Answer: Your park is private property and you may legally prohibit the use of all marijuana based on federal law, which still makes marijuana illegal. In addition, Oregon’s new marijuana law (Measure 91) specifically includes a provision prohibiting its application to any state or federal law pertaining to landlord-tenant matters.
This means that because marijuana production or use is illegal under federal law, landlords may continue to prohibit it on rented premises. The Oregon Supreme Court has held that since marijuana remains illegal under the federal Controlled Substances Act, that Act preempts Oregon’s Medical Marijuana Act with regard to both employment practices and housing discrimination claims under state law.
The same reasoning would apply to Measure 91 – marijuana is illegal under federal law. Therefore, tenants would not have any cause of action for “discrimination” claims under state law, nor under federal law (since landlords do not have to “reasonably accommodate” illegal activity under the Fair Housing Act). Unless federal law changes, Oregon’s Bureau of Labor and Industries (BOLI) will also undoubtedly adhere to its position that it will not investigate any housing claims of discrimination pertaining to the use of marijuana.
As a practical matter, you may therefore implement and enforce a park rule that prohibits growing, producing or using marijuana anywhere on park property. You should also include this prohibition in your rental agreements.
There are several caveats to mention:
- Consult with a knowledgeable attorney if you are implementing a new rule to ensure that you follow the proper legal steps to make it enforceable.
- Do not deny a tenancy application solely because the applicant has a medical marijuana card (which could lead to a discrimination claim). However, even with a medical marijuana card, you can still prohibit the use of marijuana in the park by anyone, including the applicant.
- It is still possible that an aggressive tenant with an aggressive attorney could sue the park for discrimination (i.e., anyone can sue anyone), but their case would not likely succeed based on current law.
As always, talk to an attorney concerning your specific park issues.