Renter beware

Ylka Ortega finally achieved a lifelong dream of living in Homer in March of 2014. Originally from California, she moved first to Anchorage and then permanently to Homer.

Or so she thought, until she received an eviction notice in August.

“They said either you go, or you can’t use cannabis,” Ortega said.

Ortega said she uses marijuana medically. Although she said marijuana was the only drug that worked for her medical condition, she said she refused to use it until Alaska made it officially legal in February.

“When it became legal, my daughter begged me to try this,” Ortega said. “It’s my medicine. But to live here, I have to say I won’t have cannabis on site.”

Although Alaska has legalized marijuana for recreational and medical use, renters may still be subject to eviction if they possess or use marijuana on site.

It’s up to the landlords to determine their policies, but they are within their rights if they evict tenants for using the drug because it is still federally illegal. For the approximately 27.3 percent of residents on the Kenai Peninsula who rent, this presents a quandary if they want to use marijuana.

This goes for both private housing facilities and public-assistance housing. Although the Housing and Urban Development Authority does not make the rules, marijuana is a controlled substance, and the abuse of controlled substances is against the agency’s requirements for Section 8, according to Leland Jones, a HUD spokesman.

“Every one of our housing complexes are required to have a policy stating what their eviction policy will be regarding someone engaging in criminal activity, including the manufacture, sale and use of illegal drugs,” Jones said. “But it is the policy established by that housing agency. As long as there’s a policy in place, then we don’t have a quibble with that.”

Even though tenants may be the ones getting evicted, landlords face risks over the disagreement between federal and state law as well. Some landlords could possibly face forfeiture of their property for allowing tenants to use, produce or distribute illegal drugs.

Landlords may choose to make accommodations, but many may not because of the risks of allowing illegal activities to occur on the premises, said Eric Derleth, an attorney in Soldotna who sometimes takes cases dealing with marijuana law. Many see the fines and mandatory minimums that are associated with knowingly allowing illegal activity as too risky, he said.

The U.S. House of Representatives did include a medical marijuana reform clause into the federal appropriations bill passed in December 2014. The clause prohibited the U.S. Department of Justice from using federal funds to enforce the federal ban on medical marijuana in states that have legalized it, leaving enforcement up to state discretion.

The clause in the appropriations runs through the end of September unless it is reauthorized and signed into law, according to Paul Armentano, the deputy director of the National Organization for Marijuana Legalization. However, the DOJ has argued that the law does not apply to individual cases, only to the opposition of states carrying out their laws, Armentano said in an email.

“Clearly there is a lack of consensus as to the scope and power of this budgetary amendment,” Armentano said. “I’m also not clear that it is relevant in this matter as the DOJ is not taking criminal action in these sort of housing-specific issues.”

However, the disagreement between federal and state law on the legality of marijuana means that landlords are still within their rights to ban the use of marijuana on their property. The Alaska statute legalizing and regulating marijuana still allows private individuals the right to prohibit the use on their properties as well.

Tenants who use marijuana medically aren’t likely to win a disability discrimination lawsuit, either, Derleth said. Suing someone under a federal law to protect the right to use a substance that is federally illegal likely won’t go anywhere, he said.

“The Americans with Disabilities Act is a specific federal law, so I don’t think you’ll have any success with that,” Derleth said. “Even if you sue for disability discrimination, (the landlord) will likely say they’re not discriminating against the disability, they just don’t want illegal activity going on on their property.”

Derleth said because many of the laws bulwarking the marijuana industry are not in place yet, lawsuits and legal support for marijuana users is somewhat vague at this point. Many of the tangles go back to the disagreement between federal and state laws, he said.

Because marijuana is still listed as a Schedule 1 narcotic, the same as heroin or cocaine, the state law legalizing it is moot to the federal government. It is a problem that faces many marijuana businesses in terms of taxes, banking and business licenses. Public use of marijuana comes with a $100 fine, and renters are out of luck if the landlord prohibits it in private apartments.

“The landlord could potentially change the rules dramatically if they wanted to,” Derleth said. “But I don’t know what you could do as a the tenant to make much of an issue of it. Your choices are to move away or agree to the rules.”

Reach Elizabeth Earl at elizabeth.earl@peninsulaclarion.com.

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