Use of civil citations in lieu of criminal charges for possession of small amounts of marijuana to be focus of proposed new City of Sarasota ordinance

Commissioner Brody wins unanimous support of his colleagues in directing city attorney to draft regulations

Commissioner Hagen Brody. File photo

Sarasota City Commissioner Hagen Brody won unanimous support of his colleagues this week for his proposal that civil citations should be an option, instead of criminal charges, in cases when law enforcement officers are dealing with individuals possessing less than 20 grams of marijuana and cannabis paraphernalia.

On a motion by Brody, seconded by Commissioner Shelli Freeland Eddie, the board directed City Attorney Robert Fournier to draft an ordinance for their consideration.

Freeland Eddie asked that it be an initial step for the commission, citing other offenses for which civil citations could be used, based on a state statute.

“I think marijuana possession and paraphernalia is a good start,” Brody responded. Then, if the civil citations work well with those cases, he continued, the commission could consider adding other offenses to the ordinance.

He added that he had not talked with law enforcement officers about any issues under the applicable state statute except marijuana.

Further, Brody explained that the state statute on which the city ordinance would be based enables law enforcement officers to exercise their discretion in the handling of situations. “What I’m proposing is as far as we can go as a municipality …”

Nonetheless, Freeland Eddie said she hoped the proposed marijuana ordinance would “include criteria” and not focus solely on the discretion aspect.

Mayor Liz Alpert also advocated for the ordinance to include criteria for use of the civil citations.

Public Defender Larry Eger of the 12th Judicial Circuit told Alpert that the ordinance “may well be able to articulate [criteria],” but enforcement would be the question.

“Discretion is not always a bad thing,” Brody said. “We just want to make sure that [the ordinance] implemented fairly.”

The commissioners concurred that, if they end up approving the new law, they would like for data to be collected about the issuance of the civil citations. Freeland Eddie and Commissioner Willie Shaw, especially, talked of the need to ensure that minorities have equal opportunity to receive civil citations in lieu of criminal charges.

Freeland Eddie further cited her desire for a review of data involving traffic stops, as most marijuana possession charges result from such incidents, she said.

Like Brody and Alpert, Freeland Eddie is an attorney.

Commissioner Willie Shaw. News Leader image

“Jails are full of us,” Commissioner Shaw said, adding that he was speaking of “people of color.”

Moira DeSear of Sarasota, secretary of the American Civil Liberties Union (ACLU) Chapter of Sarasota, pointed out during public comments that national statistics have shown that “a person of color is about four times more likely to be arrested for cannabis than a Caucasian.”

Trevor Harvey of Sarasota, president of the community NAACP chapter, also voiced support for the proposed ordinance. The NAACP, he pointed out, “has been on the forefront of many of these issues for our 110-year existence.”

Eger added that he would like to see the use of civil citations eventually implemented countywide.

As for Shaw’s comments: Eger noted the “disproportionate minority contact” evidenced by arrest data. “None of us are strangers to that phenomenon.” The data collection the city commissioners called for, Eger continued, should include information about the geographic areas where the citations are issued.

Advocating the change

Trevor Harvey of the Sarasota Chapter of the NAACP (right) listens to comments by Public Defender Larry Eger on March 18. News Leader image

Brody had sent a Feb. 27 memo to City Manager Tom Barwin and City Attorney Fournier, asking that the discussion be placed on the March 18 agenda. During his opening remarks on the issue during the meeting, Brody pointed out that possession of cannabis in Florida “is a first-degree misdemeanor punishable by up to a year in jail and a $1,000 fine at max. Granted, most people don’t get anywhere near that, but those are the possibilities.

“There’s also a mandatory one-year driver’s license suspension with a conviction,” he told his colleagues. “[That] is very problematic for a lot of folks.”

Public Defender Eger concurred with Brody about the “significant impact on driving privileges.”

In his Feb. 27 memo, Brody noted that in 2018, then-Gov. Rick Scott signed into law Florida Statute 901.41, “which not only allows, but encourages, local governments to implement a non-criminal citation option for certain minor criminal offenses.” Among those are the Misdemeanor Possession of Cannabis and related Possession of Paraphernalia, Brody wrote.

This is a section of an ordinance of the City of Cocoa Beach. Image courtesy City of Sarasota

As the law stands in the city, Brody said on March 18, if an officer comes in contact with a person who has a small amount of marijuana, the officer can physically arrest the person and take the person to jail, or the officer can issue a criminal Notice to Appear, requiring the individual to appear in court.

With the civil citation option, Brody pointed out, a person “can avoid the criminal justice system in its entirety and all the things that go along with it.”

In 2018 in the city, he noted, 155 arrests were made for possession of marijuana. Most of those charges would have been of a secondary nature — following an initial charge for another crime, he added.

Additionally, Sarasota Police Department officers issued 135 Notices to Appear involving marijuana possession in 2018, Brody said.

Public Defender Eger told the commissioners that his office handled 271 cases of misdemeanor possession of marijuana last year; some standalone, some of a secondary nature.

Additionally, Brody pointed out, the state recently implemented a civil citation system for juveniles stopped for low-level offenses. That change was made, he said, “because [state leaders] felt like a lot of juveniles were ending up with criminal records for doing juvenile activity.”

Brody also explained that the civil citation process for marijuana possession “is intended to pay for itself.” For example, he said, it might be handled in the same manner as the city handles parking tickets. He felt the implementation of the payments/collections part of the ordinance should be left to the City Manager’s Office.

If his colleagues approved the proposed ordinance, Brody continued, then they would need to seek “buy-in from law enforcement.” He suggested the board members invite Police Chief Bernadette DiPino for a discussion about the application of the law.

Public Defender Eger did point out that the switch to use of civil citations in the low-level marijuana possession cases “will have likely minimal impact on the jail population … but anything is better than nothing.”

The American Bar Association has advocated for civil citations in specific circumstances. Commissioner Brody included this in the March 18 City Commission agenda packet. Image courtesy City of Sarasota