Where Can You Use Your Cannabis?

COURT HOUSE – At a recent Middle Township Committee meeting, a member of the public asked the governing body what might be done about a person walking down the street smoking marijuana.
During the 2020 general election, voters chose to legalize the recreational use of cannabis, and roughly three months later, Gov. Phil Murphy signed into law a bill legalizing marijuana possession and use by those over the age of 21 in New Jersey.
The Middle Township mayor and chief of police said weed smoking had to be treated the same as if the person was smoking tobacco.
On one hand, the officials were correct, because some of the guidelines related to smoking cannabis in public fall under the New Jersey Smoke-Free Air Act, passed in 2006. The act banned smoking in certain public places, including most indoor areas, and has allowed municipalities to prohibit smoking in certain outdoor areas, as well. A statute (NJSA 2C:35-10a(c)) explicitly deals with cannabis possession and consumption in public places and applicable penalties – of which, there might be no penalty.
New Jersey formed the Cannabis Regulatory Commission (NJ-CRC) in July 2019 – 15 months before 69% of voters cast ballots in favor of legalizing the recreational use of cannabis. According to answers provided at www.nj.gov/cannabis/adult-personal/, anyone over 21 “…may smoke (cannabis) in private spaces, however, landlords may prohibit cannabis use on their property.”
Not Getting Any Answers
To clarify whether or not the state law prohibited public use of Cannabis, the Herald contacted the New Jersey Office of the Attorney General (OAG). The OAG referred the Herald to the NJ-CRC as the regulatory agency set up regarding cannabis use, retail sales, delivery, etc. The NJ-CRC’s Communications Director Toni-Anne Blake responded with:
“Your best course of action is to contact the AG’s office (enforceability of the criminal code) or the municipality’s corporate counsel (authority to take or not take action at the municipal level).”
A second attempt to gain clarification from the OAG was answered, in part, with this statement: “The Attorney General is authorized to render legal advice only to departments, agencies and instrumentalities of state government.” This came from the Attorney General’s Office of Constituent Services, which prompts the question, “If they don’t answer questions from constituents, what services does that office provide?”
Local Law Enforcement’s Take
The OAG did suggest talking to municipal legal departments.
The Cape May County Prosecutor echoed the comments of Middle Township Mayor Tim Donohue. In a statement given through the Prosecutor’s Office public information officer, Prosecutor Jeffrey Sutherland said smoking cannabis on the street “is treated the same as smoking a cigarette.  You cannot make the decision based on whether or not it is on a public street alone.  Some towns have ordinances where you cannot smoke on sidewalks or boardwalks except in designated areas.” 
The fact that someone is under the influence of cannabis in public is not a problem under New Jersey law. It seems that, in years past, people would be arrested for “public intoxication,” or “drunk and disorderly.” Under New Jersey law, it would be the “disorderly” part that would get you in trouble.
New Jersey Revised Statutes (NJRS 26:2B-26) states no town in the state is permitted to create ordinances or regulations declaring public intoxication an offense. In fact, contrary to being arrested for public intoxication, NJRS 26:2B-16 says, “any person who is intoxicated in a public place may be assisted to his residence or to an intoxication treatment center or other facility by a police officer or other authorized person.”
Smoking While Driving
So, is it illegal to drive while under the influence of cannabis?
The NJ-CRC says: “Yes. Laws regarding driving while impaired apply to being under the influence of cannabis.” However, the odor of cannabis is not probable cause to perform a motor vehicle stop. The same laws prohibiting open containers of alcohol also pertain to open containers of cannabis.
What About Juveniles?
The NJ-CRC also commented on juveniles suspected of being under the influence of cannabis. According to the NJ-CRC, juveniles are subject to NJSA 2C:33-15, which deals with underage cannabis possession in public places and the penalties for such violations. The law refers to underage possession or consumption of alcohol and says the offender is subject to a $500 fine.
However, an FAQ posted by the OAG, updated May 27, says: “Officers may not arrest, detain, or otherwise take an individual under the age of 21 into custody, or transport the underage individual to a police station, police headquarters, or other place of law enforcement operations, for a violation of N.J.S.A. 2C:33-15…” except to issue a written warning or collect information necessary to provide notice to a parent or guardian.
There are provisions in the law saying the first notice is for the purpose of determining whether the second notice is the second notice. The main purpose of the second notice is so law enforcement will know when a third incident has taken place. At that point, law enforcement should advise the parent or guardian of drug treatment programs or agencies.
Anyone Confused?
Anthony Carter, a legislative aide from Assemblyman Antwan McClellan’s office said that rules governing cannabis use is still a matter of confusion.
“It’s still a huge grey area, even with juveniles,” Carter said. “It’s a very difficult situation to navigate.”
Carter said there was a different kind of issue where he lives, where they wanted to limit cannabis processing to industrial areas.
“Some industrial areas border residential areas,” he said.
Carter likened the cannabis laws to the gun carry debate. He said when the NJ-CRC rolled out guidelines, there was a question about what areas are sensitive and which are not.
“A lot of municipalities don’t want to be put on the hook to answer these questions,” he said. “What happens, in Trenton, is comprehensive laws get passed and they spend the next five, 10, or dozen years cleaning up the bill. It’s incredible that bills pass the legislature that are not constitutional.”
To reach Christopher South with your thoughts on cannabis regulation, email csouth@cmcherald.com or call (609) 886-8600 ext. 128.