- Joseph F. Berenato
A look at legal marijuana

HAMMONTONāOn November 3, 2020, voters in the state of New Jersey overwhelmingly approved New Jersey Public Question 1, the Marijuana Legalization Amendment. This question authorized amending the state constitution to legalize a controlled form of marijuana called ācannabisā for adults 21 years of age and older.
The certified tally was 2,737,682 votes in favor and 1,343,610 against, statewide.
According to information available on the website of the Atlantic County Clerk, the total certified votes cast from Hammonton were 4,313 in favor and 2,383 against.
The amendment went into effect on January 1, 2021.
However, that does not mean that the possession and consumption of recreational-use marijuana is legal just yet.
āUnfortunately, some people think that just because people clicked āyesā that it now has legalized it, and it hasnāt yet. It still has to go through the normal process of legislative branch going through and making how and where and why, and whatās acceptable and whatās not acceptable, what would constitute personal use and possession, where you can do that. It doesnāt carte blanche legalize things all across the board. Itās probably going to be in the same vein as the way alcohol works, that there has to be sold at an approved place, there has to be taxation on it. Thatās where we stand,ā Hammonton Police Chief Kevin Friel told The Gazette.
On November 6, State Senator Nicholas Scutari (D, Union) introduced a 206-page billāS21/A21āoutlining legislative regulations for the amendment and how legalization of recreational-use marijuana would work in the state of New Jersey. However, while that bill was passed by both houses of the state legislature, it has notāas of press timeābeen signed into law by Governor Phil Murphy.
Hammonton town solicitor Michael Malinsky cautioned that even that may not yet be in its final form.
āUntil he signs it into law, itās still up in the air. We donāt know what the final bill is going to look like. Quite honestly, you donāt know whoās reaching out to their local representative, their local state senator, adding comments or concerns or even things they want to see changed by people who are for it. You really donāt know what itās going to look like until itās finally signed by the governor,ā Malinsky said.
Michael A. Donio, practicing attorney and retired New Jersey Superior Court judge, noted that regulation is going to be āthe key to this thing,ā drawing parallels between New Jersey and Colorado, which legalized recreational-use marijuana in 2014.
āIāve read some horror stories out of there as far as regulationāor the lack thereof. These guys in Trenton are going to have to do all that ... The three biggest things are how theyāre going to regulate it, how are they going to distinguish between recreational use and medical use and how theyāre going to handle expungements,ā Donio said.
Donio said that a separate bill would need to be passed to deal with conviction expungements.
āI think what youāre going to see there is the normal timeframe, depending on the offense, could be five or 10 years, but I think that theyāre going to allow people to get possession things expunged quickly, I think. Theyāre going to probably grant a window, say, if you apply for it by this date, even if itās old; thereās going to be a ton of expungements. How theyāre going to do that is all going to be done by legislation,ā Donio said.
Joseph A. Lombardo, of Lombardo Law Group, LLC, noted that, going forward, the legalization of recreational-use marijuana is going to āclear up a lot of time, effort and money from prosecuting small possession cases in the state.ā
āThatās going to have a significant impact ... Iāve seen the effects of the prosecution of marijuana, and a lot of it, from my standpoint, has mostly been young people, people who tried to use it even for medicinal purposes, and it really just jams them up. You can lose your job, you can lose financial aid, you get a criminal record; it takes a lot of resources to prosecute someone, and then the return on that is really negative for society. Youāre going to take a lot of people out of society who otherwise could have contributed before they got a marijuana charge,ā Lombardo said.
Councilman Joseph Giralo agreed with Lombardoās assessment.
āOur court system, not only in Hammonton but anywhere else, will no longer be clogged up, so to speak, with a misdemeanor of marijuana. Thatās the positive side of it. It will also, believe it or not, create jobs and business and commerce,ā he said.
Lombardo noted that many of those business opportunities could have a local benefit.
āHammonton is a farming community; there may be opportunities for farmers to produce both recreational and medical marijuanaāin addition to hemp, which has been permitted for at least a little while now. Those businesses are certainly an opportunity. They may be difficult to get into. Collaterally, youāll probably have a positive impact on restaurants. What I think people may not be so surprised to find is that people who use marijuana responsiblyāalbeit probably illegally in the pastāwill probably come out of the woodwork and use it responsibly, publicly, and I think that could be a positive draw,ā Lombardo said.
The language of the ballot question states that the Cannabis Regulatory Commission ācreated to oversee the stateās medical cannabis program would also oversee the new, personal use cannabis market. Cannabis products would be subject to the State sales tax. If authorized by the Legislature, a municipality may pass a local ordinance to charge a local tax on cannabis products.ā
According to the bill put forth by Scutari, municipalities would also have 180 days from the passage of the legislation to ban retail sales within their bordersāwhich is Council Steven Furgioneās recommendation for Hammonton.
āI would be perfectly happy, and I would support, if there was a way that we did not have it in Hammonton. I think it paints a picture of a town the way we think it is moving forward; I think we would be better off, our businesses and our residents would be better off, not having it. Until things get shaken out and see exactly what the stateās going to do, then we can explore our own options for Hammonton ... maybe Iām old-fashioned; maybe Iām out of touchābut the less that we get involved with this, the better for the town I think weāll be,ā Furgione said.
Furgione acknowledged that there was a potential for increased revenues, but also cautionedāreferencing Colorado as did Donioāthat the return may not be as great as anticipated.
āThey anticipated making all this money in taxes, and theyāre not. Itās increased their costs in law enforcement ... Yes, youāre going to gain money in revenue, but you really have to sit down and figure out what the expense portion of that is. Thereās case studies in Colorado where theyāre not making the money they thought they were going to makeāātheyā being the state, which trickles down to the municipality,ā Furgione said.
Another concern about the passage of recreational-use marijuana, Giralo said, is the potential for an increase in the number of motor vehicle accidents.
āThat concerns me in many aspects of people that may do it, get behind the wheel of a car, get behind the wheel of a bus; thatās a major concern to me. Iāve done quite a bit of reading and research, and I take a look at Colorado; their accidents are up, and thatās the biggest nightmare of all of it. Itās a major, major concern, and I think itāll be a major concern for not only our police department but police departments across the state,ā Giralo said.
Additionally, road-testing for marijuana impairment is problematic.
āOur drug recognition experts (DREs), officers that are trained with what physiological conditions that would occur in a person, and be able to determine that the person is under impairment. The problem with that is that now weāre going to have to come up with, the same way as alcohol has a per se violation, where the general public, anyone that is operating a motor vehicle at 0.10 BAC (blood alcohol content) or above is going to wind up with a DWI,ā Friel said.
Legislators, Friel said, will need to codify and quantify what level of tetrahydrocannabinol (THC)āthe main psychoactive component in cannabisāconstitutes impairment.
āIn Colorado, they have reduced the levels of THC that they test when they do a marijuana tox-screen on a person. Theirs is down to, I believe, five microns; in New Jersey itās 20 microns, because that wasnāt a routine thing here. The lab testing and things of that nature are going to have to change once they come up with legislation as to what the level is for impairment to take place,ā Friel said.
Lombardo, however, does not believe that there will be an increase in the amount of motor vehicle-related violations.
āFrom a pragmatic standpoint, I do not believe itās going to change or have any negative effect on the townāor anywhere else in New Jerseyāthan the effect has already been from marijuana useāor abuseāin general. I think those who will abuse marijuana, such as driving while intoxicated or under the influence, is probably going to remain the same. Perhaps you might get an uptick because police may be focusing more on driving under the influence of marijuana, but that focus has been in place for some time. Police departments have been arresting people and prosecutors have been prosecuting people for driving under the influence of marijuana for a long while,ā he said.
One aspect of the legalization of recreational-use marijuana which concerns Donio is the fact that, while possession and consumption may be legal, distribution is not.
āWhat I always would worry about with legalization of marijuana is the mere fact that you are allowed to use it; use is one thing, but distribution offenses, large amounts, is another thing. That has to be taken into account. You want to have the industry regulated, and you want to have people that get or need it medically to get it, but you donāt want John Q. Citizen standing on a corner selling pounds and pounds of it. That is something that every town has to be aware of,ā Donio said.
He cautioned that this could lead to a rise in crime.
āThe criminal element is licking their chops. Theyāre saying, okay, Iām going to set up my own distribution center, and Iām going to sell it cheaper on the corner than they can get it. The police aspect and the law enforcement aspect is going to get busier. Thereās going to be more distribution going on, and theyāve got to be ready for that,ā he said.
Lombardo noted, however, that legalization may actually lower the appeal of marijuana and associated criminal offenses.
āI suspect that, if it becomes mainstream, there wonāt be as much of an allure to people who otherwise wouldnāt be inclined to use it ... I think that if we allow those who want to use it responsibly to buy it legally and take it away from the black market, thatās always a positive,ā he said.
Lombardo likened the retail sale of recreational-use marijuana to substances like alcohol and nicotine.
āWe have multiple bars in town. We have multiple retailers of alcohol. We have multiple retailers of cigarettes. If you ask people to be responsible, and you enforce it, I think you will not have a problem. I suspect that, coupled with the enabling legislation, there will be a lot of regulation as to how itās going to be used, then leave it to the municipalities to determine what they think is responsible. If you donāt want people walking down the street, drinking alcohol and smoking pot, then youāre going to have appropriate ordinances and fines for it. I think thatās the way to handle it,ā he said.
Furgione agreed regarding the necessity for appropriate ordinances, noting that it is āa complicated issue.ā
āThis is not a simple issue. Itās something that we really need to take our time, and weāve got to do it right,ā he said.
Malinsky outlined the process the town will take in drafting ordinances in response to the issue.
āWhen I get the final bill, thenādepending on how many pages there areāIāll break it down for what is generally in the bill for the governing body, the mayor and council, and what their various options are. Mayor and council can then look at that and make a decision on anything that they have options on from a municipal standpoint and which way they want to go. Obviously, I donāt decide for mayor and council; they would make their own decisions on that. Based on seeing whatās in the bill and what their options are, they would ultimately determine what direction they want the town to move forward in, and then I would put forth the appropriate ordinances for their adoption,ā Malinsky said.
Malinsky also noted that all ordinances are open for public comment.
āIf itās on the agenda, any member of the public can come and comment on it, even if itās an initial reading, but the official public comment period for the adoption of an ordinance is the second reading. But, if itās on the agenda, even if itās an introduction, anybody can come and comment on any action item or anything thatās on the agenda,ā Malinsky said.
Giralo affirmed that public input on the issue is vital.
āIt is what it is; the people have spoken, and thatās the way the election has gone ... Iām sure that we will entertain public hearings on it, and discussion on it. Iād like to hear what the citizens have to say. I think that we should be transparent and listen to what the public has to say,ā he said.
Friel concurred with Giralo.
āThe whole way that democracy works is that itās a government that is led by the people, by choosing representatives and by voting on things. If itās what the general public is looking for, itās whatās right to happen. Thatās how I look at it ... I would ask people to be responsible with the use, once it becomes legal to possess and use it. I hope everybody is safe in their decision-making,ā he said.