Presented by THE STATE BAR OF CALIFORNIA ● REAL PROPERTY LAW SECTION Fair Housing and Public Accommodations Subsection Medical Marijuana in California Rental Housing

The Laws: California -- CUA/MMP/Prop 65 The Compassionate Use Act (CUA) The Compassionate Use Act (CUA) –Patient/Primary Caregiver –Doctor’s Recommendation –Compliance  “No more than” 8 oz. dried, 6 mature or 12 immature plants but local government can allow state limit to be exceeded. People v. Kelly: amount “consistent with the patient’s needs” is allowed.  May not be smoked where smoking is otherwise prohibited by law or within 1000 ft. of school, etc. unless medical use occurs within a residence.

The Laws: California -- CUA/MMP/Prop 65 Medical Marijuana Program (MMP) Medical Marijuana Program (MMP) –Program for distribution of ID cards annually –Accommodation without card Proposition 65 (“Prop” 65) Proposition 65 (“Prop” 65) –Recently added MJ to list of hazardous substances

The Laws: Federal -- CSA Controlled Substance Act (CSA) Controlled Substance Act (CSA) –“No currently acceptable medical use.” –Conflict with California Law?   CA Attorney General memo: no conflict, instead California “exercised state’s reserved powers.”   U.S. Supreme Court, Gonzales v. Raich: “Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.”

The Laws: Federal -- CSA Enforcement Enforcement –US Deputy Attorney General memo regarding the use of limited federal resources  Not a priority to “pursue individuals in clear and unambiguous compliance” with state law.  States can’t authorize violations of federal law.  Memo is not intended to create privileges or legal defenses.

Application to Employment CA Supreme court Ross v. Ragingwire: CA Supreme court Ross v. Ragingwire: –CUA not interpreted to address respective rights of employers and employees. –Employer may require tests; need not accommodate medical use at work. –Employer concerns are increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties.

Application to Employment (Cont’d) Compare with housing: Compare with housing: –Prohibiting use on the job v. prohibiting use on a residential property site. –Testing completely restricts use. –Housing provider concerns are affect on neighbors and staff, property damage, potential security issues, excess use of utilities if paid for by landlord.

Tenancies Commercial properties Commercial properties –CUA: Retail provider normally subject to business license requirements is not allowed to cultivate or distribute MJ within 600 ft. of a school, etc. unless distribution is within a licensed medical or elder care facility.

Tenancies Residential properties Residential properties –Federally subsidized: (subject to 504 Rehabilitation Act), HUD’s position seems to be zero tolerance of drugs. –Not subsidized: focus is the “reasonableness” of the disability accommodation. Undue financial or administrative burden or fundamental change? Interactive process to attempt to negotiate alternatives.

Hypothetical Situation At Happy Village, management has observed what appear to be marijuana plants growing on Tommy’s balcony. Management has also received complaints from Tommy’s neighbors of pot odors coming from his apartment. When notified of the complaints, Tommy produces a state card authorizing his medical use and personal cultivation of marijuana. What should Happy Village do?

The Choices... A. Require Tommy to move the plants inside and cover the air vents when he takes his medication. B. Evict Tommy for illegal drug use and possession. C. Ask Tommy for evidence of the disability from his doctor, such as a prescription, to verify his disability.

But What If? Federally subsidized? Federally subsidized? No complaints? No complaints? Lease does not prohibit smoking? Lease does not prohibit smoking? Water damage/mold detected? Water damage/mold detected? Complaining neighbor has competing disability? Complaining neighbor has competing disability?

Thank You for Attending! THE STATE BAR OF CALIFORNIA REAL PROPERTY LAW SECTION Fair Housing and Public Accommodations Subsection