Medical Marijuana: Smoke At Your Own Risk

The use of marijuana, whether for medicinal or recreational purposes, is a hotly debated issue in our country.  Like many divisive issues, strong opinions exist on both sides of the debate.  There are currently twenty-eight (28) states, plus the District of Columbia, that have passed laws permitting the use of medical marijuana, subject to various limitations.  Eight states, plus the District of Columbia, have passed laws legalizing the use of recreational marijuana. 

In 2010, New Jersey passed into law the New Jersey Compassionate Use Medical Marijuana Act.  There are over 11,000 New Jersey residents who have been issued ID cards permitting them to purchase medical marijuana at one of the State’s five (5) dispensaries.  New Jersey’s medical marijuana law, like all other similar laws around the country that legalize the use of medical or recreational marijuana, is at odds with Federal Law that prohibits the use of marijuana.  Recently, the conflicts between State and Federal Laws relating to the use of marijuana have met head-on in New Jersey Federal Courts, mainly in the context of employment law.

For example, on February 22, 2017, the United States District Court in New Jersey granted a motion to dismiss by the defendant employer, Robert Half Corporation.  The plaintiff, Thomas Barrett, was a New Jersey medical marijuana ID holder and an employee of Robert Half Corporation.  He was terminated from his employment after testing positive for marijuana. Although Mr. Barrett gave notice to his employer that he was a participant in the medical marijuana program due to severe back pain from an auto accident, the Federal District Court judge ruled that the notice did not constitute a request for accommodation of a disability.  For that reason, Mr. Barrett’s case was dismissed.

By way of further example, Jason Wild was diagnosed with cancer.  To help deal with the effects of cancer, his doctors prescribed him medical marijuana.  He worked during the day at a funeral home, and smoked medical marijuana at night to help ease his pain.  His employer, Carriage Services, learned about Mr. Wild’s medical marijuana use when he disclosed it to hospital personnel after he was involved in a car accident.  Upon receiving this information, the employer fired Mr. Wild.

Mr. Wild filed a lawsuit against Carriage Services alleging violations of New Jersey’s Law Against Discrimination.  He also asserted a claim for Defamation arising out of his bosses’ alleged statements to other funeral directors warning them that Mr. Wild is a drug addict.  On February 28, 2017, Carriage Services filed a motion to dismiss Mr. Wild’s complaint.  In support of its motion, Carriage Services advanced the following arguments: (1) because Mr. Wild never requested an accommodation related to his medical marijuana use, he does not have a valid claim pursuant to New Jersey’s Law Against Discrimination, and (2) the New Jersey Compassionate Use Medical Marijuana Act is pre-empted by Federal Law.

As of the date of this article, the Federal Court has not yet ruled on Carriage Service’s motion to dismiss. Undoubtedly, both objectors and advocates of medical marijuana will be keeping a close eye on the outcome of Mr. Wild’s case.  Interestingly, there is legislation pending in the New Jersey State Senate and Assembly that would essentially make it illegal for an employer to take adverse employment action against an employee who is a registered medical marijuana ID holder and tests positive for marijuana use.  The bill, S-2161, has not yet received an up or down vote.   Unless and until this legislation is passed or there is a change in Federal Law, New Jersey medical marijuana users will have to smoke at their own risk.​

To discuss the interplay between State and Federal Laws relating to the use of marijuana, or any other legal issues, feel free to contact Ryan S. Malc, Esq. at 732-363-0666 or at Rmalc@bathweg.com.

Jointly Owned Property and Inverse Condemnation

There are two (2) ways that property can be taken by the government.  The most common way is through the invocation of the government’s power of eminent domain also known as condemnation. The other way property can be taken by the government is through inverse condemnation. This indirect way of taking property occurs in two (2) ways.  One way is very obvious because it consists of the government physically occupying property without permission from the property owner.  The other less obvious way is through the regulation of property which adversely effects the use or value of a parcel of property.  In order for the regulation of property to result in a constitutionally forbidden taking of property, it must deprive the property owner of substantially all of the beneficial use of the land.

In the case of Murr v. State of Wisconsin, the United States Supreme Court is being asked to consider an inverse condemnation claim involving two (2) adjacent lots that are jointly owned.  After those lots were purchased, a land use or zoning regulation was adopted that changed the amount of developable land that was required in order to build a house.  A house, therefore, could not be built on either lot.  But if the two (2) lots were combined into a single lot then one house could be built.In Murr, the landowners contend the land use or zoning regulation made each of their lots unbuildable because neither one had the minimum developable area required by that regulation.  They, thus, argue they had a claim for inverse condemnation.

The Wisconsin Supreme Court disagreed.  The state court concluded that because the lots were in joint ownership they merged into a single lot which met the minimum developable area for a house.  As a result, the inverse condemnation claim was dismissed because the property owners had not been deprived of substantially all of the beneficial use of their property.

If the United States Supreme Court agrees with the ruling of the Wisconsin court regarding lot merger, the property owners will not be successful with their inverse condemnation claim.  That result will occur because they will not have lost substantially all of the beneficial use of their land because a house could be constructed on the single larger lot created by the merger of the two (2) adjacent parcels.

Claims for inverse condemnation based on land use regulations have been the subject of many court decisions in New Jersey.  Such claims are still being litigated.  For instance, there is currently a dispute between property owners and the New Jersey Department of Environmental Protection (“NJDEP”) over development permits for two (2) adjacent oceanfront lots.  NJDEP has taken the position that the common owners are not entitled to permits to build two houses even though the property owners have separately paid the real estate taxes for those adjacent jointly-owned lots.

The lesson to be learned from Murr is to avoid taking title to adjacent property in the name of the same owner.  The better practice is to keep title to the lots in different names so the government cannot claim that adjacent parcels of property merged into a single lot.

If you have any questions regarding the impact of Murr v. State of Wisconsin on eminent domain, condemnation, inverse condemnation or land use and zoning regulations, please call William J. Wolf, Esq. at 732-363-0666 or send an email to wwolf@bathweg.com.  Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years. Mr. Wolf has been certified by the American Institute of Appellate Practice as an appellate specialist.

Cancellation of Real Estate Contract By Email Finally OK

The New Jersey Supreme Court ruled on April 3, 2017 in Conley v. Guerrero, that residential real estate contracts can properly be cancelled by email or fax.  The central issue in the case was whether the Defendant-Seller of a residence effectively terminated the Contract for Sale with Plaintiffs-Buyers during the “three day” attorney review period set forth in the Contract for Sale.

None of the parties disputed the facts of the case.  The Buyer and Seller signed a Contract For Sale that included the standard attorney review clause, mandated by the Court in New Jersey State Bar Ass’n v. New Jersey Ass’n of Realtor Boards, 93 N.J. 470, 476-77 (1983), modified, 94 N.J. 449 (1983), and N.J.A.C. 11:5-6.2(g)(2), which gave the parties’ respective attorneys three business days to review the contract before it became legally binding.  Specifically, the “three day attorney review” clause, provided:
The Buyer or the Seller may choose to have an attorney study this Contract. If any attorney is consulted, the attorney must complete his or her review of the Contract within the three-day period. This Contract will be legally binding at the end of this three-day period unless an attorney for the Buyer or the Seller reviews and disapproves of the Contract . . . If an attorney for the Buyer or the Seller reviews and disapproves of the Contract, the attorney must notify the REALTOR(S) and the other party named in this Contract within the three-day period. Otherwise this Contract will be legally binding as written. The attorney must send the notice of disapproval to the REALTOR(S) by certified mail, by telegram or by delivering it personally. The telegram or certified letter will be effective upon sending. The personal delivery will be effective upon delivery to the REALTOR’s office. The attorney may also, but need not, inform the REALTOR(S) of any suggested revision(s) in the Contract that would make it satisfactory.
After the Contract For Sale was executed, Seller received a competing offer and entered into a Contract with a third party.  The Seller’s attorney sent a letter via email and fax advising Plaintiffs’ attorney that the agreement was terminated, stating, “This will confirm that the above referenced contract has been terminated by the seller and the realtors are hereby authorized to release the initial deposit monies to the buyers.”  It was undisputed that Plaintiffs’ attorney and the agent received the letter within the three-day period.

Despite having received the letter terminating the Contract, Plaintiffs’ attorney faxed a letter to Defendant’s attorney asserting that the original contract was in “full force and effect.” because “the 3 days within which an attorney may terminate this contract has expired.” The Buyers argued that the Sellers were required to strictly adhere to the contractual provision specifying the methods of delivery as certified mail, by telegram or by delivering it personally, even though the Buyers’ attorney admitted that the Buyers received the cancellation notice.

The Court found that strict enforcement of the contractually identified methods of delivery would frustrate the contract’s overarching purpose and elevate form over the protective reasons for the attorney-review provision.  Therefore, the Court held, “notice of disapproval of a real estate contract may be transmitted by fax, e-mail, personal delivery, or overnight mail with proof of delivery. Notice by overnight mail will be effective upon mailing. The attorney-review period within which this notice must be sent remains three business days.”  This case finally brings New Jersey residential real estate contracts into the digital age.

The attorneys at Bathgate, Wegener & Wolf, P.C. are well versed in all aspects of residential real estate contracts.  If you have questions about your real estate contract, please contact us at 732-363-0666.