Ordinance and Rules Committee

Regular Meeting

Charleston, WV · July 8, 2024

Minutes

MINUTES ORDINANCE AND RULES COMMITTEE MEETING 5:00 P. M., JULY 8, 2024 THE MEETING WAS HELD IN PERSON IN THE AV ROOM #308 IN CITY HALL. Chad Robinson, Chairperson, called the meeting of the Charleston City Council Committee on Ordinance and Rules to order at 5:00 p.m., July 8, 2024. Committee Members Present: Chad Robinson, Chair Frank Annie Joseph Jenkins Emmett Pepper Absent: Patrick Salango, Vice Chair Becky Ceperley (attending Planning, Streets and Traffic meeting) Sam Minardi Other Councilmembers Present: Beth Kerns 1. Approval of Previous Minutes – Councilmember Annie motioned to approve the previous minutes from 7-1-2024. Councilmember Pepper seconded the motion. With those being present having voted unanimously in the affirmative, the Chair declared the minutes as approved as amended. 2. Bill No. 8039 - A BILL to amend the Municipal Code relating to simple possession of controlled substances and the criminal penalties; making first offense simple possession of marijuana and related substances specified in State code a non- jailable offense; clarifying the conditional discharge statutes for first offense possession charges; and updating state law references and other terminology. AND Bill No. 8043 - A BILL to amend the Municipal Code of the City of Charleston by adding a new Section 78-374, entitled "Marijuana laws and penalties,” relating to lowering the penalty for misdemeanor marijuana possession to the lowest penalty by State Law. City Attorney Kevin Baker explained that marijuana is a controlled substance under West Virginia law that can be penalized by a fine of up to $1,000 and jail time of not less than 90 days and no more than 6 months. Bill No. 8039 cleans up City Code to match the State’s language. Under current City Code, the first offense is up to 30 days and a $500 fine, and uses the process of discharging and expunging for first offense with marijuana. The bill also changes the first offense to up to $100 fine with no jail time. For subsequent offenses, the bill retains the current Code with higher fines and jail time. It also incorporates the definitions and schedules from State Code. Baker added that the Petition would create a new Section in City Code that defines marijuana per State Code, and states that upon a misdemeanor possession conviction, the jail time of 90 days is suspended unconditionally with a fine of $0 and no court costs. Baker added that he has a few legal concerns about the petition. State Law only authorizes municipalities to punish by confinement up to 30 days in jail. Although suspended unconditionally, the petition states 90 days. It requires an unconditional suspension of court costs, the collection of which is required by State Law. He was not sure how that could be carried out if the ordinance was enacted. Additionally, the language of the petition calls for language on the ballot is not a fair reflection as to what is stated in the bill. Baker added that under the petition, a defendant would no longer have the ability to appeal their case. Councilmember Pepper asked if other cities had done something similar to what the petition proposes. Baker replied that he has been found any statutes that specifically require that a sentence be suspended unconditionally, but Ohio sometimes does it in practice. Councilmember Pepper asked if the ballot language could be corrected. Baker replied that is unclear according to the Charter, however it seemed reasonable that it would be within the Clerk’s authority to submit it properly for the ballot. It might also be possible that Council could vote on the proper wording for the ballot. Councilmember Pepper summarized the options for the Petition as being they could pass it, or not pass it, at which point it would go on the General ballot. If it would be approved via ballot, Council would not be able to amend it. Baker added that the Petition was referred to the Committee for discussion. Councilmember Pepper confirmed that if the Petition was passed by Council, it could be amended. Councilmember Jenkins asked if this portion of the Charter was still valid after the passage of the State’s municipal code. Baker replied that since this process was last used in the 1950s, he did not see anything that would invalidate it. He did find a section of State Code that authorizes ballot initiatives by Charter that lists a requirement of signatures equal to 10% of registered voters. Referring to Bill No. 8039, Councilmember Jenkins confirmed that Part A referred to any controlled substance other than marijuana and synthetic cannabinoids. He added that he thought there was a drafting issue causing confusion that made it seem like there was no penalty for all controlled substances. Baker agreed. Councilmember Annie confirmed that they could reduce fines and jail time, and could keep the system in place that would give the Municipal Judge more options. He asked if this would extend to synthetic marijuana. Baker confirmed that it would as drafted. Councilmember Pepper asked if they could pass a bill that was in the spirit of the Petitioner bill. Baker replied that he believed that the Petitioner bill could be appropriately withdrawn with a letter from Corey Zinn, as he was the person who submitted the bill and signatures. Councilmember Robinson added that it seemed like the most direct process would be if the Petition bill were withdrawn, and Bill No. 8039 were amended. Councilmember Jenkins added that the best option would be to advise Council to pass the Petition bill, which can be addressed with the other bill. Councilmember Pepper suggested that if they passed Bill No. 8039 in the spirit of the Petition bill, that might satisfy the petitioner to withdraw their bill. Councilmember Pepper confirmed with Baker that if the City did not follow the required 407 Section, then someone could be treated differently in Circuit Court than Municipal Court. Regarding removing the 15 grams limitation, Councilmember Jenkins asked if that would also apply to someone with an unreasonably large amount of marijuana. Baker replied that the totality of circumstances is taken into account to prove possession with intent versus simple possession. Councilmember Pepper confirmed that the bill states that a person can be placed on probation rather than incineration if they do not have a previous conviction. Baker replied that was the diversion program, which is currently used as a one-time situation. Regarding the 2nd Pepper Amendment, Councilmember Jenkins expressed concerns that it would open it up too far. He added that the language also states “shall.” He suggested a time frame. Councilmember Annie suggested 1 year. Baker clarified with Councilmember Pepper that the intent of the amendment was to allow use of the program multiple times for the use of marijuana and synthetic cannabinoids only. Councilmember Jenkins suggested that they instead change the language to number of times a deferment can be used. Regarding the 3rd Pepper amendment, Councilmember Jenkins confirmed that MDVP etc. was also referred to as ‘bath salts.’ Councilmember Jenkins added that he did not think possible jail time should be removed for offenses involving more harmful substances such as bath salts. Councilmember Robinson agreed. Regarding the Annie Amendment, Councilmember Jenkins thought it was fine to remove fines for the first offense, but not for subsequent offenses. Councilmember Robinson agreed. Bill No. 8039: Councilmember Jenkins motioned to amend Bill No. 8039 to contain the technical changes as previously stated. With those being present having voted unanimously in the affirmative, the Chair declared the amendment as passed. Councilmember Pepper motioned to amend Bill No. 8039 to remove the 15 grams limitation. With those being present having voted unanimously in the affirmative, the Chair declared the amendment as passed. Councilmember Pepper motioned to amend Bill No. 8039 to allow a person to qualify for the diversion program regardless of previous convictions. Councilmember Pepper reformed his amendment to allow for a 12-month period deferment between convictions as previously mentioned. With those being present having voted in the majority as affirmative, with a Nay from Jenkins, the Chair declared the amendment as passed. Councilmember Pepper motioned to amend Bill No. 8039 to remove all instances that listed incarceration on page 4. Councilmember Pepper reformed his amendment to only include marijuana and synthetic cannabinoids. With those being present having voted unanimously in the affirmative, the Chair declared the amendment as passed. Councilmember Annie motioned to amend Bill No. 8039 to change the language to no fines but include court costs for all marijuana and With those being present having voted unanimously in the affirmative, the Chair declared the amendment as passed. convictions. Councilmember Annie reformed his amendment so that the language referred to the first offense. With those being present having voted unanimously in the affirmative, the Chair declared the amendment as passed. Councilmember Annie motioned to lay over Bill No. 8039 until the next meeting on July 15, 2024. With those being present having voted unanimously in the affirmative, the Chair declared the motion to lay over Bill No. 8039 as passed. Councilmember Jenkins motioned to lay over Bill No. 8043 until the next meeting on July 15, 2024. With those being present having voted unanimously in the affirmative, the Chair declared the motion to lay over Bill No. 8043 as passed. Councilmember Annie motioned to adjourn the meeting. Meeting adjourned.

Agenda

Packet

CITY OF CHARLESTON WEST VIRGINIA Council Member – Ward 20 Chad Robinson Ordinance and Rules Committee, Chair 793 Lower Donnally Rd. Parks and Recreation Committee Charleston, WV 25304 Finance Committee 304- 389-7373 Parking Facilities Committee chad.robinson@cityofcharleston. org A meeting of the Council Committee on Ordinance & Rules will be held on Monday, July 8, 2024 at 5:00 PM. To be held in person AV ROOM #308, CITY HALL Agenda APPROVAL OF PREVIOUS MINUTES 1. 7-1-2024 BILLS 1. Bill No. 8039 - A BILL to amend the Municipal Code relating to simple possession of controlled substances and the criminal penalties; making first offense simple possession of marijuana and related substances specified in State code a non- jailable offense; clarifying the conditional discharge statutes for first offense possession charges; and updating state law references and other terminology. 2. Bill No. 8043 - A BILL to amend the Municipal Code of the City of Charleston by adding a new Section 78-374, entitled "Marijuana laws and penalties,” relating to lowering the penalty for misdemeanor marijuana possession to the lowest penalty by State Law. ADJOURN CR/ns *Meetings may be recorded and broadcast via internet https://charlestonwv.civicclerk.com Page | 1 of Page | 2 of MINUTES ORDINANCE AND RULES COMMITTEE MEETING 6:00 P. M., JULY 1, 2024 THE MEETING WAS HELD IN PERSON IN THE AV ROOM #308 IN CITY HALL. Chad Robinson, Chairperson, called the meeting of the Charleston City Council Committee on Ordinance and Rules to order at 6:00 p.m., July 1, 2024. Committee Members Present: Chad Robinson, Chair Patrick Salango, Vice Chair Frank Annie Becky Ceperley Joseph Jenkins Sam Minardi Emmett Pepper Absent: Other Councilmembers Present: Joe Solomon Bruce King 1. Approval of Previous Minutes – Councilmember Annie motioned to approve the previous minutes from 5-6-2024. Councilmember Minardi seconded the motion. With those being present having voted unanimously in the affirmative, the Chair declared the minutes as approved as amended. Page | 3 of 2. Bill No. 8037 - A BILL to amend the Municipal Code relating to updating the City Center Private Outdoor Designated Area to include two special event locations; updating the City Center PODA map; explicitly vesting the City Manager with the authority to adjust the active boundary of the Private Outdoor Designated Area in order to account for special event locations; and requiring additional signage relating to the special event locations.– City Manager Ben Mishoe added that some municipalities have had problems with special events operating within PODAS. The ABC’s opinion that for special events, the entire PODA should be shut down. The Legislature has made some changes during their most recent session concerning special events operating within PODAS by creating a special event license, with the special event becoming a PODA retailer. Due to the excellent relationship with the ABC, the City was able to host the first special event PODA in the State with the Bike Bash. Live on the Levee has also been operating under this statute. Mishoe added that sometimes this is cost prohibitive. They have worked with ABC to adjust the map to where the footprint will remain the same, but there will now be two separate special event areas within the Downtown City Center Map. The areas are City Plaza at Slack Plaza and Haddad Riverfront Park. If there is a special event within those areas that do not want to participate in the PODA, the City will have the ability to temporarily shut down that portion of the PODA. During these times, large signs will be placed around the perimeter explaining the boundaries and rules. Councilmember Pepper confirmed with Mishoe that the Regatta special event is slightly larger than the current PODA footprint. Most other events that will happen within that area will fall directly within that PODA. Councilmember Jenkins added that practically speaking, this would come down to the types of cups that are being used, since the PODA requires a very specific cup. City Attorney Kevin Baker added that the cups are fairly expensive for vendors. Additionally, some events want their vendors to sell their products inside the event. Mishoe added that since a lot of the special events are run by non-profits, the special license fee of $500 would be a deterrent. Councilmember Robinson confirmed that the supply of cups donated to the City by the CVB have all been distributed, and vendors are now responsible for ordering them. Councilmember Annie moved to approve Bill No. 8037. Councilmember Minardi seconded. With those being present having voted unanimously in the affirmative, the Chair declared Bill No. 8037. Councilmember Annie motioned to adjourn the meeting. Meeting adjourned. Page | 4 of Bill No. 8039 Introduced in Council: Adopted by Council: July 1, 2024 Introduced by: Referred to: Frank Annie and Chad Robinson Ordinance & Rules______ 1 Bill No. 8039 - A BILL to amend and reenact Sections 78-371, 78-372, and 78-373 of the 2 Municipal Code of the City of Charleston, as amended, relating to simple possession of 3 controlled substances and the criminal penalties therefore; making first offense simple 4 possession of marijuana and related substances specified in State code a non-jailable 5 offense; clarifying the conditional discharge statutes for first offense possession charges; 6 and updating state law references and other terminology. 7 8 Now, therefore, be it ordained by the Council of the City of Charleston: 9 10 That Subdivision I of Division 5 of Article V of Chapter 78, specifically, Sections 78-371, 11 78-372, and 78-373 of the Municipal Code of the City of Charleston, as amended, are 12 hereby amended and reenacted to read as follows: 13 14 DIVISION 5. - DRUGS AND RELATED OFFENSES 15 16 Subdivision I. - In General 17 18 Sec. 78-371. - Conditional discharge for first offense of simple possession of 19 controlled substances; possession of 15 grams or less of marijuana; expungement 20 of records; subsequent offenses. 21 22 (a) Whenever any person who has not previously been convicted of any offense under 23 this chapter subdivision or under any statute of the United States or of any state relating 24 to controlled substances, narcotic drugs, marijuana, or stimulant, depressant, or 25 hallucinogenic drugs, pleads guilty to or is found guilty under this section, the court, 26 without entering a judgment of guilt and with the consent of the accused, may defer further 27 proceedings and place him or her on probation upon terms and conditions which may 28 include, but is not limited to, participation in a substance abuse treatment program. Upon 29 violation of a term or condition, the court may enter an adjudication of guilt and proceed 30 as otherwise provided. Upon fulfillment of the terms and conditions, the court shall 31 discharge the person and dismiss the proceedings against him or her. Discharge and 32 dismissal under this section shall be without adjudication of guilt and is not a conviction 33 for purposes of this section or for purposes of disqualifications or disabilities imposed by 34 law upon conviction of a crime. The effect of the dismissal and discharge shall be to 35 restore the person in contemplation of law to the status he or she occupied prior to arrest Page | 5 of 36 and trial. No person as to whom a dismissal and discharge have been effected shall be 37 thereafter held to be guilty of perjury, false swearing, or otherwise giving a false statement 38 by reason of his or her failure to disclose or acknowledge his or her arrest or trial in 39 response to any inquiry made of him or her for any purpose. There may be only one 40 discharge and dismissal under this section with respect to any person. 41 42 (b) Notwithstanding any other provision of this section to the contrary, any first offense for 43 possession of marijuana shall be disposed of as described in section (a) above. The 44 definitions set forth in Article I of the West Virginia Controlled Substances Act at West 45 Virginia Code § §60A-1-101, et seq., and the schedules of controlled substances set forth 46 in Article II of the West Virginia Controlled Substances Act at West Virginia Code § 60A- 47 2-201, et seq., including as they may be amended from time to time, are hereby fully 48 incorporated and made a part of this Chapter by reference, 49 50 (c) After a period of not less than six months which shall begin to run immediately upon 51 the expiration of a term of probation imposed upon any person under this chapter, the 52 person may apply to the court for an order to expunge from all official records all 53 recordations recordation of his or her arrest, trial, and conviction, pursuant to this section. 54 If the court determines after a hearing that the person during the period of his or her 55 probation and during the period of time prior to his or her application to the court under 56 this section has not been guilty of any serious or repeated violation of the conditions of 57 his or her probation, it shall order the expungement. 58 59 (d) Notwithstanding any provision of this Code to the contrary, any person prosecuted 60 pursuant to the provisions of this article whose case is disposed of pursuant to the 61 provisions of this section shall be liable for any court costs assessable against a person 62 convicted of a violation of this section. Payment of such costs may be made a condition 63 of probation. 64 65 (e) Any person convicted of a second or subsequent offense under this section may be 66 fined up to $500.00 and/or sentenced to 30 days in jail. For purposes of this section an 67 offense is considered a second or subsequent offense if, prior to his conviction of the 68 offense, the offender has at any time been convicted under this Code or under any state 69 statute or statute of the United States or of any state relating to narcotic drugs, marijuana, 70 depressant, stimulant or hallucinogenic drugs. 71 72 Sec. 78-372. - Purporting to sell controlled substances. 73 74 (a) No person shall at any time sell any substance which that person purports to be a 75 controlled substance, as defined under schedules I through V of article II of the Uniform 76 Controlled Substances Act (W. Va. Code § 60A-2-201 et seq.) when in actuality the 77 substance sold contains no controlled substances. 78 79 (b) Whoever violates the provisions of this section shall, upon conviction, be guilty of a 80 misdemeanor and fined not more than $100.00 or be imprisoned for a period not to 81 exceed 30 days, or both. Subsequent violations upon conviction shall be punishable by a Page | 6 of 82 mandatory $100.00 fine and, in the discretion of the court, imprisonment not to exceed 83 30 days. 84 85 Sec. 78-373. - Illegal possession of controlled substances; simple possession of 86 marijuana. 87 88 (a) Simple Possession of Controlled Substances Prohibited. It is unlawful for any person 89 knowingly or intentionally to possess a controlled substance, specifically a drug, 90 substance or immediate precursor in schedules I through V as set forth in W. Va. Code 91 §§ 60A-2-204, 60A-2-206, 60A-2-208, 60A-2-210 and 60A-2-212 (W. Va. Code § 60A-2- 92 204, et seq.), unless the substance was obtained directly from or pursuant to, a valid 93 prescription or order of a practitioner while acting in the course of his professional 94 practice, or except as otherwise authorized by this Code or West Virginia law. Any Except 95 as provided in subsection (b) of this section for simple possession of synthetic 96 cannabinoids, 3,4-methylenedioxypyrovalerone (MDPV), 4-methylmethcathinone 97 (mephedrone), or less than 15 grams of marijuana, any person who violates this section 98 is guilty of a misdemeanor and may be fined up to $500.00 and/or sentenced to 30 days 99 in jail; however, notwithstanding any other provision of this division to the contrary, any 100 first offense for possession of 15 grams or less of marihuana shall be disposed of under 101 section 78-371(e). 102 103 (b) Conditional discharge for first offense of possession. 104 105 (1) Whenever any person who has not previously been convicted of any offense under 106 this Code or under any state statute or statute of the United States relating to narcotic 107 drugs, marihuana, or stimulants, depressant or hallucinogenic drugs pleads guilty to or is 108 found guilty of possession of a controlled substance under this section, the court, without 109 entering a judgment of guilt and with the consent of the accused, may defer further 110 proceedings and place such persons on probation upon terms and conditions. Upon 111 violation of a term or condition, the court may enter an adjudication of guilt and proceed 112 as otherwise provided. Upon fulfillment of the terms and conditions, the court shall 113 discharge the person and dismiss the proceedings against him. Discharge and dismissal 114 under this section shall be without adjudication of guilt and is not a conviction for purpose 115 of this section or for purpose of disqualifications or disabilities imposed by law upon 116 conviction of a crime, including the additional penalties imposed for second or subsequent 117 convictions. The effect of such dismissal and discharge shall be to restore such person 118 in contemplation of law to the status he occupied prior to such arrest and trial. No person 119 as to whom such dismissal and discharge have been effected shall be thereafter held to 120 be guilty of perjury, false swearing or otherwise giving a false statement by reason of his 121 failure to disclose or acknowledge such arrest or trial in response to any inquiry made of 122 him for any purpose. There may be only one discharge and dismissal under this section 123 with respect to any person. 124 125 (2) After a period of not less than six months which shall begin to run immediately upon 126 the expiration of a term of probation imposed upon any person under this division, such 127 person may apply to the court for an order to expunge from all official records all Page | 7 of 128 recordings of his arrest, trial and conviction pursuant to this section. 129 130 (b) Simple Possession of Synthetic Cannabinoids, MDPV, Mephedrone, and Less Than 131 15 Grams of Marijuana Prohibited. It is unlawful for any person knowingly or intentionally 132 to possess synthetic cannabinoids, 3,4-methylenedioxypyrovalerone (MDPV), 4- 133 methylmethcathinone (mephedrone), or less than 15 grams of marijuana, unless the 134 substance was obtained directly from, or pursuant to, a valid prescription or order of a 135 practitioner while acting in the course of his or her professional practice, or except as 136 otherwise authorized by West Virginia law. Any person who violates this section is guilty 137 of a misdemeanor, and, upon a conviction: (1) for a first offense, may be fined not more 138 than $100.00; (2) for a second or subsequent offense, may be fined not more than 139 $500.00, imprisoned not more than 30 days in the regional jail, or both fined and 140 imprisoned. Further, notwithstanding any other provision of this code to the contrary, 141 whenever a person has not previously been convicted of any offense under this 142 subsection or under any statute of the United States or of any state for simple possession 143 of synthetic cannabinoids, MDPV, mephedrone, or less than 15 grams of marijuana, such 144 initial conviction shall be disposed of under section 78-371(a). 145 Page | 8 of Page | 9 of Page | 10 of Page | 11 of