Explainer: How the proposal to decriminalize marijuana would change Kent’s laws and affect residents

Kent City Council will determine the future of a ballot initiative meant to decriminalize certain amounts of marijuana, hashish and paraphernalia, after a Board of Elections recount recognized the success of a recent petition.

But what exactly did the petition say, and what would its provisions mean for Kent residents? This explainer takes a closer look at the proposal’s components and includes input from the prosecutor’s office and other sources.

Before anything happens, though, Kent City Council will have to make one of three choices: accept the petition initiative as is and put it on an upcoming city ballot, bypass voters and pass an ordinance similar to the ballot initiative, or do nothing. Doing nothing would likely result in a lawsuit, said Theresa Nielsen, deputy director of the Portage County Board of Elections.

How the law would change

Here’s what the ballot initiative calls for, followed by some context about what the current laws say:

Reducing the charge for possession of less than 200 grams of marijuana to a minor misdemeanor, eliminating fines for conviction, and eliminating court costs.

According to Portage County Prosecutor Vic Vigluicci, possession of less than 100 grams of marijuana is now a minor misdemeanor offense punishable by a fine of up to $150 plus court costs. Police issue a ticket, and there is no possibility of jail time. Possession of 100-199 grams of marijuana is now a fourth-degree misdemeanor punishable by a fine of up to $250 and not more than 30 days in jail.

Reducing the charge for possession of less than 10 grams of solid hashish or less than two grams of liquid hashish to a minor misdemeanor, eliminating fines for conviction, and eliminating court costs.

Possession of 5 to less than 10 grams of solid hashish or less than 2 grams of liquid hashish is now a fourth-degree misdemeanor punishable by a fine of up to $250 and not more than 30 days in jail.

Reducing the charge for cultivating less than 200 grams of marijuana to a minor misdemeanor, eliminating fines for conviction, and eliminating court costs.

Cultivating or manufacturing less than 100 grams of marijuana is now a minor misdemeanor offense punishable by a fine of up to $150 plus court costs, Vigluicci said. Possession of 100-199 grams of marjuana is a fourth-degree misdemeanor, punishable by a fine of up to $250 and not more than 30 days in jail.

Reducing the charge for gifting or offering to gift 20 or less grams of marijuana to a minor misdemeanor, eliminating fines for conviction, and eliminating court costs.

Vigluicci said gifting 20 or less grams is currently a minor misdemeanor punishable by a fine of up to $150 plus court costs.

“The gift clause applies more to sharing marijuana that someone has with a friend,” Kent Police Chief Nicholas Shearer said. “If money is exchanged, it is a felony no matter how much marijuana is involved because it is no longer a gift.”

Reducing the charge for possessing, selling, manufacturing, or using marijuana or hashish paraphernalia to a minor misdemeanor, eliminating fines for conviction, and eliminating court costs.

Vigluicci said possession of paraphernalia is now a minor misdemeanor, punishable by a fine of up to $150 plus court costs.

There may still be consequences

Any drug conviction, including a minor misdemeanor, may result in the loss of driving privileges for six months to five years, Vigluicci said. Petition author Chad Thompson, a director of Sensible Movement Coalition, the umbrella organization for Sensible Kent, agrees that loss of driving privileges could happen, and the petition does not address that issue.

Fricke admits that he is more concerned with long-term consequences.

“The secondary punishments of having a drug conviction are the real problem as they will continue to haunt someone for years on job applications, student loans or joining the military,” Fricke said.

The whole concept of the ordinance is to bypass court altogether, Thompson said.

“We made the minor misdemeanor charges similar to jaywalking. By taking away the fine and the potential fine and the court costs, the idea is the police will just walk away, similar to jaywalking,” he said.

That may not be far from the current situation, however: Kent officers have only charged four people with fourth-degree misdemeanor marijuana possession (100-199 grams of marijuana) since Jan. 1, 2018, Shearer said.

Vigluicci dismissed Sensible Kent’s efforts as “irrelevant,” emphasizing that police officers are sworn to uphold state law no matter what local laws might be. Shearer has already stated that his officers will continue to enforce Ohio law regardless of the referendum results.

However, Thompson points to case law that he says proves that state law trumps local law only when a direct conflict exists. The petition language keeps the laws in place but changes the penalties, and courts have said this does not constitute a conflict, he said. 

As evidence, he cited:

• State ex. rel. Rocky Ridge Dev., LLC v. Winters (2017). The Ohio Supreme Court ruled that a local ordinance is preempted only when a general state law directly conflicts with it. A conflict exists when the ordinance permits what state statute forbids, or vice versa.
• City of Niles v. Howard (1984). The Ohio Supreme Court ruled that changing a punishment from one misdemeanor charge to another is not in conflict with the general laws of Ohio.
• Medina v. Szwec (2004). The Ninth District Court of Appeals ruled that municipalities have the authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. Increasing the penalty from a minor misdemeanor to one of the first degree does not violate Ohio’s Home Rule Amendment, the court ruled.

Kent attorney Nancy Grim confirms that the petition language clearly maintains the conduct as criminal, “but the consequences are no fine and no jail, and the Supreme Court has said that when a local ordinance increases or decreases the penalty without moving it from misdemeanor to felony or from felony to misdemeanor that doesn’t conflict with state law. It’s all misdemeanor crimes.”