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Maintaining a Public Nuisance for Drug Use

If you were charged with keeping or maintaining a public nuisance in violation of section 823.10, Florida Statutes, then …. Officers will often charge this crime when they want to justify seizing property for forfeiture.

In many of these cases, the defendant’s conduct does not violate the portion of section 823.10 that criminalizes maintaining a public nuisance.

In these cases, the prosecutor with the State Attorney’s office might charge the defendant with keeping or maintaining a “dwelling/structure” used for selling, distributing, or ingesting illegal substances in violation of section 823.10. Section 823.10 took effective on July 1, 2001.

Section 823.10 is entitled “place where controlled substances are illegally kept, sold, or used declared a public nuisance.” Subsection 1 of section 823.10 provides:

Any store, shop, warehouse, dwelling house, building, structure, vehicle, ship, boat, vessel, or aircraft, or any place whatever, which is visited by persons for the purpose of unlawfully using any substance controlled under chapter 893 or any drugs as described in chapter 499, or which is used for the illegal keeping, selling, or delivering of the same, shall be deemed a public nuisance.

No person shall keep or maintain such public nuisance or aid and abet another in keeping or maintaining such public nuisance.

Any person who willfully keeps or maintains a public nuisance or willfully aids or abets another in keeping or maintaining a public nuisance, and such public nuisance is a warehouse, structure, or building, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

In Ratliff v. State, 56 So. 3d 918, 919 (Fla. 2d DCA 2011), the court found that the “second portion of section 823.10(1), which criminalizes keeping or maintaining a public nuisance, mentions only a “warehouse, structure, or building,” while the first portion of the statute, which explains what constitutes a “public nuisance,” lists “store, shop, warehouse, dwelling house, building, structure, vehicle, ship, boat, vessel, or aircraft, or any place whatever.” As such, this language indicated that the legislature intended to consider “dwelling house,” “building,” and “structure” separately. See id.

The Ratliff court then concluded that “[b]ecause the statute prohibits the public nuisance in a “warehouse, structure, or building” and it is undisputed that the subject of this case was a dwelling, the statute does not apply to Ratliff’s conduct.” For this reason, the court in the Ratliff case, reversed the judgment and sentence and remand for the trial court to enter an order of dismissal.

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