11/19/1991 - 04:00 PM (2)
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HEARING
OFFICER
APPEALS
Date
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PUBLIC HEARING BEFORE A HEARING OFFICER
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November 19, 1991 - 4:00 p.m.
Nostimo, Inc., D/B/A Pick Kwik Food Stores, Inc.
vs. City of Clearwater and Palm Pavilion, Inc.
Hearing Officer:
J. Lawrence Johnston
Also Present:
Scott Shuford, Planning Manager
Gwen J. Legters, Staff Assistant II
Issue:
Nostimo, Inc., FL Corp.! Pick Kwik Food Stores, Inc., request for a
conditional use to permit alcoholic beverage sales/package sales at 32 Bay
Esplanade, Lots 8, 9. 10 and 11, Elk 8, Clearwater Beach Sub. Rev. Plat,
zoned CB (Beach Commercial District)/Commercial Tourist Facilities. CU
91-40 Case 91-005679
Appearances:
Peter P. Murnaghan, Esquire, Representing Appellant
, E. Jeanne Maguire, Esquire, Representing Appellant
Milton A. Galbraith, Jr., Esquire, Clearwater City Attorney
Harry S. Cline, Esquire, Representing Palm Pavillion, Inc.
Appellant Exhibits: 1 .
2.
Transcript: Planning and Zoning meeting of July 30, 1991
Letter: August 29, 1991 from Clearwater City Attorney to
Pick Kwik
,0
City Exhibits: 1 .
2.
Detail: Zoning Atlas Map of Clearwater Beach
Memorandum: "Suggested Conditions for Reversal"
Hearing Officer J. Lawrence Johnston called the hearing to order at 4:00 p.m. and explained the
rules governing the procedures.
Harry Cline, representing Palm Pavillion, a contiguous property owner, filed a motion to dismiss
based on Section 137.029 of the Land Development Code, stating this conditional use application
is virtually identical to one denied by the Planning and Zoning Board (Board) on July 30, 1991.
Mr. Murnaghan maintained the second application is vastly different from the first. City Attorney
Galbraith expressed no objection to dismissal. The Hearing Officer reserved ruling on the motion.
Scott Shuford was sworn in and explained a Zoning Atlas Map of Clearwater Beach, pointing out
a "bottleneck" where the right-at-way narrows from four lanes to two lanes at the intersection at
Bay Esplanade and Mandalay Avenue. He indicated the area has the highest concentration of
alcoholic beverage establishments on Clearwater Beach and there is concern regarding traffic flow.
Upon cross examination, Mr. Shuford stated Pick Kwik's application was accepted as non-identical
based on the change in hours of operation and the addition of four conditions. He stated Pick
Kwik made an effort to alleviate the City's concerns with regard to the application, there is no
evidence to support the concern that addition of alcoholic beverage sales would Increase traffic
to the establishment, alid the City Traffic EngIneering Department expressed no concern with
regard to the application.
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MINH011C.91
11119/91
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In response to questions, Mr. Shuford Indicated the purpose of the alcoholic beverage separation
distance is to avoid the concentration of facilities harmful to the public welfare as the
overburdening of public resources is a major issue. He stated staff reviewed the second J""~1
application and recommended conditions to the Board that the applicant obtain an occupational
license, applv for a zoning variance, amend the hours of alcoholic beverage sales and hire private
security. It was Indicated the Board recommended a condition prohibiting sales of single alcoholic
beverage containers and It was not known whether or not this condition has ever been placed on
an establishment of this type. Mr. Shuford indicated he is not qualified to determine whether or
not this condition would place Pick Kwik at a competitive disadvantage.
In response to questions, Mr. Shuford indicated approval of the application was recommended, as
staff did not feel the request would overburden public resources or have a negative impact on the
surrounding area. However; he stated, staff offers recommendations in an advisory capacity only.
Mr. Murnaghan requested it be entered into the record that the City and Pick Kwik were in
agreement on this issue.
Mr. Murnaghan submitted a document into evidence compiling conditional use applications
approved by the City. City Attorney Galbraith objected to this compilation as being incomplete
and discussion ensued regarding certain conditional use applications which were not approved.
It was agreed to limit the compilation to the specific time period covered by the Pick Kwik
applications. In response to a question, it was indicated a change in ownership requires a new
conditional use application.
Mr. Galbraith submitted into evidence the Zoning Map of the subject area and a document
suggesting conditions for reversal of the Board's decision. He stated the suggestions are offered
in an advisory context and the Hearing Officer is free to disregard any or all conditions or to add
any conditions. Mr. Murnaghan's objections to both pieces of evidence were overruled.
Discussion ensued with regard to the suggested conditions.
In closing, Mr. Murnaghan gave a lengthy history of the subject application, stating in
June of 1989, staff recommended denial citing traffic & loitering problems and the issue decided
by the Board was whether or not selling alcoholic beverages at an existing store would overburden
public resources. He indicated the City's Traffic Engineering Department had no objection to the
application and two Pick Kwik employees spoke in support of the application. He indicated two
citizens spoke in opposition, fearing their property values would be affected. He felt the Board
was in error in the belief that the conditions for approval were not met and subsequently denying
the application.
Anne Garris, representing a neighborhood association, expressed opposition to the application.
She stated she objects to the sale of take-out alcoholic beverages in this family-type recreation
area of Clearwater Beach.
Athena Mincielli, appellant, spoke in rebuttal to the opposition, stating this business has been in
the family for 25 years and this type of conditional use application is nothing new or out of the
ordinary .
Due to the late hour and the approach of the Thanksgiving holiday, Mr. Galbraith requested 15
days to submit closing arguments.
The hearing was adjourned at 5:57 p.m.
MINH011C.91
2
11/19/91
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NOSTIMO, INC., and
PICK KWIK FOOD STORES, INC.,
Appellants,
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CASE NO. 91-5679
vs.
CITY OF CLEARWATER,
and PALM PAVILION, INC.,
Appellees.
FINAL ORDER
o
On November 19, 1991, a formal administrative hearing
. was held in this case in Clearwater, Florida, before J. Lawrence
Johnston, Hearing Officer, nivision'of Administrative Hearings.
APPEARANCES
For Appellants: Peter P. Murnaghan, Esquire
E. Jeanne Maguire, Esquire
stagg, Hardy, Ferguson, Murnaghan
& Mathews, P.A.
Post Office Box 959
Tampa, Florida 33601-0959
For Appellees: M. A. Galbraith, Jr., Esquire
city Attorney
city of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
Harry S. Cline, Esquire
McMullen, Everett, Logan
Marquardt & Cline, P.A.
Attorneys for Palm Pavilion, Inc.
Post Office Box 1669
Clearwater, Florida 34617
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STATEMENT 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
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, Nostimo, 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.
PRELIMINARY 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,
for off-premises consumption, at the pick Kwik convenience store
at 32 Bay Esplanade, Clearwater, Florida.
During staff review of the applicatior., the applicants
,
offered to agree to several conditions or restrictions in
response to staff concerns. As a result of these agreements, the
parties agreed and stipulated that the only remaining issue was
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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 grant 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
the application was barred by Section 137.029 of the Code. The
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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 record of the
proceedings below. On September 13, 1991, a Notice of Hearing
was issued scheduling final hearing for November 19, 1991.
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
c:> applicable provisions of the Code. See footnote 3, below.
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On September 16, 1991, 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
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Code. Additional evidence also was received, as permitted by
Section 137.013(e) (4) and (f) (1) of the Code. Appellant Exhibits
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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.
FINDINGS OF FACT
1. Appellant, Nostimo, Inc. (Nostirno), owns lots 8, 9,
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10 and 11, Block 8, revised plat, in a Clearwater Beach
subdivision located at 32 Bay Esplanade, Clearwater, Florida.
Appellant, pick Kwik Food Stores, Inc. (pick Kwik), operates a
pick Kwik convenience store at the location.
2. The subject pick Kwik store is located on the
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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
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separated from the mainland by Clearwater Harbor.
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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 \-J
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just south of the s~bject location. From the point at which it
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 anyone time waS,a large crowd.
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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,
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playground and public park. In the area, there are 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 whom use bicycles as their means of transportation.
5. On April 25, 1989, Nostimo and pick Kwik applied
for a conditional use permit to sell beer and wine, for off-
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premises consumption, at the location. The application was heard ,i
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, 1989, upholding the
denial.
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. Frank 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, Manda1ay 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
numbers 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.t1 In contrast,
the police officer distinguished that
situation from 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
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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 nexus 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 7-11 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. To the above
extent, then, the proposed use is
incompatible with the requirements of section
137.011 (d) (6) .
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7. On November 7, 1989, Nostirno and pick Kwik filed a
two-count complaint in circuit court: Count I, a petition for
common law certiorari review of the Hearing Officer's decision;
and count II, 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 II. It was
represented that ~ Final Judgment of Dismissal, addressed to
Count II, was entered on March 22, 1991, and that Nostimo and
Pick Kwik appealed the final judgme~t to the District Court of
Appeal, Second District of Florida, where it remains pending.
8. On April 16, 1991, 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
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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.
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These policies are enforced by pick Kwik through monthly
inspections.
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in evidence at the Board hearing the Final Order entered by the
Hearing Officer in the prior proceeding. See Finding of Fact 6,
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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 Klfik 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."
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13. At the Board hearing, the staff of the City
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Planning and Development Department recommended approval. 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
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between a convenience store selling beer and wine, and one that
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4 The recommendation was subject to the addition of a fifth
condition prohibiting sales of single containers of alcoholic
beverages (other than bottles of beer and wine containing less
than 750 ml). See Finding of Fact 15, below.
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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 beer and
wine across the street from the pick Kwik location, there would
be'onlya 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
genera~e perhaps l2 percent more aggregate revenue.
(This
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approximates the new store's capture of the "leakage" that
resulted when potential customers driving on the 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 0.84 and
o
0.96 percent, at most.
15. The staff's recommendation to grant the April 16,
1991, applicatioh was subject to the addition of a fifth
11
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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 Kwik without
imposing the same condition or restriction at the 7-1~ across the
street would serve no useful purpose. To the contrary, it might
increase traffic problems as a result of customers wanting to buy
single containers at the pick Kwik 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 137.011 of the Code will result
inexorably in an increase in the number of establishments selling
beer and wine, for Off-premises consumption, in 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 Kwik and the 7-11 locations. This would be a
more sensible condition or restriction.
CONCLUSIONS OF LAW
1. section 137.029 of the Clearwater Land Development
Code (the Code) provides that a "property which is the subject of
a denied application" for a conditional use permit "shall not
have another identical application filed affecting any part of
~
12
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such property sooner than" nine months. Although the April 16,
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: "In
any case where a notice of appeal [of a Board decision] has been
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: liThe 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 stip~lated that the first five
standards have been met and that the only issue remaining before
the Board was whether the sixth standard was met. Paragraph (6)
of section 137.011(d) provides:
The use shall be compatible with the
surrounding area and not impose an excessive
13
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'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 Board (Board) are governed by section 137.013
of the Clearwater Land Development Code, which provides in
pe~tinent part:
(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 hearinq. conduct of
the hearing before the hearing officer shall
be as follows.
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*
*
*
(4) The hearing officer shall have the
authority to determine the applicability
and relevance of all materials, exhibits
and testimony and to exclude irrelevant,
immaterial or repetitious matter.
(5) The hearing officer is authorized to
administer oaths to 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 officer shall be based upon the
following criteria and rendered as follows:
(l) The hearing officer shall review
the record and testimony presented
at the hearing before the board and
~
14
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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, II and the record
before the board shall be
incorporated into the record before
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.
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(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
reasonable 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 the~board's decision, and a de
novo proceeding on the other hand, in the sense that additional
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evidence can be adduced at the appeal hearing. In other words,
whether the Board's decision is sustainable under the pertinent
law is tested not only against the evidence presented before it
15
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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 excessive burden or have a substantial
negative impact on surrounding or adjacent uses or on community
facilities or services. Based on the evidence, at most only 0.84
to 0.96 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 7-11. So long as the 7-11
continues to sell beer and wine across the street, this impact
cannot be said to be "SUbstantial," as a matter of law, and any
resulting impact is addressed by the conditions to which Nostimo
and Pick Kwik have agreed.
/
6. Section 137.011(e) of the Code authorizes the Board
to impose conditions and restrictions upon the property
benefitted by a conditional use. Section 137.013(f)(4) of the
Code provides that the Hearing Officer "may impose such
reasonable conditions as the board may have imposed." A
limitation on the duration of the conditional use benefitting the
pick Kwik location, tying it to the. duration of the conditional
use benefitting the 7-11 location, would address concerns
expressed during this proceeding that implementation of Section
137.011 o'f the Code will result inexorably in an increase in the
number of establishments selling beer and wine, for off-premises
~
16
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consumption, in Clearwater Beach and, particularly in the north
end of the Beach. Such a condition or restriction would be a
reasonable condition or restriction on the Pick Kwik conditional
use.
DISPOSITION
Based on the foregoing Findings of Fact and Conclusions
of Law, it is
ORDERED:
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:
(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 the hours of operations fo~ 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; 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.
17
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DONE AND ORDERED this'
b~
day of January, 1992, in
~
Tallahassee, Florida.
Hearings
Filed with the Clerk of the
Division of Administrative
Hearings this ~~~ day of
January, 1992.
COPIES FURNISHED:
Peter P. Murnaghan', Esquire
E. Jeanne Maguire, Esquire
stagg, Hardy, Ferguson, Murnaghan
& Mathews, P.A.
Post Office Box 959
Tampa, Florida 33601-0959
M. A. Galbraith, Jr., Esquire
city Attorney .
city of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
Harry S. Cline, Esquire
McMullen, Everett, Logan
Marquardt & Cline, P.A.
Post Office Box 1669'
Clearwater, florida 34617
cynthia Goudeau
city Clerk
city of Clearwater
Post Office Box 4748 ,
Clearwater, Florida 34618-4748
Final order, Case No. 91-5679
~
18
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mE~3 1992 J~j
CITYClEAK OEPT.J
~
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NOSTIMO, INC., and
PICK KWIK FOOD STORES, INC.,
vs.
CASE NO. 91-5679
CITY OF CLFARWATER,
and PALM PAVILION, INC.,
Appellees.
ORDER AMENDING FINAL ORDER
Final Order was entered in this case on January 6,
1992. On January 23, 1992, a letter was filed jointly by the
Appellants and the City of Clearwater requesting clarification
(:) and reconsideration. Documentation has been filed to demonstrate
that Palm pavi~ion, Inc., does not intend to oppose the letter
request.
The request for clarification and reconsideration is
addressed to the part of the Final Order providing, as the fifth
condition to the conditional use permit, that "the permit shall
expire, without prejudice to reapplication, upon expiration or
transfer of, or app~ication to renew, the permit at the '7-11
store. 11
Contrary to the beliefs of the Appellants and the city,
as expressed in the letter, the fifth condition was not lIdesigned
to address the concern of a 'proliferation' of establishments
selling alcoholic beverages on Clearwater Beach." Rather,
~ although the City did not suggest the imposition of a condition
~
in the nature of the one in question, the fifth condition was
intended to be responsive to the position maintained by the city
throughout this proceeding--namely, that granting the conditional
f
~
I .
use 'applied for in this case would create traffic problems and
loitering and rowdiness problems peculiar to the particular
location in question.
The city's position was rejected because, with the 7-
Eleven selling beer and wine across the street, the impact of
adding beer and wine sdles at the pick Kwik location was de
minimis. Rather than indicating an intent lito restrict the sale
of beer and wine on Clearwater Beach," as the letter request
suggests, the fifth condition attempted only to allow for the
possible consideration, at some point in the future, of the
question whether beer and wine should be sold under a conditional
use permit at either location.1 Unless the pick Kwik location is
required to again undergo the application review process2 the
next time 7-Eleven location is required to do so, the 7-Eleven
location would be able to point to the sale of beer and wine at
the pick Kwik location and make the same de minimis impact
argument that pick Kwik was able to make successfully in this
case. without the fifth condition, it would .appear to be
1 This is not to suggest that there are not also other possible
means, outside the conditional use permit application process,
for the City to address the issue whether beer and wine should be
sold at either location. But jurisdiction in this case is
limited to the pick Kwik conditional use permit application.
2I.e., reapply for a conditional use permit to sell beer and wine
and present evidence that clearly indicates that the six
standards for approval of an application for a conditional use
permit set out in section 137.011(d) of the city of Clearwater U' '
Land Development Code are met.
2
Tallahassee, Florida.
. LAWRENCE J
H ring Offic .
D vision of A ministrative Hearings
he DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
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unlikely that the community ever will have the opportunity, in
I~ the context of the present conditional use permit process,3 to
decide whether beer and wine should be sold at either location.4
Although the fifth condition was intended to be for the
benefit of the city (and the community it represents), by joining
in the letter request for reconsideration, the city has made it
clear that it does not want the fifth condition to be attached to
the conditional use permit in this case. Accordingly, the Final
Order is amended by deletion of the fifth condition.
DONE AND ORDERED this /)9'1i day of January, 1992, in
o
Filed with the Clerk of the
Division of Administrative
Hearings this ~9~ day of
January, 1992.
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3 Cf. footnote 1, above.
4 Logically, and ideally, the 7-Eleven location also should be
required to undergo the application process the next time the
pick Kwik location does, but there is no jurisdiction in this
proceeding to add conditions to the 7-Eleven conditional use
permit.
3
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COPIES FURNISHED:
peterP. Murnaghan, Esquire
E. Jeanne Maguire, Esquire
stagg, Hardy, Ferguson, Murnaghan
,& .Mathews, P.A.
Post Office Box 959
Ta~pa, Florida 33601-0959
M. A. Galbraith, Jr., Esquire
city Attorney
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
Harry S~ Cline, Es~ui~e
,. , McMullen, ' Everett, Logan.
Marquardt&.Cline, P.A.
Post Office Box 1669
'.,Clearwater, F~orida 34617
Cynthia Goudeau
. City Clerk
city of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
I
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"
Case. No. 91-5679
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