Reasonable Accommodation

Phil Querin Q&A: Medical Marijuana And Reasonable Accommodations Laws In Oregon

 

Question. We have an applicant applying for residency that has an Oregon Medical Marijuana Card, He has requested that he grow marijuana for his use and is asking for a reasonable accommodation to grow since our rules do not allow pot to be grown on the space.  Does this qualify for a reasonable accommodation?  If we make a reasonable accommodation is he still required to grow only the limited number of plants outlined in the ORS?  Or can he grow as many as he wants?  Can we require that the plants be grown in the back of the space?”

 

 

Phil Querin Q&A: Temporary Occupant and Fair Housing Accommodation

 

Question:  A tenant has asked for her daughter to be on a temporary occupant agreement.  The tenant has recently been in the hospital and has returned home.  She has not said she needs a caregiver at this point in time.  The daughter is 40 years old and has three large dogs.   She has applied to be a temporary occupant and has said that she will bring her dogs and if the park says ‘no’ she will get her attorney.  Does the temporary occupant have rights? The park has a small dog policy - her dogs are clearly in violation. At this point there has been no mention of disability or request for reasonable accommodation.  What are the landlord’s rights?  We suspect that the tenant will eventually say she needs at caregiver and hence the need for her daughter.  At that point, once she has said “disability” or “caregiver” what are the landlord’s rights? Can he say no to the daughter in both circumstances or only in first before the word “disability” or “caregiver” is mentioned?

 

 

 

Phil Querin Q&A - ADA and Reasonable Accommodation in a Manufactured Home Community

 

Question No. 1.  Our community recently had a rule that permitted street parking from 7:00 AM to 10:00 PM). The rule was changed and now prohibits any street parking at any time.  The reason for the new rule was due to the narrowness of the streets which prevented emergency vehicles clear access.  The rule change passed with no objections. Since the adoption of the new rule we have had a handful of residents and their guests who refuse to follow the new policy and a few residents who have hinted that they need a reasonable accommodation. 

The first reasonable accommodation request is from a resident who says it “inconvenient” for herself and her caretaker(s) to shuffle cars in the driveway.  The driveway accommodates two vehicles.  The resident has one car and the caretakers and they must park end-to-end.  Since the caretakers alternate shifts, there are only two vehicles in the driveway at the same time. 

One caretakers seems to abide by the rules but the other will not.  The caretaker who refuses to follow the rule says she is handicapped and has a handicap parking permit. She says we must allow her to park on the street.  Are we required to provide on-street parking spot for a nonresident, handicapped or not?  If there are two spots available in the resident’s driveway can they refuse to park in the driveway just because they don’t want to move vehicles and say that’s a reasonable accommodation?

Question No. 2. The other potential request for an accommodation is from a resident who only has room for one vehicle in her driveway because she installed a handicap ramp that took away her second parking spot.  The resident parks in the driveway and the caretaker parks on the street in front of the house because it is more “convenient” than using the guest parking which is a little walk away. 

If this resident requests a reasonable accommodation for her caretaker or herself to park on the street do we have to designate another street parking spot? 

It seems like both these requests are for the benefit of the caretakers not the residents. Do we have to accommodate the non-resident caretakers, handicapped or not, because it’s requested?    

 

Mark Busch RV Q&A: Landlord Christmas Story

Question:  We have an RV park with quite a few long-term tenants.  Our problem tenant (“Kris”) has been here for for what seems like ages.  This time every year around the holidays, Kris has a whole group of elves stay with him for a couple of months and they never register as guests.  He claims he needs a “reasonable accommodation” for them because he has a bad back and they help him do a lot of lifting.  He also brings in a herd of reindeer (Kris doesn’t have a pet agreement), and he parks a red sleigh on the street (where parking isn’t allowed).  What can we do?

 

 

Phil Querin Q&A: Dealing With medical Marijuana Use in a Community

Question. We have a resident who has a legal medical marijuana card and is growing plants in a greenhouse in his backyard.  The manager contacted the police who have been very helpful in resolving other drug issues in the community.  The police did talk with the resident, inspected his medical marijuana card and his grow operation.  Essentially the police said that the resident is legal both with his card and his grow and that there was no help they could give.  Other than a violation of federal law, we have no provision specifically addressing marijuana use or cultivation.  Even though it still violates federal law, I’m thinking that were we to file an eviction on that basis, a judge would not likely rule in our favor.  In addition, the resident’s Rental Agreement originated in 2008, so it does not have the wording regarding marijuana that the current MCHO Rental Agreement has. What are your thoughts and is there any recourse to address this issue?

Answer.   Based upon recent news reports, it appears that, subject to certain exceptions,[1] there will be no effort by the federal Department of Justice to seek out and charge violators of the Controlled Substances Act in those states where the medical or recreational use of marijuana is legal.

 

Thus, it appears that when it comes to enforcement of park rules and regulations, Oregon landlords are on their own; neither the feds, nor the state, will go after persons with lawfully issued medical marijuana cards. Furthermore, if a tenant has a valid card, then arguably he or she has some medical condition that has authorized its issuance. Is the landlord obligated under the Fair Housing laws to make a “reasonable accommodation” for their medical condition, and permit the tenant to continue their use or grow operation?   If properly done, the answer is likely “No.” Here’s why:[2]

 

In January 20, 2011, the U.S. Department of Housing and Urban Development (“HUD”) issued a Memorandum, the subject of which was “Medical Use of Marijuana and Reasonable Accommodation in Federal Public and Assisted Housing.” While the Memo was limited to federal public and assisted housing, it can be regarded as a helpful – though perhaps not a “final” resource – on the issue.[3]  It is very complete and helpful for all landlords. It can be found at this link. Here is what the Memo directs:

 

Public housing agencies “…in states that have enacted laws legalizing the use of medical marijuana must therefore establish a standard and adopt written policy regarding whether or not to allow continued occupancy or assistance for residents who are medical marijuana users.  The decision of whether or not to allow continued occupancy or assistance to medical marijuana users is the responsibility of PHAs, not of the Department.”

 

Thus, HUD appears to be leaving it up to the state public housing authorities to decide whether the refusal to permit on-premises use of medical marijuana constitutes a fair housing violation. Between the lines, it appears that HUD will not directly investigate such claims, leaving it up to public housing agencies on the state level. 

 

While HUD’s pronouncement is directed toward “public housing” is would be hard to believe private housing would be treated any differently.  Oregon fair housing law is "substantially equivalent" to federal fair housing law.  So, generally speaking, on the issue of medical marijuana, as goes the federal law, so goes state law. 

 

However, in the 2010 case of Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, the Oregon Supreme Court held that employers do not have a legal duty to allow employees to use medical marijuana on the job.  This case addressed many unanswered questions on the use of medical marijuana in Oregon from an employment perspective. In a subsequent article [found here] by the Fair Housing Council of Oregon it appears that the rationale of the Emerald Steel Fabricators case is helpful for landlords declining to admit new residents with medical marijuana cards – so long as they have an existing policy against the use and cultivation of marijuana in the community.

 

Thus, it appears that in Oregon, on both the federal and state levels, enforcement agencies are taking a laissez-faire approach to the medical marijuana issue. This means that landlords have it within their control, with little fear of fair housing/reasonable accommodation claims, to enact rules and regulations prohibiting the on-premises medical or recreational use of marijuana.

However, I do not believe the proscription should be retroactive to tenants holding legal medical marijuana cards who have already signed their rental agreements or leases.  Like you, I believe that a court would not be favorable to your situation. 

It appears that your resident’s medical marijuana card is in order. It must valid and current for Oregon.  A California card, for example, would not suffice.  [See, State v. Berrenger, 2010].

 

Conclusion. Yours is a difficult situation. For existing tenants I believe you can legally institute a “no marijuana” policy against recreational and medical use. However, making it retroactive as to persons already holding medical marijuana cards, would be a difficult proposition, since they did not bargain for that when they became residents or when they received their card.

 

In some instances, and this may not be one, I have seen situations where the resident, under the guise of holding a medical marijuana card, is also selling the drug illegally to others.  This situation is most apparent when there are late night visits by unknown persons for short periods of time.  If this situation presents itself, and neighbors complain, you may have recourse by issuing a 30-day curable notice of termination for violating ORS 90.740(4)(j) for disturbing the neighbors’ peaceful enjoyment. You do not have to raise the marijuana use, just the noise and disruption. Upon a second similar violation within six months of the date of issuance of the first notice, you can issue a 20-day noncurable notice.  

 


[1] The exceptions are: The distribution of marijuana to minors; Directing revenue from marijuana sales to gangs and cartels; Diverting marijuana from states where it is legal to other states where there are no laws allowing for marijuana use; Using legal sales as cover for trafficking operations; Using violence and or firearms in marijuana cultivation and distribution; Driving under the influence of marijuana; Growing marijuana on public lands; Possessing marijuana or using on federal property.

[2]Note: This answer is not intended to constitute legal advice.  Readers should consult their own legal counsel to determine how to proceed in these cases, as the correct outcome depends upon the specific facts of each situation.

[3] Note that Oregon has its own set of fair housing laws.

Phil Querin Q&A - Confused as to the distinction “service animals” and “companion animals.” Are we, as landlords, required to make a “reasonable accommodation,” by allowing all of them?

Question. As a follow-up to your prior Q&A about assistance animals, I’m confused as to the distinction between them, “service animals” and “companion animals.” Are we, as landlords, required to make a “reasonable accommodation,” by allowing all of them?  My understanding is that such animals cannot be counted as “pets” in regard to number, size, breed, or anything else as it relates to park Rules and Regulations. The exception being for animals that cause disturbance, injury, or is threating.  Please clarify.

Americans With Disabilities Claims (ADA) - Is There a Target on Your Back?

On July 26, 1990, President Bush signed into law the Americans with Disabilities Act ("ADA"), The Americans with Disabilities Act Accessibility Guidelines (the “1991 Regulations") were shortly thereafter developed to guide new construction and alterations undertaken by covered entities and established the minimum requirements for "accessibility" for disabled persons in buildings and facilities and in transportation vehicles. After more than twenty years, the Department of Justice implemented new regulations, which became mandatory in 2012 (the “2012 Regulations.”) Your state may have passed parallel laws, which could increase the protection of individuals with disabilities, e.g., the Unruh Act in California. However, this article focuses on Federal ADA compliance. Keep in mind that the ADA is a civil rights law, which addresses a number of subjects, but this article focuses on ac- cessibility (no longer called “handicap”) issues only.