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Conflict Between State, Federal Laws Leads to Man's Eviction

Tim Walker takes three oxycodone pills a day to ease the pain that shoots through the joints in his right arm and swollen right leg.  He has been dealing with the pain for 16 years after three strokes left the 55-year-old partially paralyzed and wheelchair-bound.  He would be taking an even more powerful dose of medication were it not for the medical marijuana he smokes each morning and each night before he goes to bed.

Walker's efforts to find a new place to live have so far been ineffective.  He must leave Tamarin Square Senior Apartments by Tuesday.

But the pot that makes his pain bearable and helps him sleep is now causing him to lose the federally subsidized apartment he has rented for five years.

The Durango apartment complex, Tamarin Square Senior Apartments, receives federal money from the U.S.  Department of Housing and Urban Development to subsidize the rent of eligible low-income residents.  That means the housing complex is obligated to follow federal laws about marijuana.

After the property manager learned Walker was smoking marijuana on the premises this spring, he was served an eviction notice at the end of May.  After Walker refused to leave, the property manager took the case to county court where Walker agreed to a settlement that requires him to be out of the apartment on Tuesday.

With few affordable-housing options available in Durango, Walker's situation seems to have come down to a choice between pain relief and a decent roof over his head.

More than a decade after Colorado voters legalized medical marijuana, similar clashes between state and federal marijuana laws continue to come up in public housing across Colorado, lawyers, housing authorities and medical marijuana advocates said.

"It's a contradiction between two great powers, the state and the federal government, and unfortunately, it's the little people that get caught in the middle," said Kim Shropshire, an attorney with Colorado Legal Services who represented Walker in the eviction case.

Getting booted

All 68 units in Tamarin Square are subsidized through a Section 8 contract with the U.S.  Department of Housing and Urban Development.  Eligible low-income residents pay a maximum of 30 percent of their gross adjusted income each month.  For Walker, that amounts to $277 per month for his one-bedroom apartment.

Walker moved into Tamarin Square in 2008.  At that time, he was taking Dilaudid, a stronger narcotic pain reliever, but he realized he was getting addicted to the drug.  So three years ago he got a medical marijuana card and started smoking twice a day, which allowed him to wean himself off the stronger drug.  He now numbs the pain with a combination of oxycodone and marijuana.

Then, in February, court records show, the building manager gave Walker a first warning about his medical marijuana use.  In April, police showed up at his door and reported that Walker was smoking marijuana in the apartment.

"If I'm doing something illegal, then arrest me," Walker said he responded.  Police didn't take any action, but a month later, Walker was served an eviction notice.  According to the settlement reached in county court, if Walker leaves by Tuesday the property manager will give him a neutral reference.

HUD's Colorado office is aware of between four and six cases similar to Walker's, regional HUD spokeswoman Charlene Guzman wrote in an email.  Medical marijuana lawyers say they deal with the issue fairly regularly.

"It's more common than we wish," said Tae Darnell, a Denver attorney who has worked on medical marijuana issues for more than a decade.  Brian Vicente, an attorney and the executive director for the nonprofit Sensible Colorado, a medical marijuana advocacy organization, said the organization receives about a dozen calls a year about the issue.

The situation is improving, Vicente said.  While the number of issues has remained relatively constant, housing authorities are using more discretion in deciding whether it is necessary to reject or evict a medical marijuana patient, he said.

If housing authorities do decide to enforce federal marijuana laws, however, patients don't have much legal recourse, Darnell said.

"It's a tragedy of the system right now," he said.

Housing and employment are the two areas where state and federal marijuana laws most often come to a head, he said.

In 2011, the assistant secretary for Public and Indian Housing sought to clarify the issue for at least one segment of HUD's public housing programs.  The memorandum gave public housing authorities the discretion to create their own policies about how to handle medical marijuana users in the 18 states where the drug is legal.  But that direction applies to public housing and voucher programs only under HUD's Office of Public and Indian Housing.  The Multifamily Housing program, which oversees Tamarin, has received no such notice or policy direction, Guzman wrote.

The housing search

As of Friday, Walker was trying to find a two-bedroom house to rent with his caregiver but hadn't found anywhere promising yet.  He is unable to work because of his disability, and the $1,100 a month he receives in Social Security benefits makes most market rate rentals unaffordable.  The wait for federally subsidized housing is at least several months.

Housing Solutions for the Southwest, which manages a portion of the HUD affordable-housing vouchers in Durango, has a waiting list that is three to four pages long, said Kim Welty, the executive director.

The other issue is that the vast majority of affordable housing in Durango is tied to federal dollars, which means medical marijuana is not allowed.

When asked about the affordable housing not tied to federal money, Welty replied, "I can't think of one."

Walker still struggles to understand why his medical marijuana use is causing his eviction.

"I smoke a little grass, but I'm not bothering anyone," he said.  "I know I'm being screwed over, and there's nothing I can do about it."