Senate Majority Leader Mitch McConnell and Senator Ron Wyden of Oregon are working to get hemp removed from a federal list of illegal controlled substances.
Tallahassee’s elected leaders could be looking at decriminalizing marijuana to help solve what police officials around the state are calling a patchwork of approaches to enforcing the law.
But any efforts at “decriminalizing” marijuana at the city or county government level would be largely ceremonial for two reasons.
State Attorney Jack Campbell’s office, which this week announced a pause in prosecuting some marijuana cases amid non-euphoric hemp testing issues, already operates a diversion program for first-time offenders.
And the same office is still responsible for upholding both state and federal law, which criminalizes marijuana possession.
For County Commissioner Kristin Dozier, the rapidly changing landscape of the medical marijuana industry in Florida creates a mismatched standard where people with money are afforded access to what is otherwise considered an illegal drug.
“We have set up a double standard,” she said, “For those who can afford access to medicinal marijuana and don’t mind their name being on a state registry versus those who may not be able to afford it or may not feel comfortable and those people who are in danger of arrest if they possess a product that would be legal for others.”
More on hemp and marijuana in Tallahassee
Mix in federal regulations that still consider pot a Schedule 1 addictive drug, and the costs of law enforcement, jail and prosecution continue to mount and lives continue to be altered.
Dozier, who supports full decriminalization of small amounts of marijuana, conceded that no local government has the authority to trump state or federal law. But Campbell’s decision offers officials a bellwether moment to address the issue.
“What I think we see in the statement by the State Attorney’s Office is an example of how our law enforcement community is facing a challenge because of this mismatch of laws that is unworkable for them,” she said. “We have to ask, if their solution is to stop prosecuting then is this a true danger for our community? Or, are our law enforcement folks following the law, and they do and they should, or is this a bad law that should be changed?”
Commissioner Kristin Dozier speaks to Commissioner Bill Proctor at the County Commission meeting Tuesday, June 18, 2019. (Photo: Alicia Devine/Tallahassee Democrat)
Dozier is not alone in that thought.
Freshman City Commissioner Jeremy Matlow has long been an advocate for decriminalizing marijuana in Tallahassee.
With the 2018 Farm Bill that legalized hemp – a cannabis plant that looks and smells like illegal marijuana but doesn’t produce a high – and the Florida Legislature’s change in the law this year to allow cannabis with .3% or less of the euphoric chemical THC, now is the time for everyone to get in sync, Matlow said.
“We have multiple law enforcement agencies, and we don’t want people thinking something is allowed when it isn’t,” he said. “The best way to clear that up is for all of our local governments to go ahead and decriminalize so there will be no question about getting arrested if you’re caught for possession.”
Recreational marijuana is legal in 11 states and Washington, D.C., which Matlow says is a sign that full legalization may be coming to Florida soon.
Commissioner Jeremy Matlow at the City Commission meeting held at the Smith-Williams Service Center Wednesday, June 19, 2019. (Photo: Alicia Devine/Tallahassee Democrat)
While those arrested for pot the first time can opt to join a local diversion program, Matlow proposes tickets and small fines, like more than a dozen communities around the state, including Tampa, Orlando and Key West, which have passed decriminalization ordinances.
Matlow also noted the inevitable growth of the marijuana industry needs to be addressed. His next step is to author a letter to city management and his commission colleagues asking to tackle decriminalization this fall.
“As a city, now is really the time to start to figure out what that means in our community,” he said.
Decriminalizing could cause more problems
County Administrator Vince Long said commissioners will get an update this fall on the county’s civil citation program and any possible changes that may be needed with new hemp regulations.
Started in early 2018, nearly 300 people have gone through the program, which allows them to pay a fine, work community service and seek professional evaluation in lieu of criminal charges.
Sheriff Walt McNeil, right, discusses the qualifications former Leon County Sheriff Officer Steve Harrelson for the position of director of the Consolidation Dispatch Agency with Vince Long, left, and other county officials Tuesday, April 30, 2019. (Photo: Alicia Devine/Tallahassee Democrat)
One of the issues the County Commission is exploring is the amount of resources – from law enforcement, the court system and at the county jail – that are associated with minor possession cases. Dozens of communities around the state have enacted ordinances that allow officers the discretion to write tickets for marijuana possession.
But major issues could arise if Leon County or Tallahassee decide to put decriminalization ordinances in place that conflict with state law or infringe on officers’ decision making, Long said.
“An ordinance may remove officer discretion to some extent,” he said. “The State Attorneys Office would agree that having it as an ordinance may raise concern as to officer discretion.”
Beyond that, Florida’s governor remains staunchly against legalizing recreational marijuana. When asked about a June Quinnipiac University poll that showed 65% of Floridians support legalized pot, Gov. Ron DeSantis told the Capitol News Service: “Not while I’m governor.”
“I mean look, when that is introduced with teenagers and young people,” SeSantis said, “I think it has a really detrimental effect to their well being and their maturity.”
Inconsistencies are statewide
The dilemma over identifying hemp is an issue statewide and was a debated topic at the Florida Sheriff’s Association annual conference last week.
FSA President Pinellas County Sheriff Bob Gualtieri told the Tallahassee Democrat the jurisdictional differences among law enforcement was certain to be a challenge.
Tallahassee Police seized 21 individually wrapped packages of marijuana from Celeste Dorsey, 25, as she grabbed her luggage at Tallahassee International Airport (Photo: Tallahassee Police Department)
“It’s going to result, and is resulting, in a patchwork around Florida which is very unfortunate for the citizens and for law enforcement,” he said. “It’s supposed to be clearly defined so people know the rules and they know which side of the line and law to stay on and the same thing for LEO – that law enforcement knows the rules and they can take fair and consistent enforcement action.”
Gualtieri said Pinellas County uses a county-run lab to test its cannabis and has not run into the same issues that Campbell and other law enforcement in North Florida face.
“You’ve got to keep in mind that no hemp is being grown in Florida today,” he said, noting that the Florida Department of Agriculture’s hemp program still needs approval from U.S. Department of Agriculture before farmers can grow it.
“What you see is that people have containers that say hemp, but they’re not hemp. It’s 25% THC marijuana.”
Sheriff Bob Gualtieri, chaired the Stoneman Douglas Public Safety Commission and spoke at the 7th Annual Rural County Summit, June 2019 (Photo: James Call)
In his county, suspects accused of possessing marijuana will not get a pass, Gualtieri said, but he agrees the broad differences across the state needed to be resolved.
“It doesn’t mean that across Florida you’re going to get a pass, because you’re not,” he said. “The unfortunate part is it’s going to result in this inconsistency until it sorts itself out through modifications to the law or the testing catches up.”
They can’t make pot legal
Amid the legal quagmire over hemp and marijuana, attempts by local governments to subvert state or federal law would do little to change the duty of prosecutors.
In a letter to local law enforcement this week, Campbell said he would not be pursuing some marijuana cases until the state finds a definitive test to differentiate it from now-legal hemp.
He wasn’t the only prosecutor to do so in Florida.
Palm Beach County State Attorney Dave Aronberg, Brevard and Seminole County State Attorney Phil Archer — who is also the Florida Prosecuting Attorneys Association executive board president — and 19th Judicial Circuit State Attorney Bruce Colton are among the top prosecutors who have announced similar pauses in marijuana prosecutions.
Currently, Campbell’s office utilizes the Florida Department of Law Enforcement’s labs, which do not yet have the technology to test the amount of THC in cannabis, only whether it is present.
A large-scale, highly touted operation by local, state and federal law enforcement officials netted 84 arrests, two guns and 13 pounds of drugs in its first week. (Photo: Leon County Sheriff’s Office)
He cautioned agencies in making arrests until the issue can be worked out, either through the adoption of reliable testing or reworking of state hemp legislation by lawmakers. The letter drew mixed responses from local law enforcement.
The Tallahassee Police Department said it would continue to pursue marijuana cases.
“TPD wants to remind citizens that while hemp is legal, marijuana is still illegal in the State of Florida,” TPD spokesman Damon Miller said in an emailed statement. “TPD will continue investigating suspected marijuana cases In the event that probable cause is established, TPD will seize the evidence for potential prosecution.”
The Leon County Sheriff’s Office acknowledged the similarities between hemp and marijuana in guidelines developed in early July. To help deputies determine probable cause in situations where they suspect marijuana possession, the guidelines suggest noting the criminal record of an individual, the person’s demeanor, signs of marijuana impairment or the presence of drug paraphernalia.
Campbell said the Legislature gave the city of Tallahassee the power to enact municipal ordinances addressing open alcohol containers. But there is no legal path to decriminalization.
“The reverse doesn’t work. Nor, in my opinion, can they make marijuana legal,” he said. “I’m not going to fail to follow the law. I think that’s constitutionally impermissible for me.”
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