marijuana_legal_gavel_620x350Medical and probably soon recreational marijuana is going to be a hot box for landlords and tenants.  Medical marijuana is also NOT a basis nor does it create “civil rights” for residential tenants to smoke in their apartments!!  Health and Safety Code §11362.5 (Compassionate Use Act of 1996 “CUA”) allows medical marijuana to be purchased, possessed and used. There are many levels and issues, but here is a sampler.  This is one confusing, vague, and evolving area of law and how it impacts employers and landlords.  Make sure to check current law both state, national and local (city), as all laws apply.1. No “civil rights” to smoke weed are created under the CUA nor The Medical Marijuana Program Act (MMPA) (Health & S C §§11362.7–11362.83 for residential tenants to smoke marijuana in their apartments, even if the tenants are protected under the CUA or MMPA from criminal prosecution. Civil Code §1947.5 allows residential landlords to prohibit the smoking of tobacco products on the premises by the tenant or guests of the tenant by adding that to the lease. While Civil Code §1947.5 mentions tobacco, there is no state or federal antidiscrimination laws requiring landlords to accept tenants or reasonably accommodate tenants who smoke marijuana for medical purposes. See, Ross v RagingWire Telecommunications, Inc. (2008) 42 C4th 920.

2. Sellers of marijuana even for medical use are not “primary caregivers” under CUA even if their buyers have marijuana cards.  Also, CUA does not supersede laws that prohibit persons from engaging in conduct that endangers others (Health & S C §11362.5(b)(2)) and a court is likely to find a marijuana grower/dealer  is engaged in conduct that endangers others.  Further, no matter what your stoner tenant says, Marijuana smoke is a carcinogenic substance and stinks, e.g. is a nuisance. However, your dope dealer/medicine grower, will look to The Medical Marijuana Program Act (MMPA) (Health & S C §§11362.7–11362.83) which clarifies the scope of the CUA and regulates the cultivation and distribution of medical marijuana for some protection.

3.  Landlords could be charged if they rent to a  medical marijuana dispensary for aiding and abetting the illegal possession, sale, or distribution of a controlled substance under 21 USC §846.  Note, an attorney assisting in the sale or lease of property to be used as a dispensary could also be charged!  The landlord might also be subject to a civil forfeiture of its real property under 21 USC §881(a)(7).

4.  A landlord who knowingly rents property to a user, possessor, or cultivator of medical marijuana runs the risk of (1) criminal prosecution under federal law for aiding and abetting (21 USC §846) or (2) a civil forfeiture of its real property under federal law (21 USC §881(a)(7)) whether or not the tenant-defendant succeeds on the necessity defense. See, e.g., U.S. v Real Property Located at 5300 Lights Creek Lane (9th Cir 2004) 116 Fed Appx 117. Consequently, a landlord may properly refuse to rent property to anyone who poses this risk.

5.  Reasonable Accommodation.

A landlord’s denial of an tenant’s request to smoke (not eat) marijuana prescribed for a disability under the CUA would likely be upheld.  A landlord must make “reasonable accommodations in rules, policies, practices or services” when such accommodations may be necessary to provide a person with a disability “equal opportunity to use and enjoy a dwelling.” 42 USC §3604(f)(3)(B); Govt C §12927; CC §54.1(b)(3)(B).  However,  See James v City of Costa Mesa (9th Cir 2012) 684 F3d 825 (federal antidiscrimination law, which defines illegal drug use by reference to federal (rather than state) law, did not protect plaintiffs’ medical marijuana use). See also Ross v RagingWire Telecommunications, Inc. (2008) 42 C4th 920 (disabled employee was not protected from discrimination on basis of medical marijuana use; unreasonable to require employer to accommodate employee’s drug use).

6.  Eviction (Breach of Lease)

Many city ordinances declare that all medical marijuana dispensaries  are public nuisances per se.  This is permitted due to the “association of criminal elements” with the dispensaries. See City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc., 56 Cal. 4th 729, trial court’s finding that defendant’s MMD constituted nuisance and ruled that local ordinance declaring all MMDs to be public nuisances per se was not preempted by state law decriminalizing use of medical marijuana.

. A landlord may face liability, and potentially even a forced sale of the property, under the Narcotics Nuisance Abatement Act (Health & S C §§11570–11587). Under Health & S C §11570, a nuisance is defined as every building or place “used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance” specified in the Act. A district attorney, county counsel, city attorney, or private citizen may bring an action to abate and perpetually enjoin such a nuisance against both the landlord and the tenant under Health & S C §11571 or an action for damages resulting from the nuisance under CCP §731.

7.  Local Rent Control Laws Still Apply

Review Health & S C §§11573, 11573.5, 11581. Under Health & S C §11571.1, the legislature declared that state law is not preemptive of local ordinances relating to drug abatement and that state law remedies are not intended to prevent a tenant from asserting relief against forfeiture under CCP §1179.

When a local ordinance requires a “just cause” for eviction, there will often be a provision allowing for eviction of tenants who cause “substantial interference” with the enjoyment of the premises by other tenants or the owner. Such interference is similar to or the equivalent of a nuisance. Landlords who have not consented to the nuisance (e.g., in the lease) may find remedies under CC §3479 (which defines “nuisance” to include the illegal sale of controlled substances), CC §§3485–3486 (which allow the landlord or the city attorney to evict a tenant to abate the nuisance caused by the tenant’s “illegal conduct” involving controlled substances), and CCP §1161(4) (which allows an eviction action by the landlord based on the tenant’s (1) “maintaining, committing, or permitting the maintenance or commission of a nuisance” or (2) illegal activities defined in CC §§3485–3486).