Oklahoma Bar Journal
Does the Federal Criminal Code Allow Landlords to Evict Residential Tenants for Possession of Marijuana? A Look into HUD Regulations and Federal Preemption
By Orion A. Strand
Following the enactment of medicinal cannabis and marijuana decriminalization laws across the country, one question residential landlords have repeatedly asked is: Can I evict my tenant for using or possessing medicinal cannabis on the basis that such activity remains a violation of federal criminal law? The answer to this question is relatively simple in states with no protections for marijuana use because such use would invariably violate the state’s criminal drug code. However, where states have afforded protections for medical marijuana users, the answer is a bit more nuanced.
Prior to the passage of the Oklahoma Medical Marijuana and Patient Protection Act (OMMPPA), simple possession of any kind of marijuana product on leased property would constitute grounds for eviction under the Oklahoma Landlord Tenant Act as a violation of the tenant’s duty to “not engage in any drug-related criminal activity on or near the premises.”1This basis for filing a forcible entry and detainer action is separate from the kind of criminal activity that “threatens the health, safety or right of peaceful enjoyment of the premises by other tenants … or is a danger to the premises.”2 Not every kind of criminal act warrants an eviction judgment, but the Legislature intended to make clear that any kind of drug-related criminal activity should qualify. Following the legalization of medicinal cannabis in Oklahoma, landlords have questioned whether they can continue to evict tenants on the same basis.
The OMMPPA actually contains very few protections for medical marijuana license holders facing adverse residential leasing actions. Unlike the prohibition of discrimination in employment practices, nothing prohibits landlords from refusing to enter into lease agreements with medical marijuana patients solely on the basis of their status as a medical marijuana licensee. Landlords may lawfully refuse to lease to medical marijuana licensees and may further “prohibit … the consumption of medical marijuana or medical marijuana product by smoke or vaporization on the premises, within the structures of premises or within ten (10) feet of the entryway to the premises.”3 Landlords thus face very few barriers in heavily restricting the growing, smoking and vaporizing of marijuana by tenants on residential property because these activities pose the greatest threat of either physical harm to the property itself or constituting a nuisance to neighboring tenants. Two activities landlords may not prohibit under the act include simple possession and consumption of cannabis by means other than smoking or vaporization.4
This raises the question of whether the federal Controlled Substances Act (CSA)5 preempts a state’s legalization or decriminalization of marijuana for purposes of enforcing a landlord’s right to prohibit drug-related criminal activity on leased housing. The problem is especially apparent in properties that participate in one of the Department of Housing and Urban Development’s (HUD) subsidized housing programs because the Quality Housing and Work Responsibility Act of 1998 (QHWRA)6 requires such properties to establish lease provisions prohibiting all drugs scheduled under the federal Controlled Substances Act. In a 2014 memorandum, following several states’ enactment of marijuana legalization and decriminalization laws, HUD clarified that, “Because the CSA prohibits all forms of marijuana use, the use of ‘medical marijuana’ is illegal under federal law even if it is permitted under state law … Owners of federal 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 by the CSA.” However, HUD and the local public housing agencies do not enforce the prohibition of controlled substances on publicly subsidized housing but leave the matter to the discretion of the owner as to whether to evict the tenant for cause on that basis.7
The underlying issue here is whether the discretion afforded to such landlords under federal law creates an independent basis for eviction due to drug-related criminal activity, which would appear to preempt a state’s protection of medicinal cannabis use on residentially leased property. Most courts considering this question have answered in the negative. In one case reported out of Maryland, a landlord of a federally subsidized home filed an eviction for violation of a lease prohibiting simple possession of a small amount of marijuana on the premises.8The lower court granted summary judgment to the landlord on the basis that, even though possession of fewer than 10 grams was not a violation of the state criminal code, marijuana is still a Schedule I substance under the CSA, and a landlord retains federally mandated (unreviewable) discretion on how to enforce its drug-free property policy.9 The Court of Special Appeals of Maryland reversed, finding a lack of any express preemption; that is, even if the federal criminal code preempts a state’s decriminalization or legalization of marijuana (and it does), neither Congress nor HUD have issued mandates that preempt a state’s ability to equitably enforce its landlord tenant laws.10
In the absence of federal preemption requiring states to enforce federal prohibitions of marijuana on leased premises, the matter would come down to a state court’s interpretation and enforcement of its own landlord tenant law. This line of reasoning pits two separate Oklahoma statutes against each other: 41 O.S. §132(D) (creating a right of eviction for “any drug-related criminal activity”) and 63 O.S. §427.8 (C) (“a medical marijuana patient shall not be denied the right to consume or use other marijuana products which are otherwise legal and do not involve … smoking or vaporization”).
The phrase “any drug-related criminal activity” could be construed to encompass activity prohibited under either the state or federal criminal codes. However, this would come into conflict with the state’s protection of marijuana use and possession under the OMMPPA. A commonly applied rule of statutory construction is that where there is an irreconcilable conflict between two statutory provisions, the Legislature is deemed to have been informed of the earlier provision when it enacted the later one.11 Thus, the statute enacted later in time controls, and it is highly likely the state of Oklahoma would uphold the state’s protections afforded to medical marijuana license holders over the civil enforcement of the federal criminal code.
ABOUT THE AUTHOR
Orion Strand practices at the Oklahoma City firm of Holden Litigation, focusing primarily on the areas of civil defense and tort claims. He has served as special features editor for the American Indian Law Review and is currently an OBF High School Mock Trial program committee member. He received his J.D. from the OU College of Law in 2017.
- 41 O.S. §127(8).
- 41 O.S.§132(D).
- 63 O.S. §427.8(C).
- 21 U.S.C. Section 801 et seq.
- 42 U.S.C. 13662.
- QHWRA section 577.
- Hosford v. Shateau Foghorn, LP, 229 Md.App. 499, 145 A.3d 616 (Md. App. 2016).
- Id. at 145 A.3d 620.
- Id. at 229 Md.App. 523-524.
- See, e.g., Upton v. State ex rel. Dept. of Corrections, 2000 OK 46; K.M.C. v. State, 221 P.3d 735, 2009 OK CR 29.
Originally published in the Oklahoma Bar Journal – OBJ 92 Vol 3 (March 2021)