Pubdate:  Sat, 07 Mar 1998
Source: Houston Chronicle
Author: Steve Brewer
Page: 1
Contact:  http://www.chron.com/

SEIZURE OF HOTEL SETS PRECEDENT

'Tacit Consent' For Drug Deals Alleged

Keith English sells home theater systems, but most days he can catch a real
action show right next door.

"It's like watching the TV show Cops," he said, "but it's live."

English works next to the Red Carpet Inn, a hotel at 6868 Hornwood in
southwest Houston seized by federal agents Feb. 17. Houston police bust
dealers there regularly and there's no dispute the hotel has been used as a
drug market.

But there is sharp disagreement about the unique tactic the government is
using to try to shut it down. Meanwhile, it is being operated by the owners
as usual, pending resolution of the case.

Defense attorneys and legal experts say the seizure -- only the second of
its kind in the country -- sets a bad precedent, since there are no
allegations the hotel owners took part in any crimes.

Using a broad interpretation of drug forfeiture laws, the U.S. attorney's
office seized the hotel and is attempting to obtain a forfeiture on the
grounds that its owners gave "tacit consent" to illegal activity by not
stopping it when notified by police and the city.

No criminal charges, usually tied to forfeitures, have been filed against
the owners, GWJ Enterprises, or against hotel management, Hop Enterprises.

In essence, agents seized the hotel so drug dealers would have one less
place to deal and because the owners didn't listen to police who suggested
more security.

Police say they suggested the owners install mirrors on each side of the
hotel, aim a video camera at the parking lot, put on more guards at night,
screen their guests more and increase room rates.

But by not implementing those suggestions, the government says, the owners
gave their tacit approval to the drug trafficking.

"It violates fundamental fairness and due process," said Jay Jacobson,
executive director of the American Civil Liberties Union of Texas. "You're
requiring people to act as police officers or agents of the police. They're
saying you do what police say or we take your property."

Federal agents say that between Jan. 1, 1996, and Dec. 8, 1997, police were
called 32 times to the hotel, where they made arrests and seized drugs and
cash. Even after that period, other drug arrests were made and other crimes
were reported at the business.

"They were on notice. ... They had a responsibility to take appropriate
steps to prevent illegal activities from going on at their establishment,"
said acting U.S. Attorney James DeAtley.

The case, he said, could open the door for similar actions against
businesses where drugs are sold under management's noses. DeAtley
acknowledges that the seizure is unusual but insists he is on solid legal
ground.

Others disagree. Especially Matt Hennessy, the attorney for the hotel's
owners and managers.

"These are all good people trying to run an honest business that just
happens to be in a tough neighborhood," Hennessy said.

The federal complaint, he said, is "scant with facts but heavy on tabloid
language."

Though the complaint states that police didn't get as many calls to the
hotel when someone else owned it, he said, it does not note that the former
owners used the same managers or that the current owners have improved the
hotel.

The complaint also says the managers complained about the police presence
at the hotel and that the owners did not implement the security
suggestions, including raising the room rates.

But Hennessy said the owners signed a trespass affidavit that allows
officers free rein to roam the grounds to question patrons and others. That
affidavit was in effect from Dec. 12, 1995, until Jan. 26, Hennessy said.

The owners withdrew it, he said, because they felt police were harassing
innocent customers.

"The period of time the affidavit was in effect corresponds with the time
period where they say all the bad stuff happened," Hennessy said. "This was
... when the HPD had greater authority on the property. They're now using
that against the owners and management."

Hennessy said managers asked police to watch them screen customers, but
officers declined. And they did use some of the security ideas, though
rates were not raised.

"The government was trying to dictate what a person should charge for
services, and it appears now they're penalizing them for trying to be
competitive," Hennessy said.

He said the government also fails to say security cameras trained on the
parking lot have been in place for some time, or that managers kept a list
of those they would not allow to rent rooms.

Ultimately, Hennessy said, the case could determine whether the government
can say how much businesses should spend on security.

"I think that's what it's all about," he said "I don't know why they picked
this hotel, but I do think seizing someone's business under these
circumstances is overreaching."

Kent Schaffer, a Houston defense attorney, said forfeiture laws were
initially used to seize the obvious fruits of illegal activity. Then, he
said, they were expanded to take items used in conveying drugs, but almost
always in connection with actual criminal charges.

"Now, the government is trying to expand to say you don't even have to
commit a wrongful act, just be in the position to prevent it," Schaffer
said.

Steven L. Kessler, a former New York prosecutor and expert on forfeiture
laws, said the case could start a trend of penalizing "non-criminals" for
not doing what police tell them to do in their legitimate businesses.

Kessler, author of a three-volume treatise on forfeiture laws, said the
government is tracking the crime, instead of the criminals.

"This is the next step," he said, "and they're saying, 'OK, folks. We're
not just going after the criminal, but a lot of you out there, whether you
like it or not, are in drug-prone areas. You're trying to run a business
there, so you are in effect part of the crime.'"

In the Red Carpet case, attorneys say the government only had to show
probable cause to seize the property. That's a low and nebulous legal
standard, requiring the government only to show some proof, above mere
suspicion, that the hotel facilitated drug dealing.

In a trial, the government simply restates its probable cause and the
burden of proof shifts to the owners.

For the owners to get their property back, they must show it's more likely
than not that they took reasonable steps to stop crime at the business and
that they didn't know about the criminal activity before it occurred.

They must present a "preponderance of evidence" -- a much higher standard
than is required of the government, the same burden used in civil cases.
That means the owners have to "prove a negative," which some attorneys say
turns the presumption of innocence on its head.

But DeAtley, the acting U.S. attorney, said the government is not punishing
a business for something it can't control. The owners, he said, could have
controlled the crime taking place on their property by implementing the
police suggestions.

DeAtley said the case is about responsibility, which is vital in the
Gulfton area, where lawmen are pouring resources into an anti-drug effort.

"With property, you're holding yourself out to the public and the community
as responsible and these are responsibilities that are not surprises to
anybody," DeAtley said. "(The owners) were put on notice and given the
opportunity to take reasonable steps. They chose not to."

DeAtley would not discuss the broader consequences of the seizure. Its
critics, he said, are stretching facts and using extremes to make their
points.

DeAtley said all forfeiture cases are painstakingly reviewed and his office
does not violate the rights of business owners.

"We don't take these cases lightly," he said. "There are careful review
processes throughout every stage of it."

Copyright 1998 Houston Chronicle