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Colorado and Washington made history recently by legalizing recreational use and possession of up to one ounce of marijuana by adults over the age of 21 – though it remains a crime under federal law. Prosecutors in Pierce & King County, Washington, and Boulder County, Colorado are dropping minor pot possession cases. Officials in both states are working with federal authorities to sort all of this out.
So what must landlords and tenant screening services operating in these two states do differently going forward?
The short answer is… nothing!
First of all, possession of marijuana (even small amounts) remains a crime under federal law.
Secondly, there is nothing in either statute or case law (at this juncture) that prohibits denial of tenancy for minor marijuana convictions - though few landlords actually do so. Ultimately, it is within your rights as a landlord to deny tenancy for any reason you wish as long it is not either directly or indirectly discriminatory.
Nor does legalization of marijuana require changes to what tenant background check companies can report in these two states. There will be fewer convictions for minor offenses going forward certainly – but there is nothing in the law that prohibits reporting of those that make their way into the public record – though Washington and Colorado limit reporting of convictions (of all kinds) to those (the date of final disposition of which) antedate (precede) the report by no more than seven years.
Another question is whether landlords can prohibit smoking of marijuana on the premises. The answer is… yes. The best way to do so is to implement (and incorporate in your lease) a no-smoking policy. “Smoking” is typically defined as inhaling, exhaling, breathing, or carrying any lighted cigar, cigarette, or other tobacco product or similar lighted product in any manner or in any form – which, of course, would include smoking of marijuana for either recreational or medical purposes. Such policies do not run afoul of the American’s with Disabilities Act and the requirement to make “Reasonable Accommodations” - since medical marijuana can be taken in other forms.
VisitMoco Incorporated orMyScreeningReport.com® for more information about tenant screening and the law.