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Legal Q & A



Matthew Weng
Matthew Weng
League Staff Attorney

Public Intoxication Ordinances
and the Position of fire Marshall

Q My town has had a law against public intoxication for years. It is rarely enforced, but I heard recently that these might be unenforceable. Is this true? Should we change our ordinances?

A It is true, and towns that have ordinances prohibiting public intoxication should seriously consider a change.

N.J.S.A. 40:48-1 does give a municipality the power to “prevent vice, drunkenness, and immorality.” That statute is the source of authority for towns to pass ordinances outlawing public drunkenness.

However, in 1977, the State Legislature passed the Alcohol Treatment and Rehabilitation Act (ATRA) at N.J.S.A. 26:2B-1-39. To reflect the belief that alcoholism is a disease that requires treatment instead of punishment, ATRA expanded the options for dealing with those who suffer from alcoholism. If police arrest a suspect for a disorderly persons offense who is also intoxication, the police may instead bring the person to a treatment facility. Successful completion of treatment may result in a dismissal of all charges.
N.J.S.A. 26:2B-26 states that: “No county, municipality, or other political subdivision of the State shall adopt any law, ordinance, bylaw, resolution or regulation having the force of law a. rendering public intoxication or being found in any place in an intoxicated condition an offense, a violation or the subject of criminal or civil penalties or sanctions of any kind.”

There are currently several lawsuits against towns that still have public intoxication laws within their ordinances. While the outcome of such cases have yet to be determined, it seems clear that N.J.S.A. 26:2B-26 decriminalized public intoxication. Towns that still have such ordinances on their books should repeal them, or at the very least suspend enforcement of them until the Courts of the state make a final determination

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Q I was wondering, could you please provide me with information as to how we would establish the position of Fire Marshall within our borough?

A A municipality may not establish a Fire Marshall. That duty is reserved for the state or county level.

A municipality may have a fire inspector. See NJSA 52:27D-203, which describes the certification and enforcement powers of a fire inspector.
“A local enforcing agency consisting of or employing at least one paid fire inspector who is certified pursuant to subsection c. of this section may elect to inspect high-rise structures and life hazard uses within its jurisdiction, in lieu of inspection by the commissioner. That election shall be made by resolution of the governing body having jurisdiction over the local enforcing agency. If an appropriate resolution has not been received by the commissioner on or before the effective date of this act, the department shall perform all inspections under this subsection until such time as the governing body shall adopt and send to the commissioner an appropriate resolution. A local enforcing agency that elects to inspect high-rise structures and life hazard uses may issue the certificates of inspection required to be issued pursuant to section 14 of this act and may inspect buildings and premises other than high-rise structures and life hazard uses in order to comply with this act.

The commissioner shall certify fire inspectors under this act in accordance with such standards as he shall establish by regulation; provided that a fire inspector certificate shall be issued by the commissioner to any person who: on the effective date of this act is, and for at least one year prior to the effective date of this act has been, serving as a fire inspector in the fire service; or shall have, within two years of the effective date of this act, successfully completed an educational program such as the basic fire prevention code course offered by the Building Officials and Code Administrators International or a recognized equivalent, a fire prevention course offered by an institution of higher education or recognized fire school which has been approved by the commissioner.”

This column is for informational purposes only, and is not intended as legal advice.

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