Friedman, Wilner, Alan M., (Retired, Specially Assigned), JJ.
Hosford appeals from a judgment entered by the Circuit Court
for Baltimore City in favor of Chateau Foghorn LP
("Foghorn"). Hosford presents three issues, which
we have re-worded:
1.In an eviction action involving federally-subsidized
housing, does federal law preempt the requirement in Maryland
Annotated Code Real Property Article ("RP") §
8-402.1 that a court must conclude that a breach of a lease
be "substantial" and "warrant eviction"
before granting judgment for possession of the leased
2.Was there sufficient evidence in the record to support the
circuit court's conclusion that there was no genuine
dispute of material fact that Hosford possessed marijuana in
3.Does the possession of a small amount of marijuana for
medical purposes constitute "drug-related criminal
activity" in violation of the terms of Hosford's
circuit court answered the first question in the affirmative,
but we reach the opposite conclusion. We will therefore
reverse the judgment.
owns and manages Ruscombe Gardens, a federally-subsidized
apartment building in Baltimore. Hosford has resided there
since 1989. Ruscombe Gardens' units are leased
exclusively to elderly and disabled individuals. Hosford has
been disabled by incomplete quadriparesis as the result of an
accident in 1987.
2014, Foghorn hired an extermination company to treat
Ruscombe Gardens for a bedbug infestation. Two exterminators
entered Hosford's apartment and saw what looked to them
like a marijuana plant growing in his bathtub. They reported
this to the apartment's management office. Someone in the
office contacted the police and Baltimore City Police Officer
Phillip G. Tabron responded. Officer Tabron concluded that
the plant in the bathtub was marijuana, confiscated it, and
issued Hosford a criminal citation for possession of
marijuana. The plant was tested by a police chemist, who
concluded that the plant was marijuana. Hosford was
subsequently charged in the District Court for Baltimore City
with possession of less than 10 grams of marijuana, but the
charge was later nol prossed.
July, 2014, Foghorn initiated an eviction action pursuant to
RP § 8-402.1 against Hosford in the district court,
claiming that Hosford had breached the following term of his
Landlord may terminate this Agreement for the following
[D]rug related criminal activity engaged in on or near the
premises, by any tenant, household member, or guest, and any
such activity engaged in on the premises by any other person
under the tenant's control[.]
moved for a jury trial, claiming that the value of his right
to continued occupation of his apartment exceeded $15,
After the case was transferred to the circuit court, Foghorn
filed a motion for summary judgment, asserting that:
1.There was no genuine dispute of fact that appellant had
marijuana in his apartment.
2.Possession of marijuana was illegal under Maryland law at
the time of Hosford's arrest, and also illegal under
federal law, and thus constituted drug-related criminal
activity in violation of the lease.
3.Because Ruscombe Gardens was a federally-subsidized housing
project, federal law vests discretion in landlords to decide
whether a tenant should be evicted for drug-related criminal
activity. These same laws preempt RP § 8-402.1's
requirement that a court can order eviction only if the
breach is substantial and warrants eviction.
these premises, Foghorn argued that the only issue before the
court was whether Hosford breached the lease. As to that
issue, Foghorn asserted that there was no dispute of material
fact as to whether Hosford possessed marijuana in his
apartment and that his possession of it constituted a
"drug-related criminal activity, " in violation of
response, Hosford claimed that there was a dispute of
material fact as to whether the plant in his apartment was
marijuana. Second, he contended that Foghorn was not entitled
to summary judgment as a matter of law because: (a) if he did
possess marijuana, it was not a criminal activity, and thus
not a breach of the lease; and (b) even if the action did
breach the lease, the court must still determine whether the
breach was "substantial" and "warrants
eviction" pursuant to RP § 8-402.1. Hosford also
presented medical records indicating that he suffers from
painful muscle spasms as a result of his physical condition,
as well as an affidavit from an associate professor at The
Johns Hopkins School of Medicine, stating that use of
marijuana "is likely to provide . . . therapeutic or
palliative relief" for persons suffering from chronic
pain and muscle spasticity associated with quadriparesis.
March 23, 2015, the circuit court granted Foghorn's
motion for summary judgment. In its accompanying written
opinion, the court first concluded that the
exterminators' affidavits and, most significantly, the
police chemist's report, established there was no dispute
of material fact that there was a marijuana plant in
Hosford's apartment when the exterminators entered the
the court was not persuaded by Hosford's arguments that
the possession of the marijuana was not criminal. The court
noted that, even though Maryland "no longer punishes the
possession of less than ten grams of marijuana as a crime,
" the pertinent amendment to Maryland Code Criminal Law
("CL") Article § 5-601(c)(2)(ii) became effective
on October 1, 2014, that is, after the marijuana plant was
discovered in Hosford's apartment.
court then turned to Hosford's assertion that possession
of marijuana in small amounts for medical purposes was not a
criminal offense. The court stated that the statute in
question, CL § 5-601(c)(3)(iii)(1),  makes
"medicinal use for a debilitating medical condition an
affirmative defense." (Internal quotation marks
that no appellate court had yet addressed the operation and
effect of the statute, the court reasoned that, based upon
"the ordinary operation of affirmative defenses in
criminal cases . . . a defendant successfully asserting the
affirmative defense would escape conviction altogether."
The court observed, however, that there is no corresponding
affirmative medical marijuana defense in the federal
Controlled Substances Act. The court reasoned that, because
"marijuana remains a federally prohibited Schedule I
[Foghorn] may proceed on the basis that the possession of any
quantity of marijuana is a crime under federal law. Defendant
Hosford's assertion of the medical use affirmative
defense therefore would be irrelevant, unless the jury is
allowed to review the landlord's exercise of discretion
in treating this particular possession of marijuana as
warranting termination of the lease and eviction.
court then turned to whether "the jury is allowed to
review the landlord's exercise of discretion in treating
this particular possession of marijuana as warranting
termination of the lease and eviction." The court
decided that the answer to the question was "no."
Federal law compels [Foghorn] to include in its leases for
subsidized housing provisions that forbid tenants from
engaging in or permitting any criminal drug activity on the
premises and that give it the authority to evict a tenant for
breaching that promise. See Dep't of Housing and
Urban Dev. v. Rucker, 535 U.S. 125, 130-31 (2002).
Although these terms are strict, the severity is tempered by
federal regulations giving landlords some measure of
discretion in deciding whether to seek eviction. Id.
at 128-29. [Foghorn] argues that this federal law preempts RP
§ 8-402.1(b)(1) to the extent it vests in Maryland
courts discretion to determine either that an alleged breach
is substantial or that it warrants eviction.
court concluded "although federal law vests a landlord
renting subsidized housing with discretion not to pursue
eviction in all instances of criminal activity, state
courts cannot be given discretion to overrule the
landlord's exercise of discretion." (Emphasis in
original). The circuit court relied upon three decisions,
Milwaukee City Housing Authority v. Cobb,
361 Wis.2d 359 (2015); Boston Housing Auth. v.
Garcia, 449 Mass. 727 (2007); and Scarborough v.
Winn Residential L.L.P./Atlantic Terrace Apts., 890 A.2d
249 (D.C. 2006). (We will discuss these cases, together with
additional authorities, later in the opinion.)
filed a motion to alter or amend the judgment, which was
denied. This appeal followed.
reverse the judgment of the circuit court. As we will
explain, RP § 8-402.1 grants to courts the authority to
consider equitable and similar factors before granting a
landlord's request for an eviction. In order for this
portion of RP § 8-402.1 to be preempted by federal law,
the exercise of such authority must cause "major
damage" to "clear and substantial federal
interests." Foghorn asserts that the federal interest at
issue in this case is the right of a landlord, at its
unfettered discretion, to evict a tenant if that tenant has
been engaged in "drug-related criminal activity."
Foghorn also argues that the circuit court's conclusion
is fully supported by the authority cited in its opinion.
arguments are not persuasive. As we will explain, the
relevant federal statute, its implementing regulations, and
the pertinent Department of Housing and Urban Development
("HUD") guidelines, demonstrate that there are two
closely-related federal interests at stake in this case. The
first is that residents of federally-supported housing be
protected against the effects of criminal activity in
general, and drug-related criminal activity in particular.
The second federal interest is that landlords have discretion
to initiate eviction proceedings in such situations. Those
same materials, however, make it clear that a landlord may
evict a tenant only by recourse to state or local
landlord-tenant law and that those laws may provide the
tenant with additional protections. The cases relied upon by
the circuit court, i.e., Cobb, Garcia, and
Scarborough, dealt with state statutes that are
conceptually quite different from § 8-402.1. Our
research has disclosed only one reported appellate opinion
that has considered a preemption challenge to a state statute
similar to § 8-402.1. That court concluded that the
statute was not preempted.
Standard of Review
court's grant or denial of a motion for summary judgment
is governed by Md. Rule 2-501. A grant of a motion for
summary judgment is appropriate when "there is no
genuine dispute as to any material fact and that the party in
whose favor judgment is entered is entitled to judgment as a
matter of law." Rule 2-501(f). "The purpose of the
summary judgment procedure is not to try the case or to
decide the factual disputes, but to decide whether there is
an issue of fact, which is sufficiently material to be
tried." Jones v. Mid-Atl. Funding Co., 362 Md.
661, 675 (2001). "When ruling on a motion for summary
judgment, a court must view the facts, including all
inferences drawn therefrom, in the light most favorable to
the opposing party." Carter v. Aramark Sports &
Entm't Servs., Inc., 153 Md.App. 210, 224 (2003).
we will reverse the judgment of the circuit court, we agree
with some of its analysis. On the record before it, the
circuit court did not err in deciding that there was no
dispute of material fact as to whether Hosford was in
possession of marijuana on the day that his apartment was
inspected. We also agree with the court that Maryland's
decriminalization of possession of small amounts of marijuana
does not change the fact that possession of any amount of
marijuana is a violation of the federal Controlled Substances
Act. However, we part company with the circuit court on the
issue of preemption.
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, 132 S.Ct. 2492, 2500 (2012). As a
result, there is the potential for conflict or cross-purposes
served by co-existing federal and state laws. Id.
The Supremacy Clause provides that federal law is supreme over
state law and any state law that stands in conflict with the
federal law is preempted.
are three widely recognized forms of preemption: express,
field, and conflict. Farina v. Nokia Inc., 625 F.3d
97, 115 (3d Cir. 2010). Express preemption occurs when
Congress has explicitly withdrawn "specified powers from
the States by enacting a statute containing an express
preemption provision." Arizona, 132 S.Ct. at
2500-01. Field preemption applies when "the federal
interest is so dominant that the federal system will be
assumed to preclude enforcement of state laws on the same
subject." Farina, 625 F.3d at 115. Finally,
conflict preemption applies either: "(1) 'where it
is impossible for a private party to comply with both state
and federal requirements, ' or (2) 'where state law
stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.'"
Id. at 122 (quoting Fellner v. Tri-Union
Seafoods, L.L.C., 539 F.3d 237, 251 (3d Cir. 2008)).
"ultimate touchstone" for determining whether
federal law preempts state law is Congressional intent.
Id. (quoting Medtronic, Inc., v. Lohr, 518
U.S. 470, 485 (1996)). In order to determine Congressional
intent, courts start with the "basic assumption that
Congress did not intend to displace state law."
Id. at 116 (quoting Maryland v. Louisiana,
451 U.S. 725, 746 (1981)). "The presumption against
inferring preemption is premised on federalism grounds and,
therefore, weighs most heavily where the particular
regulatory area is 'traditionally the domain of state
law.'" In re Tribune Co. Fraudulent Conveyance
Litig., 818 F.3d. 98, 110 (2d Cir. 2016) (quoting
Hillman v. Maretta, 133 S.Ct. 1943, 1950 (2013)). In
instances where federal law regulates an area traditionally
within the domain of state law, the state law must do
"'major damage' to 'clear and
substantial' federal interests before the Supremacy
Clause will demand that state law will be overridden[.]"
Hillman, 133 S.Ct. at 1950 (2013) (quoting
Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979)).
regulations, with the force of federal law, can also preempt
conflicting state and local laws. Wyeth v. Levine,
555 U.S. 555, 576 (2009). However, in such instances, courts
do not necessarily accept the agency's conclusions but
instead "perform [their] own conflict determination,
relying on the substance of state and federal law and not on
agency proclamations of pre-emption." Id.
Federal agencies sometimes express views regarding preemption
questions in ways that lack the formality of regulations,
e.g., by compliance handbooks, other guidance materials, and
commentaries on regulations. In these instances, courts have
afforded some weight to the agency's explanation of its
view, but no weight to its conclusion; as the Supreme Court
explained in Wyeth, 555 U.S. at 576-77 (internal
quotations and citations omitted; emphasis in original):
In prior cases, we have given some weight to an agency's
views about the impact of tort law on federal objectives when
'the subject matter is technical and the relevant history
and background are complex and extensive. Even in such cases,
however, we have not deferred to an agency's
conclusion that state law is pre-empted. Rather, we
have attended to an agency's explanation of how state law
affects the regulatory scheme. While agencies have no special
authority to pronounce on pre-emption absent delegation by
Congress, they do have a unique understanding of the statutes
they administer and an attendant ability to make informed
determinations about how state requirements may pose an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress. The weight we accord the
agency's explanation of state law's impact on the
federal scheme depends on its thoroughness, consistency, and
parties agree, as do we, that the concepts of express and
field preemption are not applicable to this case. Turning to
the doctrine of conflict preemption, Foghorn does not assert
that it is impossible to comply with both the state law and
the federal law. Moreover, landlord-tenant law is
traditionally within the domain of state law, see, e.g.,
Perry v. Hous. Auth. of City of Charleston, 664 F.2d
1210, 1216 (4th Cir. 1981) ("It would be hard to find an
area of the law in which the states have a greater interest
or have had greater involvement than in the legal area of
landlord-tenant."). As such, the disputed
portions of RP § 8-402.1 are preempted only if they
cause "'major damage' to 'clear and
substantial'' federal interests" embedded in the
federal law. This requires us to first identify the federal
interests at issue and then to assess the degree to which a
trial court's consideration of equitable and similar
factors interferes with the federal government's ability
to realize those interests. We will begin by considering the
state and federal statute and regulations at issue.
State and Federal Laws
§ 8-402.1 provides a remedy to allow a landlord to
obtain an order evicting a tenant for breaching a term of the
lease other than a term calling for the payment of rent.
Brown v. Housing Opportunities Comm'n, 350 Md.
570, 584 (1998). In the present case, we are concerned with
subsection (b)(1) of the statute, which states in pertinent
If the court determines that the tenant breached the terms of
the lease and that the breach was substantial and
warrants an eviction, the court shall give judgment for
the restitution of the possession . . . .
meaning of the italicized language was the focus of the
Court's analysis in Brown. In tracing the
evolution of § 8-402.1 from its common law roots, the
Court noted that, prior to the enactment of the statute, one
remedy for landlords seeking possession was a proceeding for
ejectment, and that a tenant had the right to raise equitable
defenses in such actions. Id. 582-83. As to the
"breach was substantial and warrants eviction"
language, the Court concluded:
The inclusion of the phrase in question, conditioning a
forfeiture on a finding that the breach in question warranted
that relief, is in perfect harmony with those [equitable]
considerations, even if it did, to some extent, vest in the
District Court a more general discretion to preclude a
forfeiture than previously had been exercised by the equity
courts. The court is entitled, and indeed directed, to
weigh all of the relevant factors before declaring a
forfeiture and evicting the tenant, including the actual
loss or damage caused by the violation at issue, the
likelihood of future violations, and the existence of
effective alternative remedies for past or existing
Id. at 584 (emphasis added).
Brown held that the "warrants eviction"
requirement authorizes a court to exercise its discretion
before ordering eviction ...