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MEMORANDUM City of Philadelphia

Law Department


TO: James Engler, Director of Legislation, Councilman Kenneys Office

CC: Robert Murken, Director of Legislative Affairs, Mayors Office

FROM: Martha Johnston, Senior Attorney/MJ

DATE: June 6, 2014

SUBJECT: Bill No. 140377: Civil Penalty for Marijuana Possession


As part of our regular review of bills scheduled for public hearing, I have examined this
bill. It is scheduled for hearing before the Committee on Law and Government on Monday, June
9, 2014. This Memorandum discusses certain legal issues raised by the bill.

Pursuant to our usual practice, I am providing a copy of this Memo to the Mayors office.

1. Summary of Conclusion

As construed, to provide police officers with the option of citing violators of the
prohibition against possession of a small amount of marijuana with a civil penalty under the
Code, or of charging violators with a misdemeanor under state law, the ordinance does not
violate the Charter by attempting to limit the discretion of police officers in enforcing the law.

There is a risk that a court would find the ordinance preempted under the Pennsylvania
Controlled Substance, Drug, Device and Cosmetic Act; however, in my opinion the ordinance
should not be preempted because it does not conflict with the terms of the Act or with its primary
purpose. It prohibits the same conduct as does the state Act, and promotes the primary purpose
of deterring the possession of prohibited substances, while recognizing that violators of the
small amount of marijuana prohibition should be punished with less severity than those whose
possession of large amounts indicates participation in more serious criminal activity. While
there is a risk that a court could nevertheless find that the ordinance contravenes an implied
purpose of the state law that all offenders must be criminally charged, I conclude that such risk is
not sufficient to render the ordinance invalid.

2. Summary of the Bill

Bill No. 140377 proposes to add a new section to Chapter 10 of The Philadelphia Code,
to provide for a civil penalty under the Code for possession of a small amount of marijuana. The
bill defines Marijuana and Small amount of Marijuana by reference to the definitions in the
Act of April 14, 1972, P.L. 233, No. 64, 1 (35 P.S. 780-101 et seq.), known as The
Controlled Substance, Drug, Device and Cosmetic Act (the Act). Proposed 10-2101(1) and
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(2). Thus, a small amount of marijuana is defined by both the Act and the bill as 30 grams of
marijuana or less. 35 P.S. 780-113(31).

The bill prohibits, as does the Act, the possession of a small amount of marijuana.
Proposed 10-2102(1). It then provides that [a]ny person in possession of a small amount of
marijuana as defined in the Chapter is guilty of a civil violation of The Philadelphia Code. Id.,
subsection (2). Adult violators are to be issued a Code Violation Notice, either in person or later
by mail, and will be subject to a fine of $25.00 per violation. Violators who are minors may be
detained and turned over to a parent or guardian, who shall also be in violation of the section.
The citations are to be processed as provided in 10-1606 of the Code, including possible
appeals to the Bureau of Administrative Adjudication. Id., 10-2102(5)-(7).

The bill further provides that the new Chapter shall not be construed to supersede any
existing Pennsylvania or federal law. Philadelphia police officers, it is stated, retain the
authority to enforce any applicable laws and may undertake custodial arrests where there is
probable cause to believe that a criminal offense other than simple possession of a small amount
of marijuana has been or is being committed. Proposed 10-2102(7).

3. Charter Issue
At the outset, I will address a possible Charter issue raised by the bill, which in my
opinion may be disposed of by the correct interpretation of possibly ambiguous language in the
bill. As noted, proposed 10-2102(7) provides:
(7) This Chapter shall not be construed to supersede any existing
Pennsylvania or Federal law. Philadelphia police officers retain the authority to
enforce any applicable laws and it is Councils intent that police officers may
undertake custodial arrests where there is probable cause to believe that a criminal
offense other than simple possession of a small amount of marijuana has been or
is being committed.
This section restates the law-- that the Police retain authority to enforce any applicable
laws. While it mentions that police may make custodial arrests in connection with other criminal
offenses, the bill does not purport to prohibit police officers from making arrests of persons for
possession of any amount of marijuana and charging them with a misdemeanor under state law.
35 P.S. 780-113(a)(31), and (g) (defining small amount of marijuana and providing that
violators of prohibition on small amount possession are guilty of a misdemeanor punishable by
no more than 30 days imprisonment and/or a $500 fine). If it did so prohibit, or were interpreted
as intending to limit the power and discretion of the police to make arrests in such circumstances,
the bill would violate the separation of powers principles of the Philadelphia Home Rule Charter,
and as such would be unenforceable.
Pursuant to Charter 3-100, the Police Department was created as part of the executive
and administrative branch, subject to the ultimate control of the Mayor and the Managing
Director (Charter 4-100, 5-100). The Charter vests the Police Department with, among others,
the power and function to preserve the public peace, prevent and detect crime, police the streets
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and highways and enforce traffic statutes, ordinances and regulations relating thereto. The
Department shall at all times aid in the administration and enforcement within the City of the
statutes of the Commonwealth of Pennsylvania and the ordinances of the City. Charter 5-
200(a).
In general, when the Charter confers a power and duty on an agency of the executive and
administrative branch of City government, then the manner in which that agency executes and
administers that power and duty is a matter exclusively within the discretion of the head of that
agency. Thus, the manner in which the Police Department executes its duty to enforce the laws
of the Commonwealth, including laws governing the penalties for possession of marijuana and
the procedures for their enforcement, is a matter within the exclusive jurisdiction of the Police
Commissioner and, ultimately, the Mayor. See, e.g., Opinion No. 97-06, 1997 Solicitors
Opinions at 17 (bill requiring Police Department to remain neutral in all labor disputes, and
directing actions with respect to picketing employees, impermissibly sought to direct policy of
the Department, and was beyond Councils powers; citing precedents); Formal Opinion No. 7,
1980 City Solicitors Opinions at 35; Opinion No. 93-13, 1992-93 Solicitors Opinions at 297
(bills attempting to dictate Police Department policy as to internal investigation of citizen
allegations of police misconduct impermissibly encroached on the powers and duties of the
Executive Branch to supervise and discipline the police).
Accordingly, the Law Department will interpret the language of proposed 10-2102(7)
of Bill No. 140377 to affirm the discretion of the police, as supervised by the Police
Commissioner and the Mayor, to enforce the laws of the Commonwealth with respect to
possessors of small amounts of marijuana, or the civil citation and penalty under the City Code,
as determined in the officers discretion. That interpretation, which in any event is supported by
the language of the bill, avoids the possible Charter issue discussed herein.
4. Preemption Issue

A more troublesome legal issue is whether the proposed City civil penalty for a violation
classified as a misdemeanor under Pennsylvania law is preempted by Pennsylvanias Controlled
Substance, Drug, Device and Cosmetic Act. While the City, pursuant to the First Class City
Home Rule Act, may exercise all powers and authority of local self-government and shall have
complete powers of legislation and administration in relation to its municipal functions, 53 P.S.
13131, those powers are limited by the Home Rule Charter, the Pennsylvania Constitution and
enactments of the General Assembly. City of Philadelphia v. Schweiker, 858 A.2d 75, 84 (Pa.
2004). Any ambiguities in analyzing a home rule municipalitys exercise of power are to be
resolved in favor of the municipality. Nutter v. Dougherty, 938 A.2d 401, 411 (Pa. 2007).
However, under the doctrine of conflict preemption, a local ordinance that contradicts,
contravenes, or is inconsistent with a state statute is invalid. Holts Cigar Co., Inc., v. City of
Philadelphia, 10 A.3d 902, 907 (Pa. 2011).

The Act directs that the Secretary of Health of the Commonwealth shall control all
substances listed in Schedules I through V thereof. The Secretary may add substances to the list
by regulation, but may not remove or reschedule any substance unless specifically authorized by
the General Assembly. 35 P.S. 780-103. Currently, marijuana is included in Schedule I of the
Act, which includes those substances with a high potential for abuse, no currently accepted
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medical use in the United States, and a lack of accepted safety for use under medical
supervision. Id. at 780-104(1) and (1)(iv).
Section 780-113 of the Act sets forth the various offenses related to controlled
substances, and the penalties attached to each. Subsection (a)(31) thereof provides for a separate
offense for possession, and distribution, of a small amount of marijuana (or marihuana):
Notwithstanding other subsections of this section, (i) the possession of a
small amount of marihuana only for personal use; (ii) the possession of a small
amount of marihuana with the intent to distribute it but not to sell it; or (iii) the
distribution of a small amount of marihuana but not for sale. For purposes of this
subsection, thirty (30) grams of marihuana or eight (8) grams of hashish shall be
considered a small amount of marihuana.
35 P.S. 780-113(a)(31).
While the general offense of possession of a controlled substance is prohibited under
subsection (a)(16) and punishable, under subsection 780-113(b), as a misdemeanor carrying a
possible sentence of up to one year and a $5,000 fine, a violation of clause (31) is punishable
only as follows:
Any person who violates clause (31) of subsection (a) is guilty of a
misdemeanor and upon conviction thereof shall be sentenced to imprisonment not
exceeding thirty days, or to pay a fine not exceeding five hundred dollars ($500),
or both.
35 P.S. 780-113(g).
As summarized above, Bill No. 140377 proposes to prohibit the same conduct as the Act
with respect to possession of a small amount of marijuana, but to provide for a civil penalty for
its violation under The Philadelphia Code, to be enforced by citation and a fine of $25. Such
penalty would supplement, but not replace or prohibit, the criminal penalty provided under the
Act for the same conduct.
The Act does not expressly invite local governments to supplement its regulation of
controlled substances; nor does it prohibit them from doing so or otherwise expressly state that
the legislature has preempted the field in this area.
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Thus, the proposed ordinance would be
preempted by the Act only if it conflicts with the Act, provided that any such conflict is
irreconcilable. Holts Cigar, supra, at 907. In making that determination, the ordinance must
be considered in light of the objectives of the General Assembly and the purposes of the relevant
statute. A local ordinance may not stand as an obstacle to the execution of the full purposes and

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With respect to drug paraphernalia only, the Act does include an explicit savings clause: Nothing in
this act relating to drug paraphernalia shall be deemed to supersede or invalidate any consistent local
ordinance . . . relating to the possession, sale or use of drug paraphernalia. 35 P.S. 780-141.1. The
analysis with respect to local ordinances relating to controlled substances themselves, however, is the
same under the case law, i.e., whether the local ordinance is consistent, or in conflict, with the state
enactment. See pp. 4-5 hereof.
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objectives of the Legislature. Id., quoting Huntley & Huntley, Inc. v. Borough Council of the
Borough of Oakmont, 964 A.2d 855, 863 (Pa. 2009).
At first consideration, it does not appear that the proposed ordinance conflicts with the
Act. It prohibits the same conduct, and the Act does not bar the imposition of a civil sanction for
that conduct (the 30 days/$500 fine of subsection (g) is a maximum sentence, and there is no
mandatory minimum). See City of Bethlehem v. Marcincin, 515 A.2d 1320, 1323-26 (Pa. 1986)
(city ordinance limiting incumbent Mayor to two terms did not conflict with state Election Code
providing that elected officers shall be eligible to reelection, because the statute neither
addressed matter of term limits, nor barred the city from doing so). The decision in Holts Cigar,
however, causes some concern, because there the Pennsylvania Supreme Court, in a decision
involving regulation of drug paraphernalia under the Act, held the Citys ordinance preempted.
In Holts Cigar, the City sought to prohibit, and impose a civil penalty for, the sale of
certain tobacco products and the sale of listed items of potential drug paraphernalia in certain
locations, regardless of the sellers intent or knowledge of the illegal use of the items. The Act
prohibits similar conduct, but requires as an element of the offense that the seller knew, or
reasonably should have known, the intended illegal use of the items. 10 A.3d at 911-12. The
Court concluded that although the ordinance did not contravene the primary purpose of the Act
to decrease the unauthorized use of controlled substancesit did contradict an implied
objective of the Act to protect those who sell dual-use items for legitimate purposes. Id. at
913. See also Mazzo v. Board of Pensions and Retirement of City of Philadelphia, 611 A.2d 193
(Pa. 1992) (ordinance disqualifying City employees from receiving all pension benefits upon
being charged with criminal conduct, unless found not guilty and reinstated to City employment,
conflicted with state Public Employee Pension Forfeiture Act, which provided that public
employees shall receive all benefits upon being acquitted of the charged crime).
Thus, Holts Cigar and Mazzo indicate that, even if no obvious conflict appears to exist
between a local ordinance and a state statute, and both promote the same primary purpose, it is
possible that the ordinance may be preempted if found to conflict with an implied purpose of the
state statutory scheme. While I believe there is a risk that a court could conclude that Bill No.
140377 conflicts with an implied purpose of the Act, on balance I conclude that the ordinance
should be found to promote the purposes of the Act and not to conflict with them.
First, the ordinance prohibits the same conduct as does the Act. While it provides for a
different penalty, the Pennsylvania Supreme Court has stated that with respect to conflict
preemption analysis, its focus is directed toward the particular conduct proscribed by the Act
and by the ordinance; the nature or severity of the penalties imposed is not determinative . . . .
Holts Cigar, 10 A.3d at 913. Unlike the ordinance in Holts Cigar, this ordinance would not
punish conduct defined by a lesser standard than that required by the state Act. Second, as
already noted, the ordinance does not prohibit enforcement of the criminal penalties provided
under state law, nor could it lawfully do so. Third, both the ordinance and the Act promote the
purpose of deterring conduct related to possession of a controlled substance, while not diverting
law enforcement resources from the enforcement and prosecution of more serious crimes. (See
Bill No. 140377, Whereas clauses, and Comm. v. Gordon, infra).
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There is, however, a significant possibility that a court could find that the legislature, by
classifying marijuana as a Schedule I controlled substance and by classifying the possession of
even a small amount as a misdemeanor, intended that persons convicted of violating this
prohibition should be punished exclusively under the state criminal laws. In Commonwealth v.
Davis, 618 A.2d 426 (Pa. Super. 1992), the Superior Court rejected a defendants argument that,
although the small amount of marijuana violation was classified as a misdemeanor in subsection
(a)(31), the penalty designated there was within the range of a summary offense, and thus his
arrest for the misdemeanor charge should be invalidated. The Court stated that the express
classification of the offense as a misdemeanor was clear evidence of the General Assemblys
intent to grade it as such, notwithstanding the sentence, and that the legislature had intended
offenders in this class to be subject to immediate arrest and search . . . . Id. at 430.
On the other hand, the Act does limit the penalty for such small amount possession to
imprisonment for a maximum of 30 daysconsiderably less than the one-year maximum for
other third degree misdemeanors. This sentence, the Superior Court has held, is the maximum
that a court can impose on a person convicted of a violation of only clause (31) of the Act.
Commonwealth v. Gordon, 897 A.2d 504 (Pa. Super. 2006). In Gordon, the Superior Court
reversed the conviction of a defendant under subsection (a)(16), as well as (a)(31), of the Act
with possession of 8.67 grams of marijuana, and held that he could only be convicted of a small
amount violation under subsection (a)(31). The court stated the following regarding the
legislative purpose of the Act and of subsection (a)(31) in particular:
In our view, the General Assembly, by including subsection (31) in section 780-
113 of the proscribed conduct section of the Act, wisely set out the specific crime
of possession of a small amount of marijuana, and created a graduated system of
penalties that imposes far heavier punishment for traffickers and lesser sanctions
for casual users of marijuana. This tiered approach furthers the quite purposeful
penological goals of not imprisoning slight offenders and not further crowding
already burdened prison facilities.
897 A.2d at 509. See also Commonwealth v. One (1) Pontiac Trans Am, 809 A.2d 444, 447
(Cmwlth. 2002) (defendant charged only with small amount of marijuana possession, and with
possessing drug paraphernalia not shown to be more than ancillary to such small amount
possession, could not be subject to forfeiture of his vehicle; such result would be grossly
disproportionate to the gravity of the offense that the Forfeiture Act was designed to punish.).
5. Conclusion
As the above discussion evidences, and as we learned from the ruling in Holts Cigar, it
is sometimes difficult to predict when a local law will be found to conflict with an implied
purpose of a state law. There is certainly a risk that a court could find an implied legislative
purpose of criminal punishment for all violators of the Act, even small amount offenders, and
that the ordinance irreconcilably conflicts with that purpose. In my view, however, the balance
of factors weighs in favor of a conclusion that Bill No. 140377 is not preempted by the state
Controlled Substance, Drug, Device and Cosmetic Act. Nor, as interpreted by this office, will it
violate separation of powers principles of the Charter.