ByPhillip Smith / Independent Media Institute — A 78-year-old Niagara Falls man using a wheelchair was thrown out on the street last week for using medical marijuana in the federally subsidized housing unit he called home. Under harsh federal regulations, operators of such facilities are free to evict tenants who use medical marijuana—even if it legal in the state where they reside, as it is in New York.
According to the Associated Press, it went down like this: The man evicted, John Flickner, had lived for two years at federally subsidized Niagara Towers and obtained marijuana from Canada to use for back pain. In June, inspectors found marijuana in his apartment and called police. They declined to arrest him but instead advised him to get a doctor's recommendation. He did so.
"I didn’t know about getting the card. I just knew it was legal," he told the AP. "I wasn’t hiding anything."
But that didn't stop the owner of the housing complex, Nashville-based LHP Capital from moving forward with evicting him.
"The basis of the eviction was they have a zero-tolerance (policy) and he had marijuana in his apartment and at that time he did not have medical marijuana," said Niagara Falls attorney Jason Cafarella, who represented LHP at a November hearing in Niagara Falls City Court. "It was a lease violation and the tenant had known what the rules of the property were, had known the rules of the lease and violated those rules."
LHP got its eviction order from a judge on November 29.
"What really swayed the judge, the be-all, end-all factor, was a regulation which basically gives management the ability to impose this zero-tolerance rule regardless of medical marijuana or otherwise," said attorney Kevin Quinn of the Center for Elder Law and Justice, who represented Flickner. "If it’s being used, they have that ability to terminate a lease," he told the AP.
And that's what they did last Tuesday. In an hours-long drama, Flickner ended up being pushed out the door in subfreezing temperatures in his electric wheelchair. He then rode it a half mile to a homeless shelter where he found refuge.
"Cold, wet, windy," Flickner said of his trip. "All I wanted to do was get out of the wind," Flickner told the AP.
In guidance issued in 2014, the Department of Housing and Urban Development requires that landlords deny new applicants for subsidized housing if they admit using medical marijuana. But that same guidance says landlords are allowed—but not required—to evict current residents for using medical marijuana. LHP did not have to throw John Flickner out on the street; it chose to.
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LHP has not responded to media inquiries about the matter, but civil liberties and medical marijuana advocates have, and so has the New York Health Department.
"New York’s Medical Marijuana Program was established so that patients suffering from debilitating illnesses could have access to an alternative treatment option. No one should be forced out of their home for using a medication permitted under state law to treat a serious disease or condition," Health Department spokeswoman Jill E. Montag told the Buffalo News. "Stable housing is essential to good health, and New York State law protects patients who are discriminated against because of their lawful participation in the Medical Marijuana Program," Montag said.
Indeed, the state's medical marijuana law says medical marijuana patients and providers shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege … solely for the certified medical use or manufacture of marijuana." But federal drug law trumps the state's law.
"No one’s housing should be put at risk because of a medical prescription," John A. Curr III, director of the Western Regional Office of the NYCLU, told the News. "This tragic set of circumstances is a clear example of the destabilizing harm that marijuana prohibition continues to perpetuate in the lives of New Yorkers, particularly those living on the margins. The time has come for legalization at the state level to begin the repair of this harm in New York communities, especially since change at the federal level is unlikely anytime soon."
What happened to John Flickner has happened to others, said David Mangone, director of government affairs for the medical marijuana advocacy group Americans for Safe Access.
"It’s really a clear evidence of discrimination, and medical marijuana should be treated like any other medication when it comes to living in subsidized housing," he told the AP.
At last report, Flickner was still at the Community Missions shelter trying to make arrangements for a new place to live. At least, the former tool-and-dye worker who injured his back in a skydiving accident 50 years can use his odorless vape pen there without getting thrown out in the cold.
"We're going along with state guidelines," Community Missions spokesman Christian Hoffman told the AP.
That seems like a sensible approach.
Update: Feeling the heat after the initial media reports of Flickner’s eviction, LHP has changed its tune and invited him to return. In a statement released Sunday, the company said it is “revisiting our policy in this evolving area.”
This article was produced by Drug Reporter, a project of the Independent Media Institute.