Landlord/Tenant Law Legal Topics New Legal Developments Real Property Law

Can a Tenant Be Evicted for Using Medical Marijuana?

ThinkstockPhotos-466465686We don’t yet have an officially reported case in California on whether a landlord has the right to get a court order declaring a lease terminated and evicting the tenant based solely on the tenant’s use of medical marijuana. And this complex question is made more unclear by the ongoing conflict between state and federal laws.

Almost 20 years ago, California voters passed Proposition 215, also known as the Compassionate Use Act of 1996 (CUA). The CUA allows individuals who’ve received an appropriate recommendation or physician approval to possess and cultivate marijuana for their personal medical use. The law protects both these individuals and their “primary caregivers,” i.e., those who’ve consistently assisted the user in housing, health, or safety issues. The CUA only addresses criminal liability but arguably, in conjunction with disability antidiscrimination laws, it might protect tenants from eviction based on their possession, cultivation, and use of medical marijuana.

But the CUA doesn’t preclude criminal actions under federal law against those who use and cultivate medical marijuana because such activities continue to be unlawful under the federal Controlled Substances Act (CSA). The CSA lists marijuana as a Schedule I drug because Congress determined, among other things, that it “has no currently accepted medical use in treatment in the United States.”

A recent constitutional challenge to marijuana’s classification as a Schedule I drug under the CSA came up short. In United States v Pickard, 2015 US Dist Lexis 51109, a federal district court judge in Sacramento held that Congress acted rationally in classifying marijuana as a Schedule I substance in light of the record before it.

The CSA would thus likely support a landlord in evicting a tenant for the possession, cultivation, and use of marijuana, even if it was for prescribed medical purposes. Landlords are often cautious about doing this, however, because of the unsettled state of the law. For example, a commercial landlord leased a building to a retail marijuana store in Oakland that distributes medical marijuana legally under state law but allegedly in violation of the CSA. The U.S. Attorney threatened to bring a forfeiture action under the CSA against the premises unless the landlord evicted the tenant. A California superior court judge refused to allow the eviction, and the forfeiture action against the premises proceeded. The City of Oakland tried to prevent the forfeiture in a collateral suit in City of Oakland v Lynch (9th Cir, Aug. 20, 2015, No. 13-15391, but the Ninth Circuit rejected the action “because the Government’s decision to file the forfeiture action is committed to agency discretion by law, and because allowing the [City’s] suit to proceed would impermissibly disrupt the existing forfeiture framework.”

These recent cases appear to be more nails in the coffin for medical marijuana advocates. And they follow other cases in which the courts have refused to protect medical marijuana users. See Ross v RagingWire Telecommunications (2008) 42 C4th 920 (antidiscrimination laws don’t protect medical marijuana users in employment context because of CSA). But they aren’t nearly the end of the story; it’s certain that cases will continue to be brought to challenge the constitutionality of the CSA and the results may change.

To help you keep up with this complex and unsettled area of law, CEB has launched its research hub for marijuana law. CEB’s Marijuana Law Hub will provide attorneys nationwide with ethical and substantive education to assist them in giving the highest form of professional representation to clients navigating the cannabis industry. Also check out CEB’s CLE program Current Issues in Medical Marijuana Regulation, available On Demand.

Other CEBblog™ posts you may find interesting:

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