Tenant Medical Marijuana Use In Oregon: Is It One Toke Over The Landlord’s Line?

MarijuanaOne toke over the line sweet Jesus
One toke over the line
Sittin’ downtown in a railway station
One toke over the line ~ Brewer & Shipley, 1971.

Background. Landlords in Oregon are understandably flummoxed by the new prescription drug du jour, medical marijuana.  Why? Because, while Oregon permits the medical use of marijuana, the Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., says that it is illegal to manufacture, distribute, and possess marijuana, even when state law authorizes its use. Furthermore, federal law supersedes state law where there is a direct conflict between them.  So, what does a landlord do when confronted by a card-carrying tenant claiming that he/she cannot be evicted for marijuana use and/or cultivation, because they have a legal right to do so under Oregon law.  The second arrow in the tenant’s quiver is the threat that “if you try to evict me, I will sue you under the federal Fair Housing laws[1] that say you must grant me a reasonable accommodation[2] [i.e. let me toke on the premises] because I have a “disability.”[3]

Discussion. Clearly, this is a very complicated issue on several levels.  Marijuana is a controlled substance under Federal Law, but under Oregon law, its use and cultivation in limited amounts are lawful with a medical marijuana card. The Oregon laws cover such things as grow-site registration; medical uses for marijuana; issuance of an identification card; and limitations on a cardholder’s immunity from criminal laws involving marijuana.  For those interested, the specific statutes should be consulted here.

Based upon recent news reports, it appears that, subject to certain exceptions,[4] there will be no effort by the federal 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.

The Conundrum.  In short, it appears that when it comes to enforcement of their rules and regulations, Oregon landlords are on their own; neither the feds, nor the state, will go after persons with lawfully issued medical marijuana cards. Furthermore, if a tenant has a valid card, then arguably he or she has some medical condition that has authorized its issuance. Is the landlord obligated under the Fair Housing laws to make a “reasonable accommodation” for their medical condition, and permit the tenant to continue their use or grow operation?   If properly done, the answer may be “No.” Here’s  why:[5]

In January 20, 2011, the U.S. Department of Housing and Urban Development (“HUD”) issued a Memorandum, the subject of which was “Medical Use of Marijuana and Reasonable Accommodation in Federal Public and Assisted Housing.” While the Memo was limited to federal public and assisted housing, it can be regarded as a helpful – though perhaps not a “final” resource – on the issue.[6]  It is very complete and helpful for all landlords. It can be found at this link. Here is what the Memo directs:

Public housing agencies “…in states that have enacted laws legalizing the use of medical marijuana must therefore establish a standard and adopt written policy regarding whether or not to allow continued occupancy or assistance for residents who are medical marijuana users.  The decision of whether or not to allow continued occupancy or assistance to medical marijuana users is the responsibility of PHAs, not of the Department.”

Thus, HUD appears to be leaving it up to the state public housing authorities to decide whether the refusal to permit on-premises use of medical marijuana constitutes a fair housing violation. Between the lines, it appears that HUD will not directly investigate such claims, leaving it up to public housing agencies on the state level.

While HUD’s pronouncement is directed toward “public housing” is would be hard to believe private housing would be treated any differently.  Oregon fair housing law is “substantially equivalent” to federal fair housing law.  So, generally speaking, on the issue of medical marijuana, as goes the federal law, so goes state law.

However, in the 2010 case of Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, the Oregon Supreme Court held that employers do not have 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. Additionally, a subsequent article [found here] by the Fair Housing Council of Oregon is helpful for landlords from the view of private fair housing enforcement.

Thus, it appears that in Oregon, on both the federal and state levels, enforcement agencies are [for the time being at least] taking a laissez-faire approach to the medical marijuana issue. This means that landlords have it within their control, with little fear of a fair housing/reasonable accommodation claim, to enact rules and regulations prohibiting the on-premises use of medical marijuana. However, the proscription should not be retroactive to tenants holding legal medical marijuana cards who have already signed their rental agreements or leases.

Oregon Landlord-Tenant Laws.  Oregon statutes permit landlords to enforce tenant violations of their rental agreements, rules, and general laws [not just the landlord-tenant laws]. It is my belief that the violation of a no medical marijuana policy would be enforceable on a going forward basis. The policy should not be retroactive – and it should so state.

In summary,[7] ORS 90.392 [Termination of rental agreement by landlord for cause; tenant right to cure violation.] provides as follow:

  • After delivery of written notice, a landlord may terminate the rental agreement for cause and take possession in accordance with the state eviction laws [ORS 105.105 to 105.168], unless the tenant cures the violation.
  • Causes for termination are:
    • Material violations of the rental agreement;
    • Material violation by the tenant of his/her legal duties under ORS 90.325;
    • Failure to pay rent.
    • The landlord’s notice to the tenant must:
      • Specify the acts and omissions constituting the violation;
      • State that the rental agreement will terminate upon a designated date not less than 30 days after delivery of the notice; and
      • If the violation may be cured under the law, so state and describe at least one possible remedy to cure it, designating the date by which the cure must occur.
      • If the violation described in the notice can be cured, and is cured by the designated date, the tenancy will not terminate;
      • The designated date must be:
        • At least 14 days after delivery of the notice; or
        • If the violation is conduct and not ongoing, no earlier than the date of delivery of the notice.
        •  If the tenant does not cure the violation, the rental agreement terminates as provided in the notice.
        • If the cause of a written notice relates to substantially the same act or omission that constituted a prior violation for which notice was given within the previous six months, the designated termination date must be not less than 10 days after delivery of the notice and no earlier than the termination date stated in the previously given notice. The tenant does not have a right to cure the subsequent violation.[8]

Miscellany.  Landlords, read the medical marijuana card!   It must valid and current for Oregon.  A California card, for example, would not suffice.  [See, State v. Berrenger, 2010]. If there is no card, or no current card, the growing [not use] of marijuana may still be a violation of Oregon law.  In such cases, issuance of a curable 30-day notice under ORS 90.392 may be appropriate. If other tenants are complaining about the odor [and many do], a landlord may consider looking to the “quiet enjoyment” provisions of the rental agreement, the rules, or the provisions in ORS 90.325(1)(g).[9]

Conclusion. Rental management companies and individual landlords in Oregon may wish to institute a written medical marijuana policy in their rules and/or rental agreements, dealing both with use and cultivation. Based upon current federal law, it does not appear to be a fair housing violation to prohibit medical marijuana in the landlord’s rental agreement or rules. If such a policy exists, it should include management’s right to decline a request for a reasonable accommodation.

Remember, besides nonpayment of rent, there are only three ways to terminate a tenancy for cause:

  • Violation of the rental/lease agreement;
  • Violation of the rules; and
  • Violation of Oregon laws.

This means that in Oregon, if a tenant engages in the legal use or cultivation of marijuana – i.e. with a valid medical card – doing so is not a violation of state law. But it would be a mistake to assume that it also means tenants have a legal right to use or cultivate marijuana with a valid card, if doing so is in violation their rental/lease agreement or rules and regulations.

Thus, if a landlord seeks to prevent such activity, the basis for doing so must be found, if at all, in the legal documents executed between the landlord and tenant. Without an express written prohibition, it may be difficult to bring an eviction action for legal marijuana use or cultivation – unless the tenant’s conduct violates some other rule or provision in the rental agreement.[10]

[1] The Fair Housing Act was amended in 1988 to include two new protected classes; those with disabilities and those with children under the age of 18.  Both classes are very broadly defined, so landlords must be careful here.

[2] Essentially, a “reasonable accommodation” is an exception to the landlord’s rules, if doing so is not costly to the landlord, and is not otherwise illegal or dangerous to others. For a discussion of what this entails go to the joint statement of HUD and the DOJ, here.

[3] 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.

[4] Based upon a USA Today report, the exceptions are: The 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.

[5]Note: This article is not intended to constitute legal advice.  Readers should consult their own legal counsel  to determine how to proceed in these cases, as the correct outcome depends upon the specific facts of each case.

[6] However, note that Oregon has its own set of fair housing laws. I will not render an opinion on whether federal trumps state, but that is my inclination, where the state law is more lenient.

[7] The summary is not complete; the statute must be consulted for details.

[8] Although Oregon landlord-tenant law does provide that landlords may issue 24-hour notices for certain non-curable violations, it should not be used unless there is a clear violation which endangers public health and safety.  Legally smoking or cultivating marijuana would not provide the basis for issuance of such a notice. [See, ORS 90.396(1)(f)(i).]

[9] This same statute is useful where tenants, whether medical marijuana users or not, have frequent traffic and visitors late at night, causing  disruption for the other tenants.

[10] See discussion at footnote 8 above.