2015-3950 Ordinance ORDINANCE NO. 2015-3950
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 70 OF THE
CODE OF THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED
"MISCELLANEOUS OFFENSES," BY AMENDING ARTICLE I,
ENTITLED "IN GENERAL;" BY AMENDING SECTION 70-1, ENTITLED
"STATE MISDEMEANORS," BY CREATING SUBSECTION (C) WHICH
PROVIDES CIVIL PENALTIES FOR THE POSSESSION OF CANNABIS
(MARIJUANA) FOR AMOUNTS UNDER 20 GRAMS AND
POSSESSION OF DRUG PARAPHERNALIA; AND SETTING FORTH
PENALTIES AND ENFORCEMENT RESPONSIBILITIES FOR A
VIOLATION OF SUBSECTION 70-1(C)(1) AND (2); PROVIDING FOR
REPEALER; SEVERABILITY; CODIFICATION; AND AN EFFECTIVE
DATE.
WHEREAS, the Charter of City of Miami Beach grants the Mayor and City Commission
with home rule power to enact an Ordinance that does not conflict with State law; and
WHEREAS, the City has adopted section 70-1(a), which makes any act that is or shall
be recognized by the laws of the State of Florida as a misdemeanor, thereby being criminally
prohibited throughout the City; and
WHEREAS, a person convicted for commission of an act defined as a misdemeanor
pursuant to section 70-1(a), will be punished by a fine or imprisonment or both, but in no case
shall the fine and/or or imprisonment imposed be greater than the maximum fine or penalty for
the same offense under the Florida Statutes; and
WHEREAS, several states and localities have modified their drug laws to create civil
violations for possession of de minimis amounts of marijuana, which is only enforceable by a
monetary fine and does not subject that person to arrest or criminal prosecution; and
WHEREAS, this ordinance will P rovide an alternative and additional mechanism under
the City's Code to enforce these violations that are based upon the commission of certain
enumerated misdemeanors; and
WHEREAS, the Mayor and City Commission have an interest in enacting monetary civil
penalties for certain violations of section 70-1(a), which civil penalties will act as an additional
deterrent to such violations when encountering by the Miami Beach Police Department Officers
for a misdemeanant who has committed the offense of possession of 20 grams or less of
marijuana or paraphernalia; and
WHEREAS, the Miami Beach Police Department will have the discretion to issue a civil
citation pursuant to this ordinance, or arrest or not arrest a person for the commission of a
misdemeanor under State law.
NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That Article I, entitled "In General," of Chapter 70, entitled "Miscellaneous
Offenses," of the Code of the City of Miami Beach, Florida is hereby amended as follows:
CHAPTER 70
MISCELLANEOUS OFFENSES
* * *
ARTICLE I. IN GENERAL
* * *
Sec. 70-1. State misdemeanors.
(a) It shall be unlawful for any person to commit within the city any act that is or shall be
recognized by the laws of the state as a misdemeanor, and the commission of such acts
is hereby forbidden.
(b) Whoever shall violate the provisions of this section, upon conviction thereof, shall be
punished by the same penalty as is provided by the laws of the state.
(c) Notwithstanding subsection (a), the following misdemeanor(s) under State law are
eligible to receive a civil violation notice, at the discretion of a law enforcement officer,
provided that such violations are not charged in conjunction with any charge that is a
felony, driving under the influence, incident involving domestic violence, or violent crime,
as those terms are defined under State law:
(1) Possession of Cannabis in an amount of 20 grams or less, as set forth in section
893.13(6)(b) of the Florida Statutes, as such may be amended from time to time;
and/or
forth in sections 893.146 and
(2) Possession of Drug Paraphernalia, as set
893.147(1)(b) of the Florida Statutes, as such may be amended from time to
time.
An individual issued a civil violation notice for a violation of subsection (c)(1) or (2) will
be subject to the fine set forth herein.
(3) Penalties and enforcement.
fal A person violating subsection (c)(1) or (2) shall receive a civil fine of
$100.00.
Enforcement. The Miami Beach police department shall enforce this
section. This shall not preclude other law enforcement agencies from any
action to assure compliance with this section and all applicable laws. If a
police officer finds a violation of (c)(1) or (c)(2), the police officer will be
authorized to issue a notice of violation. The notice shall inform the
violator of the nature of the violation, amount of fine for which the violator is
liable, instructions and due date for paying the fine, that the violation may
be appealed by requesting an administrative hearing before a special
master within ten (10) days after service of the notice of violation, and that
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the failure to appeal the violation within ten (10) days of service shall
constitute an admission of the violation and a waiver of the right to a
hearing.
Rights of violators; payment of fine; right to appear; failure to pay civil fine
or to appeal; appeals from decisions of the special master.
a. A violator who has been served with a notice of violation must elect
to either:
i. pay the civil fine in the manner indicated on the notice of
violation; or
ii. request an administrative hearing before a special master
to appeal the notice of violation, which must be requested
within ten (10) days of the service of the notice of violation.
b. The procedures for appeal by administrative hearing of the notice of
violation shall be as set forth in sections 30-72 and 30-73 of this
Code. Applications for hearings must be accompanied by a fee as
approved by a resolution of the city commission, which shall be
refunded if the named violator prevails in the appeal.
c. If the named violator, after issuance of the notice of violation, fails
to pay the civil fine, or fails to timely request an administrative
hearing before a special master, the special master may be
informed of such failure by report from the police officer. The failure
of the named violator to appeal the decision of the police officer
within the prescribed time period shall constitute a waiver of the
violator's right to an administrative hearing before the special
master, and shall be treated as an admission of the violation, for
which fines and penalties shall be assessed accordingly.
d. A certified copy of an order imposing a fine may be recorded in the
public records, and thereafter shall constitute a lien upon any real
or personal property owned by the violator, which may be enforced
in the same manner as a court judgment by the sheriffs of this
state, including levy against the violator's real or personal property,
but shall not be deemed to be a court judgment except for
enforcement purposes. On or after the sixty-first (61st) day
following the recording of any such lien that remains unpaid, the
City may foreclose or otherwise execute upon the lien.
e. Any party aggrieved by a decision of a special master may appeal
that decision to a court of competent jurisdiction.
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f. The special master shall be prohibited from hearing the merits of
the notice of violation or considering the timeliness of a request for
an administrative hearing if the violator has failed to request an
administrative hearing within ten (10) days of the service of the
notice of violation.
g_ The special master shall not have discretion to alter the penalties
prescribed in subsection (3)(a).
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith are and the same are hereby
repealed.
SECTION 3. SEVERABILITY.
If any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 4. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this Ordinance shall become and be made part of the
Code of the City of Miami Beach, Florida. The sections of this Ordinance may be renumbered
or relettered to accomplish such intention, and the word "ordinance" may be changed to
"section," "article," or other appropriate word.
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect on the tenth (10th) day following its adoption.
PASSED AND ADOPTED this I day of JwI , 2015.
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OFFICE OF THE CITY ATTORNEY
RAULJ. AGUILA, CITY ATTORNEY COMMISSION MEMORANDUM
TO: Mayor Philip Levine SECOND READING
Members of the City Commission PUBLIC HEARING
City Manager Jimmy Morales
FROM: Raul J. Aguila, City Attorn JC , \July 8, 2015
RE: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER
70 OF THE CODE OF THE CITY OF MIAMI BEACH, FLORIDA,
ENTITLED "MISCELLANEOUS OFFENSES," BY AMENDING
ARTICLE I, ENTITLED "IN GENERAL," BY AMENDING
SECTION 70.1, ENTITLED "STATE MISDEMEANORS," BY
CREATING SUBSECTION (C) WHICH PROVIDES CIVIL
PENALTIES FOR THE POSSESSION OF CANNABIS
(MARIJUANA) FOR AMOUNTS UNDER 20 GRAMS AND
POSSESSION OF DRUG PARAPHERNALIA; AND SETTING
FORTH PENALTIES AND ENFORCEMENT RESPONSIBILITIES
FOR A VIOLATION OF SUBSECTION 70-1(C)(1) AND (2);
PROVIDING FOR REPEALER; SEVERABILITY;
CODIFICIATION; AND AN EFFECTIVE DATE.
BACKGROUND
Pursuant to the request of Mayor Philip Levine, the above-referenced Ordinance is
submitted for approval on Second Reading by the City Commission. The Ordinance passed on
First Reading at the June 10, 2015 City Commission meeting.
ANALYSIS
The attached Ordinance is similar to legislation that was passed on first reading on April
21, 2015 and adopted by the Miami-Dade County Board of County Commissioners on June 30,
2015. The County Ordinance makes the possession of cannabis (marijuana) in an amount of 20
grams or less and the possession of drug paraphernalia, among other offenses deemed
misdemeanors under State law, eligible for prosecution as a civil violations under the County
Code and punishable by a $100 fine. The County Ordinance provides an alternative means of
enforcement for certain State misdemeanor offenses by providing a civil code penalty instead of
Agenda Item S D
Date 7-1-1
a criminal penalty.' The area of drug abuse control is not preempted to the State, thus local
governments may enact ordinances on this subject provided that the local law does not conflict
with State law. Edwards v. State, 422 So.2d 84 (Fla. 2d DCA 1982). A conflict would exist, for
example, if an ordinance provided for a more severe penalty than prescribed by State law.
Like the County Ordinance, the proposed City Ordinance provides a civil enforcement
option for the State misdemeanor offenses of possession of a minor amount of marijuana and
the possession of drug paraphernalia. Both Ordinances set forth a penalty less severe than,
and thus not in conflict with, State law. Moreover, the proposed City Ordinance would provide
an additional deterrent to such violations and would give law enforcement officers an additional
enforcement option when encountering these offenses. Under the proposed City Ordinance, law
enforcement officers will have the discretion to issue a civil citation under the City Code or
arrest, or not arrest, for the commission of a misdemeanor under State law.
FISCAL IMPACT
In accordance with Section 5.02 of the City Charter, the City shall consider the long term
economic impact (at least 5 years) of proposed legislative actions. The fiscal impact statements
from the Miami Beach Police Department and the Miami Beach Code Compliance Department
are attached hereto as Exhibits A and B, respectively.
F:\ATTO\TURN\COMMMEMO\Comm Memo re Amend City Code civil violations[Paraphernalia 2nd Reading].docx
1 Under Section 893.13(6)(b), Fla. Stat., the possession of 20 grams or less of cannabis
is a first degree misdemeanor. Under State law, this offense is punishable as provided in
Sections 775.082 and 775.083 of the Florida Statutes which provide for a definite term of
imprisonment not exceeding 1 year, and up to a $1,000 fine.
Miami Beach Police Department—Fiscal Impact of Proposed Cannabis Ordinance
Miami Beach Police Department
Fiscal Impact Statement for Proposed Ordinance
Civil Citation for Marijuana Possession 20 grams or Less
Estimated expenditures to process 1 civil case for the possession of Marijuana Time Cost
Citation processing 15 mins $ 8.00
Records processing 15 mins $ 5.46
PEU processing and storage 15 mins $ 5.97
Total expenditures to process 1 civil case 45 mins $ 19.43
Estimated expense for 400 cases per year 300 hrs $ 7,771.00
Estimated expenditures to process 1 arrest for the possession of Marijuana Time Cost
Arrest processing 90 mins $ 47.99
Prisoner transport 30 mins $ 16.00
PEU processing and storage 15 mins $ 5.97
Supervisor review 15 mins $ 10.20
Records processing 15 mins $ 5.46
Total expenditures to process 1 arrest 165 min $ 85.61
Estimated expense for 400 arrest per year 1 1,100 hrs $ 34,243.00
Expense for 1 case that may require court appearance Time Cost
Court attendance-(3.5 OT hrs minimum per contract) I 210 mins $ 167.95
Estimated expenses to process approximately 80 court cases annually I 280 hrs $ 13,435.80
Total expense to process 400 arrests including 80 court appearances 1380 hrs $ 47,678.80
Difference to make arrests (including court appearance)vs civil I 1,080 hrs $ 39,907.80
*Total court appearance calculated at 20%of total arrests(80)
*Average salary ranges used for the calculations.
EXHIBIT A
City of Miami Beach Code Compliance Department—Fiscal Impact of Proposed Cannabis Ordinance
Employment of one (1 )Administrative Aide I
Regular Expenditures
Salary 36,039
OT 800
Health and Life 5,000
SS/Medicare 523
Uniforms 400
Subtotal $ 42,762
One-Time Expenditures
Computer and Monitor 3,000.00
Furniture and Fixtures 2,000.00
Subtotal $5,000.00
Total $47,762.00
EXHIBIT B
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