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Greenfield eviction notice highlights possible conflict in medical marijuana and anti-smoking laws

  • Smoking policy at the Mill House Apartments in Greenfield. Oct 11, 2017. Recorder Staff/Paul Franz

  • A resident smokes where it is permitted the Mill House Apartments in Greenfield. Oct 11, 2017. Recorder Staff/Paul Franz—Paul Franz

  • Smoking policy at the Mill House Apartments in Greenfield. Oct 11, 2017. Recorder Staff/Paul Franz—Paul Franz

  • The Mill House Apartments in Greenfield. Recorder Staff/Paul Franz

  • Mill House Apartments resident Anita Nelson on Monday, Oct. 23, 2017 in Greenfield. RECORDER STAFF/DAN LITTLE

  • Mill House Apartments resident Anita Nelson outside the complex in Greenfield. RECORDER STAFF/DAN LITTLE

  • Mill House Apartments resident Anita Nelson on Monday, Oct. 23, 2017 in Greenfield. RECORDER STAFF/DAN LITTLE

  • Mill House Apartments resident Anita Nelson on Monday, Oct. 23, 2017 in Greenfield. RECORDER STAFF/DAN LITTLE



Recorder Staff
Wednesday, November 08, 2017

GREENFIELD — Sitting in her motorized wheelchair, Anita Nelson gives a laundry list of her medical problems: multiple spinal injuries, distressed organs, post-traumatic stress disorder, double-vision, an episode of gallstones, permanent nerve damage in part of her body leaving her without the feelings of warmth.

Nelson, 58, likes that her medical marijuana allows her to stay off prescription painkillers.

Since getting her medical card for marijuana in 2015 when it was legalized, it’s been a way for Nelson to control her pain while living on Social Security.

Then in July, she received eviction papers from Mill House Apartments for repeatedly violating the no smoking policy instituted in 2015.

“It’s contradicting,” Nelson said about the state law and the policy at her federally subsidized housing complex, owned by a private company in Boston. “We’ll let you do this, but you can’t have your rights.”

State law seems to say Nelson has no real legal grounds to stand on. She’s an individual who violated her contract at a smoke-free facility. Yet, the question of whether she should have the right to smoke her medication lingers.

It’s a case that can be convoluted. Is it a “smoking issue,” a “health issue” or even a “class issue?”

“One of the biggest failures in America is the inability for every American to be able to safely and affordably access the medicine they need and that is prescribed to them by their doctors,” state Rep. Paul Mark, D-Peru, said recently about Nelson’s predicament. “It is a system-wide failure.”

“Not enough is being done to rein those costs in, and stories like this are real-life examples of why this is a problem, and everyone should be concerned about it, because anyone of us could be in a similar situation next,” he said.

Where to smoke?

Mark’s stance on this issue sets him apart among those who spoke on Nelson’s case of being evicted for smoking medical marijuana at this smoke-free apartment house.

While the local legislator advocated for the rights of a constituent to be able to consume her prescribed medicine, Greenfield’s mayor, police chief and housing authority director all spoke about how it’s a tough situation for an individual, but there’s not much that can be done for her at the moment.

The law for both medical and recreational marijuana permits someone to smoke in their private residence. If the person smokes in public, it could be a civil fine, garnering a ticket. If the person smokes in a car, it could result in an “open container” fine, just like drinking alcohol in the car.

When it comes to housing, the law in this case protects landlords, said Michael Cutler, who helped to co-write the recreational marijuana law.

“From a legal perspective, the housing authority is within its right to enforce the non-smoking rule,” said Cutler, an attorney in Northampton. “Tenants should not be subjected to unwelcome smoke, whether it be from tobacco or marijuana, or anything else.”

The Mill House Apartments adopted a no-smoking policy in 2015, the same year medical marijuana was legalized in the state.

“No tenant shall smoke, nor permit anyone to smoke, tobacco or any other product that is lit and/or inhaled, exhaled, breathed, chewed or carried in any number of forms including but not limited to cigarettes, cigars, e-cigarettes, hookahs, snus, marijuana and pipes or any other object which may produce smoke,” the Mill House policy reads.

Management consistently told Nelson to not smoke marijuana and suggested she instead use edible forms of marijuana, according to Mill House manager Nancy Bannister.

“There are plenty of ways to take in medical marijuana. You can eat it. There are tablets,” she said.

The problem with edibles and vaping products, says Nelson, is they are too expensive for her to buy from a dispensary.

Nelson contends that she was asked to sign the smoking agreement against her will. Her allegation that she signed the agreement under duress is a key part of her defense in her court appeal of the eviction.

Beacon Residential Management and Flynn Law Group, the party representing the Mill House owners, commented generally about how the smoking and marijuana are treated on the federally subsidized property.

“Mill House Apartments has a smoke-free house rule, which Beacon strictly enforces for the safety and well-being of its residents and staff members,” Beacon said in a statement over email. “Without discussing the specifics of the case, Mill House Apartments is willing to work with tenants and allow them to continue to reside in their units provided they agree to comply with the no-smoking policy.”

Beacon also indicated that because of federal law, it cannot accommodate anyone with marijuana, saying that the law says legalized medical marijuana in states “directly conflict” with the federal law.

The Boston-based housing group declined to comment if similar cases to Nelson’s have occurred at other Beacon properties.

The Greenfield Board of Health Chairman William Doyle confirmed that “individual property owners have the right to regulate smoking or non-smoking … I presume that it’s within their constitutional rights to evict someone.”

The issue perplexed several authorities in town.

Greenfield Housing Authority’s Executive Director Daniel Finn said that it’s a “complicated issue at the moment, obviously.”

Although Finn’s housing agency does not own the Mill House, it does have some authority here, given Nelson is living on a public housing rental assistance voucher.

Currently, residents of GHA public housing can possess the legal amount of marijuana in their homes, Finn said, but they cannot smoke it since the facilities are smoke-free. He said it has not cropped up as an issue for the housing authority at places it runs like Oak Courts and Elm Terrace, which also are smoke-free.

Mayor William Martin, when asked about Nelson’s plight, said if she was evicted for this reason, she may be able to apply for relocation through Greenfield Housing Authority and would then be placed at the top of the waiting list.

What are her other options? The marijuana law expert Cutler recommends forming a group with fellow residents to lobby for a designated smoking space at Mill House. He said that if Nelson is concerned with potential repercussions for asking for a place to smoke, “then they’re going to have to take that risk.”

Cutler emphasized that the law favors the landlord and that if the landlord wants to make a place smoke-free — even a place with residents living on Social Security and on federally subsidized housing — then that’s that.

“I see that as a reasonable law,” Cutler said. “I don’t think that the fact that it’s marijuana should give her the right to subject the neighbors to unwanted smoke.”

When asked if it’s a class issue that someone who can only afford certain housing can’t live in a place where they can use their medication, he said that’s not how he perceives it.

“I don’t see it as a class issue any more than anything where it’s difficult for poor people to afford things,” Cutler said.

“It’s an unfortunate situation,” he said, “but the bottom line is that tenants should not be subjected to unwanted smoke. It’s unfortunate when that rule has to be enforced. The most sensible thing is for the tenants to work something out with the landlord.”

What’s the cost?

What’s the typical response to the story of someone being evicted for smoking medical marijuana?

“Why not just vape or have edibles?”

It’s a matter of cost, argues Nelson.

Nelson says she lives on around $800 a month. About half of that tends to go to medical marijuana.

She buys from one of two dispensaries in the state. While there is a Greenfield one slated to open sometime in the future, her main options now are the Patriot Care dispensaries in Northampton and in Lowell.

Nelson said she buys about an ounce a month. This costs about $400, or around $100 a week. She said she can try to stretch the amount that she uses so that it comes close to $300 a month. A recent receipt from her purchases at Northampton’s dispensary showed she spent $137.50 on what she hopes will cover her for two weeks, although Nelson doubted it would suffice.

If she was to vape instead, Nelson said it would cost closer to $100 a day. The Recorder could not independently verify that because dispensaries refused to comment or providing pricing information for this story.

Patriot Care in Lowell declined to comment on any specifics of pricing, saying that even general information is confidential because it is a medication. The representative did say that pricing can vary, depending on what kind of substance someone would use to vape. The same was so for edibles.

Even if edibles were cheaper, Nelson said she wouldn’t take them because the medication would not be effective.

“Edibles are not even in the picture,” Nelson said. “That’s a body high. I don’t even have my whole body to enjoy it, so it’s a waste.”

The president of the American Herbal Pharmacopoeia, the group that is heavily cited in the state’s Department of Public Health materials regarding medical marijuana, said that Nelson’s claim that edibles aren’t effective for her is very plausible.

“It’s completely legit,” Roy Upton said.

He added that he has seen from his work that people who are experienced users can get adverse results from medical-grade edibles.

Upton also said smoking can be particularly effective for someone with PTSD, because of psychotropic effects that are not reached from edibles.

“There’s a lot of people who get what would be considered an emotional reset (from smoking),” Upton said. “They forget what real joy and happiness feels like and then they get stoned, and they’re like, ‘oh yeah, things can be good.’”

As for whether vaping can be effective, Upton said it’s possible it would not be as useful for someone who is used to the act of smoking. He was unaware how pricing compared between marijuana to smoke and to vape.

The Massachusetts Department of Public Health said although it oversees medical marijuana, it does not regulate the commerce of it.

Medication or marijuana?

At the crux of Nelson’s eviction case, which first appeared before Housing Court Oct. 6, is whether she should have the legal right to have a place to be able to smoke her medical marijuana.

Now, Nelson does not outright say she “smokes” her marijuana, but rather says she “consumes” it — though the eviction papers clearly state it is for smoking and she said she does not vape or take edibles.

Current state law is clear that a tenant does not have the right to smoke marijuana, whether it’s for medical reasons or not, if the landlord says the building or grounds are smoke-free.

“Rules in place at facilities apply to patients who are registered with the Medical Use of Marijuana Program,” Massachusetts Department of Public Health spokeswoman Ann Scales said in a statement. “If a facility is designated as smoke-free, the facility is not required to permit a patient registered for medical use of marijuana to smoke in smoke-free areas.”

But Mark feels it’s murkier than that, saying that whether this is an issue of class is a “big question and a new question.”

He emphasized that every person should be able to take the prescription assigned to them and to be able to get the treatment that is best suited for them, regardless of a person’s financial status.

In the meantime, Nelson continues to live at Mill House as the eviction process plays out.

The court process has begun, although her first appearance in Housing Court scheduled for October was postponed after she did not show up.

“I feel like marijuana users are being treated worse than heroin addicts,” Nelson said. “They’ll do anything to keep them alive.”

You can reach
Joshua Solomon at:

jsolomon@recorder.com

413-772-0261, ext. 264