11 July 2023
Starting Aug. 1, people age 21 and over can possess and use marijuana in Minnesota. But there are limits on where they can possess it and where they can use it, especially by smoking or vaping.
Still, smoking and vaping will be legal in a lot more places than are specifically listed in the new law or were publicly discussed during the 2023 legislative session, and Minnesota is poised to become one of just a few states that allow smoking and vaping of marijuana in public.
As passed, the law seemed to restrict smoking and vaping to single-family homes, yards and private property not accessible to the public. Combined with restrictions on smoking in apartment buildings, the law appeared to give permission to people who owned houses or property but not to renters.
Since that would be restrictive and inequitable, sponsors of the new law say unless either existing smoking laws or the new recreational cannabis law specifically restrict smoking marijuana, then it is allowed.
Could someone walk down the sidewalk and smoke a joint?
“Yes, I think that’s true,” said Sen. Lindsey Port, DFL-Burnsville, in an interview Monday. Outside a bar or restaurant? On the sidewalk? On a public bench? Yes, absent a local ordinance that prohibits it to protect non-users from secondhand smoke, she said.
“Cities can put ordinances in for outdoors as they do with cigarette smoking,” Port said. They could restrict it from a certain distance from building entrances, for example. “But assuming that the city doesn’t have an ordinance against it, you could smoke outside, in parks, if you’re a certain distance from children’s play areas.”
That would put Minnesota outside the mainstream of recreational states. Cannabis magazine GreenState looked at public marijuana smoking laws and found that most prohibit smoking on streets, while only a few allow smoking lounges (Minnesota does not). The first two recreational states — Colorado and Washington — do not allow any public consumption. Rhode Island, New York and Connecticut are the most permissive, allowing smoking wherever tobacco smoking is allowed.
Sen. Jordan Rasmusson, R-Fergus Falls, said he interpreted the bill to allow public smoking but said there were so many aspects of a complicated bill that opponents focused elsewhere. While he served on the House-Senate conference committee that drafted the final version, he voted against the bill.
Rasmusson said public smoking of marijuana will be one of the areas lawmakers should look at next session.
“We will have cannabis fix-it bills next session and my hope would be that this is one of the things that’s on the list for folks to fix,” he said. “I don’t think this is what Minnesotans want when it comes to recreational cannabis and there’s a reason why most states that have legalized it have not gone this route.”
The much-discussed House Bill 100 is complex and contradictory in some ways, not the least of which is that it makes it legal to possess and use recreational marijuana long before it is legal to buy it. For at least 18 months, the only legal supply is whatever a resident can grow themselves with the first harvest in time for Halloween.
Presuming non-home growers come up with other means of obtaining cannabis flower or vapes — something many Minnesotans have been doing and will continue to do through the illicit market — they can smoke it or vape it legally.
But the where has always been a bit vague. A technical reading of the law suggests that it is legal to consume by smoking and vaping in the three places listed: a private residence including enclosed backyards, decks or patios; private property not accessible to the public as long as the owner is okay with it, and — eventually — at cannabis events once the state drafts rules and issues licenses for these up-to-four-day festivals.
But such a reading, while understandable, is not correct, Port said. Those three places are protected from infringement by local governments, for example, but they aren’t the only locations where it will be legal smoke and vape.
Why was that not specifically included in the law? Port cited legislative politics.
“We put in there the most restrictive language in order to get the votes we needed to pass it,” the Burnsville DFLer said. “A number of clarifications on that will come out through rule making” by the Office of Cannabis Management.
Wide public use
Such wide public use was not a topic of debate during the session, with most of the discussion and amendments related to local control and public safety. Opponents did not use public consumption as a reason to oppose the bill. But Port said the law was always meant to allow smoking and vaping marijuana pretty much anywhere that smoking and vaping tobacco is allowed under the Minnesota Clean Indoor Air Act and local ordinances. While the new marijuana law references the Clean Indoor Air Act, that law already includes marijuana and vaping in its regulation.
If smoking laws and ordinances ban smoking somewhere, then marijuana would be banned as well, Port said. The most obvious places are indoor public places, transportation facilities, transportation vehicles and health facilities. In addition, employees are generally protected from smoking in workplaces due to the hazards of secondhand smoke.
The broadest category for where smoking can occur under that law is anywhere outdoors.
The new law’s only use of the phrase “in public” states that a local government may adopt ordinances that create petty misdemeanor offenses for unlawfully using cannabis or hemp products in a public place — both smoking and edibles — as long as it does not ban them in the three, clearly permitted places listed in the law.
Leili Fatehi, the manager of the marijuana legalization advocacy group MN is Ready, said she thought it was understood that public use would be allowed.
“We’re going to see local governments begin to regulate around some of this stuff, including where smoking is allowed the same way they do with cigarettes,” she said. “They make decisions that you can’t smoke in the parks or here or there. I think that’s what we’re going to see.”
Local governments would need to define those unlawful public places in ordinances. The state clean indoor air law already gives local governments authority to adopt and enforce more stringent measures to protect people from secondhand smoke. And a clause in the bill to permit cannabis events — the one public place where a commercial licensee can allow smoking — gives cities and counties specific authority regarding cannabis.
“Nothing in this section prohibits a statutory or home rule charter city or county from enacting and enforcing more stringent measures to protect individuals from secondhand smoke or involuntary exposure to aerosol or vapor,” the law says, mimicking current authority in the indoor air laws.
But Alex Hassel, a lobbyist for the League of Minnesota Cities, said she hadn’t interpreted the law to explicitly allow marijuana smoking and vaping on sidewalks and outside bars.
“This will certainly direct more questions our way,” she said of member cities. “Starting August 1 we’ll start to learn what we got ourselves into.
“There are so many things in this bill that we are just now discovering because they weren’t in the forefront of the controversial topics that were being negotiated,” Hassel said. “But I think there will be some pretty big frustrations by the public if people are smelling cannabis everywhere.”
Prohibition in cars, confusion for rental units
The law does contain a specific list of places where cannabis or hemp use is not allowed, including those already covered by current indoor smoking bans. But the new recreational marijuana law goes beyond those limits. Smoking or vaping of cannabis and hemp products in motor vehicles is not allowed, for example. It also prohibits smoking or vaping “in any location where the smoke, aerosol, or vapor would be inhaled by a minor.”
Even though it remains illegal to purchase cannabis and will always be illegal to bring it into Minnesota from Canada and states that have already legalized it for recreational purposes, residents can possess two ounces or less of cannabis flower in a public place or two pounds or less in a private residence. There are other quantity limits for possession of cannabis concentrate, cannabis edibles and lower-potency hemp edibles.
Those with medical marijuana cards have been able to purchase dried cannabis flower since March 1, 2022.
The new law is clear that people who own single-family houses can smoke or vape cannabis starting Aug. 1. They can also grow up to eight plants inside or in their yards as long as they are enclosed and gated to protect the plants from theft, especially by those under age 21.
But what about apartments? There are two references in the law that are slightly conflicting. Starting Aug. 1, landlords or managers of multi-family rental properties — most likely defined as buildings with three or more units — cannot ban the possession of cannabis products or hemp-derived products in rental units. It also denies landlords and building managers from prohibiting the use of marijuana and hemp-derived products — except for “consumption by combustion or vaporization of the product and inhalation of smoke, aerosol or vapor from the product.” Federally subsidized housing has even more stringent rules, and the new state law also allows sober homes to ban possession.
So apartment managers can prohibit smoking and vaping inside units. And the state indoor clean air law requires them to ban smoking — including of marijuana — in any common areas of an apartment building like lobbies, hallways, outdoor patios and community rooms. But it appears property managers can also opt to allow marijuana smoking in rental units — at least initially.
That’s because of a part of HF100 that was added in the closing hours of the 2023 session states that medical marijuana is exempted from a state mandate, starting in March of 2025, that says landlords and managers must ban marijuana smoking and vaping in apartments, including an apartment’s balcony and patio.
That section has puzzled lawyers for both landlords and tenants. It was not only a late addition, it was placed in a section of the law dealing only with medical marijuana.
Port said that section is another that was added as a way to gather the 34 Senate votes to pass the bill. The delayed effectiveness date puts off its enforcement. And the entity that would impose the $250 civil penalty for violations would be the as-yet-unformed Office of Cannabis Management.
“We needed it to get the votes to pass,” Port said.
The combination of sections means that starting Aug. 1, apartment owners must allow possession and must allow uses of edibles and other delivery methods but can prohibit smoking and vaping inside apartments.
“Just as they can ban cigarette smoking, they can also ban smoking of marijuana,” Port said. It would be stated in the lease.
They also are required to block smoking and vaping in a building’s common areas because of the existing clean indoor air laws. But not until March 1, 2025, are they required to ban cannabis smoking and vaping in apartments.
Larry McDonough is a policy attorney for the tenant advocacy organization HOMELine. He said his conservative advice for tenants is don’t do anything regarding cannabis until Aug. 1.
“But after that you get to have all the legal cannabis stuff in the unit and if the landlord hasn’t prohibited it, you can smoke it as well,” he said.
McDonough said the new law is complex, sometimes contradictory and subject to legal interpretation.
“It’s making all the landlord-tenant laws seem pretty simple,” he said. “Struggling to read this law could drive someone to smoke some pot.”
Marisa Katz, a staff attorney for the Public Health Law Center at Mitchell Hamline School of Law, agrees, at least about the law’s complexity.
“I think the law is littered with some confusing aspects that are probably going to be litigated down the road,” she said. Or the Legislature can try to clean it up in February.
“The questions we’re getting from landlords and [homeowners associations] and tenants are, ‘What in the world can we do and not do in the context of smoking and vaping marijuana?’” Katz said.
What about condos?
The clean indoor air laws do not apply to what are termed common interest communities, which are treated the same way that a single-family, owner-occupied house would be. But condos are governed by homeowners associations which can adopt rules and bylaws. A legal fact sheet by Minnesota Smoke Free Housing says that condo associations can include smoke-free policies in their declarations or rules and warns that failure to do so could subject the association to nuisance lawsuits due to the smoke or smells of marijuana by other owners.
“Most association declarations contain a generic nuisance clause stating that an owner cannot engage in activity that affects the use and enjoyment of another owner’s property,” the fact sheet states.
HF100 includes expanded nuisance language for use of adult-use cannabis flower. If such use is “injurious to health, (is) indecent or offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property” it can be considered a nuisance. An affected person can sue and seek an injunction to stop the nuisance as well as claim either their actual damages or $250, whichever is greater.
The same section of the law says landlords or homeowners associations that fail to enforce leases or governing documents related to adult-use cannabis flower can be sued as well.
Katz said she has seen large residential apartment owners preemptively prohibiting cannabis smoking in units.
“They are trying to cover themselves and they don’t want to be sued for nuisance,” she said. “If someone is smoking cannabis in the next unit and it’s going through your HVAC system, you could bring a lawsuit.”
McDonough of HOMELine didn’t see significant protections in the nuisance section for people who object to the smell or marijuana from neighbors.
“Supposedly I could sue you to stop you from what you’re doing but I’m not going to get any dough out of that,” he said. “And I’m gonna have to pay a filing fee, I’m gonna have to get a lawyer, I’m gonna have to file a case, I’m gonna have to get a motion for injunctive relief. But I feel this is a bunch of nothing.”
A lawsuit against building owners might be more fruitful but residents would still have to show that they are harmed, he said.
Cecil Smith is the president and CEO of Minnesota Multi Housing Association, which represents rental housing owners and managers with a majority of its members having 20 or fewer units. He said the new cannabis law isn’t as clear as it should be and his organization will ask for changes next session.
“Property managers can be held liable for nuisance consumption smells and complaints,” Smith said. “Residents can ask the neighbor to stop and can complain to the property manager. But good luck figuring out who’s responsible for the smell of marijuana in the building. Once it is used it is pretty pervasive.”
And while it appears that medical marijuana smoking and vaping is exempted from the prohibition, Smith said bill sponsors said the state indoor clean air act would apply. But the indoor air act only covers common areas of multi-family rental buildings, not individual units.
“This is stuff we hope will get cleaned up,” Smith said. “This will be the whole new world we live in once cannabis is legalized.”
The new law does not appear to restrict where people can grow their own cannabis plants. Home growers can have up to eight plants, with only four flowering at a time. And they can possess up to two pounds of flower from those plants, with possession of greater amounts being a serious crime.
But even though flowering plants can give off a distinct smell — pleasant to some but not to others — there are no restrictions on rental tenants having them in apartments or on balconies (though they must be enclosed and locked spaces, not accessible or visible to the public).
Port said, however, that she thinks landlords can prohibit home growing of cannabis plants via their lease agreements.
“As long as your lease doesn’t restrict it, you can grow,” she said. And Katz of the Public Health Law Center said she doubts marijuana plants, even smelly ones, would be enough to trigger the nuisance section of the law.
“I think the issue of cultivation is harder in a nuisance context just because it isn’t pervasive the way breathing in secondhand smoke is,” she said.
Editor’s note: This story has been updated with reaction from Sen. Jordan Rasmussen, R-Fergus Falls.