*So here’s the deal. The manager of an apartment complex has a tenant, “James,” who smokes marijuana inside his apartment and out on the balcony. He says the other tenants in the complex complain about the marijuana smoke, and this includes the mother of a boy with asthma.
But James says he has a medical marijuana card for chronic pain, and the apartment manager believes him; but this presents a dilemma and he wonders if, under the fair housing laws, he has to let “James” smoke on the balcony and inside his apartment?
According to Dispute Resolution Programs for Project Sentinel, a Bay Area nonprofit, the answer is no. The manager does not have to let James smoke on the balcony or even in his apartment, even though James is disabled and it is legal to smoke marijuana under California law with a medical marijuana card.
Under the federal Fair Housing Act, housing providers are ordinarily obligated to provide reasonable accommodations for tenants with disabilities to ensure that they have the full use and enjoyment of their homes. So one might think that the housing provider in this case might be obliged to allow James to smoke marijuana as a reasonable accommodation, assuming James can show that marijuana is part of the medical treatment for his disability
However, the federal Fair Housing Act reasonable accommodation provisions exclude the current use of a “controlled substance” under federal law from protection.
So, even though medical marijuana is legal under California law, it is not legal under federal law. Because the Fair Housing Act is a federal statute, and it provides the source of the reasonable accommodation right that would entitle James to smoke medical marijuana as a reasonable accommodation, James is out of luck.
The California government has not stepped in to disagree with the federal government on this issue.
But there is an alternative for “James”…He won’t need to be evicted or even banned from using marijuana altogether. The apartment manager can ask him to consider edible marijuana. This way, he would not bother the other tenants and would still get the medical benefits of the drug.
The organization does caution that because this area of law is still somewhat up in the air, it would be best to check in with a private attorney or your local fair housing organization for any updates.