By Mark S. Alper, RHM NCHM Director of Compliance Services OF HUD
I (Don't) Want To Take You Higher
When the US Congress passed the Volstead Act (also known as Prohibition) into law in the early part of the last century, they provided an exemption allowing for the use of liquor for medicinal purposes. Naturally, this resulted in "illnesses" and "viruses" on a massive scale, along with the growth of bootlegging and speakeasy operations across the US, and prohibition lasted less than fifteen years.
Three decades after prohibition's demise Lenny Bruce, the controversial comedian/satirist, stated his belief that marijuana would be legalized within the next two decades since most of the law students he knew smoked marijuana. While Bruce was wrong about the timing, ten states have legalized the use of marijuana for medical purposes (or allowed affirmative defenses connected to medical need) according to the National Organization for the Reform of Marijuana Laws (NORML).
This has led to inquiries from owners and management agents concerning whether or not marijuana prescribed by a licensed medical practitioner for treatment of an existing condition constitutes an allowable medical expense on the HUD-50059 or HUD-50058. The short and simple answer is: No. Marijuana is not a HUD allowed medical expense.
But that's only part of the story.
HUD has had a "zero tolerance" policy with respect to narcotics for many years, culminating in drug free lease addendums and the "One Strike, You're Out" initiative developed jointly by HUD and the US Department of Justice. Notwithstanding the actions of state legislatures permitting marijuana use for medicinal purposes, there is no corresponding law at the federal level and marijuana possession and/or use, sale or distribution remains a federal crime.
With this in mind, HUD does not recognize as legitimate any use of marijuana. In the Housing Choice Voucher program, regulations provide that any individual who has been prescribed marijuana use for medicinal purposes should have their assistance terminated (24 CFR CFR 982.552(b) and 983.553). If an individual is receiving project-based federal housing assistance, HUD regards marijuana use as grounds for termination of tenancy (eviction). Following the logic of this position, the mere admission that an individual has been prescribed or obtained marijuana for a medical reason may be sufficient evidence for a program (Housing Choice Voucher) or lease (project-based programs) violation requiring management action.
Some housing professionals have, in discussion with me, wondered how HUD can have a position contrary to the state law in the jurisdiction within which the property is located? I cannot give a legal answer to that question since I am not an attorney-at-law. It does seem to me as a layperson that state legislatures do not have any explicit or implied authority to overturn federal housing program regulations. It will be interesting, however, how eviction for marijuana use that has been prescribed by a licensed medical professional will play out in court where the state has sanctioned the use of marijuana for medical reasons. In such instances, there will be a tension between the drug free lease addendum and the law of the state -- and evictions are heard in state or municipal courtrooms rather than federal ones.