Recent Statistics on Civil Violation Citations for Marijuana in Tampa

Earlier this year, the City Council in Tampa passed a city ordinance, Tampa Code Section 14-62.

The ordinance attempted to decriminalize the possession of marijuana less than 20 grams and the possession of marijuana paraphernalia. 

The problem is that officers with Tampa Police Department are not issuing the citations in all cases. 

Our last blog article explains why TPD officers are still taking people to jail. In many of these cases, TPD officers are seizing vehicle so they can collect the $500 civil penalty (with an additional $450 being paid for towing and storage).

Read more about how marijuana citations are issued under Tampa Code Section 14-62.

In fact, TPD is issuing the citations less than half of the time in these cases. The other half of the time, TPD is still arresting people for a criminal charge under state law. During the last six month period, 409 citations were issued but 529 people were arrested for marijuana.

People identified as "black" were cited and arrested more often than those identified as "white." During that period 243 black people were issued a civil violation citation for possession of marijuana while only 160 white people were cited for the same violation.

For those people arrested for misdemeanor marijuana charges during that period, 306 were identified as black and 222 were identified as white.

I recently obtained a report filed by TPD at the request of the Tampa City Council to address the effectiveness of the program during a six-month period from March 31, 2016, through September 30, 2016. That report provided these statistics: 

ADULT MARIJUANA CIVIL CITATION STATISTICS:

Time Period: March 31 through September 30, 2016.

1. Total number of citations issued?                 409
2. How many paid civil fine within 30 days? 198
3. How many had previous citation issued?      3
4. Racial distribution: 1-0, A-3, B-243, W-160, U-3
5. Ethnicity:         Hispanic 27 Non-Hispanic 148

Adult Misdemeanor Marijuana Arrests (Charges) Total: 529
1. Racial distribution: 1-0, A-I, B-306, W-222, U-O
2. Ethnicity:         Hispanic 61 Non-Hispanic 359
3. Reason arrest instead of citation:
a. Other charges:         135
b. Insufficient ties to Hillsborough County:    9
c. Prior unpaid marijuana citation:    1
d. Officer discretion:   41

Same Time Period 2015 Adult Marijuana Arrests: 921

Code Descriptors: 
I - American Indian / Alaskan Native 
A - Asian / Pacific Islander
B - Black
W - White
U - Unknown
Demographic Detail of Unpaid Marijuana Civil Citations
Total 211 records
Total Male Female
Black                      148      120      28
White                         61        42      19
Asian/Pacific Islander                           2          1         1
American Indian/Alaskan Native                           0
Unknown                           0


Tampa Code Section 14-62 - Civil Violation Citation for Marijuana and Paraphernalia

Map of Marijuana Citations Issued
During the First 30 Days 
On March 28, 2016, the Senior Assistant City Attorney of the Tampa Police Department issued Legal Bulletin #2016-08 dated March 28, 2016. 

The legal bulletin addressed the new civil citation process for marijuana violations within the City of Tampa. These civil violation citations for marijuana and paraphernalia are issued under Tampa Code Section 14-62.

According to the bulletin, it appears the goal of the program is to give the subject an incentive to “modify his [or her] illegal behavior based on the threat of further fines.” The ordinance itself states that the purpose of the program is to help a person in possession of marijuana or marijuana paraphernalia to avoid “criminal penalties and [a] potentially life-long criminal record… disproportionate to the severity of the offense.” 

Read more our next blog article to learn more about why subjects identified as Black are given marijuana citations and arrested for marijuana-related misdemeanors more often than those identified as White by the Tampa Police Department under these new procedures over the last 6 months.
I was unable to find any information about racial disparity when TPD decides to seize vehicles pursuant to Tampa Code Section 14-30 after an arrest for even a tiny amount of marijuana found in the vehicle. Under that section, if you are arrested for marijuana found in your vehicle TPD officers can seize your vehicle until you pay a $500 civil penalty and more than $450 in towing and storage fees.  

Problems with Tampa’s Marijuana Citation Program by TPD


From reading the legal bulletin, it appears that one of the biggest problems with the way TPD is implementing this policy revolves around the tremendous discretion given to the officers in the field who decide whether to make an arrest or just issue a citation.

It would be easier if all TPD officers were just told to issue the citations and never make an arrest for possession of these small amounts of marijuana. Of course, if the officers discover some other criminal offense, then they would still make an arrest for any other crime. 
Instead, the officer has wide discretion to decide whether to proceed with formal misdemeanor arrest and seize the subjects vehicle subject to the payment of an additional $500 civil penalty (along with another $450 in towing and storage fees) in any particular case because:  
  • if the citizen has failed to pay a previously issued civil citation, then the arrest is processed as usual with an arrest and criminal prosecution for the misdemeanor (so it makes sense to pay the first citation and every subsequent citation within the 30 days);
  • the officer gets to decide if the citizen cannot be released on his own recognizance under SOP 307.2 (which also gives the officer tremendous discretion); 
  • the officer can decide to proceed with an arrest as long as the officer justifies that decision with a “legitimate, non-discriminatory reason.” 
The bulletin makes it clear that the officer gets to name the reason for making an arrest instead of issuing a citation. The memo gives several examples of why an officer might want to make an arrest. The examples used in the bulletin include: 
  • the subject has a recent criminal history involving the illegal sale of cannabis or other drugs (although was otherwise eligible for the citation); or 
  • the subject has received several cannabis citations in a short period of time, even when the citations are promptly paid (although was otherwise eligible for the citation). 
The officers can easily determine whether the subject has an unpaid prior civil citation for marijuana possession by checking the subject’s name in Versadex. The unpaid citation will appear as a general offense report with the offense being “Unpaid Civil Citation.” See TPD SOP 340. 
 

Who Is Eligible for the Marijuana Violation Citation in Tampa? 


On April 1, 2016, the Tampa Police Department instituted a civil citation procedure applicable to certain cases where a citizen is found to be in possession of 20 grams or less of marijuana or possession of marijuana paraphernalia. 
Instead of bringing criminal charges under state law, the civil citation will be issued only when: 
  1. The officer doesn’t have probable cause for any other criminal offenses except possession of marijuana or possession of marijuana paraphernalia;
  2. The amount of marijuana possessed is 20 grams or less; 
  3. The subject is 18 years of age or older;
  4. No other criminal charges are applicable from the same incident; 
  5. The subject is qualified for release on his own recognizance; and 
  6. The subject has no prior unpaid civil citation. 
If the subject meets this criteria, then the officer can (but is not required to) issue a civil citation for violation of Tampa Code Section 14-62 in lieu of making a physical arrest or issuing a notice to appear for a misdemeanor charge under state law. 
The Legal Bulletin also explains that whenever the civil citation is used, the subject’s vehicle will not be impounded pursuant to Tampa Code Section 14-30. 
The way I read this legal bulletin, the officer has a huge amount of discretion. The officer can either:
  1. issue a civil citation for a violation of the city ordinance for 4-62(b) (possession of marijuana) or 14-62(c) (possession of paraphernalia) but not both; 
  2. issue a notice to appear on a misdemeanor prosecuted under state law for misdemeanor possession of marijuana under F.S. 893.13(6)(b) and/or possession of paraphernalia under F.S. 893.147(1); 
  3. make a formal arrest and take the suspect to jail to be formally booked into the jail; and/or
  4. seize the suspect’s vehicle under Tampa Code Section 14-30 (except the vehicle will not be seized if the civil citation is issued). 

What Happens if You Don’t Just Pay the Civil Marijuana Citation?


Under the city ordinance, the fine for the citation is $75 for the first offense and $150 for a second offense. The amount goes up sharply for additional offenses. If you don't pay it within 30 days then you will NEVER be eligible to receive a citation for a future case and instead the officer will be required to either arrest you and take you to jail or issue you a notice to appear in court on the misdemeanor charges. 

If you don’t pay the citation with thirty (30) days of the date of issuance, the City Attorney's Office shall forward the original and one (1) copy of the citation to the county court. 
The civil infraction is punishable by a civil penalty not to exceed five hundred dollars ($500.00). If you don’t want to pay the citation, then you should contest the citation in the county court. The procedures for contesting the citation shall be set forth in the citation.
If a person fails to pay the penalty within the specified period or fails to appear in court to contest the citation, that person shall be deemed to have waived the right to contest the citation. A judgment may be entered against that person for an amount up to the maximum civil penalty.

What Advice if Given to TPD Officers When Making these Decisions?

The legal bulletin provides this information (paragraph breaks were added):
In the typical street encounter, nothing changes up until the time a charging decision is made. As an example, an officer observes a traffic infraction and stops a citizen’s car. As the officer approaches the car, the distinct odor of burning marijuana is detected emanating from within the car.

The officer explains the reason for the stop and obtains the citizen’s D.L. and registration. The marijuana odor, of course, gives the officer probable cause to search the vehicle and its occupants. The officer should control the scene and ensure his own safety. Obtain backup as necessary and handcuff the citizen(s) prior to searching them or the vehicle. 

Once the search is completed, decide what you have. If the only applicable criminal charge will be possession of 20 grams or less of marijuana and/or possession of marijuana paraphernalia, decide whether the citizen meets the other criteria for civil citation. If so, issue the civil citation charging 14-62(b) (possession of marijuana) or 14-62(c) (possession of paraphernalia) but not both.

If other criminal charges are appropriate, if the citizen cannot be released on his own recognizance under SOP 307.2, or if the citizen has failed to pay a previously issued civil citation, then the arrest is processed as usual, using the CRA and charging misdemeanor possession of marijuana under F.S. 893.13(6)(b) and/or possession of paraphernalia under F.S. 893.147(1).

Juveniles found in possession of 20 grams or less of marijuana or paraphernalia will be processed under SOP 313.4 and future Legal Bulletin. 

To determine whether the subject has an unpaid prior civil citation for marijuana possession, check the subject in Versadex. The unpaid citation will appear as a general offense report with the offense being “Unpaid Civil Citation.” See SOP 340 for additional information.

Again, the decision of whether to proceed with arrest under the state statute or with citation under Tampa’s ordinance can only be made after completion of the full investigation and lawful search. A subject with a recent criminal history involving the illegal sale of cannabis or other drugs is not the intended beneficiary of the Tampa program. 

Similarly, a subject who has received several cannabis citations in a short period of time, even when the citations are promptly paid, is not apparently inclined to modify his illegal behavior based on the threat of further fines. 

When officers elect to arrest (even in ROR cases) under the misdemeanor statute, there is a drop down menu in Versadex for recording the reason(s) for the decision not to issue the civil citation in lieu of arrest. When that decision is based on officer discretion, the specific reason must be articulated in an “explain below” box. 

___________________________________________

Tampa Code Sec. 14-62. - Possession of cannabis or paraphernalia.


(a)   Definitions.

(1)   Cannabis means all parts of any plant of the genus Cannabis, whether growing or not and the seeds thereof. The term does not include the resin or oil extracted from any part of the plant or "low-THC cannabis" as defined in F.S. § 381.986 if manufactured, possessed, sold, purchased, delivered, distributed, and dispensed in conformance with F.S. § 381.986.

(2)   Paraphernalia means any object used, intended for use, or designed for use, in ingesting, inhaling, smoking, or otherwise introducing cannabis into the human body.

(b)   Any person who possesses twenty (20) grams or less of cannabis as defined herein except as otherwise authorized by law commits a violation of this subsection.

(c)    Any person who possesses paraphernalia as defined herein except as otherwise authorized by law commits a violation of this subsection.

(d)   A person charged with possession of cannabis under subsection (b) may not be charged with possession of paraphernalia under subsection (c) arising out of the same incident.

(e)   Penalties and procedure.

(1)   The provisions of Tampa Code Chapter 23.5 shall apply to all violations charged pursuant to this section.

(2)   Violation of this section is deemed to be an irreparable or irreversible violation punishable by civil penalty as a Class I offense.

(3)   If the applicable civil penalty is not paid within thirty (30) days from the citation date, in addition to the procedure provided in Tampa Code Chapter 23.5 in the event of such nonpayment, the defendant will no longer be eligible for the alternative enforcement procedures provided by this section.

(Ord. No. 2016-44, § 1, 3-17-16)
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The attorneys at the Sammis Law Firm, P.A., represent clients charged with criminal offenses throughout Tampa Bay. The attorneys also advocate for the reform of marijuana laws and are proud members of the NORML National Legal Committee (NLC).

Florida Statute 943.0581 for an Administrative Expunction after an Unlawful or Mistaken Arrest

If your arrest was unlawful or by mistaken then the best result in your case is getting the criminal charges dropped and then getting an administrative expunction under Florida Statute 943.0581.

These types of expunctions are rare in Florida because a law enforcement agency or prosecutor is rarely going to admit that an arrest was made "contrary to law" or "by mistake." But it does happen.

Sometimes the officer acts in an unlawful way as determined in an internal affairs investigation into police misconduct.

In some cases, the State Attorney's Office will drop the case and explain in writing that the reason for dropping the charges is because the arrest was "unlawful" or "contrary to the law."

If the agency or prosecutor won't agree, then you can file a motion to suppress evidence or a motion to dismiss the charge and convince the judge to grant the motion on the grounds that the arrest was "unlawful" or "contrary to the law."

The benefits of using the administrative expunction include not using up your once-in-a-lifetime right to seal or expunge a criminal record. Also, if you have previously sealed or expunged a prior record or are not otherwise eligible because you were previously convicted of any criminal offense, then the administrative expunction is the only option available.  

After the request is submitted, an Operations & Management Consultant Manager or a Senior Criminal Justice Information Technician with FDLE's Quality Control Section will review the request, along with associated documentation, and determine whether it meets the criteria for an administrative expunction per section 943.0581, F.S.

If you would like more information about sealing or expunging your criminal record, then contact the criminal defense attorneys at the Sammis Law Firm in Tampa, FL. Call 813-250-0500.

What is an administrative expunction?

Title XLVII for criminal procedure and corrections in Chapter 943 provides a process to petition for an administrative expunction. The administrative expunction under Florida Statute 943.0581 is different from Florida's other laws dealing generally with the preservation and destruction of public records.

The legislature allowed the Florida Department of Law Enforcement to adopt a rule pursuant to chapter 120 for the administrative expunction of any nonjudicial record of an arrest of a minor or an adult made contrary to law or by mistake.

Under Florida Statute 943.0581(2), only a "law enforcement agency" is permitted to apply to the Florida Department of Law Enforcement (FDLE) in the manner prescribed by rule for the administrative expunction of any nonjudicial record of any arrest of a minor or an adult who is subsequently determined by the agency, at its discretion, or by the final order of a court of competent jurisdiction, to have been arrested contrary to law or by mistake.

Alternatively, an adult or, in the case of a minor child, the parent or legal guardian of the minor child, may apply to the department in the manner prescribed by rule for the administrative expunction of any nonjudicial record of an arrest alleged to have been made contrary to law or by mistake, provided that the application is supported by the endorsement of the head of the arresting agency or his or her designee or the state attorney of the judicial circuit in which the arrest occurred or his or her designee.

In other words, the chief of police of sheriff himself (or his designee) or the State Attorney (or his designee) must sign the application.  

Requirements for the Application for the Administrative Expunction

When the law enforcement agency makes the request, the agency will often type up a one-page document entitled "Quality Control Administrative Expunction Request." The form is sent to the following address:

    Florida Department of Law Enforcement (FDLE)
    Quality Control Section
    Post Office Box 1489
    Tallahassee, FL 32303-1489

An application for administrative expunction shall include the date and time of the arrest, the name of the person arrested, the offender-based tracking system (OBTS) number, and the crime or crimes charged. The application shall be on the submitting agency’s letterhead and shall be signed by the head of the submitting agency or his or her designee.

Under Florida Statute 943.0581(6), if the person was arrested on a warrant, capias, or pickup order, a request for an administrative expunction may be made by the sheriff of the county in which the warrant, capias, or pickup order was issued or his or her designee or by the state attorney of the judicial circuit in which the warrant, capias, or pickup order was issued or his or her designee.

Under the statute, the fact that an application is signed or endorsed under this section is not admissible as evidence in any judicial or administrative proceeding and may not be construed in any way as an admission of liability in connection with an arrest.

What are FDLE's Procedures for the Administrative Expunction? 

In response to Florida Statute 943.0581, FDLE adopted Rule: 11C-7.008 for the Administrative Expunction Procedures. The latest version of the final adopted rule is presented in Florida Administrative Code (FAC): The effective date of the last version of the rule became effective on April 16, 2009. Rule 11C-7.008 for the Administrative Expunction Procedures provides:



(1) Non-judicial records of arrest made contrary to law or by mistake will be administratively expunged by the Department, upon application by the arresting law enforcement agency, or by the person arrested or, in the case of a minor child, the parent or legal guardian of the minor person arrested. An application submitted by the person arrested or the parent or legal guardian of the minor person arrested, shall be supported by the endorsement of the head or chief law enforcement officer of the arresting agency or of the state attorney of the judicial circuit in which the arrest occurred.

(2) Application for administrative expunction requires either that the arresting law enforcement agency has determined that the arrest was made contrary to law or by mistake; or that a court of competent jurisdiction has entered a final order finding that the arrest was made contrary to law or by mistake.

(3) An application for administrative expunction must be in writing. If submitted by the arresting law enforcement agency, the application shall be on agency letterhead, and signed by the head or chief law enforcement officer of the arresting agency or his or her authorized designee. An application submitted by the person arrested or the parent or legal guardian of the minor person arrested, must be in writing and must identify the relationship of the person signing the application to the person arrested.

(4) A supporting endorsement of an application submitted by the person arrested or the parent or legal guardian of the minor person arrested, must be in writing, on agency letterhead, and signed by the head or chief law enforcement officer of the arresting agency or his or her authorized designee or by the state attorney of the judicial circuit in which the arrest occurred or his or her authorized designee.

(5) An application for administrative expunction submitted by the arresting law enforcement agency, or the supporting endorsement in the case of an application submitted by the person arrested or the parent or legal guardian of the minor person arrested, shall identify the arrest to be expunged by providing the following information. Written documents related to administrative expunctions shall make specific reference to identifying information, including:

(a) Name and Aliases;
(b) Sex and Race;
(c) Date of Birth;
(d) Social Security Number (if available, used for identification – not mandatory);
(e) Date and Time of Arrest;
(f) Original Charges(s);
(g) FDLE Number and FBI Number (if applicable and known);
(h) OBTS Number;
(i) Reason for Administrative Expunction;

(6) If the person was arrested on a warrant, capias, or pick-up order, the request for an administrative expunction, or the supporting endorsement of an application submitted by the person arrested or the parent or legal guardian of the minor person arrested, may be made by the sheriff of the county where the warrant, capias, or pick-up order was issued or his or her designee, or by the state attorney of the judicial circuit where the warrant, capias, or pick-up order was issued or his or her designee.

(7) When an administrative expunge application meets the statutory requirements, the Department will notify the arresting agency, which is then responsible for expunging its records of the arrest, and for notifying any other agency to which it provided the criminal history record information that is the subject of the administrative expunction.

(8) No application or endorsement made under this section shall be admissible as evidence in any judicial or administrative proceeding or otherwise be construed in any way as an admission of liability in connection with an arrest.

(9) The procedures by which an individual may secure an administrative correction of the criminal history record pertaining to the individual are set out in Chapter 11C-8, F.A.C. Non-criminal arrest records which are mistakenly or improperly forwarded to the Department for processing and retention as criminal history records will be removed as an administrative correction by the Department.
Rulemaking Authority 943.03, 943.0581 FS. Law Implemented 943.0581 FS. History–New 8-5-92, Amended 3-21-07, 4-16-09.





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