Expert: Probably not discrimination to ban Rx pot at rentals

New Michigan law allows landlords to prohibit growing, smoking medical marijuana

Austin Ellsworth, medical marijuana
Austin Ellsworth smokes medical marijuana. (Jan. 10, 2017)


LANSING, Mich. (WOOD) — Michigan has a new law that gives landlords the authority to ban tenants from growing or smoking medical marijuana.

But is it a form of discrimination? Probably not, a legal expert told 24 Hour News 8.

Austin Ellsworth, 23, rents an apartment in Saranac and uses medical marijuana to manage chronic back pain stemming from a football injury and unrelated migraines.

“I puke and whatnot, and I’ve had spinal taps to figure out what was wrong,” Ellsworth said.

He said getting his medical marijuana card has helped ease his symptoms.

“Just relaxes all the stimulants in my brain,” he explained. “Helps me see and whatnot when those things happen, so if I smoke, I don’t have to worry about anything like that.”

As long as there isn’t any growing on the property, his landlord is OK with him smoking medical marijuana.

New state rules, signed into law this week, would allow landlords to prohibit their tenants from growing and smoking of the plant on their property.

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Ellsworth feels that’s a form of discrimination.

State Sen. Rick Jones, who sponsored the legislation, disagrees.

“I would say to them, ‘Then seek out the rental units that advertise actively marijuana friendly,” said Jones, R-Grand Ledge.

He said the law allows the use of edible marijuana to avoid the accusation of discrimination.

“They will get the same result. They don’t need to smoke it,” Jones said.

So who’s right?

“Discrimination is a very misunderstood word and it’s probably the most misunderstood word in the law,” said Cooley Law School Distinguished Professor Emeritus Curt Benson.

He said the law discriminates all the time.

“If you’re 20 years old, you can’t even have a sip of beer. You’re 21 years old, you can drink all night long if you want, just don’t drive. But does that discriminate against 20-year-olds? The answer is of course it does,” Benson said. “There are laws — civil rights laws at the federal level, something called Elliott-Larsen at the Michigan level — that list certain criteria that you can’t discriminate against. If it’s not on that list, frankly you’re free to discriminate.”

Race, nationality, sex and religion are some of those criteria. Use of medical marijuana is not included on the list.

“Except with one caveat,” Benson added. “I think there’s a possibility that you might be accused of discriminating against a medical marijuana user under the Americans with Disability Act.”

Smoking marijuana isn’t a disability, but it is a treatment for disabilities and Benson argues that could be gray area.

“It’s a pretty fine line, so I’m not saying that would prevail, but I anticipate somebody will bring that lawsuit,” he said.

Benson also says marijuana is still illegal at the federal level.

“So it would seem odd to that any state would say, ‘Due to our anti-discrimination laws, you must violate federal law,'” Benson said.

Steve Gann, corporate counsel for Mt. Pleasant-based property management firm KMG Prestige, told 24 Hour News 8 the company has already evicted tenants for medical marijuana, saying it causes mold problems and impacts the health of other tenants.

Ellsworth, the  says the new law puts strain on medical marijuana patients because housing is already difficult to find in West Michigan. He also feels there’s still a stigma against using medical marijuana, saying patients also get labeled as stoners.

“‘You’re a stoner, pothead, not really smart,'” he said people think. “I get turned away from some places because I smoke.”