City of Melbourne v. Gervais

896 So. 2d 972, 2005 Fla. App. LEXIS 4529, 2005 WL 735900

• Court: District Court of Appeal of Florida
• Decided: April 1, 2005
• Docket: No. 5D04-1987
• Status: Published

Opinion

'' PLEUS, J.

The orders finding no probable cause for seizure of the appellee/claimant’s property (electronic video machines, gift cards and $17,354.50 in currency) and directing return' of said property to her are reversed based upon the following holdings:

First, the City carried its burden at the hearing below of showing probable cause to bélieve that the subject property constituted illegal gambling devices and paraphernalia as per sections 849.15, 849.16 and 932.701(2)(a)2, Florida Statutes;

Second, the “arcade” exception contained in section 849.161(l)(a)l, Florida Statutes, for coin-operated amusement games has no application to the instant machines which operate solely upon insertion of dollar bills; and

Third, sections 849.16 and 849.161 are not unconstitutionally vague. See Delorme v. State, 895 So.2d 1252 (Fla. 5th DCA 2004); State v. Cyphers, 873 So.2d 471 (Fla. 2d DCA 2004).

The cause is remanded for further proceedings consistent with this opinion.

■ REVERSED AND REMANDED.

SHARP, W. and GRIFFIN, JJ., concur.