Marijuana Moment: Arizona Senators Scale Back Bills To Punish Marijuana Users Over Excess Smoke Or Odor Complaints

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Arizona senators have dialed back a pair of measures that would penalize people who create “excessive” amounts of marijuana smoke or odor, with members advancing revised versions of the legislation following criticism that, as introduced, they would have added criminalization provisions back into the state’s cannabis use laws.

The latest bill and companion resolution, sponsored by Sen. J.D. Mesnard (R), were amended by the Senate Committee of the Whole on Wednesday, with a floor vote on third reading now imminent. While the bill would on its own enact a statutory policy change, the separate resolution would put the issue before voters to decide.

As the original proposals moved through the legislative process, advocates and certain lawmakers voiced concerns about undermining the will of voters who passed legalization at the ballot, as well as the ambiguity around enforceability and what constitutes “excessive” marijuana smoke.

The legislation was previously amended in committee last month in an attempt to provide a clearer definition of “excessive” smoke and remove a reference to making the offense a “crime.”

The latest revised definition of excessive cannabis smoke or odor describes it as “airborne emissions resulting from the burning, heating or vaporizing of marijuana or marijuana products,” according to a summary of the adopted floor amendment.

Such emissions must also be “detectable by a reasonable person of ordinary sensibilities on other private property” and “occur for more than 30 consecutive minutes on a single occasion or on three or more separate days within a 30-day period.”

Members further revised the legislation in response to criticism that the committee-passed versions continued to lack clarity and would pose the threat of criminalization by making the offense a class 3 misdemeanor, punishable by up to 30 days in jail, a maximum $500 fine and up to one year of probation.

That, too, was ultimately changed in the bill (SB 1725) and resolution (SCR 1048) that are teed up to advance through the full Senate.

Specifically, the legislation stipulates that “excessive marijuana smoke or odor is a public nuisance if the person’s conduct is intentional or the person knowingly and substantially interferes with the comfortable enjoyment of life or property,” a summary of the amendment says.

The proposals also now specify that “lawful possession or use of marijuana does not preclude a finding of nuisance, except that a court may consider possession of a valid registry identification card as a mitigating factor,” and they provide that “a person is not liable for committing a private nuisance unless the person has received notice of the interference and fails to abate it within five days.”

Under the revised legislation, the affected party would first have to file a compliant with local officials before they pursue action with the state, but only if the municipality has already adopted an ordinance regulating excessive cannabis smoke or odor.

A person would be deemed in violation of the law if a local court has issued a written order directing them to “abate excessive marijuana smoke or odor that constitutes a nuance” and that person “knowingly violates or refuses to comply with the order.”

Each day of non-compliance after failing to adhere to the order would be consider a separate offense, and failure to comply would be a petty offense, rather than a criminal violation.

“Based on feedback from folks who agree with the premise of the bill but wanted a different approach, this moves the bulk of it into civil statute—makes this a petty offense,” Mesnard said. “It also establishes greater clarity on what we’re talking about.”

“So as far as excess marijuana smoke or odor, we’ll be talking about something that’s a lengthy period of time or occurring with greater frequency,” he said. “It walks through the process that you should be reaching out to your local government as a first step, if they have anything on the books regarding this issue, and the only thing left in place on the criminal side is if something is substantial and deliberate that’s occurring.”

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In the background of this legislation, anti-cannabis activists are working to put an initiative on the state’s November ballot that would significantly roll back its voter-approved marijuana legalization law.

A GOP congressional lawmaker said recently he’d like to see his state take that action—but he also acknowledged that President Donald Trump’s recent federal rescheduling order could complicate that prohibitionist push.

Under the proposal, possession would remain lawful if voters chose to enact the initiative—and Arizona’s medical marijuana program would remain intact—but the commercial market for recreational cannabis that’s evolved since voters approved an adult-use legalization measure in 2020 would be quashed.

A findings section on the latest initiative states that “the proliferation of marijuana establishments and recreational marijuana sales in this state have produced unintended consequences and negative effects relating to the public health, safety, and welfare of Arizonans, including increased marijuana use among children, environmental concerns, increased demands for water resources, public nuisances, market instability, and illicit market activities.”

“Arizona’s legal marijuana sales have declined for two consecutive years, resulting in less tax revenue for this state, while some patients have relied on recreational use of marijuana instead of utilizing the benefits of this state’s medical marijuana program,” it says.

The initiative would also instruct the legislature to make conforming changes by amending existing statute as it relates to the commercial industry, including tax and advertising rules.

In order to make the ballot, the campaign will need to collect 255,949 valid signatures by July 2. If the proposal goes to voters and is approved, it would take effect in January 2028.

It remains to be seen if there will be an appetite for repeal among voters, as 60 percent of the electorate approved legalization at the ballot in 2020.

What’s more a poll from last year found majority support for medical cannabis legalization (86 percent), adult-use legalization (69 percent) and banking reform (78 percent).

Meanwhile, senior residents in Arizona independent living communities could soon see a different kind of care service available in their neighborhoods: Kiosks allowing them to view and buy marijuana products from licensed dispensaries.

The retailer Life Is Chill and cannabis technology company LoveBud announced last week that they were partnering for the launch of the novel initiative, which will involve deploying the kiosks in participating senior living communities that residents can use to learn about and order marijuana products for delivery.

Photo courtesy of Martin Alonso.

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