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Law Alert: The Legalization Of Marijuana And Its Impact On Common Interest Communities

You may have heard that Governor Murphy recently signed a law legalizing the recreational use of marijuana.  Does this mean your Common Interest Community must now allow owners to smoke marijuana in their units?  You can already imagine the complaints regarding the smell of marijuana in the hallways, but is there anything that your Board can do about it?

On Monday, February 22, 2021, Governor Phil Murphy signed three pieces[1] of enabling legislation into law that legalizes the recreational use of cannabis for persons age 21 and older, subject to State regulation. Governor Murphy’s signature comes on the heels of a state constitutional amendment that was approved by New Jersey voters on November 3, 2020.

The “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act,” (“A21”) primarily concerns the regulation and enforcement of activities associated with the personal use of cannabis by persons age 21 or older.  More specifically,  it  permits individuals age 21 and older to possessone ounce or less of cannabis, as long as the cannabis was “first obtained directly from . . . . or delivered by a” licensed cannabis retailer. The law allows an original packing, sales slips, invoices, receipts, or other statements or memoranda to establish that cannabis was “first obtained directly from . . .  or delivered by a” licensed cannabis retailer.

While A21 legalizes the use of marijuana for persons age 21 or older, it does not permit its use in any place of their choosing. Generally, the bill prohibits the use of smoking, vaping, or aerosolizing cannabis items in public places and treats such use similar to tobacco.  Specifically, pursuant to Section 45 of A21, “the smoking, vaping, or aerosolizing of a cannabis item” is prohibited in any public place pursuant to laws that prohibits the smoking of tobacco, including N.J.S.A. 2C:33-13 and the New Jersey Smoke-Free Air Act.

Significantly, A21 directly addresses whether or not persons age 21 and older may use cannabis in housing cooperatives and condominium associations. Section 45 of A21 impacts the rights of individuals to smoke, vape or aerosolize cannabis in condominiums and cooperatives and gives the  person or entity that that owns or controls multifamily housing, such as condominiums and cooperatives,  the ability to prohibit or regulate smoking, vaping, or aerosolizing cannabis on their premises

As it pertains to housing cooperatives, A21 explains that “[t]he smoking, vaping, or aerosolizing of a cannabis item may be . . . prohibited or otherwise regulated in the structure or specific units of the structure of a cooperative . . . by the corporation or other legal entity that owns the structure.” The Corporation may take this action in a manner that is authorized by its Governing Documents or the New Jersey Corporations statute, N.J.S.A. 14A:1-1 et. seq.

Similarly, for condominium associations, A21 allows condominium associations to prohibit, or otherwise regulate, the “smoking, vaping, or aerosolizing” of cannabis in the units of a condominium.  Such prohibitions or regulations must be approved by the association and a majority of all of the condominium’s unit owners as those terms are defined in the New Jersey Condominium Act.

Penalties for the smoking, vaping and aerosolizing of cannabis items are the same as those under the New Jersey Smoke Free Air Act. 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 board of health. Some Community Associations may be able to assess penalties for those that do not comply with the imposed regulations or prohibition.

While A21 does allow cooperatives and condominium associations to prohibit, or otherwise regulate the consumption of cannabis by smoking, vaping, or aerosolizing, it does not prohibit the consumption of cannabis in other forms like edibles.

A21 provides opportunities for condominium associations and cooperatives to restrict the smoking, vaping, or aerosolizing  of cannabis in their communities. We recommend that Common Interest Communities consider necessary rules regarding any prohibitions or regulations that it wishes to implement.  If you are interested in learning more about the steps your community would need to take to achieve these restrictions, please contact Matthew Earle or Cara Landolfi at Kates Nussman Ellis Farhi & Earle to discuss your community’s options.

By: Elissa Frank & Cara Landolfi, Esq.

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[1] In addition to A21, the Governor also signed A1897 and S3454 into law. A1897 will provide for various social justice reforms, including reducing the legal consequences associated with certain marijuana offenses and raising awareness of available expungement relief. S3454 clarifies cannabis use and possession penalties for individuals under the age of 21.