M. Cease v. Housing Auth. of Indiana County

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mary Cease, :

Appellant :

:

v. : No. 519 C.D. 2019

: ARGUED: February 13, 2020

Housing Authority of Indiana County :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY

SENIOR JUDGE LEADBETTER1 FILED: February 19, 2021

Mary Cease appeals from an order of the Court of Common Pleas of

Indiana County that affirmed the decision of the Housing Authority of Indiana

County (1) denying her application for housing assistance under the United States

Department of Housing and Urban Development’s (HUD) Housing Choice Voucher

Program, commonly referred to as Section 82 and (2) concluding that she was a new

applicant to the program under Section 13661 of the Quality Housing and Work

Responsibility Act (QHWRA), 42 U.S.C. § 13661. The Authority’s denial was

based upon the statement in her application for admission that she used medical

marijuana. We affirm the order to the extent that it determined that Cease was a new

applicant to the Section 8 program, vacate it to the extent that it affirmed the

Authority’s denial of Cease’s application, and remand this matter for the Authority

to carry out its mandate under Section 13661 of QHWRA: (1) to establish standards

1

This opinion was reassigned to the author on September 18, 2020.

2

Section 8(a) of the Housing and Community Development Act of 1974, 42 U.S.C. §1437f(a).

for determining when and on what basis admission is prohibited for an applicant

legally using medical marijuana pursuant to a valid Medical Marijuana Identification

Card; and (2) to apply those standards when determining Cease’s eligibility for

Section 8 housing.

Cease is a disabled veteran of the United States Navy, with no prior

criminal record. She suffers from post-traumatic stress disorder and chronic back

pain for which she has endured multiple surgeries. (Apr. 11, 2019 Trial Court Op.

at 1.) Pursuant to Section 501 of the Pennsylvania Medical Marijuana Act,3 the

Pennsylvania Department of Health issued Cease a Medical Marijuana Identification

Card. It is undisputed that her card is valid and that Pennsylvania law permits her

to obtain and use medical marijuana to treat her conditions.4 (Id. at 2.)

Over the years, Cease has participated in at least two federally funded

and subsidized housing programs. The first is HUD’s Section 8 program, which the

Authority administers in Indiana County. Cease participated in the Section 8

program while living in Nanticoke, Pennsylvania and Wilkes-Barre, Pennsylvania,

and applied for admission once again in Indiana County. (Id.) The second is the

United States Department of Agriculture’s (USDA) rural rent supplement program,5

pursuant to which Cease currently lives at Clymer House Apartments in Clymer,

Pennsylvania. Although the USDA’s program offers a rental assistance subsidy

3

Act of April 17, 2016, P.L. 84, 35 P.S. § 10231.501.

4

Section 303(a) of the Pennsylvania Medical Marijuana Act provides generally that the use

or possession of medical marijuana is lawful and that “[n]otwithstanding any provision of law to

the contrary, use or possession of medical marijuana as set forth in [the Act] is lawful within this

Commonwealth.” 35 P.S. § 10231.303(a).

5

Section 514 of the Housing and Community Development Act of 1974, 42 U.S.C. §1490a,

created the USDA’s rural rent supplement program.

2

comparable to what HUD offers qualified residents in metropolitan areas, HUD’s

regulations do not govern the USDA’s program. (Id.)

In November 2017, Cease submitted an “Initial Application for

Housing Assistance – All Programs” to the Authority for Section 8 housing. (Nov.

30, 2017 Initial Application; Reproduced Record “R.R.” at 15a.) In its

acknowledgment, the Authority advised Cease that it was placing her on a waiting

list with an average waiting time of six months to one year and that “[t]he application

process and requirements for eligibility are explained in the policies available for

your review at our office.” (Nov. 30, 2017 Letter at 1; R.R. at 17a.) In April 2018,

the Authority informed Cease that there was an opening in Section 8 housing and

requested that she provide a full application to determine her eligibility. (Apr. 10,

2018 Letter at 1; R.R. at 19a.) Cease complied, including a copy of her Medical

Marijuana Identification Card with the application.

In denying the application, the Authority stated: “We must deny

program participation as marijuana is still considered to be an illegal substance by

the Federal government and costs associated with marijuana medical treatments

cannot be considered in calculation of adjusted income.” (June 13, 2018 Letter at 1;

R.R. at 37a) (emphasis in original). At Cease’s request, informal and formal

hearings followed. Ultimately, the Authority upheld its denial based solely on the

illegality of marijuana under federal law. (Sept. 26, 2018 Letter at 1; R.R. at 279a.)

In so doing, the Authority agreed that Cease’s income was well below its “extremely

low” threshold and conceded that she met the income standards for Section 8

housing.6 The Section 8 Coordinator for Indiana County, Holly Hall, testified that

6

Derived from Social Security benefits, Cease’s annual income was $9,240 and below the

“extremely low” income level of $13,450. (Sept. 18, 2018 Hearing, Notes of Testimony “N.T.” at

20; R.R. at 58a.)

3

the Authority denied Cease admission based on the federal government’s

classification of marijuana as an illegal drug and HUD’s memos regarding the use

of medical marijuana. (Sept. 18, 2018 Hearing, Notes of Testimony “N.T.” at 49-

50; R.R. at 87a-88a.) In particular, Hall seemed to rely upon Exhibit 9, directed to

all public housing agencies and specifically pertaining to the Section 8 program. In

the 2011 memo, HUD sought to provide guidance regarding the use of medical

marijuana in states that have enacted laws permitting the use of medical marijuana

and stated that new admissions of medical marijuana users was prohibited. (Id., Ex.

9; R.R. at 4a.) Further, HUD stated that state laws legalizing medical marijuana

directly conflict with the admission requirements set forth in QHWRA and are thus

subject to federal preemption.7 (Id.)

On appeal, the trial court took additional testimony confirming Cease’s

status as a former Section 8 program participant in Luzerne County before moving

to Indiana County. Following legal argument, it affirmed the Authority’s denial of

Cease’s application for Section 8 housing and determination that she was a new

applicant to the program. Cease’s appeal to this Court followed.

Cease raises two issues, one with three subparts. In summary and

reordered for ease of analysis, the first issue is whether Cease is a new applicant

under Section 13661 of QHWRA or an existing participant under Section 13662.8 If

Cease is a new applicant, then she poses the issue of whether Section 13661 requires

that the Authority deny her housing based on legal medical marijuana use or whether

7

The memo lists fourteen states and the District of Columbia as having laws that legalize the

use of medical marijuana. In 2011, Pennsylvania was not one of those states. Currently, there are

at least thirty-three states and the District of Columbia that have legalized medical marijuana.

8

Implicit in this issue is the parties’ belief that Section 13662 of QHWRA affords a public

housing agency discretion to terminate the tenancy or assistance to an existing participant who the

agency or owner determines is illegally using a controlled substance.

4

it may exercise discretion. If the decision to deny housing on that basis is

discretionary, then she poses the issue of whether the Authority should afford her

accommodation for a disability under the Pennsylvania Human Relations Act

(PHRA)9 and the Pennsylvania Medical Marijuana Act. Cease’s second issue is

whether the lawful use of medical marijuana constitutes “illegally using a controlled

substance” such that the use can form the basis for exclusion from the Section 8

program.

Congress created the Section 8 program in 1974 for “the purpose of

aiding low-income families in obtaining a decent place to live and of promoting

economically mixed housing” by providing low-income families with assistance

payments, or subsidies, to enable them to rent units in the private housing market.

Section 8(a) of the Housing and Community Development Act of 1974, 42 U.S.C. §

1437f(a). Pursuant to the program, HUD funds and regulates state or local

governmental public housing agencies by distributing federal funds to the agencies,

which, in turn, distribute the funds by contracting with property owners to subsidize

a portion of a program participant’s rent. See 42 U.S.C. § 1437f.

In 1998, Congress enacted QHWRA, which, inter alia, amended the

Housing and Community Development Act of 197410 by requiring public housing

agencies to establish standards to consider when determining admission to and

termination from the Section 8 program. See 42 U.S.C. §§ 13661-13664. Section

13661(b)(1)(A) of QHWRA, “Screening of applicants for federal assisted housing,”

provides:

(b) Ineligibility of illegal drug users and alcohol abusers.

9

Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.

10

42 U.S.C. §§ 1401-1440.

5

(1) Notwithstanding any other provision of law, a

public housing agency or an owner of federally assisted

housing, as determined by the Secretary, shall establish

standards that prohibit admission to the program or

admission to federally assisted housing for any household

with a member--

(A) who the public housing agency or

owner determines is illegally using a

controlled substance.

42 U.S.C. §13661(b)(1)(A) (emphasis added). Section 13662(a)(1) of the QHWRA,

42 U.S.C. § 13662(a)(1), “Termination of tenancy and assistance for illegal drug

users and alcohol abusers in federally assisted housing,” provides:

(a) In general. Notwithstanding any other provision of

law, a public housing agency or an owner of federally

assisted housing (as applicable) shall establish standards

or lease provisions for continued assistance or occupancy

in federally assisted housing that allow the agency or

owner (as applicable) to terminate the tenancy or

assistance for any household with a member--

(1) who the public housing agency or

owner determines is illegally using a

controlled substance[.]

42 U.S.C. §13662(a)(1).

As for which of the aforementioned provisions of QHWRA applies to

Cease, we note that she was a participant in the USDA’s rural rent supplement

program when she applied for Section 8 housing in Indiana County. In other words,

she was neither an existing Section 8 participant nor a participant in any federally

subsidized housing program administered by the Authority at the time of her Section

8 application. Consequently, we determine that the Authority properly treated Cease

6

as a new applicant to the Section 8 program such that the screening provision in

Section 13661 of QHWRA applied. We turn to an analysis of that provision.

As noted above, Section 13661(b)(1)(A) of QHWRA provides that the

Authority “shall establish standards that prohibit admission to the program[.]” 42

U.S.C. §13661(b)(1)(A). Notably, there is a difference between “shall establish

standards that prohibit admission” and “shall prohibit admission.” Otherwise, the

term “establish standards” is entirely meaningless. The object of statutory

construction is to ascertain and to effectuate legislative intent. Section 1921(a) of

the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(a). “[W]hen the words of

a statute are clear and free from all ambiguity, the letter of it is not to be disregarded

under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). Generally, the best

indication of legislative intent is the plain language of a statute. Malt Bevs. Distribs.

Ass’n v. Pa. Liquor Control Bd., 974 A.2d 1144, 1149 (Pa. 2009). See also U.S. v.

Gonzales, 520 U.S. 1, 6 (1997) (Where “[g]iven a straightforward statutory

command, there is no reason to resort to legislative history.”).

By way of contrast, Section 13663(a) of QHWRA, pertaining to sex

offenders, provides that “[n]otwithstanding any other provision of law, an owner of

federally assisted housing shall prohibit admission to such housing for any

household that includes any individual who is subject to a lifetime registration

requirement under a State sex offender registration program.” 42 U.S.C. § 13663(a)

(emphasis added). Clearly, there is no discretion in prohibiting admission to such

applicants. Accordingly, we construe the mandate in Section 13661(b)(1)(A) of

QHWRA as allowing for flexibility to determine when and on what basis admission

is prohibited, rather than mandating an outright prohibition. In other words, for

purposes of Section 13661(b)(1)(A), the Authority must establish standards for

7

determining when and on what basis admission is prohibited for a Section 8 housing

applicant who the Authority determines is illegally using a controlled substance. See

Nation v. Trump, 818 F. App’x 678, 679-80 (9th Cir. 2020) (“QHWRA requires that

owners of federally-assisted housing establish certain occupancy standards

pertaining to illegal drug use for residents. See generally 42 U.S.C. §§ 13661-62.”).

Such standards must take into account factors such as the nature of the substance,

i.e., whether it is clearly unlawful or in an unclear legal state such as that involved

here; the reason for such use; whether it is being used in accordance with legal

requirements; other factors concerning the applicant’s background, including

behavior during any prior residence in federally subsidized housing; and the

presence or absence of any prior criminal record.

As for marijuana’s legal status, the federal Controlled Substances Act

(CSA)11 classifies marijuana as a Schedule I controlled substance and it is unlawful

for any person to knowingly or intentionally possess a controlled substance. Section

841(a)(1) of the federal CSA, 21 U.S.C. § 841(a)(1). Although there have been

considerable efforts to reclassify marijuana under federal law, it has remained a

Schedule I drug ever since its initial classification. Additionally, there has been

resistance to efforts to make exceptions for the use of medical marijuana in federally-

funded public housing. See Nation v. Trump, 395 F. Supp. 3d 1271 (N.D. Cal. 2019),

aff’d, 818 F. App’x 678 (9th Cir. 2020) (where former HUD housing fund recipient

claimed that HUD’s application of the federal CSA against medical marijuana was

unconstitutional, court confirmed that QHWRA referred to the CSA to define the

term “controlled substance,” that the CSA defined that term as a drug or other

substance in one of its five schedules, and that marijuana was classified as a Schedule

11

21 U.S.C. §§ 801-971.

8

I drug under the CSA); Forest City Residential Mgmt. v. Beasley, 71 F. Supp. 3d 715

(E.D. Mich. 2014) (where Section 8 housing recipient was legally using medical

marijuana under state law, court acknowledged that the CSA contained no provision

allowing for the medical use of marijuana, held that the CSA preempted the

Michigan Medical Marihuana Act,12 and determined that the Fair Housing Act13 did

not require a federally assisted housing complex to grant the recipient a reasonable

accommodation to use medical marijuana in such a complex).

Nonetheless, we are not bound by decisions of lower federal courts in

other jurisdictions. Cease possesses a valid Pennsylvania Medical Marijuana

Identification Card authorizing her to legally obtain and use medical marijuana

under medical supervision, and the Authority does not dispute that she has a valid

medical basis for her use and that it is properly prescribed and supervised.

Consequently, we find the term “illegally using a controlled substance” to be

ambiguous here where her use is prohibited by the federal government but permitted

under state law.14 Criminal law is primarily a matter for the states to determine

12

Mich. Comp. Laws §§ 333.26421 - 333.26430.

13

42 U.S.C. §§ 3601-3631.

14

Of course, even in the Commonwealth’s body of laws, there are statutory conflicts and/or

legislative failures to act with respect to accommodations for users of medical marijuana. In

Harrisburg Area Community College v. Pennsylvania Human Relations Commission, ___ A.3d

___ (Pa. Cmwlth., No. 654 C.D. 2019, filed October 29, 2020) (“HACC”), this Court considered

the effect of HACC’s drug-testing requirement for candidates in its nursing program on a nursing

student lawfully using medical marijuana under the Pennsylvania Medical Marijuana Act. We

addressed the issue of whether the anti-discrimination provisions of the PHRA and the

Pennsylvania Fair Educational Opportunities Act (PFEOA), Act of July 17, 1961, P.L. 776, as

amended, 24 P.S. §§ 5001-2010, required accommodation of the student’s lawful use of medical

marijuana. We held that the legalization of medical marijuana in Pennsylvania in the Pennsylvania

Medical Marijuana Act did not require an accommodation for its use under either Section 5(i)(1)

of the PHRA, 43 P.S. § 955(i)(1), or Section 4(a)(3) of the PFEOA, 24 P.S. § 5004(a)(3), noting

that the General Assembly could have amended the language of those acts to require

(Footnote continued on next page…)

9

within their own jurisdictions. “Federalism, central to the constitutional design,

adopts the principle that both the National and State Governments have elements of

sovereignty the other is bound to respect.” Arizona v. United States, 567 U.S. 387,

398 (2012). As the Pennsylvania Supreme Court recently observed:

[T]he core principle of federalism recogniz[es] dual

sovereignty between the tiers of government.” See United

States v. Davis, 906 F.2d 829, 832 (2d Cir. 1990) (“The

states and the national government are distinct political

communities, drawing their separate sovereign power

from different sources, each from the organic law that

established it. Each has the power, inherent in any

sovereign, independently to determine what shall be an

offense against its authority and to punish such

offenses.”). In enacting the [Pennsylvania Medical

Marijuana Act], the Pennsylvania Legislature proceeded

pursuant to its independent power to define state criminal

law and promote the health and welfare of the citizenry.

Gass v. 52nd Jud. Dist., 232 A.3d 706, 714 (Pa. 2020). Consequently, “while

possession and use of marijuana remains illegal under federal law even for medical

purposes, . . . the federal [CSA] does not (and could not) require states to enforce

it.” Id. at 714.

In Gass, our Supreme Court unanimously declared that the Lebanon

County Court of Common Pleas, 52nd Judicial District’s “Medical Marijuana

accommodation but chose not to do so. Id. at ___, slip op. at 13 and 15. In her concurring opinion,

Judge Covey urged the General Assembly to amend both the PHRA and the PFEOA so the benefits

it created in the Pennsylvania Medical Marijuana Act “for the citizens of this Commonwealth are

not illusory or applicable only in limited circumstances; thereby, creating an egregious result as is

demonstrated in the instant case.” HACC, ___ A.3d at ___ (Covey, J. concurring), slip op. at 1.

Judge Covey opined that “[t]he conflict among these statutes has created an absurd result in

requiring Pennsylvania citizens to choose the benefits of medical marijuana or the protections of

the PHRA and the PFEOA.” Id. at ___ (Covey, J. concurring), slip op. at 2-3.

10

Policy” prohibiting the active use of medical marijuana by individuals under court

supervision, such as probationers, was, in both its original and amended forms,

contrary to the immunity afforded under the Pennsylvania Medical Marijuana Act

and, therefore, could not be enforced. In other words, the Court determined that a

local policy could not usurp a state law simply by reference to a federal law such as

the federal CSA. Id. Accordingly, the Gass Court held: “While the circumstances

are certainly uneasy -- since possession and use of medical marijuana remains a

federal crime -- we find that the [52nd Judicial] District cannot require state-level

adherence to the federal prohibition, where the General Assembly has specifically

undertaken to legalize the use of medical marijuana for enumerated therapeutic

purposes.” Id. We believe the same is true of the Authority.15

Moreover, the pertinent provisions of QHWRA are based on the

obsolete and scientifically flawed premise that marijuana “has no currently accepted

medical use in treatment in the United States” and that “there is a lack of accepted

safety for use of marijuana under medical supervision.” Section 812(b)(1)(A-C) of

the federal CSA, 21 U.S.C. § 812(b)(1)(A-C). See also U.S. v. Oakland Cannabis

Buyers’ Coop., 532 U.S. 483 (2001) (recognizing that there is no medical necessity

15

In Beasley, 71 F. Supp. 3d 715, the United States District Court for the Eastern District of

Michigan considered how much deference to afford a January 2011 memorandum opinion issued

by HUD to the Office of Fair Housing and Equal Opportunity regarding the medical use of

marijuana and reasonable accommodation in federal public and assisted housing. Concluding that

the HUD memorandum was not a statute, regulation, or formal judicial interpretation, the federal

district court rejected the higher level of deference set forth in Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984). Instead, the federal district court concluded

that the HUD memorandum was a more informal medium not intended to have the force of law

and, therefore, afforded it the lesser level of deference set forth in Skidmore v. Swift & Company,

323 U.S. 134, 140 (1944). Accordingly, the federal district court, per Skidmore, gave weight to

“HUD’s conclusion that a medical marijuana accommodation [was] not reasonable under the Fair

Housing Act because it would constitute a fundamental alteration in the nature of a [public housing

agency] or owner’s operations.” Beasley, 71 F. Supp. 3d at 730.

11

exception to the federal prohibition against manufacturing and distributing

marijuana). In contrast, the General Assembly in Section 102(1) of the Pennsylvania

Medical Marijuana Act declared: “Scientific evidence suggests that medical

marijuana is one potential therapy that may mitigate suffering in some patients and

also enhance quality of life.” 35 P.S. § 10231.102(1). Consequently, given the

current circumstances regarding the medically accepted use and ambiguous status of

medical marijuana, establishment of fair and reasonable standards regarding the use

of that substance under medical supervision is particularly called for here.

Accordingly, we affirm the trial court’s order to the extent that it

determined that Cease was a new applicant but vacate the order to the extent that it

affirmed the Authority’s denial of Cease’s application. We remand this matter to

the trial court with directions to remand to the Authority to do what QHWRA

mandates and establish fair and reasonable standards for determining in what

circumstances admission to Section 8 housing is prohibited for an applicant who is

legally using medical marijuana under state law, and to apply those standards with

respect to Cease’s individual circumstances when determining Cease’s eligibility for

the Section 8 program.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita

12

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mary Cease, :

Appellant :

:

v. : No. 519 C.D. 2019

:

Housing Authority of Indiana County :

ORDER

AND NOW, this 19th day of February, 2021, we hereby AFFIRM the

order of the Court of Common Pleas of Indiana County, in part, VACATE the order,

in part, and REMAND this matter to the trial court with directions to remand to the

Housing Authority of Indiana County in accordance with the foregoing opinion.

Jurisdiction relinquished.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mary Cease, :

Appellant :

: No. 519 C.D. 2019

v. :

: Argued: February 13, 2020

Housing Authority of Indiana County :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: February 19, 2021

I must respectfully dissent. The Majority goes to great lengths to

explain why Congress’s use of the phrase “shall establish standards that prohibit” in

section 13361 of the federal Quality Housing and Work Responsibility Act

(QHWRA),1 means a Public Housing Authority (PHA) has “flexibility” to decide

whether to admit an illegal drug user (as defined in the federal Controlled Substance

Act2 (CSA)) into a Section 8 housing program.3 By avoiding the rules of statutory

1

42 U.S.C. §13661.

2

21 U.S.C. §§801-971.

3

Section 8(a) of the Housing and Community Development Act of 1974 (HCDA), 42

U.S.C. §1437f(a).

interpretation, the Majority assigns to the phrase “shall establish standards that

prohibit” a meaning that Congress plainly did not intend.

The Majority also disregards some very basic constitutional and

jurisprudential concepts to arrive at the desired conclusion that Mary Cease (Cease),

a user of medical marijuana, is not “illegally using a controlled substance” under the

QHWRA. The fact that Pennsylvania’s Medical Marijuana Act4 (MMA) legalizes

the use of medical marijuana in limited situations is immaterial to the disposition of

this case. The CSA (which illegalizes medical marijuana as a Schedule I drug)

applies here because the QHWRA is a federal statute.

Interpretation of the QHWRA

The Section 8 housing program is a federally funded and supervised

rent subsidy program for low-income tenants which is administered by the United

States Department of Housing and Urban Development (HUD). The QHWRA is a

federal statute. It establishes the parameters for a PHA, such as the Housing

Authority of Indiana County (HAIC), to follow when considering admission to, and

termination from, the Section 8 housing program. See 42 U.S.C. §§13661-13664.

Section 13661 of the QHWRA, titled “Screening of applicants for

federally assisted housing,” applies to new applicants.5 By its plain language,

section 13661 of the QHWRA requires owners of federally assisted housing to deny

admission to a new applicant if she, or a household member, is illegally using a

4

Act of April 17, 2016, P.L. 84, 35 P.S. §§10231.101-10231.2110.

5

I have no objection to the Majority’s conclusion that Cease was a “new applicant” to the

Section 8 program.

PAM -2

controlled substance. With regard to “admission to the program,” section

13361(b)(1)(A) provides, in this regard, as follows:

Notwithstanding any other provision of law, a public

housing agency or an owner of federally assisted housing,

as determined by the Secretary, shall establish standards

that prohibit admission to the program or admission to

federally assisted housing for any household with a

member--

(A)who the public housing agency or owner

determines is illegally using a controlled

substance;

****

42 U.S.C. §13661(b)(1)(A) (emphasis added).

In contrast to the mandatory grounds for prohibiting admission to a

Section 8 program set forth in section 13661, section 13662 of the QHWRA, titled

“Termination of tenancy and assistance for illegal drug users and alcohol abusers in

federally assisted housing,” grants the PHA discretion to determine when and on

what basis an existing participant’s tenancy may be terminated if she is illegally

using a controlled substance or abusing alcohol. Section 13662(a)(1) provides, in

this regard, as follows:

Notwithstanding any other provision of law, a public

housing agency or an owner of federally assisted housing

(as applicable), shall establish standards or lease

provisions for continued assistance or occupancy in

federally assisted housing that allow the agency or owner

(as applicable) to terminate the tenancy or assistance for

any household with a member--

PAM -3

(1) who the public housing agency or owner

determines is illegally using a controlled

substance;

****

42 U.S.C. §13662(a)(1) (emphasis added).

In my view, the phrases “shall establish standards that prohibit”

(section 13661) and “shall establish standards that allow” (section 13662) in the

sections dealing with illegal drug use make it clear precisely when Congress

intended for a PHA to have discretion and when a PHA lacks that discretion.

Congress has a strict drug policy when it comes to the admission of

current drug users (as defined by the CSA) into Section 8 housing. As stated by the

federal courts, the import of the QHWRA and its accompanying regulations “is to

protect public housing from criminal elements, especially drug activity, which could

adversely affect the community.” Bennington Housing Authority v. Bush, 933 A.2d

207, 213 (Vt. 2007). See also Eastern Carolina Regional Housing Authority v.

Lofton, 789 S.E.2d 449, 452 (N.C. 2016) (observing that, “like everyone else,

individuals who live in federally subsidized housing are entitled to be free from ‘any

criminal activity that threatens the health, safety, or right to peaceful enjoyment of

the premises’”). When it comes to deciding whether to admit a current drug user

into a Section 8 housing program, PHAs have no discretion. They must deny

admission.6 See Campbell v. Minneapolis Public Housing Authority, 168 F.3d 1069,

1076 (8th Cir. 1999) (holding that the Minneapolis Public Housing Authority was

“obligated to exclude [applicant] from public housing if it ‘ha[d] reasonable cause

6

Notably, federal regulations permit PHAs to overlook drug history and prior drug

convictions if the person is no longer engaging in drug abuse or has been rehabilitated. 24 C.F.R.

§960.204(a)(1). But here, it is undisputed that Cease is a current user of medical marijuana.

PAM -4

to believe’ that, at the time of his application, he was using illegal drugs or abusing

alcohol in a manner that ‘may interfere with the health, safety, or right to peaceful

enjoyment of the premises by other residents of the project’”) (emphasis added).

Contrariwise, when it comes to eviction, i.e., the potential displacement

of an existing tenant and/or her entire household, PHAs are given discretion to

“establish standards that allow” those tenants or their families to remain in Section

8 housing despite the violation, for example, by issuing warnings, or setting

probation periods. This is because of the hardship that arises when tenants lose their

housing. Bennington Housing (observing that a PHA certainly may evict an entire

family for the misdeeds of one member, but it need not do so); Lofton (holding that

housing authority was required to exercise its discretion before pursuing tenant’s

eviction from federally subsidized apartment for lease violation arising from third

party’s drug-related activity).

Despite the clarity with which Congress has indicated when a PHA has

discretion, the Majority concludes that section 13661 of the QHWRA allows for

“flexibility” to determine when and on what basis admission is prohibited, rather

than mandating an outright prohibition to current users of illegal drugs.

The Majority’s interpretation is based on its observation that Congress

used the phrase “shall prohibit” in another section of the QHWRA (prohibiting sex

offender’s admission to Section 8 housing). Section 13663(a) of the QHWRA states

that “notwithstanding any other provision of law, an owner of federally assisted

housing shall prohibit admission to such housing” to registered sex offenders. 42

U.S.C. §13663(a) (emphasis added).

The Majority concludes that, given the different wording, the two

phrases, “shall prohibit” (in section 13663) and “shall establish standards that

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prohibit” (in section 13661), must have different meanings. Comparing the

language of section 13661 (admission to Section 8 housing) with section 13663

(prohibiting sex offender’s admission to Section 8 housing), the Majority concludes

that, if Congress intended for Section 8 admission to be denied to current drug users,

then it would have stated this as plainly as it did in section 13663 by using the phrase

“shall prohibit.” The Majority reasons that since Congress did not use the words

“shall prohibit” in section 13661, it must have, therefore, meant for PHAs to have

some degree of discretion to admit Cease as a new applicant under section 13661,

notwithstanding her current use of medical marijuana. Otherwise, the Majority

reasons, the phrase “shall establish standards” is meaningless.

The Majority’s interpretive principles are unconvincing. First, the

Majority does not explain how section 13661’s language is ambiguous in context.

Rather, the Majority compares section 13661 (shall establish standards that

prohibit) with section 13663 (shall prohibit) – and based on the differences, arrives

at the meaning of “shall establish standards that prohibit.”

If statutory language is “clear and free from ambiguity, the letter of it

is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §1921(b).

Thus, when the words of a statute have a plain and unambiguous meaning, it is this

meaning which is the paramount indicator of legislative intent. When interpreting

federal statutes, courts must read the statutory language in its proper context and not

view it in isolation. McCarthy v. Bronson, 500 U.S. 136, 139 (1991). The Majority’s

approach in only comparing and contrasting language used in a different section of

the QHWRA is directly contrary to these principles. Roethlein v. Portnoff Law

Associates, Ltd., 81 A.3d 816, 822 (Pa. 2013) (disapproving lower court’s focus on

two words).

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The Majority focuses on the presence of the phrase “shall establish

standards” in section 13661 and its absence in section 13663, instead of considering

the plain and unambiguous language of section 13661, which is the paramount

indicator of legislative intent. When the phrase is read in full and in context, it is

clear that “shall establish standards that prohibit” simply and plainly means that

whatever standards a PHA establishes for admission into a Section 8 housing

program, those standards must prohibit admission if the applicant is determined to

be illegally using a controlled substance. There is absolutely nothing ambiguous

with that statement. Nevertheless, by isolating the phrase “shall establish standards”

from the rest of the sentence, which describes the type of standards the PHA must

establish, i.e., “standards that prohibit” – the Majority is able to contrive an

ambiguity where none exists. This approach is in clear contravention of well-

established rules of statutory interpretation.

Ironically, under the Majority’s interpretation, the phrases: “shall

establish standards that prohibit” (section 13661) and “shall establish standards that

allow” (section 13662) – would mean the exact same thing (i.e., PHAs have

flexibility and discretion to admit into program and terminate tenancy) – simply

because both sections include the phrase “shall establish standards.” If that was the

case, then the language “that allow” and “that prohibit” which follows “shall

establish standards” would be rendered entirely meaningless.

“The courts must construe every statute, if possible, to give effect to all of its

provisions so that none are rendered mere surplusage.” White v. Associates in

Counseling & Child Guidance, Inc., 767 A.2d 638, 642 (Pa. Cmwlth. 2001) (citing

1 Pa.C.S. §§1921(a) and 1922(a)).

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Even if there was an ambiguity, which I submit there is not, I disagree

with the Majority’s view that the language in section 13661 (“shall establish

standards that prohibit”) is so dissimilar to the language in section 13663 (“shall

prohibit”) – such that we can conclude that Congress intended dissimilar results.

There is no reason in law or logic to construe section 13661 in a different manner

than section 13663. The phrase “shall establish standards that prohibit” in section

13661 is no less definite than the language used in section 13663 (“shall prohibit”).

Substantively, establishing standards that prohibit is precisely the same in legal

effect as prohibiting outright. It is a distinction without a difference.

Finally, applying the Majority’s own logic, if Congress wanted to give

PHAs discretion under section 13661 to allow drug users admission to Section 8

housing, it would have used the same language it used in section 13662 to grant that

discretion, which states that a PHA “shall establish standards that allow” the PHA

to terminate an existing tenancy for any household with a member who the PHA

determines is illegally using a controlled substance . . . .” 42 U.S.C. §13662(a)(1).

However, Congress did not include such language in section 13661. Instead it used

“that prohibit,” which has the exact opposite meaning of “that allow.”

It is also noteworthy that HUD’s regulation, which sets forth standards

for PHA tenant selection criteria, 24 C.F.R. §960.204, support the conclusion that

the phrase “establish standards that prohibit” means that the PHA is required to

deny admission to persons engaging in illegal use of drugs. “Persons engaging in

illegal use of a drug” is listed under the regulation defining circumstances, which

require the denial of admission, and states under no uncertain terms that the PHA

is required to deny admission to persons engaging in illegal use of a drug. This

section of the regulations provides, in pertinent part:

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§ 960.204 Denial of admission for criminal activity or

drug abuse by household members.

(a) Required denial of admission.

***

(2) Persons engaging in illegal use of a drug. The

PHA must establish standards that prohibit admission of

a household to the PHA's public housing program if:

(i) The PHA determines that any household

member is currently engaging in illegal use of a

drug[7] (For purposes of this section, a household

member is “currently engaged in” the criminal

activity if the person has engaged in the behavior

recently enough to justify a reasonable belief that

the behavior is current) . . . .

24 C.F.R. §960.204(a)(2) (emphasis added.)

Subsection (a)(4) of these same regulations require PHAs to “establish

standards that prohibit admission” to Section 8 housing for registered sex

offenders. If the Majority is correct that the phrase “must establish standards” means

that the PHA has “discretion” or “flexibility” to make decisions, then PHAs would

have discretion to admit registered sex offenders, which is directly the opposite of

7

Under federal law, marijuana is a Schedule I controlled substance with “no currently

accepted medical use in treatment in the United States.” 21 U.S.C. §812(b)(1)(B). Significantly,

Congress also has delineated those controlled substances which it does recognize as having a

currently accepted medical use in the United States. These are listed in Schedules II-V. Marijuana

is not listed in Schedules II-V. In other words, Congress has determined that not only is marijuana

listed as a prohibited Schedule I drug, it also chose not to include it on the list of those substances

that it recognizes as having any accepted medical use. See Harrisburg Area Community College

v. Pennsylvania Human Relations Commission, ___ A.3d ___, ___ (Pa. Cmwlth. No. 654 C.D.

2019, filed Oct. 29, 2020), 2020 WL 6325864, at *4.

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what the Majority is arguing based on the language in section 13663 of the QHWRA,

which provides that PHAs “shall prohibit” admission to registered sex offenders.

This pertinent section of the regulations, which relates to sex offenders, provides in

part:

(4) Persons subject to sex offender registration

requirement. The PHA must establish standards that

prohibit admission to the PHA’s public housing program

if any member of the household is subject to a lifetime

registration requirement under a State sex offender

registration program. In the screening of applicants, the

PHA must perform necessary criminal history background

checks in the State where the housing is located and in

other States where household members are known to have

resided. (See part 5, subpart J of this title for provisions

concerning access to sex offender registration records.)

24 C.F.R. §960.204(a)(4) (emphasis added).

Based on the foregoing, I disagree with the Majority’s interpretation of

section 13661 of the QHWRA. To me, it is abundantly clear that PHAs have no

discretion to admit persons who engage in the illegal use of drugs, as defined in the

governing federal law. Rather, PHAs are required to deny admission to Section 8

housing if the PHA determines that the applicant or any household member is

currently engaging in illegal use of drugs.

Under Federal Law, Cease is

Illegally Using a Controlled Substance

I also disagree with the Majority’s conclusion that Cease is not illegally

using a controlled substance for determining her eligibility for Section 8 housing

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under the QHWRA. Cease’s possession and use of medical marijuana violates the

CSA.

Even though medical marijuana is legal in certain situations under

Pennsylvania law pursuant to section 2103(a) of the MMA, 35 P.S. §10231.2103(a),

Congress has explicitly classified “marihuana” as an illegal Schedule I controlled

substance in the CSA. Section 812(c) of the CSA, SCHEDULE I (c)(10). Along

with Morphine, Peyote, LSD, and nearly 100 other Schedule I controlled substances,

Congress has declared that marijuana (cannabis): (1) has a high potential for abuse;

and (2) has no currently accepted medical use in treatment in the United States.

21 U.S.C. §812(b)(1)(A)-(C). Categorizing marijuana as a Schedule I drug reflects

Congress’s conclusion that marijuana “lack[s] any accepted medical use, and [that

there is an] absence of any accepted safety for use in medically supervised

treatment.” Gonzales v. Raich, 545 U.S. 1, 14 (2005) (citing 21 U.S.C. §812(b)(1));

see also United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483

(2001) (recognizing that there is no medical necessity exception to the federal

prohibition against manufacturing and distributing marijuana).

Despite efforts to reclassify marijuana, it has remained a Schedule I

drug since the enactment of the federal CSA. Raich, 545 U.S. at 14-15, n.23

(summarizing “considerable efforts,” ultimately unsuccessful, to reschedule

marijuana). It follows then that medical marijuana use is considered “illegally using

a controlled substance” under federal law for purposes of the QHWRA. Because

Congress has directly and unambiguously spoken in the federal QHWRA regarding

the illegality of using medical marijuana, our inquiry should end here. The plain

language of the QHWRA is clear and unambiguous regarding Cease’s illegal use of

a controlled substance. Cease’s use and possession of medical marijuana is illegal

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under federal law. Because Cease is an illegal drug user under the CSA, HAIC was

required to deny her application for admission to Section 8 housing under section

13661 of the QHWRA, notwithstanding that Pennsylvania has legalized medical

marijuana in the MMA.

In finding that the phrase “illegally using a controlled substance” is

ambiguous, the Majority reasons that medical marijuana is legal in Pennsylvania and

Cease is a Pennsylvania citizen. The Majority draws the distinction in this case on

the principle of federalism that the states and the federal government operate in their

respective sphere of governance. However, the Majority fails to recognize that, due

to the applicability of a federal statute, we are bound to interpret the QHWRA in

accordance with federal law, as it is inherently a matter of federal concern. The

maxim that “[f]ederalism, central to the constitutional design, adopts the principle

that both the National and State Governments have elements of sovereignty the other

is bound to respect,” Arizona v. United States, 567 U.S. 387, 398 (2012), cuts both

ways.

The Majority also overstates the breadth of the MMA. Contrary to the

Majority’s position, the MMA has not made medical marijuana legal in

Pennsylvania in every situation. It only legalized it to the extent that the legislature

has declared it so. Section 304(a) of the MMA states that “[e]xcept as provided in

section 303, section 704, Chapter 19 or Chapter 20 [of the MMA], the use of

medical marijuana is unlawful and shall, in addition to any other penalty provided

by law, be deemed a violation of the Act of April 14, 1972 (P.L. 233, No. 64), [as

amended, 35 P.S. §§780.101-780.144,] known as the Controlled Substance, Drug,

Device and Cosmetic Act.” (emphasis added.)

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The Majority also believes the CSA is based on the “obsolete and

scientifically flawed” premise that marijuana has no currently accepted medical use

in treatment in the United States and there is a lack of accepted safety or use of

marijuana under medical supervision. The Majority oversteps its bounds. Although

the Majority feels that the United States Congress and federal administrative bodies

“got it wrong” when drafting the federal statutes and regulations – it is not for this

Court to hold marijuana should be considered a medically-acceptable drug, as a

matter of federal law, or that marijuana should be removed as an illegal substance in

the federal CSA. Stripped of its language, the Majority essentially finds that there

is no rational basis for the federal CSA and that, therefore, it is unconstitutional.

This is tantamount to overruling an act of the United States Congress and well-

established precedent from the United States Supreme Court which has held that

Congress can regulate the possession of medicinal marijuana through the CSA

pursuant to its authority under the Commerce Clause. See Raich.

The Majority’s position simply cannot be reconciled with the

Supremacy Clause of the United States Constitution,8 which dictates that the federal

law prevails over state law. The Supremacy Clause9 prevents this Court from

applying the Pennsylvania MMA to discern the meaning of “illegally using a

controlled substance.”

Finally, HAIC participates in a federal program under which it receives

federal funds. As a condition of receiving such funds, it must comply with federal

requirements. By encouraging HAIC to flout the CSA, the Majority is placing

HAIC’s right to receive federal funding at risk.

8

U.S. Const. art. 1, §8, cl. 3.

9

U.S. Const. art. 6, cl. 2.

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Congress has seen fit to exclude medical marijuana users from Section

8 housing based on its belief that medical marijuana has no medical uses. This Court

cannot override Congress’s clear intent to prohibit all marijuana users from

admission into Section 8 housing for reasons that this Court has no authority to

question. While sympathetic to Cease’s situation, this Court—no matter how

inequitable the factual scenario of a case may be—lacks the constitutional authority

to do so.

For these reasons, I dissent.

________________________________

PATRICIA A. McCULLOUGH, Judge

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