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City of Hallandale Beach City Commission Agenda Cover Memo

 

Meeting Date:

 

August 5, 2015

Item Type: 

 

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Resolution

Ordinance

Other

X

 

 

Fiscal Impact:

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Yes

 

No

Ordinance Reading:

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1st Reading

2nd Reading

 

 

 

X

Public Hearing:

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No

Yes

No

X

 

 

 

Funding Source:

 

N/A

Advertising Requirement:

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No

X

Account Balance:

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Quasi Judicial:

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No

X

Project Number :

 

N/A

RFP/RFQ/Bid Number:

 

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Contract/P.O. Required:

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No

Strategic Plan Priority Area: (Enter X in box)

 

Cohesive Visual Appeal                             

Civil & Respectful Government              

Create Local Jobs                                           

Economic Development                            

Improve City Infrastructures                   

Improve Saftey, Security &

Comfort of Residents                                   

Operational Excellence                               

Quality of Life                                                 

Vibrant Destination                                    

 

 

 

X

Sponsor Name:

 

Keith London,

Commissioner

Department: Police

 

Dwayne S. Flournoy,

Chief of Police

 

Short Title:

 

A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF HALLANDALE BEACH, FLORIDA, AUTHORIZING THE IMPOSITION OF A CIVIL CITATION FOR POSSESSION OF MISDEMEANOR AMOUNT OF MARIJUANA OR DRUG PARAPHERNALIA; AND PROVIDING AN EFFECTIVE DATE.

 

 

 

Staff Summary:

 

BACKGROUND

 

Recently, Miami-Dade County and the City of Miami Beach enacted local ordinances creating an additional and alternative enforcement mechanism for misdemeanor marijuana and drug paraphernalia possession offenses.  Under the new ordinances, police officers in those jurisdictions are afforded the discretion to address misdemeanor marijuana and drug paraphernalia possession offenses via municipal or county civil citations instead of making an arrest for a criminal violation of state law.  This additional option provides an efficient means of addressing minor offenses without unduly burdening police and criminal court resources.  This option also offers offenders the opportunity to avoid the negative stigma often associated with low level misdemeanor drug offenses.  In certain circumstances, a misdemeanor drug arrest can result in difficulty entering the military, obtaining gainful employment, or gaining college acceptance and funding.  A civil citation process would significantly minimize or eliminate these far-reaching consequences for many offenders.

 

CURRENT SITUATION

 

Currently, simple possession of marijuana for personal consumption in an amount of 20 grams or less is a misdemeanor pursuant to Florida Statute 893.13(6)(b).  Similarly, simple possession of drug paraphernalia is a misdemeanor pursuant to Florida Statute 893.147(1).  Both of these offenses are punishable by up to one year in jail if prosecuted as a state criminal violation.

 

Hallandale Beach Police officers who encounter an individual in possession of a misdeanor amount of marijuana are now addressing the matter via a physical arrest or a notice to appear in county court.  Both of these methods involve criminal prosecution of the offender.  In cases where an individual has no prior adult arrests, officers are evaluating misdemeanor marijuana possession cases for referral to the City’s adult misdemeanor diversion program.  For cases successfully referred to the adult misdemeanor diversion program, the offender attends counseling and pays a $500.00 fine and the case is dismissed by the City Attorney upon completion of the program. 

 

For purposes of the City’s Vehicle Impoundment Program (VIP), the City has set a threshold amount of 2 grams of marijuana before a vehicle would become subject to VIP.  It should be noted this 2 gram threshold applies only to the decision of whether to subjet a vehicle to the VIP program.  The 2 gram threshold has absolutely no connection to whether the underlying possession of marijuana case will prosecuted or referred to the diversion program.  

 

Allowing for a civil citation for these offenses would result in only a $100.00 civil fine or adjudication before the City’s Special Master where the offender requests a hearing or fails to pay the $100.00 fine.  Offenders have ten calendar days from the date they receive a civil citation to request a hearing before the Special Magistrate.  If the violator does not request a hearing, the violation is deemed admitted and the fine is due.  One limitation of civil citations is that with a small amount like $100.00 it is very unlikely collection efforts will be worth the expense and effort for individuals who refuse to pay.  However, arrest under the state criminal law would remain an option for repeat violators, particularly repeat violators with a history of non-payment.

 

 

ANALYSIS

 

The City has an ordinance already in place that allows for a civil citation to be issued for any nonviolent misdemeanor crime.  This would include possession of 20 grams or less of marijuana and possession of drug paraphernalia since neither of these offenses involve violence.  Specifically, on February 5, 2014, the City Commission adopted Ordinance 2014-05, amending Chapter 19 of the City Code.  This ordinance created HBCC section 19-17 which incorporates all state law misdemeanors as violations of the City Code subject to criminal or civil prosecution via the City Attorney as Municpal Prosecutor. 

 

HBCC section 19-17(e) allows for the City to address any non-violent misdemeanor via a civil citation instead of a criminal arrest.  This section states, “the City of Hallandale Beach may elect to offer a pre-trial diversion program to any offender of a non-violent misdemeanor committed within the limits of the City of Hallandale Beach unless specifically prohibited by state law or this Code or impose a civil citation under Section 1-8.”  Accordingly, the City Code already provides a mechanism for issuing a civil citation for the nonviolent misdemeanor offenses of possession of 20 grams or less of marijuana and possession of drug paraphernalia.  The proposed Resolution will clarify the intent and desire of the Commission to apply the civil citation provisions of HBCC 19-17(e) to these offenses.

 

WHY ACTION IS NECESSARY

 

Although HBCC 19-17(e) generally provides the authority for any non-violent misdemeanor to potentially be subject to a civil citation, the curret Resolution will clarify the Commission’s intent and desire that the Police Department address cases of simple possession of marijuana in amounts of 20 grams or less and possession of drug paraphernalia as civil offenses under the City Code, instead of criminal violations where appropriate.

 

ANALYSIS

 

Civil citation can be a valuable tool for addressing many cases of simple possession of misdemeanor amounts of marijuana or drug paraphernalia.  However, in certain cases, the circumstances surrounding an otherwise low-level marijuana case will continue to justify a physical arrest.  Accordingly, civil citation should be considered an additional and alternative method of enforcing misdemeanor marijuana and drug paraphernalia cases.  An illustrative, but not exhaustive, set of examples of cases where misdemeanor marijuana or drug paraphernalia cases should still be addressed via physical arrest includes:

 

-       Where the misdemeanor amount of marijuana is located in connection with an indendent felony crime, DUI, or crime of violence (domestic or otherwise);

-       Cases of actual consumption of marijuana in public, particularly at sensitive locations such as parks or schools;

-       Cases where the offender is already on probation or pre-trial release;

-       Offenders who have a documented history of dealing in illegal narcotics;

-       Cases where the misdemeanor amount of marijuana is discovered pursuant to the service of a search warrant;

-       Cases where, even though the amount possesses it 20 grams or less, there is evidence based on packaging, violator’s statements, or actions that the marijuana is being possessed with intent to sell.

 

The above circumstances, and other similar circumstances, would mitigate in favor of pursuing a misdemeanor marijuana or drug paraphernalia case in state court instead of as a municipal civil infraction.  Under the proposed Resolution officers would retain the discretion to make a physical arrest in these cases upon articulating an appropriate basis for making the arrest in lieu of issuing a civil citation.

 

It should also be noted that the civil citation process provided for here would apply to adult cases only.  Juveniles are currently afforded a civil citation process under state law for minor offenses such as those addressed by the proposed Resolution.  Moreover, with new legislation effective October 1, 2015, juveniles will be afforded the opportunity to receive three civil citations under state law before being referred to formal diversion via the state attorneys office.

 

Proposed Action:

 

Should the Commission desire to designate misdemeanor simple possession of 20 grams or less of marijuana or drug paraphernalia as offenses eligible for civil citation, staff recommends the Commission pass the proposed Resolution.

 

Attachment(s):

 

Exhbit 1 - Resolution

 

 

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