In my medical marijuana and the ADA blog entry, I discussed the Massachusetts Supreme Court opinion holding that medical marijuana use may be a reasonable accommodation for a person with disability. That blog entry leads to a corollary question: is a legal medical marijuana dispensary/place of business (hereafter, dispensary), subject to title III of the ADA? After all, what they are selling at the dispensary is illegal under the Controlled Substances Act, which makes possession of marijuana a crime regardless of whether it is prescribed by a physician for medical use. On the other hand, 90% of States have medical marijuana laws, and there are States where marijuana is legal for everyone. So, let’s say you have a medical marijuana dispensary, do you have to worry about title III of the ADA at all?
Before proceeding further with that, if you think about it, anybody needing a prescription for medical marijuana is going to be a person with a disability. So, as a matter of good business sense, it makes sense for a marijuana dispensary to comply with title III of the ADA just for the sake of servicing its customers.
Of course, that doesn’t answer the question of whether a perfectly legal marijuana dispensary under State law has to comply with title III of the ADA. I would argue that a legal marijuana dispensary does indeed have to comply with title III of the ADA for the following reasons. First, a marijuana dispensary sells marijuana and therefore, is a sales or rental establishment under 42 U.S.C. §12181(7)(E). Second, the owner of the marijuana dispensary property obviously owns, operates, leases, or leases out the property per 42 U.S.C. §12182(a). Third, the marijuana dispensary is engaged in interstate commerce per 42 U.S.C. §12181(1) because it undoubtedly engages in interstate commerce by either conducting trade, traffic, commerce, transportation, or communication: (A) among the several States; (B) between any foreign country or any territory or possession and any State; or (C) between points in the same State but through another State or foreign country. Finally, nothing in title III of the ADA says that a place of public accommodation’s classification depends upon whether what it sells is legal under federal law.
Are there contrary arguments? Barbuto suggests one, though I don’t know if the argument would prevail in court. That argument is the owner, operator, lessor, or lessee of a marijuana dispensary is possessing marijuana and probably (I am not a criminal lawyer), aiding and abetting its possession as well by permitting customers in its store buy the marijuana. So, therefore, since the product is illegal. It would be against public policy to classify it as a place of public accommodation under title III of the ADA.
In short, as a matter of preventive law and quite probably as a matter of law as well, if your business is a marijuana dispensary, you would be wise to comply with title III of the ADA. It also makes good business sense.