Responding to reasonable accommodation and modification requests are topics that I regularly write about. As apartment owners and management companies, we have to always be ready to engage in the interactive process with our residents (and applicants). Reasonable accommodation and modification requests can come in all different shapes and sizes.
What should management do when we receive a reasonable accommodation request pursuant to the anti discrimination laws for the use of medical marijuana? Good question.
Earlier this year HUD’s General Counsel — reaffirming guidance first issued back in 1999 — concluded that both federal and state anti discrimination laws do not require management to grant a reasonable accommodation requests by current or prospective residents with disabilities to use medical marijuana. Specifically, HUD found that owners may not permit the use of medical marijuana as a reasonable accommodation because: (a) persons who are currently using illegal drugs (which include medical marijuana) are disqualified from protection under the definition of disability in the law; and (b) such a proposed accommodation is not reasonable under the Fair Housing Act because it would constitute a fundamental alteration in the nature of the property’s operation.
On a related note, while management may not grant a reasonable accommodation request for medical marijuana, HUD found that owners still maintain the discretion either to evict or not to evict residents who engage in the use of marijuana. I would argue, however, that management would not knowingly want to have drug users in our properties.
Just a Thought.