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Judge: Federal housing drug eviction not reviewable by state court

A Baltimore city landlord’s eviction of a tenant from federally subsidized housing for marijuana possession cannot be challenged in state court, a judge has ruled.

In a typical eviction proceeding, a tenant can ask a judge or jury to determine whether the breach of the lease was substantial. But Baltimore City Circuit Court Judge Lawrence P. Fletcher Hill ruled Monday that a provision in a Section 8 housing lease prohibiting “drug-related criminal activity” supersedes the state law that allows a tenant to seek an eviction review.

“[A]lthough federal law vests a landlord renting subsidized housing with discretion not to pursue eviction in all instances of criminal activity, state courts cannot be given discretion to overrule the landlord’s exercise of discretion,” Fletcher-Hill wrote. “In this context, the role of the court, whether judge or jury, is limited to determining the terms of the lease that permit eviction and whether the conduct proved is a violation of those terms.”

Fletcher-Hill subsequently granted Chateau Foghorn LP’s motion for summary judgment, allowing the landlord to evict Wesley Hosford from the Ruscombe Gardens Apartments near Pimlico Race Course.

William Sinclair, a lawyer for Chateau Foghorn, said the ruling “short-circuits” the eviction process for drug cases involving federally subsidized housing, which could lead to many more terminated leases.

“Landlords will take heed to this ruling, and tenants will want to take heed as well,” said Sinclair, a partner with Silverman, Thompson Slutkin & White LLC in Baltimore.

Matthew Zernhelt, a staff attorney with Maryland Legal Aid and Hosford’s lawyer, said no decision has been made about an appeal.

Hosford, 63, has lived at Ruscombe Gardens since 1989, according to court documents filed by Zernhelt. Hosford is “severely disabled” and suffers from incomplete paralysis in his arms and legs, which has left him wheelchair-bound for almost 30 years, according to the documents.

Chateau Foghorn sent Hosford a notice of eviction last June after two exterminators working in his sixth-floor apartment reported finding a “light machine used for growing marijuana” and a plant in the bathtub, according to court documents.

Hosford, who has denied the allegations, was charged with possession of less than 10 grams of marijuana, a case that was later dropped by prosecutors, according to Sinclair. A state law went into effect four months after Hosford was charged making such possession punishable by a civil citation rather than a criminal penalty.

Fletcher-Hill, in his opinion, noted that possession of any amount of marijuana was illegal when Hosford was charged. But the judge said the case highlights the “uneasy interplay” between federal law banning possession of any amount of marijuana and state laws allowing for possession of up to certain amounts.

Ultimately, however, Hosford was on notice through his lease that all criminal activity was prohibited in his apartment and that the lease only refers to Maryland law in general, Fletcher-Hill wrote.

“In the end … marijuana remains a federally prohibited Schedule I substance, and Defendant has not shown any policy by HUD to restrict enforcement of the federal policy to promote drug-free federally subsidized housing,” Fletcher-Hill wrote.

Hosford has remained in the apartment while the case was in the legal system. He lives on a fixed income and can only afford subsidized housing, according to Zernhelt, and the eviction may disqualify him from future subsidies.

“That means Mr. Hosford likely will be facing homelessness,” Zernhelt said.

The case is Chateau Foghorn LP v. Wesley Hosford, 24C14005119.