Fair Housing & Medical Marijuana-OR-WA

Fair Housing and Medical
Marijuana in
Life after the Emerald Steele
Employment Case

On April 14, 2010 the Oregon Supreme Court
decided the case of Emerald Steel Fabricators v.
Bureau of Labor and Industries (BOLI). The
Court held that an employer could terminate an
employee who used (outside of work) medical
marijuana, even though that employee followed
all the rules for using medical marijuana, and
used it to help with his disability. On November
4th BOLI released the policy statement below
stating they would no longer accept medical
marijuana cases for investigation, including
housing cases.
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
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 such 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.
It should be noted that this continues, obviously,
to be a developing area of law. You are advised
to not only watch our newsletter at
www.FHCO.org/newsletter.htm and
www.FHCO.org/breaking_news.htm for further
developments but to seek competent legal
advice before taking any action.
Fair Housing and Medical
Marijuana in
NOTE: The information below is still relevant for
Washington state residents; however, the
11/04/2010 statement by Oregon’s Bureau of
Labor & Industry (BOLI) nullifies the information
for Oregonians.
The Fair Housing Act defines disability as a
physical or mental condition that substantially
impairs a major life activity such as seeing,
hearing, thinking, walking, breathing, self-care,
etc. This includes an expansive list of chronic
diseases and conditions. You should also know
that anyone with a disability has the right to ask
a housing provider for a reasonable modification
or accommodation and, for some with severe
pain or chronic conditions, medicinal use of
marijuana is the only treatment that seems to help.
…So, a ban on illegal drug use and a nosmoking rule are each perfectly fine unless and
until an individual with a disability has been
legally prescribed medical marijuana and asks
for an accommodation to use it. As with any
other reasonable accommodation or
modification, the housing provider has the right
to verification but must consider every request.
HUD only allows for denial when what’s asked
for alters the housing provider’s job description;
poses a direct threat; constitutes an
administrative burden and is too costly.
If you have a medical marijuana user on your
property, you may not charge them higher fees
or deposits. That being said, if damage is
caused (i.e.: moisture damage, electrical issues,
etc.) the resident is, in fact, responsible for it just
as a resident would be if his / her service animal
gnawed on woodwork in the unit or damaged
carpeting. The point is you may not legally
assume there will be problems or damage
unless or until it actually happens. This seems
like a good reason for landlords to have a policy
of routinely inspecting all of their units in order to
be in communication with residents and catch to
any issues early on.
For a full copy of either article, as well as
additional, related resources, visit:
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 rent to medical marijuana (MM)
A: No; not after the Oregon Supreme Court’s decision
and BOLI’s 11/04/10 announcement.
Q: Do I have to grant a reasonable accommodation
(RA) to MM users?
A: No; not after the Oregon Supreme Court’s decision
and BOLI’s 11/04/10 announcement.
Q: If I deny such a RA to MM users, can they sue me
or file a fair housing complaint against me for that
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
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.
If an individual in any way violates the state’s medical
marijuana program rules (where it’s used, quantities
allowed, selling or distributing, etc.) it then becomes,
essentially, illegal activity. At which point, a landlord
would be within his / her rights to sanction the
individual accordingly.
I’ve had many-a-landlord ask, “Why can’t the resident
simply take it in another form rather than smoking it!”
Let me be clear, under fair housing laws housing
providers have no business interfering with an
individual’s treatment plan. Such business is strictly
between him / her and their medical provider. This is
true whether you’d prefer the individual took a
marijuana pill rather than smoking it or if you question
what good a campaign animal might do for an
individual who doesn’t appear to you to be disabled.
In terms of medical marijuana, alternate forms are not
always an option – for some it makes them sick to
their stomach, for others it simply isn’t effective at
easing pain.
You should know that you are not required to
accommodate medical marijuana growers who legally
grow crops under the state’s medical marijuana
program for the use of other patients.
In summary, be sure you’re getting advice from
appropriate sources for specific issues. For nonapproved use of marijuana (ie: not medical marijuana;
AKA illegal drug use) contact your local law
enforcement agency. For questions about your state’s
medical marijuana program, contact the Dept. of
Human Services in Oregon
(http://www.oregon.gov/DHS/ph/ommp/) or
Washington’s State Dept. of Health
(http://www.doh.wa.gov/hsqa/medical-marijuana/). For
additional information on medical marijuana from a
fair housing-perspective visit
www.FHCO.org/breaking_news.htm and search for
“marijuana” to find a Dept. of Justice memo on the
subject. You may also want to check out
www.FHCO.org/disability.htm. For any fair housingrelated questions, contact our Fair Housing Hotline
(800/424-3247 Ext. 2) or an attorney well versed in
these federal, state, and local laws.
As I’ve said many times, we pride ourselves on the
strong working relationships we have with housing
providers and their trade associations across our
service area. We strive to be a resource to you. You’ll
find a great deal of additional information just for
housing providers at
Still have Qs? Visit http://FHCO.org
or Call the Fair Housing Hotline
at 800/424-3247 Ext. 2

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