HUD General Counsel Opinion: Medically Prescribed Marijuana Not a Reasonable Accommodation

According to a January 20, 2011 HUD Office of General Counsel (OGC) legal opinion, PHAs and owners of federally assisted housing may not permit disabled current or prospective tenants to grow, use, possess, or distribute medical marijuana, even if permitted under state law.

Medical marijuana is legal in 15 states and the District of Columbia, but is illegal under federal law (the Federal Controlled Substances Act.)

The OGC said that persons who currently are using illegal drugs, including medical marijuana, are categorically disqualified from protection under the disability definition provisions of Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA).

The opinion also states that HUD fair housing investigators should not issue determinations of reasonable cause for violation of the Fair Housing Act to owners who refuse to grant such an accommodation.

The opinion left open the issue of whether current users of marijuana should be evicted, leaving that up to individual owners.

In addressing the Fair Housing Act specifically, OGC stated that accommodation requests for use of medical marijuana may be denied because it would sanction violations of federal criminal law and thus would constitute a fundamental alteration of project operations.