Quietly, Governor Kasich signed into law a regulated medical marijuana program allowing qualified patients to use medical marijuana in a vapor form only. To my knowledge, Ohio is the only state restricting medical marijuana usage to the vapor form in those states allowing medical cannabis already. Should this concern landlords and other housing providers like public housing authorities? Yes.
This short article is the first in a series that will explain why the answer is “yes.” The federal Controlled Substances Act still prohibits any prescribed marijuana. The federal statute has not carved out a “vapor exception” yet. This means that under federal law, users of prescribed marijuana continue to violate federal law. This means that leases may contain clauses prohibiting any kind of marijuana use, electronic cigarettes, or any other “vapor” devices.
You may be thinking: What if a tenant states s/he has disabilities and wants a reasonable accommodation to use medical marijuana? It remains to be seen if any Ohio tenant or landlord asks a state or federal court to answer the question. Ohio’s law lists certain chronic illnesses that qualify a patient to use medical marijuana such as multiple sclerosis, post-traumatic stress disorder, and chronic and severe or intractable pain. In a subsequent article, I will explain how in nearby Michigan a federal court judge in 2014 ruled in the landlord’s favor when a tenant with alleged disabilities asked to use medical marijuana. The fact that Michigan allows medical marijuana did not entitle the tenant with alleged disabilities to use medical marijuana. This was a federal court case I handled with outside counsel in Michigan. Stay tuned for that future article.
What about the argument that state law must be followed? That argument was addressed in the Michigan case, too, in the landlord’s favor and will be explained in a subsequent article.
Ohio’s law will make medical marijuana legal in early September 2016, according to Jackie Borchardt in cleveland.com. The state will also develop a strict regulatory program and prohibits the smoking of marijuana and growing marijuana plants, according to cleveland.com. Users are limited to cannabis oils, tinctures, patches, edibles, and plant materials to be sold by state-licensed dispensaries, explains cleveland.com. Ms. Borchardt writes that Ohio’s program must be operational within two years.
This gives landlords and other housing providers ample time to be proactive with leases, tenant selection polices, admission standards, and eviction grounds. Further, landlords and other housing providers must ensure a legally compliant process for processing and deciding upon reasonable accommodation requests.
Ohio has joined 24 other states allowing medical marijuana. Be ready as a landlord or other housing provider instead of reacting and facing fair housing risks in the near future. Consulting an experienced property management lawyer now makes a lot of sense.