The question this week comes from Doug: "Hello, I'm a smoker considering a Section 8 voucher. I suppose its up to the individual landlord, though the Alaska housing authority could have some policy already in place. Any idea? Will I be allowed to possess, use or grow in Section 8 housing?"
The answer here is similar to the previous installment of Highly Informed that dealt with landlords, tenants and cannabis. On one hand -- the hand that matters most -- nothing is different. Housing assistance rules still depend on federal definitions of illegal drugs. And it'll still be up to the landlord and tenant to agree on rules and make them clear in a lease, and then up to the tenant to abide by them and the landlord to enforce them. But on the other hand, there are interesting complications to think about that stem from the fresh dissonance between Alaska and federal law.
According to Cathy Stone of Alaska Housing Finance Corp., the state entity that administers the Section 8 program here, the vouchers are paid for entirely by federal money. And because of that, possession, use or cultivation of marijuana could result in loss of assistance. In a phone interview, Stone said that cannabis legalization in Alaska has had no effect on the policies her division operates by, whether or not they involve the Section 8 program, officially known as the Housing Choice Voucher (HCV) program.
"Honestly, nothing has changed," she said. "We've had some personal use in Alaska for a long time through the Ravin decision. The initiative is broadening the allowable use, but that doesn't change what we do because we've always been regulated by federal law."
Read more Highly Informed: Seeking answers to Alaska's cannabis questions
Those federal laws treat marijuana as a controlled substance, and set criminal penalties for the possession, sale or growth of any amount.
"Because federal law trumps state law, use of or growing of marijuana while receiving HCV assistance may jeopardize your assistance," Stone wrote in an email.
Federal law may trump state law, but it's worth noting that the federal government has not stepped in to fill the gap created in marijuana enforcement by the vote to legalize in Alaska. The FBI, for instance, has not started heading to Anchorage Town Square every day to bust people over possession of small amounts of cannabis that are clearly illegal under federal law, but are now allowed by Alaska law.
Federal enforcement of small-time personal marijuana use has long been left up to the states to enforce. Some pot crimes have customarily been too small to justify federal resources, and enforcement duties fell to the states. But that's changed, leaving a gap. That enforcement gap is one element of a lawsuit filed against Colorado on the grounds that the state is violating the U.S. Constitution by not enforcing federal laws against marijuana.
The reason for AHFC policy adhering to federal guidelines even as state laws have changed is simple with so many Alaskan lives at stake. "We don't want to jeopardize the help," Stone said. "$60 million come to the state through our two main housing programs, public housing and Section 8." And that help is important to real people.
Stone said that the Section 8 program is the most popular housing assistance program in the nation. The program sends some $45 million annually to private landlords to help 4,300 Alaska voucher recipients, both individuals and families. She said its popularity is due in great measure to the large amount of choice it gives recipients and to the economic boost it brings. The program has a great deal of flexibility for recipients to find situations they prefer.
Applicants must meet some requirements, including an income requirement, Stone explained, then if accepted, they'll sign off on a set of program rules. Those rules, said Stone, include a prohibition on illegal drugs, in keeping with federal guidelines.
If accepted, program participants receive a voucher that will cover a portion of their monthly rent according to an income-based formula. They can use that voucher with any private landlord who agrees to participate. Landlords sign a Housing Assistance Payment (HAP) contract with AHFC, which contains a set of rules. The rent assistance goes directly from AHFC to the landlord and reduces the monthly bill seen by tenants.
Rules from the federal Department of Housing and Urban Development govern all of these agreements, both the ones tenants are subject to and the ones landlords agree to before participating in the program. The rules include grounds for termination of contracts or of voucher program participation as a result of criminal drug activity.
Uncertainty?
One of the grounds for breach of contract with landlords is interesting, though. The federal rules governing the HAP contract include breach of contract in situations when the property owner is involved in "drug-related criminal activity," but in the language of AHFC's housing voucher program administrative plan, that phrase changes to "drug trafficking," which may introduce some confusion.
The rules contain no explicit requirement of landlords to notify AHFC or HUD of any marijuana possession or use on their properties, nor do they say that landlords are ineligible to participate in the program if they don't include specific clauses in their leases that mention cannabis. But landlords must submit a copy of the agreed-upon lease to the housing authority, and that lease must abide by the terms of the HAP contract. That contract says that participating landlords "may" terminate the tenancy of people for drug-related criminal behavior, but don't require it.
One passage in the HAP contract also covers criminal behavior in situations where no charges or arrests have been made. And given the gap in marijuana law enforcement that exists now, that also poses uncertainty. The passage reads: "The owner may terminate the tenancy for criminal activity by a household member in accordance with this section if the owner determines that the household member has committed the criminal activity, regardless of whether the household member has been arrested or convicted for such activity."
That seems to put the burden on the property owner to decide whether or not any laws have been broken and whether they're worth evicting the tenant over. What standard does the owner use? State law or federal law? State with some? Federal with others? To me that seems fraught with peril for all parties involved. The answer to those questions will likely depend on the owner, but what about AHFC? How does it enforce its program rules?
Checking in
Stone said that part of the requirements of the program involve AHFC check-ups with voucher recipients to make sure rules are being followed, but her list did not include mention of drugs, illegal or otherwise.
"AHFC checks that a tenant is following the rules in the following ways," Stone said; "We meet with participants each year to check for compliance with income and family composition. We check sex offender registries annually. We inspect units biennially for compliance with housing quality standards (damage, smoke and CO detectors, etc.). We require landlords to send AHFC copies of any lease violation notices to tenant."
Essentially, Stone said, AHFC enters into agreements with the recipients and the landlord, and those agreements are based on federal standards, but as in other rental agreements, daily landlord-tenant relations are governed by the lease. "The relationship between the landlord and tenant rules. Unless they've violated the lease and the landlord kicks them out, we don't get involved."
"In respect to what the tenant does in their unit on a day-to-day basis," Stone wrote in an email providing further context, "we do not own or manage the unit, we simply pay the subsidy to the landlord, which is based on the tenant meeting the requirements that they have signed with us. Allowing smoking, noise, modifications to the unit, etc., is really between the landlord and tenant."
That policy doesn't apply to the public housing properties wholly owned by AHFC. There, due to federal law, marijuana use, growth or possession is forbidden. Private landlords participate in the voucher program, and are able to set their own lease conditions.
An assist from Alaska law
In addition to "drug-related criminal activity" on the part of tenants, the administrative plan for the HCV program states that one of the reasons AHFC must terminate assistance is "whenever a family is evicted from housing for a serious violation of the lease" (Section 8.7.H). Those regulations also stress that not every situation is the same, and that each case is treated on an individual basis. They also say that not every eviction will result in termination of assistance. Other provisions explicitly list criminal drug activity as grounds for termination.
However, one of those serious lease violations listed is "commission of drug-related or criminal activity on the leased premises," but that may cause momentary confusion because the listed rationale above that list comes from state law, not federal:
HUD regulations do not define what constitutes a "serious lease violation." Therefore, it is AHFC policy to rely on the Alaska Uniform Residential Landlord and Tenant Act (AS 34.03.010 – AS 34.03.380) as the basis for determination of what constitutes a serious lease violation resulting in termination of assistance."
As we discussed several weeks ago, the Alaska Landlord and Tenant Act does not specifically mention cannabis, just illegal drugs. Which, according to state law, does not include cannabis now. HUD regulations may not define a serious lease violation, but they already bar drugs considered illegal at the federal level.
Maybe that means that small AHFC policy on serious lease violations will be updated to reflect federal laws rather than state, and maybe not. It's just one small policy, and other policies clearly bar drugs based on federal standards of illegality, but the inconsistency exists. Either way, it's another small example of the contradictions and holes our system gathers as state-level cannabis laws conflict with federal ones.
So, what does all this talk of rules mean in real life? Can voucher recipients smoke, grow or possess pot or not? Again, not unless they want to risk losing assistance. The state housing authorities are required to follow federal standards of cannabis' illegality, and voucher participants agree not to involve themselves in illegal drug activity according to federal definitions. So if you're a voucher recipient who smokes, think twice.
Have a question about marijuana news or culture in Alaska? Send it to cannabis-north@alaskadispatch.com with "Highly Informed" in the subject line.