Medical Marijuana: A Fair Housing Accommodation???

Disabled residents are entitled to make reasonable accommodation requests. The firm sees the full gambit of requests. Just when we think we have seen them all, residents make new and different requests.  One request made with increasing frequency is the request to smoke marijuana.  Specifically, a disabled resident informs the property that he has a Colorado pot card and thus is legally allowed to smoke pot, and therefore wants an exception to the community’s drug free policy.  Is a resident’s request to smoke marijuana a valid reasonable accommodation request?  In the final analysis, no.  However, because Colorado law conflicts with Federal law, the answer is not a simple one.

Under both Colorado and Federal law, disabled applicants and residents are entitled to make reasonable accommodation requests. The Colorado Fair Housing Act (“CFHA”) makes it unlawful for a landlord to refuse to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.  The Federal Fair Housing Act (“FFHA”) contains nearly duplicate language.

In evaluating reasonable accommodation requests both under Colorado and Federal law, the same analysis applies.  First and always, is the resident disabled within the meaning of the Fair Housing laws? Second, is the requested accommodation necessary for the disabled resident to use and enjoy the community on an equal basis as a non-disabled resident?  Third, is the requested accommodation reasonable?  Fourth, does the requested accommodation result in an undue financial or administrative burden on the community, or will the request result in a fundamental alteration of the community’s services or programs?

Under Federal law, disabled residents are not entitled to smoke pot as a reasonable accommodation (an exception) to the community’s drug free policies or other lease provisions.  The analysis is straightforward.  Remember, to be entitled to a reasonable accommodation under Federal law, the resident must be disabled.  Under Federal law, handicap means a physical or mental impairment which substantially limits one or more major life activities;  a record of such an impairment;  or being regarded as having such an impairment.  However, Federal regulations specifically state that the definition of handicap does not include current, illegal use of or addiction to a controlled substance.

Under Federal law, marijuana is defined as a Schedule I controlled substance under the Federal Controlled Substance Act (“CSA ”).  Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment.  Thus, any use or possession of marijuana is illegal under Federal law.  As discussed below, many states, including Colorado, have adopted medical marijuana laws.  However, Federal law contains no exceptions, making the possession or use of marijuana illegal under Federal law.  Further, the United States Supreme Court has specifically held that the CSA which criminalizes the manufacture, distribution, or possession of marijuana was not overridden by the State of California’s Compassionate Use Act (“CCA” ) which authorized the limited use of marijuana for medical purposes.

Under Colorado law, disabled residents can make at least a legally viable argument that they should be allowed to smoke pot as a reasonable accommodation. Colorado law similarly defines handicap for Fair Housing purposes.  However, Colorado does not exclude illegal drug use from the definition of handicap.  Colorado only excludes from the definition of mental impairment persons currently involved in the illegal use of or addiction to a controlled substance.  Regardless, under Colorado law, certain individuals are legally allowed to smoke pot.

Colorado is one of nearly a dozen States that currently have a State statute authorizing the use of medical marijuana.  In addition, in 2005, the City of Denver legalized the possession of less than one ounce of marijuana.   In 2000, the Colorado Constitution was amended to allow medical use of marijuana for individuals suffering from debilitating medical conditions.  The Colorado Constitution specifically authorizes the use of marijuana to alleviate certain debilitating medical conditions: cancer, glaucoma, HIV/AIDS positive, cachexia; severe pain; severe nausea; seizures, including those that are characteristic of epilepsy; or persistent muscle spasms, including those that are characteristic of multiple sclerosis.  Id. at 1(a).   To legally use and possess medical marijuana, an individual must obtain a Registry identification card from the Colorado Department of Public Health and Environment (“CDPHE”).

Because of the conflict between Federal and Colorado law on the illegality of marijuana, there is no definitive legal answer whether you must grant a resident’s reasonable accommodation request to smoke pot.  While you may clearly deny the request under Federal law, a disabled resident may argue that medical use should be allowed as a disability accommodation because it is legal under Colorado law.  No Colorado court has addressed the medical marijuana in a Fair Housing context.  The Colorado Constitution also fails to address Fair Housing issues as they relate to the use of medial marijuana.  However, the Colorado Constitution does specifically address accommodation issues within the employment arena by stating, “nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.”

You can safely deny any resident’s request to smoke pot as a reasonable accommodation if the resident fails to produce a valid registration card. Without a registry identification card issued by the CDPHE, any use of “medical marijuana” is considered illegal under Colorado law.  In regard to the limited exception to this rule, i.e. the Denver ordinance permitting possession of less than one ounce, the Denver District Attorney’s office has stated they will continue to enforce State law.

Even though there is no definitive legal answer because of the conflict between Federal and Colorado law, the much stronger and better reasoned legal position is that you may deny a resident’s reasonable accommodation request to smoke pot. Federal law enforcement agencies can clearly punish Colorado residents under Federal law for medical use or cultivation that would otherwise be legal under state or local law.  Because Federal law makes possession or use of marijuana illegal, you cannot be expected to allow the violation of Federal law on a rental property as a “reasonable accommodation” for a disabled tenant even if such an accommodation is required by state law. 

Courts deciding employment cases involving similar medical marijuana issues have supported this reasoning.  Because the possession and use of marijuana is illegal under Federal law, a court has no legitimate authority to require an employer to accommodate an employee’s use of marijuana, even if it is for medical purposes and thus legal under state law.  The Americans with Disabilities Act requires only reasonable accommodation for an employee’s disability and it is not reasonable to require an employer to accommodate a disability by allowing an employee’s drug use when such use is illegal.  Federal law making marijuana illegal preempts a person’s claim that his employer must accommodate his medical use of marijuana. State law cannot require what Federal law prohibits; when the two laws conflict, Federal law controls.

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