Apartment Living BlogFair Housing › Up in Smoke: Key Takeaways for Medical Marijuana and Fair Housing

Terry Kitay, founding Director of The Fair Housing Institute, Inc.

 

Editor’s Note: This post has been updated to reflect the implications from the U.S. Attorney General’s amendments to the marijuana enforcement policy (eff. Jan. 4 2018).

 

Dear Fair Housing Expert,

 

We are a smoke-free community. With more and more states legalizing marijuana, how do we handle applicants who request accommodations to use medical marijuana to treat their disability? The laws are evolving quickly and we are trying to keep up!

 

-Up in Smoke

 

Dear Up in Smoke,

 

Yes, this is definitely a hot topic and varies from state to state and in some cases differs from regulations on the national level. Marijuana is a “Schedule I”  drug under the federal Controlled Substances Act, which means that it “has no currently accepted medical use in treatment in the United States.”  

 

Despite this classification under federal law, almost thirty states and the District of Columbia have laws legalizing marijuana in some form, primarily in cases of medical-related use.  In addition, approximately eight states and the District of Columbia have passed laws legalizing marijuana for recreational use under various limiting conditions.  In light of this conflict between state and federal laws, housing providers can expect to receive more frequent requests from residents to use, or even cultivate small quantities of, marijuana in the privacy of their homes.

 

Housing providers are free to regulate conduct unrelated to any fair housing protected class within an apartment community however they choose. An outright ban on the use or possession of marijuana on site does not violate any landlord/tenant or fair housing laws, even where marijuana has been legalized by local ordinance or state statute. In fact, many cities and states prohibit renters from smoking in apartment buildings.

 

If a resident claims to be disabled, and indicates that the use or cultivation of marijuana in the home is related to that disability, they could certainly be expected to request a “reasonable accommodation” under the Fair Housing Act. This would allow the resident to take his or her medical treatment for that disability.    

 

Physicians in the United States are not actually permitted to prescribe marijuana, although they can recommend its use for their patients to treat various medical conditions.  Certainly some of those medical conditions could be deemed “disabilities” as defined by the Fair Housing Act.  An accommodation that allows conduct in violation of a federal law constitutes an “undue administrative burden”. That means that the use or cultivation of marijuana in multifamily housing would not be a reasonable accommodation a housing provider has to allow, even if that use or cultivation is medically recommended for treatment of a disability.

 

Because the courts tend to look to employment discrimination cases for guidance on rulings under fair housing laws, housing providers should be alert to new judicial opinions upholding protections from discrimination afforded to medical users of marijuana and carefully monitor state law for specific expansion of those protections to the housing industry.

 

New Case Prohibits Discrimination Against Medical Marijuana User

 

A recent employment case from Connecticut, however, demonstrates that this area of the law is rapidly evolving.  Connecticut state law allows for medical use of marijuana, and even provides protection from employment discrimination based solely on that medical use of marijuana.¹  In that case, an applicant diagnosed with post-traumatic stress disorder (PTSD) applied for a position at a nursing facility.  The applicant used synthetic marijuana in a capsule form to treat the symptoms of PTSD, but only outside of the workplace, and was not impaired during the work day.  After the applicant failed a routine pre-employment drug test, the employer revoked the offer of employment because the applicant tested positive for marijuana.  

 

Neither marijuana’s classification under the federal Controlled Substances Act nor the Americans with Disabilities Act’s exclusion of current users of illegal drugs from the definition of individuals with a disability provided a defense to the employer. The court allowed the applicant to proceed with her claim that the employer had discriminated against her under state law by refusing to hire her “solely on the basis of her status as a qualifying patient” for legal medical marijuana use under the state Palliative Use of Marijuana Act.

 

This Connecticut case can be viewed differently from a housing provider who is asked to allow the use or cultivation of marijuana in the home as an accommodation to a disability, since the illegal activity would presumably take place on the housing provider’s own property (similar to drug use in the workplace, which the ADA specifically prohibits). But the case shows that state laws are changing rapidly. Older decisions from other states that have legalized medical marijuana have allowed employers to discriminate against employees (including termination of employment) for medical marijuana use, even when the use was related to a condition that would constitute a legal disability.²  

 

Key Takeaways for Medical Marijuana in Multifamily Housing:

 

-Banning the use or possession of marijuana on site does not violate any landlord/tenant or fair housing laws, even where marijuana has been legalized by local ordinance or state statute.

 

-The use or cultivation of marijuana in multifamily housing is not a reasonable accommodation, even if that use or cultivation is medically recommended for treatment of a disability.

 

-Marijuana is not currently classified under federal law as having any accepted medical use in treatment; physicians cannot prescribe it but can recommend its use for their patients to treat various medical conditions. 

 

Update: On January 4, 2018, the Attorney General’s decision to revoke the “Cole Memo” from the Obama Administration means that the federal Attorneys General around the country will no longer consider enforcement of the Controlled Substances Act against marijuana to be a low priority for law enforcement. This means the risk of legal enforcement of anti-marijuana laws – even in states where its recreational or medicinal use is legal under state law – is increased, and it is even more clear that allowing use of marijuana in any multifamily community, even as an “accommodation to a disability” would be inappropriate

 

 

While this is the non-legal advice of a Fair Housing Expert, the laws are constantly evolving so housing providers are encouraged to stay tuned to state laws and national legislation and consult with legal counsel for the best guidance. Because this is a sensitive and evolving topic with its fair housing implications, I do think you should reach out to your own counsel to get direction, since responses from the ForRent.com team and the ‘Dear Fair Housing Expert’ blog series are not legal advice.

 

Comment below with questions and experiences around this legislation in your apartment community!

 

About Terry

Working as Theresa L. Kitay, Attorney at Law, Terry Kitay has provided general consultation and defense representation on civil rights issues in the real estate industry for nearly 30 years.  Since leaving HUD’s Office of Counsel, Terry has continued to practice law exclusively in the fields of fair housing and accessibility.  Located in Oak Island, North Carolina, she represents owners, developers, managers, housing authorities, non-profit providers, architects, and engineers throughout the country.

 

Terry is also a founding Director of The Fair Housing Institute, Inc., an educational resource providing live and online training to the multifamily housing industry on all civil rights issues.

 

 

¹ Palliative Use of Marijuana,” CT Gen. Stat. 420f, Sec. 21a-408.

²  Courts in California, Michigan, Oregon, and New Mexico, among others, have all held that employers need not accommodate an employee’s non-workplace use of medical marijuana.

Terry Kitay

About

Working as Theresa L. Kitay, Attorney at Law, Terry Kitay has provided general consultation and defense representation on civil rights issues in the real estate industry for nearly 30 years. Since leaving HUD’s Office of Counsel, Terry has continued to practice law exclusively in the fields of fair housing and accessibility. Located in Oak Island, North Carolina, she represents owners, developers, managers, housing authorities, non-profit providers, architects, and engineers throughout the country. Terry is also a founding Director of The Fair Housing Institute, Inc., an educational resource providing live and online training to the multifamily housing industry on all civil rights issues.

Comments

  1. Good Morning Terry:

    I work in the Senior Care World. I think the use of MJ for pain and other uses should be allowed . It does less damage than opioids. They need to think about it.

    • Terry Kitay Terry Kitay says:

      I don’t disagree. But unless and until the federal Controlled Substances Act is amended, marijuana use remains a federal crime. Of course, private housing providers are free to take a “don’t ask, don’t tell” attitude toward compassionate use of marijuana.

  2. Meadow Lakes says:

    As a property manager I deal with this a lot! We are smoke free, Just because they have a medical card does not give them the right to smoke on the property. It’s difficult because you can smell it in the breezeways, but it’s hard to figure out which apartment it’s coming from? Is it harassment if we knock on the doors and ask if their smoking it?? I really fell like doing that some times 🙂

    • I am a property manager and I did a 24 hour inspection and found signs of marijuana in a few units is it okay to take pictures and send them a preform covenant or quit? I even posted notices on all units letting them know that Marijuana is not accepted on the property and adjoining units were complaining. That if they were smoking to do it off the property . HOW WOULD I GO ABOUT ENFORCING??

      • I would like to know more about this as well. I manage a property of 80 units and just as was mentioned it is hard to pinpoint which unit is the marijuana smell coming from. We are located in CT and as of this moment, we do not know of anyone that is a resident to have or use a medical marijuana card.

  3. Oasis Apartments says:

    We have residents that have marihuana medical cards and are smoking in their apartments. This is affecting other residents a great deal especially because the complains come from residents that do not smoke. How can we address this issue with the users in the most effective way?

    Please advise,

    Thank you,

  4. Terry Kitay Terry Kitay says:

    Smoking marijuana in the apartment is a lease violation, either because it is “criminal activity” prohibited by the lease, and/or because your property is “smoke free”. To the extent the neighbors complaint about odors or other problems from neighbors smoking marijuana, the activity might also constitute a “nuisance”. All of this is true regardless of whether the resident has permission for medicinal marijuana; use of marijuana is still criminal activity under federal law. You should respond to this lease violation in the same way you respond to lease violations of similar severity. Consult your local landlord/tenant attorney to evaluate the proper level of response – whether it’s a written warning, an immediate action to terminate the lease, or something in between.

  5. Barry Keaveney says:

    This position is crazy: “Marijuana is a “Schedule I” drug under the federal Controlled Substances Act, which means that it “has no currently accepted medical use in treatment in the United States.” Despite this classification under federal law, almost thirty states and the District of Columbia have laws legalizing marijuana in some form, primarily in cases of medical-related use.”

    • Hi Barry! Thank you for taking the time to weigh in. This topic is definitely trending and constantly evolving and always a best practice to monitor state and national guidance. Stay tuned!

  6. Dorothy Matthews says:

    Hi Terry. I live in a condo townhome in Hyattsville, Msn and my neighbor has a medical marijuana card and smokes it constantly, every 2 hours for his HIV and depression. The smell from his smoking is horrid and contaminates my home and I can no longer have visitors or my grandchildren over. His drugs makes me sick to the point that I lost 23,000 in Income last year from being sick from recurrent upper respiratory infections. The county Nusiance board found him to be a Nusiance but could not issue a cease and desist order for him to stop smoking inside his unit because they did not get 5 out of 7 votes to issue the order. Our HOA property management sends him fines that he does not pay. I cannot afford an Attorney to pursue this in court. I feel my fair housing right are being violated. Any advise you can give me is appreciated. Ms. Matthews

    • Katie Glaser Katie Glaser says:

      Hi Dorothy! I’m responding on behalf of Terry Kitay who indicated that you could notify the HOA property management company to bring a civil action for nuisance against the other resident, or file in small claims court. You can also call the police and report a crime as well. I hope that helps! Thanks for sharing your experience with us.

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