07/05/1991 (2)
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HEARING
OFFICER
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PUBLIC HEARING BEFORE A HEARING OFFICER
July 5, 1991 - 9:07 a.m.
Stanislaw and Kazimiera Budzinski / Britt's Restaurant
Hearing Officer:
Also Present:
Issue:
Veronica E. Donnelly
Scott Shuford, Planning Manager
Steve Doherty, Development Analyst
Susan Stephenson, Deputy City Clerk
Gwen J. Legters, Staff Assistant II
Stanislaw and Kazimiera Budzinski (Britt's Restaurant)
for a variance of 23 parking spaces to allow 2,560 sq ft
restaurant with 2-COP State alcoholic beverage license
at 201 S Gulfview Blvd, Lloyd White Skinner Sub, Lots
48-52 and Lot 98, zoned CR-28 (resort commercial). V
90-123 Case 91-2124
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Appearances:
George W. Greer, Attorney Representing Appellant
Miles A. Lance, Assistant City Attorney
James Mayes, Owner, Britt's Restaurant
(~. Exhibits Submitted:
1.
2.
3.
Tape excerpt, Deve lopment Code Adjustment Code
hearing, May 9, 1991, Caraco, (Lucia by the nCII)
Area map showing location of public parking lots
in ,relation to the subject property.
Table comparing parking requirements for various
types of alcoholic beverage licenses.
George Greer, representing the applicant, stated his client no longer wishes to
enlarge the restaurant and is reducing the request from 23 parking spaces to 17
parking spaces. The Development Code Adjustment Board (DCAB) heard this case
March 14, 1991, and denied the variance because it was felt the applicant had not
met all of the standards for approval as listed in Section 137.012(d) of the Land
Development Code.
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Mr. Greer gave a brief history of the case stating Mr. Mays formerly operated a
similar restaurant a short distance north of his present location for which he
obtained parking variances but was denied a conditional use permit by the
Planning and Zoning Board. A Hearing Officer reversed the Planning and Zoning
decision and granted the Conditional Use for alcoholic beverages. He stated an
almost identical variance request was granted in the Caraco case by the
Development Code Adjustment Code and appellant exhibit #1 was submitted into
evidence.
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Mr. Lance stated a decision of the Development Code Adjsutment Board should not
be reversed unless there is no competent substantial evidence in the record to
justify the decision or the applicant has been deprived of due process of law.
He indicated the Development Code Adjustment Code had substantial evidence and
reason to deny the variance as requested and the conditional use for beer and
wine sales was denied because of the back-out parking which was not a factor in
the Caraco case.
Mr. Mayes, in response to questions, stated his restaurant opened in May, 1990,
has under 2,200 square feet of floor space, seats 84 people, serves breakfast,
lunch and dinner and serves three complimentary beers per day to each customer
in order to compete with competitors who serve beer. He indicated he had a
license to sell alcoholic beverages in his former location which had 120 seats
and ten parking spaces that adequately met his customers I parking needs. Mr.
Mayes said he conducted a survey which indicated 80 percent of the approximately
1,200 peop 1 e surveyed wa 1 ked to his current restaurant from the beach. There are
11 parking spaces in his current location, and ample public parking nearby. Mr.
Mayes estimated there are several hundred motel rooms within walking distance of
his establishment, did not feel the granting of the variance would increase the
number of drive-up patrons. There is no room in the immediate area for
additional parking spaces.
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In response to questions, Mr. Mayes indicated serving free beer costs money, he
went into business knowing he could not sell alcoholic beverages and he knew
variances cannot be granted for "Financial gain. He stated before he opened his
business he was under the impression it was zoned for an SRX license but was not
aware of the need for a parking variance until after opening the restaurant. Mr.
Mayes stated his former restaurant was 80 percent food sales to 20 percent
alcoholic beverage sales.
Mr. Shuford, in response to questions, explained various zoning requirements
re 1 at i ng to park i ng and sa 1 es of a 1 coho 1 i c beverages, stat i ng the park i ng
requirements are two~and-a~half times greater than required for an SRX license.
On Clearwater Beach the parking requirement is only half of what is required
elsewhere in the City. He indicated parking requirements for 4 COP SRX remain
the same whether or not alcoholic beverages are sold.
Discussion ensued regarding Code requirements for parking in relation to
alcoholic beverage sales. It was indicated the alcoholic beverage regulations
are in need of modification. The Police Department had no negative comments
regarding the application. The applicant has agreed to close at 11:00 p.m. and
will not have outdoor seating.
Mr. Doherty stated he informed the applicant a beer and wine license would be
difficult to obtain due to the large number of additional parking spaces required
for a 2 COP 1 icense. It was pointed out that if First Street was closed,
additiona 1 area for park ing might become ava ilab le because a vacated right-of-way
is usually divided between adjoining property owners.
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7/5/91
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In closing, Mr. Greer indicated the additional parking requirement is not needed
and is a hardship for the applicant to provide parking for a bar instead of a
restaurant. The Development Code Adjustment Code has historically recognized
that the Code indicates the additional parking is not necessary, and has granted
parking variances. In his opinion he feels the application was denied because
it appeared the appellant was trying to pyramid variances. He requested that he
not be precluded from requesting outside seating at a later date.
Mr. Lance, in closing, indicated back~out parking was a large factor in the
Board's decision to deny the subject variance. He feels the request is based on
economic convenience, not survival.
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. Any proposed orders should be submitted to,the Hearing Officer and postmarked
within ten (10) days and final ruling on the case will be within thirty (30)
days.
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'Deputy City Clerk
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7/5/91
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RECEIVED
AUG 2 0 1991
CITY CLERK
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M E M 0 RAN DUM
TO: The Honorable Mayor and Members of the City Commission
FROM: Miles A. Lance, Assistant City Attorney ~~
RE: Stanley Budzinski and Kazimiera B. Budzinski, his wife, vs.
City of. Clearwater
DATE: August 20, 1991 .
The Hearing Officer has upheld the decision of the Development Code Adjustment
Board denying a parking variance to Britts Restaurant on Clearwater Beach.
Attached is a copy of the Final Order.
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Co~ies to: "
~ City Clerk
James M. Polatty, Planning & 'Development Department Director
Scott S~ufuord, Planning Manager
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STANLEY BUDZI~SKI and KAZIMIERA
B. BUDZINSKI, his wife,
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CITY ATTORNEY
Appellants,
VS.
CASE No. 91-2124
CITY OF CLEARWATER"
Appellee.
FINAL ORDER
P4rsuant to notice, the Division of Administrative
Hearings, by its duly' designated Hearing Officer, Veronica E.
Donnelly, held a public hearing in the above styled case on July
5, 1991, at Clearwater, Florida.
APPEARANCES
For Appellants:
George W. Greer, Esquire
600 Cleveland street, suite 685
Clearwater, Florida 34615
. "
For Appell ee:
Miles A. Lance, Esquire
Assistant city Attorney
city of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
STATEMENT OF THE ISSUES
lqhether Appellants were wrongfully denied a variance of
16-17 parking spaces that could allow an existing 2170 square
,:
foot restaurant to 'transfer and use its 2-COP state alcoholic
,,'
beverage license at 201 South Gulfview Boulevard on Clearwater
Beach, in the city of Clearwater.
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PRELIMINARY STATEMENT
By letter dated March 18, 1991, Stanislaw and Kazimiera
BUdzinski appeal the denial by the Development Code Adjustment
Board of their application for a variance regarding the required
amount of parking spaces needed to enable the restaurant located
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on Appellants' property. at 201 South Gulfv~ew Boulevard on
Clearwater Beach to sell beer and wine on premises. A tape
recording of the hearing in which the board denied the
application was filed with the Division of Administrative
Hearings, pursuant to section 286.0105, Florida statutes.
At the appeal hearing, the Appellants called James B.
Mayes, the lessee of the property who owns and operates the
restaurant business and David Shuford, the city of Clearwater
Planning M~nager.
Three exhibits were offered and admitted into
evidence. The Appellee presented one witness, steve Doherty, a
Development Analyst with the city of Clearwater. The applicable
municipal code citations were presented to the Hearing Officer by
Appellee, and official notice was taken of the provisions of the
various codes.
The tape recording of the appeal proceedings was filed
within the Division of Administrative Hearings on July 10, 1991.
Proposed findings of fact and conclusions of law were timely
filed by the parties. The parties' proposed findings of fact to
the extent they are incorporated herein, are adopted; otherwise
they are rejected as unsupported by the evidence, unnecessary to
the resolution of the issues, or a mere recitation of the
testimony presented at hearing.
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FINDINGS OF FACT
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1. Appellants own real property on the north corner of
South Gulfview Boulevard and First street on clearwater Beach.
The property is in a zoning district designated as CR-2B (Resort
commercial
District/Commercial Tourist
Facilities) ,
and is
primarily used by Appellants to operate ~ motel business. The
surrounding land uses to the north, south and east are primarily
motel. To the west is a public parking lot and the beaches.
2. In May 1990, Appellants leased a portion of the
ground floor to James B. Mayes so that he could operate a
restaurant known as Britt's Beachside Cafe at that location.
':>
3. In order. to build a restaurant on premises, 2170
square feet of gross floor area was improved by the lessee.
Pursuant to code, 11 parking spaces were needed for the
restaurant to meet parking space requirements for an eating
establishment at this site.
The parking space calculation was
made according to the formula of one space per 100 square feet of
gross floor area t the general parking formula for restaurants,
with a 50 percent reduction allowed for Clearwater Beach
locations.
4, Prior to the opening of the business, only 9 off-
street parl=.ing spaces were allocated to Britt's Beachside Cafe.
During May 1990, a variance of 2 parking spaces was requested by
Appellants and granted by the Development Code Adjustment Board.
At that time, Britt's Beachside Cafe was involved with food and
non-alcohOlic beverage sales.
Hith the approved variance, the
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restaurant was granted an occupational license and a certificate ~~~
of occupancy for the operation of the restaurant at this
location.
5. previously, Mr. Mayes operated his restaurant in a
larger motel with a smaller parking lot and fewer parking spaces
approximately 60 feet north of the sUbjec,t property for almost
four years.
The former restaurant had 120 seats for patrons as
opposed to the current 84 seats.
Beer and wine was sold in the
restaurant under a 2-COP state alcohol beverage license. The
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beverage license was acquired because this location was exempt
from the current city parking requirements under a grandfathering
provision of the Clearwater Code.
In addition, Mr. Mayes'
restaurant was exempt from the code requirement that 51 percent
of 'sales had to be from food and non-alcoholic beverages because
the business existed before the ordinance went into effect.
6. When the restaurant moved, the exemption from
current parking space requirements remained with the original
location, and the exemption from the 51 percent sales from food
and non-alcoholic beverages for the business was removed. The 2-
cop State ,alcohol beverage license for Britt's Beachside Cafe,
however, was attached to the business and could easily transfer
to the new
location if local zoning laws permitted its use
there.
7. In order to have the alcoholic beverage license
transferred to the new business location, the state requires the
business to continue with its compliance with local zoning and
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Clearwater Beach location.
As Britt's Beachside Cafe is
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development laws. To accomplish this, the restaurant is required
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to have one parking space per 40 square feet of gross floor area,
with the 50 percent reduction formulated and allowed for a
currently operating under the 11 parking space requirement, 16-17
more parking spaces are 'needed for the business to transfer the
,'beverage licens~ to the new business location.
8. The actual number of parking spaces for the
restaurant on location is 5.
During site review prior to the
granting of the certificate of occupancy, city staff improperly
counted four illegal parking spaces along First street as
legitimate, non-conforming off-street parking spaces.
9. The restaurant caters primarily to persons walking
to the restaurant either from adjacent motels or the beach. Few
,:)
automobiles are driven and parked at Britt's Beachside Cafe.
Eyen when the business was located in the other motel with more
seating and fewer parking spaces, parking was never a problem in
the area.
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10. There is considerable public parking immediately
adj acent to Appellant's property, both across the street, and
approximately one block to the north.' Hhen restaurant patrons
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,are unable to use the parking spaces on location, they park in
these convenient public spaces.
11. Since Mr. Mayes relocated his restaurant, he has
served beer and wine on premises, without charge.
It has always
been his intent to transfer his 2-COP state alcoholic beverage
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license to this new location if permitted to do so through a ~~~)
parking space variance.
12. The city's requirement that the restaurant acquire
more off-street parking spaces is factually unnecessary if the
sole purpose of the ordinance is to provide parking for the
restaurant patrons.
At the old location, parking was never a
problem.
Likewise, no problems exist at the new location.
As
the restaurant no longer seeks to expand, the major differences a
parking variance would make are that Mr. Mayes could charge for
the beer and wine served and use his 2-COP license.
13. . When Appellants proceeded through the first phase
of the approval process to obtain a decision' from the Planning
and Zoning ~oard, their conditional use application met with
-'"
approval.
It was determined, however, that the preliminary ..j
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approval would be subj ect to the obtainment of a parking space
variance, which needed to be decided by the Development Code
Adjustment Board. Accordingly, the application proceeded to the
second phase. . If granted in the second phase, Appellants would
go to the city commission for a ,variance from the separation
require.ment.
14. The application for a variance that removes the
requirement for 16-17 additional parking spaces to enable the
sale of beer arid wine on premises was denied by the DGvelopment
Code Adjustment Board and this appeal followed.
15. The appeal was filed based upon the allegation that
the de.cis ion of the Development Code Adj ustment Board deparU
from the essential requirements of law.
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16. The Code of Ordinances of the city of Clearwater
requires additional parking for establishments with alcoholic
beverage licenses, which by nature of their license only, can be
converted from restaurants to taverns or night clubs.
17~ Mr. Mayes' restaurant, which is subject to the
additional parking space requirement because of the type of
alcoholic beverage license he seeks to' transfer, is already
prevented from converting to a tavern or a n'ight club by virtue
of the restaurant's location in the CR-28 zoning district.
'18. In the CR-28 zoning district,
all alcoholic
beverage sales for consumption on premises shall be located only
within a hotel or motel in conjunction with a 4-COP license or
within a restaurant deriving 51 percent or more of its gross
revenue from the sale of food and non-alcoholic beverages.
1:)
19. The restrictive requirement that a 2-COP license be
used solely to accompany a restaurant business, as opposed to a
tavern or night club in the special CR-28 zoning district, is
balanced by the Clearwater code provision that reduces the
required number of parking spaces by 50 percent for Clearwater
Beach locations and the opportunity to have a business that sells
alcoholic beverages in a resort commercial district.
20. The 2-COP license was acquired prior to the
restaurant's move to its current location. If Appellants request
for a parking space variance is denied, Mr. Mayes' application
for transfer of his beverage license to a new location will
likely be denied by the state, pursuant to Section 561. 331,
,0
Florida Statutes.
7
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21. The request for the variance is based primarily on f~~1
Mr. Mayes' desire for greater financial return on his business
and to keep his 2-COP license attached to the restaurant.
22. The Development Code Adjustment Board has granted
parking variances to other 2-COP restaurants before and after
Appellants' application in the same zoning district. These
variances were based 011 applications and evidence presented at
Board hearings.
CONCLUSIONS OF LAW
The Division of AdrnirHstrative Hearings has
jurisdiction over. the parties and the subj act matter of these
proceedings.
Procedures for conducting appeals from the Development
Code Adjustment Board are contained in Section 137.013 of the
Land Development code of the city of Clearwater.. In the appeal
proceedings, the burden is upon the Appellants to show that the
decision of the Development code Adjustment Board cannot be
sustained by the evidence before the board and the hearing
officer, or that the decision of the board departs from the
essential requirements of law.
Under Section 137.013 (f) (1) of the Code, the appeals
proceeding is not a de novo hearing of the evidence. Instead,
the appeal hearing officer is required to render a decision based
upon the application and evidence presented at the board hearing,
as \Isupplemented by. such additional evidence as may be brought
before the hearing officer."
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Except for the new evidence which demonstrates that the
Board granted a parking space variance request made subsequently
by another restaurant with a 2-COP license in the area, evidence
presented at this appeal hearing was not substantially different
from that presented to the board.
The new evidence does not
undermine the Board's decision in this case because the
subsequent application for a variance by another restaurant was
found to meet the standards for. approval found in the Clearwater
Land Development Code.
If the Board acted improperly in that
proceeding, the Appellants are required to seek their remedy in a
different forum.
Section 137.012 (d)' of the Clearwater Land Development
Code Standards for Approval, provides that variances may not be
approved unless the application and evidence presented clearly
support the following conclusions:
(1) The variance requested arises from a
condition which is unique to the property in
question and is neither ordinarily or
uniformly applicable to the zoning district
nor created by an action or actions of the
property owner, predecessor in title, or the
applicant. Any mistake made in the execution
of a building permit or work performed
without the benefit of a permit shall not be
considered to be situations which support the
granting of a variange.
(2) The particular physical surroundings,
. shape or topographical conditions of the
property involved and the strict application
of the provision of this development code
would result in an unnecessary hardship upon
the applicant.
(3) The variance is the minimum necessary
to overcome the unnecessary hardship referred
to in preceding recital II 2 II for the purpose
of making reasonable use of the land.
9
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(4) The request for a variance is not
based primarily upon the desire of the
applicant to secure a greater financial
ret~rn from the property.
(5) The granting of the variance will not
be materially detrimental or injurious to
other property or improvements in the
neighborhood in which the property is
located.
(6) The granting of the variance will not
impair an adequate supply of light or
ventilation to adjacent property, detract
from the appearance of the community,
substantially increase the congastion in the
public streets, increase the danger of fire,
endanger, the public safety in any way, or
substantially diminish:ng or impair the value
of surrounding property.
(7) The vuriance desired will not
adversely affect the public health, safety.,
order, convenience, or general welfare. of the
community.
(8) The granting of the variance will not
violate the general spirit and intent of the.
development code.
Applying the evidence presented to the standards for
approval of variances results in a determination that the
application is based primarily upon the desire of the Appellants
and more particularly, their lessee, to s~cure a greater
financial re.turn from the property.
Hr. Mayes was e>:tremely
familiar with the business area and the zoning when he
reestablished his restaurant as an eatery in the district that
did not sell alcoholic beverages. He knew that the business was
no ~onger eligible for the grand fathering provisions used at the
former business location.
Mr. Mayes is able to maintain a
similar, but less lucrative business at the new locntion because
10
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he serves wine and beer without charge.
When he began business
at the new location without alcohol sales, he had full knowledge
that additional parking would be required by the city if, beer and
wine were sold on premises.
The law, as set forth in the Code, was duly applied and
followed by the Board in its review this request for a variance.
Appellants were accorded procedural due process and the essential
requirements of law were observed. The Board's finding that the
application and evidence presented fails to establish a variance
should be granted because the request was based primarily on the
desire to secure a greater financial return is suppo~ted by
substantial competent evidence. The Appellants had the burden to
establish that the variance request met all of the approval
condi tions and was unable to do so convincingly.
As a result,
the Board's decision was proper.
Based upon the foregoing, it is ORDERED:
That the action of the Board in denying Appellants the
variance of 16-17 parking spaces on Clearwater Beach is affirmed
and the appeal dismissed.
/ It\.
I~ day of August, 1991, in
DONE and ORDERED this
Tallahassee, Leon County, Florida.
(:~F ~
ERONICA E. DONNELLY
Hearing Officer
Division of Administrative Hearings
1230 Apalachee' Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
11
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Filed with the clerk of the
Division of Administrative Hearings
this ~day of August, '1991.
~;~
copies, furnished:
George W. Greer, Esquire
600 cleveland street,' suite 685
Clea~ater, Florida 34615
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'Miles A~ ~ance, Esquire
Assistant city AttorneY
city of Clearwater
Post Office BoX 4748
Clearwater, Florida, 34618-4748
M.A. Galbraithi Esquire
city AttorneY
city of.clearwater
Post office ,BoX 4748
Clearwater, Florida 34618-4748
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