According to local news Volusia County recently decriminalized marijuana. The only problem is it appears that possession of marijuana is still a crime based on the new law. The only difference is that you can admit guilt and pay a fine instead of going to court and challenging the evidence against you. The ordinance is not even in effect yet but it appears that under section 1-7 marijuana possession would remain a misdemeanor. It would be a second degree misdemeanor instead of a first degree misdemeanor but some of the collateral consequences of a marijuana possession could still apply.
For some people with extensive criminal history this is probably a better option but for many people with limited criminal history it might not be better. They could likely get the charge dropped after completing a diversion or get the marijuana case amended to a charge with less collateral consequences like drug paraphernalia.
A paraphernalia case does not have the collateral consequences but would still create a public record of an admission to a crime. If you are on probation paying one of these “tickets” will definitely violate you. The county likes to call them tickets to make people feel like they forgot to buckle their seatbelt and can just pay a fine and forget about it. Many of these beach tickets are actually misdemeanor criminal charges disguised as a ticket.
The government doesn’t have the resources to prosecute all the crimes they are creating so they have now resorted to trying to trick people to admitting to a crime. It’s perfect for them because they get the money without the work. It’s only bad for you because you get the criminal record. These payable misdemeanors are usually resolved with a withhold of adjudication by paying the fine but that requires a lengthy (record sealing) process to get off your record. Many people will say that a withhold doesn’t give you a record but the benefit of a withhold of adjudication has eroded over time. It is still far better than a conviction but if you are in a competitive field you might not want an admission to a misdemeanor on your record.
The Problem
The Federal government does not always recognize a state’s withhold of adjudication. This can become a problem with financial aid. If adjudication is withheld the accused can seal their record but this can take up to 12 months. An individual can only seal 1 record in Florida and other states might not recognize Florida’s withhold. If this happens with a misdemeanor marijuana case than the accused could have problems with federal financial aid. Paying a marijuana ticket is an admission of guilt with adjudication being withheld. That admission is a public record and could cause problems for the accused.
It appears that based on the new ordinance marijuana around Daytona Beach “The Atlantic Ocean Beach” and in unincorporated Volusia County would be a second degree misdemeanor. I get this out of section 1-7 of the Volusia County ordinances. This has less serious maximum penalties than Florida’s typical 1st degree misdemeanor charge. The problem is it is still a crime and it appears the county is trying to trick people into admitting to a crime that could have serious collateral consequences. For someone with an extensive criminal record paying the fine might be a good deal if they are not on probation but it is unlikely that police would give them that option. First or second time offenders that would be eligible for diversion or could have the charge amended to something with less collateral consequences might actually come out worse by paying the fine. Here’s the cases with the federal government or other states not recognizing a withhold. These are felonies but the same logic could be applied to misdemeanors.
We affirm the district court’s ruling that one who pleads guilty in a Florida state court and has imposition of sentence withheld, may nevertheless be held to have been “convicted” for purposes of applying federal criminal statutes which punish certain conduct following conviction of a felony. United States v. Orellanes, 809 F.2d 1526 (11th Cir. 1987). State v. Heath, 279 P.3d 458 (Wash. Ct. App. 2012) (treating withholding of adjudication as a conviction for purposes of Washington law); Kasckarow v. Board of Examiners of Sex Offenders of State, 936 N.Y.S.2d 498 (N.Y. Sup. Ct. 2011) (withhold a conviction for purposes of New York sex offender registration law).
The New Law
AN ORDINANCE OF THE COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, AMENDING THE CODE OF ORDINANCES OF THE COUNTY OF VOLUSIA BY AMENDING CHAPTER 78 OFFENSES AND MISCELLANEOUS PROVISIONS BY CREATING SECTION 78-3 TO PROHIBIT POSSESSION OF CANNABIS AND DRUG PARAPHERNALIA IN UNINCORPORATED COUNTY; BY AMENDING CHAPTER 20 BEACH CODE, ARTICLE IV CONDUCT, TO CREATE SECTION 20-128 PROHIBITING POSSESSION OF CANNABIS AND DRUG PARAPHERNALIA ON THE ATLANTIC OCEAN BEACH; PROVIDING FOR SEVERABILITY; BY PROVIDING FOR CONFLICTING ORDINANCES; AUTHORIZING INCLUSION IN CODE; AND PROVIDING FOR AN EFFECTIVE DATE
SECTION I: Chapter 78 of the Code of Ordinances, County of Volusia is amended to read as follows: Section 78-3. Possession of Cannabis and Drug Paraphernalia.
(a) Prohibitions. It shall be unlawful for any person to possess 20 grams or less of cannabis as defined in F.S §893.02(3). or its successor. or drug paraphernalia as defined_.in.F.S .. §893.145, or its successor.
(b) Jurisdiction. This section shall be applicable only within the unincorporated areas of the county and_ as provided in Chapter 20 of this code.
( c) Penalty. Violations of this section are punishable as provided in section 1-7.
SECTION II: Chapter 20, article IV, section 20-128, of the Code of Ordinances, County of Volusia is amended to read as follows: Ordinance 2016-06 Page 1 of 2 Section 20-128. Possession of Cannabis and Cannabis Paraphernalia. It shall be unlawful for any_ person_ to _possess 20 grams or less of cannabis as_ defined_ in F .S §893.02(3), or its successor, or drug paraphernalia as defined in F.S. §893.145, or its successor. SECTION III: AUTHORIZING INCLUSION IN CODE – The provisions of this ordinance shall be included and incorporated into the Code of Ordinances of the County of Volusia, a.S additions or amendments thereto, and shall be appropriately renumbered to conform to the uniform numbering system of the code. SECTION IV: SEVERABILITY – Should any word, phrase, sentence, subsection or section be held by a court of competent jurisdiction to be illegal, void, unenforceable, or unconstitutional, then that word, phrase, sentence, subsection or section so held shall be severed from this ordinance and all other words, phrases, sentences, subsections, or sections shall remain in full force and effect. SECTION V: CONFLICTING ORDINANCES – All ordinances, or part thereof, in conflict herewith are, to the extent of such conflict, repealed.
SECTION VI: EFFECTIVE DATE-This Ordinance shall take effect April 1, 2016. ADOPTED BY THE COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, IN OPEN MEETING DULY ASSEMBLED IN THE COUNTY COUNCIL CHAMBERS AT THE THOMAS C. KELLY ADMINISTRATION CENTER, 123 WEST INDIANA AVENUE, DELAND, FLORIDA, THIS 3RD DAY OF MARCH A.D., 2016.
Sec. 1-7. – General penalty; continuing violations.
In this section, the phrase “violation of this Code” means any of the following:
(1) Doing an act that is prohibited or made or declared unlawful, an offense or a misdemeanor by ordinance or by rule or regulation authorized by ordinance.
(2) Failure to perform an act that is required to be performed by ordinance or by rule or regulation authorized by ordinance.
(3) Failure to perform an act if the failure is declared a misdemeanor or an offense or unlawful by ordinance or by rule or regulation authorized by ordinance.
(b) In this section, the phrase “violation of this Code” does not include the failure of a county officer or county employee to perform an official duty unless the context requires otherwise.
(c) Except as otherwise provided, a person convicted of a violation of this Code shall be punished by a fine not exceeding $500.00, by imprisonment in the county jail for a term not exceeding 60 days, or by both such fine and imprisonment. For violations of this Code that are continuous with respect to time, each day the violation continues is a separate offense in the absence of provisions to the contrary.
(d) The imposition of a penalty does not prevent revocation or suspension of a license, permit or franchise, the imposition of civil penalties or other administrative actions.
(e) Violations of this Code may be abated by injunctive or other equitable or civil relief, and no bond shall be required, nor proof of intent or scienter. The imposition of a penalty does not prevent equitable relief. Violations of this Code are also subject to remedies prescribed in article VII of chapter 2.
(f) In any litigation commenced by the county to enforce the provisions or to enjoin a violation of this Code, the county shall be entitled to reasonable attorney’s fees incurred in such litigation. For the purpose of this Code, a reasonable attorney’s fee shall not be limited to the actual salary paid to an attorney employed by the county, but shall be computed in the manner otherwise applicable under law.
(Ord. No. 99-28, § XIII, 11-4-99; Ord. No. 2009-20, § I, 8-20-09)
Daytona Beach Marijuana Attorney Kevin J. Pitts
Daytona Beach DUI Attorney 