Ordinance and Rules Committee — Charleston, WV
Date: 2024-07-08
Time: 17:00

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

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

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.