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House Bill 49

proctoraccess : July 1, 2013 3:53 pm : Drug Paraphernalia Sales

The Implications of House Bill 49 (on the Retail Sale of Smoking Pipes/Devices) after July 1, 2013

New Florida Legislation will affect the ability to sell certain smoking pipes/devices under the retail tobacco product dealers’ exception provided in section 569.0073, Florida Statutes, after the new law (HB 49) pertaining to the retail sale of “drug paraphernalia” goes into effect on July 1, 2013. There’s been considerable controversy and backlash towards the newly signed bill. This is my understanding of House Bill 49 and its implications:

Currently, section 569.0073, F.S. allows persons with a retail tobacco products dealer permit to sell certain smoking pipes/devices as long as the dealer either (1) derives at least 75 percent of its annual gross revenues from the retail sale of cigarettes, cigars, or other tobacco products; OR (2) derives no more than 25 percent of its annual gross revenues from the retail sale of the permitted smoking pipes/devices. This past legislative session a new law was passed that outlaws the retail sale of “drug paraphernalia” which expressly lists certain smoking pipes/devices. See, House Bill 49, “Retail Sale of Drug Paraphernalia.”

It is very important to note that while the new law lists certain smoking pipes/devices the law does NOT make the items per se “drug paraphernalia.” Rather in order for the smoking pipes/devices to be considered “drug paraphernalia” the items must be “used, intended for use, or designed for use” in “ingesting, inhaling, or otherwise introducing into the human body a controlled substance.” See, section 893.145, F.S. Equally important is the fact that when the legislation was originally filed, it expressly removed the exception (s. 569.0073, F.S.) that allows retail tobacco products dealers to sell smoking devices. However, the bill was ultimately amended to its present form which does NOT amend s. 569.0073 but rather creates the new criminal offense of the retail sale of drug paraphernalia in section 893.147(6), F.S.

Because the new law clearly focuses on the sale of “drug paraphernalia” as defined by statute (as opposed to smoking pipes/devices), and does not in any way amend section 569.0073, it is my opinion that a business may continue to legally sell smoking pipes/devices as long as they comply with the retail tobacco products dealer exception referenced above in section 569.0073, F.S.

That being said, I will caution that the tobacco dealer exception does not give immunity from prosecution for the sale of drug paraphernalia. If law enforcement believes a business to know (or should reasonably know) that the smoking devices it sells are being used for illegally controlled substances, it can be criminally charged. In determining whether the pipes are indeed paraphernalia, some of the factors law enforcement are allowed to consider include:

*statements by an owner/employee concerning its use;
*the proximity of the pipe to controlled substances;
*direct or circumstantial evidence of the intent of the owner/employee to deliver it to persons who he or she knows, or should reasonably know, intends to use the device to violate the law;
*any advertising concerning its use;
*the manner in which the device is displayed; and
*existence and scope of legitimate uses for the device in the community.

Please know that this is in no way an exhaustive list of factors to be considered by law enforcement, as Florida law allows them to consider these factors, as well as, “all other logically relevant factors.” See, section 893.146.

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Charges Dismissed in Golden Eagle Arson Case

proctoraccess : March 4, 2013 3:27 pm : Golden Eagle Arson

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Mug Shot

proctoraccess : February 26, 2013 10:10 am : Mug Shot

Have you been arrested in Florida? Your mug shot is probably still online.

I get a few calls every week from former clients whose cases I’ve actually gotten dismissed, or even sealed/expunged, who can still find their arrest photos online. These are decent people who have been fired from jobs because their employer randomly decided to Google them; these are people who have been refused employment because their mug shot is floating around the internet. Some of these good citizens have been unable to rent apartments because they have an arrest record according to a quick search on the internet. My clients are upset and they deserve to be. Unfortunately, due to Florida’s broad public records laws, arrest and booking photos are public records that can and do get posted on non-law enforcement websites for the entire world to see. This has started a cottage industry where websites like, Mugshots.com and TheSmokingGun.com, make their business out of capturing daily booking photos from across the nation and posting them online. These companies typically post the arrest photos of very attractive females or persons with outlandish tattoos or colorful hairstyles on their homepages to try to grab your attention. Even local news organizations are getting into the act by posting their daily jail booking photos online. But what I’ve found out from my clients is that when they contact these companies about taking down their photos because they were never convicted or were wrongfully arrested, most companies will typically do so only if the client agrees to pay them. So you see, this practice really isn’t about outing convicted criminals or increasing public safety in communities. Rather it’s really just about making money and driving sales. And let me assure you, business is good (very good) in today’s society where all too often people are presumed guilty. While this all seems very unfair and overly punitive to those who have been arrested but not convicted, the practice appears to be legal, at least for now.

I am therefore thrilled to report that this issue has captured the attention of two lawmakers in Tallahassee. Senator Charlie Dean, the former Sheriff of Citrus County, Florida, and Representative Carl Zimmerman, have filed legislation aimed at cracking down on these websites. Senate bill (SB 1060) and House bill (HB 677) would require all websites to remove mug shots and all personal information within 15 days of written notification from a person that the charges were dropped or otherwise resolved without a conviction. The legislation would prohibit websites from charging a fee for removal of the information and subjects the website operator to fines and even a defamation lawsuit if they fail to comply with the request. Neither bill has been heard in committee yet, but I will follow the legislation and post regular updates as they progress through both chambers of the Florida Legislature. I will do whatever I can to see that this law passes.

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Unlawful and Constructive Possession

proctoraccess : January 7, 2013 8:09 am : Possesion

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Prescription Drug Abuse

proctoraccess : January 4, 2013 4:09 pm : Prescription Drug Abuse

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House Bill 49

proctoraccess : July 1, 2013 3:53 pm : Drug Paraphernalia Sales

The Implications of House Bill 49 (on the Retail Sale of Smoking Pipes/Devices) after July 1, 2013

New Florida Legislation will affect the ability to sell certain smoking pipes/devices under the retail tobacco product dealers’ exception provided in section 569.0073, Florida Statutes, after the new law (HB 49) pertaining to the retail sale of “drug paraphernalia” goes into effect on July 1, 2013. There’s been considerable controversy and backlash towards the newly signed bill. This is my understanding of House Bill 49 and its implications:

Currently, section 569.0073, F.S. allows persons with a retail tobacco products dealer permit to sell certain smoking pipes/devices as long as the dealer either (1) derives at least 75 percent of its annual gross revenues from the retail sale of cigarettes, cigars, or other tobacco products; OR (2) derives no more than 25 percent of its annual gross revenues from the retail sale of the permitted smoking pipes/devices. This past legislative session a new law was passed that outlaws the retail sale of “drug paraphernalia” which expressly lists certain smoking pipes/devices. See, House Bill 49, “Retail Sale of Drug Paraphernalia.”

It is very important to note that while the new law lists certain smoking pipes/devices the law does NOT make the items per se “drug paraphernalia.” Rather in order for the smoking pipes/devices to be considered “drug paraphernalia” the items must be “used, intended for use, or designed for use” in “ingesting, inhaling, or otherwise introducing into the human body a controlled substance.” See, section 893.145, F.S. Equally important is the fact that when the legislation was originally filed, it expressly removed the exception (s. 569.0073, F.S.) that allows retail tobacco products dealers to sell smoking devices. However, the bill was ultimately amended to its present form which does NOT amend s. 569.0073 but rather creates the new criminal offense of the retail sale of drug paraphernalia in section 893.147(6), F.S.

Because the new law clearly focuses on the sale of “drug paraphernalia” as defined by statute (as opposed to smoking pipes/devices), and does not in any way amend section 569.0073, it is my opinion that a business may continue to legally sell smoking pipes/devices as long as they comply with the retail tobacco products dealer exception referenced above in section 569.0073, F.S.

That being said, I will caution that the tobacco dealer exception does not give immunity from prosecution for the sale of drug paraphernalia. If law enforcement believes a business to know (or should reasonably know) that the smoking devices it sells are being used for illegally controlled substances, it can be criminally charged. In determining whether the pipes are indeed paraphernalia, some of the factors law enforcement are allowed to consider include:

*statements by an owner/employee concerning its use;
*the proximity of the pipe to controlled substances;
*direct or circumstantial evidence of the intent of the owner/employee to deliver it to persons who he or she knows, or should reasonably know, intends to use the device to violate the law;
*any advertising concerning its use;
*the manner in which the device is displayed; and
*existence and scope of legitimate uses for the device in the community.

Please know that this is in no way an exhaustive list of factors to be considered by law enforcement, as Florida law allows them to consider these factors, as well as, “all other logically relevant factors.” See, section 893.146.

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Charges Dismissed in Golden Eagle Arson Case

proctoraccess : March 4, 2013 3:27 pm : Golden Eagle Arson

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Mug Shot

proctoraccess : February 26, 2013 10:10 am : Mug Shot

Have you been arrested in Florida? Your mug shot is probably still online.

I get a few calls every week from former clients whose cases I’ve actually gotten dismissed, or even sealed/expunged, who can still find their arrest photos online. These are decent people who have been fired from jobs because their employer randomly decided to Google them; these are people who have been refused employment because their mug shot is floating around the internet. Some of these good citizens have been unable to rent apartments because they have an arrest record according to a quick search on the internet. My clients are upset and they deserve to be. Unfortunately, due to Florida’s broad public records laws, arrest and booking photos are public records that can and do get posted on non-law enforcement websites for the entire world to see. This has started a cottage industry where websites like, Mugshots.com and TheSmokingGun.com, make their business out of capturing daily booking photos from across the nation and posting them online. These companies typically post the arrest photos of very attractive females or persons with outlandish tattoos or colorful hairstyles on their homepages to try to grab your attention. Even local news organizations are getting into the act by posting their daily jail booking photos online. But what I’ve found out from my clients is that when they contact these companies about taking down their photos because they were never convicted or were wrongfully arrested, most companies will typically do so only if the client agrees to pay them. So you see, this practice really isn’t about outing convicted criminals or increasing public safety in communities. Rather it’s really just about making money and driving sales. And let me assure you, business is good (very good) in today’s society where all too often people are presumed guilty. While this all seems very unfair and overly punitive to those who have been arrested but not convicted, the practice appears to be legal, at least for now.

I am therefore thrilled to report that this issue has captured the attention of two lawmakers in Tallahassee. Senator Charlie Dean, the former Sheriff of Citrus County, Florida, and Representative Carl Zimmerman, have filed legislation aimed at cracking down on these websites. Senate bill (SB 1060) and House bill (HB 677) would require all websites to remove mug shots and all personal information within 15 days of written notification from a person that the charges were dropped or otherwise resolved without a conviction. The legislation would prohibit websites from charging a fee for removal of the information and subjects the website operator to fines and even a defamation lawsuit if they fail to comply with the request. Neither bill has been heard in committee yet, but I will follow the legislation and post regular updates as they progress through both chambers of the Florida Legislature. I will do whatever I can to see that this law passes.

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Unlawful and Constructive Possession

proctoraccess : January 7, 2013 8:09 am : Possesion

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Prescription Drug Abuse

proctoraccess : January 4, 2013 4:09 pm : Prescription Drug Abuse

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Traffic Tickets

proctoraccess : August 21, 2012 2:48 pm : Traffic Tickets

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Driving Under The Influence (DUI)

proctoraccess : August 21, 2012 2:06 pm : Driving Under the Influence (DUI)

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Sealing and Expunging Criminal Records in Florida

proctoraccess : November 29, 2012 9:15 am : Record Sealing/Expunction

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Record Sealing/Expunction

proctoraccess : August 21, 2012 2:46 pm : Record Sealing/Expunction
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Learn About the Florida Open Container Law

proctoraccess : November 29, 2012 9:12 am : Underage Alcohol Possession

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Prescription Drugs, Doctor Shopping, and College Students in Criminal Law

proctoraccess : October 19, 2012 1:01 pm : College Students In Criminal Law

Prescription drug abuse kills more than 7 people in Florida every day. In 2010 there were 2,710 prescription drug deaths in Florida, with Oxycodone causing almost 3 times as many deaths as cocaine and heroin combined. In an effort to stem this public health crisis, Florida enacted tough new laws in 2011 aimed at strengthening its regulation over pain management clinics, increasing criminal penalties for the illegal use and dispensing or prescription drugs and implementing a Prescription Drug Monitoring Program (“PDMP” also known as “E-FORCSE”). The law now requires doctors and pharmacists to report certain controlled substances (e.g. Oxycontin, Vicodin, Percocet, Klonopin, Xanax, Valium, etc.) to the PDMP no later than 7 days from the date of the dispensing. Law Enforcement can then gain access to information in the PDMP to identify possible “doctor shoppers.” Under Florida law, a “doctor shopper” is a person who, when seeking a controlled substance from a practitioner, fails to inform the practitioner that he or she received a prescription for a controlled substance with “like therapeutic use” from another practitioner within the previous 30 days. In other words, there is an affirmative duty on your part to inform your doctor about prior similar prescriptions even if your doctor does not ask you about it. Failure to do so is a third degree felony in Florida under section 893.13(1)(a)8, Florida Statutes. While it has always been a good idea to be as thorough as possible with your doctor about your medical history because your life may depend on it, it also makes sense because your liberty may depend on it to.

As serious as prescription drug abuse is, so is taking prescription medicines that you do not have a prescription for. Probably one of the most abused drugs on college campuses these days is Adderall (and to a lesser extent, Ritalin). Although Adderall does not rank high in death related cases like Oxycodone and Benzodiazepines, it is possible to overdose on this amphetamine based drugs. Adderall is typically prescribed to treat attention deficit disorder but is commonly used on campuses due to its stimulant qualities that vies its user laser-like focus. Scientists call them “cognitive enhancers” and students call them “study drugs” or “smart drugs.” Students without prescriptions typically use these drugs during exams so they can cram all night and still remain focused on exam day. Most students get Adderall from friends who have legitimate prescriptions for the drug. However, a word of warning to both parties; merely having one Adderall in your possession without a prescription is a third degree felony in Florida punishable up to five years in prison. It is in fact the same level offense as having an “eight ball” or (3.5 grams) of cocaine on you. And for the person who even gives their Adderall away? You can be prosecuted for distributing a controlled substance which is also a third degree felony. To be sure, there is a certain societal acceptance of prescription drugs in our country which makes people believe they are safer than illegal street drugs like cocaine, heroin and ecstasy. However, do not be fooled. Prescription drugs have been killing more people than these street drugs for the last few years. Furthermore, the criminal penalties associated with their possession and delivery are at least as punitive, if not more, than those assigned to cocaine, heroin, etc. Doing well in school is important, bot not nearly as important as your health or your freedom. Please keep this in mind while you prepare for exams, and good luck.

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Hazing: Fun or Felony?

proctoraccess : September 26, 2012 8:05 am : Criminal Matters, Hazing, Matthew R. Willard

States all over the country have enacted anti-hazing laws aimed at putting an end to this age old college rite of passage. Florida’s anti-hazing law went into effect in July 2005. Since then, Tallahassee has criminally prosecuted hazing cases involving students from Florida A&M University (FAMU) and Florida State University (FSU). Two of the FAMU students, who were by all accounts leaders in their class, were found guilty and sentenced to prison; that case was ultimately overturned but the two aspiring professionals still spent over a year in prison. My law firm represented one of the students in the FSU case and we ultimately got it dismissed on jurisdictional grounds. Of course the case that is currently making national headlines right now is being prosecuted in Orlando and deals with the tragic death of Robert Champion, who was a member of the FAMU Marching 100. The public evidence, as it’s known to us now, seems to indicate that Mr. Champion was a willing participant to the hazing ritual but let me be clear, that is no defense to the law. Notwithstanding his apparent willingness, I think that we can all probably agree that Mr. Champion never possibly believed that it could end in such a disastrous and final result.

Florida’s prosecution of persons for hazing is a very real and very serious reality. Florida has instituted a zero tolerance policy for hazing. So what exactly is hazing? Hazing is defined as any action that recklessly or intentionally endangers the mental or physical health or safety of a student for the purpose of initiation or admission into an organization sanctioned by a college. It is a third degree felony if the hazing results in serious bodily injury or death, and a first degree misdemeanor if it creates a substantial risk of injury or death. Let me repeat – it is no defense that a person willingly participates in the hazing activity. Although there were no injuries to any pledge in the FSU case I defended, the State still prosecuted the students because it determined the acts created a substantial risk of injury. If the risk of being charged with a criminal offense isn’t deterrent enough, there is still your college’s student conduct code to deal with. For instance, FSU’s anti-hazing policy prohibits any activity which subjects a person to embarrassment or humiliation. That probably covers just about anything you can think of to do to a person just because he or she is pledging your sorority or fraternity. The lesson therefore is that you should never, ever engage in any form of hazing whatsoever- it’s just not worth it; not only because of the law but because of the potential unintended consequences.

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