Latest Case No. C05-1836L

Plaintiffs respectfully ask the Court to deny Defendant’s motion for summary judgment. There are material, unresolved questions of fact concerning the snakes kept by Plaintiffs and Defendant is not entitled to judgment as a matter of law with respect to issues raised by the presence of the snakes. Mr. Assenberg has demonstrated that his use of marijuana is authorized by RCW 69.51A. Defendant is not required to evict Mr. Assenberg because of his use of medical marijuana. The record shows that Mr. Assenberg’s use of marijuana is medically necessary. There is no irreconcilable conflict between the federal controlled substances act and Washington’s medical marijuana law, so Defendant is not entitled to judgment as a matter of law on the issue of the legal consequence of Mr. Assenberg’s use of marijuana

Plaintiffs, Mr. Assenberg and Ms. Kearney reside at 903 22nd Street, Apartment # 6 in Anacortes, Washington, along with Ms. Kearney’s two children. Skyler Kearney is 12 years old and Christina Kearney is 10 years old. (Dkt # 21-4 Ex. E, p. 13 of 28) This property is owned by the Defendant, the Anacortes Housing Authority. On August 17, 2005, Defendant gave Ms. Kearney and Mr. Assenberg a “THIRTY DAY NOTICE TO COMPLY OR VACATE AND NOTICE OF INTENT TO EVICT”. The stated reason for the eviction was that they were keeping a snake on the property. (Dkt #21-5 Ex H p2-3 of 32) On August 20, 2005 Defendant sent a letter to Plaintiffs stating that they had 10 days to get rid of the snakes or their lease would terminate on September 30, 2005, The letter goes on to say that an extension of time would be allowed so that Mr. Assenberg could obtain a letter from his doctor. A letter from Mr. Assenberg’s primary care physician, Dr. Allen Horesh, was received on April 25, 2005. Since the letter from Dr. Horesh indicated the snakes were pets, Defendant would not make an exception to its “no snakes” policy. Mr. Assenberg was given until September 6, 2005 to get rid of the snakes. (Dkt 21-5 p. 8 of 32)

On September 1, 2005 an investigator with the Fair Housing Center of South Puget Sound sent a letter to Defendant. That letter says that Mr. Assenberg is disabled and that he needs companion animals to accommodate his disability. The investigator asked that Defendant make a reasonable accommodation in its rules. (Dkt 21-5 Ex K p. 11 of 32) Defendant responded with a letter dated September 7. 2005 that denied the request for an accommodation because it was not required to lower or waive essential requirements to the fundamental nature of its program and pointing out that the pet policy specifically prohibits snakes. Plaintiffs were again told to get rid of the snakes or move out by midnight on September 30, 2005. (Dkt 21-5 Ex L p. 13 of 32) Dr. Horesh wrote again on September 11, 2005 to establish that the snakes were service animals and that they “are of great therapeutic benefit to him in the treatment of his depression.“ (Dkt 21-5 Ex. M p.15 of 32) Defendant’s response, dated September 13, 2005, referred to the snakes as therapy pets and said that he would be allowed to keep the snakes “for their medical benefit to you.” Plaintiffs were told that they would have to provide a declaration “from a professional of the types of snakes you have is necessary”. Plaintiffs were also required to indemnify management for any harm done by the snakes. (Dkt 21-5 Ex N p. 17of 32)

A letter from a Tacoma law firm dated September 14, 2005 stated that Defendant has not scheduled a grievance hearing. The letter continued to point out that there was no indication that an accommodation for Mr. Assenberg would cause an undue burden for Defendant. Finally, the letter went on to ask that the notice to comply or quit be rescinded. (Dkt 21-5 Ex. O p, 20-21 of 32) Mr. Assenberg told Defendant that the snakes are nonpoisonous. (Dkt 21-5 Ex. P p 23 of 32) Mr. Assenberg provided “Documentation of Medical Authorization to Possess Marijuana for Medical Purposes in Washington State”. The undated document was signed by Allen Horesh, M.D. (Dkt 21-5 Ex. Q p25 of 32) By letter dated September 27, 2005, Defendant’s Executive Director notified Plaintiffs that their request to use or possess marijuana was denied. Plaintiffs were also told that their request to “keep your pet snakes as service animals must also be denied.” The Executive Director, Ms. McCallum, reiterated that snakes are not allowed as pets. Ms. McCallum went on to say: Snakes and their care and feeding pose a threat to others’ health and property as well as interfering with others’ use and enjoyment of their homes, Your need for snakes as service animals is not readily apparent and to date you have failed to establish your alleged (1) need for your snakes to act as your service animals; or (2) that your pet snakes function as trained service animals.

Ms. McCallum went on to say that Plaintiffs had not demonstrated the need for or basis of using the snakes as service animals. (Dkt 21-5 Ex. R p. 27 of 32) Plaintiffs received a notice to terminate tenancy on September 30, 2005; the stated reasons for the notice were violation of the pet policy and use and possession of a controlled substance. (Dkt 21-5 Ex. T p. 32 of 32) Defendant’s pet policy prohibits dogs, snakes, reptiles, and spiders but the policy also allows exceptions with the approval of the Executive Director.

Certified service animals are allowed; guide dogs and hearing dogs are given as examples. (Dkt 21-4 Ex. C p. 5 of 28) Management agrees to use the grievance procedure described in its lease to resolve disputes about a pet. (Dkt, 21-4 Ex.C ¶ 5, p. 6 of 28) Plaintiffs filed a lawsuit in Skagit County Superior Court on October 12, 2005. Defendant removed to federal court on November 4, 2005 (Dkt 1-1) A alleges violations of rights under Washington law and ADA (Dkt 1-1 Ex.A p. 9/17 par IIV (sic) In another document, Mr. Assenberg cited 504 of the Rehabilitation Act as a reason Defendant could not evict him. (Dkt 1-1 ExA p 11/17) Mr. Assenberg has submitted a declaration which describes his disability and explains why he uses medical marijuana to control extreme pain and convulsions. (Pltf’s Amended Decl. at 4) The pain experienced by Mr. Assenberg is sometimes so sever that he passes out. He has attempted suicide to escape the paint. (Pltf’s Amended Decl. at 7) The snakes assist Mr. Assenberg by keeping his body temperature down and reducing some of his pain. (Pltf’s Amended Decl. at 7)

Mr. Assenberg’s treating physician, Dr. Allen Horesh has filed a declaration with the Court based upon information provided by Mr. Assenberg and his observations of Mr. Asenberg. (Decl. Of Allen Horesh, M.D. at 1) Dr. Horesh considers Mr. Assenberg’s back pain and depression to be debilitating. The pain is intractable and cannot be relieved by standard medical treatments and medications. Dr. Horesh has no reason to doubt what Mr. Assenberg says about the benefits provided by the snakes. (Decl. Of Allen Horesh, M.D. at 2-3) Dr. Horesh has not actually prescribed marijuana for Mr. Assenberg because a special license is required for such prescriptions and Dr. Horesh does not have the requisite license. However, he has told Mr. Assenberg that marijuana would be useful to him. (Decl. Of Allen Horesh, M.D. at 4) If Mr. Assenberg stopped using marijuana, he would experience more frequent and greater levels of pain. (Decl. Of Allen Horesh, M.D. at 5)

This case presents two issues: whether Plaintiffs can be evicted because they have snakes in their apartment and whether they can be evicted because Mr. Assenberg uses marijuana for medical purposes.

Plaintiffs rely upon the declarations and exhibits filed by Defendant in support of its motion for summary judgment. Plaintiffs also rely upon the declaration of Mr. Assenberg and the declaration of Dr. Allen Horesh.

A. Plaintiffs Cannot Be Evicted Because They Have Snakes In Their Apartment. Based on the currently information before the Court, there is an unanswered question of fact as to whether the snakes kept by Plaintiffs are service animals. Mr. Assenberg’s declaration establishes that he has a disability within the meaning of the Americans With Disabilities Act (ADA) and the Rehabilitation Act. While 42 U.S.C. §12210 says that the ADA excludes people who use drugs illegally, that exclusion only applies to actions based on such use. Defendant cannot argue that Mr. Assenberg’s possession of snakes is not covered by the ADA. If the snakes are pets, there are unresolved questions as to why Defendant did not make reasonable accommodations to its rules to allow snakes as required by 35 C.F.R. §25,130(b)(7) Defendant has offered only unsupported allegations that the snakes would present a threat to other tenants. Defendant has not explained why allowing Mr. Assenberg’s snakes to remain on the property would fundamentally alter the nature of its programs. Defendant’s pets policy would allow snakes to be kept with the written permission of the Executive Director.

If the snakes are service animals, as asserted by Mr. Assenberg and sometimes conceded by Defendant, the Court should look to Green v. Housing Authority of Clackamas County, 994 F.Supp. 1253 (D. Or. 1998), which discusses the bounds of what a housing authority can legally do with respect to service animals. The record here shows that Defendant has going beyond legal bounds by requiring that the snakes be professionally trained, and certified. Defendant also exceeded its legal rights by usurping Mr. Assenberg’s right to decide whether he needs service animals. The information sought about his snakes goes beyond the scope of inquiry allowed by Grill v. Costco, 312 F.Supp. 2d 1349. 1352 (W.D. WA. 2004) that limits permissible questions to the task or function performed by a service animal.

B. Plaintiffs Cannot Be Evicted Because Mr. Assenberg Uses Marijuana For Medical Purposes.

In his reply brief in support of his motion for an extension of time, Mr. Assenberg has extensively discussed the provisions of Washington’s medical marijuana law, Chap. 69.51A RCW. While the Washington law does provide defenses to criminal charges, it does more than that. It declares that lawful possession of marijuana, as authorized bye the statute, shall not result in the forfeiture of property. RCW 69.51A.050. Defendant is plainly relying on Mr. Assenberg’s use of marijuana, lawful under Washington law, to terminate Plaintiffs’ tenancy. The United States Supreme Court has ruled that there is no medical necessity exception to the Controlled Substances Act. United States v. Oakland Cannibis Buyers' Cooperative, 532 U.S. 483, 121 S.Ct. 1711, 149 L.Ed.2d 722, Versuslaw ¶ 42 (2001). However, that decision involved a claim of medical necessity by a buyers’ cooperative, not an individual user of medical marijuana. The medical necessity defense traditionally applies when someone is confronted by the choice of the lesser of two evils.

Oakland Cannibis Buyers' Cooperative, 532 U.S. 483, 121 S.Ct. 1711 n.10, 149 L.Ed.2d 722, Versuslaw ¶ 74 (2001) In this case, Mr. Assenberg faced a choice between possible eviction for conduct which was lawful under Washington law or continuing to endure debilitating, intractable pain. In a criminal case, State v. Butler, 126 Wn. App. 741, 109 P.3d 493 (2005) the Washington medical marijuana law is described as the successor to the common law medical necessity defense.

Medical marijuana laws were also analyzed in Gonzales v. Raich, 125 S.Ct. 2195, Versuslaw (2005). In that case, the Supreme Court upheld Congress’ power to prohibit the use of marijuana. The Supreme Court pointed out, however, that the medical necessity defense and a substantive due process claim were not reached by the Court of Appeals and therefore would not be reached by the Supreme Court. Gonzales v. Raich, Versuslaw ¶ 75. Mr. Assenberg’s situation clearly presents a question of medical necessity. This case brings into play an individual’s fundamental right to alleviate debilitating pain. In Washington v. Glucksberg, 521 U.S. 702, 736-37 (1997). The record clearly shows that Mr. Assenberg’s use of medical marijuana is permitted by Washington law. The Court should not set aside the medcial necessity confronting Mr. Assenberg as a matter of law.

Department of Housing and Urban Development v, Rucker, 535 US 125 (2002) recognized that housing authorities are required by 42 U.S.C. §1437d(l)(6) to adopt lease terms that give them the discretion to terminate a lease when a resident uses drugs illegally. Defendant may have discretion to evict Plaintiffs but it is not required to exercise that discretion. Defendant has provided the Court with a September 24, 1999 memo from the Department of Housing and Urban Development. That memo concerns Medical Use of marijuana in public housing. (Dkt #19 Ex, A p.2 of 42) According to HUD: FHAs and owners should consider all relevant factors in determining whether to terminate the tenancy or assistance, including, but not necessarily limited to:

(2) the extent to which the medical marijuana user has other housing alternatives, if evicted or if assistance were terminated; and (3) the extent to which the FHA or owner would benefit from enforcing lease provisions prohibiting the illegal use of controlled substances.” (Dkt 19 Ex. A p. 8 of 42) It does not appear from the record that Defendant considered all of the relevant factors. Once it determined that Mr. Assenberg was using medical marijuana, it went directly to the decision to evict Plaintiffs. There are unanswered questions of fact about the factors listed in the HUD memo and Defendant is not entitled to judgment as a matter of law. Finally, Plaintiffs draw the Court’s attention to 21 U.S.C. §21 USC 903: No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

In the present case, the federal Controlled Substances Act should not be construed to eliminate a medical necessity defense. Federal and state law can consistently stand together when the facts of an individual case show that marijuana is being used by an individual for a purpose made lawful by state law. The purposes of the Controlled Substances Act can be served without compelling the eviction of Mr. Assenberg and Ms. Kearney.

“One Strike and You’re Out” begins with a quote from Bill Clinton’s 1996 State of the Union message: I challenge local housing authorities and tenant associations: Criminal gang members and drug dealers are destroying the lives of decent tenants. From now on, the rule for residents who commit crime an peddle drugs should be one strike and you’re out. (Dkt 19 p.13 of 42) Plaintiffs are not members of a criminal gang and they are not drug dealers. Mr. Assenberg is trying to avoid intractable pain by doing what the people of the State of Washington have made lawful: using marijuana for medical purposes. In her declaration, Ms. McCallum eloquently describes the importance of public housing. Their home is important to Plaintiffs; as a matter of law, they should not lose it. Plaintiffs respectfully ask the Court to deny Defendant’s motion for summary judgment.