Leon County Board of County Commissioners
March 22, 2022
Click Here For a pdf Version of the Agenda
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To: |
Honorable Chairman and Members of the Board |
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From: |
Vincent S. Long, County Administrator |
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Title: |
Alternatives to Incarceration for the Possession of Small Amounts of Marijuana |
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Review and Approval: |
Vincent S. Long, County Administrator |
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Department/ Division Review: |
Alan Rosenzweig, Deputy County Administrator Wanda Hunter, Assistant County Administrator |
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Lead Staff/ Project Team: |
Teresa Broxton, Director, Office of Intervention and Detention Alternatives |
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Statement of Issue:
As requested by the Board at its October 12, 2021 regular meeting, this workshop item provides an overview of alternatives to incarceration for the possession of small amounts of marijuana including alternatives currently utilized in the Second Judicial Circuit.
Fiscal Impact:
This item has no fiscal impact.
Staff Recommendation:
Option # 1: Accept the report on alternatives to incarceration for the possession of small amounts of marijuana and take no further action.
Report and Discussion
Background:
As requested by the Board at its October 12, 2021 regular meeting, this workshop item provides an overview of alternatives to incarceration for the possession of small amounts of marijuana. The item begins by providing an overview of federal and state laws regulating the possession and use of marijuana for medicinal and recreational purposes, and then discusses the alternatives to incarceration for marijuana possession that are currently utilized in the Second Judicial Circuit and in other Florida jurisdictions. These alternatives generally include pre- and post-arrest diversion programs, although some Florida jurisdictions have adopted local ordinances which, in effect, decriminalize the possession of small amounts of marijuana by allowing law enforcement officers to issue a civil fine rather than making an arrest. As the item discusses in detail, the jurisdictions that have enacted such ordinances have done so with the cooperation of their local law enforcement partners and the State Attorney representing their judicial circuit.
Marijuana, Cannabis and Hemp Defined
At the federal level, “marihuana” which is otherwise spelled “marijuana” and is commonly referred to as “cannabis,” is defined as all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin; this definition does not include hemp. See 21 U.S.C. § 802(16)(A). “Hemp”, which is excluded from the definition of marijuana, is separately defined as the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis. See 21 U.S.C. § 802(16)(B), 7 U.S.C. § 1639o(1).
Under Florida law, the definition of “cannabis” is very similar to the definition of “marijuana” under federal law, i.e., cannabis is defined to mean all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. See Section 893.02(3), Florida Statutes (F.S.). Notably, this term does not include “marijuana” as defined in the Compassionate Medical Cannabis Act of 2014 (CMCA), if the marijuana is manufactured, possessed, sold, purchased, delivered, distributed, or dispensed, in conformance with the CMCA. See Section 893.02(3), F.S.
Similar to federal law, hemp and industrial hemp are specifically excluded from the definition of “cannabis” under Florida law. See Section 893.02(3), F.S. Similar to the federal definition, in Florida law “hemp” is defined to mean as the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, that has a total delta-9 THC concentration that does not exceed 0.3 percent on a dry-weight basis. See Section 581.217(3)(d), F.S. “Industrial hemp” is also separately defined to mean all parts and varieties of the cannabis sativa plant, cultivated or possessed by an approved grower under the pilot project, whether growing or not, which contain a THC concentration that does not exceed 0.3 percent on a dry-weight basis. See Section 1004.4473(1)(c), F.S.
THC, a derivative of cannabis plants, is the main psychoactive compound in marijuana or cannabis. It is the property in marijuana that makes people feel “high” when ingested or inhaled. Applicable to the permissible uses under the CMCA at the state level, “low-THC cannabis” means the plant of the genus Cannabis, the dried flowers of which contain 0.8 percent or less of THC and more than 10 percent of cannabidiol (CBD) weight for weight; the resin extracted from any part of such plant; or any compound, manufacture, salt, derivative, mixture, or preparation of such plant or its seeds or resin that is dispensed from a medical marijuana treatment center. See Section 381.986(e), F.S.
Consistencies and Inconsistencies in Federal, State, and Local Laws
Any possession or use of marihuana is illegal under federal law and is punishable under the federal Controlled Substances Act (CSA). Currently, it is generally unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized in the CSA. See 21 U.S.C. § 844(a). Marijuana is a Schedule I substance under the CSA, meaning that it is designated as a drug that has a high potential for abuse, has no currently accepted medical use in treatment in the United States, and lacks safety for use under medical supervision. See 21 U.S.C. § 812. Therefore, though the CSA provides an exception for medicinal possession of controlled substances, marihuana as a Schedule I controlled substance, by definition, possesses no accepted medical use in the United States. Under federal law, the penalty for marihuana possession is a term of imprisonment of not more than 1 year, a minimum fine of $1,000, or both, with escalating penalties for subsequent offenses. See 21 U.S.C. § 844(a).
The U.S. Food and Drug Administration (FDA) has the federal authority to approve drugs for medicinal use and to date, has concluded that marijuana has no federally approved medical use needed for treatment.
With regard to hemp, the production and sale of hemp and hemp extracts was legalized in 2018 with the enactment of the Agriculture Improvement Act of 2018, which is commonly referred to as the 2018 Farm Bill.
Likewise, “cannabis” is also classified as a Schedule I substance under Florida law. See Section 893.03(1)(c)7., F.S. A person may not be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or construction possession of a controlled substance of a controlled substance as otherwise provided in Chapter 893, Florida Statutes. See Section 893.13(6)(a), F.S. Specific to cannabis, possession of 20 grams or less is a first-degree misdemeanor punishable by up to one year in jail, a maximum fine of $1,000, or both. See Section 893.13(6)(b), F.S.
The CSA and Florida designation of marihuana/cannabis as a Schedule I substance notwithstanding, in 2014 the Florida Legislature passed Senate Bill 1030, known as the Compassionate Medical Cannabis Act of 2014 (CMCA). As amended over the years, the CMCA, which is codified in Section 381.986(2), Florida Statutes, authorizes qualified physicians to issue physician certifications for qualified patients to receive marijuana, including low-THC cannabis, or a marijuana delivery device from a medical marijuana treatment center.
Amendment 2 to the Florida Constitution, approved by Florida voters in 2016, created Florida’s medical marijuana program. This provision of the Constitution, entitled “Medical marijuana production, possession and use”, protects qualifying patients, caregivers, physicians, and medical marijuana dispensaries and their staff from criminal prosecutions or civil sanctions under Florida law, but not under federal law.
Additionally, at the local level in Florida, a number communities have adopted ordinances imposing civil fines as the penalty for possession of small quantities of marijuana.
In summary, marijuana remains a Schedule I controlled substance under federal law. Accordingly, regardless of any state or local law declaring marijuana possession or use to be legal or subject to a civil fine in that jurisdiction, under Article VI of the United States Constitution, federal law pre-empts state and local law. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. Gonzales v. Raich, 545 U.S. 1, 29 (2005). Fundamentally, any possession, in any quantity, or use of marijuana is illegal and a crime.
Enforcement
At the federal level, the government has at times deferred to individual states to enforce marijuana law violations except in certain specific circumstances, such as situations involving drug cartel involvement, violence, and cultivation on federal or state public lands. That was the case in 2013. However, this policy of deferment was rescinded in 2018 under the Trump administration. Under the current administration, U.S. Attorney General Merrick Garland has publicly stated that the U.S. Department of Justice will adopt a policy to not pursue cases against those complying with the laws in states that have legalized and are effectively regulating marijuana, and institute a policy analogous to the policy adopted from 2013 to 2018. Thus, the federal government has exercised its discretion over time about the manner in which it enforces the CSA specific to marijuana.
Ultimately, as stated above, the CSA and its penalties preempt state or local laws that purport to decriminalize the possession of marihuana, The U.S. Supreme Court confirmed this to be true in Gonzales v. Raich, 545 U.S. 1, 17 (2005), by holding that the CSA provisions criminalizing the manufacture, distribution, or possession of marijuana to intrastate California growers and users of marijuana for medical purposes, did not violate the Commerce Clause, which grants Congress power to regulate purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce.
In an effort to offer communities an alternative to arrest and incarceration, in 2018 the Florida Legislature enacted a model pre-arrest diversion program (Model Program). See Section 901.41, F.S. The legislation was enacted to authorize and encourage local communities and public or private educational institutions to implement adult pre-arrest diversion programs for certain misdemeanor nonviolent offenses, including possession of 20 grams or less of marijuana. The legislation does not mandate that a particular pre-arrest diversion program for adults be adopted but found that the Model Program to be discussed later in the analysis afforded certain adults the opportunity to avoid an arrest record while ensuring that they receive appropriate services and fulfill their community service obligations for violating the law.
At the state and local levels, law enforcement officers exercise discretion regarding how to handle alleged violations of the law in the course of their investigations. Florida law expressly provides that a law enforcement officer may arrest without a warrant any person who the officer has probable cause to believe is violating Chapter 893, Florida Statutes, relating to possession of cannabis. See Section 893.13(6)(e), F.S. Accordingly, depending on the circumstances of the encounter with an offender in possession of marijuana, law enforcement may choose to issue a warning, issue a formal notice to appear before some other authority, or execute an arrest.
Further, the State Attorney for each jurisdiction evaluates evidence related to allegations of criminal misconduct on a case-by-case basis and exercises discretion in determining whether to dismiss charges, refer a case to diversion, or proceed with prosecution.
When the 2018 Farm Bill became law, Florida lacked sufficient laboratories with tools necessary to test the level of THC present in a cannabinoid-based substance. As a result, in the absence of a confession, law enforcement could not differentiate between hemp and marijuana. In light of these circumstances, in July 2019, the State Attorney for the Second Judicial Circuit (State Attorney) issued a memorandum to law enforcement agencies within the Second Circuit, informing them that his office would suspend prosecuting possession of marijuana cases. Since that time, however, the Florida Department of Law Enforcement (FDLE) has acquired the necessary authorization and tools to test cannabis-based plants for the THC level, and the State Attorney has resumed his duty of prosecuting those arrested for marijuana possession.
During the September 17, 2019 meeting, the Board received a status report on Leon County’s Adult Civil Citation (ACC) program, which included an overview of how the possession of small quantities of marijuana is treated within the ACC program. In addition, as requested by the Board, the status report also provided information regarding the legal and regulatory framework surrounding cannabis, including the medical use of marijuana in Florida, the rise in use and popularity of cannabidiol (“CBD”) products, the distinction between industrial hemp and marijuana, and the status of efforts throughout the State and nation to decriminalize the personal possession of small quantities of marijuana. Following discussion on the status report, the Board directed staff to prepare a draft ordinance to provide civil penalties for misdemeanor marijuana possession offenses, and to solicit input from the State Attorney and local law enforcement agencies regarding the ordinance as well as their willingness to participate. The Board considered but did not approve that draft ordinance during the October 15, 2019 meeting.
Analysis:
The analysis section of this item provides an overview of state, federal and local laws governing marijuana possession, as well as alternatives to incarceration for marijuana possession that are currently utilized in the Second Judicial Circuit and in other Florida jurisdictions. This section also includes a discussion regarding arrests for marijuana possession that have occurred over the past three years in Leon County and the disposition of those cases. Of note, and as discussed in greater detail below, there is no one currently detained in the Leon County Detention Facility on a first-time charge of possession of 20 grams or less of marijuana. This is principally due to the success of the existing post-arrest diversion program utilized in the Second Judicial Circuit.
Overview of Alternatives to Incarceration for Marijuana Possession:
Alternatives to incarceration are intended to reduce criminal prosecution, limit the use of incarceration as a punishment, or decrease the time of incarceration for individuals who have committed offenses, particularly low-level offenses. This item refers to the various alternatives to incarceration at three stages: (1) Pre-arrest measures taken prior to the opening of a criminal procedure aimed at limiting entry into the criminal justice system; (2) Post-arrest measures applied after arrest during the criminal process and aimed at preventing the case from resulting in incarceration as the penalty; and (3) Efforts to decriminalize possession of small amounts of marijuana through the adoption of local ordinances reducing the offense to a civil fine.
As discussed in greater detail below, it is important to note that a review of the jail population from January 2019 through February 2022 found no person detained in the Leon County Detention Facility with only a misdemeanor possession of marijuana charge. The State Attorney states that it has been years since anyone was incarcerated for a simple possession of marijuana charge, and that the Post-Arrest Diversion Program is utilized for all eligible first-time offenders arrested for possession of 20 grams or less of marijuana as discussed later in this item.
Alternatives Limiting Entry into the Criminal Justice System – Pre-arrest
Pre-arrest diversion programs, sometimes referred to as civil citation programs, target first-time offenders of nonviolent crimes by essentially removing incarceration as a punishment. Pre-arrest programs allow participants to avoid a criminal record since no arrest is involved. Upon contact with law enforcement, first-time offenders must admit their crime and agree to participate in the pre-arrest diversion program. The offender may be issued a notice to report to the program location and required to pay a fee. In most communities, participants can perform community service hours if they are unable to pay the fee. Participants are then diverted to rehabilitative measures such as community service and/or counseling or treatment, if necessary. After successful completion of the program, any public record of the offense is disposed.
As previously noted in the background, the Model Program was created to encourage jurisdictions to implement adult pre-arrest diversion programs as an additional tool for law enforcement to minimize arrests and incarceration. The Statute describes a “Model Pre-arrest Diversion Program” as follows:
Under the Model Program structure, “an adult who receives a civil citation or similar pre-arrest diversion program notice shall report for intake as required by the local pre-arrest diversion program and must be provided appropriate assessment, intervention, education, and behavioral health care services by the program. While in the local pre-arrest diversion program, the adult shall perform community service hours as specified by the program. The adult shall pay restitution due to the victim as a program requirement. If the adult does not successfully complete the pre-arrest diversion program, the law enforcement officer must determine if there is good cause to arrest the adult for the original misdemeanor offense and, if so, refer the case to the state attorney to determine whether prosecution is appropriate or, in the absence of a finding of good cause, allow the adult to continue in the program.”
Pre-arrest Diversion Programs Available in the Second Judicial Circuit
Prior to the adoption of state legislation in 2018 encouraging communities to adopt adult pre-arrest diversion programs, Leon County and various criminal justice stakeholders including the State Attorney, Public Defender, the Smart Justice Alliance ( a local justice reform advocacy group), the Leon County Sheriff (LCSO), the Tallahassee Police Department (TPD) and Court Administration supported an Adult Civil Citation (ACC) Program from 2013 – 2017. The ACC Program was administered through a community-based substance abuse service provider, Disc Village, Inc. Criteria for participation required a referral from the arresting law enforcement officer. If the law enforcement officer determined the person was an eligible candidate, participants could avoid the full effects of criminal prosecution by paying a fee, attending substance abuse counseling, and submitting to periodic drug testing. After successful completion of the ACC Program, the participant’s record was disposed. If the participant failed to complete the ACC Program, the incident was referred to the State Attorney for prosecution. In late, 2017 the State Attorney requested a meeting with all stakeholders in the process and expressed several concerns about the ACC Program including the following:
Considering the concerns noted by the State Attorney, in late 2017 the ACC Program was revamped and relaunched under the administration of the State Attorney. The State Attorney executed a Memorandum of Understanding with 21 law enforcement agencies throughout the Second Judicial Circuit, including TPD and the LCSO, as well as educational institutions, Tallahassee Community College (TCC), Florida A&M University (FAMU), and Florida State University (FSU), offering a Pre-arrest Diversion Program (Attachment # 1) as an additional law enforcement tool (Current Program). The State Attorney operates the Current Program at no cost to the County. The State Attorney has indicated that although the Current Program is available, law enforcement officers submit very few referrals to the program and none for marijuana possession. The occasional referrals his office receives are for first-time incidents of petty theft.
Law enforcement may refer first-time offenders to the Current Program for a variety of misdemeanor nonviolent offenses, including possession of 20 grams or less of marijuana. An officer may indicate in the probable cause affidavit or sworn report, that the offender should be granted diversion rather than criminal arrest. The offender is provided an information sheet from the officer and told to appear at the State Attorney’s Office within four weeks of the offense. If the prosecutor determines that diversion is appropriate, the case is referred to the State Attorney’s Diversion Coordinator. Each offender is provided written notice of the Current Program requirements which include financial requirements and costs, and additional sanctions, if applicable. The offender is also notified of his or her legal rights and given the option to have the case transferred for traditional prosecution. Upon successful completion of the Current Program, the State Attorney will essentially “drop the charges.” The legal terminology for this action is reflected in the public record as “no information filed” if an arrest was executed or a notice to appear was issued. The law enforcement agency that initiated the action is also notified of the resolution of the case, whether a physical arrest was made or not.
In discussing the lack of use of the Current Program with law enforcement representatives from the TPD and LCSO, both indicated they are aware of the Current Program. As a matter of protocol, to ensure consistency, TPD defers to its General Orders on Arrests and Alternative to Arrest for guidance to officers when encountering a person accused of committing an offense (Attachment #2). LCSO could not speak to how often the Current Program is utilized but committed to reminding officers of its availability. He also provided a copy of his office’s General Order, 74.3 which outlines arrest procedures (Attachment #3).
The educational institutions (TCC, FAMU and FSU) also entered a Memorandum of Understanding with the State Attorney for the Current Program. However, each institution maintains its own internal Student Code of Conduct policies and procedures relating to marijuana possession and other offenses that may occur on campus. In the most recent communication with these entities, each indicated that they are aware of the Current Program, but generally defer to their respective internal policy for student matters that occur on campus.
Juvenile civil citation programs are also a popular tool among Florida’s school resource officers and other law enforcement agencies to address youth involved in low-level criminal offenses. A juvenile pre-arrest diversion program has been operating in Leon County for more than a decade. Pursuant to Section 985.12, F.S., the Juvenile Civil Citation Program (Juvenile Program) is administered by the Department of Juvenile Justice (DJJ). The Juvenile Program offers youth charged with a first-time offense such as theft (under $300), disorderly conduct or possession of a small amount of marijuana (less than 20 grams), an alternative to arrest, that does not leave the juvenile’s record accessible by the public. To participate in the Juvenile Program the youth and parent or guardian must sign the civil citation agreement, must perform a designated number of community service hours, and depending on the offense, must complete other sanctions which may include payment of restitution, counseling, or drug treatment. Upon successful completion, any record of the youth’s participation in the Juvenile Program is sealed and can only be accessed through a court order.
In response to staff’s inquiry, the Chief Juvenile Probation Officer for the Second Judicial Circuit, who has oversight for the Juvenile Program, shared that law enforcement officers in Leon County are utilizing the Juvenile Program. Last year 63 youth successfully completed the Juvenile Program with referrals from both the LCSO and the TPD.
Pre-arrest Diversion Programs in Other Jurisdictions
The Pinellas County Sheriff, the Hillsborough County Sheriff, and the City of Miami Gardens Police Department are among many Florida counties that operate an adult pre-arrest diversion program for the purpose of diverting first-time, nonviolent misdemeanor offenders from incarceration. According to the information available on their respective websites, participants of the program may be issued a civil citation (notice to report to the program location), are required to pay a fee, and are then diverted to rehabilitative measures such as community service and/or counseling and treatment, and restitution, if necessary. All records of an offense are maintained in the law enforcement electronic database. No criminal record is created. If participants are unsuccessful, the offense is referred to the State Attorney for prosecution.
Staff contacted each of the agencies mentioned above to inquire about the use and effectiveness of the programs. At the time this item was finalized for publication, only the Pinellas County Sheriff had responded. The Pinellas County Sheriff’s Diversion Program Coordinator shared that the Program is “very effective.” The Sheriff was able to secure the cooperation of municipal law enforcement agencies in the surrounding cities to ensure that the program is utilized not only in the unincorporated areas but within city limits as well. The Program has been used to eliminate arrests for several first-time offenders and can be used for some second- and third-time offenders. Participants may be offered diversion no more than three times during their lifetime. The record of participation in the diversion program is maintained in the law enforcement database and thereby, no record of criminal history is created for public record. In 2020 alone, 594 people successfully completed pre-arrest diversion, 60 of which were for possession of 20 grams or less of marijuana
Alternatives Applied After Arrest Aimed at Preventing the Case from Resulting in Incarceration
The State Attorney has operated a Post-Arrest Diversion Program for more than 20 years (since October 1995). The Post-Arrest Diversion Program accepts first-time offenders and some repeat offenders of misdemeanor nonviolent law violations, including those charged with possession of small amounts of marijuana. Generally, upon making contact with a first-time offender in possession of 20 grams or less of marijuana (a misdemeanor offense), a law enforcement officer may issue a “notice to appear” in lieu of making a physical arrest. A notice to appear is a written order issued by a law enforcement officer in lieu of physical arrest requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time. Following the issuance of a notice to appear, the State Attorney’s Office will contact with the offender to discuss their potential participation in the Diversion Program.
A $100 fee is required to offset the administrative costs associated with operating the Program. Defendants who cannot afford to pay the fee may apply for a scholarship to have the fees paid by the State Attorney’s Office. Participants may avoid prosecution by completing 15 hours of community service with a nonprofit charity of their choice, and, if applicable, successfully completing drug screening within 90 days of a drug-related offense, to have the charge dismissed. Over the past three years, more than 250 offenders who had a misdemeanor marijuana charge and had no significant criminal history were offered post-arrest diversion or had their charges dismissed. Upon successful completion of this Program, the Diversion Program Coordinator provides participants with information detailing the steps that must be taken to have an arrest record sealed or expunged. As requested by the Board, the records expungement process is discussed in more detail later in the Analysis section of this item.
Felony Drug Treatment Court is another post-arrest alternative to incarceration available for persons who reside within the Second Judicial Circuit, charged with illicit drug crimes. Criteria for participation include the following:
After arrest, the State Attorney assigned to the case may offer Drug Treatment Court. To be eligible for the program, the defense attorney must submit a completed Drug Court referral form to the Court’s Criminal Case Management Unit. Thereafter, the referral form is sent to the treatment provider who completes an assessment of the participant. If the assessment determines that the defendant needs substance abuse treatment, both the State and the defendant enter into a contract stipulating to the terms and conditions of Drug Treatment Court. Felony Drug Court participants are supervised by a Department of Corrections Probation Officer. Drug Treatment Court is a 12-month intensive treatment program. The three-phase program includes, but is not limited to regular urinalysis, individual therapy, group therapy, relapse therapy and regular status updates to the Court. As a result of the pandemic, Drug Treatment Court has not been fully operational since 2019 when 16 people participated and graduated from the Program. Participants who successfully complete the Program have the charge(s) dismissed at graduation.
Although several pre- and post-arrest alternatives are in place to address nonviolent misdemeanor offenses, including possession of marijuana, several cities and counties have taken measures to advance marijuana reform by enacting ordinances that give law enforcement officers the discretion to impose civil penalties for most misdemeanor marijuana offenses. To frame the narrative which follows in the analysis below, it is important to note that most of the ordinances discussed were enacted with the support of the circuit-wide State Attorney and the local law enforcement agencies.
Further, none of the ordinances have been challenged legally. The use and possession of marijuana remains a violation of state and federal law, with an exception for medical use under state law as previously outlined.
Efforts to “Decriminalize” Possession of Small Amounts of Marijuana
Since 2015 more than 15 Florida counties and cities have adopted ordinances that give law enforcement the discretion to issue a civil citation resulting in a fine for the use and possession of small amounts of marijuana. In many jurisdictions, the penalty for possession of 20 grams or less of marijuana can result in a fine up to $155 for the first offense. In some communities that authorize the use of civil penalties for subsequent offenses of possession, like the City of Tampa, law enforcement may impose up to a maximum $450 fine for the fourth offense. In other communities, like Alachua County, the fine for the first and second offense is $150; however, with the third offense the fine increases to $200 and the person must be screened to determine if drug treatment is needed. The Orlando ordinance gives law enforcement the discretion to impose a $100 fine for the first offense and a $200 fine for a second offense. Those who cannot afford the fine, may perform community service or participate in an educational course explaining the negative impacts of illicit drug use.
Jurisdictions that have adopted such ordinances argue that the criminal penalty for such an offense is often disproportionate to the severity of the offense and believe that a civil penalty is more commensurate with any social harm caused by possessing a small amount of marijuana. Moreover, they contend that imposition of a civil penalty enables costly criminal justice resources to be used to address the most critical public safety issues in the community.
The Leon County Board of County Commissioners considered drafting an ordinance to provide a civil penalty for misdemeanor marijuana possession offenses at its October 15, 2019 meeting, but voted at that time to take no action. At that same time, the State Attorney expressed his opposition to such an ordinance in Leon County, since misdemeanor marijuana possession remains a criminal offense under both federal and state laws, and the State Attorney considers that any local ordinance intending to decriminalize marijuana would be null and void and would not preclude prosecution. Should the Board choose to again consider an ordinance granting law enforcement the discretion to impose civil fines for possession of small amounts of marijuana, staff will provide a follow-up agenda item for consideration of a proposed ordinance structure, and outline the process and costs that may be associated with the implementation of such an ordinance. Such an ordinance would provide law enforcement with an additional tool they may use at its discretion.
The State Attorney for the Second Judicial Circuit maintains his position that he is opposed to such an ordinance. In addition, the County has no operational authority over law enforcement agencies and cannot require them to enforce the ordinance, but merely offer the ordinance as an additional pre-arrest tool to use at their discretion. In reaching out to the LCSO to prepare this item, the Sheriff stated that he is open to discussions regarding the issuance of a citation imposing a civil fine for this offense. The City of Tallahassee has indicated that if the Board enacts an ordinance, law enforcement may exercise discretion to utilize it as they do with any other pre-arrest tool; however, law enforcement officers are not required to enforce the ordinance.
As previously noted, some local governments in Florida have adopted ordinances providing for civil penalties for possession of small amounts of marijuana. Marijuana possession remains a criminal offense under federal and state law except as previously discussed and as such offenders are potentially subject to criminal prosecution. If challenged, an ordinance adopted by a local government to decriminalize misdemeanor marijuana possession by reducing the offense to a civil penalty may be ruled invalid. In jurisdictions that have adopted ordinances providing for civil fines in lieu of a criminal charge, the respective State Attorney still has the authority to prosecute persons charged with marijuana possession.
Expungement of Criminal Records
As requested by the Board, this section provides an explanation of the record expungement process as well as an explanation of Leon County’s pre-employment and random drug screening processes. Many people are concerned about the implications of a minor criminal offense record, including the impact that a charge for marijuana possession may have for them when seeking employment. Like Leon County government, many employers that hire people to fill safety sensitive positions such as paramedics and CDL operators, are mandated by state and federal law to require pre-employment and random drug screening for those positions. Leon County does not require drug testing for any other positions. In addition, for participants of pre-arrest diversion programs the process includes removal of the criminal record. Persons who are prosecuted for minor criminal offenses may file a request to have such record expunged.
In accordance with Section 943.045, F.S., “a criminal history record is created when a person is arrested and fingerprinted and includes the disposition of any charges stemming from the arrest whether it is an adjudication of guilt or the withholding of adjudication, acquittal, or dismissal of charges before trial or other disposition.” Adult and juvenile offenders may apply to the Florida Department of Law Enforcement (FDLE) to request criminal records be sealed or expunged, and the applicable Court has the authority to order the criminal record sealed or expunged. A person seeking expungement of a criminal record must first apply for a Certificate of Eligibility to determine whether the record is statutorily eligible for sealing or expungement. When a criminal history record is sealed or expunged, the public will not have access to the record; however, certain governmental or related entities have access to sealed record information. When a record has been expunged, most entities cannot have access to the record without a court order.
Conclusion
There are several existing programs that offer law enforcement tools to address minor nonviolent misdemeanor offenses like possession of small amounts of marijuana. The State Attorney offers an adult pre-arrest and post-arrest diversion program to be used at the discretion of law enforcement, as an alternative to incarceration for persons who commit minor nonviolent misdemeanor offenses. In addition, a Juvenile Civil Citation Program is in place for youth charged with a first-time offense of marijuana possession or other minor offense. Such programs include drug treatment and counseling and other rehabilitative measures.
A review of the jail population from January 2019 through February 2022 found no persons detained in the Leon County Detention Facility with only a misdemeanor possession of marijuana charge, and the State Attorney contends that it has years since anyone has been incarcerated for a simple possession of marijuana charge. The State Attorney states that all eligible first-time offenders arrested for possession of 20 grams or less of marijuana are referred to the Post- Arrest Diversion Program. Further, the State Attorney maintains sole discretion to dismiss, divert or prosecute any law violation.
A variety of tools are available to law enforcement as alternatives to incarceration, including issuing a warning, a pre-arrest diversion referral, or a Notice to Appear. These options notwithstanding, the State Attorney has reported that the Pre-arrest Diversion Program is seldom used. An Ordinance providing for civil fine in lieu of criminal penalty for possession of small quantities of marijuana would be another tool available to law enforcement to use at their discretion.
Other communities in Florida (as many as 15 to date) have adopted ordinances that enables law enforcement to issue a civil citation with a civil penalty for violation of small amounts of marijuana. However, any possession or use of marijuana is a violation of federal law and state law (except as permitted for medical use) and as such, violators are subject to criminal prosecution. The State Attorney was opposed to the adoption of such an ordinance when the Board considered the concept in 2019, since misdemeanor marijuana possession remains a criminal offense under both federal and state laws, and the State Attorney considers that any local ordinance intending to decriminalize marijuana would be null and void and would not preclude prosecution. The State Attorney maintains his opposition to any ordinance that attempts to decriminalizing marijuana possession by characterizing the offense as a civil infraction and imposing a civil fine. As previously stated, the Leon County Sheriff is open to discussing a proposed ordinance should the Board choose to move forward with such a proposed ordinance.
Options:
Recommendation:
Option #1
Attachments: