Michigan Federal Court Holds Housing Providers Are Not Required To Accommodate Use Of Medical Marijuana

The U.S. District Court for the Eastern District of Michigan held that neither the Fair Housing Act (“FHA”) nor section 504 of the Rehabilitation Act (“Section 504″) require a housing provider to accommodate a tenant’s use of medical marijuana.  In Forest City Residential Management, Inc. v. Beasely, the tenant who lived in a Project-Based Section 8 housing complex entered into a lease that provided that the management company could terminate the lease if the defendant engaged in “drug-related criminal activity” in or near the complex.  The tenant also signed a Tenancy Termination Addendum for Housing and Urban Development (HUD) Housing Programs, agreeing the plaintiff could terminate the lease agreement if the defendant engaged in “drug-related criminal activity” or illegally used drugs on the premises.

The tenant was diagnosed with multiple sclerosis in 2009 and her doctor prescribed medical marijuana which helped alleviate the symptoms of  the multiple sclerosis.  The tenant also obtained a medical marijuana card from the State of Michigan pursuant to the Michigan Medical Marihuana Act (“MMMA”).  After property management discovered the tenant smoking marijuana in her unit, the management company initiated eviction proceedings in state court alleging the tenant’s marijuana use violated the lease and Tenancy Termination Addendum.  In response, the tenant requested  to use medical marijuana as a reasonable accommodation under the FHA and Section 504.  The management company subsequently dismissed the state court eviction action and sought declaratory relief in the federal district court that it need not provide the accommodation.

After the federal court determined it had jurisdiction to hear the management company’s case, it  found that the federal Controlled Substances Act preempted the MMMA and it was unreasonable as a matter of law to allow the use of medical marijuana as a reasonable accommodation under the FHA.  Specifically, the court held that forcing the management company to allow marijuana use would “fundamentally alter the nature of the [housing provider’s] operation by thwarting Congress’s mission to provide drug-free federal assisted housing.”  The court also held that the tenant was not entitled to a reasonable accommodation Section 504 because  the term “individual with a disability” under Section 504 “does not include an individual who is currently engaging in the illegal use of drugs . . . .”

In coming to this conclusion, the court relied on a HUD Office of Fair Housing and Equal Opportunity memorandum in which HUD opined that persons using illegal drugs are “categorically disqualified from protection under the disability definition provisions of Section 504” and allowing the use of marijuana “would constitute a fundamental alteration in the nature of a [Public Housing Authority] or owner’s operations.”

Forest City supports the conclusion that any property receiving Federal Financial Assistance may deny requests by applicants or tenants to use medical marijuana.  While Forest City did not address whether a conventional property may deny such an accommodation request, there is a strong argument that its reasoning should apply to conventional properties.  Indeed, conventional property owners and managers have the same incentives as Congress in providing drug-free housing.  To ensure fair housing compliance, property owners and managers should include a provision in leases that unequivocally prohibits the use of controlled substances under the federal Controlled Substances Act and any other illegal drugs.  If an applicant or tenant requests to use medical marijuana as a reasonable accommodation, property owners and managers should clearly articulate that the use of marijuana would fundamentally alter the nature of their operations and, as such, they are unable to grant the requested accommodation.