A recent decision published by the U.S. Supreme Court regarding a California case based on the legality of medical use (and cultivation) of marijuana has created even more of a dilemma for California landlords. The cutting edge issue is: Does the decision affect your duties as an owner or manager of rental property, and if so, how?

California is one of several states which have enacted laws that consider marijuana use and cultivation to be legal when there is appropriate medical justification. Many local jurisdictions in California have passed ordinances which specify circumstances under which such use or cultivation will be allowed. Based on these statutes, tenants (primarily in housing, but in some commercial properties as well) have asserted that their landlord cannot control medical use or cultivation of the drug beyond the restrictions established in state and local law.

Our law firm has frequently been asked to counsel clients on this issue in the past. We have opined that although medical use and cultivation may be legal under state and local laws, federal laws did not contain an exception for medical purposes. This conflict of laws put landlords in an uncomfortable position.

An affected tenant would argue that medical use should be allowed as a disability accommodation because it is legal under California law. The landlord would then have to consider whether prohibiting such use on his property because it is not allowed under federal law might cause him to be sued for discrimination under state law. In other words, would allowing such use be deemed to be a "reasonable" accommodation under the circumstances? Although the question had not been addressed definitively in case law, clients were directed to make risk management decisions, considering that federal law failed to legalize medical use or cultivation and that U.S. law generally supercedes state or local law where there is a direct conflict.

The argument in the lower courts that state law, rather than federal law, would apply was based on the allegation that there was no "interstate commerce" involved. The Supreme Court disagreed, deciding that there was federal jurisdiction even if the cultivation was not for commercial purposes and the product was not transported across state lines. The court did not give an opinion on whether marijuana should be re-classified under the federal Controlled Substances Act as a drug which is recognized as having medicinal uses. The narrowness of the ruling leaves the door open for further controversy in the administrative arena or a possible resolution through new legislation by the U.S. Congress.

For now however, the Supreme Court's ruling is controlling. Federal law enforcement agencies can clearly punish California residents under federal law for medical use or cultivation which would otherwise be legal under state or local law. Early media reports indicate that federal agencies do not plan to pursue criminal prosecution of individuals for medical use of marijuana. Even if that information is correct, it is unlikely that a landlord would be expected to allow the violation of federal law on a rental property as a "reasonable accommodation" for a disabled tenant.

For more information regarding this issue and related issues, consider the following resources:

1. The actual Supreme Court decision in Gonzales v. Raich (formerly Ashcroft v. Raich)

2. Yahoo! NEWS, keywords "medical marijuana"

(J. Kathleen Belville is Managing Partner of the Fair Housing Dept. of Kimball, Tirey, and St. John. 800-338-6039)