One change will allow officers more discretion in issuing citations
With only 32 payments made — and one case ending in community service — following the Sarasota Police Department’s issuance of 251 civil citations for marijuana possession in more than three years, the Sarasota City Commission unanimously has agreed to changes in a city program that a prior commission implemented in 2019.
The data that was the focus of the board’s May 15 discussion was collected between Jan. 1, 2021 and Feb. 4 of this year, documents in the meeting packet noted.
Approving a motion made by Vice Mayor Liz Alpert, the current commissioners directed staff to revise the Cannabis Civil Citation Program ordinance and bring it back to them for consideration and a vote. One of the changes will be to give police officers more discretion in writing citations.
Referencing the number of payments of fines over the three-year period, Vicki D. Lachman, chair of the city’s Independent Police Advisory Panel (IPAP), pointed out to the commissioners, “That is a compliance rate of 13%.” She added, “We became really troubled by this.” As a result, Lachman continued, the panel members decided to collect more data, with their review of the results leading to the presentation that day.
The ordinance that the City Commission approved on Sept. 3, 2019 called for possession of 20 grams or less cannabis — intended only for personal consumption — and possession of “cannabis paraphernalia” — as defined in state law — to “be punishable by a civil penalty (under certain qualifying conditions) rather than by a misdemeanor criminal offense,” as the city staff agenda request form for May 15 explained the it. To be eligible for the program, an individual must be 18 or older.
Further, the ordinance states that a person must not be “ingesting, inhaling, vaping, smoking, consuming or otherwise introducing cannabis into the human body, or in possession of burnt cannabis, on any public property or on any private property held open to the public.”
Violators are required to pay a $100 fine or perform 10 hours of community service for an organization that has city approval; either the payment or the community service must take place within 60 days of the violation.
Additionally, an individual who desires to appeal the citation has 10 days to deliver such notice to the clerk of the Special Magistrate who handles such cases, the law points out.
As part of Alpert’s May 15 motion, the commissioners also directed staff to ensure that the revised ordinance will require a person receiving such a citation to provide identification to the law enforcement officer writing the citation.
Commissioner Debbie Trice was the first to raise that issue, citing information provided in a Police Department document that was part of the backup agenda materials for the discussion. That section of the report said, “If the subject refuses to sufficiently identify themselves or sign the citation, the officer will proceed with issuing the citation to a John or Jane Doe and/or indicate the refusal to sign.”
“Is [the citation] automatically unenforceable because you don’t know who the person is?” Trice asked.
“Yes, ma’am,” responded Sarasota Police Department Patrol Capt. Robert Armstrong.
“Is that one of the major issues of why these [citations] aren’t enforced?” Trice then asked.
“Yes,” Armstrong replied, “They really don’t have to give us their information at all, so we’re basically giving them a piece of paper that they don’t even have to pay.” Even when individuals provide names, he added, officers have no way of knowing whether those names are correct.
The city ordinance has no provision for follow-up to determine whether the information provided to an officer is correct, Mike Motafches, the Police Department’s civilian investigator, pointed out.
Later during the discussion, Alpert said, “I guess I don’t understand why you don’t have to get their identification.”
City Manager Marlon Brown explained, “It was a commission decision not to require identification. … If you’ll recall, a previous commissioner who basically advocated for this [Civil Citation Program] was instrumental in terms of helping the commission to make this as less severe as possible.”
Brown was referring to Hagen Brody, who chose not to seek re-election to the City Commission in 2022. Trice ended up winning his seat.
Brown pointed out, “That ordinance is ripe for amending and revising. It really needs work.”
“I think that’s ludicrous, that they don’t have to ID themselves,” Alpert responded.
Tweaking the process
During her May 15 remarks, Lachman of the IPAP noted that 39 states have legalized medical marijuana, and 21 have made recreational marijuana legal. In approving the Cannabis Civil Citation Program, she told the commissioners, “You chose to ride the horse in the direction it’s going, which is not to penalize people who have 20 grams or less.”
She added, “We believe that the police officers on the street are the ones to determine what, in fact, should be done.”
Education about using discretion in issuing citations can be accomplished in shift briefings for members of the Patrol Division, Lachman pointed out. “It wouldn’t require more training than that.”
Further, the IPAP recommends that the program penalties remain the same, except for raising the fine to $200, if a person previously has been issued one of the citations, she said.
In researching how other jurisdictions handle such programs, Lachman told the commissioners that the IPAP members learned that other cities increase the penalty for subsequent citations.
Among the details that the IPAP provided about its research, it reported that the City of Tampa, for example, penalizes a person $75 for a first offense; $150, for a second offense; $300, for a third offense; and $450, for a fourth or subsequent offense.
Orlando imposes a $100 penalty for a first offense and $200 for a subsequent offense, the IPAP document noted.
Moreover, Lachman said, the IPAP members agreed that no individual should be eligible for another civil citation through the program if that person previously was cited and failed to pay the penalty or perform community service.
“What we want,” she added, “is enforcement of the law you put on the books.” Payment of penalties, Lachman noted, could be handled by a collection agency, and the commissioners also could consider imposing additional fees.
Finally, Lachman emphasized leaving the issuance of citations to police officers’ discretion.
In February 2020, after Police Chief Bernadette DiPino resigned, the new chief, James Rieser, and Mike Harrell, the department’s civilian narcotics investigator, who was overseeing the cannabis program, appeared before the commissioners to report that, during a review of the initiative, they found — as Rieser put it — “This program was not put out as intended.”
An October 2019 Sarasota Police Department General Order included in the commission’s agenda packet that day said this of the program: “It is the policy of the [department] that officers will use discretion in cases of misdemeanor possession of cannabis and paraphernalia and do so in a manner consistent with legal, ethical and moral constraints and policy restrictions.”
The General Order added, “The decision of whether to proceed with arrest under the state statute or with citation under ordinance can only be made after completion of the full investigation and lawful search.”
“I think we need to add consequences … for people not identifying themselves, for people not paying the fines, people not doing the community service hours,” Commissioner Erik Arroyo said. “And, of course, give officers some discretion, as well …”
Commissioners Trice and Arroyo also asked about the recommendation for using a collection agency to ensure that citations are paid.
Is it possible, Trice asked, to remind the individual that community service also is an option? “I just want to throw that out.”
When Arroyo asked whether a collection agency is being used already when payments are not made, Assistant City Attorney Joe Polzak responded that he believes a mechanism for that action exists within the criminal justice system, perhaps through the Office of the Sarasota County Clerk of the Circuit Court and County Comptroller.
“We would work that out,” Polzak added, referring to the revised ordinance.