Does My Landlord Get To Ask About My Pot Plants?

Dave’s here to answer your questions every Wednesday, so send them to him at tenant@sfappeal.com

I have an otherwise reasonable landlord. I rent a house with a completely fenced private yard. I have two pot plants. I am a medical marijuana patient. My disability is visible. I’m also a professional psychologist with a license to protect and I know I’m not breaking the law.

The landlord, with my permission brought a workman over to repair a shed. Since I knew he’d see the plants amidst the tomatoes and strawberries I decided to tell him in advance about them and my medical clearance. No further mention was made, and the shed was repaired. I decided to move the plants anyway, since I’ve had them stolen in past and now a workman has seen them.

So they are not on my property now but before the landlord knew that, he wanted to see my medical papers, claiming that his WIFE is concerned – she works in a police station and doesn’t want MY activities to reflect badly on HER. Well, of course if she doesn’t blab about it – how would anyone even know?

That is beside the point. My question is: Does the landlord, or anyone, have the right to demand to see my medical papers?

I believe I have privacy rights as a citizen and as a patient. I also have a prescription for vicodin, and have that in the house, but he’s not demanding to see my medical records on that. Both substances are illegal without medical clearance; both are covered under medical record privacy laws. Or am I wrong?

In addition, just because he owns the house, does not mean it’s his business, nor his or his wifes responsibility for what I do in it. I’m not destroying the property, nor disturbing the peace. It’s my private yard and if I garden naked or grow pot in that garden (within the limit) is not his or anyone’s business. Or am I wrong?

I believe I can only be compelled to show any such papers by court order, or maybe if I want to avoid arrest in some circumstances it would be smart and appropriate to show medical clearance. But can the landlord demand my papers just because he owns the house?

I want to be clear on my rights here. Can you direct me to someone who can answer these questions?

I wish my answer could be simple, something like: We live in San Francisco, the most tolerant city in the world. Of course, you can tend to your marijuana garden in the nude. Doesn’t everybody? Note that my simple answer implies that marijuana use and cultivation is legal and has been for, say, the last forty years. Unfortunately, this simple analysis is not available…yet.

Our society has long maintained conflicting attitudes toward marijuana. Our policies are simply schizophrenic. In California we laud the plant as having beneficial medical value while we still prosecute those who smoke it “illegally.” One might argue that those who make marijuana policy should sit down, smoke a joint, listen to the Dead and think about what they have wrought.

In San Francisco we passed an initiative to make enforcement of marijuana laws the lowest priority for our police and in 2006 established the Marijuana Offenses Oversight Committee to monitor the implementation of the ordinance. Yet on September 30, 2009, the Police Department issued a press release encouraging all citizens to report suspected illegal marijuana cultivation.

As you can imagine, the paradox extends to landlord-tenant relationships. As a medical marijuana patient, California supports your right to smoke and cultivate pot.

Federal law, however, makes it a misdemeanor to possess and a felony to cultivate pot. Rent Ordinance §37.9(a)(4) provides a just cause for eviction if, “The tenant is using or permitting a rental unit to be used for any illegal purpose.” It is also likely that your lease has a similar provision.

So what do you do? I think your decision to remove the plants was a prudent one, given the absolute uncertainty of the law.

Does the landlord have the right to demand to see your medical papers? It depends upon your definition of medical papers. If you mean your medical records that qualified you for your status as a medical marijuana patient, the general answer is no, not without a court order.

The landlord can only get a court order if there is a pending lawsuit. That lawsuit would likely be an unlawful detainer (eviction) action–difficult and expensive to defend.

Why force the issue? Do you have one of San Francisco’s optional city-issued medical marijuana ID cards? If so, I suggest that tenants simply show the landlord their cards. Then the landlord is on notice that you have a viable defense in case he tries to evict you. His eviction could be viewed as disability discrimination.

Is it the landlord’s business to know what’s going on in this building in general? Absolutely! The landlord has the duty to repair and maintain the building. He has the right to inspect the building to perform those duties. I always argue that the landlord knew or should have known about defective conditions in a building when I prosecute a case for breach of the warranty of habitability.

Is it the landlord’s business to know about and control potential illegal behavior in this building. Absolutely! Landlords get sued by municipalities all the time for allowing their buildings to be used as crack houses, for example, under the rubric of “public” nuisance.

I know marijuana is not crack. Tenants have possessory rights to their units as well as the implied covenant of quiet enjoyment. In other words the landlord is mostly required to leave you alone…unless you’re doing something that’s illegal. (Nude gardening doesn’t count unless you live in Boulder, CO.)

The marijuana laws are just as confusing to a landlord. While it’s highly unlikely, a landlord’s property could be seized if a court determined that he had some culpability in an illegal growing scheme. Landlords can be subject to stiff fines for public nuisance. Finally, what are they supposed to do if other tenants or neighbors complain or dutifully report cultivation to the police department? This is one of those rare situations when I see that the landlord is also acting prudently.

As tenants, we can help allay our landlords’ confusion. We can begin to reverse the idiotic policies that lead to conundrums like this. We can vote Yes on Proposition 19 for the legalization of possession and cultivation of marijuana for personal use.

Crow & Rose's legal practice emphasizes eviction defense, wrongful eviction and other landlord tenant and real property matters.

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