Ronald Brown, Jr. v. Sheriff Mike Williams , 270 So. 3d 447 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-1475
_____________________________
RONALD BROWN, JR., JILL
BROWN, GREGORY BURRIS, LAURI
BURRIS, HOWARD F. ROBBINS,
RICHARD LEHMKUHL,
JACKSONVILLE MANAGEMENT
CONCEPTS, INC., J. FRANKLIN
PROPERTIES, LLC, SMOKERS
VIDEO I, INC., SMOKERS VIDEO
III, INC., SMOKERS VIDEO IV,
INC.,
Appellants,
v.
SHERIFF MIKE WILLIAMS,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Karen K. Cole, Judge.
March 28, 2019
M.K. THOMAS, J.
In this forfeiture proceeding, Appellants (“Smokers Video”)
challenge the trial court’s finding of probable cause sufficient for
Appellee’s (“Sheriff”) seizure of its property, currency and accounts
exceeding $975,000.00, and a BMW. Because probable cause
exists to sustain the seizure, we affirm.
I. Facts
Because of challenges arising from the creation, distribution,
and sale of synthetic cannabinoids, which are marketed to provide
a “legal high,” law enforcement initiated an investigation focusing
on the delivery and sale of these drugs. Smokers Video is in the
business of selling various synthetic marijuana products. As part
of a years-long investigation, law enforcement focused on three
stores owned by Smokers Video. Detectives engaged in at least
eighty undercover buys of “prepackaged envelopes of suspected
synthetic cannabinoids intended for human consumption.” As a
result of the investigation, the Sheriff seized property of Smokers
Video and initiated a forfeiture proceeding under the Florida
Contraband Forfeiture Act (“the Act”), the Florida Racketeer
Influenced and Corrupt Organizations Act (“RICO”), section
895.05, Florida Statutes. The property seized is alleged to have
been obtained by Smokers Video through the illegal activity of
selling synthetic marijuana, including: (1) violations of section
893.13, Florida Statutes, governing sale of a controlled substance;
(2) violations of section 893.0356, Florida Statutes, governing sale
of controlled substance, as analog; and (3) violations of section
499.0051(13), Florida Statutes, governing knowingly selling,
delivering, or holding or offering for sale any drug that is
adulterated or misbranded.
Following the seizure of its property, Smokers Video filed a
Motion to Dismiss Forfeiture Action for Lack of Probable Cause
and Motion to Return Assets. The parties agreed that the motions
would be presented to the trial court for disposition without a
hearing but in conjunction with and after consideration of the
deposition and affidavit of Detective Hester, a narcotics officer
involved in the investigation. 1
1 In the related criminal case, the defendants filed a writ of
prohibition with this Court requesting charges be dismissed as
their actions did not fall within the prescriptions of Chapter 499,
Florida Statutes. The writ was denied as the defendants failed to
show that the trial court was attempting to act in excess of its
jurisdiction. See Burris v. State, 255 So. 3d 996 (Fla. 1st DCA
2018).
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Finding probable cause to support the seizure, the trial court
denied the motions. The trial court held “a Schedule I substance,
which by definition is illegal, [is] capable of being ‘misbranded’ or
‘adulterated’ within the meaning of Chapter 499 of the Florida
Statutes.”
On appeal, Smokers Video argues that the trial court erred in
holding that Schedule I substances are capable of being mislabeled
under Chapter 499, the Florida Drug and Cosmetic Act. It concedes
that virtually all of the substances it allegedly sold and possessed
are Schedule I controlled substances. However, Smokers Video
argues that because these substances are inherently illegal, it
would defy logic to hold that inherently illegal drugs can become
even more illegal if they are mislabeled. 2
II. Analysis
The standard to review a trial court's application of the
probable cause standard to the facts is de novo. Hatcher v. State,
15 So. 3d 929, 931 (Fla. 1st DCA 2009); See also In re Forfeiture of
1994 Ford Explorer, 203 So. 3d 992, 994 (Fla. 2d DCA 2016); City
of Coral Springs v. Forfeiture of a 1997 Ford Ranger Pickup Truck,
803 So. 2d 847, 849 (Fla. 4th DCA 2002). A trial court’s
interpretation of a statute is reviewed de novo. See Velez v. Miami-
Dade Cty. Police Dep’t, 934 So. 2d 1162, 1164 (Fla. 2006).
Forfeiture proceedings move forward in two stages: a seizure
stage and a forfeiture stage. See Gomez v. Vill. of Pinecrest, 41 So.
3d 180, 184 (Fla. 2010). At the seizure stage, the trial court only
determines whether the seizure is supported by probable cause to
believe that the property has been used in violation of the Act. In
re Forfeiture of: $221,898 in U.S. Currency, 106 So. 3d 47, 49 (Fla.
2d DCA 2013); In re Forfeiture of 1994 Ford Explorer, 203 So. 2d
at 993-94. The required showing is something “less than a prima
2 Smokers Video does not argue that probable cause is lacking
with respect to the specific property seized. It challenges only the
trial court’s determination that probable cause exists that
violations of Chapter 499 and section 893.0356, Florida Statutes,
may have occurred.
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facie case, but more than a mere suspicion.” In re Forfeiture of
Seven Thousand Dollars U.S. Currency, 942 So. 2d 1039, 1042 (Fla.
2d DCA 2006) (citing Dep’t of Highway Safety & Motor Vehicles v.
Jones, 780 So. 2d 949, 951 (Fla. 4th DCA 2001)).
Smokers Video contends the trial court, in determining illegal
drugs were capable of being “misbranded” or “adulterated” in
violation of Chapter 499, inappropriately made a forfeiture-stage
determination in the seizure stage of the proceedings by making
an improper finding of criminal guilt. We disagree.
The trial court determined only that such a violation could
occur even if the drugs being sold were already illegal. The court
answered only one question — “whether a Schedule I substance,
which by definition is illegal, is capable of being ‘misbranded’ or
‘adulterated’ within the meaning of Chapter 499, Florida
Statutes.” This question is inherent in considering whether, under
the facts, there is “sufficient probability to warrant a reasonable
belief that the property was used or obtained in violation of the
Act." In re Forfeiture of 1994 Ford Explorer, 203 So. 2d at 993. The
trial court did not determine if Smokers Video did, in fact, commit
a violation.
In finding sufficient evidence to create a reasonable belief that
illegal drugs are capable of “misbranding” or “adulteration,” the
trial court did not make specific findings of fact related to Smokers
Video, but rather, relied on generalized hypotheticals:
For example, cocaine, for all its very real evils, does not
always kill those who use it. If, however, cocaine is “cut
with” rat poison, arsenic, and tiny shards of glass, it has
most certainly been adulterated from its pure form. The
harmful but not necessarily fatal illegal drug has been
adulterated so that it will almost certainly be fatal. At the
same time, it is virtually certain that the seller will
misbrand the cocaine, as he or she is unlikely to label it
as containing not only the illegal cocaine but also the
deadly materials added to the cocaine.
In response, Smokers Video argues that for drugs to be
governed by Chapter 499, those drugs must have a
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legitimate/medical use in the marketplace. In short, the drugs
must be legal for Chapter 499 to apply. However, this argument is
contradicted by the plain meaning of the Chapter 499. It governs
a broad range of drugs, including illegal drugs. It defines “drug” as
an article that is “[i]ntended to affect the structure or any function
of the body of humans or other animals.” § 499.003(18), Fla. Stat.
(2015). Here, the deposition and affidavit submitted in support of
the forfeiture complaint established that the synthetic marijuana
sold by Smokers Video was marketed as a legal high, so it was
intended to affect the structure or function of the human body.
Thus, it is governed by Chapter 499.
More compelling is the even broader wording in section
499.0051(12), Florida Statutes (2015), which criminalizes the
adulterating, misbranding, and false advertisement of “any drug”
as follows:
[Violations include:]
(a) The manufacture, repackaging, sale, delivery, or
holding or offering for sale of any drug that is
adulterated or misbranded or has otherwise been
rendered unfit for human or animal use.
(b) The adulteration or misbranding of any drug
intended for further distribution.
[. . .]
(d) The dissemination of any false or misleading
advertisement of a drug.
(e) The use, on the labeling of any drug or in any
advertisement relating to such drug, of any
representation or suggestion that an application of the
drug is effective when it is not or that the drug complies
with this part when it does not.
(Emphasis added.) The comprehensive terminology of “any drug”
in the statute, on its face, belies any claim by Smokers Video that
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the Legislature intended for only legal drugs to be subject to
Chapter 499.
Smokers Video contends that even if the plain meaning of the
statute allows for any drug, whether legal or illegal, to be
misbranded or adulterated, this Court should determine that the
trial court’s interpretation would lead to absurd results. See State
v. Burris, 875 So. 2d 408, 410 (Fla. 2004) (noting the statute’s plain
and ordinary meaning must control, unless this leads to an
unreasonable result or a result clearly contrary to legislative
intent). We find this argument meritless. The purpose of Chapter
499 includes protecting the public not only from physical harm but
also from merchandising deceit: “[This part is intended to]
[s]afeguard the public health and promote the public welfare by
protecting the public from injury by product use and by
merchandising deceit involving drugs, devices, and cosmetics.”
§ 499.002(1)(a), Fla. Stat. (2015).
Below, Smokers Video consistently phrased the issue as
whether illegal drugs like cocaine and heroin are subject to the
branding and labeling requirements of Chapter 499 and
continuously compared the current facts to a typical street corner
cocaine sale. Yet, Smokers Video operated multiple businesses
(video stores); within those stores, it sold the synthetic marijuana
which, at least in the beginning, was marketed as a “legal high.”
In creating the synthetic marijuana, Smokers Video sent the drugs
to a laboratory for testing to ensure specific banned substances
were not present. Smokers Video’s goal was to sell a product that
people intended to use to get high or to obtain certain effects.
Smokers Video concedes the drugs it sold were illegal under
Chapter 893. Chapter 499 was created, in part, to protect the
public from “injury by product use” and by “merchandising deceit
involving drugs.” § 499.002, Fla. Stat. Because we agree with the
trial court that probable cause existed to support the seizure, the
order is affirmed.
AFFIRMED.
ROBERTS and KELSEY, JJ., concur.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Steven G. Mason of Steven G. Mason, P.A., Altamonte Springs;
and Mitchell A. Stone of Stone & Lockett, P.A., Jacksonville, for
Appellants.
Melissa Nelson, State Attorney, and Jeffrey Davenport, Assistant
State Attorney, of the Office of the State Attorney, Fourth Judicial
Circuit, Jacksonville, for Appellee.
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