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Is HUD Marijuana Policy a Guide for Private Rules and Regulations for Excluding Violence from Your Community?

Is HUD Housing Policy Evidence of Reasonable Rules and Regulations for Excluding Drugs and Violence from Your Community?oj.jpg

By: Terry R. Dowdall, Esq.
DOWDALL LAW OFFICES, A.P.C.

How do we keep dangerous, violent menaces from tenancy in your park? If Orenthal James Simpson applied for tenancy today, could he be declined?

Park owners sometimes stick out their necks too far, and do not receive the backing of local law enforcement. Even when the law forbids the conduct, such as marijuana. Whether for reasons of lack of manpower, distaste for adverse statistics making the department look bad, dislike for the 'paperwork,' or the avoidance of a strong and publically costly response, some departments look the other way. If local constabulary tolerates unlicensed outdoor cultivation, possession or sales activity, can the park owner be expected to do more?

Regrettably, the park owner owes duties to extract dangers to others with or without 911 assistance. While law enforcement leaders harshly criticize good Samaritan who squelch crimes in progress, the failure to act to enforce the law in mobilehome parks means the duty to protect others devolves to the management. We are then compelled to act for the protection of the quiet enjoyment for the residents, or not (often the case due to rent controls making intervention cost prohibitive), and then pray insurance will cover the injury and damage.

To determine whether rules are reasonable or not, we can look to legislative judgments and policies. If a state law criminalizes theft, a rule barring stealing property should be reasonable. If the United States defines marijuana use as illegal, it should be a reasonable rule and regulation too. A reasonable policy for private owners can be derived from incorporating the legislative judgments in extant law. Example: every set of rules and regulations requires that residents comply with law: this includes applicable statutes, ordinances, laws and regulations. Park owners therefore can enforce all applicable law as a rule and regulation.

For the interventionist park management (not because it represents any form of good, prudent or best management practice, as defined by Andrews v. Molyneaux and other legal authorities which provide minimal standards of care), the HUD "Policy" for its own housing is summarized as follows:

". . . owners must deny admission to assisted housing for any household with a member determined to be illegally using a controlled substance, e.g., marijuana. Further, owners may not establish lease provisions or policies that affirmatively permit occupancy by any member of a household who uses marijuana. Owners must establish policies which allow the termination of tenancy of any household with a member who is illegally using marijuana or whose use interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents. Section 577 of QHWRA affords owners the discretion to evict or not evict current tenants for their use of marijuana."

"Use of Marijuana in Multifamily Assisted Properties"
https://portal.hud.gov/hudportal/documents/huddoc?id=useofmarijinmfassistpropty.pdf

Use of a legislatively embedded policy is strong evidence that a similarly drawn rule and regulation will be deemed to be reasonable.

* * *

The U.S. Department of Housing and Urban Development (HUD) memo was issued due to questions concerning the use of marijuana in HUD properties that allow the use of marijuana.

The policy specifies that HUD owners must deny admission to any applicant (or member of the household) that is illegally using a controlled substance, including marijuana. In addition, owners must develop policies which "allow the termination of tenancy of any household with a member who is illegally using marijuana or whose use interferes with the health, safety or right to peaceful enjoyment of the premises by other residents." Further, owners may not establish lease provisions or policies that affirmatively permit occupancy by any member of the household who uses marijuana. The HUD notice clarifies that the use of marijuana is illegal under federal law.

The HUD policy, however goes further and states that HUD landlords have "discretion" on developing policies and procedures when not to evict a resident for marijuana use under certain conditions.

As attorneys for Flynn Law Group have written, "Imagine your surprise when you walk into your office on a Monday morning to meet a prospective tenant and he stinks of marijuana as if he walked straight from a concert into your building. Even more surprising, the prospective tenant is not bashful about his weed usage. Without asking, he simply blurts out, 'Yeah man, I got a medical marijuana card so I smoke a lot of weed, it's legit now.' After years in property management, you just know this guy is going to be a problem, but you have read the headlines and have heard that it is legal to use marijuana in your state now. What are you to do?"

Emerging state laws notwithstanding, the manufacture, distribution or possession of marijuana is still federally a criminal offense. So if you have tenant users, does federal law preempt state laws? State laws have zero relevance if the fickle finger of federal prosecutorial discretion singles you out.

If a landlord allows bad conduct on the leased property, the landlord can be held liable in some circumstances. Example: letter from the L.A. City attorney demanding eviction of drug dealing residents to avoid suits for harboring a nuisance against park owners. So if residents are loitering, shirtless and sweating profusely, do alarm bells sound? Maybe so if it is January at 37º at 4:00 a.m. Park management cannot expect to look the other way. In rent control areas, it may be the best policy because it is usually cost prohibitive: reimbursement for attorney's fees is usually not awarded dollar for dollar-the defense from experts such as Kenneth Baar is that such expenses are non recurring and therefore should be discounted or denied. If insurance premiums increase, the plain fact or reasons for premium increases is internal to the insurance company decision-making process, and thus undiscoverable--premiums go up all the time. In other words, reimbursement for insurance premiums is more likely than for attorney's fees. In rent control jurisdictions, it is the residents that suffer. Nor is case by case business judgment a service reduction. The law compels admission of the marijuana reeking applicant with a big bank roll-the drug dealers can always pay the rent. No money to contest borderline application rejections means diminishing resident quality. "Jerry Springer" parks are increasing, due to governmentally-fixed rent ceilings.

Any discussion of marijuana begins by review of federal marijuana laws. There are two significant laws:

The Controlled Substances Act (CSA), 21 U.S.C. Section 801 et. seq; The CSA makes the manufacture, importation, possession, use and distribution of certain substances is regulated. Pursuant to the CSA, marijuana is an illegal controlled substance.

The Quality Housing and Work Responsibility Act of 1998 (QHWRA), 42 U.S.C. Section 13662. Section 577 of QHWRA extends standards on denying admission and terminating tenancies for illegal drug use all operators of other federally subsidized projects.

Therefore, marijuana users cannot be admitted to federally assisted housing. As stated in HUD's memo, "owners of federally assisted housing are required by QHWRA to deny admission to any household with a member who the owner determines is, at the time of application for admission, illegally using a controlled substance as that term is defined in the CSA." Marijuana is a controlled substance under the CSA and therefore owners and operators of federally assisted projects must deny admission at the time of application to any household with a member who the owner determines is using marijuana.

But further, there is some wiggle room. Under the QHWRA, owners must develop policies which "allow the termination of tenancy" for any household with a member:

1) who is illegally using a controlled substance, or

2) whose illegal use (or pattern of illegal use) of a controlled substance interferes with the health, safety or right to peaceful enjoyment of the premises by other residents.

Marijuana is a "controlled substance" under federal law; so whatever marijuana policy the HUD landlord adopts, it must provide for eviction. There must be a policy that allows a "terminat[ion]." Moreover, no policy is allowed which would say that a tenancy be protected in "harmless" cases like tenants using medical marijuana and not disturbing others ("if you violate the rules, tenancy may and will be terminated").

Additionally, it is HUD's opinion that in situations where termination is deemed necessary, an owner can decide whether to terminate the offending resident or the entire household. Again, more discretion. In our private properties, there is no terminating part of a household or evicting a particular homeowner or resident. It is all or none-one termination per space.

All Residents are NOT mentally ill--as Senate Judiciary Committee Suggests.

Resident organizations fiercely oppose tenant protection legislation against dangerous conduct. Exalting management powerlessness above resident safety remains the paramount mantra, while legislators ascribe all safety issues to the mentally disturbed (Chair of Judicial Committee) calling for broader answers. It may be unfair to blame all park disturbances on residents who are mentally ill. This unintentionally suggests that all residents are mentally ill.

A false argument like this (claiming all residents are mentally disturbed) is a disservice to resident communities. This requires modification of perception at the leadership level. Our residents deserve protection against violence. Intimidation from criminal residents for needless months before management can even file for eviction, is like the infliction of distress with knowing disregard for the health and welfare of the patrons of an entire industry. In order to protect residents from the ravages of intimidation, violence, and distress, especially the elderly and frail in our communities, legislative perception seems to require a change. The public-all of us- may bear the burden of a roaming menacingly pernicious homeless population, undeniably true. But not in the quiet serenity of a residential senior park. Our residents deserve better.

Private rules require uniform application.

Drug dealers should be evicted, all of them. There is likely some risk assumed with regard to management using discretion to allow criminal drug activity in some cases and not others. Discretion may lead to allegations of discrimination based on claims that the discretion is not being fairly exercised. Develop a policy for your California Manufactured Community Policy Notebook (which contains your public access repository for rule interpretations, fair housing, ADA, rental payment, co-signer, subleasing, care-giving, senior housing and other policies and interpretations of rules, with examples for rule enforcement) with regard to handling instances of possession or use of marijuana and other controlled substances, and to memorialize this policy in writing. Then, consistently and equally enforce this policy. Uniform enforcement is very important to best guard against a tenant claiming that management is using its discretion in a way that discriminates against a protected class of individuals.

Will it be claimed an abuse of management's discretion to evict a tenant smoking medical marijuana on the space because of a chronic disease? Because of the second hand smoke harms to a small infant next door? Because tenant's son is menacing elderly seniors, fighting with the police, locking down the park, cursing every passerby walking a dog? We recommend that management plan ahead, visualize and have a plan for action or other response. It may not be desirable to deal, ad hoc, with unexpected violence.

Management can implement written policy to explain such rules, stating that all controlled substances are not permitted to be used, sold, distributed or cultivated, for example.

One basic rule is currently this:

"____. MARIJUANA:

(a) Lessor may enforce all laws and regulations, and the prevailing policies adopted by local, state and federal law enforcement, as may change from time to time, in respect to marijuana possession, cultivation, distribution, importation, sale, use, and, disturbances to others thereby caused or otherwise resulting therefrom. Mobilehome park living requires special restrictions for the safety and enjoyment of all tenants including the elderly with respiratory sensitivities, families with small children who reside or visit, and others who choose to reside in the community and have a right to breathe air free of resident-caused pollutants.

(b) Mobilehome living entails many compromises for the benefit of community standards, and thus, covenants are enforced despite being more restrictive than other residential accommodations. The use, possession, sale, distribution or cultivation of controlled substances raises the risk of harm to others and is prohibited. Under federal law, marijuana is classified as a controlled substance without medical value; and, possession or use of marijuana is illegal as per all Federal law including the Controlled Substances Act (hereafter "CSA"), 21 U.S.C. Section 801 and continuing. The manufacture, importation, possession, use and distribution of certain substances is regulated. Pursuant to the CSA, marijuana is an illegal controlled substance.

(c)    Therefore, Lessor may take reasonable action to curtail and to prohibit marijuana by termination of tenancy. Therefore:"

" (1) No use of marijuana is permitted in the common areas of the park;"

" (2) No cultivation on the space outside the mobilehome is permitted (including screened or other patios, under awnings, driveways, inside sheds, on any roof);"

" (3) Any provision, sale or gift of marijuana to a minor, or use in the vicinity of a minor in any location in the park, including inside a mobilehome, shall be immediately reported to law enforcement;"

" (4) Any illegal use, possession, cultivation, provision, sale or receipt of marijuana or other controlled substance, as enforced in accordance with local, state or federal policy, may result in termination of tenancy;"

" (5) Use or possession of any marijuana is subject to verification in accordance with state licensing and permit standards, together with verification of the disability for which a prescription is made by a California-licensed physician;"

" (6) Any possession or use of marijuana without proper medical supervision and approval is not permitted and may result in immediate termination of tenancy;"

" (7) Notwithstanding the foregoing, Lessor reserves the right to modify or interpret this rule in accord with legal developments, including James v. Costa Mesa, holding that marijuana is not a reasonable accommodation of a disability under federal law."

Marijuana use is not a reasonable accommodation (in the 9th circuit). Like alcohol and bingo, such activities attract the general public (or require access by the general public, like bingo under the Penal Code, thus requiring ADA access improvements as advanced in recent liability claims in San Diego). Drugs, alcohol and admission of the general public are associated with accidents, violence, domestic abuse and other injurious criminal activity.

Some may also assert that reasonable policies to minimize liabilities is a good way to promote your business plan: satisfied residents and enhancement of relations, happiness and well-being.

Your counsel may recommend delimiting such liability-generating activity.

Terry R. Dowdall, Esq. Thumbnail image for trd-tablet-size.jpg
Dowdall Law Offices, A.P.C.


https://www.neahma.org/neahma-newsletter/marijuana-and-subsidized-housing-its-still-not-legal-to-be-illegal/ (© 2017 New England Affordable Housing Management Association)

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