Court Upholds Eviction for Marijuana Use

An evicted resident sued the local housing authority for discrimination and violation of due process. The various claims against the PHA related to two eviction attempts against the former resident. One eviction attempt was in 2021 and the other was in 2022. The 2021 eviction was initiated after the resident allegedly allowed a banned individual into her apartment. The resident asserted protections under the Violence Against Women Act (VAWA) as a victim of domestic violence. And the 2022 eviction was based on her use of medical marijuana in her unit, which violated the housing authority’s policies, despite marijuana’s legal medical use in the state.

Resident’s Marijuana Use Violated Site’s Policies

The resident argued that she lacked actual notice that marijuana use could lead to eviction. However, the court found that the housing authority had provided ample notice through newsletters and lease terms that the resident’s marijuana use could lead to eviction. 

The court also ruled against her disability discrimination claim. She claimed her eviction for medical marijuana use was discriminatory. The court ruled that marijuana remains a federally illegal drug, and federal law doesn’t protect individuals engaging in illegal drug use. 

The resident also argued that the housing authority’s inspection of her apartment for pest control, during which marijuana paraphernalia was observed and photographed, was an unconstitutional search. The court ruled that the inspection was conducted with her consent as outlined in her lease agreement. And with respect to her claim that the 2022 eviction was retaliation for her 2021 legal defense and invocation of VAWA protections, the court found no evidence supporting this claim.

Takeaway

The housing authority’s consistent communication of rules, especially with regard to the prohibition of marijuana use through newsletters and lease terms, was crucial in defending the lawsuit against due process and disability discrimination claims. 

Although some states permit marijuana use for medical or recreational reasons, federal housing is based on federal laws. At this time, marijuana use is still prohibited by federal law. Federally, marijuana is considered a Schedule 1 substance, and for this reason, the manufacture, distribution, or possession of marijuana is a federal criminal offense. The use of “medical marijuana” is illegal under federal law even if it’s permitted under state law.

However, guidance from HUD shows the nuances in laws that federal housing projects are operating under. On Dec. 29, 2014, HUD sent a memorandum to all HUD offices regarding the use of marijuana in multifamily assisted properties. The purpose of the memo was to clarify HUD’s position regarding renting to applicants who use marijuana and the treatment of current residents who use marijuana. 

For new applicants, the memo makes it clear that owners of federally assisted housing are required by the Quality Housing & Work Responsibility Act of 1998 (QHWRA) to deny admission to any household with a member who is determined to be, at the time of application, illegally using a controlled substance as that term is defined by the Controlled Substances Act. In contrast to the provisions regarding applicants, the requirement of federally assisted housing projects is different for existing tenants. The memo makes it clear that current users of marijuana, even if medically prescribed, are not eligible for admission to federally assisted housing. However, the law “allows” the owner to terminate occupancy, but it is not a requirement.

In this case, however, with this particular housing authority, its clear, documented policies and regular tenant communication helped validate the resident’s eviction for medical marijuana use. 

• McVicker v. Muskogee Housing Authority, October 2024