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

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Phil Querin


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?"




Answer.While Oregon permits the medical use of marijuana, the Federal Controlled Substances Act, 21 U.S.C. _ 801, et seq., says just the opposite; i.e. that it is illegal to manufacture, distribute, and possess marijuana, even when state law authorizes it. Furthermore, federal law supersedesstate law where there is a direct conflict between them. So, the bottom line is that since you have a "No-Marijuana" policy, you do not need to make a "reasonable accommodation";[1]anyuse of marijuana, medical or otherwise, is illegal under federal law, regardless of Oregon law.


In 2013, Attorney General Holder statedthat, subject to certain exceptions,[2]there will be no effort by the U.S. 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 are legal - as in Oregon.



And in the 2010 case of Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, the Oregon Supreme Court held that employers donothave 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, both from an employment and housing perspective. Interestingly, today, a website search on the Oregon Fair Housing Council's websitefor any information or discussion about landlords making "reasonable accommodations" for medical marijuana users, reveals not a single word. That was not the case a few years ago. It appears that in Oregon, the Council is, for now, conceding the issue, and adopting the Fed's handoff policy.



However, in a January 4, 2018 memo, Attorney General Sessions was far less forgiving about marijuana use. While before it was more "don't ask, don't tell", today that is not the case. The memo stated, in part:



In deciding which marijuana activities to prosecute under these laws with the Department's finite resources,prosecutors should follow the well-established principles that govern all federal prosecutions.Attorney General Benjamin Civilettioriginally set forth these principles in 1980, and they have been refined overtime, as reflected in chapter 9-27.000 ofthe U.S. Attorneys' Manual. These principles require federalprosecutors deciding which cases to prosecuteto weigh all relevant considerations, includingfederal law enforcement priorities set by the Attorney General,the seriousness of the crime, the deterrent effect of criminal prosecution,and the cumulative impactof particular crimes on the community.



This means that today, in Oregon, landlords have it within their control, with little fear of a fair housing/reasonable accommodation claims, to enact rules and regulations prohibiting the on-premises use of recreational or medical marijuana. (However, enacting such a policy today should not be applied retroactively to existing tenants holding legal medical marijuana cards.)


So if you accept this applicant as a tenant, he or she must adhere to your policyor risk eviction. You do not want to grant him an exception, as that precedent will dilute the future enforcement of your policy.[3]


[1]The Americans with Disabilities Act or "ADA"states: "An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered." The Fair Housing Act follows this definition as well.

[2]The exceptions are: 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. (See link here.)

[3]Note, however, President Trump has recently stated he would probably support a federal law deferring to the states. (See link here.)

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