The U.S. Drug Enforcement Agency (DEA) classifies marijuana as a Schedule I Controlled Substance, which recognizes no medical use. In January 2011, the U.S. Department of Housing and Urban Development (HUD) issued an often-cited memorandum entitled “Medical Use of Marijuana and Reasonable Accommodation in Federal Public and Assisted Housing.”

The 2011 HUD Memorandum
The 2011 memorandum was meant to address the significant increase in the number of inquiries HUD had received from residents of states where medical marijuana was legal as to whether an exception could be made allowing residents to violate federal drug-free policies and use medical marijuana in HUD-assisted properties as a reasonable accommodation for their disabilities. The memorandum clearly stated that no such exceptions would be made. It cited and reaffirmed HUD’s 1999 memorandum, which said that any state law purporting to legalize the use of medical marijuana in public or other assisted housing would conflict with the admission and termination standards found in the Quality Housing and Work and Responsibility Act of 1998 (QHWRA) and be subject to preemption.

The 2011 memorandum further stated that public housing agencies (PHAs) and owners of federally assisted housing may not permit the use of medical marijuana as a reasonable accommodation for residents with disabilities, because (1) people using illegal drugs are disqualified from protection under the disability definition provisions of section 504 of the Rehabilitation Act (Section 504) and the Americans with Disabilities Act (ADA) and (2) such accommodations are not reasonable under the Fair Housing Act (FHA) as they would constitute a fundamental alteration in the nature of a PHA’s or owner’s operations. However, the memorandum also stated that while PHAs or owners may not grant reasonable accommodations for medical marijuana use, they retain the discretion to decide whether or not to evict a resident for using medical marijuana on the premises.

Current State Laws
At the time the January 2011 memorandum was issued, Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington and Washington D.C.  had state laws allowing the use of medical marijuana. Since then, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Minnesota, New Hampshire and New York have passed medical marijuana laws. Currently, medical marijuana legalization laws are pending in seven more states: Florida, Missouri, Nebraska, Pennsylvania, South Carolina, Tennessee and Texas. Colorado and Washington have gone a step further and legalized marijuana use for recreational purposes.

Massachusetts recently was faced with the issue in Figgs v. Boston Housing Authority, 469 Mass. 354 (August 18, 2014). In Figgs, the resident was being evicted for possessing less than one ounce of marijuana (not a crime in Massachusetts under its new law) combined with allowing her live-in boyfriend to sell marijuana and possess a gun on the premises. The lower court stopped her eviction and the termination of her federal housing benefits, but the Massachusetts Supreme Judicial Court reversed, holding that there was more than sufficient evidence of drug dealing in the apartment to warrant eviction based on lease violations and criminal activity. In so holding, the court left the issue open as to whether a tenant can be evicted in Massachusetts for a recreational amount of marijuana or medical marijuana, which is not a crime under state law.

In December 2014, in Forest City Residential Management v. Beasley, 13-14547 (E.D. Mich., December 3, 2014), a Michigan district court determined that the Michigan medical marijuana statute, the Michigan Medical Marijuana Act (MMMA), is preempted by the Controlled Substances Act (CSA). The resident had multiple sclerosis, her doctor had prescribed medical marijuana to alleviate her symptoms and she had a state-issued medical marijuana card. Nevertheless, the court held that the resident was not entitled to a reasonable accommodation for medical marijuana use under the FHA or Section 504 in this federally subsidized property.

Conclusion
Similar cases are working their way through court dockets in other states. Property managers must tread carefully on this topic because, while HUD’s position on the use of medical marijuana in publicly assisted housing is clear, it is being increasingly criticized and challenged, and some fair housing court-watchers feel that it is only a matter of time before a court reaches a conclusion different than that in Forest City. Additionally, while property managers may be in the right by refusing to accommodate a medical marijuana user in terms of compliance with the FHA, the ADA or Section 504, they may run afoul of states’ antidiscrimination laws. Therefore, it is crucial that apartment owners and managers investigate the fair housing and civil rights laws in the states where their properties are located.