16B — July 26 - August 8, 2019 — 2019 Governor's Conference on Housing and Economic Development — Owners, Developers & Managers — M id A tlantic
Real Estate Journal www.marej.com
2019 Governor's Conference on Housing & Economic Development By Bruce E. Gudin, Esq., Ehrlich, Petriello, Gudin & Plaza, PC Marijuana use and possession in New Jersey – Apartment owners need to know M arijuana is consid- ered a “Schedule I” drug under the
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 mo- tor vehicle license suspension of six months to two years (N.J.S.A. 2C:35-16). Since New Jersey is con- sidering 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 pros- ecutors to resume marijuana- related prosecutions but to exercise prosecutorial discre- tion to achieve just results. By in large, in practice the moratorium remains in place. Under New Jersey’s Me- dicinal 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 Me- dicinal 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 specifi- cally provides that “[n]othing in this act shall be construed to require… an employer to accommodate the medical use of marijuana in any work- place” (N.J.S.A. 24:6I-14). In Cotto v. Ardagh Glass Pack- ing CV-18-1037 (D.N.J. 2018), the District Court held that neither the New Jersey Law Against Discrimination nor the New Jersey Compassion- ate 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 em- ployer was obliged to provide a reasonable accommodation for his disability (i.e., to accommo- date 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 ac- commodate 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 build- ings. 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 “rea- sonable accommodation” un- der the Fair Housing Act. This would allow the resident to take his or her medical treat- ment for that disability. Phy- sicians 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 medi- cal conditions could be deemed “disabilities” as defined by the Fair Housing Act. However, an accommodation that al- lows conduct in violation of a federal law constitutes an “undue administrative bur- den.” That means that the use or cultivation of marijuana in multifamily housing would not be a reasonable accommoda- tion a landlord has to allow, even if that use or cultivation is medically recommended for treatment of a disability. continued in the Aug. 23 rd edition of ODM
federal Con- trolled Sub- stances Act, which means that it “has no current- ly accepted medical use in treatment in the United
Bruce E. Gudin
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,
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