STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-0719

) JIMMIE WILLIAMS, d/b/a ) COPA CABANA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, the duly-designated Hearing Officer, on August 9, 1989, in Pensacola Florida.' The following appearances were entered:

APPEARANCES

For Petitioner: Harry Hooper, Esquire

Deputy General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Leo A. Thomas, Esquire

Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A.

P.O. Box 12308 Pensacola, Florida 32581

STATEMENT OF THE ISSUES

The issues presented for resolution in this proceeding concern whether the Respondent's alcoholic beverage licensure should be subjected to disciplinary sanctions because of alleged misconduct involving the sale and use of controlled substances on a licensed premises, more specifically delineated in the Notice to Show Cause filed in this proceeding by Petitioner.

PRELIMINARY STATEMENT

This cause arose upon the filing of an Emergency Order of Suspension by the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco ("DABT"). Contemporaneously, the Petitioner entered a Notice to Show Cause against the Respondent involving the same alleged misconduct. That misconduct involved the Respondent's alleged allowance of the sale and use of controlled

substances on the premises known as the "Copa Cabana" at 2901 North Haynes Street, Pensacola, Florida. The Respondent, and that business establishment, holds an alcoholic beverage license; and the Petitioner is proceeding against that licensure through the Notice to Show Cause herein, seeking revocation or other penalty, on account of the alleged misconduct involving the sale and use of controlled substances on the premises.

The Respondent requested a hearing pursuant to Section 120.57(1), Florida Statutes, and the cause ultimately came on for hearing as noticed. The Petitioner presented the testimony of six witnesses and introduced 15 exhibits into evidence at the hearing. The Respondent called six witnesses, including JIMMIE WILLIAMS, the Respondent, on his own behalf. The Respondent offered no exhibits into evidence.

The parties obtained a transcript of the proceeding subsequent to the hearing and elected to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. Those proposed findings of fact have been ruled upon in the Recommended Order and, once again, in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Respondent, JIMMIE WILLIAMS, owns the club or tavern known as the "Copa Cabana", doing business at 2901 North Haynes Street, Pensacola, Florida. That establishment holds a Series 2-COP alcoholic beverage license number 27- 00239, authorizing the sale of beer and wine on the premises. The Respondent is the sole owner of the Copa Cabana.

   
   

2. Burnett Patterson, at times pertinent hereto, during September 1988 through February 1989, was a patrol deputy with the Okaloosa County Sheriff's Department. While a deputy with that Department, he engaged in special drug investigations. During the course of this employment, he became involved in numerous undercover operations designed to curb traffic and use of controlled substances. He thus became familiar with the appearance, properties and paraphernalia associated with crack cocaine and marijuana. On September 2, 1988, he met with Law Enforcement Investigator, Paul Blackmon, of the DABT. Investigator Blackmon asked Deputy Patterson to assist in a drug investigation of the Copa Cabana. At approximately 8:00 p.m. on that date, Deputy Patterson entered the Copa Cabana licensed premises in an undercover capacity. While in the licensed premises, inside the Copa Cabana, he observed patrons of that establishment openly smoking marijuana and crack cocaine. He observed one black male patron walking around inside the licensed premises holding a piece of crack cocaine visibly in his front teeth in order to advertise it for sale. This activity was done in the presence of the licensee/Respondent, Jimmie Williams. The undercover agent further observed numerous persons selling marijuana and cocaine inside, as well as outside the licensed premises. These persons made no attempt to conceal their illegal actions. It has not been demonstrated who owned or controlled the grounds immediately outside the door of the licensed premises.

   
   

3. On September 16, 1988, at approximately 8:15 p.m., Deputy Patterson again entered the licensed premised in an undercover capacity. Upon entering the licensed premises, he observed 15 to 20 patrons inside and observed the Respondent working at the bar. Deputy Patterson went to the restroom inside the Copa Cabana and observed two black males cutting crack cocaine into small pieces, mixing them with marijuana, and rolling the resulting material into cigarettes or "joints" for smoking. Deputy Patterson purchased one piece of

   crack cocaine for $20.00 from a patron known as William Barker while inside the restroom. While inside the licensed premises, Deputy Patterson observed patrons openly smoking crack cocaine and marijuana. He was approached by other patrons, who asked if he wanted to purchase controlled substances. The substance purchased was analyzed and tested positive for cocaine.

   
   

4. On September 19, 1988, at approximately 7:40 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Upon entering, he made contact with patron, Jerry Green, who was accompanied by a patron known as "Killer." Deputy Patterson purchased one "baggie" of marijuana for $10.00 from "Killer." This transaction, along with the open smoking of marijuana, took place in the presence of the Respondent. Deputy Patterson also observed numerous controlled substance transactions taking place outside and near the entrance of the licensed premises. The substance he purchased was analyzed and proved to be marijuana.

   
   

5. On September 24, 1988, at approximately 3:30 p.m., Deputy Patterson again entered the license's premises. He observed several patrons entering and exiting the restroom area. He entered the restroom and made contact with patron, John Butler. John Butler asked Deputy Patterson what he was looking for, and the Deputy replied "crack." Deputy Patterson was sold one piece of crack cocaine by John Butler and another unknown patron for $20.00. Deputy Patterson observed several patrons entering the restroom and purchasing crack cocaine. Jimmie Williams was inside the licensed premises during the time Deputy Patterson was present and making these observations. Deputy Patterson further observed several narcotic transactions outside the front entrance of the licensed premised. The substance purchased by Deputy Patterson was analyzed and tested as positive for the presence of cocaine.

   
   

6. On October 8, 1988, at approximately 4:10 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Prior to entering, he was asked by several patrons loitering near the entrance of the Copa Cabana if he wanted to purchase controlled substances. Once inside the licensed premises, he entered the restroom, where he made contact with patron, Calvin Black.

   Deputy Patterson purchased one piece of crack cocaine from Calvin Black for

   $20.00. Deputy Patterson then departed the restroom and observed patrons openly smoking marijuana while playing pool. Deputy Patterson contacted patron, Terry Boutwell, by the pool table. Terry Boutwell sold Deputy Patterson one baggie of marijuana for $10.00 at that location. Upon leaving the building, Deputy Patterson was again approached by persons outside the entrance to the Copa Cabana and asked if he wanted to purchase controlled substances. During all of the aforementioned events, including the sale of marijuana and the smoking of marijuana in the vicinity of the pool table, the Respondent was inside the licensed premises. Both the substance purchased from Calvin Black and that purchased from' Terry Boutwell were subsequently analyzed and proved to be controlled substances.

   
   

7. On January 28, 1989, at approximately 5:00 p.m, a confidential informant, Alonzo Blackman, was designated to conduct a controlled substance purchase inside the licensed premises from the licensee, Jimmie Williams. The confidential informant was given specific instructions to buy only from Williams. Prior to departing the Sheriff's Department, he was thoroughly searched. It was determined that he had no controlled substances or money on his person. He was provided with a concealed, wireless voice transmitter. He was also given $50.00 of the Sheriff's Department's money for the purpose of purchasing crack cocaine. Subsequently, the confidential informant departed the Sheriff's Department with Deputy Gwen Salter. The pair was followed and traced

   by Escambia County Sheriff's Deputy Mark Shaeffer. Deputy Shaeffer was equipped with a radio receiver and monitored transmissions emitted from Alonzo Blackman's transmitter. Deputy Shaeffer observed Alonzo Blackman park behind the Copa Cabana to the rear of the building on a back street and depart Deputy Salter's vehicle. He observed Alonzo Blackman walk through the wooded area behind the Copa Cabana and disappear around the side of the building, moving toward the front of the Copa Cabana building. After Alonzo Blackman was out of sight around the corner of the Copa Cabana building, Deputy Shaeffer could hear normal outdoor sounds, as well as Alonzo Blackman's footsteps through the transmitter. Shortly thereafter, he heard the sound of a juke box playing and loud voices consistent with the noises one would expect when a person entered a bar. Within two or three minutes thereafter, Deputy Schaeffer observed Alonzo Blackman come back in sight around the corner of the licensed premises and enter Deputy Salter's vehicle. Deputy Schaeffer followed the two back to the Sheriff's Department, keeping Alonzo Blackman in visual sight the entire time. When Alonzo Blackman and Deputy Salter returned to the Sheriff's Department, Alonzo Blackman presented Deputy Schaeffer with a slab of rock cocaine and no longer had the $50.00 given to him by the Sheriff's Department. Subsequently, the substance purchased was analyzed and tested positive for the presence of cocaine. The Petitioner adduced a hearsay statement from Deputy Schaeffer to the effect that Alonzo Blackman had told him that he had purchased the rock cocaine in question from the Respondent. That statement was not admitted into evidence since it was not corroborative hearsay for the purposes of Section 120.58, Florida Statutes.

   
   

8. The hearsay statement concerning the alleged purchase from the Respondent is not corroborative of the testimony concerning the other independent events in question in this proceeding involving the sale and use of controlled substances on the licensed premises by others. The only testimony or evidence directly concerning the alleged purchase of cocaine from the Respondent was that related by confidential informant, Blackman, to Deputy Schaeffer. The only other evidence purporting to show that the Respondent sold a slab of rock cocaine was the testimony by Deputy Schaeffer revealing what he saw and heard over his radio receiver. All he saw was Alonzo Blackman passing around the side of the building aid later returning around the back corner of the building. He heard his footsteps as he passed around and presumably entered the building, judging from the change in sounds received. There was no evidence that any voices or other noises transmitted to Deputy Schaeffer's listening station consisted of the actual drug transaction and specifically that any of the voices or sounds he might have heard were those of the Respondent in conducting that transaction. Since Deputy Schaeffer's testimony, itself, does not implicate the Respondent in selling the drug, the hearsay statement of the confidential informant, Alonzo Blackman, who could not be located at the time of the hearing, cannot be admissible corroborative hearsay. Thus, it was not established that on this occasion, the slab of rock cocaine was actually purchased from the Respondent.

   
   

9. On February 8, 1989, at approximately 5:00 p.m., Alonzo Blackman was again designated to conduct a controlled substance purchase inside the Copa Cabana from the Respondent. He was given the same specific instructions, and Deputy Schaeffer made the same visual and auditory observations as he had with regard to the alleged transaction of January 28, 989. The same factual findings apply, and are made, with regard to this transaction as were made above concerning the January 28, 1989 transaction. The alleged fact that the purchase was made from Jimmie Williams was again predicated on the hearsay statement of Blackman, which was not corroborative and was uncorroborated. It cannot be used to support a finding that the Respondent sold the cocaine in question.

10. On February 7, 1989, at approximately 8:00 p.m., Escambia County Investigators, Tyron Wicks, Melvin Possey and J. Johnson, conducted a "routine drug sweep" of the Copa Cabana. This type of operation was a routine matter for Investigator Wicks in the six months prior to February 7, 1989. Upon entering the licensed premises, Investigator Wicks went directly to the men's restroom where he observed four patrons having a conversation while looking into a paper bag. Investigator Wicks seized the paper bag which contained nine plastic baggies of marijuana ready for distribution and charged him with possession of

    20 grams of marijuana with the intent to distribute. Investigator Wicks is familiar with the smell of marijuana smoke; and during "drug sweeps" conducted in the licensed premises, estimated to be 20 or 30 such operations for the previous six months, he smelled such smoke in the licensed premises on a number of occasions. On these occasions, he had also found marijuana and crack and razor blades, as well as pipes and cans used for smoking crack, on the floor of the licensed premises. He has seen people buy drugs at the Copa Cabana while he has been present there with the Sheriff's Department Narcotics Unit during the years 1988 and 1989.

    
    

11. Sergeant Bobby Jackson of the Narcotics Division of the Escambia County Sheriff's Department has bean a law enforcement officer for approximately

    14 years. He is familiar with the smell and appearance of marijuana and crack cocaine. He has been involved in 20 to 30 raids at the licensed premises. On at least 15 occasions, officers in his party have found controlled substances. The Respondent was always present when these raids took place. On many of the raids, Sergeant Jackson smelled the odor of marijuana smoke in the licensed premises. He is certain that the Respondent was present on these occasions. During these raids, he has observed marijuana cigarette butts on the floor of the licensed premises and has often found people inside bagging marijuana. Prior to the suspension of the beverage license on February 10, 1989, Sergeant Jackson received quite a few complaints about the licensed premises; and each time he visited it, he would observe a great number of people standing around

    inside and outside the licensed premises. It has been quite different since the suspension of the license and the shutdown of operations at the Copa Cabana.

    Sergeant Jackson has received very few complaints since February 10, 1989. Sergeant Jackson, however, never received any complaints from the Respondent about drug use in the establishment.

    
    

12. John Green is a black male, whose mother lives approximately a block from the licensed premises. He has been a friend of the Respondent for approximately 15 years. During the period of January and February of 1989, he patronized the licensed premises six days a week, every week. He would go there after work and stay until approximately 9:00 p.m. He states that he always saw the Respondent behind the bar. John Green stated that the bar was a self- service bar where patrons could get beer out of the cooler in front of the bar and pay for it at the counter. He maintained that he had never seen Deputy Patterson and that, in his opinion, marijuana smoke smells just like Kool cigarette smoke. He drinks beer every night, including the times when he patronized the Copa Cabana. He testified under oath that he had never seen anyone use drugs in the licensed premises and that on one occasion, however, he had thrown someone out of the licensed premises for using drugs.

    
    

13. Dorothy Mouton lives approximately six miles from the Copa Cabana and works at Washington Junior High School in an administrative capacity. She knows the Respondent, who also works there as a coach. She, in the past, has stopped at the Copa Cabana to eat a snack and converse the During the period of August of 1988 to February of 1989, she went to the Copa Cabana every week. According

    to Ms. Mouton, the Respondent had a stool behind the bar and would get beer from the cooler for patrons who requested beer. She claimed that she was able, by her experience, to identify marijuana smoke and crack cocaine. She maintained that she never saw any drug of either sort in the licensed premises She also testified that it was her habit to depart the licensed premises every day between 6:00 p.m. and 6:30 p.m.

    
    

14. Chris Dortch is a 27 year old black male who has known the Respondent for a long period of time. He helped the Respondent operate the Copa Cabana when he first established it. He lives approximately four blocks from the Copa Cabana. He goes to the licensed premises every day and sometimes stays until it closes. He has always observed the Respondent staying behind the bar counter while he is on duty. This witness also claimed under oath that he had never seen any cocaine or marijuana smoked in the licensed premises and had never smelled any marijuana smoke within the licensed premises. He testified that he saw police officers in the licensed premises at least ten times, but never observed any arrests.

    
    

15. Elizabeth Freeman lives around the corner from the licensed premises and has lived there approximately four years. During the period of September of 1988 to February 10, 1989, she went to the club every day for about an hour where she would talk to Williams and play video games. She claimed that she observed Williams, on occasion, move from behind the counter into the public area of the tavern. She also testified that she has never seen any indications of drug use on the premises.

    
    

16. Shirley Washington was in the habit of going to the club during the period of August of 1988 to February of 1989 at approximately 4:30 p.m. and generally would stay until closing, usually around 9:00 p.m. She was a member of a social group called "The Copa Cabana Queens." It was her habit, during this period of time, to drink four to five six-packs of beer each day. She is familiar with the smell of crack cocaine smoke and marijuana smoke. She testified that she had never observed any marijuana or crack cocaine within the licensed premises. She has been a friend of the Respondent for approximately 25 years.

    
    

17. The Respondent is an instructor and coach with the Escambia County School Board. He has owned the Copa Cabana for 15 years. It is a recreation center, lounge, notion store and meeting place. He also has live entertainment and occasionally, a fashion show. His license authorizes him to sell and serve beer and wine. He is the only employee, but Ms. Washington minds the bar for him when he is temporarily away from it (in the restroom, etc.). He testified that he never observed Deputy Patterson until the day of the hearing. He testified that no drugs had ever been in the licensed premises and that he had never dealt in drugs.

    
    

18. The testimony of Deputies Patterson and Schaeffer, Investigator Wicks, Sergeant Jackson, and Law Enforcement Investigator Ralph Kelly, to the effect that controlled substances were openly and notoriously used and sold on the premises in question, conflicts in a general sense with the testimony of Respondent's witnesses to the effect that they never saw any marijuana or crack cocaine on the premises or smelled any and so forth. This conflict in the testimony of the witnesses of the Petitioner and Respondent must be resolved by determining which are more credible. Determining the credibility of witnesses is an important and exclusive task of the fact finder Guidelines for resolving credibility issues are provided in Volume 24, Florida Jurisprudence 2nd, Sections 688-696, and grand jury instruction 2.04 on page 779 of West's Florida

    Criminal Laws and Rules (1989), which sets forth areas to consider in determining whether a witness is credible. Those areas include: whether the witness had an opportunity to observe and know the things about which he testifies' whether his memory seemed accurate; whether he was straight forward in his answers; whether he was interested in the result of the case at issue; whether it is consistent with other testimony and evidence adduced; and whether he has, at some different time, made an inconsistent statement from the testimony given before the court.

    
    

19. Firstly, concerning the testimony of John Green, it can be seen that he testified to having patronized the establishment during the period of January and February of 1989 and purported never to have seen Deputy Patterson. This is not surprising since there was no testimony by the Deputy that he was in the licensed premises during those two months. Therefore, John Green would have had no opportunity to observe Deputy Patterson at the time he frequented the licensed the premises. John Green also testified that he drank beer in the licensed premises every night and, thus, could quite likely have suffered a diminution of his powers of observation as a result of drinking beer.

    
    

20. Dorothy Mouton maintained that she went to the Copa Cabana every week during the period of August of 1988 to February of 1989. She stated that she went there between the time she got off work until 6:00 p.m. or 6:30 p.m. Her time in the licensed premises was, therefore, very limited; and everything alleged by the Petitioner's witnesses could easily have occurred without her being on the licensed premises to observe the alleged violations.

    
    

21. Elizabeth Freeman stated that she went to the Copa Cabana for about an hour each day during the time alleged in the Notice to Show Cause. If her testimony that she saw no drugs used on the licensed premises is accepted as true that still does not resolve the problem that the amount of time that she spent on the licensed premises was quite limited. The violations testified to by the Petitioner's witnesses could have occurred during her absence from the licensed premises.

    
    

22. Shirley Washington claimed that she was at the Copa Cabana every day from 4:30 p.m. to approximately 9:00 p.m. during the time pertinent to the charges in the Notice to Show Cause. She also testified that she would drink four to five six-packs of beer every day. That could easily diminish her powers of observation and, no doubt, did. None of the witnesses for the Respondent could describe the events of any particular day alleged in the Notice to Show Cause. Their testimony was rather of a very general nature and not date or

    time-specific. On the other hand, the Petitioner's witnesses were trained law enforcement officers and observers, who kept meticulous records of their participation in the events in question and who gave detailed testimony as to the time, date and circumstances of each event that took place on the licensed premises and later became the subject of the charges in the Notice to Show Cause. There is no evidence that any of the law enforcement officers were drinking or otherwise had impaired powers of observation during the pertinent times. The Respondent's witnesses' memories and resulting testimonies appeared very general at best.

    
    

23. Concerning the issue of whether the witnesses might have some interest in how the case should be resolved, it should be pointed out that the Respondent's witnesses were all old friends of the Respondent. John Green has been a friend of the Respondent for 15 years. Dorothy Mouton is a co-worker of the Respondent's at Washington Junior High School and must be counted as a friend of the Respondent. Chris Dortch has apparently known the Respondent

    since he was a small child. Elizabeth Freeman has been his friend and customer for the past four years. Shirley Washington has been the Respondent's friend for 25 years. All of these people are not only friends of the Respondent, but apparently considered the Copa Cabana a sort of favorite resort or meeting place away from home and clearly wanted to continue the benefit of the close friendly relationship.

    
    

24. The Petitioner's witnesses, on the other hand, were professional police officers, none of whom had any relationship with the Respondent or the Copa Cabana. There was no evidence that any of the officers were somehow targeting the Respondent for special prosecution efforts. It rather appears that the events which came to light, as described in their testimony and the Notice to Show Cause, were discovered through routine police operations.

    
    

25. Further, Deputy Patterson testified concerning the issue of whether the Respondent exhibited proper diligence in supervising and maintaining surveillance over the licensed premises. He stated that when the Respondent sold' a beer, he would do so by receiving the money for the beer and then moving outside of the bar to the cooler, kept in the room near the bar, to obtain the beer and give it to the customer. The Respondent's witnesses, however, addressed this matter with differing testimony. John Green, stated that customers would get the beer themselves from the cooler and then go to the counter to pay for it. Dorothy Mouton stated that the Respondent would get the beer from the cooler himself, which required him to walk outside the area behind the bar into the area of the room, in which the bar was located, to the cooler, which would allow him to view the rear room and restroom area of the licensed premises. Chris Dortch testified that the Respondent stayed behind the counter during beer sales. Elizabeth Freeman stated that she had observed the Respondent move from behind the counter into the open area of the licensed premises in the act of getting a beer for a customer. Thus, the Respondent's witnesses' testimony as to this question was inconsistent in terms of rebutting the testimony of Deputy Patterson as to the manner in which beverages were sold by the Respondent, as that relates to the Respondent's physical position in the licensed premises and ability to see what activities transpired in the rear room, the area of the restroom entrance and the pool table.

    
    

26. In any event, the foregoing analysis reveals that the testimony of the Petitioner's witnesses is more credible. It is concluded that that of the Respondent's witness, and the Respondent himself, show a lack of knowledge, clear memory, and consistency, at best, without reaching the question of whether any of the Respondent's witnesses deliberately falsified their testimony. Accordingly, the testimony of the Petitioner's witnesses, to the extent that it conflicts with that of the Respondent's witnesses, is accepted as more credible.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

28. The Petitioner has charged the Respondent with violations of Section 561.29(1)(a), Florida Statute's, which provides that a beverage license may be revoked or suspended if the licensee or its agents, officers, servants, or employees on the licensed premises violate, or permit others on the licensed premises to violate, any laws of the State of Florida. Section 561.29(1)(c), Florida Statutes, subjects a license to suspension or revocation where a nuisance is maintained on the premises where alcoholic beverages are licensed to be sold or served.

    
    

29. Section 561.29(3), Florida Statues, provides that the Petitioner may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, Chapter 561, not to exceed $1,000.00 for violations arising out of a single transaction.

    
    

30. Section 893.03(2), Florida Statutes, provides that cocaine and marijuana are controlled substances. Section 893.13(1)(a), Florida Statutes, provides that it is unlawful for a person to sell or deliver any controlled substance in violation of Chapter 893, Florida Statutes.

    
    

31. Section 893.13(1)(f), Florida Statutes, provides that it is unlawful for any person to possess any controlled substance unless it was lawfully obtained from a practitioner or pursuant to a valid prescription.

    
    

32. Section 823.10, Florida Statutes, declares 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.

    
    

33. Section 893.13(2)(a)(5), Florida Statutes, makes it unlawful to keep or maintain any store, shop, warehouse, dwelling or building which is used for keeping or selling controlled substances in violation of Chapter 893, Florida Statutes.

    
    

34. The Petitioner acknowledges that Deputy Schaeffer's testimony to the effect that Alonzo Blackman, the confidential informant, told him that he purchased a slab of rock cocaine from the Respondent for $50.00, is hearsay.

    The Petitioner acknowledges that Section 120.58(1)(a), Florida Statutes, and the case of McDonald v. Department of Banking and Finance, 346 So.2d 569 (1st DCA 1977) establishes that hearsay, standing alone, may not be used as the basis for a finding of fact. That section of the statute also provides, however, that hearsay evidence may be used for the purpose of supplementing or explaining other evidence. The Petitioner then maintains, however, that the testimony of Deputy Schaeffer, concerning the manner in which the confidential informant was thoroughly searched, equipped with a recording device, escorted and observed by Deputy Schaeffer, who listened to the alleged transaction and other tell-tale sounds on his receiving device and kept Blackman under constant surveillance once again after he re-emerged into view, is sufficient, competent, circumstantial evidence which the hearsay statement of Blackman can serve to corroborate. The Petitioner then also contends, citing Pasco County School Board v. Florida Public Employment Relations Commission, 353 So.2d 108 (1st DCA 1977), that if a hearsay statement is corroborated by otherwise competent, substantial evidence, then it is admissible. It maintains, in accordance with this theory, that the hearsay statement of the confidential informant is also corroborated by the competent, circumstantial evidence adduced from Deputy Schaeffer concerning his surveillance of and the conditions under which the confidential informant operated in securing the cocaine with Sheriff's Department funds.

35. Neither of these theories concerning the legal and factual effect of Deputy Schaeffer's testimony in conjunction with the hearsay statement of Alonzo Blackman, testified to by Deputy Schaeffer, can support a factual finding that the Respondent sold the slab of rock cocaine in question on the two occasions testified to by Deputy Schaeffer. In reality, the Petitioner seeks to use the hearsay statement to establish a critical link in the chain of evidence which would point to the Respondent being the person who sold the cocaine to Alonzo Blackman. Thus, the Petitioner would have Alonzo Blackman's statement, which is the only evidence which establishes who sold him the cocaine, serve as the basis for a finding of fact to that effect. This would not amount to using that hearsay statement as corroborative evidence, but rather as the only piece of evidence which actually supports that ultimate factual finding. Section 120.58(1), Florida Statutes, and the McDonald decision does not permit this. Neither can the competent, circumstantial evidence adduced from Deputy Schaeffer establish the fact that the cocaine was purchased from the Respondent, by corroborating the hearsay statement of Alonzo Blackman. That testimony by Deputy Schaeffer, at most, establishes that Alonzo Blackman went into the Copa Cabana and purchased the cocaine inside the licensed premises; but it established nothing more than he might have purchased it from any one of numerous patrons or employees inside the licensed premises. Once again, under this approach, the hearsay statement is the only piece of evidence that can be used to actually establish that the Respondent sold the drug in question.

    Deputy Schaeffer's testimony does not corroborate the hearsay statement concerning that ultimate fact at issue. Rather, it provides the majority of the chain of evidence leading potentially to that ultimate factual finding, but the hearsay statement is the critical link in completing that chain; and, in accordance with the mandate of Section 120.58(1)(a) and Section 90.803, Florida Statutes, it cannot be used in that fashion. Accordingly, it is concluded that the charge concerning the sale of cocaine by the Respondent has not been established by competent evidence. See Counts I(A-C) of the Notice to Show Cause.

    
    

36. Count II of the Notice to Show Cause changes that the Respondent kept a store, shop, building or place used for illegal use, keeping, selling or delivery of controlled substances under Chapter 893, Florida Statutes, which renders the licensed premises a public nuisance, in violation of Sections 823.01 and 823.10, Florida Statutes. Count III concerns the Respondent allegedly keeping a store, shop, building or place which is resorted to by persons using controlled substances for the purposes of using them and which is used for keeping or selling controlled substances in violation of Section 893.13(2)(a)(5), Florida Statutes. Section 561.29(1)(a), Florida Statutes, as referenced above, provides that the license may be revoked or suspended if any laws of the State of Florida are violated by agents, officers, servants or employees on the licensed premises; and Section 561.29(1)(c) provides for revocation or suspension where a nuisance is maintained on the licensed premises.

    
    

37. The above Findings of Fact clearly reveal that repetitive violations of the law cited above occurred on the licensed premises. Decisional law establishes, however, that a licensee may not be held liable for such violations unless it be shown that they occurred as a result of his own negligence, intentional wrongdoing or lack of diligence in supervising or maintaining surveillance over the licensed premised. Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962). The license/Respondent is not required to be an absolute insurer against violations on the licensed premises by patrons or employees; and where evidence shows only an isolated violation of the law, the courts have refused to uphold revocations. See, Jones v. Department of Business Regulation, 448 So.2d

    1109 (Fla. 1st DCA 1984); G & B of Jacksonville, Inc. v. Department of Business Regulation, 366 So.2d 877 (Fla. 1st DCA 1979); Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969); J.H. Taylor v. State Beverage Department, 194 So.2d 321 (Fla. 2nd DCA) cert. den., 201 So.2d 464 (Fla. 1967).

    
    

38. Courts have, however, found violations by either condonation or negligence in instances of flagrant, repetitive violations occurring on the licensed premises, even where a respondent was absent from the licensed premises at the times of the violations. See, Pauline v. Lee, supra. The Pauline case, as well as Lash, Inc. v. Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982), G & B of Jacksonville, supra, as well as Golden Dolphin #2 Inc.

    v. Division of Alcoholic Beverages and Tobacco, 403 So.2d 1372 (5th DCA 1981), all involved multiple violations over the space of one day to a week or on "several occasions".

    
    

39. In order to avoid responsibility for violations on the licensed premises of the type proven to have occurred in this case, a licensee must fulfill his duty to exercise reasonable care and diligence to see that the licensed premises and business conducted therein is performed in a lawful manner and that the licensee does not violate the law nor permit others on the licensed premises to do so. In the instant situation, the licensee/Respondent was present each time the licensed premises was open for business and at each of the times when the Petitioner's witnesses observed the illegal activity described in the above Findings of Fact.

    
    

40. It is concluded that the Respondent had to have been aware of the smell of marijuana and cocaine smoke and the presence of smoking devices, razor blades, and other drug use paraphernalia observed on the licensed premises by the law enforcement officers. It is concluded that the Respondent had to have also been aware of the open and notorious sale and display of controlled substances which occurred within the licensed premises over a six-month period. In summary, the clear and convincing evidence of record, culminating in the above Findings of Fact, establishes that there was sufficient flagrant, persistent and recurring violations to mandate the conclusion that the Respondent, even if he did not participate in the illicit transactions observed, failed to adequately supervise the licensed premises in a reasonable and diligent manner, and therefore, is culpable. It is, therefor, concluded that the violations alleged in Counts II and III of the Notice to Show Cause have been established.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the competent, credible evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED:

That the Respondent, JIMMIE WILLIAMS, d/b/a Copa Cabana, be found guilty of the offenses set forth in Counts II and III of the Notice to Show Cause. It is further recommended that Count I of the Notice to Show Cause be dismissed. It is further recommended that the alcoholic beverage license held by the Respondent be revoked and that a civil penalty of $2,000.00 be assessed against the Respondent.

DONE AND ENTERED this 26th day of January, 1990, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 26th day of January, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-719

Petitioner's Proposed Findings of Fact 1.-6. Accepted.

1. Accepted, but not as probative of the ultimate fact of the sale of rock

   cocaine by the Respondent, himself.

2. Accepted, but not as probative of the ultimate fact of the sale of rock cocaine by the Respondent, himself.

3. Accepted.

4. Accepted.

5. Accepted, but not as probative of any material issue presented for adjudication.

12.-16. Accepted, in that these proposed findings of fact describe the testimony of these witnesses. However, these witnesses have been determined to be not credible.

17. Accepted, to the extent that it is arc accurate description of the Respondent's testimony.

Respondent's Proposed Findings of Fact 1.-4. Accepted.

1. Accepted.

2. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not Entirely in accordance with the clear and convincing evidence.

7.-9. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and hot in accordance with the clear and convincing evidence.

1. Rejected, as not materially dispositive of the issues presented.

2. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not, itself, materially dispositive.

3. Rejected, as not, .in itself, materially dispositive.

4. Accepted, in part, but the evidence in this case does not delineate the extent of the premises owned or controlled by the Respondent, and to that extent, it is rejected.

5. Rejected, as subordinate to tide Hearing Officer's findings of fact on the subject matter and as to it's purported material import.

6. Rejected, as to its material import in relation to the remainder of Deputy Patterson's testimony.

7. Rejected, as contrary to the clear and convincing evidence.

8. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not in accordance with the clear and convincing evidence.

9. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter.

10. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not being an accurate reflection of the overall sense of the witnesses' testimonies.

11. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter.

12. Rejected, as being contrary to the greater weight of the clear and convincing evidence.

13. Accepted, but not, itself, dispositive of material issues presented, except to the extent that it has not been proven that the Respondent, himself, offered any drugs for sale.

14. Accepted.

15. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not being, itself, dispositive of material issues presented.

16. Rejected, as immaterial. Even if this is true, it does not overcome proof that the Copa Cabana club's operations constitute a nuisance.

COPIES FURNISHED:

Harry Hooper, Esq. Deputy General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, FL 32399-1007

Leo A. Thomas, Esq.

Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A.

P.O. Box 12308 Pensacola, FL 32581

Leonard Ivey, Director Department Of Business

Regulation

The Johns Building

725 South Bronough Street Tallahassee, FL 32399-1000

Docket for Case No: 89-000719

Orders for Case No: 89-000719