no-weedMedical marijuana protection is unlikely under California fair housing laws. In Ross v. Ragingwire (2008) 42 Cal. 4th 920, the California Supreme Court held that the FEHA does not protect a fired employee who failed a drug test even though he was also a qualified patient under California’s Compassionate Use Act. The Court held the Compassionate Use Act was primarily to protect persons with a medical need for marijuana from criminal prosecution and not as a broader protection in other contexts.  Furthermore, the court stated that “[n]othing in FEHA precludes an employer from firing, or refusing to hire, a person who uses an illegal drug” even though in this instance the conduct was illegal only under federal law. (Ross v. Ragingwire (2008) 42 Cal. 4th 920.

Further, so long as the shadow of asset forfeiture hangs over a landlord, it would not be a reasonable accommodation for a tenant’s disability to allow onsite marijuana possession and use when that violates federal law and may trigger the possible loss of the landlord’s real property. 

ADA wheelchare marijuanaFederal law states that a user of illegal drugs (under Federal law) will not be considered “an individual with a disability” for the purpose of the law (42 USC section 12210).  The exclusion of the use of medical marijuana, even if in conformity with state law, will not be protected by the ADA.  James v. City of Costa Mesa (9th Cir. 2012) 700 F.3d 394, 397.

The Ninth Circuit has held that “medical marijuana use is not protected by the ADA [ (Americans with Disabilities Act (42 U.S.C. § 12101 et seq.)) ],” because the ADA “defines ‘illegal drug use’ by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs’ medical marijuana use.” (James v. City of Costa Mesa (9th Cir. 2012) 700 F.3d 394, 397.)

This was re-affirmed in the State case, The Kind and Compassionate v. City of Long Beach (2016) 2 Cal.App.5th 116, 121.

Should_Your_Rental_Lease_Have_a_Marijuana_Clause_V4-bannerThe lease must expressly prohibit the tenant from engaging in conduct that violates any law, that includes Federal law.  I suggest delineating, “shall not violate any law, including but not limited to Federal, State, or local laws.  Possessing, cultivating and using marijuana in any form remains a violation of federal law even if the U.S. Department of Justice policy, expressed in the Odgen Memo October 19, 2009 and and revised in the Cole memos, Cole Memo June 29, 2011, Cole Memo August 29, 2013, Cole February 14, 2014, state that the federal government will not make the prosecution of qualified patients or primary caregivers who utilize medical marijuana in conformity with state medical marijuana laws a law enforcement priority.  The Cole 2014 “Bank” Memo is guidance to banks that unless the marijuana business violates law other than the legal sale of marijuana, no Suspicious Activity Report needs to be issued.