Evict Resident for Use of ‘Medical Marijuana’

If a resident is found using or possessing marijuana at your site and claims that she smokes it to treat a medical condition, check with your lawyer. Unless your state has a law permitting “medical marijuana” and the resident can prove her marijuana use is for medical purposes, you will probably be able to evict her. As medical marijuana use gains publicity, more residents facing eviction for illegal drug use are likely to claim it as a defense.

In New York, whose drug laws currently have no exception for medical marijuana, a court ruled that the New York City Housing Authority (NYCHA) could evict a resident for the use of marijuana that the resident claimed she needed to self-treat her epilepsy. When NYCHA sued to evict her, she claimed that NYCHA discriminated against her as an individual with a disability. But the court noted that the definition of “disabled person” doesn't include someone who is currently using an illegal drug. To boost its case, NYCHA pointed out that the resident had five misdemeanor convictions in the three prior years for possession of a “controlled substance” other than marijuana. So the court ruled that NYCHA had sufficient grounds to evict the resident [Moore v. NYCHA, April 2010].

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