On March 18, Gov. DeSantis signed a bill passed by the Florida Legislature that gives Floridians the right to smoke medical marijuana, and, on March 21, a North Florida man struggling with fibromyalgia became the state’s first patient to legally buy whole-flower cannabis for smoking. Prior to the bill’s signing, medical marijuana was legal but not in smokable form.
So must Florida landlords now allow tenants to smoke medical marijuana if a tenant has a disability covered under fair housing laws? (Recreational use remains illegal.)
The short answer: There is no short answer.
Federal law has not changed, and marijuana is still illegal. It’s defined as a Schedule I substance under the Controlled Substances Act. However, federal law prohibits the Justice Department from using any of its funding from Congress to prosecute medical marijuana in any state where it’s legal. From a federal perspective, however, “don’t prosecute” is not the same thing as “it’s now legal.”
Marijuana history in Florida
Florida voters passed Amendment 2 in 2016 and expanded Floridians access to medical marijuana. The amendment created a list of ailments that a doctor could consider when prescribing it as a treatment.
When it comes to medical marijuana, however, Florida law is still in its infancy and highly restrictive, even with the new freedom to imbibe in smokable form.
Marijuana use and real estate
This raises a question from housing providers: What must I allow in housing units regarding medical marijuana usage?
State and federal fair housing laws require housing providers to offer reasonable accommodation to individuals who are members of a protected class, and the Fair Housing Act defines a person with a disability as:
- Individuals with a physical or mental impairment that substantially limits one or more major life activities
- Individuals who are regarded as having such an impairment
- Individuals with a record of such impairment
This arguably includes individuals being treated with medical marijuana that’s legally prescribed under Florida law. Seeing this, many housing providers are now wondering if they must allow medical marijuana usage in a Florida dwelling unit. Like all legal questions, the devil is in the details. Before the smoking law passed in March, the allowance to use medical marijuana wasn’t that dramatic, but the ability to smoke has added a new challenge.
“The new law doesn’t go into specifics with regards to the application of fair housing laws, so it will take some time to see how it plays out,” says Meredith Caruso, associate general counsel for Florida Realtors. “Is it considered a reasonable accommodation if a landlord allows medical marijuana smoking provided a tenant only does it outdoors? Maybe for that tenant, but what about a different tenant that has a disability that prevents them from easily going outside?”
Caruso says it’s important for landlords to continue to remember that affording tenants a reasonable accommodation remains the same and it needs to be done on a case-by-case basis.
“Unfortunately, we’ll have to give this issue a little time and wait for regulators and the courts to figure out the implications of this new law for housing providers,” Caruso adds.