STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-1110

)

DAVE FULCHER d/b/a CLUB 82, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on February 26, 1991, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Nancy C. Waller, Esquire

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Dave Fulcher, pro se

STATEMENT OF THE ISSUES

The issue is whether respondent's alcoholic beverage license should be disciplined for the reasons stated in the notice to show cause.

PRELIMINARY STATEMENT

By a notice to show cause served on February 14, 1991, petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), charged that respondent, Dave Fulcher d/b/a Club 82, an alcoholic beverage licensee, had violated Subsection 561.29 (1)(c), Florida Statutes (1989), by maintaining a nuisance on his licensed premises. More specifically, the notice to show cause alleged that in January and February 1991 respondent had fostered, condoned or negligently overlooked trafficking in and use of illegal narcotics on his licensed premises, and had failed to exercise due diligence in supervising his employees and managing the licensed premises so as to prevent the illicit activity. In conjunction with the notice to show cause, the Division also issued an emergency order of suspension of respondent's license. Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989). The matter was referred by petitioner to the Division of Administration Hearings on February 20, 1991, with a request that a hearing officer be assigned to conduct a formal hearing. A final hearing was subsequently scheduled on February 26, 1991, in Fort Myers, Florida.

At final hearing, petitioner presented the testimony of Raylius Thompson, Bethel Watts and David W. Ulsh, all Division investigators. Also, it offered petitioner's exhibits 1-48. All exhibits were received in evidence. Respondent testified on his own behalf.

This Recommended Order was prepared without the benefit of a transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner on March 6, 1991. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At all times relevant hereto, respondent, Dave Fulcher, held alcoholic beverage license number 46-00378, Series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent used the license to sell beer and wine (for on-premises consumption only) at a small establishment known as Club 82 located at 3250 Anderson Avenue (recently renamed Dr. Martin Luther King, Jr. Boulevard) Fort Myers, Florida.

   
   

2. As a part of an ongoing narcotics investigation, a Division investigator, Raylius Thompson, visited respondent's establishment on sixteen separate occasions in January and February 1991 to determine whether illegal narcotics were being sold and used on the licensed premises. As a result of that investigation, the Division issued a notice to show cause and emergency order of suspension on February 14, 1991. That agency action prompted respondent to request a hearing. Respondent's license has remained suspended during the course of this proceeding.

   
   

3. The club consists of a single room approximately 35' x 45' in size. Besides a small counter bar on one side of the room, there are booths located on both side walls and tables scattered in between. The lounge has a raised floor extending from the back wall with a dance area immediately in front of the stage area. Agent Thompson found the premises to be "moderately" lighted during each of his visits and this was not disputed. Because of the compactness of the establishment, and the nature of the lighting, a customer seated at the bar counter could easily observe all activities in the lounge.

   
   

4. At the outset of the hearing respondent stipulated that all suspected drugs purchased by agent Thompson were in fact cocaine and that the laboratory reports confirming that fact could be received in evidence without the necessity of the Division producing the laboratory technician who conducted such tests. There was also no dispute over the chain of custody of the drugs between the time agent Thompson purchased them and the time they were tested by the laboratory.

   
   

5. On January 4, 1991, agent Thompson entered the licensed premises around 6:30 p.m. and took a seat at the bar. A black male named Ernest Taylor, also known as Musso, was the bartender on duty. A few minutes later, a white female entered the premises and asked Musso for some controlled substances. The bartender reached behind the counter, retrieved several rock type substances appearing to be rock cocaine (crack or rocks), placed them in a white cup and gave them to the female. The substance was exchanged for U.S. currency. Thompson then asked Musso the cost of the rocks and was quoted a price of $10.00

   per piece. Thompson told Musso he was leaving the premises for a few minutes, gave Musso $20.00 in U.S. currency, and requested that Musso save two rocks for him. When Thompson returned a few minutes later, the bartender gave Thompson a napkin containing two pieces of rock cocaine.

   
   

6. On January 5, 1991, Thompson returned to the licensed premises at approximately 7:40 p.m. He observed a black male known as James Taylor, a/k/a "Rabbit", who Musso said was his brother, selling what appeared to be crack cocaine to patrons. Thompson observed a white female speak to Rabbit who then retrieved a bag from behind a speaker located on the northern wall. After removing a small item from the bag, Rabbit exchanged the item with the female for U.S. currency. That same evening, Thompson asked bartender Musso for one piece of crack cocaine. Musso retrieved a plastic container from his pocket and exchanged one piece of rock cocaine for $10.00 of U.S. currency.

   
   

7. Later on that evening, Thompson observed a black female named "Freida" selling what appeared to be cocaine at the door. Thompson approached the female, asked to purchase some crack, and gave her $10.00 of U.S. currency for one piece of crack cocaine. The exchange occurred in an open manner and was visible to other persons in the lounge.

   
   

8. At 12:01 a.m. on January 6, 1991, Thompson returned to the licensed premises where he observed several patrons and bartender Musso selling suspected controlled substances. Also present in the lounge was Rabbit. Thompson asked Rabbit about purchasing crack cocaine. Rabbit called over another patron who removed a zip lock baggie from his pocket. The unidentified patron removed one piece of crack cocaine from the bag and exchanged it with agent Thompson for

   $10.00 of U.S. currency. The transaction occurred in an open manner.

   
   

9. On the evening of January 6, 1991, Thompson returned to the licensed premises and asked bartender Musso for two rocks. Musso retrieved a baggie from his pocket, removed two pieces of crack cocaine, wrapped them in a white napkin, and gave them to Thompson in exchange for $20.00 of U.S. currency.

   
   

10. On January 7, 1991, Thompson returned to the licensed premises at approximately 7:55 p.m. An hour later, Thompson asked bartender Musso for one rock. Musso obtained the rock cocaine from behind the bar, placed it in a napkin and gave it to Thompson in exchange for $10.00 of U.S. currency.

    
    

11. On January 11, 1991, Thompson returned to the licensed premises around 8:30 p.m. After Thompson asked bartender Musso for two rocks, Musso retrieved two rocks from his pocket and exchanged them for $20.00 of U.S. currency.

    
    

12. Around 8:00 p.m. on January 22, 1991, Thompson again visited the licensed premises. After taking a seat at the bar, Thompson asked bartender Musso for one piece of rock cocaine. Musso replied that he did not have any, but directed another black male seated at the bar to sell Thompson some drugs. The black male, later identified as "Eddie", removed two pieces of rock cocaine from his pocket and gave one to Thompson in exchange for $10.00 of U.S. currency. Thompson showed the purchased cocaine to Musso and complained the rock was too small. Musso advised Thompson not to worry, that he would have more cocaine for Thompson the next day.

    
    

13. On January 23, 1991, Thompson entered the licensed premises at approximately 8:55 p.m. Bartender Musso walked over to Thompson and stated, "I got some tonight." He then removed a plastic baggie from his pocket containing

    a number of pieces of suspected controlled substances. Thereafter, Thompson purchased two pieces of rock cocaine in exchange for $20.00 of U.S. currency.

    
    

14. On January 24, 1991, Thompson returned to the licensed premises and spoke with bartender Musso, who inquired as to the number of pieces of rock cocaine Thompson wished to purchase. Thompson asked for two and was given two pieces of rock cocaine in exchange for $10.00 of U.S. currency.

    
    

15. At approximately 7:45 p.m. on January 26, 1991, Thompson entered the licensed premises and was approached by bartender Musso who asked him how much cocaine he wanted to purchase. Thompson then exchanged $10.00 of U.S. currency for one and a half pieces of rock cocaine. The cocaine was retrieved by Musso from a shelf behind the bar.

    
    

16. On February 1, 1991, Thompson entered the licensed premises and spoke with Rabbit, who was carrying a baggie of rock cocaine in his hand. When Rabbit asked Thompson what he wanted, Thompson replied that he wanted two pieces. Thompson then exchanged $20.00 of U.S. currency for two pieces of rock cocaine. Later on that evening, Thompson observed Rabbit smoking suspected marijuana and observed another patron cutting a white powdery substance, consistent in appearance with cocaine, on top of the bar counter.

    
    

17. On February 2, 1991, Thompson entered the licensed premises and purchased one piece of rock cocaine for $10.00 of U.S. currency from Rabbit who retrieved the rock cocaine from behind a wall partition. Thompson also observed other individuals selling suspected controlled substances on the licensed premises. When bartender Musso learned that Thompson had purchased cocaine from his brother, he cautioned Thompson that the agent should purchase crack from him (Musso), and not his brother.

    
    

18. On February 4, 1991, Thompson returned to the licensed premises where he purchased two pieces of rock cocaine from bartender Musso for $20.00 of U.S. currency. Musso retrieved the rock cocaine from behind the bar. During the course of the evening, Thompson also observed other individuals retrieve what appeared to be rock cocaine from behind the speakers on the walls.

    
    

19. On February 6, 1991, Thompson entered the licensed premises and observed an individual named "Wayne" on duty as the bartender. Musso, who was a patron that evening, approached Thompson and sold him three pieces of rock cocaine for $30.00 of U.S. currency. The exchange between Musso and Thompson occurred in plain view of the bartender.

    
    

20. On February 11, 1991, while inside the licensed premises at approximately 10:00 p.m., Thompson observed several individuals smoking what appeared to be marijuana. Thompson also purchased from bartender Musso two pieces of rock cocaine for $20.00 of U.S. currency.

    
    

21. Agent Thompson returned to the premises for a final visit on February 14, 1991. During that visit he met with bartender Musso at the bar counter and purchased two and one-half pieces of rock cocaine for $20.00 U.S. currency.

    
    

22. On February 15, 1991, Division investigators secured a search warrant and executed a raid on the licensed premises. During the course of that search, the agents seized numerous pieces of rock cocaine, a number of aluminum foil packets of cocaine in a powdery form, and marijuana butts.

23. Respondent has owned and operated Club 82 since December 1979. Fulcher described the bar as catering to extremely rough and dangerous individuals who were difficult to control. Although he has tried to stop the use of drugs, Fulcher said he was unable to get customers to obey him unless he had a gun or called law enforcement officers. He also stated that if law enforcement officers were called, he feared for his safety once the law

    enforcement officers had departed. Fulcher generally did not go on the premises except to open up the bar in the early evening and to lock it up around midnight. He claims he was "totally surprised" by the drug sales that occurred during Thompson's investigation. However, he did not deny that they took place and admitted that while cleaning up the premises, he would sometimes find aluminum foil packets and marijuana butts. He conceded that Musso had a key to the premises and had actively managed the business for the last year or so.

    Except for a small sign by the front door advising that drugs were prohibited, there was no evidence that respondent actively took steps to prevent such illicit activity or adequately supervised his employees to insure that state drug and beverage laws were obeyed.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

    
    

25. As the petitioner in this cause, the Division has the burden of establishing the validity of the charges in the notice to show cause by the preponderance of the evidence.

    
    

26. Respondent is charged with violating Subsection 561.29(1)(c), Florida Statutes (1989). That subsection authorizes the Division to take disciplinary action against a licensee if it is determined that the licensee is maintaining a nuisance on the licensed premises. A public nuisance is generally defined in Section 823.10, Florida Statutes (1989) as any store, shop or building which is visited by persons for the purpose of unlawfully using any substance controlled under chapter 893 or which is used for the illegal keeping, selling or delivery of controlled substances.

    
    

27. By a preponderance of the evidence petitioner has clearly established that during January and February 1991 respondent maintained a nuisance on his licensed premises. This conclusion is based upon evidence demonstrating that the sale and use of cocaine occurred repeatedly and openly on the licensed premises and that respondent's employees violated the drug laws in a recurring and flagrant fashion. Where such laws are repeatedly and flagrantly violated by the employees, an inference arises leading to the conclusion that such violations are either fostered, condoned or negligently overlooked by the licensee, notwithstanding his absence from the premises when the violations occurred. Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982). Therefore, it is concluded that respondent failed to exercise reasonable care and diligence to see that the licensed place of business was conducted in a lawful manner and that his employees did not violate any of the laws of the state. He is accordingly deemed to be negligent in the operation and supervision of his business. G & B of Jacksonville, Inc. v. State, Department of Business Regulation, 371 So.2d 138 (Fla. 1st DCA 1979). In the absence of any mitigating circumstances, the license should be revoked.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection

561.29(1)(c), Florida Statutes (1989) and that his license number 46-00378 be revoked.

DONE and ENTERED this 11th day of March, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1991.

APPENDIX for Case No. 91-1110

Petitioner:

Proposed findings 1-17 and 19-25 have been substantially adopted in this Recommended Order. Proposed finding 18 has been rejected as being irrelevant since the transaction did not occur on the licensed premises. Proposed finding

26 was deemed to be unnecessary.

COPIES FURNISHED:

Nancy C. Waller, Esquire 725 South Bronough Street Tallahassee, FL 32399-1007

Mr. Dave Fulcher 2802 Price Street Fort Myers, FL 33916

Leonard Ivey, Director

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, FL 32399-1000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-001110

Orders for Case No: 91-001110