PHA Can Terminate Tenancy for Marijuana Possession

Facts: A PHA terminated a resident’s tenancy after determining that she had breached its rules and regulations. In May 2011, the police executed a search warrant for the resident’s unit. The search warrant was obtained based on two incidents where an informant observed an unidentified male bagging crack-cocaine for distribution and a firearm. During the search, police found approximately 47 plastic bags of marijuana, a starter pistol, business records of narcotics transactions, and two plastic bags containing smaller plastic bags.

When the PHA was notified of the search and the resident’s arrest, two letters were sent requesting that she attend a hearing to discuss the matter. The resident claimed that she didn’t receive the first letter on time and never received the second letter, and thus missed her hearing.

Another administrative hearing was held five months later. During the hearing, the resident admitted that the marijuana recovered was for personal use and that she still smoked marijuana in her unit. Following the hearing, the hearing officer upheld the charges of nondesirability and breach of rules, and recommended termination of her tenancy. The resident appealed this determination in court on the basis that the marijuana recovered was for personal use only.

Ruling: A New York court upheld the PHA’s decision.

Reasoning: The court found the decision to be rational. The court deferred to the hearing officer’s determination that the resident’s testimony that she was storing 47 bags of marijuana for personal use wasn’t credible. Significantly, it’s uncontested that, at the administrative hearing, she admitted the charge of nondesirability, in that she did unlawfully possess marijuana, drug packaging material, and $371 in U.S. currency or other property reflecting illegal drug activity in the unit. Moreover, the resident admitted that illegal drugs were found in her unit, and that such drugs belonged to her. The record reveals that she was present during the search, and the vast majority of the 47 bags of marijuana were found in her bedroom. The fact that she’s a long-time resident doesn’t outweigh her admission that she breached the PHA’s rules and regulations. In fact, at the hearing, she testified that she has been consistently smoking marijuana in her bedroom since 1995, and admitted that she was still smoking marijuana as of the hearing date. Thus, the PHA’s determination wasn’t arbitrary and capricious, and the resident’s request was denied.

• In the Matter of the Application of Koren Burrell, July 2013