This Arizona bill would make 'excessive marijuana smoke and odor' a crime

Someone in J.D. Mesnard's Chandler neighborhood smokes marijuana.

The Republican state senator doesn't know who, though he's pretty sure it's not the folks next door. But wherever it's coming from, Mesnard said it's strong enough to keep families from being able to use their own yards.

So he’s proposing legislation to expand the state's laws which make it a crime to use residential property in a way that creates a public nuisance. And he would do that by expanding the definition of "crime'' to include "the creation of excessive marijuana smoke and odor'' — something that even could land people in county jail, though it does not define what is "excessive.''

The proposal comes 15 years after voters first approved marijuana for medical use. A decade later they expanded the law to allow adults to use marijuana for recreational purposes.

Nothing in the law permits the use in public spaces.

But it says nothing about elsewhere — including in and around someone's house, yard and pool.

"I don't even know where it's coming from,'' Mesnard told Capitol Media Services.

He said that this time of year is "a great time to open our windows.''

"But half the time I can't keep our windows open,'' Mesnard said.

It's not just a problem for him — or even just in Chandler.

"When I dropped the bill, my phone was blowing up with people letting me know their own experience,'' he said. What that shows, Mesnard said, is that "people were just sort of tolerating it.''

That, he said, convinced him that the problem is broad enough to have it covered under existing nuisance laws.

Part of what is in his proposal deals with the ability of judges to issue orders to property owners to abate "criminal nuisances'' — which his measure would expand to include excessive marijuana smoke or odor — or face having the government or homeowner association do it. But in that case, the cost would become a lien against the property.

There already is a provision in the state's criminal code that makes it illegal to recklessly create or maintain a condition that "endangers the safety or health of others.''

Mesnard's bill goes a step farther, declaring as a matter of law that "it is presumed that the creation of excessive marijuana smoke and odor is injurious to health, indecent, offensive to the senses and an obstruction of the free use of property that interferes with the comfortable enjoyment of life or property and is a public nuisance.''

Put another way, it would not be up to the government to prove any of that to get a conviction. Instead, it would be up to the homeowner to prove otherwise.

And a conviction for knowingly maintaining such a nuisance could land someone in jail for four months and be subject to a $750 fine.

Mesnard said legislative intervention is necessary.

"I'm hearing from some people, that depending on their neighbor situation, they may not be able to have their kids go outside because the marijuana smoke is so potent,'' he said. "It can even creep into your own house or, in my case, into my garage.''

Mesnard said he never supported legalizing recreational marijuana. But he also said that fighting it wasn't his top issue.

"But experiencing now what's happened, even in my own neighborhood, is a pretty frustrating situation,'' he said. The legislation, Mesnard said, is to buttress the idea that "you should be responsible neighbors if you're going to smoke pot, that it can be a real issue for families, especially with kids.''

Still, that leaves the question of why single out smoke from marijuana as a nuisance, and not smoke or odor from cigarettes, cigars and pipes — or even someone lighting wood on fire in a pit.

"I'll concede I hadn't thought about it,'' Mesnard said. But he also said that, based on his own experience, he hasn't found that to be a problem.

"I'm pretty sure that marijuana smoke has a different impact than, say, other smoke that might make you cough,'' Mesnard said. "I don't want my kids to get high. … If someone wants to get high on their own, let them get high on their own.''

Mesnard said the moment that an individual's actions impact other people, especially kids, "that's where I take serious issue.''

Less clear is whether voters will have any say.

One version, SB 1725, would take effect if approved by the House and Senate and signed by the governor.

But medical and recreational marijuana were legalized by Arizona voters. And the state Constitution limits the ability of lawmakers to tinker with anything voters have approved.

Mesnard said it's possible that what he is proposing could be considered an effort to amend the initiative.

So he also crafted SCR 1048, identical in every way with SB 1725 — with the exception that legislative approval would simply send the question to the November ballot where voters would get the last word.