Legal Update: Medical Marijuana

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Recent court rulings about whether a Florida resident can grow marijuana for his medical use have raised questions about potential impacts of medical marijuana laws on apartment owners and managers. Because these laws are relatively recent, there’s insufficient case history to accurately predict what those impacts might be.

In April, a judge in Tallahassee ruled that Joe Redner of Tampa can grow marijuana for personal use, in accord with his physician’s directive to mix freshly ground marijuana into juice to relieve symptoms related to lung cancer. The ruling, which was immediately appealed by the state Department of Health, applies only to Redner. But his attorney, Luke Lirot, has stated that other medical marijuana patients have contacted him in hopes of also growing their own, likely including some apartment residents.

The Florida Apartment Association asked attorney members to share what property management needs to know, in light of that case. Here are two of their responses. (Note: These responses are presented for information only. Apartment managers and owners should consult their own attorneys for specific guidance.)

Property Managers May Look to Federal Law

By Ryan McCain, Partner, Barfield McCain PA

This type of ruling could certainly impact multifamily housing. If the appeals court were to affirm the trial court’s ruling, this will likely result in an increase in residents who are authorized medical marijuana users to request to be permitted to cultivate and grow the actual marijuana plants inside their residential dwelling units as an accommodation request due to disability.

However, I don’t see that this ruling will change or impact the Fair Housing legal analysis that Terry Kitay  outlined in a January NAA Article (See naahq.org/news-publications/how-handle-medical-marijuana-fair-housing), which explains that because marijuana is still considered to be an illegal “Schedule I” drug on the federal level pursuant to the Federal Controlled Substances Act, it would ultimately be a business decision for the multifamily apartment community owner to decide whether or not to permit this conduct.  The multifamily housing landlord would still be within its legal rights to deny the request to cultivate and grow marijuana in the unit since it is still considered to be illegal on a federal level.  As explained in further detail in the article, the use or cultivation of marijuana in multifamily housing is not considered a reasonable accommodation even where marijuana is legal within the state, and the landlord would not appear to be required to accommodate at this time.  We should stay updated on this case and continue to educate as much as possible.

Tenants Right to Medical Marijuana in the Leased Premises

By Kara C. Tanis, Senior Associate Attorney, Kelley & Grant PA

While awaiting a final ruling in this case, here are a few key distinctions property managers and owners should be aware of in the meantime with regard to multifamily housing:

  1. Growing vs. criminal possession — A tenant would be allowed to grow plants for medicinal personal purposes, but not run afoul with Florida criminal code. See F.S. 893.13.
  2. Smoking vs. “patients taking their medicine” — Landlords can still prevent smoking on the premises and require multifamily housing to be smoke-free environments based on the Florida Clean Indoor Air Act but would not be able to prohibit qualified individuals from “taking their medicine” (medicinal marijuana) in other ways, for example, by consuming edibles derived from the plants.

 

A person seeking to grow and use medicinal marijuana on a landlord’s premises would need to present a doctor’s letter identifying the individual as disabled and prescribing the use of medical marijuana as a necessary means to treat a disability. The individual would then need to make a formal request to the landlord for reasonable accommodation for the landlord to bend its ‘no marijuana’ rules, policies or procedures. Accommodating a disability means to make a change in procedures or rules so as to level the playing field for the disabled individual. So, if granting the accommodation would cause a nuisance to other neighbors’ right of quiet enjoyment, then the accommodation would be unreasonable, and thus could be denied. Nevertheless, all methods of resolution should be considered in order to accommodate the person with a disability. In other words, think outside the box of how to accommodate this person.

While the law is far from settled on the application of fair housing law to medicinal marijuana, this analysis takes into account the likely direction of where the law is headed as well as the implications of being on the losing side of a fair housing complaint or lawsuit. Ultimately, a court or administrative law judge might find in favor of a tenant who believed that they were discriminated against by an apartment owner or manager. The result could be an expensive verdict and costly litigation for a landlord.  While the law remains unsettled, landlords and property managers will need to govern themselves cautiously in these uncharted waters.