Nuisance bill to criminalize neighbor’s marijuana smoke passes Arizona Senate

State senators have concluded that the right to smoke marijuana ends where a neighbor's nose begins.

On a 20-9 bipartisan margin, the Senate agreed to make it a crime if there is "excessive marijuana smoke or odor" if the person creating the nuisance either acted intentionally or "knowingly and substantially interferes with the comfortable enjoyment of life or property." That could land someone in jail for up to four months with a $750 fine.

But Sen. J.D. Mesnard (R-Chandler) could not get colleagues to approve a broader law which would have declared all marijuana smoke and odor wafting from a neighbor's yard to be a hazard to public health — and subject to jail time and fines. So now his SB 1725 pretty much handles these disputes as a civil matter between neighbors.

Mesnard said he and his family have been forced inside when one or more neighbors — he doesn't know who — have chosen to light up in their own private yards.

A 2020 voter-approved law allows any adult to purchase and use marijuana. While it restricts smoking in public places, there are no limits on people using it on their own property, including outdoors.

There already are laws making it illegal to recklessly create or maintain a condition that “endangers the safety or health of others.” But Mesnard says that's not sufficient to protect families like his, which is why he proposed involving the police and criminal penalties. That, however, was not going to get the necessary votes for approval.

The new version does not make the fact there is smoke — or even an odor — illegal. Instead, it defines excessive smoke and odor as something "detectable by a reasonable person of ordinary sensibilities on other private property" and occurs for more than 30 consecutive minutes on a single day.

Sen. Mitzi Epstein (D-Tempe) said she doesn't think that creating a new state law is a good solution for a problem among neighbors.

"I'd like for neighbors to come to a friendly agreement, maybe to decide what days they can smoke and what days they will not," Epstein said, adding that should apply to tobacco, meat, cannabis and wood. "Anything you are smoking stinks.”

But she said there are larger issues at play, enough for her to vote to support it.

"We must have a right to breathe clean air," Epstein said. "The right of a person to smoke ends at a neighbor's nose, in my opinion, and health is a right. And healthy air is a right."

The legislation also drew support from Sen. Theresa Hatathlie (D-Tuba City) who said the smoke that comes into her property interferes with the ability of her family to use its yard.

“And I don't like it,” Hatathlie said. “I don't drink. I don't smoke. I don't consume any of these things, and so I have to remove myself. I have to remove my granddaughter because I don't want her impacted."

Sen. Lauren Kuby (D-Tempe) said she understands how smells can be offensive. But she questioned if creating a new state law is the way to go.

"Where does that end?" Kuby said. "I'm always shouting about how I'm a vegan. Well, the smell of barbecued meat? You may all love it. But it's really disgusting. It turns my stomach."

And there's something else: That 2020 law allows adults to use marijuana in whatever way they want — including smoking it.

Sen. Analise Ortiz (D-Phoenix) pointed out that the measure was approved by voters, and she said lawmakers are constitutionally precluded from altering anything restricting that right.

"This bill makes the consumption of marijuana on a person's own property a potential Class 1 misdemeanor or criminal petty offense," Ortiz said, adding that it could lead to someone being evicted from an apartment by "an overzealous landlord."

Mesnard has conceded that the voter-approved law legalizing marijuana may be a legal hurdle for SB 1725. So he crafted a backup plan putting the exact same provisions into SCR 1048, a measure that would go on the November ballot.

The proposal — which also would bypass any potential veto by Gov. Katie Hobbs — was approved by the Senate on a 16-14 margin. It, too, now goes to the House.