FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-1475

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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.

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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. 
2

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. MiamiDade 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.

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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.