The sweet, herbal smell of marijuana has wafted out the windows and over the fences of backyards since Dec. 6, when Washington state officially decriminalized the possession and use of marijuana, by adults age 21 and older.
Smoking on the street or in a park could get you a $100 fine, but it’s legal to smoke in your home, provided you own it.
For renters, especially those who are low-income, the pot law comes with some caveats.
Many landlords and all public housing agencies will not allow smoking of any kind, and they have even revised policies to clarify that marijuana remains prohibited, despite what voters have said.
Gov. Jay Inslee said he left a Jan. 22 meeting with U.S. Attorney General Eric Holder encouraged that the state could continue its work implementing Initiative 502. But for those in public housing, it’s no help.
The Department of Housing and Urban Development (HUD) is a large source of funding for the Seattle Housing Authority and the Low Income Housing Institute. HUD has always restricted drug use in public housing, even in the case of medical marijuana. HUD is leaning on property rights laws that give property owners the right to restrict some activities on their property.
Public housing is essentially government property. Landlords can restrict smoking of any kind, and if you’re renting from the feds, forget about it.
“Smoking is not a protected class,” said Jonathan Grant, executive director of the Tenants Union of Washington State, adding that landlords can restrict smoking because it damages the apartment unit and disturbs neighbors.
Seattle has 100,000 rental units, and the landlords can impose whatever restrictions they want for smoking.
For now, there are few choices for the more than 150,000 public housing tenants looking to light up in Washington.
Residents of public housing risk eviction if they smoke inside and could be slapped with a civil infraction and a $100 penalty if they smoke outside of a private home.
Not paying the fine can lead to stiffer penalties and a criminal misdemeanor. Seattle does not usually file misdemeanor charges in such cases, said John Schochet, special counsel and policy advisor to city attorney Pete Holmes.
Evictions are filed in court, as well, and could prevent people from securing housing in the future.
Alison Holcomb, drug policy director of the American Civil Liberties Union (ACLU) of Washington, said decriminalizing marijuana was intended to diminish penalties for marijuana use.
The ACLU, Holmes and public health advocates came out in support of marijuana legalization as a means to end the war on drugs, which has disproportionately penalized poor people and people of color. Though no longer facing criminal charges if they smoke pot, poor people and people of color could still be more likely to be fined for doing so, simply because they likely have fewer legal places to do it.
Holcomb concedes that the law doesn’t do everything supporters wanted it to do because it was crafted, first and foremost, to get passed by voters.
“We were concerned that if we asked for too much in this effort that we would run into opposition,” she said.
No smoking, no toking
On Jan. 23, the Seattle Housing Authority’s (SHA) board of directors passed a resolution clarifying that its non-smoking policy includes marijuana. “We have a no smoking policy for all of our properties,” said John Littel, chair of SHA’s board. “It’s really that simple.”
The Low Income Housing Institute (LIHI) holds residents to similar nonsmoking policies, allowing smoking only in a few of its buildings. Both SHA and LIHI cited regulations from HUD that have always restricted drug use on-site, even in the case of medical marijuana.
In 2011, HUD drafted an 11-page memo stating that because the federal government has not legalized medical marijuana, federally funded housing cannot accommodate residents with a prescription.
SHA does not expect to evict anyone because of marijuana use, said Rod Brandon, SHA’s director of operations. Residents have received warnings and referrals to smoking cessation treatment, but no evictions since February 2012.
“Fortunately we haven’t had to go to that level with anyone yet,” Brandon said.
From now on, he expects the organization will have to be stricter with marijuana use because federal funds could be at risk, he said.
As Holcomb sees it, public housing authorities aren’t compelled to evict pot smokers.
The last paragraph of HUD’s memo states that the organizations have the discretion to evict someone or not if they are using medical marijuana. SHA already makes exceptions for medical marijuana, and Holcomb thinks they could also decide not to evict people who use recreational marijuana.
“Evicting people or threatening their stability for marijuana use is directly contrary to the spirit of the law,” she said.
Holcomb said she and others are going to Olympia to strengthen marijuana decriminalization laws. However, their first priority will be changing rules regarding drug testing for employment.
Doug Honig, spokesperson for the Washington ACLU, said marijuana legalization still reduces the harm of the drug war.
“We of course don’t believe that I-502 will end such inequities,” he said in an email. “But ending the 10,000 arrests [per year] of adults simply for possessing marijuana is a significant step forward.”