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In the aftermath of the Emerald Steel decision, it is clear that medical marijuana use is not criminal under state law; that is, one will not be arrested if they use it (in compliance with the state’s program restrictions). However, no one (employer or housing provider) has to allow medical marijuana users to use it (at work or in their housing). This is a striking decision that clarifies many of the questions, confusion, and consternation within Oregon’s housing industry. It should be noted that Washington state’s Supreme Court has not issued a decision on its medical marijuana law, so housing providers there may wish to continue accommodating people with disabilities who use medical marijuana and comply with the state’s program rules.
As with all legal matters, a few uncertainties still remain. We hope the following Q&As will provide some assistance in this new environment.
Q: Do I have to allow medical marijuana (MM) users on my property?
A: A housing provider cannot deny an applicant based on the fact they have a MM prescription. It is not ok for housing providers to deny people because they disclose, or the they know, that the residents are MM users. It’s a subtle distinction, but identifying oneself as a MM user is tantamount to identifying oneself as a person with a disability (cancer, glaucoma etc). While a housing provider can prohibit or otherwise restrict the use of MM on the property, the s/he cannot just wholesale say “no” to all acknowledged MM users. Furthermore, an applicant or resident has the right to submit a reasonable accommodation to use MM onsite.
Q: Do I have to grant a reasonable accommodation (RA) to MM users?
A: No; not after the Oregon Supreme Court’s decision September 4th, 2010 announcement. However, applicants and residents still have the right to ask for what they feel they need, with proper verification, and housing providers have a responsibility to fully consider each request. For more on this process visit www.FHCO.org/pdfs/RA-RMinfo.pdf.
Q: If I deny such a RA to MM users, can they sue me or file a fair housing complaint against me for that reason?
A: MM applicants have not been able to file complaints with HUD (as a federal agency, HUD doesn’t recognize MM as legal activity). BOLI is the fair housing enforcement agency that would have heard such complaints within Oregon; they clearly state that they will not entertain such complaints going forward. A lawsuit is always possible, but the outcome would be far from guaranteed for a MM user who tried to buck the current precedent set by the employment case and BOLI’s statement.
Q: Can I evict a resident who I previously granted such an accommodation to based solely on the fact they use MM?
A: This may or may not be problematic. You’re advised to seek competent legal advice before proceeding.
Q: If I try to evict MM users will FED court judges rule in my favor?
A: This is not clear. The impact of the Emerald Steel case on Oregon’s Landlord Tenant law is unknown.
Q: Will I get in trouble with the law if I do rent to MM users and allow them to grow / use on the property within the state’s program rules?
A: No; under state law medicinal use of marijuana remains legal activity so, if you wish to allow it, you should not get in trouble for doing so.
Q: If I choose to allow MM use on my property, can I charge security deposits, higher cleaning deposits, etc. to those residents?
A: Yes; with the Oregon Supreme Court’s decision and BOLI’s announcement this would now be fine.
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