78-Year-Old Man Evicted For Using Medical Marijuana (UPDATED)

The landlord of the government-subsidized Niagara Towers says the 78-year-old man he evicted over medical cannabis use can move back into his apartment.
78-Year-Old Man Evicted For Using Medical Marijuana

Updated (12/12/2o18 11:30 Pacific Standard Time)

The landlord of the government-subsidized Niagara Towers in Niagara Falls, New York says the 78-year-old man he evicted over medical cannabis use can move back into his apartment. The happy ending to the tragic story comes less than a week after we first learned that John Flickner had been evicted from his apartment and forced to seek shelter at a nearby rescue mission.
LHP Capital, the Tennessee firm that owns and operates dozens of housing facilities across the country, including three HUD-assisted facilities in Western New York, says it is reviewing its policy on medical cannabis. At first, Flickner told reporters he didn’t want to move back to Niagara Towers. “I was just kicked out by those lovely people there, in the cold,” Flickner said. Nevertheless, Flickner did return to his apartment after his attorney, Kevin Quinn, obtained confirmation in writing that LHP would allow Flickner to use his vape pen to administer his physician-recommended medical cannabis treatments.
Flickner’s case also caught the attention of Trump administration official Lynne Patton, a HUD regional official overseeing New York and New Jersey. On Twitter, Patton wrote that state and federal law need to “catch up with medicinal marijuana usage and require private landlords to legally permit the same. Period.”
Original Story (12/10/2018)

The sun sets early up in Niagara Falls, New York, this time of year. And by the time a city marshal finished reading 78-year-old John Flickner his eviction order, streetlights were just starting to flicker on. Holding a plastic freezer bag containing his medical prescriptions, Flickner, who’s confined to a wheelchair, left his HUD-subsidized apartment and took an elevator down to the lobby while a Niagara Towers custodian changed the locks on the door.

As the dark crept over the icy, 28-degree day, Flickner pondered where he would go—and how he would get there. Flickner had some help from friends, who eventually found him a place to stay. But no one could find a vehicle large enough to carry him and his wheelchair there. With no other options, Flickner powered up his motorized wheelchair, left his former Niagara Towers home behind and rolled through a supermarket parking lot, across a busy road and down the sidewalk to the Niagara Gospel Rescue Mission homeless shelter.

Property Company Needlessly Evicts 78-Year-Old Medical Cannabis Patient

John Flickner still doesn’t have long-term housing secured. He’s currently staying with his 71-year-old friend, Andree Levesque, in a motel room. “If I have to stay somewhere,” Flickner says he’d like to stay at the Gospel Rescue Mission. “They’re nice people doing nice things.”

But Flickner didn’t have to lose his apartment. Niagara Towers managers could have let him stay. Instead, they opted to enforce the apartment complex’s strict drug policy and evicted Flickner for using medical cannabis to treat chronic pain from a 50-year-old spine injury. “It’s gotten steadily more painful,” Flickner told The Buffalo News.

John Flickner is a legal, registered medical cannabis patient in New York. He obtained his medical cannabis recommendation from a physician licensed to issue them. And he purchased his vape pen and cannabis oil from a licensed and regulated medical cannabis dispensary in New York.

Federal law, however, which lists cannabis as a Schedule I controlled substance, says that landlords of federally-assisted housing facilities can deny admission to anyone they believe is using an illegal drug—including state-legalized medical cannabis. When Bill Clinton signed that law in 1998, many interpreted it as requiring landlords to evict tenants suspected of using drugs.

But during the Obama administration, Housing and Urban Development (HUD) issued a memo clarifying that landlords could use their own judgement regarding tenants using legally-prescribed medical cannabis. The Trump administration has issued no further guidance on the policy. In short, landlords can turn away cannabis patients seeking HUD-subsidized housing. But they can choose to evict or not evict current residents who use cannabis. Flickner’s landlord chose to evict him. Unfortunately, the landlord has the legal right to do so.

Niagara Falls Senior Evicted After One Hour Trial

Employees of Niagara Towers discovered Flickner’s medical cannabis use during a June inspection of his apartment. Flickner had left some botanicals he purchased in Canada on his kitchen table. Following policy, the employees notified police. When police arrived, they informed Flickner that he needed official documentation to consume medical cannabis in New York, which he didn’t have at the time. (Flower is not an authorized form of medical cannabis in New York.) But officers declined to arrest him. It took Flickner all of two days to obtain the necessary paperwork, a vaporizer and a few cartridges of cannabis oil. He had been living in Niagara Towers for two years.

Niagara Towers still pressed on with its eviction process, however. When Flickner refused to leave, the property company operating Niagara Towers, Tennessee-based LHP Capital Properties, took Flickner to court. His trial lasted an hour. And his previous cannabis use—prior to obtaining a physician recommendation—became the key piece of evidence during the eviction proceedings. Judge Danielle M. Pestaino signed Flickner’s eviction order on November 29.

Kevin Quinn, an attorney with the Center for Elder Law and Justice in Buffalo, New York who represented Flickner in eviction proceedings, is extremely disappointed management decided to impose the HUD rule. “Why they enforced the rule on a gentleman like him is beyond me,” Quinn told High Times.

The catch, Quinn explained, was Flickner’s obtaining his medical license after the inspection that discovered his cannabis use. But even then, Flickner “used it for medical purposes only, not recreationally, and without causing any interference with other tenants,” Quinn said. “Flickner is an elderly disabled gentleman who relies on it day to day.”

High Times attempted to contact Niagara Towers and LHP Capital Properties. But at publication, neither has responded to our requests for comment. It would be interesting to know how often senior residents in HUD housing face eviction or other consequences for using medical cannabis products that are legal where they live. LHP Capital spokesperson Amy Styles told reporters that the company has a strict no-marijuana policy, regardless of circumstances. LHP Capital operates more than 55 housing facilities across the country, including three HUD-assisted facilities in Western New York. Do seniors know that their state-legal medical cannabis treatments put their living arrangements at risk? Can states do anything to protect them?

Quinn says this is the first time he has come across a case like Flickner’s. But he knows there must be so many other seniors who live in HUD housing who rely on medical cannabis treatments. The problem, however, is that elderly folks aren’t aware of regulations despite what local laws dictate. Many don’t realize that the HUD rules can lead to lease termination, and that the decision to evict falls to the landlord or manager regardless of what state law says.

That was exactly what happened to Flickner. The rule blindsided him. But at least he had legal representation. Many seniors, especially in communities facing affordable housing crises, face eviction proceedings without representation. Many end up having to vacate their homes within 72 hours. One solution, Quinn suggests, is better educating HUD tenants on the risks they face if they take medical cannabis treatments.

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