Applicability of the MMMA In Multi-Family Housing Facilities
In 2008, the Michigan legislature enacted the Michigan Medical Marihuana Act (MMMA), which legalized the use of medical marijuana in the State of Michigan.¹ Specifically, Michigan residents who obtain a valid medical marijuana identification card are permitted to possess up to 2.5 ounces of marijuana and/or 12 live marijuana plants.²
Numerous other states have enacted similar measures regarding medical marijuana, and some states have gone so far as to legalize marijuana for general recreational use.
However, despite the recent development in this area of law, legislative change has been limited to the laboratory of state legislatures. As it pertains to the federal government, marijuana remains a Schedule I controlled substance with “no currently accepted medical use in treatment in the United States.” ³ Naturally, there is some conflict in this corner of the legal world; numerous states have chosen to legalize marijuana in various contexts despite the federal government’s steadfast identification of the drug as a Schedule I controlled substance.
For federally subsidized housing facilities, the question marks surrounding the legality of marijuana present an interesting dilemma. Housing facilities may encounter a scenario where a resident wishes to possess and/or use medical marijuana within his or her unit. If the resident possesses a valid medical marijuana identification
card, his or her possession of marijuana on the premises of the housing facility is entirely legal under the MMMA. Even more significant, a resident may demand to use medical marijuana within his or her unit as a “reasonable accommodation” under the Federal Housing Act (FHA). Specifically, under the FHA, discrimination in the sale of
rental of public housing on the basis of disability is prohibited. 4
In the context of the FHA, discrimination includes a facility’s refusal to make reasonable accommodations to afford a disabled person equal opportunity to use and enjoy a dwelling.
This dilemma was addressed by the United States District Court for the Eastern District of Michigan in Forest City Residential Management, Inc v Beasley.5 In Forest City, Beasley was a resident in a public housing who possessed a medical marijuana card and had been smoking marijuana in her apartment.6 Beasley requested that the housing facility allow her to smoke marijuana in her apartment as a reasonable accommodation
under the FHA.7 The housing facility (Forest City) sought a declaratory judgment to the effect that Beasley could not seek protection from eviction under the MMMA based on her possession of a medical marijuana card.8 Beasley suffers from multiple sclerosis, and she pos-sessed a medical marijuana card during her residency at Forest City.9 The Lease Agreement between Forest City and Beasley provided that the lease could be ter-minated in the event of any “drug-related criminal activity” by Beasley.10 Further, “drug-related crimi-nal activity” was defined as “the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with the intent to manufacture, sell, distrib-ute or use the drug (including commercial drug crimes).”11
At the outset, the Court ruled that the federal Controlled Substances Act conflicts with the MMMA, because marijuana is clearly a prohibited Schedule I drug under federal law.12 Accordingly, under the doc-trine of federal preemption, the MMMA cannot su-percede federal laws that criminalize the possession of marijuana. With that conclusion in mind, the Court found that “to require [Forest City] to grant [Beasley] a reasonable accommodation to use marijuana would be to require [Forest City] to violate federal law.” Accordingly, the Court concluded that Beasley was not entitled to a reasonable accommodation for medi-cal marijuana use under the FHA.
Due to the confusion in the MMMA regarding a landlord’s right to ban medical marihuana, On March 10, 2015, the Michigan Senate approved Sen-ate Bill 72 in a 34-3 vote allowing multi-family hous-ing to prohibit the smoking or growing of marijuana. The Bill is headed to the House for further considera-tion, and requires a three-quarters majority support in each chamber because it would amend Michigan's voter-approved medical marijuana law.
The Bill would simply codify a 2011 opinion from Michigan Attorney General Bill Schuette, who determined that apartment owners can prohibit the smoking or growing of marijuana without violating the medical law.
Impact of Decision on Housing Cooperatives
In light of Michigan District Court decision and pending legislation in Michigan, one fact is clear: any housing cooperative, whether federally funded or not, is not required to allow medical marijuana on its premises under any circumstances. Although medical marijuana is legal under Michigan law, it is not a right or accommodation that a housing cooperative is required to provide. Furthermore, numerous federal laws specifically provide that marijuana is illegal in all circumstances. Accordingly, a housing cooperative may outright prohibit the use of marijuana on its premises without fear of a lawsuit under the FHA, MMMA or any other federal statutes. Until Congress duly amends the Controlled Substances Act to change the legal status of marijuana, housing facilities simply have no requirement to allow marijuana on the premises. In that context, federally subsidized housing fa-cilities may enact policies and procedures banning marijuana possession or use of any kind by residents and their guests. Further, housing facilities can evict residents who violate such a policy.
¹ MCL 333.26421 et seq.
² MCL 333.26424.
³ 21 USC § 812(b)(1).
4 42 USC § 3604(f)(3)(B).
5 ___ F Supp 3d ___ (E.D. Mich 2014).
6 Id. at *1.
9 Id. at *2.
10 Id. at *3.
12 Id. at *8-*9.
13 Id. at *9.
14 Id. at *13.