Marijuana Law, Policy, and Authority

Interesting New Student Note on Application of ADA to Marijuana Dispensaries

Posted by on Friday, September 27, 2019 in News, Updates.

Chris Conrad, a law student at Georgetown, has written a very interesting new paper on an issue that had previously escaped my attention: Whether the Americans with Disabilities Act (ADA) applies to marijuana dispensaries (e.g., whether those dispensaries must make themselves accessible to persons with disabilities). The issue is of particular salience to medical marijuana dispensaries, given that at least some qualified patients participating in state medical marijuana programs would likely struggle to access retail shops without some design accommodations.

Here’s an excerpt from the abstract of Chris’s paper:

This paper analyzes whether federal customer and employee discrimination claims in federal court against dispensaries and other marijuana businesses in legalizing states can be successfully brought. . . . A simple question is posited: can a disabled person sue a dispensary in federal court in a legalizing state for injunctive relief if the dispensary fails to “make reasonable accommodations” for access (e.g., building ramps, widening doorways, etc.). Under Title III, all businesses that operate as “places of public accommodation” must ordinarily “remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable” to accommodate disabled patrons. But several common law and prudential legal doctrines present obstacles to a federal court’s ability to grant customer access to a marijuana storefront under Title III. These doctrines include the rule against illegal injunctions, in pari delicto, and the “unclean hands” doctrine. This paper analyzes these legal limits, as well as the history, text, and administration of Title III, to propose a legal framework that enables courts to issue relief.

Leveraging its Title III analysis, the paper then proceeds to analyze federal protections for employees. It reaches a troubling conclusion: more than 150,000 employees of marijuana businesses in the United States are very likely unprotected by federal civil rights laws, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and Title I of the Americans with Disabilities Act. . . .

You can download the full paper from SSRN here. If you have any thoughts or comments on the paper (or experience dealing with these issues), you can find Chris’s contact information on SSRN.

My book covers the application of various federal civil rights laws (including the ADA and the Fair Housing Act), to employers and landlords in Chapters 13 and 14 (pp.  655-681 and 727-733).

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