STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ALCOHOLIC ) BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6500

)

ROBERT MOORE, JR., )

d/b/a The Cycle Lounge, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on January 10, 1990, at Tampa, Florida.

APPEARANCES

For Petitioner: Elizabeth C. Masters, Esquire

Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000

For Respondent: Joseph H. Ficarrotta, Esquire

600 Madison Street

Tampa, FL 32602 STATEMENT OF THE ISSUES

Whether The Cycle Lounge is a public nuisance and whether or not Robert Moore, Jr., knew or should have known laws were being violated on the licensed premises by the sale of cocaine and other controlled substances.

PRELIMINARY STATEMENT

By Notice to Show Cause dated November 16, 1989, the Division of Alcoholic Beverages and Tobacco (DABT), Petitioner, notified Robert Moore, Jr., d/b/a The Cycle Lounge, Respondent, that his license was being suspended pending resolution of the allegations made against the Respondent and of Respondent's right to an immediate hearing in view of the emergency suspension imposed.

Respondent waived the right to an immediate hearing on the emergency suspension and elected a hearing at which he was given at least two week's notice. As grounds for the emergency suspension, it is alleged that on various dates between August 7, 1989 and November 17, 1989, employees of Respondent sold drugs on the licensed premises on numerous occasions; that the sale of drugs was overt and public in the lounge; that these premises were well known as a location

where cocaine can be purchased, as a result of which the lounge constituted a public nuisance; and that the licensee knew, or should have known, of the illegal activities taking place at the premises.

After Respondent waived the short notice hearing on the emergency suspension, the case was set for hearing on January 10, 1990. At the hearing, Petitioner called four witnesses, the nature of the testimony to be given by the fifth witness was stipulated to by the parties, the Respondent testified in his own behalf and three exhibits were admitted into evidence. The parties also stipulated that the sales alleged to be cocaine were cocaine. Proposed findings have been timely submitted by Petitioner. All of these proposed findings are accepted, except that part of proposed findings 16 relating to the conversation about buying a "half pack" from Moore which is rejected as not supported by clear and convincing evidence. Other proposed findings not included herein were deemed unnecessary to the conclusions reached.

FINDINGS OF FACT

1. At all times relevant hereto, Robert Moore, Jr., held a 2 COP License No. 39-00672 issued by the Division of Alcoholic Beverages and Tobacco (DABT) to operate The Cycle Lounge at 2818 D. Osborne Avenue, Tampa, Florida. (Exhibit 1)

   
   

2. After receiving a report from the Tampa Police Department that the police believed cocaine was being sold in The Cycle Lounge, DABT brought in Agent Ray Thompson, a certified law enforcement officer and a ten-year employee of the Department, as an undercover agent to investigate the report.

   
   

3. Thompson first visited The Cycle Lounge in the late afternoon on November 8, 1989. After seating himself at the bar and ordering a small beer, Thompson asked the bartender (later identified as Barry Atwood) if he knew where Thompson could get a 20 piece of crack.

   
   

4. Atwood forthwith called a black male from the game room, who he called Bubba, and told Bubba that Thompson wanted to buy crack. Bubba took four or five "rocks" from his pocket for Thompson to select the one he wanted. Thompson did so and paid Bubba, subsequently known as Russ, $20. The purchase was later analyzed and determined to be cocaine. Thompson was in The Cycle Lounge a total of approximately 15 minutes between the time he entered, ordered and drank a beer, bought crack cocaine and departed.

   
   

5. During his first visit, Thompson, a trained drug investigator, observed what appeared to be several transactions involving drugs in the lounge.

   
   

6. Thompson returned to The Cycle Lounge on November 9, 1989, in the late afternoon and seated himself at approximately the same place at the bar he had occupied November 8, 1989. Atwood was behind the bar and appeared to be in charge of the operation of the lounge, and Bubba was in the pool room part of the lounge. Thompson again asked Atwood about crack and was told to go into the pool room to see Bubba. Thompson approached Bubba and again purchased crack cocaine for $20.

   
   

7. At the time of this purchase, the noise level in the lounge was low as only the television was on, and the purchase was made with no effort at concealment or attempt to prevent others in the lounge from observing the transaction. Again Thompson was in the lounge a short time before departing.

8. On November 10, 1989, at approximately the same time, Thompson returned to The Cycle Lounge; seated himself at the same place at the bar, behind which Atwood was managing the lounge; ordered a beer; and proceeded into the pool room where he bought a "dime" of crack cocaine for $10. At this time, he observed in the lounge a black male Thompson later identified as Robert Moore, Jr., the licensee.

   
   

9. Thompson returned to The Cycle Lounge November 11, 1989, took his usual seat at the bar, ordered the usual beer, and was approached by Bubba while seated at the bar with Atwood behind the bar. After open negotiations, Thompson paid Bubba $10 for crack cocaine and shortly thereafter departed the bar.

   
   

10. On November 15, 1989, Thompson entered The Cycle Lounge around 7 p.m. at which time he observed more people in the bar than had been there all week long. While going through the parking lot behind the lounge building, several people tried to sell Thompson marijuana and crack. Atwood was just outside the lounge playing checkers and appeared upset. When Thompson entered the lounge, Atwood followed and sold him a beer. Thompson then went into the pool room where he purchased crack cocaine from Bubba from whom he learned that Atwood was upset because other dealers were selling crack to his customers. When Thompson returned to the bar, Atwood asked if he wanted to buy something.

    
    

11. Thompson returned to The Cycle Lounge on November 17, 1989, and observed Atwood selling crack cocaine. Shortly after Thompson arrived, the police raided The Cycle Lounge and made some arrests.

    
    

12. During the period between August and November 1989, Louis Murray, a confidential informant (CI) employed by the Tampa Police Department, made several visits to The Cycle Lounge in company with another CI. Both CI's were transported to the vicinity of The Cycle Lounge by Tampa police detectives, searched to insure they had no contraband, and given money with which to buy cocaine in The Cycle Lounge. During August, Murray visited The Cycle Lounge twice. The first time, he observed the CI accompanying him purchase crack cocaine from Morris Moore, the brother of Robert Moore. On the second August visit, Murray purchased crack cocaine from Atwood. These purchases were turned over to the police when the CI's left the lounge.

    
    

13. Murray, in company with another CI, made two visits to The Cycle Lounge in September and again in October. Each time one of the CI's purchased crack cocaine in the lounge in an overt, unconcealed manner. On at least one occasion Murray saw Robert Moore, Jr., in the lounge while cocaine was being openly sold.

    
    

14. All of the buys made by the CI's were in an open area of the lounge, and on each visit they observed what appeared to be other drug transactions.

    
    

15. The Tampa Police Department received several complaints about The Cycle Lounge and drug-related traffic to and from this place. Neighbors had complained about this traffic, and the lounge was well known as a place at which crack cocaine could be bought. As such, The Cycle Lounge was a public nuisance.

    
    

16. Morris Moore, the brother of the licensee, was the manager of The Cycle Lounge before he was arrested for selling cocaine. He was replaced as manager by Grady Atwood. Respondent testified that he made no background investigation of Atwood before installing Atwood as manager at The Cycle Lounge.

17. Respondent further testified that he spent only a short time each day in The Cycle Lounge after he opens up in the morning and that he never observed any drug deals in The Cycle Lounge. He further testified that he doesn't think Thompson saw him in the lounge while crack sales were being negotiated because the person he saw was probably his brother Morris who bears a striking resemblance to him.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

19. Cocaine is a controlled substance, Section 893.03(2), Florida Statutes, and it is unlawful for any person to possess a controlled substance unless it is lawfully obtained from a practitioner or pursuant to a valid prescription. Section 893.13(1)(f)5, Florida Statutes.

    
    

20. The evidence is clear and convincing that agents and employees of the licensed premises possessed and sold controlled substances on the licensed premises, and that patrons of The Cycle Lounge also possessed and sold controlled substances on the licensed premises in an overt manner with no effort to conceal the transactions.

    
    

21. Section 823.10, Florida Statutes, provides that any store, shop or building which is used for the illegal keeping, selling or delivering of any substance controlled under Chapter 893 is deemed to be a public nuisance. Under this statutory provision, The Cycle Lounge is a public nuisance.

    
    

22. Section 561.29, Florida Statutes, provides in pertinent part:

    
    

    1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is de- termined or found by the division upon sufficient cause appearing of:

       (a) Violation by the licensee or his or its agents, officers, servants

       of employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of the state .

       or permitting another on the licensed premises to violate any of the laws of this state . .

       (c) Maintaining a nuisance on the licensed premises.

       
       

23. The facts set forth above clearly demonstrate that Respondent has fostered, condoned and/or negligently overlooked trafficking in controlled substances on the licensed premises, and has failed to exercise due diligence in supervising his employees and managing the licensed premises so as to prevent or curtail the illegal trafficking in controlled substances on the licensed premises.

24. The licensed premises constitute an open and notorious gathering place for those predisposed to illicitly purchase or sell controlled substances. Accordingly, the licensed premises constitutes a public nuisance.

    
    

25. Respondent's protestations to the contrary notwithstanding, the evidence is clear that the licensee should have known that controlled substances were possessed and sold on the licensed premises. Some reasons for this conclusion include the arrest and conviction of Respondent's brother as manager of The Cycle Lounge for possession and sale of controlled substances, the overt manner in which drug transactions occurred on the licensed premises, the ease and rapidity by which a stranger could enter The Cycle Lounge and purchase a controlled substance, and the fact that Respondent was observed on the licensed premises while transactions in controlled substances were ongoing in an open and obvious manner.

    
    

26. From the foregoing, it is concluded that The Cycle Lounge constitutes a public nuisance, that agents and employees of the Respondent illegally possessed and sold controlled substances on the licensed premises, and that Respondent was fully aware and knowledgeable of the illegal dealings in controlled substances on the licensed premises.

RECOMMENDATION

It is recommended that a Final Order be entered revoking the 2 COP licenses of Robert Brown, Jr., d/b/a The Cycle Lounge.

ENTERED this 20th day of February, 1990, in Tallahassee, Florida.

K.N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1990.

COPIES FURNISHED:

Elizabeth C. Masters, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000

Joseph H. Ficarrotta, Esquire 600 Madison Street

Tampa, FL 32602

Leonard Ivey Director

Division of Alcoholic Beverages and Tobacco

Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000

Stephen R. MacNamara Secretary

Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000

Docket for Case No: 89-006500

Orders for Case No: 89-006500