Civil citations for possession of less than 20 grams of recreational marijuana to go into effect in City of Sarasota in 90 days

City Commission approves ordinance on second reading

The City Commission sits in session on Sept. 17, 2018. File photo

With another unanimous vote this week, the Sarasota City Commission changed city regulations to require the issuance of a civil citation only for possession of less than 20 grams of cannabis or possession of cannabis paraphernalia.

The individual would have to be at least 18 years old. Anyone under that age found with small amounts of cannabis or cannabis paraphernalia would remain eligible for jail diversion through the 12th Judicial Circuit’s Teen Court program, the new law says.

As part of the Sept. 3 motion made by Commissioner Hagen Brody, the board members also agreed to strike two provisions that were included in the proposed ordinance. One would have made the civil citation possible only for a person who previously had not been charged with possession of recreational marijuana, unless the violation had been dismissed. The other line the board struck would have allowed the use of the citation only in cases when the individual “was not committing any other criminal offense at the time of violation.”

A person found in violation of the new city ordinance will be required to pay a $100 fine or complete 10 hours of community service, within 60 days, for an organization approved by the city.

A person also would have the right to appeal the civil citation but would have to do so within 10 days of the incident.

The ordinance will go into effect 90 days from Sept. 3.

Brody was the board member who proposed the change in city law. He made a presentation to his colleagues on March 18, winning their agreement to direct the City Attorney’s Office to draft an ordinance for the civil citation program.

During debate of the two ordinance provisions ultimately eliminated on Sept. 3, Brody pointed out, “No. 5 … somehow ended up in here and waters this … down.” He was referring to the paragraph saying that a person could be given a civil citation only once under the program’s guidelines. “The intention of this is to decriminalize [possessions of small amounts of recreational marijuana]. This is as far as we can go as a municipality.”

Assistant City Attorney Joe Mladinich addresses the City Commission. News Leader image

Assistant City Attorney Joe Mladinich, who had worked on the draft of the ordinance, referred to that section as a “One and Done Rule.”

He had discussed the issue with Sarasota Police Chief Bernadette DiPino, Brody continued, and she had told him she would be comfortable with the elimination of that section of the proposed ordinance.

“To be perfectly honest, “I could see [No.] 6 go, too,” Brody said of the section regarding whether the individual was committing another other criminal offense at the same time the cannabis violation was discovered.

Commissioner Shelli Freeland Eddie stressed that she was more concerned about No. 6 than No. 5. In many situations, she said, an officer simply could be stopping a person for a driving violation, such as lack of a valid license or a headlight problem. Even if the individual had no prior drug offenses, she continued, the person could end up with a civil citation for marijuana possession.

“We need this [law] to be as flexible as possible,” Freeland Eddie added.

Lt. Jason Reed of the Sarasota Police Department indicated that, if the ordinance won final approval, Chief DiPino would make it clear through training and written guidelines that if an officer found that all six factors enumerated in the ordinance applied to a case, then “the person shallget the civil citation”; an officer would have no discretion to proceed otherwise.

“It’s coming from the top,” he added of the standard operating procedures for issuing the citations. “I have five pages of details,” he emphasized, which “take the subjectivity out of it.”

The department “is fully prepared,” he assured the commission, to issue the citations and provide instructions to the violators on how to resolve the case.

Freeland Eddie further cited her desire to make certain that the civil citation program is “equally enforced around the city.”

Privacy issues

During the discussion, Freeland Eddie also voiced concern about an issue Mladinich had brought up earlier: The Florida Secretary of State requires that public records be retained for five years. Therefore, Mladinich explained, the city would be required to keep for five years a list of all those persons who had received a civil citation for marijuana possession, so an officer could reference that list. That would ensure compliance with the section of the ordinance allowing a civil citation to be issued only once for cannabis possession.

This is a cannabis sativa leaf. Image from Wikimedia Commons

Freeland Eddie pointed out that a person could obtain the names on that list through a public records request. As an attorney, she made it clear that she is aware of how often employers and landlords, for examples, check files of the Sarasota County Clerk of the Circuit Court and County Comptroller to determine whether applicants have criminal records. “They may decide that that person is a risk,” she said of employers and others. “It undoes everything that we’re trying to do.”

Mladinich responded that city staff could ensure that the records were destroyed as soon as they hit the five-year mark.

Freeland Eddie countered that she was asking whether the names could be kept secret, perhaps linked to numbers on a list. “You could be creative.”

Even if numbers were used instead of names, Mladinich told Freeland Eddie, “That master list would still be a public record. … We do at some point have to identify the individual.”

“The record has to be there,” City Attorney Robert Fournier concurred, referencing the state law. “But don’t overlook the point that [the possession violation] is not a crime anymore.”

Fournier then suggested, “I think that the best we can do … is delete No. 5.”

If the commission took that step, Mayor Liz Alpert asked how an officer would be able to determine whether a person had been cited before under the program guidelines.

“It wouldn’t matter,” Fournier responded.

After further discussion, Brody told his colleagues, “I just think that in the spirit of this, we should pass it without [Nos.] 5 or 6 completely.”

When Commissioner Willie Shaw asked whether Brody was making that a motion, Brody affirmed that intention.

Shaw seconded the motion.

Sarasota Police Chief Bernadette DiPino. Photo courtesy Sarasota Police Department

Prior to the vote, Brody extended his thanks to the Police Department and the City Attorney’s Office staff members for all their work on drafting the ordinance.

After that motion passed, Freeland Eddie made a separate motion, calling for the Police Department and the City Attorney’s Office to collaborate on an annual report to the commission that provides details about the number of individuals cited under the program, the zip code for each and information about individuals who did not complete the requirements of the penalty section. That also passed unanimously.

Lt. Reed earlier had explained that the department policy associated with the program called for an annual report on the violations. The information would go to Chief DiPino and to the city’s Police Advisory Panel.

City Manager Tom Barwin added that he would make certain the commissioners received copies.

Yet, Freeland Eddie said she wanted assurance that the commissioners would see the report. Therefore, Fournier suggested she put that direction in a separate motion.