Medical Marijuana & Fair Housing Update as of March 1, 2011

As many know, the hot issue of the impact of the new medical marijuana law in Arizona has many confused as to how they should proceed with their tenants and employees. As of March 1, 2011, Arizona is still working on putting together guidelines to enact this new law.

The new Arizona Law is located at Title 36, Chapter 28.1 et seq. This statute describes the restrictions for the legal use of medical marijuana. Interestingly, §36-2802 does not authorize the user to smoke marijuana on any form of public transportation, on a school bus or grounds of any preschool/primary/secondary school, in any public place, or operating any vehicle or boat while under the influence of marijuana. Both employers and landlords are impacted by these new rules. The law states in §36-2813 that no landlord shall refuse to lease to or otherwise penalize a person solely for his status as a cardholder. That does not mean that the landlord may not evict a person who uses medical marijuana on the premises, however. §36-2814 specifically states that this new law does not require any establishment to allow a client or guest to use medical marijuana on that property.

One of the real issues is that marijuana is still a Schedule 1 substance under the Controlled Substances Act (CSA). See U.S.C. § 801 et seq. It rare that a state law is passed that is in direct contradiction of a federal law. In the event that it occurs however, federal law is controlling. Because there are a number of states with medical marijuana laws, the Office of Fair Housing and Equal Opportunity (FHEO) requested an opinion from the US Department of Housing and Urban Development as to whether federally assisted housing programs may permit the use of medical marijuana as a reasonable accommodation.

On January 20, 2011, the U.S. Department of Housing and Urban Development issued a Memorandum on the Subject of Medical Use of Marijuana and Reasonable Accommodation in Federal and Public Housing. The Memorandum details the history of federal Controlled Substances Act, the numerous states that previously enacted medical marijuana laws, the Quality Housing and Work Responsibility Act, the Americans with Disabilities Act (ADA) and the Fair Housing Act. The analysis was exhaustive, enough to bore almost everyone who loves to read legal opinions, so it is a fair guess that a lay person’s eyes would glaze over after the first three or four pages. However, a part of the analysis is very important to fully understand what the Memorandum stands for and how it affects rental housing in Arizona, even though the Memorandum only specifically addresses medical marijuana in public and government subsidized housing.

DO LANDLORDS HAVE TO PERMIT MEDICAL MARIJUANA USE ON THEIR PROPERTIES?:

The Fair Housing Act, Section 504 of the Rehabilitation Act (Section 504), and Title 11 of the ADA prohibit discrimination against persons with disabilities in public housing and other federally assisted housing. 1 This memo discusses whether a medical marijuana user falls within the definition of “disability” or “handicap” as defined by the Act and whether an accommodation permitting the use of medical marijuana is reasonable.

The Memorandum determines that “under Section 504 and the ADA, current illegal drug users, including medical marijuana users, are excluded from the definition of ‘individual with a disability’ when the provider acts on the basis of drug use.” This means that if the sole condition for which the person claims they are disabled is the use of the medical marijuana, this person does not meet the definition of “handicapped” but the person is not disqualified from the definition if they have some other condition that would otherwise apply.

In the final analysis, it appears that the U.S. Department of Housing and Urban Development have unequivocally determined that at least as to federally funded housing, a landlord can refuse to permit the use of medical marijuana and other medical marijuana –related conduct. The Memorandum states that the federal laws preempt state law so it will be interesting to see how Arizona lawmakers and other governmental entities decide how to apply this new law to housing in Arizona.
One of the tests under the Fair Housing Act is whether an accommodation is “reasonable”. The definition of “unreasonable” is if the granting of the accommodation would require a fundamental alteration in the nature of the housing provider’s operations or if the requested accommodation imposes an undue financial and administrative burden of the housing provider. The Memorandum goes further and states that even though “otherwise disabled medical marijuana users are not excluded from the Fair Housing Act’s definition of “handicap”, accommodations allowing for the use of medical marijuana in public housing or other federally assisted housing are not reasonable.”

BOTTOM LINE:

In the final analysis, it appears that the U.S. Department of Housing and Urban Development has unequivocally determined that at least as to federally funded housing, a landlord can refuse to permit the use of medical marijuana and other medical marijuana –related conduct.

This does not mean that the landlord must evict a tenant if they or their guest use medical marijuana is compliance with state law. There has been a suggestion that if the landlord agrees to grant a “reasonable accommodation request” by a tenant for the use of medical marijuana, the landlord must put in place specific standards for determining when the request would be granted. The landlord may put in place an interactive process once a request is made that would look at the various factors involved in individual cases such as: the physical condition of the medical marijuana user, the extent to which the medical marijuana user has other housing alternatives (if evicted or if any public assistance would be terminated), the extent to which the landlord would benefit from enforcing lease provisions that prohibit illegal use of controlled substances, and whether there is an alternative accommodation that would effectively address the requester’s disability-related needs without a fundamental alteration to the landlord’s operations and without imposing an undue financial and administrative burden to the landlord. An example of the above would be to permit the non-smoking use of medical marijuana (ie: ingested forms of marijuana).

Each property owner must make a decision on whether they will permit medical marijuana use on their property but looking at the pros and cons of the legal issues involved.

If the property owner decides to not permit the use of medical marijuana on their property, it is suggested that they immediately issue the attached notice to all residents to inform them that they will enforce the Crime Free Addendum in full, including any use of marijuana. This issue was actually raised by a judge who was concerned that many Arizona residents may reasonably believe that their actions are legal if they follow the new Arizona restrictions and get a card issued by the state. Clearly sending out this notice to all residents before the rules restricting the application of the law will help eliminate that defense in an immediate eviction action. Make sure you keep a copy for your records so you can produce it for trial if necessary.

It will be interesting to see how Arizona lawmakers and other governmental entities decide how to apply this new law to housing in Arizona. If you have any additional questions or concerns, speak to an attorney.

42 U.S.C. § 3604(f)(1)-(3), 29 U.S.C. § 794(a), 42 U.S.C. §12132.



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October 2012
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Fair Housing and Reasonable Accommodations
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November 2011
August 2011
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Legislative Update as of April 20, 2011
Medical Marijuana & Fair Housing Update as of March 1, 2011
The Red Flags Rule
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