Each year it seems that a growing number of states approve the use of medical marijuana (and/or loosen restrictions on the use of marijuana more generally). To that end, professional apartment management will likely receive (if you have not already) a reasonable accommodation request seeking to smoke marijuana at your property. What if your property is smoke free? What if you are concerned about the use of marijuana around children or others who find marijuana smoke offensive? How do you balance the rights of all? Here are some thoughts:
Despite changes in many state and local laws, the federal Controlled Substance Act (“CSA”) continues to categorize marijuana as a Schedule 1 substance. As such, the manufacture, distribution, or possession of marijuana remains a federal criminal offense. Furthermore, the U.S. Department of Housing and Urban Development (“HUD”) has distributed a memorandum which provides that the use of marijuana for medical purposes violates federal law and that federal and state anti-discrimination laws do not require leasing offices to accommodate requests by current or prospective residents with disabilities to use medical marijuana. Specifically, HUD concluded that management may prohibit 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 FHA because it would constitute a fundamental alteration in the nature of the property’s operation.
In addition to the HUD guidance, a federal district court in Michigan faced with a resident’s request for medical marijuana as a reasonable accommodation because of a disability, concluded that as marijuana is still classified as a controlled substance under federal law, the resident was not entitled to a reasonable accommodation for medical marijuana use under the FHA. In so ruling, the judge reasoned that residents seeking accommodations for medical marijuana are categorically disqualified from relief pursuant to the FHA, Section 504 of the Rehabilitation Act of 1973 and/or the Americans with Disabilities Act as the requested accommodation is not reasonable and would constitute a fundamental alteration in the nature of the housing operation.
While every circumstance can be different, the current state of the law does not require approval of medical marijuana as a reasonable accommodation for a disability.
As always, if you have specific questions about how to apply the laws concerning marijuana at your community, I would suggest you reach out to a lawyer like me.
Just A Thought.