Big Victory Over Feds; Evicted for Weed? - May 4, 2016 - SF Weekly
SF Weekly

Big Victory Over Feds; Evicted for Weed?

In the latest sign that the federal Justice Department is waving the white flag in the war on cannabis, federal prosecutors have agreed to drop a nearly four-year-long effort to shut down Oakland-based mega-dispensary Harborside Health Center, the dispensary announced Tuesday.

Harborside, by reputation and by self-declaration the biggest seller of medical cannabis in the world, seemed to be skating through a short-lived and somewhat half-hearted crackdown on California medical cannabis sellers — a pushback that began in 2011, and eventually closed one-third of the legal cannabis sellers in San Francisco — until just before the Fourth of July in 2012, when federal prosecutors filed suit to seize the Oakland Embarcadero property that houses the dispensary.

Under terms of the settlement, which have yet to be finalized in federal court, Harborside will stay open as long as it agrees not to file further appeals or any claims (such as attorneys' fees) against the government. The feds have not commented on the suit.

A similar suit, filed against Berkeley Patients Group, is still pending, according to federal court records. There, the City of Berkeley tried to join the suit on BPG's behalf, as the city of Oakland did with Harborside. In the BPG case, Berkeley appealed a rejection of that move to the Ninth Circuit Court of Appeals, where the case currently stands.

But even if the government wanted to pursue that case, it may be unable. Congress has removed the Justice Department's funding for interfering with state-legal cannabis. This is under a budget amendment that needs annual renewing, but has gained more support. And a U.S. District judge in San Francisco ruled the budget move means the feds literally cannot get involved in a marijuana situation, as long as that situation follows state law.

With that in mind, dropping the Harborside case may have been a fait accompli. But a win is a win, and this is a big win for weed.

Evicted for Weed? It Could Happen.

If you live in San Francisco and don't own your home – which is to say, if you are like most San Franciscans — your most precious resource, the most valuable commodity under your domain is your home. If it's rent-controlled — and particularly if it's a one-bedroom under $3,500 or the equivalent — it's the kind of domicile that simply does not exist under current market conditions (and may never again).

In San Francisco, the list of wrongs for which the penalty is losing this most precious resource is slim, but it does include violating the lease. For example, many leases outlaw tobacco smoking. If you smoke cigarettes inside your apartment, you could eventually lose your housing. Sounds reasonable enough.

But what about smoking marijuana? Yes, you can get evicted for that, too.

It sounds far-fetched and more than a little outrageous, but tenants losing housing for smoking pot has been a long-standing issue. Representatives from the California chapter of the National Organization for the Reform of Marijuana Laws (NORML) say they have “for years” received monthly calls from tenants saying their landlords are threatening them over weed. And “to my knowledge, nobody has ever succeeded in challenging the landlord,” says Dale Gieringer, Cal NORML's executive director.

It may be a tough sell before the Rent Board in San Francisco — where nobody I found could name an incident in which weed smoking saw someone kicked to the curb — and it does not happen often, even in other, less-tenant-friendly climes. The last high-profile case in the greater Bay was in 1997, when a disabled tenant in Santa Cruz named Scott Hager was threatened with eviction and agreed to move out in a court settlement — but it can happen, and state law may soon be changed to clarify it can happen.

Under a bill authored by Assemblyman Jim Wood (D-Healdsburg), one of the authors of last year's Medical Marijuana Regulation and Safety Act, landlords would have the express ability to ban marijuana smoking in their properties.

At least on paper, the issue here is secondhand smoke. Wood presents a University of California, San Francisco study that saw rats who were exposed to 30 minutes of secondhand weed smoke experience a “70 percent drop in blood function.” (Cannabis advocates take issue with the study, noting that it relied on the ugly, low-quality weed grown by the federal government at the University of Mississippi — not the stuff anyone would actually consume these days.)

The bill, AB 2300, cleared a committee vote last week on a unanimous vote. It's not likely to see much opposition.

It's also unlikely to change things too much.

Most leases have a boilerplate clause banning any activity forbidden by law. Though AB 2300 would allow landlords to go through a process to amend leases retroactively to add cannabis use to the list of banned activities, landlords can already start the eviction process for weed smoking, as courts have found.

Would this mean a mass exodus of weed smokers, especially in a tight rental market? Almost certainly not. As stated above, landlords have the ability to ban weed use now, and take action against tenants now. And though it's a far-fetched scenario, it's more likely if your neighbors start complaining about the copious clouds of smoke coming from your unit, it could happen.

Consider this fair warning.