Medical Marijuana and the Illinois Landlord and Tenant

cannabisNew Illinois pot law could get landlords in the soup!

On January 1, 2014, the “Illinois Compassionate Use of Medical Cannabis Pilot Program Act” took effect making Illinois the twentieth state in the union to permit some form of lawful medical marijuana.  This may be a great victory for people who are sick and people who want to try to play the system to get recreational drugs, but it creates a whole new world of regulation and requirements for Illinois landlords.

Right now, we are still in the first four months of the pilot program during which the State of Illinois is trying to set up a set of administrative guidelines.  The proposed guidelines can be found on the state’s website.  The State of Illinois has set.  Those guidelines currently warn against the use of medical marijuana until the program is up and running.

The state law allows cardholders to possess, in most cases, up to 2.5 ounces of medical marijuana every two weeks.  The law does not provide for cardholders to grow their own cannabis.  Further, patients from other states do not automatically qualify.

So what does medical marijuana have to do with landlords?  Well, I can think of a million questions that might need to be asked.  Must an Illinois landlord rent to a tenant who is a “cardholder” (under the Act, “Cardholder” means a “qualifying patient” or a “designated caregiver” who has been issued and possesses a valid registry identification card by the Department of Public Health)?  May a landlord discriminate against an Illinois tenant who is a cardholder?  May an Illinois landlord prohibit smoking in or around the rental premises?  Must a landlord make “reasonable accommodations” to a cardholder as required of other people with disabilities according to the Americans with Disabilities Act?  Is a landlord be responsible for the drug activities of a lessee using medical marijuana on the rental premises?  Is the Illinois landlord’s building subject to forfeiture as a result of medical marijuana drug activity on the rental premises?  Phew!  That’s a lot of questions and this law is brand spanking new and, unfortunately, not much help when it comes to some of these questions.

Let’s start with the Illinois law and how it seems to interact with landlords.  First, at section 410 ILCS 130/40(a)(1), the law prohibits a discrimination against cardholders.  It says that “No… landlord may refuse to.. lease or otherwise penalize a person solely based for his or her status as a registered qualifying patient or a registered designated caregiver unless failing to do so would put the school, employer, or landlord in violation of federal law or unless failing to do so would cause it to lose a monetary or licensing-related benefit under federal law or rules.”  This sounds alot like a fair housing issue!  Basically, the state is saying that a landlord cannot discriminate against a cardholder solely based on their status as a cardholder.  There is an exception allowing discrimination if failure to discriminate would violate federal law or if it would cause a loss of money or license under federal laws or rules. That’s a mouthful!

The last sentence of 410 ILCS 130/40 says that “This does not prevent a landlord from prohibiting the smoking of cannabis on the premises.”  Well, that’s good news!  So, landlords have clarity on one issue.  It would seem that a landlord can prohibit the smoking of medical marijuana on the rental premises.

Section 410 ILCS 130/40(c) says that “No… landlord… may be penalized or denied any benefit under State law for… leasing to… a cardholder.”  So there seems to be some state immunity for Illinois landlords.  If an Illinois landlord rents to a cardholder, the state is basically saying it will not penalize the landlord or deny the landlord any state benefits.

What about city benefits? What about County benefits? What about federal benefits?  The law is silent on those issues.  However, the proposed regulations make one thing very clear.  Marijuana is illegal under federal drug laws!  Under the proposed regulations section related to “Federal Prosecution”, the State makes clear that “the United States Congress has determined that marijuana is a controlled substance and has placed marijuana
in Schedule I of the Illinois Controlled Substances Act. Growing, distributing, and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal laws. The state of Illinois’s Compassionate Use of Medical Cannabis Pilot Program Act will not excuse any registrant from
any violation of the federal laws governing marijuana or authorize any registrant to violate federal laws.”

So, basically, marijuana, even under the medical marijuana program is still illegal under federal law (including the Federal Controlled Substances Act USC Section 801).  This can create some serious issues for Illinois landlords!  Landlords could be subject to civil forfeiture laws related to on-premises drug activity.  In 2013, the Department of Justice dropped a number of landlord prosecutions related to medical marijuana.  That said, the federal law is the federal law and there is no guarantee that the federal government policy will not change again resulting in more lawsuits against landlords.

Further clarification comes from a January 20, 2011 HUD memo regarding medical marijuana in public housing agencies that indicates that a public housing landlord need not make “reasonable accommodations” allowing medical marijuana for a “disabled person” when the act (smoking marijuana) is illegal and that those public housing agencies may terminate tenants for medical marijuana use.

So, every Illinois landlord needs to make a decision about how their leasing policies will be impacted by this new law.  I can see the potential need to revise leasing eligibility criteria and to revise certain lease terms related to smoking or criminal behavior on or about the rental premises.

Are there gray area here?  Yes, you can be sure that there are!  This law is brand new and we will have to see how the Illinois and federal authorities will respond.

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