Medical Marijuana and Multifamily Housing
An increasing number of states are legalizing the use of marijuana for medical purposes. Alaska, Arizona, California, Colorado, Connecticut, DC, Delaware, Hawaii,
Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington have all passed such laws.
Florida, New York, Ohio and Pennsylvania have pending legislation or ballot measures on the issue. Colorado and Washington have legalized Marijuana for recreational use.
The Drug Enforcement Administration (DEA) still lists marijuana as a Schedule 1 drug. Schedule 1 drugs are those with no currently accepted medical use and a high potential for abuse. This are considered by the DEA to be the most dangerous, and in addition to marijuana, include heroin, LSD, ecstasy, meth and peyote. There is no indication that the federal government is anywhere near changing this categorization.
How should housing providers respond in the affected states when asked to provide a reasonable accommodation to permit medically prescribed marijuana?
For purposes of the federal Fair Housing Act, medically prescribed marijuana is not considered a required reasonable accommodation, since it violates federal drug law. Also, the definition of a disability under the Fair Housing Act states that current illegal use or addition to a controlled substance is not considered a disability.
It is clear that landlords are under no obligation to permit medically prescribed marijuana under federal fair housing law – but what about under State laws?
- California: The Unruh Civil Rights Act prohibits discrimination by any business in CA, including housing and public accommodations. The Act states that “all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
It is possible that California, as well as other states, would consider it a violation of State fair housing law not to consider a reasonable accommodation request for the use of medical marijuana.
While HUD has stated that applicants to HUD assisted properties that use marijuana for any reason must be rejected, they are taking a softer stance on existing residents, essentially leaving it up to owners and PHAs regarding how to handle the situation.
Recommendations
1. Carefully research the specifics of marijuana-related laws in your state to ensure you comply with state requirements;
2. Examine loan and regulatory documents for any language relating to onsite drug use;
3. Make sure your lease complies with state law and any federal requirements;
4. If an applicant or tenant requests permission to smoke medically prescribed marijuana, consider asking if it would be possible for them to take it in a different form, such as edibles or tinctures;
5. Review any smoke-free policies you may have to determine the impact on medical marijuana users; and
6. Do not ask potential tenants if they are medical marijuana users (may violate privacy rights).
These recommendations apply only to states where the use of medically prescribed marijuana is permitted under state law; the use of marijuana for any purpose in any other state should not be permitted.