Blaze the rent

When Eric Stewart, a blind man living in Sacramento, was served a 60-day eviction notice in January for smoking medical marijuana in his apartment unit, the issue of tenants’ rights and cannabis resurfaced. And many were shocked that Stewart had no legal ground to dispute his eviction.

“Marijuana is illegal under federal law, period,” explained Heather Messenger, managing attorney for the Regional Human Rights/Fair Housing Commission. “Under state law, marijuana is illegal except for medicinal use. But federal law trumps state law.”

But Messenger also pointed out that most landlords are tolerant of medical-marijuana use as a business decision; they have to stay competitive.

Indeed, Mercy Housing, which oversees 125 low-income rental properties throughout California, has no formal policy on medical-pot use among its tenants. And Mercy regional director of resource development Rick Sprague says that the organization does in fact house tenants who are medical-cannabis patients.

Still, as a renter, your rights are nebulous and you might find yourself helplessly subject to a landlord’s whim. Americans for Safe Access, an Oakland-based cannabis-patients advocacy group, laments this legal reality. “The fact that we have to deal with civil-rights issues like access to housing, employment and even child custody issues,” said Kris Hermes with ASA, “is a travesty to the law and the hundreds of thousands of patients that are legally complying.”

The incidents are numerous and complex. Messenger noted, for instance, the 2008 Ross v. RagingWire case, in which the plaintiff, Gary Ross, was fired for his off-duty medical-marijuana use. Ross suffered from back pain as a result of injuries sustained while he served in the U.S. Air Force and, after no other medication relieved his pain, he began using medical marijuana at home as per his doctor’s recommendation. When his employer, RagingWire Enterprise Solutions, mandated a drug test in order to promote him, Ross failed and was fired. He sued the company, but the court eventually ruled against him.

Even if you smoke at your apartment, the Americans With Disabilities Act doesn’t necessarily protect a patient’s right to workplace and public accommodation. “Because it’s still illegal under federal law, the ADA doesn’t cover medical marijuana,” Messenger explained. “A medical-marijuana prescription isn’t considered a legitimate prescription.” The California Compassionate Use Act, which legalized medical marijuana, simply gives the patient a defense in court, she explained.

So, while a medical-marijuana patient may not be charged with a crime for possessing marijuana, that patient can lose their job or apartment—until federal law aligns with state law. In the meantime, the rights of tenants who use medical marijuana will come down to the business interests of their landlords.