Smokable Medical Marijuana: MUM's the Word from Florida Courts

Magazine ,

by Ryan McCain

Partner, Barfield McCain PA


Some five years after the Florida Legislature passed the state’s first medical marijuana law, questions abound within the multifamily industry and elsewhere.

     The first law, enacted in 2014, was the “Medical Use of Marijuana” or “MUM” law, codified as Florida Statute 381.986. Its latest amendments, effective March 18, expressly permit smokable medical marijuana. Meanwhile, during the 2016 General Election, voters passed a constitutional amendment concerning the right to possess or use marijuana for medical purposes. Following the debut of these fairly recent Florida laws allowing the use of marijuana for medical purposes under certain legally and medically regulated circumstances, a number of truly new and different issues have emerged within the residential rental apartment property management industry — and thus within the area of residential landlord-tenant law — respecting how to respond to and deal with tenants possessing or smoking medical marijuana within apartment communities.

     Federal law still prohibits possessing or consuming marijuana in any form. This would seem not only to make possession or use of smokable marijuana illegal, but also to prohibit the use of any marijuana product (whether or not medically prescribed as now allowed under Florida law), in any form (including vapors, capsules or patches). Moreover, under the federal Quality Housing and Work Responsibility Act of 1998 (“QHWRA”), HUD-assisted housing providers are required to deny admission to, or even evict, assisted housing recipients if anyone in their household has been determined to be illegally using a controlled substance. This includes marijuana, since it is classified as a Schedule I drug.


Why it All Seems So New and Different

Because the Florida legislation enacting these laws is new, there is little case precedent. Indeed, Florida courts have yet to issue opinions construing MUM, other than the following instances:

  • Holding that medical necessity may be a defense to criminal drug charges.
  • Upholding the validity of a petition for a state constitutional amendment on medical marijuana-use for persons with certain medical conditions.
  • Holding that the constitutional amendment did not permit individuals to grow, cultivate or process marijuana for personal medical use.

   As a result, property managers increasingly find themselves confused concerning the rights and responsibilities of their property, the medical marijuana patient, and other tenants’ rights — particularly in light of the fact that so many standard apartment leases or their addenda contain drug-free policies, smoke-free provisions, or both.

     Therefore, questions arise whether there may be some circumstances in which tenants must be permitted to smoke medically prescribed marijuana within an apartment community; whether an apartment community’s management possesses any discretion as to whether or not to allow it; and whether smoking medical marijuana may be grounds for a notice to cure or terminate a lease.


Federal Law is the Highest

While the federal Controlled Substances Act lists marijuana as a Schedule I drug (meaning the substance is federally prohibited in almost all circumstances), Florida’s state medical marijuana law permits the use of medical marijuana for certain medically approved conditions. This difference creates a conflict between Florida and federal laws as they pertain to the use of medically prescribed marijuana in numerous contexts — including within apartment communities.

     Our system of government, known as federalism, combines an overall federal government with separate state governments, all within a single political system. While federal law is supreme, states have a right to make their own laws that do not conflict with the federal code or constitution. Article VI, Paragraph 2 of the United States Constitution, known as the Supremacy Clause, provides that the federal constitution and laws take precedence over any state law or constitution. It does not, however, allow the federal government to veto state laws before state laws take effect. After a state law takes effect, federal courts have power to find the state law violates the federal code or constitution, but that has not happened in the case of Florida’s medical marijuana law.


The Landlord’s Argument Smoking Medical Marijuana is Not a Reasonable Accommodation

In the context of medically prescribed marijuana use within an apartment community, landlords in jurisdictions outside of Florida have asserted it is not a reasonable accommodation to require a landlord to violate federal law by allowing a tenant to engage in conduct that is legal under state law. Thus, landlords should be free to prohibit the use or possession of marijuana as part of their smoke-free policies, even where medical marijuana use is allowed under state law. Landlords may, on the other hand, voluntarily allow medical marijuana use in Florida, where it is legal.

     The foregoing is not, however, the end of the story. Entering stage-left are the disability (also called “handicap”) provisions of the Fair Housing Act. The Fair Housing Act defines as “handicapped” or “disabled” a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of having such an impairment, or has been regarded as having such an impairment. The act makes it unlawful for a housing provider to discriminate against such a person by refusing to make “reasonable accommodations” in rules, policies, practices, or services, when such accommodations may be necessary to afford such a person equal opportunity to both use and enjoy a dwelling. Notably, an accommodation is “reasonable” only if it does not cause or create an “undue burden.” When a disability is not obvious, a housing provider may ask for information necessary to show the person meets act’s definition of disability, which states a needed accommodation, and which shows the relationship between that person’s disability and the need for the requested accommodation. In the context of medically prescribed marijuana, the Fair Housing Act allows a housing provider that elects to allow medical marijuana use to require a copy of the tenant’s medical marijuana use card.

     Whereas an apartment community might voluntarily elect to allow the use of medically prescribed marijuana, landlords in other jurisdictions have asserted they should not be required to approve a violation of federal law by doing so. Their contention is that the accommodation would not be a “reasonable” one, since it would place an “undue burden” upon the landlord by forcing him or her to condone the violation of federal law. In addition, marijuana smoke, like tobacco or any other smoke, has a strong and distinctive odor that disturbs and offends others. This odor directly results in neighboring residents complaining to the landlord and even demanding to vacate the property early before their lease expires. In addition, it can discourage prospective residents from leasing at a property where they observe marijuana smoking.


Afterword on Whether the Controlled Substances Act Preempts (Supersedes) MUM

While case law from other jurisdictions, construing other states’ medical marijuana laws, is not binding in Florida, the cases are at least worth noting as rough possible outcomes. Some examples:

  • An Alabama federal court held, “Congress expressly disclaimed in the Controlled Substances Act any intention to preempt state law completely.” The Controlled Substances Act did not preempt state medical marijuana law, and the defendant was not entitled to reasonable accommodation under the Fair Housing Act.
  • A federal judge in Connecticut ruled that the Controlled Substances Act did not preempt state law prohibiting employers from discriminating against authorized persons who use medicinal marijuana.
  • In Washington State, a federal judge ruled that, because there was no duty to reasonably accommodate tenant's medical marijuana-use under the Fair Housing Act, Americans with Disabilities Act, or Rehabilitation Act, the tenant evicted for drug use was not entitled to assert the medical necessity defense in action alleging failure to accommodate.

These and other medical marijuana issues are expected to unfold in Florida courts over the coming years, and FAA and its membership should continue to stay updated and educated on this issue as much as possible.

This article is for informational purposes only and should not be construed as legal advice. For guidance regarding specific situations, please contact your own attorney.