02/03/1992 - Speciali
co?"?/ Comm?SSlOt'1
Spec?o.l Mex.-?n?
mom
? Er
,, .
E
t
t
1
t ,h?
?:?
ySEAIMs Item a
Meeting Date: 02103192
Clearwater city commission
Agenda Cover Memorandum
SUBJECT:
Commission Action on bearing Officer Decision Granting Conditional Use Permit for
Pick Kwik
RECOMMENDATION/MOTION:
Authorize staff to prepare a settlement agreement with applicant to grant the
conditional use permit with appropriate conditions
? and that the appropriate officials be authorized to execute same.
BACKGROUND:
The Planning and Zoning Board's July 30, 1991 decision to deny a conditional use
permit request to allow Pick Kwik to sell alcoholic beverages at its store located
on Mandalay Avenue on Clearwater Beach has been overturned by an Administrative
Hearing Officer. The attached order by the Hearing Officer establishes several
conditions for approval, including a highly unusual condition linking the
conditional use permit for Pick Kwik to that of the 7-11 store directly across
Mandalay Avenue from the Pick Kwik location (see page 17 of the order). The City
Attorney has expressed serious doubts about whether the condition regarding the
7.11 Store would be upheld under judicial review. The attorneys for Pick Kwik
have indicated a strong desire not to be governed by this condition; this desire
is evidenced in their efforts to not proceed with the conditional use permit
approved by the Hearing Officer, and to await final disposal of an earlier
conditional use permit which is still under judicial, review. NOTE: A motion by
the City Attorney's office is pending regarding this earlier conditional use
permit.]
Because of the unlikelihood of successfully challenging the Hearing Officer's
reversal of the Planning and Zoning Board's decision, the staff would not
recommend that the city commission appeal the Hearing Officer's order through the
court system. On the other hand, the staff does not feel comfortable accepting
the Hearing Officer's conditions for approval due to the legal uncertainties
regarding the 7.11 store condition. Consequently, the staff would recommend
pursuing a settlement agreement with the applicant which would establish the
conditional use for the property with certain appropriate conditions. These
conditions include: (1) the applicant shall provide a security guard to patrol
its three Clearwater Beach establishments between the hours of 5:00 p.m. and 2:00
a.m. on Friday and Saturday nights, with monitoring reports submitted to the city
Planning and Development Department not less than quarterly; (2) the applicant
shall obtain the requisite alcoholic beverage separation distance variance from
the City Commission; (3) the applicant shall obtain the requisite occupational
license within six months of the date of the public hearing on the application;
Reviewed by: Originating Dept: 'osts : NA Commission Action:
Legat NA PLANNING & DEVCLOP t "l Totat 0 Approved
Budget NA
Purchasing NA ? Approved N/conditions
Risk Mgnt. NA
User Dcpt: Current FisCat Yr. ? Denied
Cis
ACM NA
Furxfi
ng Source: ? Continued to:
Other NA M Capital Imp.
Advertised: ? operating Attachments:
Date: 1/31/92 E] other _ BEARING OFFICER ORDER
Paper: TAMPA TRIBUNE
?
i
Not Requ
red
5 i elf Affected Parties 13 None
Q Notified AIlir•opriation Code
Cit nag
? Not Required
A
1!
C.C. 02/03/92
Pick Kwik - Hearing Officer Decision
Page 2
and (4) the applicant shall restrict the hours of operations for alcoholic
beverage sales to 9:00 a.m. until. 12:00 midnight Monday through Saturday and 1:00
p.m. until 12:00 midnight on Sunday.
The settlement agreement would pertain to the initial. conditional use permit,
which.was denied by the Planning and Zoning Board and upheld on appeal by the
Administrative Hearing officer. As mentioned above, that case is still under
judicial review. The appellate court recently sent this case back for trial, and
there is some likelihood that the Hearing officer's decision will be overturned.
Settling this first conditional use issue will allow the second conditional use
(with its unacceptable condition) to be dispensed with.
While the staff is recommending the settlement agreement approach to resolve all
the conditional use issues, the Commission should be aware it has several
alternatives:
Alternative 1 - Appeal the Nearing Officer's decision granting the second
conditional use permit.
Alternative 2 - Continue judicial review of the first conditional use permit
in anticipation of similar conditions being placed on the permit.
Alternative 3 - Allow the applicant to proceed under the conditions
established for the second conditional use permit.
Alternative 4 - Proceed with a settlement agreement as recommended by staff.
The City Attorney is recommending against Alternative 1 and in favor of
Alternative 4.
This item has been advertised for a special. Commission meeting to be held
immediately preceding the work session on February 3rd. This special meeting is
necessary in order for us to determine the desired action that the Commission
wishes the staff to take prior to the appeal period lapsing on February 5, 1992.
INS
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NOSTIMO, INC., and )
PICK KWIK FOOD STORES, INC ., )
Appellants,, )
VS. ) CASE NO. 91-5679
CITY OF CLEARWATER, )
and PALM PAVILION, INC., )
,. Appellees. )
FINAL ORDER
On November 19, 1991, a formal administrative hearing
was held in this case in C learwater, Florida, before J. Lawrence
Johnston, Hearing Officer, Division of Administrative Bearings.
APPEARANCES
For Appellants: Peter P. Murnaghan, Esquire
E. Jeanne Maguire, Esquire
Stagg, Hardy, Ferguson, Murnaghan
& Mathews, P.A.
Post Office Boa ,959
Tampa, Florida 33601--0959
For Appellees: 24. A. Galbraith, Jr., Esquire
City Attorney
City of Clearwater
Post Office Box 4748
'Clearwater, Florida 34618-4748.
RECEIVED Harry S. Cline, Esquire
McMullen, Everett, Logan
Marquardt & Cline, P.A.
JAN 0 9 1992 Attorneys for Palm-Pavilion, Inc.
Post Office Box 1669
CITY ATTORNEY Clearwater, Florida 34 617
-. o
STATEMEtd". OF THE ISSUES
As a result of a Motion to Dismiss filed by Palm
Pavilion, Inc., a preliminary issue is whether Section'137.029 of
1
the Clearwater Land Development Code (the Code) barred the filing
of the application in this case.
The issue on the merits of the application is whether
the evidence-sustains the decision of the City of Clearwater
Planning and Zoning Board (the Board) to deny the application of
the Appellants, N ostimo, Inc., and Pick Kwik Food Stores, Inc.,
for a conditional'use permit to sell beer and wine, for off-
premise consumption, at 32 Bay Esplanade, Clearwater, Florida.
As a result of stipulations entered into by the parties, the
specific issue was narrowed to whether the evidence sustains the
Board's decision that the use is not compatible with the
surrounding area or imposes an excessive burden or has a
substantial negative impact on surrounding or adjacent uses or on
community facilities or services. See Preliminary Statement.
Y3
t
PRLUMINARY STATEMENT
On April 16, 1991, the Appellants, Nostimo, Inc., and
Pick Kwik Food Stores, Inc., filed an application with the city
of Clearwater for a conditional use permit to sell beer and wine,
.ti
for off-premises consumption, at the PicR, Kwik convenience store
at 32 Bay Esplanade, Clearwater, Florida.
During staff review of the application, tie applicants
offered to agree to several conditions or restrictions,in
response to staff concerns. As a result of these agreements, the
partied: agreed and stipulated that the only remaining issue was
2
whether the application met the standard for approval set out in
Section 137.011(d)(6) of the Clearwater Land Development Code
(the code)--namely, whether the application and evidence clearly
indicates that the use is compatible with the surrounding area
and does not impose an excessive burden or have a substantial
negative impact on surrounding or adjacent uses or on community
facilities or services.1
After staff review and recommendation to gr4nt the
application, it was considered by the City of Clearwater Planning
and Zoning Board (the Board) at a public hearing on July 30,
1991. At the public hearing, Palm Pavilion, Inc., contended that
.E
the application was barred by Section 137.029 of the Code. The
Board did not explicitly rule on that issue but, with one member
abstaining, the remainder of the Board voted unanimously to deny
the application. A timely appeal was filed on August 13, 1991.
Under Section 137.013 of the Code, the appeal was
forwarded to the Division of Administrative Hearings on
September 3, 1991, along with 'a copy of the',irecord of the
proceedings below. On September 13, 1991, a Notice of Hearing
was issued scheduling final hearing for November 19, 1991.
i 1
1 The second condition or restriction to which the applicants
offered to agree was that the applicants would obtain..the
requisite alcoholic beverage separation distance variance from
the city Commission. This was how the parties were able to enter
."into the stipulation narrowing the issues in the face of Section
137.011(d)(2) of the Code, which requires as a standard for
approval of a conditional use permit that the application and
evidence clearly indicate that the use complies with all other
applicable provisions of the Code. See footnote 3, below.
13
On September 16,19 91, Palm Pavilion, Inc., filed a
Motion to Dismiss on the ground that the application was barred
by Section 137.029 of the Code., The motion was heard at the
outset of.the final hearing, and ruling was reserved.
At the final hearing, the record of the proceeding
below was received, as required by Section 137.013(e)(3) of the
Code. Additional evidence also was received, as permitted by
Section 137.013(e)(4) and (f)(1) of the Code. Appellant Exhibits
1 and 2 were admitted in evidence. The City called one witness
(its planner) and had City Exhibits 1 and 2 admitted in evidence.
In addition, the parties were permitted to file post-hearing
proposed findings of•fact and conclusions of law under section
137.013(e)(8) of the Code.
FIND114GS OF FACT
1. Appellant, N ostimo, Inc. (14ostimo), owns lots 8, 9,
10 and 11, Block 8, revised plat, in a Clear?,ater Beach
subdivision located at 32 Bay Esplanade, Clearwater, Florida.
Appellant, Pick Kwik Food Stores, Inc. (Pict: Kwik), operates a
Pick Kwik convenience store at the location.
2. The subject Pick Kwik store is located on the
western side of the intersection of Bay Esplanade and Mandalay
Avenue in Clearwater Beach, an elongated strip of land to the
west of the mainland portion of the City of Clearwater, and
separated from the mainland by Clearwater Herbor.
Mandalay Avenue runs north and south through the heart
of Clearwater'Beach and is a principal traffic artery in that
part of the community. Mandalay narrows from four to two lanes
4
just south of the subject location. From the point at which6it
narrows to two lanes, Mandalay furnishes the only access to the
primarily residential neighborhoods to the north.
Bay Esplanade is a much shorter street that runs in an
east--west direction between the Gulf of Mexico and Clearwater
Harbor.
3. Before the Pick Kwik store began to do business at
the location, the premises were once occupied by a hotel,
apartments, hot dog shop and a small lounge that offered both on-
and off--premises consumption of alcohol. The lounge did not
generate substantial numbers of customers and associated traffic.
' It was very small, and a congregation of four or five customers
at any one time was a large crowd.
4. In general terms, the location is surrounded by
mixed uses, including a 7--11 convenience store immediately across
the street to the east, motels and rental apartments, a
restaurant, retail businesses and resort facilities, residences,
public areas and a city fire station. In addition to a number of
commercial establishments within the immediate area, there are
tennis courts, a parking area, community boat ramp, soccer field,
playground and public park. In the area, there area apartments,
rental units and condominiums, including some directly behind the
subject location. There is a church a block away, and there is.a
playground next to the church that is used by area young people,
many of whop use bicycles as their means of trapsportation.
5. On April 25, 1989, Nostimo and Pick Kwik applied
fil? A
or a conditional use permit to sell beer and wine for off--
f
d3
premises consumption, at the location. The application was heard
at a meeting of the City of Clearwater Planning and Zoning Board
(the Board) on June 14, 1989. The Board.denied the application,
and Nostimo and Pick Kwik appealed under Section 137.013 of the
Clearwater Land Development Code.,(the Code). The appeal was
heard by a Division of Administrative Hearings Hearing officer,
who entered a Final Order on October 9,
denial.
1989, upholding the
6. The Hearing Officer found in his Final order in
part:
6. At both the Board hearing and final
hearing in this cause, the City Police
Department offered testimony in opposition to
the issuance of the requested permit.
According to the uncontradicted testimony of
Lt. Fran}: Palumbo, who is the Clearwater
Beach police department district commander,
additional noise, vandalism, traffic
congestion and congregation of younger people
are expected if the permit is issued. This
opinion was based upon his law enforcement
experience with other convenience stores on
the Beach side that. sell beer and wine,
including another Pick Wick (sic] convenience
store.. Further, Mandalay.Avenue is an
important north--south traffic artery in
Clearwater Beach, and there are no
alternative streets for residents and
visitors to use to avoid the traffic build--up
that will occur around the store. Lieutenant
Palumbo disputed the assertion that the
lounge that once occupied a portion,of the
subject property generated substantial
numbtlrs of customers and'associated traffic.
and that the new enterprise is actually a
downgrade in use. He pointed out that the
former lounge was very small, and a
congregation of four or five customers at any
one time.was a "large crowd." In contrast,
the police officer distinguished that
situation frcim the proposed store where the
sale of beer and wine around the clock is
expected to generate larger volumes of
traffic and customers, particularly during
6
the evening hours. Finally, it has been Lt.
Palumbo's experience that convenience stores
that sell beer and wine attract the younger
crowd, including minors, during the late
hours of the night, and they create noise and
sanitation problems for the adjacent property
owners. The witness concluded that all, of
these factors collectively would have a
negative impact on "community services" by
placing a greater demand on police resources.
This testimony was echoed by a city planner
who gave deposition testimony in this cause.
The nehus between the sale of alcoholic
beverages and increased traffic and noise was
corroborated by Daniel Baker, the manager of
another Pick wick (sic) store and a former
employee of the' 7--1.1 store across the street,
who recalled that when beer sales stopped at
that store at. midnight, the noise and
traffic also came to a halt. In this regard;
it is noted the proposed store will operate
twenty-four hours per day. fTo the above
extent, then, the proposed use is
incompatible with the requirements of section
137. 011. (d) (6) .
7. On November 7, 1989, Nostimo and Pick Kwik filed a
two--count complaint in circuit court: Count 1, a petition for
common law certiorari review of the Hearing Officer's decision;
and Count 11, attacking the constitutionality of Section
137.011(d)(6) of the Code. on November 19, 1990, the circuit
court entered orders (1) denying the petition for common law
certiorari and (2) granting a motion to dismiss Count 11. It was
represented that a Final Judgment of Dismissal, addressed to
Count 11, was entered on ?,arch 22, 1991, and that Nostimo and
Pick Kwik appealed the final judgment to the Distrii.:t Court of
I
Appeal, Second District of Florida, where it remains pending.
8.' On April 16, 61.991, Nostimo and Pick Kwik filed
another application for a conditional use permit to sell beer and
wine., for off-premises consumption at the 32 Bay Esplanade
7
, _,
location. The application is identical to the one filed on
April 25, 1989, eXcept in one respect: the second application
provides that sales of alcoholic beverages at the location wuuid
nat begin until 9:00 a.m., whereas the April 25, 1989,
application was for a permit to begin sales of alcoholic
J
beverages at the location at 8:00 a.-m., as authorized by local
ordinance. During the staff review of the April 16, 1991,
application, the applicants also offered to agree to other
conditions or restrictions in response to staff concerns: (1)
the applicants would provide a security guard to patrol its three
Clearwater Beach establishments between the hours of 8:00 p.m.
and 2:00 a.m. on Friday and Saturday nights, with monitoring
reports submitted to the City Planning and Development Department
not less than quarterly;2 (2) the applicants would obtain the
requisite alcoholic beverage separation distance variance from
the City Commission;3 (3) the applicants would obtain the
requisite occupational license within six months of the date of
the public hearing on the application; and (4) the applicants
would restrict the hours of operations for alcoholic beverage
sales to 9:00 a.'m. until 12:00 midnight t;onday through Saturday
and 1:00 p.m. until. 12:00 midnight on Sunday.
Under this first condition to which the applicants have agreed
in this proceeding, if the roving scicurity guard is occupied at
another of the }leach locations, the store clerk would telephone
city police for assistance if unable to handle a situation alone.
3 The second condition was how the parties addressed Section
137.011(d)(2) of the Code, which requires as astandard for
approval of a conditional use permit that the application and
evidence clearly indicate that the use complies with all other
applicable provisions of the Code. See footnote I1, above.
8
1
' f
9. At the Board hearing, the human resources manager
for Pick Kwik outlined Pick. Kwik's procedures and-guidelines for
the sale of alcohol.. There is a policy manual in each store as
well as a handbook provided.to each employee outlining the
procedures to be followed regarding the sale of alcohol,
including procedures to prevent sales to minors and disciplinary
action if the procedures are not followed. All employees also
attend an orientation which includes responsible vendor training.
These policies are enforced by Pick Kwik through monthly
inspections.
10. There are 17 existing establishments fronting on
Mandalay Avenue that sell alcoholic beverages. Just three are.
north of Bay Esplanade, including the 7-11 store across the
street from the Pick Kwik; the rest are to the south. There are
another three establishments selling alcoholic beverages south of
Bay Esplanade fronting on streets other than Mandalay. There
also is one fronting on Bay Esplanade. There is one restaurant
on Mandalay north of Bay Esplanade.that has a pending application
for a permit to sell alcoholic beverages.
11. At the Board hearing on the April 16, 1991,
application, held on July 3Q, 1991, opponents of the application
introduced in evidence the record of the hearing held on June 14,
1989, on the April 25, 1989, application filed by Nostimo and
Pick Kwik. Included in the record of the prior hearing was the
testimony of Lt. Palumbo, who expressed concerns about increased
traffic, loitering and rowdy behavior if the conditional use
permit were issued. Opponents of the application also introduced
9
in evidence at the Board hearing the Final order entered by the
Nearing officer in the prior proceeding. See Finding of Fact 6,
above.
12. The Board considered the record of the prior
proceeding in evaluating the April 16, 1991, application, But
the Final order in-the previous proceeding seemed to be based on
a misapprehension that the Pick Kwik store would be open for the
sale of beer and wine 24 hours a day. see Finding of Fact 6,
above. In addition, given the existance of the 7-11 selling beer
and wine across the street, the evidence presented in the hearing
on the April. 16, 1991, application put in perspective Lt.
Palumbo's testimony that allowing the sale of beer and wine at
the Pick Kwi}; would "generate larger volumes-of traffic and
customers, particularly during the evening hours" and would "have
a negative impact on 'community services' by placing a greater
demand on police resources."
13. AL the Board hearing, the staff of the City
Planning and Development Department recommended approval.4 The
City's Planner, Scott Shuford, testified that traffic no longer
was considered to be a, substantial problem. The City Traffic
Engineer did not anticipate a substantial increase in traffic as
a result of granting the application.
14.. The traffic experts had difficulty differentiating
berween a convenience stare selling beer and wine, and one that
lot
The recomnienaauion was subject to the addition of a fifth
condition prohibiting sales of single containers of alcoholics
beverages (other than bo' ttles of boar and wine containing less
than 750 ml). See Finding of Fact 15, below.
10
does not, primarily because they were unaware of any other
convenience store that does not sell beer and wine. But the
evidence was clear that, since the 7--11 already sells veer and
wine across the street from the Pick Kwik location, there would
be only a slight increase in traffic resulting from selling beer
and wine at the Pick Kwik location. Two convenience stores
located across the street from one another generally share the
available business in the market area. The addition of a store
across the street from an existing store would be expected to
generate perhaps 12 percent more aggregate revenue. (This
approximates the new store's capture of the "leakage1° that
resulted when potential customers driving on1ythe opposite side of
the street chose to bypass the preexisting store.) Beer and wine
sales make up approximately 7 to 8 percent of a convenience
store's gross revenue. Assuming that two stores across the
street from each other also would.generate 12 percent more
aggregate revenue from the sale of beer and wine than a single
store, and also assuming that the percentage of additional gross
revenue represents additional trips to one of the two stores, the
impact of allowing the sale of beer and wine at the Pick Kwik
location would be 7 to 8 percent (representing the beer and wine
percentage of gross revenue), of 12 percent (representing the
aggregate increase in gross revenue from. adding a convenience
store across the street from another one), or between o.84 and
0.96 percent, at most.
15. The staff's recommendation to grant the April 16,
1991, application was subject to the addition of a fifth
,t .
11
condition or restriction prohibiting sales of single containers
of alcoholic beverages (other than bottles of beer and wine
containing less than 750 ml). The evidence was clear that this
condition would present enforcement problems. In addition,
imposition of this condition or restriction at Pick hwik without
imposing the same condition or restriction at the 7-11 across the
street would serve no useful purpose. To the contrary, it might
increase traffic problems as a result of custoiaers wanting to buy
single containers•at the Pick Ewik subsequently crossing the
street to make the purchase at the 7--11.
16. On the other hand, tying the duration of the
conditional use benefitting.the Pick Kwik location to the
duration of the conditional use benefitting the 7--11 location
would address concerns expressed during this proceeding that
implementation of Section 137.021 of the code will result
inexorably in an increase in the number of establishments selling
beer and wine, for off-premises consumption, do Clearwater Beach
and, particularly in the north end of the Beach. This would
result, at an appropriate future date, in the simultaneous
consideration of the compatibility of the sale of beer and wine
at both the Pick Kwi?: and the 7-11 locations. This would be a
more sensible condition or restriction.
4?
CONCLUSIONS OF 3"IAW
1. Section 137.029 o the Clearwater Land Development
Code (the Code) provides that a "property which is the subject of
W a denied application""::•or a conditional use permit "shall not
7
have another identical application filed affecting any part of
12
such property sooner than" nine months. Although the April 16,
I
1991, was virtually the same as the earlier application, it was
not "identical," and it was not be barred by Section 137.029.
2. Section 137.013(c)(4) of the Code provides: "Zn
any case where a notice of appeal [of a Boarq, decision] has been
f
filed, the decision of the board shall be stayed pending the
final determination of the case." Section 137.013(f)(6) of the
Code provides: "The decision of the hearing officer shall be
final, subject to judicial review." Accordingly, the denial of
the April 25, 1989, application filed by Nostimo and Pick Kwik
became final upon entry of the Hearing Officer's Final Order on
October 9, 1989. Cf. Rule 9.310, Florida Rules of Appellate
Procedure (no automatic stay). Section 137.013,(c)(4) of the Code
would bar the filing of an "identical application" until July 5,
1990. Even if the April 16, 1991, application were "identical"
to the earlier application, it would not be barred by Section
137.029.
3. The standards for approval of an application for a
conditional use permit are set out in Section 137.011(d) of the
Code, which provides that a conditional use shall be approved by
the Board only upon determination that the application and
evidence presented clearly indicate that six standards are met.
In this case, the parties have"stipulated that the first five
S
standards have been met and that the only issue remaining before
e,
f
the Board was whether the sixth standard was met. Paragraph (6)
of Section 137.011(4) provides:
The use shall be compatible with the
surrounding area and not impose an excessive
13
burden or have a substantial negative impact
on surrounding or adjacent uses or on
community facilities or services.
4. Appeals from decisions of the City of Clearwater
Planning and Zoning noard,(Board) are governed by Section 137.013
of the Clearwater Land Development Code, which provides in
pertinent part: J
r.
(a) Purpose. It is the purpose of this
section to provide an administrative process
for appealing decisions rendered on variances'
and conditional uses by the development code
adjustment board and the planning and zoning
board respectively, prior to any available
recourse in a court of law. The function of
the hearing officer shall be to serve as the
second'step of a two-step administrative
process relating to variances and conditional
uses.
(e) Conduct of the hearing. Conduct of
the hearing before the hearing officer shall
be as follows.
(4) The hearing officer shall have the
authority to determine the applicability
and relevance of all materials, exhibits
'land,-testimony and to exclude irrelevant,
immaterial or repetitious matter.
e
(5) The hearing officer is authorized to
administer oaths tp witnesses.
''(6) A reasonable amount of cross-examination
of witnesses shall be permitted at the
discretion of the hearing officer.
(f) Decision. The decision of the
hearing off.'
?cer shall be based Capon the
following criteria and rendered as follows:
L (1)' The hearing officer shall review
the record and testimony presented
at the hearing before the board and
14
at the hearing officer relative to
the guidelines for consideration of
conditional uses or variances as
contained in sections 137.011 or
137.012, respectively. Although
additional evidence may be brought
before the hearing officer, the
hearing shall not be deemed a
"hearing de novo," and the record
before'the board shall be
incorporated into the record before
t the hearing officer, supplemented
by such additional evidence as may
be brought before the hearing
officer.
(2) The hearing officer shall be guided
by.the city comprehensive plan,
relevant-portions of the City Code.
of ordinances and established case
law.
(3) The burden shall be upon the
appellant to show that the decision
of the board cannot be sustained by
the evidence before the board and
before the hearing officer; or that
the decision of the board departs
from•the essential requirements of
law.
(4) The hearing officer's determination
shall include appropriate findings
of fact, conclusions of law and
decision in the matter of the
appeal. The hearing officer may
affirm or reverse the decision of
the board, and may impose such
'Wreasonablw conditions as the board
may have imposed.
These provisions appear to provide for a hybrid proceeding that is
an appellate review on the one hand, in the sense that the issue,
is whether the evidence sustains therboard's decision, and a de
novo proceeding, on the other hand, in the sense that additional
evidence can be adduced at the appeal hearing. In other words,
whether the Boardf;s decision is sustainable under the pertinent
law is tested not only against the evidence presented before it
'tip
but also against the evidence presented before the Hearing
officer.
5. It is concluded that the evidence does not sustain
the Board's decision. As found, in light of the 7--11 across the
street that sells beer and wine, the application and evidence is
clear that the use is compatible with the surrounding area and
does'not impose an,eycessive burden or have a substantial
negative impact on surrounding or adjacent uses or on community
r
facilities or services. Based on the evidence, at' most only 0.84
to 03.96 percent more traffic and loitering can be expected to
result from the sale of beer and wine at the Pick Kwik location
immediately across the street from the
continues to sell beer and wine across
cannot be said to be "substantial," as
resulting impact is addressed by the c
and Pick Kwik have agreed.
7-11. So long as the 7-11
.the street, this impact
a matter of law, and any
onditions to which Nostimo
6. Section 137,.011(e) of the Code authorizes the Board
to impose conditions and restrictions upon the property
' benef.itted by a conditional use. Section 137.013(f)(4) of the
Code provides that the Hearing officer "may impose such
t; reasonable conditions as the board may have imposed." A
limitation on the duration of the conditional use benefi.tting the
Pick Kwik location, tying it to the duration.of the conditional
use benefitting the 7-11-location, would address concerns
3
expressed during this proceeding that implementation of Section
137.011 of the Code will result inexorably in an increase in the
number of establishments selling beer and wine, for off-premises
16
1
I
consumption, in Clearwater Beach and, particularly in the north
end of thetBeach. Such a condition or restriction would be a
reasonable condition or restriction on the Pack Kwik conditional
use.
DISPOSITION
I
Based on the foregoing Findings of Fact and Conclusions
of Law, it is
ORDERED:
F
The appeal of Nostimo, Inc., and Pick Kwik Food Stores,
Inc., is granted. 'Their application for a conditional use permit
to sell beer and wine, for off-premises consumption, at.the Pick
Kwik convenience')store at 32 Bay Esplanade, Clearwater, Florida,
is granted, subject to the following conditions and restrictions:
i/ (1) the applicants shall provide a security guard to patrol its
three Clearwater Beach establishments between the hours of 8:00
p.m. and 2:00 a.m.' on Friday and Saturday nights, with'monitoring
reports submitted to the City Planning and Development Department
not less than quarterly; (2) the applicants shall obtain the
requisite alcoholic beverage separation distance variance from
the City Commission; (3) the applicants shall obtain the
requisite occupational license within six months of the date of '
the public hearing on'the application; (4) the applicants shall
restrict tie hours of operations for alcoholic beverage sales to
{4
9:00 a.m. until. 12:00 midnight Monday through Saturday and 1:00
p.m. until 12:00 midnight on Sunday; and (5) the permit shall
expire, without prejudice to reapplication, upon expiration or
transfer of, or application to renew, the permit at the 7-11
store.
1.7
N?
x
Tom,
DONE AND ORDERED this J day of January, 1992, in
Tallahassee, Florida.
LAWRENCE JO??7''ON
Baring office
COPIES FURNISHED:
.D vision of-Ad nlstrative Hearings
?Z?e DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399--1550
(904) 488-9675
Filed with the Clerk of the
Division of Administrative
Hearings this day d'f'
January, 1992.
Peter P. Murnaghan, Esquire
E. Jeanne Maguire, Esquire
Stagg, Hardy, Ferguson, Murnaghan
& Mathews, P.A.
Post Office Box 959
Tanpa, Florida 33601-0959
M. A. Gal.brai -h, Jr. , Esquire
City Attorney
City of Clean;ater
Post office Box 4748
Clearwater, Florida 34618-4748
Harry S. Cline, Esquire
McMullen, Everett, Logan
Marquardt & Cline, P.A.
Post Office Box 1669
Cl.earv°ater, Florida 34617
Cvnthia Goudeau
City Clerk
Citv of Clearwater
Past `Office Box. 4748
Clearwater, Florida 34610-4748
91-5679
Final Order, Case No.
18