Cannabis Rule Change: A Loophole in the Smoke-Free Multifamily Ordinance?

July 29, 2024 Mark Elliot marijuana, smoking

The Department of Justice has proposed to regulate cannabis more like Tylenol plus codeine instead of hard drugs like heroin, cocaine, and methamphetamine. Makes sense! Cannabis always seemed out-of-place on the schedule I controlled substances list. But the proposed reclassification to schedule II may open the door to the smoking of marijuana in multifamily housing. That is not allowed in Beverly Hills even for Cannabis medical consumption. If the new DOJ rule takes effect we might well smell weed wafting through our hallways.

Marijuana is of course readily available in California with a prescription for medical use. Voters passed Proposition 215 in 1996 to enact the Compassionate Use Act to allow registered individuals to obtain and use medical marijuana. However that action did not override local laws that prohibited smoking in order to protect the public health.

Marijuana is also readily available for recreational use in California, of course. In 2016 voters passed Proposition 64 to enact the Adult Use of Marijuana Act for recreational use. This law too didn’t override local law. A locality could ban smoking, pot shops and more.

Beverly Hills has in fact banned smoking and pot shops. In 2017 Beverly Hills enacted the Smoke-Free Multi-Unit Housing Ordinance to prohibit the smoking of tobacco or any other substance in multifamily dwellings and common areas. The prohibition applies to the smoking of marijuana even when it is prescribed for medical use.

Today the total prohibition on smoking marijuana in Beverly Hills under any circumstance stands only because federal law recognizes marijuana as a schedule I controlled substance. But if DOJ reclassifies marijuana as a less-restricted schedule III controlled substance then that may open the door to the smoking of marijuana even where local ordinance prohibits it. Read on for the details!

Reasonable Accommodation

The loophole that could get around the city’s Smoke-Free Multi-Unit Housing Ordinance is a federal and state requirement that allows disabled individuals to request a ‘reasonable accommodation.’ As the federal Fair Housing Act explains, a reasonable accommodation is a “change, exception, or adjustment to a rule, policy, practice, or service” as necessary to ensure that individuals with disabilities can access and enjoy housing. A reasonable accommodation has to be connected to the disability.

For example, a common request for a reasonable accommodation is grab bars in the bathroom — which is a request that the landlord would likely have to accommodate. (For the record, the tenant may have to pay for installation and to return the premises to the condition before the accommodation.)

In this instance the reasonable accommodation would be an exception to the local prohibition on smoking marijuana if the individual has a disability-related condition and marijuana is prescribed to treat that condition.

The issue was discussed very briefly in a city staff report in 2016 that concerned the smoking of marijuana in multifamily housing. We have added our emphasis.

The California Compassionate Use Act allows registered individuals to use medical marijuana, but does not override local laws that are designed to protect the health of others. Therefore, cities would not need to provide medical marijuana users with exemptions from following a smoke-free multi-unit housing policy. This is corroborated by the fact that medical marijuana can be consumed through other methods that are smoke-free (i.e. pills or food). If the resident in question can smoke only inside the unit and is unable to consume medical marijuana through smoke-free methods such as pills or edibles, smoking might be permissible under the ‘reasonable accommodations’ standard for disabilities. — Smoke-free ordinance staff report October 25, 2016

In an earlier explainer we looked into why a user with a disability couldn’t simply request to smoke prescribed marijuana as a reasonable accommodation…like requesting grab bars in the shower, say. Federal law is the obstacle: a reasonable accommodation cannot be granted in a circumstance where the accommodation itself concerns an “illegal use of drugs.”

In 42 U.S. Code § 12210 subsection (d)(1) that term is defines ‘illegal use of drugs’ as the use of any drug “the possession or distribution of which is unlawful under the Controlled Substances Act.” Today marijuana is a schedule I drug (as is heroin). No drug on the schedule I list can be consumed pursuant to a reasonable accommodation under federal and state disability law.

Case law supports that interpretation. In James v. City of Costa Mesa (2012) the court upheld that application of that federal statute in California and found that a disability claim cannot stand when federal law categorically excludes illegal drug use as a protected accommodation. Hence there is no exception for medical marijuana even when prescribed to treat a condition related to disability.

However if the Department of Justice’s proposed rule to reclassify marijuana takes effect, then that change may open the door to the smoking of marijuana despite local smoke-free ordinances.

(Curious about how marijuana was determined to be so harmful as to need regulation under schedule I? Read the text of the proposed rule titled, Schedules of Controlled Substances: Rescheduling of Marijuana for a deep history.)

National Transportation Safety Board Flags the Play

Granting a reasonable accommodation for marijuana use could have broader safety implications as was detailed in a comment posted to the proposed rule website by the National Transportation Safety Board. What if a disabled driver obtains a reasonable accommodation to smoke prior to taking the wheel? Today that is considered impairment.

The National Transportation Safety Board commented:

Through our accident and incident investigations and transportation safety research, the NTSB has developed experience with marijuana use among noncommercial and commercial vehicle operators and other transportation safety-sensitive personnel. We recognize that marijuana is a prevalent drug with performance-impairing effects, that human performance is critical to the safe operation of transportation systems, and that most people interact with transportation systems multiple times per day. Consequently, we believe that interactions with transportation systems are among the most important ways in which the public may be exposed to risk from marijuana’s effects.

The comment continued, “We urge the DEA to thoroughly examine issues of transportation safety when evaluating the public health risks of marijuana, and when accounting for the human and economic costs of the proposed rescheduling action.”

What’s Next?

The comment period for the proposed rule closed on July 22, 2024. Next DOJ will review those comments and could issue a final rule thereafter. Indeed the DOJ may want to finalize the rule before the next federal election. However any final action is subject to congressional review (and it may also be challenged in court). Or DOJ could hold off on finalizing the rule until a new congress is seated in January. Whichever way it appears that the rescheduling of marijuana will not happen immediately.

Alternately, Congress, DOJ or the FDA could exempt marijuana smoking for the purposes of a reasonable accommodation but leave it classified as schedule I. Certainly there is plenty to inform the next steps! Controversy over the proposed rule has generated more public comment than any proposed rule change in the past, according to the Guardian news outlet. A preliminary analyses of the comments shows a slight majority is in favor of either rescheduling it or decriminalizing it altogether.