Decriminalizing Marijuana? - A Critical Look At Volusia's Failed Ordinance

The new Ordinance reveals major problems that every citizen needs to be aware of. This article is intended to provide some insight into the new Ordinance, issues that will arise from its use, dangers for those cited under it and to insure that our community understands that "pot is not legal" somehow in Volusia County.

Citation Worse Than Prosecution?

April Fools is on Volusia's marijuana fans as their hopes of decriminalization marijuana are up in smoke. Volusia Ordinance Chapter 78.3 goes into effect April 1, 2016, but it is not the common sense approach most had hoped for and it certainly is not going to make "marijuana legal." In fact, a careful review of the Ordinance reveals many potential dangers citizens need to be aware of and in some ways, paying a "citation" for violating the Ordinance might actually be worse than facing a prosecution under the criminal statute.

Obviously, popular opinion is legalizing medical marijuana, decriminalizing possession of small amounts of marijuana, and permitting outright recreational use. Decriminalization can be anything from not enforcing laws on the books (think about Florida's laws against cohabitation which until recently were on the books but probably never enforced) to creating a system where possession is treated like a traffic ticket through a civil citation or "ticket" instead of an arrest and criminal prosecution. Or, in its ultimate form, deleting all laws prohibiting personal use of marijuana.

Decriminalizing Marijuana, Not That Simple

Florida voters rejected a recent Constitutional Amendment but several local cities and counties have moved towards decriminalizing marijuana by creating an alternative to an arrest and prosecution under state statutes. Instead, a violator would be "punished" under a local ordinance (basically a local law) in the same way as noise violations, stray dogs and parking tickets might be handled. Typically, fines are assessed and used as a source of revenue. When local politicians brought this concept to Volusia County there appeared to be widespread support for the idea even if people did not really understand how it would work. After a unanimous vote the newly drafted ordinance was hailed by many as seemingly "decriminalizing pot possession" (and drug paraphernalia) and giving Volusia County law enforcement the discretion to issue a civil ordinance violation citation instead of making a criminal arrest for misdemeanor violation.

The Ordinance would only apply to unincorporated Volusia County and the beaches and would give officers the discretion to not arrest an offender. Instead, conventional wisdom was that the offender would be issued a one hundred dollar ticket and that would be that. No criminal history. Sadly, it is not as simple as that.

Problems with the Ordinance

Honestly, our Firm would love to see a more common sense approach to personal use amounts of marijuana. And if this Ordinance was a step in the right direction we would tell you that. But the reality is the Ordinance really does not provide a satisfactory alternative to the current legal structure. Officer discretion used to involve the cops throwing the joint away (or flushing it down the toilet) and sending you on your way. When you deal with criminal violations, many times there are collateral consequences of the penalty - things above and beyond punishment immediately carried out. Collateral consequences are the things that good lawyers worry about because they come back to bite our clients in the butt years later. So while this Ordinance was drafted with good intentions to create a less severe alternative, it fails to address numerous collateral consequences, such as:

  • Losing your driver's license
  • Issues with owning a firearm or a concealed weapons permit
  • Impact on professional licenses (pilots, lawyers, nurses, doctors, etc)
  • Your ability to seal or expunge your arrest record
  • Violating probation or community control
  • Effecting scholarships and other eligibilities

Question: What does this Ordinance cover - is it marijuana? a pipe?

Answer: First, here is the important section of the new Ordinance:

(a) Prohibitions. It shall be unlawful for any person to possess 20 grams or less of cannabis as defined in F.S §893.02(3). or its successor. or drug paraphernalia as defined in.F.S .. §893.145, or its successor.

(b) Jurisdiction. This section shall be applicable only within the unincorporated areas of the county and as provided in Chapter 20 of this code.

( c) Penalty. Violations of this section are punishable as provided in section 1-7.

The Ordinance applies to cannabis and drug paraphernalia as described in the § 893.02(3): "Cannabis" means 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. So, there is a very good argument this Ordinance would apply to hash, "shatter," or other extracts. Because possession of hash, resins or extracts is currently a felony, regardless of the amount, this Ordinance lets officers cut someone a huge break by not charging them with a felony.

Paraphernalia remains an overly broad definition that includes a dollar bill, a two liter bottle of soda and just about anything a creative stoner can use to get high.

Question: What are the penalties for violating this Ordinance?

Answer: Turning again to the language of the Ordinance, a "violation of this Code" means any of the following:

(1) Doing an act that is prohibited or made or declared unlawful, an offense or a misdemeanor by ordinance or by rule or regulation authorized by ordinance.

(2) Failure to perform an act that is required to be performed by ordinance or by rule or regulation authorized by ordinance.

(3) Failure to perform an act if the failure is declared a misdemeanor or an offense or unlawful by ordinance or by rule or regulation authorized by ordinance.

(b) In this section, the phrase "violation of this Code" does not include the failure of a county officer or county employee to perform an official duty unless the context requires otherwise.

(c) Except as otherwise provided, a person convicted of a violation of this Code shall be punished by a fine not exceeding $500.00, by imprisonment in the county jail for a term not exceeding 60 days, or by both such fine and imprisonment. For violations of this Code that are continuous with respect to time, each day the violation continues is a separate offense in the absence of provisions to the contrary.

(d) The imposition of a penalty does not prevent revocation or suspension of a license, permit or franchise, the imposition of civil penalties or other administrative actions.

(e) Violations of this Code may be abated by injunctive or other equitable or civil relief, and no bond shall be required, nor proof of intent or scienter. The imposition of a penalty does not prevent equitable relief. Violations of this Code are also subject to remedies prescribed in article VII of chapter 2.

Determining the exact penalties is where the Ordinance gets tricky. Nowhere does it say what the penalty will be - only what it can be. And the potential penalty described is pretty harsh considering most local Judges are imposing lower fines.

Ordinance Shortcomings: Contesting Collateral Consequences

A huge concern is that, as counterintuitive as it may seem, Florida law requires that a Court suspend the driving privileges of anyone convicted of drug possession, even if no vehicle was involved. And under this Ordinance, it appears you can still have your license suspended. The Department of Highway Safety and Motor Vehicles ("DHSMV") takes a very aggressive stance on suspending licenses. If DHSMV can suspend a license, they will. And getting your license back is a war. So, until this Ordinance finds a way of preventing DHSMV from suspending your license, our Firm cannot consider endorsing it. Imagine you pay a ticket for a joint and then a few months later, BAM! you lose your license for a year and there is no recourse because you already paid the ticket.

Question: How do I fight an Ordinance Violation?

Answer: We are not sure. And that scares us.

The Ordinance says:

In any litigation commenced by the county to enforce the provisions or to enjoin a violation of this Code, the county shall be entitled to reasonable attorney's fees incurred in such litigation. For the purpose of this Code, a reasonable attorney's fee shall not be limited to the actual salary paid to an attorney employed by the county, but shall be computed in the manner otherwise applicable under law.

Right now, there is not a clear system set up to contest the Ordinance violation. But the risk of having to pay the County's attorneys fees for exercising your right to have the Government prove the charge against you flies in the face of due process.

Question: So what are you guys saying here?

Answer: Still consult with an attorney! (Did you think we would say anything else?)

Paying a fine could end up being the least of your worries! Right now, the local State Attorneys and Judges have a fairly reasonable approach to punishing minor drug violations. Most Judges will not impose an adjudication of guilt (a conviction) and just impose a fine. The State Attorney's Office offers a drug diversion program commonly called the "level one" program which involves course work, clean drug tests and three hundred dollar fee in exchange for a dismissal of charges. These programs are frequently only offered once.

We will wait and see what this year's legislative tide brings in and hopefully the entire state will evolve its drug laws. We applaud Volusia County for trying, but this Ordinance is not the solution we need. The truth is that it will take collaboration at the State and Federal level to truly decriminalize marijuana. We are close but just not there yet.