(A) Definitions. The following words, terms, and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning.
CANNABIS. All parts of any plant of the genus Cannabis, whether growing or not, or the seeds thereof. The term does not include "low-THC cannabis," as defined in Fla. Stat. § 381.986, if manufactured, possessed, sold, purchased, delivered, distributed, or dispensed in conformance with that section. CANNABIS also does not include the resin extracted from the plants of the genus Cannabis, or any compound manufacture, salt, derivative, mixture, or preparation of such resin.
NOTICE OF VIOLATION. A notification by a law enforcement officer of the initiation of a civil penalty against an individual for an alleged violation of possession of twenty (20) grams or less of cannabis or possession of drug paraphernalia.
SPECIAL MAGISTRATE. An attorney designated by the City Attorney to conduct hearings related to a notice of violation issued for possession of twenty (20) grams or less of cannabis or possession of drug paraphernalia.
(B) The following misdemeanors under state law are eligible to receive a civil violation notice, at the discretion of a law enforcement officer:
(1) Possession of twenty (20) grams or less of cannabis, as set forth in Fla. Stat. § 893.13(6)(b), as such may be amended from time to time; and/or
(2) Possession of drug paraphernalia, as set forth in Fla. Stat. §§ 893.146 and 893.147(1)(b), as such may be amended from time to time.
(C) Qualifications. A law enforcement officer shall have the discretion to issue a civil violation notice under this section in lieu of a state misdemeanor charge for the offense, subject to the following limitations:
(1) The violator is eighteen (18) years or older;
(2) 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; and
(3) No person may receive more than three (3) civil violation notices pursuant to this section.
(D) Penalties. An individual issued a civil violation under this section is subject to the following penalties:
(1) For the first violation, the violator shall pay one hundred fifty dollars ($150) OR elect to perform fifteen (15) hours of community service to be performed at the Habitat for Humanity of Brevard County.
(2) For the second violation, the violator shall pay three hundred dollars ($300) OR elect to perform thirty (30) hours of community service to be performed at the Habitat for Humanity of Brevard County.
(3) For the third violation, the violator shall pay five hundred dollars ($500) AND attend an outpatient treatment program at the Specialized Treatment, Education and Prevention Services, Inc., (STEPS) of Brevard County. The three hundred fifty dollar ($350) program fee charged by STEPS shall be deducted from the five hundred dollars ($500) paid to the City of Palm Bay.
(E) Enforcement. The City of Palm Bay 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 law enforcement officer finds a violation of (B)(1) or (2), the officer will be authorized to issue a notice of violation.
(1) 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 magistrate within ten (10) business days after service of the notice of violation, and that the failure to appeal the violation within ten (10) business days of service shall constitute an admission of the violation and a waiver of the right to a hearing.
(F) Rights of violators.
(1) A violator who has been served with a notice of violation must elect to either:
(a) Pay the civil fine or elect to perform the required community service or attend the STEPS Program as indicated on the notice of violation; or
(b) Request an administrative hearing before a special magistrate to appeal the notice of violation, which must be requested within ten (10) business days of the service of the notice of violation.
(2) Applications for hearings must be accompanied by a fee as approved by a resolution of the City Council, which shall be refunded if the named violator prevails in the administrative hearing.
(G) Failure to pay civil fine or to appeal.
(1) If the named violator, after ten (10) business days following the issuance of the notice of violation, fails to pay the civil fine, elect to perform the required community service, or request an administrative hearing, the violator may be prohibited from receiving further civil citations, a judgment may be recorded for any unpaid fines, the City of Palm Bay may use any collection methods authorized by Fla. Stat. Ch. 55, or the case may be sent to the State Attorney's Office for prosecution.
(2) The failure of the named violator to attend the STEPS Program may result in the case being sent to the State Attorney's Office for prosecution.
(H) Procedures governing contesting notice of violations.
(1) The special magistrate 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 petitioner has failed to request an administrative hearing within ten (10) business days of the service of the notice of violation.
(2) If a petitioner requests a hearing but later chooses to cancel the hearing or fails to appear at the hearing, the hearing application fee shall be forfeited.
(3) If the petitioner requests a hearing and does not appear at the hearing, the violator waives the rights to present additional evidence or additional defenses at the hearing. The special magistrate may decide based on the Notice of Violation.
(4) All testimony at the hearing shall be under oath. Formal rules of evidence do not apply, but due process shall be observed and govern the proceedings.
(5) The special magistrate shall not have discretion to alter the penalties prescribed in subsection (D).
(6) At the conclusion of the hearing, the special magistrate shall determine whether a violation under this section has occurred, in which case the special magistrate shall uphold or dismiss the violation. The special magistrate shall issue a final administrative order including the determination and, if the violation is upheld, require the petitioner to pay the fine previously assessed pursuant to subsection (D) and order the forfeiture of the hearing application fee to the city.
(7) If the violator fails to pay the fine within ten (10) days after the special magistrate issues an order, a certified copy of the order imposing a fine may be recorded in the public records. Such order shall constitute a judgment lien and be governed by Fla. Stat. Ch. 55.
(8) Any party aggrieved by a decision of a special magistrate may appeal that decision to a court of competent jurisdiction.
(I) Seizure and destruction of contraband cannabis.
(1) Any contraband cannabis that is the subject of a violation of this chapter shall be seized for evidentiary purposes.
(2) Contraband cannabis seized pursuant to this section, after its use as evidence is no longer required, shall be destroyed in the same manner used to destroy narcotics, as provided by law.
(J) Disposition of fines. All fines collected, minus administrative costs, shall be used for drug abuse awareness, education or prevention programs.
(Ord. 2019-25, passed 7-18-19)