FAQs

Welcome to our Frequently Asked Questions.. We posted these in order to help people find answers to questions they may have about Lowest Law Enforcement Priority of Cannabis Ordinance. While these were originally published in November 2009, you will see that we’ve since added additional commentary because we can see that our law enforcement and ‘Public Safety’ personnel in Hawaii County have publicly stated that they are not obeying the Lowest Law Enforcement Priority of Cannabis Ordinance (LLEPCO).

Q: What does this ordinance say in ordinary language?

A: This ordinance says that in the County of Hawaii ‘adult personal use’ shall be the Lowest Law Enforcement Priority for law enforcement agencies in the county. ‘Adult Personal Use’ is defined as possession and use of 24 plants or less OR 24 ounces or less (OR any combination of plants and the equivalent dried material that doesn’t add up to more than 24 plants) by adults (over twenty-one) on private property.

The ordinance further prohibits the County law enforcement agencies (including the police and the County prosecutors) from spending any public funds for the investigation, arrest or prosecution of any person in a manner inconsistent with the policy. This means that the Ordinance, if strictly applied, stops the police from arresting and the prosecutor from prosecuting cases where the amount of marijuana involved is 24 plants or less or 24 ounces or less, and otherwise qualifies as Adult Personal Use.

Q: Does the ordinance make marijuana legal in the County of Hawaii?

No. This law does NOT legalize the possession of marijuana, which is still prohibited under Hawaii State Law and Federal law. The least serious charge could be a petty misdemeanor:

Promoting a detrimental drug in the third degree. (1) A person commits the offense of promoting a detrimental drug in the third degree if the person knowingly possesses any marijuana . . . in any amount.(2) Promoting a detrimental drug in the third degree is a petty misdemeanor. (HRS § 712-1249)

Q: What is the point of the ordinance if it doesn’t make marijuana legal in the County of Hawaii?

The ordinance expresses the will of the majority of the people of Hawaii County that non-violent adults should not have to fear prosecution and the stigma of criminality for their cultivation and use of marijuana for personal, medicinal, religious and recreational purposes.

This expression of community standards is important for getting the Courts of Hawaii to recognize a personal right to use marijuana for recreational purposes, something which they refused to do in 1998, in State v. Mallan, 86 Hawai‘i 440, 454, 950 P.2d 178, 192 (1998). The Court said that, even though the Hawaii Constitution now contains a provision protecting the right of privacy, it doesn’t protect the use of marijuana just for fun (Article I, section 6 of the Hawai`i Constitution provides: The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.)

The Court reached this conclusion by assuming that recreational use is not a “fundamental” right (without discussing the right to “pursuit of happiness” in the Declaration of Independence, which lists having fun right up there with “life” and “liberty” as one of the Big Three fundamental rights that governments are formed to protect), and then claiming that recreational use was not an accepted tradition in Hawaii. The money quote from the Court’s opinion:

We cannot say that smoking marijuana is a part of the “traditions and collective conscience of our people.” In Hawai`i, possession of marijuana has been illegal since 1931. See 1931 Haw. Sess. L. Act 152, § 12, at 155-56. (….) Additionally, we have no reason to believe that the collective conscience of the people supports the possession and use of marijuana under the circumstances of this case. (emphasis added)

By passing the Ordinance, the “collective conscience of the people” has spoken in support of the adult personal use of marijuana. The Mallan Court itself held open the possibility of changing its mind, if circumstances called for it:

Therefore, while this court might extend the scope of article I, section 6 in the future by adopting new standards and applying these standards to new situations, it is clear, at present, that the right to privacy in the Hawai`i Constitution does not extend to the possession and use of marijuana for recreational purposes.

The other purpose of the Ordinance, in addition to expressing the will of the people, is to tie the hands of the Police Department and Prosecutor by depriving them of the funding to arrest, cite or seize property or PROSECUTE where ‘adult personal use’ is concerned. It is a way of saving several million dollars of County funds annually and a way of ensuring that resources are allocated to address far more serious problems in the community. Use of funding is still permitted for arrests and prosecutions involving people under 21, or use on public property, or any other circumstances that do not qualify as Adult Personal Use. If this part of the ordinance is effective, it stops arrests and prosecutions for adult personal use in the County of Hawaii. The problem is getting the police and prosecutors to accept the power of the citizens of the County to implement this policy by a majority vote. If they won’t obey the ordinance, the question then confronts us of: Who Will Bell the Cat? Who will remove the recalcitrant officials from their posts of power, by defeating them at the next election, impeaching them for misconduct, or even prosecuting them for breaking the ordinance?

Q: So is this ordinance a law?

A: Yes, that’s right. It’s a law since November 5, 2008. The Lowest Law Enforcement Priority of Cannabis Ordinance is also called Hawaii County Ordinance 08-181. You can find it in the Hawaii County Code Chapter 14 Article 16 Sections 14-96 to 14-105. This ordinance requires our Police, Prosecution and our Council to act in accordance with this ordinance so that ‘adult personal use’ (as defined by the ordinance) is not treated as a criminal offense.

Q: So is it legal for me to have 24 plants?

A: No. Anyone choosing to grow marijuana or use marijuana in Hawaii County needs to be fully aware of risks taken for possessing any plants or dried material and act with discretion and common sense. This ordinance attempts to secure our rights to privacy for adult personal use, but everyone should be aware that this legislation does not make possession legal. This ordinance is a mandate to the Hawaii County Police Department and Prosecutor that redirects their priorities away from arrests for ‘adult personal use’ on private property according to the terms of the ordinance (24 ounces or 24 plants or a combination of the above).

It remains illegal to possess any marijuana, or marijuana plants, under Federal law. Unless you are a medical marijuana patient, it is illegal to possess any marijuana or plants at the state level too. It appears that the police and prosecutor are still enforcing the state laws, and assisting the enforcement of Federal laws, in violation of the funding restrictions imposed by the ordinance. This practice is being actively contested by Peaceful Sky Alliance and other community organizations.

Q: Can the police arrest me for 24 plants or less or 24 ounces or less?

A: Yes, they are the police and can do anything that they want to. Whether their actions hold up in court has to be decided later. This ordinance only protects use on private property. You should know that it doesn’t apply if you are in your vehicle or in a public place.

Note added by Peaceful Sky Alliance in April 2010:

The intent of this law, as it was written, is to provide protection of your rights to privacy and ‘quiet enjoyment of private property’. The Police Chief and Prosecutor of Hawaii County are in ongoing dialogue with Hawaii County Council but have several times gone on record to say that they will not obey this County Ordinance, citing Federal and State law as the reason they are not in compliance with County law. This matter may require a legal challenge or continued pressure of Council and citizens in order to achieve compliance. We will continue to fight to get this law implemented, so that you will be protected on private property.

Q: What if I was arrested for possessing a small amount of cannabis material or for a few plants prior to November 5 when the law was passed? Does this ordinance help me?

A: The simple answer to this question is that it should apply to your case. Under the ordinance in Section 6 the Prosecution department (Office of The Prosecuting Attorney) is requested to comply with the Lowest Law Enforcement Priority of Cannabis. Council are specifically directed in Section 14-101. The ordinance specifically spells out that “…neither the County Prosecuting Attorney nor any attorney prosecuting on behalf of the County of Hawaii shall prosecute for any possession or cultivation of Cannabis in a manner inconsistent with the Lowest Law Enforcement Priority” It further says that the Prosecution of Hawaii County shall recognize that “… in cases where the amount possessed or grown is less than 24 (twenty four) plants or the dried equivalent, possession for adult personal use shall be presumed…”The guidelines are very clear that our County Prosecution may not continue to prosecute cases involving ‘adult personal use’. If you are currently being prosecuted for a case that would be defined here as ‘adult personal use’, (24 plants or 24 ounces on private property for those 21 and over) then please contact the Peaceful Sky Alliance. We’d like to advocate for you on your behalf.

Additional comments added by Peaceful Sky Alliance in April 2010: Unfortunately the Prosecutor for Hawaii County, Mr. Jay Kimura continues to state publicly that he doesn’t recognize this County Law. It may take a legal challenge and or continued pressure from Hawaii County Council and citizens to resolve this issue.

Q: Why are the helicopters flying? I thought the ‘Peaceful Sky Initiative’ was meant to end the police helicopters so why are they still flying?

A: Thank you for this question! The ordinance is very specific that this county shall NOT support any further funding of marijuana eradication. That means they cannot accept any funding. Nada! Zero! Zip! As of the posting of this entry (November 5, 2009, exactly a year since anniversary), the County have been notified that by accepting funding for the current round of ‘marijuana eradication’ helicopter over flights, they are in clear violation of the Hawaii County Ordinance 08-181

Additional comments added by Peaceful Sky Alliance in May 2010: It is important to be aware that while the County is not supposed to accept funding, it is possible that different state or Federal agencies will continue to fly. At the budget hearing March 30, the Police Chief Mr. Harry Kubojiri made the statement that there is no funding in the 2010-2011 budget allocated for Marijuana Eradication. We are aware however that Mayor Kenoi on January 22, 2010, sought permission to enter into an agreement with the State of Hawaii to allow Hawaii County Police to participate in a ‘Joint Narcotic Task Force’ for the purposes of training and ‘other enforcement efforts.’ While a proviso was made that this ‘task force’ not be used for the purposes of ‘marijuana eradication’, we need to be aware that further ‘marijuana eradication’ programs might be covertly initiated by this ‘Task Force’. Please report any helicopter activity to the Peaceful Sky Alliance.