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Marijuana in New Jersey: What Apartment Owners Need to Know

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By: Bruce E. Gudin, Esq.

This article originally appeared in the Summer 2019 edition of JAHMA Talk. Below you will fine the article in full plus an example of a provision that should be included in lease agreements.

Bruce E. Gudin, Esq.   Ehrlich, Petriello, Gudin & Plaza, P.C.

Bruce E. Gudin, Esq.
Ehrlich, Petriello, Gudin & Plaza, P.C.

Marijuana is considered a “Schedule I” drug under the federal Controlled Substances Act, which means that it “has no currently accepted medical use in treatment in the United States.” The use of marijuana for recreational purposes is not yet permitted in New Jersey. Possession of fewer than 50 grams of marijuana is a disorderly persons offense, carrying penalties of up to six months in prison and $1,000 in fines (N.J.S.A. 2C:35-10(a)(4)). Possession of 50g or more is a fourth-degree crime, carrying penalties of up to 18 months in prison and $25,000 in fines (N.J.S.A. 2C:35-10(a)(3)). A drug conviction carries a motor vehicle license suspension of six months to two years (N.J.S.A. 2C:35-16).

Since New Jersey is considering the legalization of cannabis, last year the State attorney general imposed a moratorium on prosecutions for marijuana possession. However, in August 2018 the attorney general directed prosecutors to resume marijuana-related prosecutions but to exercise prosecutorial discretion to achieve just results. By in large, in practice the moratorium remains in place.

Under New Jersey’s Medicinal Marijuana Program, patients may purchase up to a maximum of 2 ounces in a 30-day period, as recommended by a physician. Cultivation of cannabis for personal use is not permitted in New Jersey and under New Jersey’s Medicinal Marijuana Program, patients are not authorized to engage in personal cultivation.

New Jersey employers are permitted to enforce “zero tolerance” policies. The New Jersey Compassionate Use Medical Marijuana Act specifically provides that “[n]othing in this act shall be construed to require… an employer to accommodate the medical use of marijuana in any workplace” (N.J.S.A. 24:6I-14). In Cotto v. Ardagh Glass Packing CV-18-1037 (D.N.J. 2018), the District Court held that neither the New Jersey Law Against Discrimination nor the New Jersey Compassionate Use Medical Marijuana Act requires an employer to accommodate an employee’s use of cannabis outside the workplace. The plaintiff, who was prescribed medicinal cannabis, argued that his employer was obliged to provide a reasonable accommodation for his disability (i.e., to accommodate his disability by waiving a requirement he pass a drug test before returning to work following an accident). The Court disagreed, ruling that nothing in the Law Against Discrimination or the act that requires an employer to accommodate an employee’s use of a federally illegal substance (including medical cannabis) by waiving its requirement that the employee complete a drug test.

Allowing use of marijuana in any rental housing community may be strictly prohibited, even as an “accommodation to a disability.”

As landlords, we are free to regulate conduct unrelated to any fair housing protected class within our apartments. An outright ban on the use or possession of marijuana in New Jersey does not violate any landlord/tenant or fair housing laws. We can and should prohibit residents from smoking in apartment buildings.

If a resident claims to be disabled and indicates that the use or cultivation of marijuana in the home is related to that disability, they could certainly be expected to request a “reasonable accommodation” under the Fair Housing Act. This would allow the resident to take his or her medical treatment for that disability. Physicians in the United States are not actually permitted to prescribe marijuana, although they can recommend its use for their patients to treat various medical conditions. Certainly, some of those medical conditions could be deemed “disabilities” as defined by the Fair Housing Act. However, an accommodation that allows conduct in violation of a federal law constitutes an “undue administrative burden.” That means that the use or cultivation of marijuana in multifamily housing would not be a reasonable accommodation a landlord has to allow, even if that use or cultivation is medically recommended for treatment of a disability.

In addition, the New Jersey Smoke-Free Air Act was passed overwhelmingly by the New Jersey Legislature in 2006. In January, 2010, an amendment was passed to prohibit the use of electronic smoking devices in indoor public places. The NJ Department of Health issued regulations in 2007 to help implement the 2006 Act, and in 2014 to add in a definition for “hookah” (new) and “electronic smoking device.” The Act says, “The Legislature finds and declares that … tobacco smoke constitutes a substantial health hazard to the nonsmoking majority … and it is clearly in the public interest to prohibit smoking in all enclosed indoor places of public access and workplaces.”

The law requires smoke-free environments in essentially all indoor workplaces and places open to the public including places of business and service-related activities except for a few specifically named exceptions.

Affected sites that must be smoke-free include apartment building lobbies and public areas in other private buildings.

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Your apartment lease agreement should contain a provision that can look something like this:

ANTI DRUG CLAUSE & NO SMOKING POLICY. It shall be a violation of this Lease for the Tenant or Tenant’s guests or invitees to keep, possess, use, traffic in, manufacture, dispense or distribute a controlled dangerous substance analog or drug paraphernalia, as those terms are defined in the Comprehensive Drug Reform Act of 1987,” N.J.S.A. 2C:35-1 et seq., within or upon the Building or Property. This includes the use or possession of cannibus in other forms (e.g. by vaporizer, edibles, or oils).

Non-Smoking Policy. Smoke-Free Complex. Tenant agrees and acknowledges that the premises to be occupied by Tenant and members of Tenant’s household have been designated as a smoke-free living environment. Tenant and members of Tenant’s household shall not smoke anywhere in the unit rented by Tenant, or the building where the Tenant’s dwelling is located or in any of the common areas or adjoining grounds of such building or other parts of the rental community, nor shall Tenant permit any guests or visitors under the control of Tenant to do so.

Definition of Smoking. The term “smoking” means inhaling, exhaling, breathing, or carrying any lighted cigar, cigarette, or other tobacco product or similar lighted product in any manner or in any form.

Tenant acknowledges that Landlord’s adoption of a smoke-free living environment, and the efforts to designate the rental complex as smoke-free, do not make the Landlord or any of its managing agents the guarantor of Tenant’s health or of the smoke-free condition of the Tenant’s unit and the common areas. However, Landlord shall take reasonable steps to enforce the smoke-free terms of its leases and to make the complex smoke-free.

Landlord is not required to take steps in response to smoking unless Landlord knows of said smoking or has been given written notice of said smoking.

Tenant acknowledges that Landlord’s adoption of a smoke-free living environment, and the efforts to designate the rental complex as smoke-free, does not in any way change the standard of care that the Landlord or managing agent would have to a Tenant household to render buildings and premises designated as smoke-free any safer, more habitable, or improved in terms of air quality standards than any other rental premises. Landlord specifically disclaims any implied or express warranties that the building, common areas, or Tenant’s premises will have any higher or improved air quality standards than any other rental property. Landlord cannot and does not warranty or promise that the rental premises or common areas will be free from secondhand smoke. Tenant acknowledges that Landlord’s ability to police, monitor, or enforce the agreements of this Addendum is dependent in significant part on voluntary compliance by Tenant and Tenant’s guests.

Tenant acknowledges that current tenants residing in the complex under a prior lease will not be immediately subject to the No-smoking Policy. As current tenants move out, or enter into new leases, the smoke-free policy will become effective for their unit or new lease.

After you have a marijuana/drug/smoking policy in place, be sure to enforce it consistently among all tenants to avoid any discriminatory blowback.

Landlord-tenant disputes about marijuana use arise periodically with the biggest complaints typically coming from other tenants who are concerned about marijuana smoke or odors. If you find yourself in this situation you are obligated to act quickly by serving the offending resident with a warning Notice to Cease the complained of conduct, followed by a Notice to Quit with Demand for Possession terminating the tenancy if the conduct continues. The last thing you want is for the situation to escalate resulting in your “good” tenants leaving.

This was prepared by Bruce E. Gudin, Esq. of the law firm Ehrlich, Petriello, Gudin & Plaza, P.C. headquartered in Newark, New Jersey. It is not, nor is it intended to be, legal advice. You should consult an attorney or other qualified professional to discuss your particular matter. The firm can be reached at (973) 643-0040 or on the web at www.EPGP-law.com.

Renee Reithel