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Medical marijuana: What are renters' rights?

by Lily LeungSign On San Diego
March 9th, 2011

Landlord attorneys and tenants’ advocates in San Diego County and throughout the state have for more than a decade dealt with a sticky subject that many want to avoid and few know how to address.

The puzzling question: Can renters smoke and grow pot at home if they prove they’re medical marijuana patients with doctors’ notes and state-issued cards?

The answer: It depends.

In most cases, tenants don’t disclose they use or grow marijuana. If caught, they tend to give in to eviction because landlords are covered by no-drug and no-smoking clauses in leases, and a lack of case precedent in California.

The issue of medical marijuana and housing has resurfaced as one state lawmaker is sponsoring a bill that would forbid employers from denying employment solely on medical-marijuana status. Some believe, if passed, the bill could make way for housing protections, like those provided in Arizona, which passed its medical marijuana law in the fall.

The Arizona law states, “No school or landlord may refuse to enroll or lease to and may not otherwise penalize a person solely for his status as a cardholder, unless failing to do so would cause the school or landlord to lose a monetary or licensing related benefit under federal law or regulations.”

No such provisions exist in California.

“Under state law, it’s just not clear, because the courts haven’t spoken to this question,” said Alex Kreit, a law professor at Thomas Jefferson School of Law who specializes in medical marijuana.

“Tenants could challenge (eviction) by saying it’s discriminatory,” said Kreit, referring to fair-housing rules. “But it probably will be an uphill battle.”

Legal battles could end up being time-consuming and costly, so tenants often hide medical marijuana use or cultivation. Often, if found out by their landlords, they can end up being evicted.

Medical marijuana patients and distributors, such as Oak Park resident Long Vo, 27, say they’re respectful of the leased properties and their neighbors.

He cultivates two marijuana plants on the balcony of his rental, and his landlord approves because he’s discreet and pays his rent on time.

“Growing up, my family didn’t like that I smoked marijuana and considered it taboo, but now they see it’s considered medicine, that it helps people,” said Vo, who used to operate a dispensary in Spring Valley and now makes licensed deliveries to patients.

Meanwhile, many landlords don’t want medical marijuana on their premises, fearing exposure to children, smoke damage to property and offending other tenants.

In some cases, landlords have cited water damage and mold issues stemming from undisclosed sprinkler systems used to water pot plants.

Eric Wiegers, spokesman for the statewide apartment association, said he’s heard of both extremes: landlords who are OK with medical marijuana as long as it doesn’t affect others, and landlords who are opposed to the drug, regardless of use and medical condition.

“It breaks down to the individual landlord,” Wiegers said.

Hope for clarity

Medical marijuana advocates hope a bill reintroduced by Sen. Mark Leno, D-San Francisco, that addresses employment and medical marijuana could make way for more clarity on the issue.

Leno’s measure calls for the reversal of a state Supreme Court case that allows employers to deny employment or advancement solely on medical-marijuana status. It reached then-Gov. Arnold Schwarzenegger’s desk in 2008 but was vetoed.

Leno said the higher-court ruling was “irrational” because it suggests “the compassionate use of cannabis is only for unemployed people.”

Leno says the bill would affect about 250,000 medical-marijuana patients in California (those who have obtained doctors’ recommendations). Americans for Safe Access, an advocacy group, estimates that 50,000 to 70,000 are in San Diego County. On the topic of housing, which is not discussed in Leno’s bill, he said, “someone should not lose one’s home as a result of patient status.”

He added: “I can’t imagine voters (who supported medical marijuana in 1996) only wanted compassionate use for only homeless people or those who own their own homes … It’s just nonsensical.”

Tyrone Sky Williams, 34, said he was given a 30-day notice after his landlord discovered he had equipment to grow medical marijuana in his Oceanside rental. Williams, who is disabled and holds a medical marijuana card, said he never disclosed his status to his landlord but figured as long as he was a good tenant, everything would be OK.

He’s now staying with his mother in Carlsbad.

Williams said his landlord doesn’t condone medical marijuana not only on his property but anywhere.

“I didn’t seek help,” Williams said. “I felt like I didn’t know what to do.”
Historical background

Since 1996, Californians have been able to obtain and use medical marijuana with doctors’ recommendations and be immune from criminal prosecution or sanction. In 2003, the Legislature passed a bill that made way for state-issued, voluntary medical marijuana cards that gave patients added protection when dealing with law enforcement.

However, neither measure addresses patients’ rights and housing, allowing landlords to evict such tenants.

Nowadays, landlords tend to address the issue of medical marijuana with no-smoking clauses, which are showing up more often in rental agreements. They’re also covered by including a clause stating adherence to federal law, which deems marijuana, no matter the use, to be illegal.

By default, marijuana use of any kind is forbidden in HUD housing and military housing, which are funded by the U.S. government.
Long Vo, of Oak Park, says his landlord, also his relative, is OK with him growing and smoking medical marijuana in his rental. Vo, a medical marijuana cardholder and former dispensary owner, has his marijuana plants in his balcony.

- Photos by Earnie Grafton, Union-Tribune staff

Long Vo, a renter and medical marijuana cardholder, prunes a marijuana plant at his Oak Park home. He has two plants, both of which are in his balcony.
Full disclosure advised

People on both sides of the debate say there’s a fair way to get around medical marijuana and housing, and it starts with full disclosure.

“If you want to medicate in your home, make sure that’s OK with your landlord because they’re inevitably going to find out,” said Kimberly Simms, a San Diego attorney who deals with medical marijuana cases. “That’s especially if you’re growing.”

At that point, several scenarios, some including compromise, could unfold:

• The landlord could still decide to evict.

• The tenant is asked to take the plants inside and cover air vents when taking medication.

• Bring in a third party to confirm tenant’s need to use marijuana for medical purposes.

“You must negotiate in advance,” said Lance Rogers, another medical marijuana lawyer in San Diego. “The challenge with landlord-tenant rights is that it’s governed by contract — and many of those contracts don’t contemplate medical marijuana.”

Kathy Belville, a real estate attorney at Kimball, Tirey & St. John in San Diego, suggests that landlords build in specific rental criteria into rental agreements to avoid ambiguity.

“I suggest they develop policies,” she said.

FAIR USE NOTICE. Tenants Together is not the author of this article and the posting of this document does not imply any endorsement of the content by Tenants Together.  This document may contain copyrighted material the use of which may not have been specifically authorized by the copyright owner. Tenants Together is making this article available on our website in an effort to advance the understanding of tenant rights issues in California. We believe that this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the U.S. Copyright Law. If you wish to use this copyrighted material for purposes of your own that go beyond 'fair use,' you must obtain permission from the copyright owner.

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