Disclaimer: Nothing contained herein should be considered legal advice. Predictions are not guarantees, regardless of how prescient the author may appear from prior writings.
On Wednesday, August 5, Hallandale Beach took Broward County’s first steps toward decriminalizing marijuana possession. A similar provision was passed in Miami-Dade last month and a similar measure is expected to pass later this month in Broward. But before pot connoisseurs congregate to the City of Choice, they should be aware that the law does not extend nearly as far as it might seem.
Below is some of the long and short of the new law, as discussed by the City Commission and Police Chief.1 [1. The full discussion of this ordinance is available at the bottom of the page.]
Did Hallandale Decriminalize Marijuana?
Short Answer: No.
Long Answer: Hallandale instituted a civil citation system for marijuana possession under 20 grams as well as possession of marijuana paraphernalia. There are still criminal penalties and consequences attached to marijuana possession. Some of the situations where possession under 20 grams can still get you locked up are listed below, but the dividing line is not exactly black and white.
Is The Law Black and White?
Short Answer: I just said no.
Long Answer: When someone will receive a fine and when someone will go to jail is still not clear. Hallandale Beach offered
[a]n illustrative, but not exhaustive set of examples of cases where misdemeanor marijuana or drug paraphernalia cases should still be addressed via physical arrest[:]
Where the misdemeanor amount of marijuana is located in connection with an [independent] 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 [possessed is] 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.2 [2. See Hallandale Beach Staff Report on the proposed ordinance.]
Will Officers Automatically Give a Civil Citation Instead of Making an Arrest?
Short Answer: No.
Long Answer: The first option is for the officer to give a civil citation. But numerous factors can lead to an arrest or NTA (Notice to Appear). If the officer does not issue the citation, the officer must articulate a reason as to why a different action was taken. However, because the officers’ discretion is so broad3 [3. E.g., the Chief stated that trying to conceal, hide, or discard a couple of joints could be considered felony “tampering with evidence.”] and because there is virtually no oversight of the police in Hallandale Beach anyway, the “articulable reason” could reasonably be assumed to be “any reason at all.”4 [4. I.e., Don’t make fun of the officer’s shoes if you are carrying any amount of marijuana.]
Can I Smoke Marijuana in Public?
Short Answer: No.
Long Answer: See this similar interpretation of New York City’s civil citation law:
Will This Law Discriminate Against Minorities?
Short Answer: Probably.
Long Answer: Hallandale Beach has always been—and continues to be—segregated East and West along the Dixie Railroad. Community leaders in the West have continuously expressed concern over disparate policing on the two sides of the tracks. Drug enforcement is more hostile and dangerous in the West, particularly the Northwest5 [5. ”The Palms”] where an unarmed black man was killed his own home by an HBPD SWAT team just 15 months ago.6 [6. A New Times investigation discovered that all HBPD SWAT raids since 2006 have occurred on the West side of the Dixie tracks.] “They patrol in the East and police in the West” say residents who see a difference in how police treat the white and black communities. Both Commissioner Sanders—Hallandale’s sole black Commissioner—and the bill’s sponsor, Commissioner London, expressed concern over the “two sets of rules” that have plagued drug enforcement here in Hallandale and elsewhere throughout the country.
Will This Law Discriminate Against the Poor?
Short Answer: Almost definitely.
Long Answer: The first citation is not only for $100, but must be paid within 10 days. The third and fourth citations will cost the offender $250. Mayor Joy Cooper expressed concern over the ability of some citizens to be able to pay this and suggested a community service alternative, such as in Miami-Dade. This provision was not adopted and the Police Chief was not enthusiastic about allowing it.
Does the Law Go Far Enough?
Short Answer: No.
Long Answer: Nooooooooooooooo.
Is South Florida Grudgingly Accepting a Black Market?
Short Answer: Yes?
Long Answer: The new law does not relax current law prohibiting the sale of marijuana. Transporting marijuana can also be dangerous. The advice of the HB Mayor was to “leave your weed at home.” This might be all good if responsible citizens could get their 19.9g of Kush via Amazon drone, but without having an open industry that can be regulated, you can sort of have marijuana, but you are still not allowed to get it from anywhere.1 The dangers to anyone who possesses less than 20 grams are lessened, but the dangers to the person they got it from are not. If you accept that people are going to possess marijuana, you have to accept there is a market for it. Better to have that market regulated by the tax code than by firearms.
Will South Florida Eventually Decriminalize Marijuana?
Short Answer: Yes.
Long Answer: In Hallandale Beach, the City Commission all agreed that the new law did not go far enough. All agreed that further decriminalizing marijuana possession is a good idea. All expressed a need to rethink how we approach law enforcement as it relates to marijuana possession. This would not be exceptional in its own right, but these Commissioners don’t agree on anything. For these Commissioners—who routinely battle over points of order—to all come together on this should inspire activists working to further reform marijuana laws, both for medicinal and recreational purposes.
When Will South Florida Decriminalize Marijuana?
Short Prediction: Less than 20 months.
Long Prediction: The biggest takeaway from the discussion was that the current approach to marijuana enforcement is complete garbage. The legal system and penal system are clogged up with non-violent offenders, while lives are ruined for non-violent offenders engaging in relatively harmless commonplace behavior. Leaders have lost the heart to fight a never-ending war against marijuana and understand that city resources are put to better use in other capacities. Eventually Dade and Broward counties will do away with civil citations and learn to live peacefully with the idea of recreational marijuana. It might take 2 or 3 more steps, but it will happen. The question is not if, but when.
What About Other Drugs?
Short Answer: Just say no.
Long Answer: Marijuana reform is not the slippery slope to openly encouraging heroin use. Nor will it force police to look the other way on flakka, crack, meth, or any other dangerous narcotics. While we need to evaluate our approach to substance abuse in general, responsible marijuana reform can occur without reform to other, more harmful substances.
When Does the New Law Take Effect?
Only Answer: On or about September 19, 2015.7 [7. The Police Chief requested 45 days to train officers on the new law.]
Could You Give Me a Video of the Full Discussion by the City Commission?
Short Answer: I could, but it is fairly long and not that interesting.
Long Answer: Here you go, anyway.
Suggested citation: Brian M. Stewart, Scaling Back Marijuana Law: Hallandale Beach, @LawBlarg (Aug. 9, 2015), http://blarg.legalmechanics.us/scaling-back-marijuana-law