Arizona House lawmakers have approved a Senate-passed bill to penalize people who create “excessive” amounts of marijuana smoke or odor—a policy that’s faced criticism from advocates who say the proposal amounts to overreach that undermines the legalization law voters enacted.
The legislation from Sen. J.D. Mesnard (R), which cleared the Senate earlier this month after being significantly amended, advanced through the House Judiciary Committee in a 8-1 vote on Wednesday.
Members took public testimony on the proposal, with advocates representing organizations such as Arizona NORML and the ACLU of Arizona arguing against the legislation.
Julie Gunnigle, an attorney and state director of Arizona NORML speaking on her own behalf, said the legislation “effectively disenfranchises all of our patients who need to consume but can’t consume inside their own homes because they rent.”
Gunnigle said she might have previously been “sympathetic” to arguments that patients could choose a different method of consumption that didn’t involve smoking to avoid the issue, but she’s come to understand that there’s science behind the individualized efficacy of different types of products and “someone’s ability to smoke and consume is a decision that’s made in consultation, typically with doctors, pursuant to a whole range of different ailments.”
Allison Stein, a board member of the state NORML chapter and medical cannabis patient herself, told the committee that the bill “clearly bypasses my rights that the voters voted on” when they opted to legalize adult-use cannabis at the ballot in 2020.
Mesnard, the bill sponsor, responded to criticism of the proposal, including the possibility that the policy could be subject to litigation if its ultimately enacted into law.
“I don’t think we should feel paralyzed as policymakers to advance the right policy that’s protecting somebody’s private property rights,” he said. “Someone can litigate anything we do down here, and it is often used as a way to try to paralyze us from decision making. I don’t think it should be in this case.”
He also explained to a member of the House panel that the bill would not force local governments to adopt their own rules or take enforcement action.
“Some some cities or towns may pursue something, some won’t. This is the backup if they don’t have something,” the senator said. “It’s obviously something that it’s easier to pursue at the local level—and, typically, nuisances are pursued at the local level—so it’s not trying to interfere with what is the most common approach.”
A separate companion resolution to put the issue before voters to decide failed in the Senate this month, but Mesnard later made a successful motion to reconsider that defeat, so the measure could end up advancing upon a revote.
As introduced, both measures would have added broad criminalization provisions back into the state’s cannabis use laws. But most of that punitive language was revised by the Senate Committee of the Whole. For example, it was changed to provide a clearer definition of “excessive” smoke and remove a reference to making the offense a “crime.”
The bill as passed by the Senate and the House committee, however, would make it a public nuisance punishable by up to four months in jail and a $750 fine to create “excessive marijuana smoke or odor…if the person’s conduct is intentional or the person knowingly and substantially interferes with the comfortable enjoyment of life or property.”
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 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.”
The bill (SB 1725) that advanced and resolution (SCR 1048) that failed 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.
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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 recently 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.
