Question: I manage an apartment complex and have a tenant, "James," who smokes marijuana inside his apartment and out on the balcony. Many of the other tenants in the complex complain about the marijuana smoke, including the mother of a boy with asthma. James says he has a medical marijuana card for chronic pain, and I believe him. Under the fair housing laws, do I have to let him smoke on the balcony or inside his apartment?
Answer: No, you do not have to let James smoke on the balcony or even in his apartment, even though James is disabled and even though it is legal to smoke marijuana under California law with a medical marijuana card.
Under the federal Fair Housing Act, housing providers are ordinarily obligated to provide reasonable accommodations for tenants with disabilities to ensure that they have the full use and enjoyment of their homes. So one might think that the housing provider in this case might be obliged to allow James to smoke marijuana as a reasonable accommodation, assuming James can show that marijuana is part of the medical treatment for his disability
However, the federal Fair Housing Act reasonable accommodation provisions exclude the current use of a "controlled substance" under federal law from protection.
Even though medical marijuana is legal under California law, it is not legal under federal law. Because the Fair Housing Act is a federal statute, and it provides the source of the reasonable accommodation right that would entitle James to smoke medical marijuana as a reasonable accommodation, James is out of luck.
The California government has not stepped in to disagree with the federal government on this issue.
As an alternative to evicting James or banning him from using marijuana altogether, you might consider asking James if he can get the pain relief he seeks by eating the marijuana rather than smoking it. This way, he would not be bothering other tenants but would still get the medical benefits of the drug.
This area of law is still somewhat up in the air, though, so please check in with a private attorney or your local fair housing organization for any updates.