DRUG TESTING TENANTS: DOES IT VIOLATE RIGHTS OF PRIVACY?

Real Property, Probate and Trust Journal, Fall 2003 by Aalberts, Robert J

Editors' Synopsis: Drug activity is a serious problem in many apartment complexes. Innocent tenants can be victimized by violent crime, robberies, and burglaries committed by drug dealers and users. In recent years, the popular press has reported stories concerning private sector landlords who are requiring prospective tenants, as well as tenants seeking lease renewals, to submit to a drug test. Although drug testing tenants has great potential legal and ethical problems, no landlords have yet been sued. In all likelihood this will change. Legal literature has addressed how federal laws may affect drug testing in both public and private housing complexes. This Article discusses the rights of tenants and their families to privacy under the common law, and whether drug testing may violate those rights. This Article then presents analogous law regulating employee drug testing. Lastly, the author analyzes Minnesota 's employee drug testing statute as a possible model for implementing a tenant drug testing program.

I. INTRODUCTION

Over the past decade, the popular press has reported stories concerning landlords of privately owned apartments who are mandating that their tenants submit to drug tests. ' Under the typical scenario, tenants are tested when they apply to lease an apartment, as well as when they seek to renew the lease.2 Drug testing, according to these reports, continues even though the landlords are apparently aware they are engaging in a screening practice in which the law is highly unsettled and unpredictable.3 Thus, they could be violating both federal4 and state5 laws. Ethical issues, particularly regarding privacy, also arise.6

Drug testing is nothing new. Drug testing employees, which began in the early 1980s, is now commonplace.7 By the late 1990s, for example, "nearly half of all employers" had implemented drug testing programs.8 High school athletes9 and persons seeking welfare and other public programs10 are now subject to testing for drugs as well.

Apartment owners feel they have compelling reasons for drug testing their tenants. Owners of properties in which drug activity exists must sometimes battle the destructive effects that drugs may have on the lives of their tenants. Some property owners have been caught between the crossfire of warring drug gangs, harassed and panhandled by drug users, or even robbed or mugged by drug addicts who steal their property to nourish their addictive habits. Extensive property damage by drug activity and neglect can also occur." Thus, as one executive of an affordable housing complex predicts, drug testing will likely "mushroom" as property owners seek to lessen the harmful effects of drug activity.12

Perhaps an even greater justification for testing is that owners of private apartment complexes must contend with possible lawsuits and even civil forfeiture due to drug activity on their properties.13 For example, landlords have been held liable to crime victims claiming their injuries were due to the condition of the landlord's property or a failure to warn, including injuries caused by drug activity.14 Thus, it is not surprising that the law-abiding tenants in complexes subject to drug testing are apparently in favor of the practice.'5 State public nuisance statutes may also impose fines on landlords, require them to evict certain tenants, or even forfeit their property for up to one year when drug activity occurs on their property.16

Possibly the worst outcome for a landlord would be to be liable under the federal civil forfeiture statutes. Under these laws, the federal government only needs to establish probable cause that a "substantial connection exists between the property to be forfeited and an illegal exchange of a controlled substance."17 Once the government proves the connection, the burden shifts to the landlord, who must prove that the property was not used to facilitate a drug violation, or that his tenant's illegal use was without his knowledge or consent.18

Because of the legal risks, a number of landlords have responded by taking steps to rid their properties of drug activity. As one executive aptly explained, "If we went to court, we'd say, 'How can you hold us liable and not allow us to correct the problem?'"19

Previous research on drug testing tenants dealt with how various federal antidiscrimination laws may apply.20 State laws, however, may also come into play. For example, many states have antidiscrimination laws in housing that mirror similar federal acts, and some states may grant even greater protections to their citizens than those provided in federal acts.21 Some states have even conferred a state constitutional right of privacy to their citizens that likely applies to drug testing conducted by the state.22 California has further extended its constitutional right of privacy to include the actions of persons in the private sector, including companies that drug test.23 Thus, in the future, state laws will likely be passed that confer even greater privacy rights to tenants.