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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.”
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:
- The officer doesn’t have probable cause for any other criminal offenses except possession of marijuana or possession of marijuana paraphernalia;
- The amount of marijuana possessed is 20 grams or less;
- The subject is 18 years of age or older;
- No other criminal charges are applicable from the same incident;
- The subject is qualified for release on his own recognizance; and
- 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:
- 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;
- 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);
- make a formal arrest and take the suspect to jail to be formally booked into the jail; and/or
- 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.
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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).
