FloridaLawCommentary.com

There has always been an “underground” interest in unusual or obscure hallucenegenic drugs and plants which somehow escaped the watchful eye of the FDA or state legislatures and are thus “legal.” 

We picked up an interesting news story — from all places, PC World Magazine (March 2009) – about the availability of psychedelic drugs, plants, and supplements online.  Of course, if it exists, its on the internet.  The immediate outcry was the widespread availability of these drugs for teenagers with a paypal or credit card account.  What is more surprising is that Florida legislators are already one step ahead — the “new” drug is already banned in Florida.

Apparently the fad is salvia divinorum, apparently some distant cousin of mint (hence the moniker, “magic mint”).  According to the Salvia Divinorum User’s Guide, this “visionary herb” can be smoked or chewed with auditory and behavioral changes lasting anywhere from 15 minutes to an hour.

Many sites exist which sell this plant, including Bouncing Bear Botanicals, Herbal Fire, andShaman’s Garden.  Most of these sites have warnings about consumption levels and when/where to take the drug; that said, the varieties and quantities sold (from about $9 – $25) appear confusing.  Potentcy was also unclear.  One site, NeuroSoup, gave vague and inaccurate information about the drugs legal status.  Thus, these sites are not giving clear technical information nor are they always giving accurate legal information.

 As mentioned above, Florida law seems on top of the issue despite the fact that the plant does not appear to be indigenous to the state.  Florida State 893.03(1)(c)(35) says salvia is a schedule I drug with a high potential for abuse and no accepted medical use (which seems strange since, for salvia, the statute prohibits Salvia divinorum, except for any drug product approved by the United States Food and Drug Administration which contains Salvia divinorum”).

Who knew Tampa had a crime-fighting version of the Naked Cowboy?  Apparently Walsh Nichols, a Tampa-area college student, began dressing as Batman and frequenting Ybor City… complete with a black motor scooter with the batman emblem.  One night in October, police arrested Nichols under Florida Statute 876.12 for wearing a mask in public (a charge, we note, under a “criminal anarchy” statute).  According to Nichols, he was wearing the suit but was simply eating sushi at the time; however, he had been warned to take off the mask earlier in the evening. 

Tampa Bay Online broke the story – which we agree had to be reported —  yet succumbed to the urge to use every Batman cliche.  We’ll tastefully avoid that here and even regret that initial reference to the Naked Cowboy above.  Of course the legal issues got lost in the pow-zap-bam silliness.  Also lost in the story was the citation that Batman apparently did not have the license endorsement to ride the bike.

Does the story end there?  Not when local Tampa news can get video for a human interest segment which they entitle, “Batman Seeks Justice.”  

Indeed Batman, er, Nichols hired attorney Kevin Hayslett of Carlson & Meissner who filed a Motion to Dismiss and Motion to Suppress, pointing out that the 1951 no-mask-in-public law has a 1981 companion, Florida Statute 876.155, which requires that the masked-person have certain criminal “intent” before it is a crime.  The Motion cites a 1980 Florida Supreme Court case which held that the old anti-Ku Klux Klan law could be overbroad; that case apparently inspired the 1981 statute.  

As a seedling which could give rise to an appeal to the U.S. Supreme Court, the Motion also cites the Fourth Amendment prohibition against unlawful search and seizure (a federal law involving a U.S. Constitutional right, hence the potential road to the High Court).  The defense claims the police had no basis for the arrest since the sushi-eating Batman exhibited no criminal intent. 

Nichols primed the news with some campy comments, such as the fact that he and his friend do not go to Ybor anymore since they can’t wear their masks.  His friend who dresses like Robin, of course.  Both dutifully have their own Myspace pages, so you can see Batman and Ybor Robin.  A (soon-to-be well circulated) Myspace page has an arrest photo with Batman in full attire.