Joseph F. Berenato
A look at legal marijuana
HAMMONTON—On 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 “cannabis” 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.
“Unfortunately, some people think that just because people clicked ‘yes’ that it now has legalized it, and it hasn’t yet. It still has to go through the normal process of legislative branch going through and making how and where and why, and what’s acceptable and what’s not acceptable, what would constitute personal use and possession, where you can do that. It doesn’t carte blanche legalize things all across the board. It’s 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. That’s where we stand,” Hammonton Police Chief Kevin Friel told The Gazette.
On November 6, State Senator Nicholas Scutari (D, Union) introduced a 206-page bill—S21/A21—outlining 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 not—as of press time—been signed into law by Governor Phil Murphy.
Hammonton town solicitor Michael Malinsky cautioned that even that may not yet be in its final form.
“Until he signs it into law, it’s still up in the air. We don’t know what the final bill is going to look like. Quite honestly, you don’t know who’s 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 don’t know what it’s going to look like until it’s finally signed by the governor,” Malinsky said.
Michael A. Donio, practicing attorney and retired New Jersey Superior Court judge, noted that regulation is going to be “the key to this thing,” drawing parallels between New Jersey and Colorado, which legalized recreational-use marijuana in 2014.
“I’ve read some horror stories out of there as far as regulation—or the lack thereof. These guys in Trenton are going to have to do all that ... The three biggest things are how they’re going to regulate it, how are they going to distinguish between recreational use and medical use and how they’re going to handle expungements,” Donio said.
Donio said that a separate bill would need to be passed to deal with conviction expungements.
“I think what you’re going to see there is the normal timeframe, depending on the offense, could be five or 10 years, but I think that they’re going to allow people to get possession things expunged quickly, I think. They’re going to probably grant a window, say, if you apply for it by this date, even if it’s old; there’s going to be a ton of expungements. How they’re going to do that is all going to be done by legislation,” Donio said.
Joseph A. Lombardo, of Lombardo Law Group, LLC, noted that, going forward, the legalization of recreational-use marijuana is going to “clear up a lot of time, effort and money from prosecuting small possession cases in the state.”
“That’s going to have a significant impact ... I’ve 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. You’re going to take a lot of people out of society who otherwise could have contributed before they got a marijuana charge,” Lombardo said.
Councilman Joseph Giralo agreed with Lombardo’s assessment.
“Our court system, not only in Hammonton but anywhere else, will no longer be clogged up, so to speak, with a misdemeanor of marijuana. That’s the positive side of it. It will also, believe it or not, create jobs and business and commerce,” he said.
Lombardo noted that many of those business opportunities could have a local benefit.
“Hammonton is a farming community; there may be opportunities for farmers to produce both recreational and medical marijuana—in 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, you’ll probably have a positive impact on restaurants. What I think people may not be so surprised to find is that people who use marijuana responsibly—albeit probably illegally in the past—will probably come out of the woodwork and use it responsibly, publicly, and I think that could be a positive draw,” Lombardo said.
The language of the ballot question states that the Cannabis Regulatory Commission “created to oversee the state’s 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.”
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 borders—which is Council Steven Furgione’s recommendation for Hammonton.
“I 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 state’s going to do, then we can explore our own options for Hammonton ... maybe I’m old-fashioned; maybe I’m out of touch—but the less that we get involved with this, the better for the town I think we’ll be,” Furgione said.
Furgione acknowledged that there was a potential for increased revenues, but also cautioned—referencing Colorado as did Donio—that the return may not be as great as anticipated.
“They anticipated making all this money in taxes, and they’re not. It’s increased their costs in law enforcement ... Yes, you’re going to gain money in revenue, but you really have to sit down and figure out what the expense portion of that is. There’s case studies in Colorado where they’re not making the money they thought they were going to make—‘they’ being the state, which trickles down to the municipality,” 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.
“That 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; that’s a major concern to me. I’ve done quite a bit of reading and research, and I take a look at Colorado; their accidents are up, and that’s the biggest nightmare of all of it. It’s a major, major concern, and I think it’ll be a major concern for not only our police department but police departments across the state,” Giralo said.
Additionally, road-testing for marijuana impairment is problematic.
“Our 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 we’re 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,” Friel said.
Legislators, Friel said, will need to codify and quantify what level of tetrahydrocannabinol (THC)—the main psychoactive component in cannabis—constitutes impairment.
“In 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 it’s 20 microns, because that wasn’t 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,” Friel said.
Lombardo, however, does not believe that there will be an increase in the amount of motor vehicle-related violations.
“From a pragmatic standpoint, I do not believe it’s going to change or have any negative effect on the town—or anywhere else in New Jersey—than the effect has already been from marijuana use—or abuse—in 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,” 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.
“What 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 don’t 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,” Donio said.
He cautioned that this could lead to a rise in crime.
“The criminal element is licking their chops. They’re saying, okay, I’m going to set up my own distribution center, and I’m 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. There’s going to be more distribution going on, and they’ve got to be ready for that,” he said.
Lombardo noted, however, that legalization may actually lower the appeal of marijuana and associated criminal offenses.
“I suspect that, if it becomes mainstream, there won’t be as much of an allure to people who otherwise wouldn’t 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, that’s always a positive,” he said.
Lombardo likened the retail sale of recreational-use marijuana to substances like alcohol and nicotine.
“We 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 it’s going to be used, then leave it to the municipalities to determine what they think is responsible. If you don’t want people walking down the street, drinking alcohol and smoking pot, then you’re going to have appropriate ordinances and fines for it. I think that’s the way to handle it,” he said.
Furgione agreed regarding the necessity for appropriate ordinances, noting that it is “a complicated issue.”
“This is not a simple issue. It’s something that we really need to take our time, and we’ve got to do it right,” he said.
Malinsky outlined the process the town will take in drafting ordinances in response to the issue.
“When I get the final bill, then—depending on how many pages there are—I’ll 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 don’t decide for mayor and council; they would make their own decisions on that. Based on seeing what’s 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,” Malinsky said.
Malinsky also noted that all ordinances are open for public comment.
“If it’s on the agenda, any member of the public can come and comment on it, even if it’s an initial reading, but the official public comment period for the adoption of an ordinance is the second reading. But, if it’s on the agenda, even if it’s an introduction, anybody can come and comment on any action item or anything that’s on the agenda,” Malinsky said.
Giralo affirmed that public input on the issue is vital.
“It is what it is; the people have spoken, and that’s the way the election has gone ... I’m sure that we will entertain public hearings on it, and discussion on it. I’d 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,” he said.
Friel concurred with Giralo.
“The whole way that democracy works is that it’s a government that is led by the people, by choosing representatives and by voting on things. If it’s what the general public is looking for, it’s what’s right to happen. That’s 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,” he said.