One of the most common questions we get is about medical marijuana and whether housing providers are required to allow it on their property. The following is the guidance we provide to both housing providers and consumers on this subject. We caution everyone that the status ofmedical marijuana is still unclear under both federal and state law.
Let’s step back and start at the beginning, as it were, from a fair housing perspective. Fair housing laws make discrimination in any housing transaction illegal if based on
FEDERAL: Race, Color, National Origin, Religion, Gender, Familial Status, *Disability*
OREGON: Marital Status, Legal Sources of Income, Sexual Orientation / Gender Identity
WASHINGTON: Marital Status, Sexual Orientation / Gender Identity, Honorably Discharged Veteran / Military Status
LOCAL: For a list of protected classes by jurisdiction in Oregon and SW Washington visit
www.FHC
rg/mission.htm
This article focuses on the protected class of disability, and specifically the application of medical marijuana as a reasonable accommodation request. For additional information about disability as aprotected class and reasonable accommodations / modifications in general visit
www.FHCrg/disability.htm.
The Fair Housing Act defines disability as a physical or mental condition that substantially impairs amajor life activity such as seeing, hearing, thinking, walking, breathing, self-care, etc. This includes an expansive list of chronic diseases and conditions. You should also know that anyone with a disability has the right to ask a housing provider for a reasonable modification or accommodation and, for some with severe pain or chronic conditions, medicinal use of marijuana is the only treatment that seems to help.
Most rental agreements stipulate that illegal activity will not be tolerated on the rented premises. In Oregon and Washington marijuana use is not an illegal activity if prescribed by a physician and if state medical marijuana rules regarding possession, consumption, etc. are followed. If a medical marijuana user identifies him / herself as having a disability as defined by fair housing law and requests a reasonable accommodation to use medical marijuana, s/he is asking for an exception to the rule; that is, to do what would otherwise be considered illegal activity on the property.
In a separate but related matter, many housing providers (landlords, homeowners’ associations, etc.) have legally adopted a no smoking-rule. If a medical marijuana user identifies him / herself as having a disability as defined by fair housing law and requests a reasonableaccommodation to use medical marijuana, s/he is asking for an exception to the rule; that is, to be allowed to smoke medical marijuana in spite of the no-smoking rule.
It is important to realize that an individual with a disability can ask for anything s/he feels is necessary as an accommodation / modification in order to achieve full use and enjoyment of housing as those without disabilities do. So, a ban on illegal drug use and a no-smoking rule are each perfectly fine unless and until an individual with a disability has been legally prescribed medical marijuana and asks for anaccommodation to use it. As with any other reasonable accommodation or modification, the housing provider has the right to verification but must consider every request. HUD only allows for denial when what’s asked for alters the housing provider’s job description; poses a direct threat; constitutes an administrative burden and is too costly.
Of course, if the resident hasn’t asked for accommodation or alerted you to the fact that they’re using medical marijuana, you should assume it is illegal drug activity and respond appropriately. If, at that time, the resident informs you that it is medically prescribed and provides verification, you must consider the request and can only deny based on the reasons stated above.
If you have a medical marijuana user on your property, or anapplicant who uses medical marijuana wishes to move into your rental, you may not charge them higher fees or deposits – just as you can’t with service animals or any other disability-relatedaccommodation or modification. That being said, if damage is caused (i.e.: moisture damage, electrical issues, etc.) the resident is, in fact, responsible for it just as a resident would be if his / her service animal gnawed on woodwork in the unit or damaged carpeting. The point is you may not legally assume there will be problems or damage unless or until it actually happens. This seems like a good reason for landlords to have a policy of routinely inspecting all of their units in order to be in communication with residents and catch to any issues early on.
If an individual in any way violates the state’s medical marijuana program rules (where it’s used, quantities allowed, selling ordistributing, etc.) it then becomes, essentially, illegal activity. At which point, a housing provider would be within his / her rights to sanction the individual accordingly.
I’ve had many-a-housing provider ask, “Why can’t the resident simply take it in another form rather than smoking it!” Let me be clear, under fair housing laws housing providers have no business interfering with an individual’s treatment plan. Such business is strictly between him / her and their medical provider. This is true whether you’d prefer the individual took a marijuana pill rather than smoking it or if youquestion what good a campaign animal might do for an individual who doesn’t appear to you to be disabled. In terms of medicalmarijuana, alternate forms are not always an option – for some it makes them sick to their stomach, for others it simply isn’t effective at easing pain.
You should know that you are not required to accommodate medical marijuana growers who legally grow crops under the state’s medical marijuana program for the use of other patients.
In summary, be sure you’re getting advice from appropriate sources for specific issues. For non-approved use of marijuana (ie: notmedical marijuana; AKA illegal drug use) contact your local lawenforcement agency. For questions about your state’s medicalmarijuana program, contact the Dept. of Human Services in Oregon (
http://www.oregon.gov/DHS/ph/ommp/) or Washington’s State Dept. of Health (
http://www.doh.wa.gov/hsqa/medical-marijuana/). For additional information on medical marijuana from a fair housing-perspective visit
www.FHCrg/breaking_news.htm and search for “marijuana” to find a Dept. of Justice memo on the subject. You may also want to check out
www.FHCrg/disability.htm. For any fair housing-relatedquestions, contact our Fair Housing Hotline (800/424-3247 Ext. 2) or an attorney well versed in these federal, state, and local laws.
As we’ve said many times, we pride ourselves on the strong working relationships we have with housing providers and their tradeassociations across our service area. We strive to be a resource to you. You’ll find a great deal of additional information just for housing providers at
www.FHCrg/hs_provider_info.htm.
plausible deniability is something I used to protect certain family members during the Bush administration. In the hypothetical case the plants were grown in a "stealth closet" so to speak despite being licensed and acting in accordance with the laws of the state I was afraid if I ever had a federal issue the hypothetical family members I may have been renting a house from at the time would be liable. Therefore plausible deniability was maintained, to protect the actual property owners.
