Rolla's City Council held the first reading of an ordinance to amend the city code that currently makes the possession of 35 grams or less of marijuana illegal with no exception for medical marijuana that applicants approved by the state can legally possess.
The ordinance was drafted after Rolla Police Chief Sean Fagan notified the city that the marijuana possession law on the books doesn’t preclude medical marijuana. State health regulators have already approved more than 10,000 patient and caregiver applications in the program’s initial weeks leading up to the availability of medical cannabis in Missouri early next year.
Rolla City Administrator John Butz introduced the ordinance for the council to consider. Butz said the ordinance amends Rolla’s law on the possession of cannabis by adding language to make an exception for individuals who have patient or caregiver medical cannabis cards approved by Missouri’s Department of Health.
There is no exception in the ordinance for equipment designed for use in planting, propagating, cultivating, harvesting and manufacturing marijuana that Rolla’s law defines as drug paraphernalia, and illegal in the city.
City councilor Jody Eberly alerted the council to the city’s current definition of drug paraphernalia, and the problem it presents for any prospective business owners wanting to grow, manufacture and sell medical cannabis in the city’s limits.
The city has already reached a memorandum of understanding with a company out of Denver to open a medical marijuana cultivation facility in Rolla, if the state awards the company an operating license. Rolla’s possession law currently classifies possession of 35 grams or less of marijuana or possession of drug paraphernalia a criminal misdemeanor, punishable by a maximum fine of $500, a maximum prison sentence of 90 days, or punishable by both a fine and imprisonment.
When looking over the penalty provisions of the law, Rolla City Councilor Matthew Crowell said, under state law if an individual possesses 10 grams or less of marijuana it’s a fine-only offense, but under Rolla’s law an individual can be in prison for 90 days or sentenced to a fine and imprisonment.
Crowell suggested the council amend the city’s possession law to be in line with the state instead of carrying a more severe punishment if an individual is found to have up to 10 grams of marijuana.
Lawmakers enacted Senate Bill 491 that reduced penalties for those possessing up to 10 grams of cannabis. The legislation went into effect in 2017 rewriting Missouri’s criminal code so that the possession of 10 grams or less of marijuana is punishable by a fine only. The offense remains classified as a criminal misdemeanor, and the possession of over 10 grams of cannabis remains punishable by jail time in Missouri.
“The state legislature deemed it necessary that there be a distinction between possessing up to 10 grams of marijuana versus 10 to 35 grams of marijuana,” Crowell said. “I don’t know if that distinction is that important, and if I care much about that distinction, but because up to 10 grams only carries with it a fine; I don’t think the city should be seeking more than just a fine, at least up to 10 grams, and quite frankly up to 35 grams should be a fine only.”
The council members agreed with Crowell in making the city’s punishment for marijuana possession match the punishment enacted by the state. The council chose to set the draft ordinance aside and prepare a new draft overhauling Rolla’s current marijuana possession law.
Carolyn Buschjost provided legal counsel for the city and said a new draft of the ordinance with the council’s recommendations would be prepared to bring back to the council for a first reading.
The ordinance would revise the definition of paraphernalia and amend the city’s current law to align with Article XVI of Missouri's Constitution, which took effect in 2018. Article XVI made medical marijuana legal for registered patients and caregivers, and stipulates that medical marijuana can be grown, sold and used only by individuals and businesses authorized by the state.
The city’s possession law would be updated to the current criminal code of the state and make the possession of up to 10 grams of marijuana punishable by a fine only. The possession of more than 10 grams of marijuana in the city would have the same punishment of a fine, jail or both. Rolla City Councilor David Schott, however, recommended taking away the possibility of imprisonment in the ordinance after the council heard the legal opinion on the city’s authority to decriminalize the possession of marijuana.
Legal counsel was asked by the city to look into the legal authority of a third-class statutory city to decriminalize small quantity possession of marijuana that surfaced at a June City Council meeting.
Buschjost read the legal opinion attorney Lance Thurman prepared for the council. Thurman said decriminalization doesn’t accurately apply to what is allowed or not allowed in a third-class statutory city. The city doesn’t have the authority to say that possession of up to 35 grams of marijuana isn’t a criminal act. Law enforcement still must follow state law.
Four cities have attempted decriminalization. The four cities were charter cities that removed jail in the range of punishment and used a fine, so the possession of up to 35 grams of marijuana is treated more like a traffic ticket. In the four instances Thurman has found in Missouri, he said it’s the largest aspect of the ordinance change.
Thurman said the city of Rolla could remove jail from the range of punishment in the city’s possession law. The council would just have to eliminate by ordinance the possibility of imprisonment. Thurman said the city could also reduce the fine amount or set a specific fine amount in the law, yet he has found nothing that would allow the city to mandate that all criminal cases go through municipal court.
Councilor Schott recommended the council remove the punishment of jail in the city’s possession law and make the punishment similar to the way the city handles parking tickets with a set fine.
“Most important for me, is that I think we are making a statement and we are also allowing our resources, which are already thin, to be put towards things that are already tearing our community apart, a lot more than this particular issue, like opioids, fentanyl and methamphetamine,” Schott said.
He added, “And we are leaving those treatment centers, the jails, probation officers to take care of those things that are of higher importance, that are not thinning our resources. I think removing the jail time is the important thing to do right here.”
Rolla Mayor Louis Magdits said he supported Schott in the city making a statement, but taking away the possibility of jail in the range of punishment, he said, wouldn’t change the allocation of resources, since it’s a rare occurrence that somebody is sentenced to jail for having up to 35 grams of marijuana.
Rolla Police Chief Fagan said the city’s police wrote out 44 tickets for misdemeanor marijuana possession in 2018. Fagan said police have the ability to arrest an individual for possession of marijuana and release them on a summons, but more often than not they are just given a ticket.
The council decided to hold off on removing jail time in the range of punishment in Rolla’s possession ordinance. The council chose to first bring back a new ordinance to amend the current possession law to align with Missouri's medical marijuana program and make the fine and punishment match the current criminal code of the state.
“To me, this goes a long way towards making us consistent with what we need to be doing, and also with what I think David is talking about — moving in the direction of having a reasonable punishment for the crime considering that Amendment 2 was passed,” Buschjost said.