NJ Marijuana Law Affords Landlords A Key Exception

 By Griffin Alexander 

On December 17, 2020, the New Jersey legislature passed Bill S-21/A-21 which legalizes, regulates, and taxes adult recreational use of cannabis. The Bill has been provided to the Governor for final approval.

In general terms, the Bill prohibits the use of cannabis items by smoking, vaping, or aerosolizing the item in a public place. The goal is to have the same restrictions on cannabis items as smoking tobacco and alcohol use. 

As an example of the similarities between this Bill’s regulation of cannabis compared to the regulation of alcohol and tobacco, a “public place,” as defined by the Bill, is 

·    any place to which the public has access that is not privately owned; or any place to which the public has access where alcohol consumption is not allowed, including, but not limited to, a public street, road, thoroughfare, sidewalk, bridge, alley, plaza, park, playground, swimming pool, shopping area, public transportation facility, vehicle used for public transportation, parking lot, public library, or any other public building, structure, or area. 

As an additional example, Section 45 of the Bill prohibits smoking, vaping and aerosolizing a cannabis item in any public place pursuant to laws that prohibits the smoking of tobacco, including N.J.S. 2C:33-13 and the New Jersey Smoke-Free Air Act. 

Section 45 of the Bill directly impacts the rights of individuals to consume cannabis in cooperatives, condominium associations and multifamily housing. The Bill states that it is not unlawful to deliver or consume lawfully possessed cannabis item, except that a person is prohibited from smoking, vaping, or aerosolizing any cannabis item in a public place. 

However, the Bill affords a person or entity that owns or controls a condominium association, multifamily dwelling or a cooperative the ability to prohibit or regulate the consumption of a cannabis item by smoking, vaping or aerosolizing of a cannabis item on its property. The prohibition or regulation would be as decided by the person or entity that owns or controls the multifamily housing.  

For condominium associations, the Bill requires the prohibition or regulation be “approved by the association for the condominium and a majority of all of the condominium’s unit owners, as those terms are defined in [the Condominium Act].”It is important to note that the Bill, while allowing owners and controlling entities to prohibiting smoking, vaping, or aerosolizing of marijuana, it does not prohibit the consumption of cannabis in other forms such as edibles. 

Penalties for the smoking, vaping and aerosolizing of cannabis items are the same as those under the New Jersey Smoke Free Air Act (NJSA 26:3D-62). A person smoking, vaping or aerosolizing a cannabis item in violation of this Bill is therefore subject to a $250 for the first offense, $500 for the second offense and $1,000 for each subsequent offense. These fines are not to be provided to the owner or controlling entity of multifamily dwellings, condominium associations or cooperatives, as the fines are collectible through the Commissioner of Health and Senior Services or the local bard of health. 

This Bill provides a saving grace for multifamily dwellings, condominium associations and cooperatives to allow these communities to restrict the use of cannabis items on the property. We recommend that owners or controlling entities of multifamily dwellings place language in the lease agreements to clearly set forth the regulations that will be implemented. We recommend that the condominium associations and cooperatives pass rules and regulations concerning these same prohibitions that it wishes to implement. 

We at Griffin Alexander, P.C. are prepared to assist your organization in drafting new rules or lease language in the event that this Bill is passed into law. 

The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.

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