Marijuana Housing Concerns

Advisories

• Nothing herein should be construed as legal advice – consult an attorney for your particular situation!

• We are not doctors or medical professionals – consult your doctor for your particular situation!

• If you participate in some sort of federal program (HUD, LIHTC, RD, etc) you may have more safe harbor based on marijuana being illegal under federal law and your potentially having to follow no drug policies.

The following excerpt was taken from a presentation to members of South Dakota Multi Housing Association.

SDMHA Members can view the entire presentation HERE.  Proposed Medical Cannibis Rules HERE.  Complete SD Codified Law HERE.

Question 1: Can a Landlord Ask if Someone is a Cardholder?

Yes – it appears you can, nothing in state law says that you cannot ask, and being a marijuana user isn’t a protected class – however… Asking the question could illicit an answer that could cause you problems – if the person says “yes, because I have ” Perhaps better NOT to ask – simply require tenants to sign a no smoking and
no illegal drug agreement

Question 2: Can I Verify Someone is a Cardholder?

Yes – but only if the cardholder authorizes it.  SDCL 34-20G-90 “At the cardholder’s request, the department may confirm the cardholder’s status as a registered qualifying patient or a registered designated caregiver to a third party, such as a landlord, school, medical professional, or court”. NOTE: A cardholder can have their card expire, be revoked, or the card could be phony – probably best to check with the state to verify its validity IF you need to

Question 3: Can I Refuse to Lease to Someone Solely Because They are a Cardholder?

No – UNLESS allowing someone to use or possess marijuana would put you at risk of losing a federal benefit/funding or violate a rule imposed by a federal program you participate in.  SDCL 34-20G-19 “No school or landlord may refuse to enroll or lease to and
may not otherwise penalize a person solely for the person’s status as a cardholder, unless failing to do so would violate federal law or regulations or cause the school or landlord to lose a monetary or licensing related benefit under federal law or regulation”

Question 4: Can a Landlord Prohibit Cultivation (Growing) in/on Their Property?

Yes. SDCL 34-20G-27(3) “Nothing in this chapter requires a landlord to allow the cultivation of cannabis on the rental property”

Question 5: Can a Landlord Prohibit Smoking and/or Consumption in the Unit or on Their Propety? Does my Addendum Cover it?

Appears you can prohibit smoking. Check and update any lease/agreements to ensure no smoking policies cover marijuana (not just tobacco).  Can you prohibit consumption – unclear – but potentially you could prohibit any use or possession of illegal drugs on the property which would cover this (particularly if you have a federal program that would cause you problems if there was marijuana on the property). SDCL 34-20G-27(2) “Nothing in this chapter requires any person or establishment in lawful possession of property to allow a guest, client customer or other visitor to smoke cannabis on or in that property”

Queston 6: Are There any ADA Implications? Do You Have to Provide an Accomodation? Can Someone Claim ADA?

General precedent is that you do NOT have to provide an accommodation for someone to use marijuana because by definition it is “per se unreasonable” to ask you to violate federal law by allowing someone to use drugs on your premises (even if legal under state law)

Question 7: If I Participate in a Federal Program e.g. financing, What Rules Apply?

Talk to your attorey!  SDCL 34-20G-19 “No school or landlord may refuse to enroll or lease to and may not otherwise penalize a person solely for the person’s status as a cardholder, unless failing to do so would violate federal law or regulations or cause the school or landlord to lose a monetary or licensing related benefit under federal law or regulation”

Question 8: What Does a Doctor's note or Certification Look Like? Do I Have to Accept it?

The document a patient gets from an IN STATE doctor that allows them to get a medical marijuana card is called a “written certification”.
The written certification contains private health information. You would not want to ask or see that document.   The person having a valid card, verified that it is still valid by the state, via permission from the cardholder for the department to release it, would be the verification you would want.