Ordinance and Rules Committee — Charleston, WV
Date: 2024-08-15
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 Thursday, August 15,
 2024 at 5:00 PM. To be held in person
 AV ROOM #308, CITY HALL

*Join via Zoom:
https://us02web.zoom.us/j/82879900081?pwd=vkbcaqEGDzW7aDpelbChz9oEnIPLOq.1
Passcode: 130539
*Join via Telephone: (312) 626-6799 or (929) 436-2866
Webinar ID: 828 7990 0081


 Agenda

APPROVAL OF PREVIOUS MINUTES

 1. 7-15-2024

BILLS

 1. Bill No. 8039 Committee Substitute - A BILL to amend the Municipal Code relating to
 updating, clarifying, and reforming the controlled substances offenses in the
 Municipal Code, incorporating the state code definitions and schedules of
 controlled substances, reducing the penalties for simple possession of certain
 controlled substances; making simple possession of marijuana a non-jailable
 offense; clarifying the conditional discharge statutes for simple possession charges;
 and expanding the possibilities for discharge of controlled substance possession
 charges.

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 Thursday, August 15,
 2024 at 5:00 PM. To be held in person
 AV ROOM #308, CITY HALL

*Join via Zoom:
https://us02web.zoom.us/j/82879900081?pwd=vkbcaqEGDzW7aDpelbChz9oEnIPLOq.1
Passcode: 130539
*Join via Telephone: (312) 626-6799 or (929) 436-2866
Webinar ID: 828 7990 0081


 Agenda

APPROVAL OF PREVIOUS MINUTES

 1. 7-15-2024

BILLS

 1. Bill No. 8039 Committee Substitute - A BILL to amend the Municipal Code relating to
 updating, clarifying, and reforming the controlled substances offenses in the
 Municipal Code, incorporating the state code definitions and schedules of
 controlled substances, reducing the penalties for simple possession of certain
 controlled substances; making simple possession of marijuana a non-jailable
 offense; clarifying the conditional discharge statutes for simple possession charges;
 and expanding the possibilities for discharge of controlled substance possession
 charges.

ADJOURN




CR/ns
*Meetings may be recorded and broadcast via internet https://charlestonwv.civicclerk.com


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Page | 2 of
 MINUTES
 ORDINANCE AND RULES COMMITTEE MEETING

 5:30 P. M., JULY 15, 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 5:30 p.m., July 15, 2024.

Committee Members Present:
Chad Robinson, Chair
Patrick Salango, Vice Chair
Frank Annie
Becky Ceperley
Joseph Jenkins
Emmett Pepper

Absent:
Sam Minardi


Other Councilmembers Present:
Beth Kerns
Joe Solomon
Bruce King
Chuck Overstreet
Mary Beth Hoover
Shawn Taylor
Caitlin Cook




 1. Approval of Previous Minutes –

Councilmember Ceperley motioned to approve the previous minutes from 7-8-2024.
Councilmember Annie seconded the motion. With those being present having voted
unanimously in the affirmative, the Chair declared the minutes as approved as
amended.




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 2. Bill No. 8039 Committee Substitute - A BILL to amend the Municipal Code by
 adding a new section related to controlled substances offenses in Municipal
 Code.

City Attorney Kevin Baker explained that Section 371 now incorporates new language
that incorporates the definition and schedules from State Code. Section 373 is broken
into three subdivisions. It sets a first offense for simple possession of marijuana and
synthetic cannabinoids to a fine of $0 and no jail time. Second offense is set at up to
$500 fine and no jail time. They both require the diversion program to be used. The
reference of 15 grams of marijuana has been removed.

Councilmember Jenkins pointed out that “prohibited” should be added to Section 78-373
b for consistency. Baker agreed.

Councilmember Ceperley received clarification from Baker that the bill would not
legalize marijuana. It would reduce the penalty by removing jail time in Municipal Court.
Councilmember Ceperley asked what the reason for the bill was. Councilmember Annie
replied that it reflects the trends throughout the country. The person would still have to
go to court and pay court fees. Councilmember Robinson added that the bill is a
modernization of City Code.

Councilmember Robinson confirmed that the 15 grams was removed in the definition
per Councilmember Pepper’s amendment during the previous meeting. Police Chief
Dempsey added that the removal of the “15 grams” would change police operations as
to how certain crimes were charged.

Councilmember Jenkins added that nation trends are moving to where resources are
better spent on enforcing harder drugs, violent crimes, etc. Removing jail time also
removes the cost to the city. Councilmember Jenkins asked if it could impact the
police’s ability to leverage a simple possession charge. Chief Dempsey replied that he
thought it would to a certain extent. He cautioned the Committee to consider all factors
when making their decision.

Councilmember Robinson confirmed with Baker that the Municipal Court has given jail
time to anyone with simple possession charge of marijuana for some time.

Councilmember Pepper confirmed with Baker that the deferment plan is an option for
other types of possession, and there are other ways to get individuals treatment.
Attorney David Potters added that the Public Defender’s Office pays for a panel counsel
to represent individuals that qualify for a free lawyer from their budget.

From the audience, Councilmember Taylor asked if the Municipal Judge had been
consulted. Councilmember Robinson replied that the Attorney’s Office did discuss it with
them generally. Councilmember Taylor added that there are court costs imposed and
required by State Code. He added that a non-jailable offense removes the right for an
individual to apply for free counsel.




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Councilmember Pepper motioned to approve Bill No. 8039 Committee Substitute with
the previously mentioned technical clean up. Councilmember Annie seconded. With
those being present having voted in the majority in the affirmative, with one recognized
Nay from Ceperley, the Chair declared Bill No. 8039 Committee Substitute as approved.




 3. 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.

The chair removed the item from the agenda.




 4. Bill No. 8038 - A BILL to amend the Municipal Code relating to expanding the
 urban deer hunt to allow for urban bear and coyote hunting; authorizing the use
 of air rifles of .22 caliber or larger to hunt coyotes as part of the urban hunt; and
 expanding the hours to allow for hunting of coyotes at night on private property.

Baker explained that the bill expands the current Urban Deer Hunt to include the
possible hunting of coyote and bear. The time period remains the same, and
requirements remain the same, with the exception that a hunter may use an air rifle to
hunt coyotes in accordance with County and State Code.

Councilmember Ceperley confirmed with Baker that bears can only be hunted with bow
and arrow or compound bow.

Councilmember Robinson confirmed that the bag limit for coyote was unlimited and two
per year for bear.

Councilmember Pepper asked what problem the bill would solve. Councilmember
Robinson replied that coyotes are dangerous to humans and other animals (pets), and
are in several neighborhoods. There have also been multiple sightings of bears every
year in certain neighborhoods, in trash, on cars and in backyards and patios.
Councilmember Annie added that the initial reason for the bill was that cats were being
killed by coyotes in his neighborhood.

Councilmember Pepper asked if any other municipalities in the State have similarly
authorized hunting. Baker replied that was not part of his research for the bill.
Councilmember Pepper added that he would want to know if there had been any




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instances of dogs being mistaken for coyotes, are coyotes more aggressive if they have
been shot but not killed, etc. He added that he has not heard from constituents
regarding bears or coyotes. Part of the problem with these two animals is that they are
getting food near houses, and the bill does not address that.

From the audience, Councilmember Solomon advocated that a study be first conducted
as to population distribution, locations of incidents, the role such animals play in the
environment, etc.

Baker added that the bill is silent on whether dogs be allowed to hunt bears. State Code
allows it. It would be reasonable to assume City Code does as well unless otherwise
stated.

Councilmember Annie motioned to approve Bill No. 8038 Councilmember Ceperley
seconded. With those being present having voted in the majority in the affirmative, with
one recognized Nay from Ceperley, the Chair declared Bill No. 8038 as approved.




 5. Bill No. 8040 Committee Substitute - A BILL to amend the Municipal Code
 relating to dogs running at large, and the penalties and impoundment therefore.

Baker explained that the bill contains some clean up language that essentially requires
a god to be on a lease unless it is on the owner’s property. It would provide more
discretion to the Court as to penalties and fines within the set range. The Committee
Substitute clarifies the definition of an aggressive dog.

Councilmember Annie added that the bill is in response to previous incidents of loose
dogs in his Ward.

Councilmember Jenkins pointed out that the fines for first offenses for loos and
aggressive dogs were the same. He asked what would happen to an aggressive dog
that was not voluntarily surrendered. Baker replied that a dog deemed aggressive by
the Municipal Court would be required to be insured, microchipped and wear a muzzle
while leashed in public. State Court has the process to euthanize the dog.

Councilmember Jenkins motioned to amend the fine for aggressive dogs for first offense
to be $100 and second and subsequent offenses to be $100 no more than $500.

From the audience, Councilmember Taylor shared his experience with these types of
cases as a former Municipal Judge, and added that they often have heightened
emotions.

From the audience, Councilmember Steelhammer confirmed with the Committee that
electronic leashes are mainly used for training hunting dogs. Councilmember Ceperley




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confirmed that her friend uses one for their very large dog. Councilmember Ceperley
asked if stray/feral cats were protected from aggressive dogs in the bill. Potters replied
that it did not seem that they would not be included.

Councilmember Jenkins motioned to amend the bill by amending Section 10-162(b) to
change to offenses for an aggressive dog to the amounts previously discussed. With
those being present having voted unanimously in the affirmative, the Chair declared the
amendment as passed.

Councilmember Annie motioned to approve Bill No. 8040 Committee Substitute as
Amended. Councilmember Jenkins seconded. With those being present having voted
unanimously in the affirmative, the Chair declared Bill No. 8040 Committee Substitute
as Amended as approved.




Councilmember Annie motioned to adjourn the meeting. Meeting adjourned.




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 Bill No. 8039 Committee Substitute (Revised 8/6/24)

 Introduced in Council: Adopted by Council:

 July 1, 2024

 Introduced by: Referred to:

 Frank Annie and Chad Robinson Ordinance & Rules______


 1 Bill No. 8039 Committee Substitute - A BILL to amend and reenact Sections 78-371,
 2 78-372, and 78-373 of the Municipal Code of the City of Charleston, as amended, and to
 3 amend said Code by adding thereto a new section, designated Section 78-374, all relating
 4 updating, clarifying, and reforming the controlled substances offenses in Municipal Code,
 5 to incorporating the state code definitions and schedules of controlled substances,
 6 reducing the penalties for simple possession of certain controlled substances and the
 7 criminal penalties therefore; making first offense simple possession of marijuana and
 8 related substances specified in State code a non-jailable offense; clarifying the conditional
 9 discharge statutes for first offense simple possession charges; and expanding the
10 possibilities for discharge of controlled substance possession charges; and updating state
11 law references and other terminology.
12
13 Now, therefore, be it ordained by the Council of the City of Charleston:
14
15 That Subdivision I of Division 5 of Article V of Chapter 78, specifically, Sections 78-371,
16 78-372, and 78-373 of the Municipal Code of the City of Charleston, as amended, are
17 hereby amended and reenacted and that a new section, designated Section 78-374, is
18 added thereto, all to read as follows:
19
20 DIVISION 5. - DRUGS AND RELATED OFFENSES
21
22 Subdivision I. - In General
23
24 Sec. 78-371. -– Definitions and Schedules Incorporated. Conditional discharge for
25 first offense of simple possession of controlled substances; possession of 15
26 grams or less of marijuana; expungement of records; subsequent offenses.
27
28 (a) Whenever any person who has not previously been convicted of any offense under
29 this chapter subdivision or under any statute of the United States or of any state relating
30 to controlled substances, narcotic drugs, marijuana, or stimulant, depressant, or
31 hallucinogenic drugs, pleads guilty to or is found guilty under this section, the court,
32 without entering a judgment of guilt and with the consent of the accused, may defer further
33 proceedings and place him or her on probation upon terms and conditions which may
34 include, but is not limited to, participation in a substance abuse treatment program. Upon
35 violation of a term or condition, the court may enter an adjudication of guilt and proceed




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36 as otherwise provided. Upon fulfillment of the terms and conditions, the court shall
37 discharge the person and dismiss the proceedings against him or her. Discharge and
38 dismissal under this section shall be without adjudication of guilt and is not a conviction
39 for purposes of this section or for purposes of disqualifications or disabilities imposed by
40 law upon conviction of a crime. The effect of the dismissal and discharge shall be to
41 restore the person in contemplation of law to the status he or she occupied prior to arrest
42 and trial. No person as to whom a dismissal and discharge have been effected shall be
43 thereafter held to be guilty of perjury, false swearing, or otherwise giving a false statement
44 by reason of his or her failure to disclose or acknowledge his or her arrest or trial in
45 response to any inquiry made of him or her for any purpose. There may be only one
46 discharge and dismissal under this section with respect to any person.
47
48 (b) Notwithstanding any other provision of this section to the contrary, any first offense for
49 possession of marijuana shall be disposed of as described in section (a) above. The
50 definitions set forth in Article I of the West Virginia Controlled Substances Act at West
51 Virginia Code § §60A-1-101, et seq., and the schedules of controlled substances set forth
52 in Article II of the West Virginia Controlled Substances Act at West Virginia Code § 60A-
53 2-201, et seq., including as they may be amended from time to time, are hereby fully
54 incorporated and made a part of this Chapter by reference,.
55
56 (c) After a period of not less than six months which shall begin to run immediately upon
57 the expiration of a term of probation imposed upon any person under this chapter, the
58 person may apply to the court for an order to expunge from all official records all
59 recordations recordation of his or her arrest, trial, and conviction, pursuant to this section.
60 If the court determines after a hearing that the person during the period of his or her
61 probation and during the period of time prior to his or her application to the court under
62 this section has not been guilty of any serious or repeated violation of the conditions of
63 his or her probation, it shall order the expungement.
64
65 (d) Notwithstanding any provision of this Code to the contrary, any person prosecuted
66 pursuant to the provisions of this article whose case is disposed of pursuant to the
67 provisions of this section shall be liable for any court costs assessable against a person
68 convicted of a violation of this section. Payment of such costs may be made a condition
69 of probation.
70
71 (e) Any person convicted of a second or subsequent offense under this section may be
72 fined up to $500.00 and/or sentenced to 30 days in jail. For purposes of this section an
73 offense is considered a second or subsequent offense if, prior to his conviction of the
74 offense, the offender has at any time been convicted under this Code or under any state
75 statute or statute of the United States or of any state relating to narcotic drugs, marijuana,
76 depressant, stimulant or hallucinogenic drugs.
77
78 Sec. 78-372. - Purporting to sell controlled substances.
79
80 (a) No person shall at any time sell any substance which that person purports to be a
81 controlled substance, as defined under schedules I through V of article II of the Uniform




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 82 Controlled Substances Act (W. Va. Code § 60A-2-201 et seq.) when in actuality the
 83 substance sold contains no controlled substances.
 84
 85 (b) Whoever violates the provisions of this section shall, upon conviction, be guilty of a
 86 misdemeanor and fined not more than $100.00 or be imprisoned for a period not to
 87 exceed 30 days, or both. Subsequent violations upon conviction shall be punishable by a
 88 mandatory $100.00 fine and, in the discretion of the court, imprisonment not to exceed
 89 30 days.
 90
 91 Sec. 78-373. - Illegal Simple possession of marijuana, synthetic cannabinoids, and
 92 other controlled substances; simple possession of marijuana.
 93
 94 (a) Simple Possession of Controlled Substances Prohibited. It is unlawful for any person
 95 knowingly or intentionally to possess a controlled substance, specifically a drug,
 96 substance or immediate precursor in schedules I through V as set forth in W. Va. Code
 97 §§ 60A-2-204, 60A-2-206, 60A-2-208, 60A-2-210 and 60A-2-212 (W. Va. Code § 60A-2-
 98 204, et seq.), unless the substance was obtained directly from or pursuant to, a valid
 99 prescription or order of a practitioner while acting in the course of his professional
100 practice, or except as otherwise authorized by this Code or West Virginia law. Any Except
101 as provided in subsection (b) of this section for simple possession of synthetic
102 cannabinoids, 3,4-methylenedioxypyrovalerone (MDPV), 4-methylmethcathinone
103 (mephedrone), or less than 15 grams of marijuana, any person who violates this section
104 is guilty of a misdemeanor and may be fined up to $500.00 and/or sentenced to 30 days
105 in jail; however, notwithstanding any other provision of this division to the contrary, any
106 first offense for possession of 15 grams or less of marihuana shall be disposed of under
107 section 78-371(e).
108
109 (b) Conditional discharge for first offense of possession.
110
111 (1) Whenever any person who has not previously been convicted of any offense under
112 this Code or under any state statute or statute of the United States relating to narcotic
113 drugs, marihuana, or stimulants, depressant or hallucinogenic drugs pleads guilty to or is
114 found guilty of possession of a controlled substance under this section, the court, without
115 entering a judgment of guilt and with the consent of the accused, may defer further
116 proceedings and place such persons on probation upon terms and conditions. Upon
117 violation of a term or condition, the court may enter an adjudication of guilt and proceed
118 as otherwise provided. Upon fulfillment of the terms and conditions, the court shall
119 discharge the person and dismiss the proceedings against him. Discharge and dismissal
120 under this section shall be without adjudication of guilt and is not a conviction for purpose
121 of this section or for purpose of disqualifications or disabilities imposed by law upon
122 conviction of a crime, including the additional penalties imposed for second or subsequent
123 convictions. The effect of such dismissal and discharge shall be to restore such person
124 in contemplation of law to the status he occupied prior to such arrest and trial. No person
125 as to whom such dismissal and discharge have been effected shall be thereafter held to
126 be guilty of perjury, false swearing or otherwise giving a false statement by reason of his
127 failure to disclose or acknowledge such arrest or trial in response to any inquiry made of




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128 him for any purpose. There may be only one discharge and dismissal under this section
129 with respect to any person.
130
131 (2) After a period of not less than six months which shall begin to run immediately upon
132 the expiration of a term of probation imposed upon any person under this division, such
133 person may apply to the court for an order to expunge from all official records all
134 recordings of his arrest, trial and conviction pursuant to this section.
135
136 (b)(a) Simple Possession of Synthetic Cannabinoids, MDPV, Mephedrone, and Less
137 Than 15 Grams of Marijuana Prohibited. It is unlawful for any person knowingly or
138 intentionally to possess synthetic cannabinoids, 3,4-methylenedioxypyrovalerone
139 (MDPV), 4-methylmethcathinone (mephedrone), or less than 15 grams of marijuana,
140 unless the substance was obtained directly from, or pursuant to, a valid prescription or
141 order of a practitioner while acting in the course of his or her professional practice, or
142 except as otherwise authorized by West Virginia law. Any person who violates this section
143 subsection is guilty of a misdemeanor, and, upon a conviction: (1) for a first offense, may
144 be fined not more than $100.00$0.00; or (2) for a second offense, may be fined not more
145 than $250.00, or (3) for a third or subsequent offense, may be fined not more than
146 $500.00, imprisoned not more than 30 days in the regional jail, or both fined and
147 imprisoned. Further, notwithstanding any other provision of this code to the contrary,
148 whenever a person has not previously been convicted within the previous one year of any
149 offense under this subsection subdivision or under any statute of the United States or of
150 any state for relating to controlled substances, narcotic drugs, marijuana, or stimulant,
151 depressant, or hallucinogenic drugssimple possession of synthetic cannabinoids, MDPV,
152 mephedrone, or less than 15 grams of marijuana, such initial conviction shall be disposed
153 of under section 78-371(a)78-374.
154
155 (b) Simple Possession of Synthetic Cannabinoids, MDPV, and Mephedrone Prohibited.
156 It is unlawful for any person knowingly or intentionally to possess synthetic cannabinoids,
157 3,4-methylenedioxypyrovalerone (MDPV) or 4-methylmethcathinone (mephedrone),
158 unless the substance was obtained directly from, or pursuant to, a valid prescription or
159 order of a practitioner while acting in the course of his or her professional practice, or
160 except as otherwise authorized by West Virginia law. Any person who violates this
161 subsection is guilty of a misdemeanor, and, upon a conviction: (1) for a first offense, may
162 be fined not more than $100.00; or (2) for a second offense or subsequent offense, may
163 be fined not more than $500.00, imprisoned not more than 30 days in the regional jail, or
164 both fined and imprisoned. Further, notwithstanding any other provision of this code to
165 the contrary, whenever a person has not previously been convicted of any offense under
166 this subdivision or under any statute of the United States or of any state relating to
167 controlled substances, narcotic drugs, marijuana, or stimulant, depressant, or
168 hallucinogenic drugs, such initial conviction shall be disposed of under section 78-374.
169
170 (c) Simple Possession of Controlled Substances Prohibited. It is unlawful for any person
171 knowingly or intentionally to possess any other controlled substance not specified in
172 subsection (a) or (b) of this section, unless the substance was obtained directly from or
173 pursuant to, a valid prescription or order of a practitioner while acting in the course of his




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174 professional practice, or except as otherwise authorized by this Code or West Virginia
175 law. Any person who violates this subsection is guilty of a misdemeanor and may be fined
176 up to $500.00 or confined up to 30 days in jail, or both fined and confined.
177
178 Sec. 78-374. – Conditional discharge for simple possession of controlled
179 substances; expungement of records.
180
181 (a) Except as otherwise provided in this Code, whenever any person who has not been
182 convicted of any offense under this subdivision or under any statute of the United States
183 or of any state relating to controlled substances, narcotic drugs, marijuana, or stimulant,
184 depressant, or hallucinogenic drugs, pleads guilty to or is found guilty under section 78-
185 373, the court, without entering a judgment of guilt and with the consent of the accused,
186 may defer further proceedings and place him or her on probation upon terms and
187 conditions which may include, but is not limited to, participation in a substance abuse
188 treatment program. Upon violation of a term or condition, the court may enter an
189 adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and
190 conditions, the court shall discharge the person and dismiss the proceedings against him
191 or her. Discharge and dismissal under this section shall be without adjudication of guilt
192 and is not a conviction for purposes of this section or for purposes of disqualifications or
193 disabilities imposed by law upon conviction of a crime. The effect of the dismissal and
194 discharge shall be to restore the person in contemplation of law to the status he or she
195 occupied prior to arrest and trial. No person as to whom a dismissal and discharge have
196 been effected shall be thereafter held to be guilty of perjury, false swearing, or otherwise
197 giving a false statement by reason of his or her failure to disclose or acknowledge his or
198 her arrest or trial in response to any inquiry made of him or her for any purpose. There
199 may be only one discharge and dismissal under this section with respect to any person:
200 Provided, That this limitation does not apply to anyone charged under Section 78-373(a)
201 for possession of marijuana.
202
203 (b) After a period of not less than six months which shall begin to run immediately upon
204 the expiration of a term of probation imposed upon any person pursuant to this section,
205 the person may apply to the court for an order to expunge from all official records all
206 recordation of his or her arrest, trial, and conviction. If the court determines after a hearing
207 that the person during the period of his or her probation and during the period of time prior
208 to his or her application to the court under this section has not been guilty of any serious
209 or repeated violation of the conditions of his or her probation, it shall order the
210 expungement.
211
212 (c) Notwithstanding any provision of this Code to the contrary, any person prosecuted
213 pursuant to the provisions of this subdivision whose case is disposed of pursuant to the
214 provisions of this section shall be liable for any court costs assessable against a person
215 convicted of a violation of this subdivision. Payment of such costs may be made a
216 condition of probation.
217




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 Bill No. 8039 Committee Substitute (Revised 8/6/24)

 Introduced in Council: Adopted by Council:

 July 1, 2024

 Introduced by: Referred to:

 Frank Annie and Chad Robinson Ordinance & Rules______


 1 Bill No. 8039 Committee Substitute - A BILL to amend and reenact Sections 78-371,
 2 78-372, and 78-373 of the Municipal Code of the City of Charleston, as amended, and to
 3 amend said Code by adding thereto a new section, designated Section 78-374, all relating
 4 updating, clarifying, and reforming the controlled substances offenses in Municipal Code,
 5 incorporating the state code definitions and schedules of controlled substances, reducing
 6 the penalties for simple possession of certain controlled substances; making simple
 7 possession of marijuana a non-jailable offense; clarifying the conditional discharge
 8 statutes for simple possession charges; and expanding the possibilities for discharge of
 9 controlled substance possession charges.
10
11 Now, therefore, be it ordained by the Council of the City of Charleston:
12
13 That Subdivision I of Division 5 of Article V of Chapter 78, specifically, Sections 78-371,
14 78-372, and 78-373 of the Municipal Code of the City of Charleston, as amended, are
15 hereby amended and reenacted and that a new section, designated Section 78-374, is
16 added thereto, all to read as follows:
17
18 DIVISION 5. - DRUGS AND RELATED OFFENSES
19
20 Subdivision I. - In General
21
22 Sec. 78-371. – Definitions and Schedules Incorporated.
23
24 The definitions set forth in Article I of the West Virginia Controlled Substances Act at West
25 Virginia Code § §60A-1-101, et seq., and the schedules of controlled substances set forth
26 in Article II of the West Virginia Controlled Substances Act at West Virginia Code § 60A-
27 2-201, et seq., including as they may be amended from time to time, are hereby fully
28 incorporated and made a part of this Chapter by reference.
29
30 Sec. 78-372. - Purporting to sell controlled substances.
31
32 (a) No person shall at any time sell any substance which that person purports to be a
33 controlled substance when in actuality the substance sold contains no controlled
34 substances.
35




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36 (b) Whoever violates the provisions of this section shall, upon conviction, be guilty of a
37 misdemeanor and fined not more than $100.00 or be imprisoned for a period not to
38 exceed 30 days, or both. Subsequent violations upon conviction shall be punishable by a
39 mandatory $100.00 fine and, in the discretion of the court, imprisonment not to exceed
40 30 days.
41
42 Sec. 78-373. - Simple possession of marijuana, synthetic cannabinoids, and other
43 controlled substances.
44
45 (a) Simple Possession of Less Than 15 Grams of Marijuana Prohibited. It is unlawful for
46 any person knowingly or intentionally to possess less than 15 grams of marijuana, unless
47 the substance was obtained directly from, or pursuant to, a valid prescription or order of
48 a practitioner while acting in the course of his or her professional practice, or except as
49 otherwise authorized by West Virginia law. Any person who violates this subsection is
50 guilty of a misdemeanor, and, upon a conviction: (1) for a first offense, may be fined not
51 more than $0.00; or (2) for a second offense, may be fined not more than $250.00, or (3)
52 for a third or subsequent offense, may be fined not more than $500.00. Further,
53 notwithstanding any other provision of this code to the contrary, whenever a person has
54 not been convicted within the previous one year of any offense under this subdivision or
55 under any statute of the United States or of any state relating to controlled substances,
56 narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, such
57 conviction shall be disposed of under section 78-374.
58
59 (b) Simple Possession of Synthetic Cannabinoids, MDPV, and Mephedrone Prohibited.
60 It is unlawful for any person knowingly or intentionally to possess synthetic cannabinoids,
61 3,4-methylenedioxypyrovalerone (MDPV) or 4-methylmethcathinone (mephedrone),
62 unless the substance was obtained directly from, or pursuant to, a valid prescription or
63 order of a practitioner while acting in the course of his or her professional practice, or
64 except as otherwise authorized by West Virginia law. Any person who violates this
65 subsection is guilty of a misdemeanor, and, upon a conviction: (1) for a first offense, may
66 be fined not more than $100.00; or (2) for a second or subsequent offense, may be fined
67 not more than $500.00, imprisoned not more than 30 days in the regional jail, or both
68 fined and imprisoned. Further, notwithstanding any other provision of this code to the
69 contrary, whenever a person has not previously been convicted of any offense under this
70 subdivision or under any statute of the United States or of any state relating to controlled
71 substances, narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs,
72 such initial conviction shall be disposed of under section 78-374.
73
74 (c) Simple Possession of Controlled Substances Prohibited. It is unlawful for any person
75 knowingly or intentionally to possess any other controlled substance not specified in
76 subsection (a) or (b) of this section, unless the substance was obtained directly from or
77 pursuant to, a valid prescription or order of a practitioner while acting in the course of his
78 professional practice, or except as otherwise authorized by this Code or West Virginia
79 law. Any person who violates this subsection is guilty of a misdemeanor and may be fined
80 up to $500.00 or confined up to 30 days in jail, or both fined and confined.
81




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 82 Sec. 78-374. – Conditional discharge for simple possession of controlled
 83 substances; expungement of records.
 84
 85 (a) Except as otherwise provided in this Code, whenever any person who has not been
 86 convicted of any offense under this subdivision or under any statute of the United States
 87 or of any state relating to controlled substances, narcotic drugs, marijuana, or stimulant,
 88 depressant, or hallucinogenic drugs, pleads guilty to or is found guilty under section 78-
 89 373, the court, without entering a judgment of guilt and with the consent of the accused,
 90 may defer further proceedings and place him or her on probation upon terms and
 91 conditions which may include, but is not limited to, participation in a substance abuse
 92 treatment program. Upon violation of a term or condition, the court may enter an
 93 adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and
 94 conditions, the court shall discharge the person and dismiss the proceedings against him
 95 or her. Discharge and dismissal under this section shall be without adjudication of guilt
 96 and is not a conviction for purposes of this section or for purposes of disqualifications or
 97 disabilities imposed by law upon conviction of a crime. The effect of the dismissal and
 98 discharge shall be to restore the person in contemplation of law to the status he or she
 99 occupied prior to arrest and trial. No person as to whom a dismissal and discharge have
100 been effected shall be thereafter held to be guilty of perjury, false swearing, or otherwise
101 giving a false statement by reason of his or her failure to disclose or acknowledge his or
102 her arrest or trial in response to any inquiry made of him or her for any purpose. There
103 may be only one discharge and dismissal under this section with respect to any person:
104 Provided, That this limitation does not apply to anyone charged under Section 78-373(a)
105 for possession of marijuana.
106
107 (b) After a period of not less than six months which shall begin to run immediately upon
108 the expiration of a term of probation imposed upon any person pursuant to this section,
109 the person may apply to the court for an order to expunge from all official records all
110 recordation of his or her arrest, trial, and conviction. If the court determines after a hearing
111 that the person during the period of his or her probation and during the period of time prior
112 to his or her application to the court under this section has not been guilty of any serious
113 or repeated violation of the conditions of his or her probation, it shall order the
114 expungement.
115
116 (c) Notwithstanding any provision of this Code to the contrary, any person prosecuted
117 pursuant to the provisions of this subdivision whose case is disposed of pursuant to the
118 provisions of this section shall be liable for any court costs assessable against a person
119 convicted of a violation of this subdivision. Payment of such costs may be made a
120 condition of probation.
121




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MINUTES
 ORDINANCE AND RULES COMMITTEE MEETING

 5:00 P. M., AUGUST 15, 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., August 15, 2024.

Committee Members Present:
Chad Robinson, Chair
Patrick Salango, Vice Chair
Frank Annie
Becky Ceperley
Joseph Jenkins
Sam Minardi (via Zoom)
Emmett Pepper (via Zoom – arrived after approval of minutes)

Absent:


Other Councilmembers Present:
Joe Solomon
Caitlin Cook
Jennifer Pharr
Mary Beth Hoover
Jeanine Faegre
Chuck Overstreet
Shannon Snodgrass




 1. Approval of Previous Minutes –

Councilmember Annie motioned to approve the previous minutes from 7-15-2024.
Councilmember Ceperley 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 Committee Substitute - A BILL to amend the Municipal Code
 relating to updating, clarifying, and reforming the controlled substances offenses
 in the Municipal Code, incorporating the state code definitions and schedules of
 controlled substances, reducing the penalties for simple possession of certain
 controlled substances; making simple possession of marijuana a non-jailable
 offense; clarifying the conditional discharge statutes for simple possession
 charges; and expanding the possibilities for discharge of controlled substance
 possession charges.

City Attorney Kevin Baker explained that after the bill was sent back to Committee from
Council floor, the Administration met with a group that were supporters of the recently
submitted petition. The revised Committee Substitute is a result of that discussion. The
current version:
 • Incorporates the State’s schedules and definitions.
 • Removed duplicate and confusing language
 • Makes simple possession of less than 15 grams of marijuana a misdemeanor,
 and lowers the punishment of first offense to no fine, up to $250 for second
 offense and up to $500 for third and subsequent offenses.
 • Requires that a person charged with less than 15 grams of marijuana be given
 the conditional discharge program in State Law, providing they do not have any
 drug related charges within the last year.
 • For synthetic cannabinoids, first offense is punishable by up to $100 fine, up to
 $500 and up to 30 days in jail for second and subsequent charges.

Councilmember Minardi asked how substantial 15 grams of marijuana was.
Councilmember Robinson replied the amount was in the original ordinance. Baker
added that the number also comes from State Law, and is generally considered to be a
small amount.

Councilmember Ceperley asked why “simple” replaced “illegal” in Section 78-373. Baker
replied that it was changed to be consistent with State Law.

Councilmember Ceperley asked if synthetic cannabis was found to be more dangerous.
Baker replied that they were, which is why the penalty for second and subsequent
offenses was not reduced.

Councilmember Ceperley asked why there was a need to alter the Code with these
changes. Councilmember Robinson replied that it was to mirror State Code as City
Code had not been changed since approximately 2011. He added that the proposed bill
does not legalized marijuana. Baker added that the penalties in State Code are slightly
more than what is in the proposed bill as the City is limited to a max of 30 day jail
sentence. Baker added that the bill more accurately reflects the current practice of the
Municipal Court. Attorney Davis Potters added that the current City Code contains bad
language and formatting.

Councilmember Robinson added that the penalties were changed because the Court
was not jailing anyone for simple possession. Councilmember Jenkins added that the
policies could change when there is a new judge, so putting them into Code means that
they cannot be changed by the Judge. Councilmember Jenkins added that he thought it
was ridiculous to spend money to jail people for simple possession. Councilmember
Ceperley added that destigmatizing marijuana possession encourages people to go to a
drug dealer where the product is not regulated. Councilmember Robinson added that he
was uncomfortable with unlimited forgiveness of simple possession. Councilmember
Annie added that the changes are meant to help people keep their first offense off the
record via discharge as one charge of simple possession could keep someone from
being admitted to a graduate program, for example.

From the audience, Councilmember Faegre confirmed with Councilmember Robinson
that a State Trooper would not be required to follow the City Code. Councilmember
Faegre added that she thought the fines were too low, especially for second and third
offenses.

From the audience, Councilmember Solomon asked about the court fees associated
with the bill. Baker replied that State Code required that the City collect a court fee of
$72 per criminal matter and $62 per traffic matter. Those fees will not currently be
waived.

Councilmembers Jenkins and Cook requested to be added as a sponsor.

Councilmember Faegre asked the Committee to consider raising the fines for second
and third offenses.

Councilmember Solomon added that, in his opinion, the fines seemed substantial and
would be a financial impact for a lot of people.

From the audience, Councilmember Pharr added she would support changing the fines
to be higher. Councilmember Ceperley agreed.

Councilmember Pepper thanked the sponsors of the bill for the hard work put into the
bill.

Councilmember Robinson requested that in support of higher fines for simple
possession take into consideration the fines of other substance possession in City
Code. He would want all fines to be considered in a comprehensive review.

Councilmember Minardi confirmed that the fine for first offense of a DUI is likely up to
$500, and would be issued through the Magistrate Court. Councilmember Minardi
added that he did not think the objective of a fine was to be affordable. He agreed with
taking a holistic approach to possession fines.

Councilmember Solomon asked the Committee to consider the racial disparity around
cannabis possession.
Councilmember Jenkins motioned to approve Bill No. 8039 Committee Substitute.
Councilmember Annie seconded. With those being present having voted in the majority
in the affirmative, with one recognized Nay from Ceperley, the Chair declared Bill No.
8039 Committee Substitute as approved.




Councilmember Annie motioned to adjourn the meeting. Meeting adjourned.