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05/12/1995 - 9:00 AM (2) . . ' ." . . . ".' _~....:..: ~_' ...~.._ __ ... :. . I \ L'. 1- I, . r . < I '. .' . . .: J .I~ > . , . .' . d ".; I .. . . .. . . c " .." .........'... ", .. . I" , . . '. . . HEARING . OFFICER APPEALS . Date o Dervish t3rd:hers ~uie:J f?~ a.r ~tu;je> (A-fY7Z.tt.- )). ~ Ne Iff) B. A-.!:xiu.J I V ) , ~4'63 , , ...........~""v ....--.._--...~.-....*. ." , .----...........~....ll..'.......ttcoL.h...... > .,....-........ ',:,,:"-" ....., .....',,':: '.'::,;...,' ',"".'.., '';':'>''<''',' I, . .' . p ,y ,. '13" ~." '\,\, " ."" " .' , .' \ . . , . , . ~ 11".",' ~ I .. ~ , , . ~ " , . ..' ,.' . ,t. '. ..' I . , . ~ .. ',.,0' ., ..... " ~...~___._._____'_.,..'_.......,._.~::. " , . '" ,..... . '. :. , '. '. . .' , . PUBLIC HEARING BEFORE A HEARING OFFICER r) May 12, 1995 - 9:00 a.m. Dervish Brothers Gallery Restaurant & Lounge (Amza D. & Neim B. Abdullaj) Hearing Officer: J. Lawrence Johnston Also Present: Miles A. lance, Esquire, Assistant City Attorney Scott Shuford, Central Permitting Director John Richter, Senior Planner Patricia Sullivan, Board Reporter Issue: Petitioner contests the decision of the Planning & Zoning Board to deny a permit for on premises consumption of beer, wine, and liquor (expansion) at 1370 Gulf Boulevard, See 19-29~15, M&B 14.04 & 14.05, zoned CG (General Commercial) and OS/R (Recreation/Open Space.). CU 94~84 Appearances: Harry S. Cline, Esquire, Attorney for Appellant Amza AbduJlaj, Appellant Appellant Exhibits: A-1. A-3. A diagram of the Appellant's property An applicable excerpt from the Future land Use Map of the City's comprehensive plan (~ City Exhibits:. 1. Record of proceeding below as required by Section 36.065(5)(c) of the Code Letters in opposition to the application A composite consisting of aerial photographs of the north and south ends of Sand Key 2. 3. Hearing Officer Johnston opened the meeting at 9: 1 2 a.m. and explained the rules governing the procedures. He requested the record reflect that this hearing was properly noticed and all parties have had the opportunity to be properly noticed regarding this hearing. , The issue was whether the evidence sustains the Planning & Zoning (P&Z) Board's decision to deny the Appellant's application for a conditional use permit to sell alcoholic beverages for consumption at the Gallery Restaurant on Sand Key if an outside deck is added to the facility. Mr. Cline indicated the appellant filed an application for a conditional use permit in August 1994 to expand the Gallery Restaurant by adding an outside deck. On February, 14, 1995, the P&Z denied the application. Mr. Shuford indicated the request was denied by a 6w1 vote because of board concerns regarding noise and the proposed dock's location o mho05a.95 1 05/12/95 ~'~lI~J,~W~}..,..,.;.I""'L.......:..' ..~......." ~ ,........'. .... ..u..............~<'_.......~:to.". '....[:_. ..,' .... .' '. :. .':':: 'i",<>,:' '.,:"\,:IX;;',::',::,:::,6':.:' :"" '."; .:,. .. ,:Y,:,::y:,<., ',', '",;;':':':i:,:."','.::;" ',',,, ""'\'''''' ,. ,~"a ".U' ,13,,," U ..",.. ."", ," " ':.'~;.': ,":' :--...:'-, ' .' ,:;, .' '. .", ':,:':'.:,';.. ': "<;,':,;-",>;""r~ '~. ", ~"',,:..'>': ~', _ <.:".',,:<~','.",',~71.:>)''';::::;'' :.~,:<,,:\.,'::.'.',;' "':~:':.'..' .: :-':;.' ," " ' .. ~ j ..' _. . '. ..' _!.-~...;.....:.- L.,~....... ._n_ ,- ~. .j ." " ~ I' - . . . . . ,. ," . " ." I . ,~ near adjoining residential uses. The applicant filed a Notice of Appeal with the City Clerk on February 23, 1995. ! Mr. Abdullaj said he opened the restaurant in November 1977, He wanted to add outside seating on a 1 ,000 square foot deck to provide a natural setting and fresh air for his customers. He said his restaurant has a strict dress code and caters to an upper class clientele. He indicated the restaurant operates from 11 :30 a.m. to 12:00 midnight. He said Hurricane elena destroyed the BOO square foot outside deck in 1985. He said the building's original plans included a much larger deck that was never built. Mr. Abdullaj indicated his restaurant is 60 feet south of the Sand Key Condominium Complex. A huge parking lot and empty lot are north of the restaurant. He said the Crescent Beach complex was built later and is at least 250 feet away. He said a US Coast Guard station is located east of the restaurant, across the street. Mr. Abdullaj said his restaurant is the oldest one on Sand Key. The Columbia Restaurant, Cha Cha Coconuts and the Cabana Club all have outside seating on a dack. He said the Cabana Club is very similar to his operation and the adjacent condominiums are closer. Mr. Abdullaj said his restaurant currently has a liquor license. His said the deck will not harm the sand dunes or sea oats or result in environmental consequences. He said he would not allow a spotlight to be directed to the beach. He felt the deck would be an asset to the neighborhood and his patrons would comply with the City's noise ordinance. C) Mr. Lance expressed concern that one of the listed owners, Neim B. Abdullaj, had a criminal record that disqualified him for a liquor license. AmZ8 Abdullaj indicated Neirn Abdullaj's name still remains on the license but other family members have now been brought into the business. He said Neirn Abdullaj lives in Texas and has nothing to do with the business. He said Nairn Abdullaj's name would be removed from tha license in November. Mr. Lance indicated the change of ownership would require the restaurant to apply for a new conditional use permit. Mr. Lance expressed concern that the police have been called several times regarding problems in the restaurant's parking lot. Mr. Abdullaj said he cannot keep trouble makers out of the parking lot. Mr. Lance indicated the restaurant's parking lot has been the scene of excessive noise and rowdiness requiring Police enforcement. Mr. Abdullaj indicated the last event included two male customers trying to help remove a disruptive person. Police were called when someone started bleeding. The event was over by 9:30 p.m. Mr. Lance indicated brawls would disqualify a business from retaining its alcoholic beverage license. Mr. Abdullaj said he is very careful about noise levels and is considerate of his neighbors. Mr. Lance recommended against the proposed deck. He said the ?&Z considered the loud music and behavior that would occur on the outdoor patio deck. Mr. Abdullaj said the patio would be used primarily during daylight hours. Mr. Lance stated police calls to the restaurant have been for theft, simple burglary, burglary, criminal mischief, shoplifting, etc. Mr. Abdullaj said none of the problems listed were for violations of the noise ordinance. The occurrences were not his fault and he had initiated most of the calls. u mho05a.95 2 05/12/95 >:,:_.., ..... . ,:,'.'" < ......:;:.:i':,..;:~' ...r.:..i\'...../',i.:. ,....... '.. ::;;: ','.. ..'.; .':. ,~"j':'."l :".:,;"'......,..... ,."', ',", , I"~"~ ," I .:'.3, ,,,U, , 8" L ,'," ,,'. ". '. ',.~ -',...." ',"-1' <', ;-:',',.'~,..,:,..,:.,.r :,:,~'~n. "I'~'" ,,;.=1 " >. ,..,' :.""'1" ,. ~ , .' r) Mr. Lance said the request does not satisfy the City's Standards of Approval because the dock would disrupt the surrounding neighborhood and its construction would be detrimental to surrounding property values. Hearing Officer Johnson questioned if the change in ownership was pertinent to this request. Mr. Shuford said Section 41.071 , paragraph 2, subparagraph B states that a restaurant requiring a conditional use permit would require review should any change of ownership occur. He noted under general conditional use conditions in Section 40.424, paragraph 16, it says that restaurants serving alcoholic beverages outdoors within 200 feet of a residential zone are required to obtain a conditional use permit. He said the addition of a new owner would trigger a review. Frank Prescott, President of the Sand Key Condominium #1, said his condominium association opposed the proposed deck. He said original plans for the restaurant building were for a club house. Before the second building was built, the developer went bankrupt and sold the club house for a restaurant. He expressed concern that the deck would be 'detrimental to the condominium's property values. He said the restaurant property is run down and recommended enhancing the exterior. Mr. Prescott expressed concern that trouble would occur at an outdoor bar located close to the water. He said the restaurant has caused frequent noise problems and residents do not always call to complain. He said unit owners are concerned that noise from the deck will be audible in 8th floor residences. Thomas Kenyon said he lives within 200 feet of the proposed dock and objects to the issuance of permits. He said he lives in a residential community and complained about the unclean appearance of the restaurant. He opposed the proposed expansion and how it (~ would negatively affect Sand Key residents. Dr. Glynda Smith said she is a Clinical Psychologist and lives at Crescent Beach. She opposed approval of the deck because of her concerns regarding noise, litter, and crime. She requested Sand Key's serene and tranquil atmosphere be retained. Dr. Smith expressed concern regarding potential personal harm because of a lack of impulse control when alcohol is used. Mr. Abdullaj said no one complains about the Coast Guard station's use of loud speakers. He noted the City allows 24~hour public access to the beach. He said portable toilets should be erected for public use so people would not use his restaurant's facilities. Hearing Officer Johnson requested the parties file proposed final orders within ten days. He said he would issue a formal order within 30 days. Proceedings were concluded at 11 :33 p.m. by Hearing Officer Johnston. u mho05a.95 3 05/12/95 C) STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CITY CLERK DEPT. ,r' . ,.:..~.' ~~'.- '"1"',1'.1. 'r "'''~.. .... ... _ ,_. ",. . c j'.. .... ..,. .. ~ ..' ~ RECEIVED JUN 1 6 1995 ABDULLAJ!DERVISH BROS. GALLERY, Appellant, ) ) ) ) ) ) ) ) ) ) CASE NO. 95-1248 va. CITY OF CLEARWATER, Appellee. FINAL ORDER On May 12, 1995, a final hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings. APPEARANCES For Appellant: Harry S. Cline, Esquire MacFarlane, Ausley, Ferguson, & McMullen Post Office Box 1669 Clearwater, Florida 34617 o For Appellee: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 STATEMENT OF THE ISSUE The issue in this' case was to have been whether the evidence sustains the decision of the City of Clearwater Planning and Zoning Board to deny the application of the Appellant for a conditional use permit to sell alcoholic beverages for .0 consumption at the Gallery Restaurant on Sand Key if a outside deck is added to the facility. However, a threshold issue is whether an appointed hearing officer has jurisdiction to decide the case. ',' , , . ~ . .' . ~ ... c. '. . I" 'I' .' " ,,_~___'_~~'~.__"H.."'> " \ .. I' , .:', '.' .. ~~'~' ~~i ~ .:. ~ ~., :.~ ~ .~ ~.l < . r I I ~ " I ! L. '.' : , .~,.; :~:& t.1. ~ '. --~. ~ .~.... PRELIMINARY STATEMENT The Appellant's desire to expand its Gallery Restaurant by adding an outside deck necessitated the filing of an application for a conditional use permit. The application was filed in ~~ . 1 August, 1994. The matter was presented to the Planning and Zoning Board (the Board) for decision at its meetings on October 18, November 1, and December 13, 1994, but was continued each time. Finally, at its meeting on February 14, 1995, the Board considered and voted to deny the application. On February 23, 1995, a Notice of Appeal was filed with the City Clerk for the City of Clearwater. On March 13, 1995, the City forwarded to the Division of Administrative Hearings (DOAH) the Notice of Appeal, together with a copy of the record of the proceedings before Board. An Initial Order was entered by the Director of DOAH, and the parties filed a Joint Response to Initial Order requesting that the case be scheduled for hearing. On April 6, 1995, a Notice of Hearing was issued scheduling the case for final hearing on May 12, 1995. At the hearing, the parties called witnesses and had documentary evidence admitted in evidence as exhibits. When the evidence was concluded, the parties were given ten days in which to file proposed final orders. At the final hearing, the record of the proceeding below was received, as required by Section 36.065(5) (c) of the Code, as City Exhibit 1. Additional evidence also was received, as permitted by Section 36.065(5) (d) and (6) (a) of the Code. Letters in opposition to the application were received as City ~ 2 /,>::: :" ;: '" ::,', :;,'.:1.:" \".~, .:,." : ';:,:. .'.', .:. ':, ':.: ;", ,':':; .",':. :, \,:. .: ~": ":~:: :'..' ~:,(. :: ;:,::" ":';;."::' .' ~:'~::,;':y: ' .... ,:!~:: :!,,/:,:,:';:.j'.::~ '::. '~:':',">:',:, ::.:~ ":,: .f,' ',: :,', :':. ::': :,-:. ':: : <':. " >: ....:<: :,',:; ::.::'.:?, ::.:.:: .~:.,:, ~':~~' :~::: >,' :"; :: .,""_.,",..,",.".,',.".\.,",.,",...,."..,..,...,.,',.,..,..,.", ~',: .:. .'\. ~ ".;. ":1/:", -:~: ~ ~~.. ., ':':.~... <::/:~:., t .... ~'~ ".::, ':"~, I::':' . : .. ....,:~ .~. '~I<" '...:: '.: :: ',t...' ::' ;', ':' .} .' :'. ~ '~"8: '. ' .: . . ~.". ", 8' t' ~ ".+ . .. ~.,:..>:;' J,:.~ .: . \ ;.....~ ~': ::.~>>:'-(.:'~,. .}t'-"': .;~.- . "., '" .. ).1" '....'.' ',.~~:~\.".., ~....., ,'" ',"H, ~1,. , .."..... ..... , (..:/:, ::::'\.''''.'..I,:':~'\,' ;'.'::.,: .).:,)~; :::,:,;': :,>.~.",:, ~:<::,:':.:'/::' g'..>,::',:i:;,""::'~';3.';~,;:,.::'i::::. _ ."'\ ,:: '. .:...: '<:,:.:~",~,:~!:~:",,:':,:':: ~.:/.::'.; ~,,:,:,;,;..:<:.:,;::.:':~,.":<.~,~./:: :'~ ~ o o r . -, ~ .' ". . I. , .1 Exhibit 2, and a composite consisting of aerial photographs of the North and South ends of Sand Key were received as City Exhibit 3.. A diagram of the Appellant's property was received as Appellant Exhibit A-1, and an applicable excerpt from the Future Land Use Map of the City'S comprehensive plan was received as Appellant Exhibit A-3. Testimony of Amza Abdullaj and of Scott Shuford also was received. Summations were heard, as permitted by Section 36.065(5) (b) of the Code. In addition, the parties were permitted to file post-hearing proposed findings of fact and conclusions of law under Section 36.065(5) (h) of the Code. At no time in this proceeding, through the filing of proposed final orders, did either party raise any question as to subject matter jurisdiction. (To the contrary, the Appellant's proposed final order contains an explicit proposed conclusion of law that DOAR has jurisdiction under Section 120.57(1), Fla. Stat., and Section 36.065, Clearwater Land Development Code.) On June 8, 1995, the hearing officer initiated a telephone conference to discuss the issue of jurisdiction. By agreement of the parties, a telephone hearing on the issue was held on June 9, 1995. The parties concurred that there was jurisdiction and, after presenting of their arguments, declined the opportunity to further brief or argue the issue. FINDINGS OF FACT 1. The Appellant's desire to expand its Gallery Restaurant by adding an outside deck necessitated the filing of an application for a conditional use permit. 2. The application was filed in August, 1994. The matter was presented to the Planning and Zoning Board (the Board) for 3 ;<~...~.:,...\ ..c:.~, ,:1'11;"'" >. : . " .'. I :.' .', .....,_......:...-'_~_~....P.!L.;........:.~ ::. \,',":","'. ..'..:.... .~.~I ,....: '. .. ... . .' decision at its meetings on October 18, November 1, and December 13, 1994, but was continued each time. "'-.. ~ \ 3. Finally, at its meeting on February 14, 1995, the Board considered and voted to deny the application. 4. On February 23, 1995, a Notice of Appeal was filed with the City Clerk for the city of Clearwater. CONCLUSIONS OF LAW 5. Appeals from decisions of the Board are governed. by Section 36.065 of the Code, which provides in pertinent part: (1) puroose and exception. (a) 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. In particular, it is intended that such administrative relief be provided in the most professional, objective and equitable manner possible' through the appointment of a hearing officer to adjudicate matters as provided in this section. 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. (b) As an exception to the foregoing, appeals of conditional use decisions rendered by the planning and zoning board regarding the sale of alcoholic beverages shall be made to the city commission. All of ,the following provisions and requirements relating to applicability, filing, administrative responsibilities, conduct of hearing, and decisions shall remain the same and shall apply to such appeals, except that the appellate authority shall be vested in the city commission rather than a hearing officer. u 4 ',\'~,'_' ..' ....... .....,........ '. '.' "";':.. .::.~< .... .....\..:i,:..~.:,:i;.,:./ <:;:::'L..'/:.'\:; H; ....:; ". . ....: .,';', , .' ;' PI' , -' , """." :_'~=t, , L.J..,~' , ,. f I ,.' " ,. , . , " ':, ',." ,.'. :/ ,>\,'.'-:f '":':.;',,,' ':'.'.':: "~::-..,:' ~ ~:' ':.'::, : ~: '?~7l:":' . '.:. ~ ,:' ":" ." ,". .: ,", '-,;':...... .'." :", I"' .', '." ; . ',"'" :', ~ o o ~ ~ I. It is clear that, under Section 36.065(1) (b) of the current Code, an appointed hearing officer would have no jurisdiction over this proceeding. 6. Paragraph (b) of Section 36.065(1) of the current Code was added to the ordinance on or about January 19, 1995. Ordinance No. 5754-95. The parties take the position that, because the Appellant's application was filed in August, 1994, and because the Board continued the matter at its meetings on October 18, November 1, and December 13, 1994, the Appellant has , a vested right to the appellate procedure in place as of those dates. 7. Subject matter jurisdiction may not be conferred by agreement of the parties, and it is necessary to decide the issue as a matter of law. See Gulf Amer. Corp. v. Fla. Land Sales ~oard, 206 So. 2d 457, 462 (Fla. 2d DCA 1968). 8. Generally, the same rules applied in the construction of state statutes are employed in the construction of local ordinances. See Rinker Materials Corp. v. North Miami, 286 So. 2d 552, 553 (Fla. 1973). It is clear that retroactive or retrospective statutes are invalid if they impair the obligations of contracts or vested rights. In addition, regardless of the constitutional requirements, statutes affecting substantive rights and obligations are not construed to have retroactive or retrospective application unless the legislative intent is clear. See Alamo Rent-A-Car v. Mancusi, 632 So, 2d 1352, 1358 (Fla. 1994); Fleeman v. Case, 342 So. 2d 815, 817 (Fla. 1976). But there is no vested right to a particular remedy or mode of 5 procedure, and remedial and procedural statutes generally are applied to pending cases. See Griffith v. PIa, Pa4o~ Probation Comm'n, 485 So. 2d 818 (Fla. 1986); Endress v. Dept. of Corrections, 612 So. 2d 645 (Fla. 1st DCA 1993); Rothermel.v. ,""-"" " Fla. Parole & Probation Comm'n, 441 So. 2d 663 (Fla. 1st DCA 1983); Johnson v. State, 371 So. 2d 556 (Fla. 2d DCA 1979) . 9. Contrary to the positions taken by the parties in this proceeding, it is concluded that, when the City Commission changed Section 36.065(1) of the Code and took exclusive jurisdiction of appeals from conditional use decisions regarding the sale of alcoholic beverages, the City Commission intended that the new procedure would apply to all such decisions, as of the effective date of the ordinance change, regardless whether the application was filed, or even whether preliminary proceedings had been held before Board, 'prior to the procedural change in the law. As would be the case with a statute making a similar procedural change, the Appellant had no vested right to the prior procedure, and no vested rights of the Appellant are destroyed by following the new procedure. DISPOSITION . Based on the foregoing Findings of Fact and Conclusions of Law, 'this appeal is remanded to the City Commission for further proceedings. u 6 , > ~: L~ .,-:. ~ , .. "." . . ~. ::.: .~. . Hearings I" ~ . . ../' , , ~ .,.' - >, , , Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1995. COPIES FURNISHED: Harry S. Cline, Esquire MacFarlane, Ausley, Ferguson, & McMullen Post Office Box 1669 Clearwater, Florida 34617 ~ Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box ,4748 Clearwater, Florida 34618-4748 Cynthia Goudeau City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 NOTICE OF RIGHT TO APPEAL . . A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rule of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. ~ Final Order, Case No. 95-1248 7 , . - ;. .\: . : ,;"."'. :\. ,,'; . ".'