Flagler Judge Gives Pot Plan a Lift, But Council And Whiff of Politics Again Delay Adoption

Despite as close to an endorsement as it might get from the judge who presides over Flagler County’s criminal and drug courts, a proposal to decriminalize the first-time possession of small amounts of pot again stumbled Wednesday.

It will be at least another month, likely longer, before the Flagler County Commission and the county’s cities get a chance to vote for or against a proposed ordinance that would reduce the penalty for first-time possession of pot to a $250 fine. That’s assuming the proposal makes it that far.

The proposal is being crafted by the Public Safety Coordinating Council, a collection of the county’s police, judicial and social service agencies, chaired by County Commissioner Barbara Revels. The council was supposed to vote the proposal up or down on Wednesday. It did not do so. Several members of the council asked that the vote be delayed to next month—the council meets only once a month—so they’d have a chance to see the proposal in its final form first.

Committee members made a few changes to the ordinance on Wednesday—nothing overly substantial other than a clarification that no one previously convicted of a drug-related felony or a misdemeanor is eligible for a civil citation. The changes were incorporated in the proposal, which was before the members of the council, and could have been voted on as such. Nevertheless, as some members asked for the delay, the vote was put off.

---

“I think it’s very worthy of consideration,” Circuit Judge Matthew Foxman says of the civil citation proposal.

---

The delay is in keeping with the trajectory of the proposal, which has been wandering a labyrinth since Sheriff Jim Manfre proposed it in January and Commission Chairman Barbara Revels has been trying to shepherd it. That Minotaur’s fate isn’t without its political undercurrents: Manfre and Revels are the coordinating council’s only two Democrats. They’re both running for reelection. Getting the proposal passed would be a boon to their campaigns. Republicans around the table and elsewhere are not necessarily eager to help them, and Manfre himself has previously alluded to political currents to explain the resistance to his proposal. He is also Florida’s only sheriff who has publicly spoken in favor of an amendment that would legalize medical marijuana, a proposal the state’s sheriff’s association is vehemently against. (Manfre was at the sheriff’s association’s annual meeting Wednesday, so could not attend the council meeting.)

With the latest delay, the proposal will be voted on only on Aug. 10, or 20 days before the Aug. 30 primary. The proposal would still have to be distributed to the county commission as well as the Palm Coast, Beverly Beach, Flagler Beach, Bunnell and Marineland governments for their votes, which could then push approval or disapproval past the August primary. The proposal’s fate in Palm Coast is questionable. Delays at that level are also possible. So the fate of the ordinance is as uncertain as it’s been all year.

On Wednesday, the council wrestled with the wording of various parts of the proposed ordinance and how its enactment might affect actual arrests over pot. Council members learned that police could be swiftly informed of an individual’s record in every county in the state through the clerk of court’s website. If there is a lag between an arrest and its appearance on the site, it would not be more than a few days. That dispenses with the worry that, say, a deputy trying to decide whether to issue a civil citation to an individual in Palm Coast would not know whether that individual has already been found guilty on drug charges elsewhere—a disqualifier for the lesser fine.

Another hang-up that added to some of the cities’ reluctance to approve the proposal, especially Bunnell’s, is the consequence for not paying the $250 fine. There is none. “Even though it’s going to be handled by the clerk of court, they’ll never actually lose their driving privileges or something like that,” says Dan Davis, Bunnell’s city manager and a member of the subcommittee that crafted the ordinance. “That’s what I’ve been hearing all along. Even though they’re calling it a citation, they’ve not figured out a way to penalize someone for not paying the fine. And as soon as the word gets out on that, it’s a freebie.”

Yes, but not entirely: criminally speaking, it amounts to the very same thing as if the individual were to pay the fine: it eliminates any other chance for that individual to get a future citation. Any subsequent arrest on a drug charge, however small the amount of pot, would result in a criminal charge.

Legally, the county would be prevented by law from enacting an ordinance that criminalizes a violation, according to a May 20 memo by County Attorney Al Hadeed. “There are a number of ways to address a failure to pay a civil citation, but they are more limited than paying a traffic ticket or failing to abide by a criminal sanction,” Hadeed wrote. “Most importantly, the failure to pay the civil fine cannot be criminalized.”

Bunnell has consistently been opposed to the civil citation proposal, though on Wednesday Davis gave a glimmer of hope for even Bunnell to support the ordinance, assuming the city commission goes along: Davis said he could foresee the city opting in to the system, and since the ordinance leaves any arrest or citation to an officer’s discretion, Bunnell’s officers could continue exercising their discretion for arrests as opposed to citations. That would preserve what unanimity of participation the county is looking for without diminishing Bunnell’s authority to conduct arrests as it sees fit.

The same principle would apply, presumably, with other cities.

At one point Wednesday council members asked Circuit Judge Matthew Foxman to weigh in. Foxman is a member of the coordinating council. In this case, however, he was sitting in back of the room, auditing the proceedings.

He agreed to speak but cautioned the council: “I can’t contribute to the construction, language-wise, to the ordinance, nor can any member of the judiciary, because we’re going to be the ones ultimately who are asked to decide whether it is lawful, in fact, constitutional, and so it would be inappropriate for me to be a contributor in any way to the construct of the ordinance itself. It’s not a punt so much as it is that you just need to know we’re not policymakers by the separation of powers [of] the United States Constitution. We interpret, apply the law.”

Yet if what Foxman called a “non-answer” could ever be interpreted as an endorsement for the proposal, his was it. (“I’m guilty of talking too much,” he went on, pointing to two reporters and saying how they “take advantage of it.”)

Of the ordinance, Foxman then said: “It’s a tool that the criminal justice system and law enforcement can use. Another tool in the toolbox. And what do we know about toolboxes. The more tools you have, the more you can appropriately accomplish. So I think it’s very worthy of consideration, and a short answer to the drafting is I do think the county attorney, state attorney and public defender need to be very careful about how they word thing. The other thing, it’s not just the legalities. This is a consciousness of the community-type situation. It doesn’t mean you want the same consequences or patterns of what should happen as Leon County or Broward County. It’s what Flagler County wants to do. Do you look at those ordinances, do you parrot them to make sure that hey, don’t reinvent the wheel if something has already been deemed constitutional. But there’s nothing wrong with being a little different, either. We’re our own community, and a thought needs to be devoted to that. But that’s not something I can participate in. But frankly, it looks like you’re off to a good start and I appreciate the intelligent conversation about it, both those for it or against it have spoken articulately, at least in my presence.”