Ste. 900, San Diego, CA 92108; (619) 234-1690; Kathy.Belville@KTS-LAW.com.

Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; nadeen.green@forrent.com.

Carl York, CPM® Emeritus, CAM, CAPS: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.