04/16/1997 - 1:00 PM (2)
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Hearing Officer
. Wednesday, April 16, ,1997
1 :00 p.m. .
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Stanislaw Budzhiski and Kazimiera Budzinski
. Petitioners
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. City of Clearwater
. Respondent' '
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Petitioners were appealing the Development Code Adjustment Board1s decisi~n.
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The DCAB had denied the Budzinskis' variance 'application. (setback variance to allow an
awnhlg I canopy - 201 S. Gulfview Blvd. - Britt's Cafe - V 97-12) ,
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A court reporter attended this meeting.
The Final Order (13 pages), transcript (90 pages), 1 5 pages marked "Final Hearing It I &
Index (11 pages) is on paper (until microfilmed) in the Hearing Officer minutes notebook.
The Hearing Officer reversed the Board1s decision and granted the variance with conditions.
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
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CASE NO.. 97-1109 ,
STANISLAW BUDZINSKI and
KAZIMIERA BUDZINSKI,
.vs.
CITY OF CLEARWATER,
Respondent.
FINAL ORDER
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A hearing was held in this case in Clearwater, Florida, on
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,April 16, 1997, before Arnold H. Pollock, an Administrative Law
Judge, with the Division of Administrative Hearings.
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APPEARANCES
For Petitioner.:
Milton A. Galbraith, Jr., Esquire
Kutchins, Bishop and Schultz, P.A.
3973 Tampa Road
Post Office Box 1063
Oldsmar, Florida 34677
For Respondent:
Leslie K. Dougall-Sides, Esquire
Assistant City Attorney
Post Office Box 4748
Clearwater, Florida 34618-4748
STATEMENT OF THE ISSUE
The issue for consideration in this case is whether petitioners
should be granted a permit to erect an awning over an existing
deck at Brittts Cafe located at 201 South Gulfview Boulevard, in
Clearwater Beach.
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PRELIMINARY MATTERS
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On February 11, 1997, Liar Hasan, owner and operator of
Britt's Cafe, in Clearwater Beach, Florida, sent a letter 'to
City of Clearwater in which he asked for a variance regarding
set-back of 12.5 feet to allow an awning/canopy 2.5 feet from
South Gulfview Boulevard on the right of way where a 15 foot set-
back is required.
The request was reviewed by the staff of the City's
Development Code Adjustment Board and recommended for approval.
However, the Board voted to reject the application and the
applicant appealed. This hearing followed.
At the hearing, Lior Hason, on behalf of the Budzinskis, the
owners of the real estate, testified in support of the
.~) application. Petitioner also introduced Petitioner's Exhibits
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One through Five. Respondent presented the testimony of Stephen
c. Sarnoff, a central permitting specialist for the City of
Clearwater; John Richter, a senior planner with the city; and
David S. Shuford, central permitting director and development
code administrator with the city. Respondent also introduced
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Respondent's Exhibits A through D.
Counsel for the City requested official recognition of
Sections 36.035, 36-038 and 41.221, and Chapter 45, Clearwater
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City Code. The request was granted.
A transcript of the proceedings was furnished. Subsequent
to the receipt thereof, counsel for both parties submitted
Proposed Findings of Fact which were carefully considered in the
.~ preparation of this Recommended Order.
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FINDINGS OF FACT
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1. Lior Hasan is the oWner of Britt's Cafe, a restaurant
which occupies property owned by the Petitioner's Stanislaw and
Kasimiera Budzinski. On or about December 19, 1995, Harry S.
Cline, an attorney for Mr. Hasen and the Budzinskis, filed an
application for a variance from the City of Clearwater's
Development Code, for the purpose of eliminating three required
parking spaces from the front of the subject property for the
construction of an outdoor cafe at 201 South Gulfview Boulevard.
The Code requires one parking space per 200 square feet of gross
floor area, and a. variance was required to remove three existing
parking spaces from the unit's parking space inventory.
2. The matter was brought before the City's Development
Code Adjustment Board at its January 11, 1996 meeting. Mr. Cline
appeared at the meeting on behalf of the applicant and presented
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the project. No one else was present to speak in support of or
in opposition to the request. However, four letters in
opposition from neighboring business owners were submitted.
Notwithstanding these objections, the Board determined that the
applicant had substantially met all standards for approval listed
in the City'S Land Development Code; and upon vote of the Board,
the application was approved, subject to certain conditions, by a
three to two majority.
3. Mr. Hason entered into discussions with City officials
to determine what was necessary. Official. City,reaction was
initially favorable. Mr. Hasan was advised of the requirements
~ for the project and had plans drawn which called for a deck with
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a.35 to 36 inch railing with landscaping around it, and with
posts and lights. When the plans were submitted to the City
officials, the only change suggested was to raise the railing
height to 45 inches, which was done, after which the City
approved the plane and the permit was granted. The deck was then
constructed exactly according to the approved plans.
4. At some time during 1996, Mr. Hason discussed with some
City employees putting an awning over the deck. During these
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discussions, the City employees sent Mr. Hasan a copy of Section
41.221(1) (c), Clearwater City Code, which provides for awnings to
be removable. Mr. Hasan considered the sending of this Code
provision to be tantamount to a favorable reply to his inquiry,
and, based on that, he finalized his plans for the installation
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of a removable awning.
5. The proposed awning is designed in such a fashion as to
be extendible and retractable on a frame, capable of easily being
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pulled up against the front of the building like a drapery. With
a minimum of further effort, consisting of the removal a several
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bolts, the entire awning construction can be removed from the
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frame.
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6. Mr. Hasan submitted his application for the variance to
install the awning on February 2, 1997. In the interim, the City
employees with whom Mr. Hasan discussed the project changed their
position from favoring the project to opposing it. He was
ultimately advised in:December 1996 or January 1997 that the
awning could not be permitted because an awning could not be
,:J approved over a deck for which a permit should not have been
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issued and for which the issuance was a mistake. Though the
Board had not yet voted on the application, no information was
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given to Mr. Hason as to what he could do to make the project
approvable. His application, on February 2, 1997, was submitted
because, Hasan claims, he had been told, by someone not further
identified, that applying for a variance for the awning would
make everything right.
7. The Variance Staff Report submitted to the Board by the
appropriate City employees acknowledged that the frame over which
Mr. Hason proposed to put the awning does not meet code because
it was constructed within a required setback area from South
Gulfview Boulevard, but since the frame was built pursuant to a
City-i.saued permit, consistent .with ,Ci~y policy, the City
accepted its existence. In its final recommendation to the
Board, the staff concluded that notwithstanding the encroachment
into the setback area, the project "appears to comply with all
standards for,approval, provided attention is given to the
external appearance of the cafe'," The staff then went on to
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recommend approval of the project subject to certain conditions,
all of which, Mr. Hason accepts and agrees to. Nonetheless, the
Board denied the permit by a vote of four to one.
8. Mr. Hason contends that the Board vote was an attempt by
the Board to get back at him because of what it perceived as his
failure to comply with the conditions placed upon the issuance of
the first permit and his alleged misrepresentation of the scope
of his project at the time. Mr. Hason, however, categorically
denies he has done anything contrary to the dictates of the City.
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He went back to City officials many times during the construction
of the deck to make sure the project was built as ,required. . The
majority of the Board members believe, .however, that the deck as
constructed, goes far beyond the limited structure approved by
the granting of the parking space variance in January 1996.
.9. This animosity toward the project can be seen from a
review of the audio record of the February 13, 1997, Board
meeting where, during a colloquy between a Board member and Mr.
Hason, it appeared the member was somewhat put out by the entire
situation. His analysis indicates a less than complete
recollection of the matter, however. Whereas one of the
conditions to the issuance of the initial permit was that the .
area of the outdoor cafe should not be greater than 25 percent of
~~ the indoor area of the restaurant; this member pointed out that
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the 69 outdoor seats were far in excess of 25 percent of the 115
or so indoor seats. This constituted a confusion of seating as
opposed to area. rNo evidence was presented concerning whether
Mr. Hason had violated the area constraint. In the main,
however, while it appeared that a majority of the Board members
were unhappy about the way the project developed, and expressed
the opinion that the project did not conform to what they had
intended to approve, there was no indication any member's vote
was motivated by anything ether than a sincere belief in the
correctness of his position. There was no indication of any
inappropriate or vindictive action by anyone on the Board or its
staff. .
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10. Stephen Sarnoff, a central permitting specialist with
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the City reviewed the plans for the initial construction and for
the current application. As he recalls, the plans for the
initial deck construction did not show any support beams, fans,
overhead structure or latticework fencing, and the decl:, as
built, does not conform to the plans as submitted. City Code
requirements call for a railing of from 30 to 42 inches high.
The c~rrent railing of 45 inches does not conform to that
standard, and Mr. Sarnoff is not aware of any request from the
City that the railing be raised to that height, as Mr. Hason
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. claims. By the same token, while there is no requirement in the
ordinance that a deck be of a certain height, anything higher
than 12 inches. is considered a structure and a waiver is
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required. This deck was approved for 12 inches.
11. A certificate of occupancy is usually issued for a
deck, but in the instant case, such a certificate has not been
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issued because the deck, as built, is not in compliance with the
.1996 approval. If it is brought into compliance, it will be
approved.
12. Sarnoff is aware of and familiar with other outdoor
restaurant decks built at various locations in the Clearwater
"area, as ,indicated by Mr. Hason. Some are not within the CR-28
zone and do not come under the'same standards as are applicable
here. Others, which must conform to the instant requirements
appear to have movable awnings which are acceptable. Still
others are in a different ~oni~g district with different set-back
requirements, and some were initially denied, but were
~ subsequently approved when they were brought into compliance with
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the requirements.
13. John. Richter, a senior planner for the City, was the
individual who. prepared the staff report on the instant project
. and initially recommended approval, contingent upon changes to
the external appearance of the facility. He made suggestions and
has discussed the project with Hason on his several visits to the
property. He did discuss an awning with Hason at some point, but
their discussions did not deal with its mobility. All in all,
Mr. Richter concluded that the project appears to meet the '
standard for approval, provided attention is given to the
external appearance of the cafe.
14. David S. Shuford, the City'S central permitting
director and development code administrator indicated that the
variance required for the awning, which was an integral part of
the .structure already built, was not automatically granted with
the granting of the permit for the deck structure. Section
42.221, Clearwater City Code, was adopted to promote a more
festival atmosphere in some of the outdoor tourist areas. The
intent of subsection (1) (c) of that provision was to require the
use of moveable items and to design structures that would meet
wind requirements and not interfere with.pedestrian traffic.
15. The term "moveable" means what it says, and in
Shuford's opinion, from the plans he saw, the proposed awning
would not be easily moveable on a daily basis. The Clearwater
City Code e'stablishes the area, in question, as one' where,. once.
guidelines are' developed, . :they will be adopted and be complied'
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area, goes beyond what was proposed at the time the project was
submitted for the parking variance a~d was approved. This is
what appears to be the source of the difficulty the Board members
have with it. However, if designed to comply with the
guidelines, this awning could be approved. He would agree with
the conditions outlined in the staff recommendation so far as
they relate to painting and architectural matters.
CONCLUSIONS OF LAW
16. The Division of Administrative Hearings has
jurisdiction over the parties and the subject matter in this
case. Section 120.57(1), Florida Statute and Section 36.065,
Clearwater Code of Ordinances (Ceo).
. 17. Under the provisions of Section 45.24, ceo, an
application for a variance, and the evidence presented in support
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thereof, must "clearly supportrr that the standards called for in
the section have been met. The burden rests with the applicant
for the variance to prove that the standards have been met.
18. When a party appeals from a decision of the City'S
Development Code Adjustment Board, the appellant must show that
the decision of the Board cannot be sustained by the evidence
before the Board and before the Administrative Law Judge, or that
the decision of the Board departs from the essential requirements
of law. See. Section 36.065(6) (c), ceo.
19. In the instant case, the issue for consideration is
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whether the-Board should approve a 12.5 foot variance from a 15
foot setback requirement for the placement of a moveable awning
over the outdoor deck previously approved, albeit perhaps in
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error. Section 41.221(c), ~CO, specifies that an outdoor cafe
shall consist of'moveable tables, chairs, awnings, umbrellas,
canopies or seating,and.the.City staff interprets the term
"moveable" ,as being readily able to be taken in on a daily basis.
While the instant awning is moveable, it cannot be readily taken
in each day without the removal of bolts securing it. It is,
however, as designed, capable easily of being pulled up like a
shade.
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20. Though Mr. Hasan attributes his denial to a vindictive
attitude by members of the Board, and while the transcript of the
Board meeting indicates some obvious pique on the part of one or
more members, there is no indication that the Board's decision
was made out of spite or any other motive save an honest desire
to rectify what it considered to be a prior mistake. However
honest that desire is, however, it appears to be predicated upon
an erroneous assumption that Ms. Hasan is trying to deal IIfast
and loose" with the City and take advantage. This has not been
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21. The evidence clearly indicated that the deck was
approved by the City and though there is some question that the
structure, as completed, might deviate somewhat from the
structure that was approved, in reality the deviations that exist
are not material. At most, the deck railing may be several
inches higher that called for, and there is a frame for an awning
which does not appear on the plans approved for the original
deck~, 'There is apparently no intenti~m to require Mr. Hason to
~) remove the deck or either offending characteristic.
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22. Little if any additional "harm" will occur if a truly
moveable awning is permitted. No additional encroachment on the
setback will occur as.the existing deck, which will remain,
already encroaches under a permit granted previously. The staff
has already taken the position that the decor and color scheme of
the proposed awning is compatible with the decor of the area and
is acceptable. Under the circumstances, provided certain
conditions are applied, it appears to be an appropriate action to
approve ,the variance. These conditions have been identified by
the City and are approved.
'Based on the foregoing Findings of Fact and Conclusions of
Law, it is: '
ORDERED that:
The decision of the Development ,Code Adjustment Board
(.
denying the request for Variance for installation of a moveable
awning over the outdoor patio deck constructed by Britt's Cafe at
201 South Gulfview Boulevard on Clearwater Beach is hereby
REVERSED, and the variance granted subject to the following
conditions:
1. The variance is based on the application
for a variance and documents submitted by the
applicant, including maps, plans, surveys,
and other documents submitted in support of
the applicant's request for a variance.
Deviation from any of the above documents
submitted in support of the request for a
variance regarding the work to be done with
regard to the site or any physical structure
to be located on the site will result in this
variance being null and of no effect.
2. The requisite building permit(s) shall be
obtained within one year.
11
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3~ The external appearance of the caf~ shall
be better integrated into its environment by
methods agreed upon. jointly by petitioner and
Respondent's City manager or designee,
including but not limited to application of a
white stain to the wood structure and/or
utilization of an awning colored to math the
second story motel room doors.
.'
r
" .... ,
4;~ In' the event that the CJ.ty CommJ.ssJ.on
adopts, by resolution, design guidelines for
Clearwater Beach prior to Petitioners'
obtaining any requisite building permit(s)
for the awning, petitioners shall be required
to apply for and obtain approval from the
Design Review Board or any successor Board
serving the same function, prior to obtaining
said building permit(s) .
" '
DONE AND ENTERED this 9th day of June, 1997, in Tallahassee,
Florida.
... .
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ARNOLD H. POLLOCK
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway .
Tallahassee,. Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6947
Filed with the Clerk of the
Division of Administrative Hearings
this 9th day of June, 1997.
COPIES FURNISHED:
Milton A.. Galbraith, Jr., Esquire
Kutchins, Bishop & Schultz
Post Office Box 1063 .
Oldsmar, Florida 34677
Leslie K. Dougall-Sides, Esquire
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
12
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Cynthia ,E. Godeau
City Clerk
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
NOTICE OF RIGHT TO ,JUDICIAL REVIEW
, ..
,A party who is adversely affected by this Final. Order is entitled
. to., judicial review pursuant to Section 120.69, Florida Statutes.
Review proceedings are governed by the Florida Rules 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.
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9
10 .
.
11
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13 . DATE: .
14
15 LOCATION:
16
17
18 REPORTER:
19
20.
21
22
23
24
25
I
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CASE NO.: 97-1109.
Respondent.
I
... .. .... I .
... .. ....
FINAL HEARING
APRIL 16, 1997
1:00 P.M. - 3:10 P.M.
MUNICIPAL SERVICES BUILDING - ROOM 130
100 SOUTH MYRTLE AVENUE
CLEARWATER, FLORIDA
LYNN GEDERS
NOTARY PUBLIC
STATE OF FLORIDA AT LARGE
D & D REPORTING SERVICE
915 CHESTNUT STREET
CLEARWATER, FL
34616
(813) 468-2002
. p' J.
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1
2 Presiding Judge:
3
4
5
For the Petitioner:
6
7
8
1,1 : For the Respondent:
9
".
10
A P PEA RAN C E S .
THE HONORABLE ARNOLD H. POLLOCK
Administrative Law Judge
Division of Administrative Hearings
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
M. A. GALBRAITH, JR., ESQUIRE
Bonner, Hogan & Coleman, P.A.
613 South Myrtle Avenue
Clearwater, Florida 34616
LESLIE K. DOUGALL-SIDES, ESQUIRE
City of Clearwater
Post Office Box 4748
Clearwater, Florida 33618-4748
11
;.
INDEX OF EXHIBITS
12
Page
Petitioner's Exhibit No.1, application
13
2 - 2 - 9 6 for parking . ill Ii- .. . . . .. . .. . . . . . . . . .. .. ill . . . . . . . .. .. .. 17
Petitioner's Exhibit No.2, Code Section
14
41. 221 ....."..................................................... 31
Petitioner's Exhibit No.3, plans for
':r
15 awning - 2 page s ........................................'.......... 31
Petitioner's Exhibit No.4, four pages, seven.
16 photographs .............................'"...........31
i.'
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Respondent's Exhibit A, January 1996 variance
1 7 applic a tion ~.................................................. 36
'!.
Respondent's Exhi~it B, photos of deck taken
18 1/31/97 II............... II . . Ii . ;, . .. . .. .. . .. .. . . .. II . . . . . . .. . .. .. . .... 39
Respondent's Exhibit C, stop work order ... ........ 40
19 Respondent's Exhibit D, excerpt from DCAB
minu te s 1-11:'" 9 6 ................................................. 69
......
20
. .
21
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22 Note: Exhibits not furnished to reporter.
23
I.n
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24
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INDEX OF EXAMINATIONS
. Cros
Redir'Recro
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oir
8
Hason, Liar
. " . . . ... .. . .". . . .. .. . . . . . . . . .
12
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Stephen,. ~ . . . . .... . . ... .. " ~ . . :,,33
Sarnoff,
.45
48
10' Richter',' John.... ..,. ~.,.. .... ~ .....~.. .4~
11., "Shuford" Scott.. .......... "... ...,.... 58
53
63
12' Hason., . Lior
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20
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1
PROCEEDINGS
2
MR. POLLACK: Hearing will come to order. We are in
3 Clearwater, Florida for a final hearing involving
4
Stanislaw BUdzinski and Kazimiera Bus~inski as
5 Peti~ioners versus the City of Clearwater. My name is
6 Arnold Pollock. I've been appointed the Administrative
7 Law Judge in this case for the State of Florida's
8 Division of Administrative Hearings. And this case bears
'.
.9 our Division No. 97-1109.
10 This case is an appeal from the Development Code
"
11
Adjustment Board of the City of Clearwater's decision to
12 deny a variance for Britt's Cafe, which occupies the
13
property in issue owned by Stanislaw and Kazirniera
("-~
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14 Budzinski, to erect an awning over the existing outside
15 deck on the property, which is located at 201 South
16 Gulfview Boulevard in Clearwater Beach. Is that, as I
17 have recited it, the actual dispute today?
'18
MR. GALBRAITH: Yes, sir.
19
MS. DOUGALL-SIDES: It is.
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20
MR. POLLOCK: Because I got it all mucked up earlier
21
in the earlier hearing and felt very embarrassed, so I
22
don't want to do that. Okay. Does either side desire to
23 make an opening statement? Or would you like to jump
24
right into it and present testimony?
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25
MR. GALBRAITH: I'll make a brief opening statement.
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Q
1
MR. POLLOCK: All right, sir.
2
MR. GALBRAITH: For the record, Ilm Milton A.
3 Galbraith, Jr. of Clearwater and Oldsmar. I think the
4 file has both addresses. I'm in transition right now.
5 You can use either address.
6
And the issue,. as you framed it, I think, is the
7 practical, real-world issue before the Hearing Officer.
8 .Technically, the issue before the City Board was whether
9 a setback variance should be granted to permit a
10 structure within twelve and a half feet of the fifteen
11 foot perimeter it set back. But as a practical matter,
12 because of the history of the property. which we'll go
~--')
1........./
13
into when my witness speaks, that issue became rather
14 academic. And the practical, real-world issue is whether
15 a permit should be granted to allow an awning. a movable
16 awning, over the existing deck at Britt's Cafe.
17 I will call one witness who will recount the history
18 for you. There have been two different decisions made by
19 a City Board. He will explain that. The first one
20 granted a variance from the parking requirement to allow
21 a deck to be built in three parking spaces. He, in fact,
22 got the building permit to build a deck. He got the
23 permit to build it the way it exists today. He then went
.~
24
back to the Board. And weill get into some more details
,
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25
of why he.went back to the Board for the variance to
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6
1 allow this movable awning over the deck, and in the
2 second trip to that Board, and the decision of the Board
30n the second trip to that Board, which is the reason why
4 we're here today.
. i
5
MR. POLLOCK: That's it?
6.
MR. GALBRAITH: That's it.
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, .
7
MR. POLLOCK: Let me point out one small thing. You
8 used the term "Hearing Officer." In the last session of
9
the legislature, . they gave us no pay raise, but did give
10 us a narnechange. And if I'm not going to get paid, at
11 least I'm going to get the name. The title is
12 . Administrative Law JUdge. Now, as I said, without the
;,1
13 pay, it doesn't mean a thing. But it just sounds better.
14
Okay?
, "
15
MR. GALBRAITH: I apologize. Force of habit.
. .
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16
MR. POLLOCK: I understand.
" .
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17
MR. GALBRAITH: I congratulate you on your new
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18 title. Even if the pay isn't better, the title sounds
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19 great. And I will try to break my bad habit.
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20
MR. POLLOCK: No problem. Okay.
.........
21
MS. DOUGALL-SIDES: And I will as well, your Honor.
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22
MR. POLLOCK: Miss Dougall-Sides, do you want to
:':,"
23
make an opening statement now?
Or do you want'to reserve
~'>.' :
24
for your side?
I'
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25
MS. DOUGALL-SIDES: Yes, I'll make an opening
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statement now.
2
MR. POLLOCK: Okay. Go ahead.
3
MS. DOUGALL-SIDES: This case involved an original
4 approval of a variance back in January of 1996. That
5 application was required because the applicant wished to
6 build a deck, and in doing so would lose three parking
7 spaces. So it came before this same Board, our
8 Development Code Adjustment Board, in obtaining that
9 parking variance of three spaces.
10 The Board placed some conditions on the grant of
11 approval. one of which was a standard condition that the
12
application
or the approval was tied to the
/'"......
. \
13
application in the plans that were submitted with it and
14 all the documents and testimony. And another being that
15 . the applicant would comply with the City's outdoor cafe
16 ordinance and other code requirements.
17
Now, following that variance approval, a building
18 permit was obtained, and the deck was constructed. The
19 permit authorized work or was signed-off on by our
20 Central Permitting Department. And it did authorize
21 work, which, looking at the plans for the permit, would
22 have been beyond the scope of what DCAB approved. And
23 the City admits that it probably should not have signed
~
24
off on those plans, but it did.
25
The deck was then constructed. And when it was
, ", I'~. .'.,' I' .' . II: .", . '..' . ; '.', .:. . . . I , .' . ~ .' :. : . .'/ . . :'.
8
1 completed, it had certain features which were not put
2 before the DCAB Board. Mainly, it had lattice work on a
3 side wall structure. It had support posts, which perhaps
4 would be sufficient to support a ceiling of some type.
5 And it had a ceiling-type framework with apparently
6 electrical outlets for ceiling fans or lighting fixtures
7 on the top of it.
S '. At that point, it becams appar,ent that an awning was
9' to be installed over the top or roof area of the deck.
10 And the City did issue a stop work order at that point,
11/ and required the property owner to come in and request a
12 variance for the awning itself. The City's position is
13 that while the outdoor cafe ordinance might allow a truly
,',
14
retractable or movable awning, as it allows movable
15 chairs, movable umbrellas, and other items which can be
16 set out and then taken in,. that the fixed roof-like
17 awning, which seemed to be contemplated here would
.18 require another variance. And the property owners
19 apparently agreed, because they did apply for a variance
20 and went before DCAB again for a second time.
21 The staff report, issued by Mr. Richter, was
22 favorable if attention was given to the external
23 appearance of the awning. And he made some suggestions,
24
which you'll find in the record in the staff report:
~~
25 namely, that the wood structure could be stained white,
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the awning could be colored to match the second-story
2 doors on the building. And he said, "There are many
3 other options" in his report. The report notes that "the
4 applicant displayed a willingness to work with the City."
5 And things were proceeding well at that point.
6
However. when it went before the Board. they did
7
deny the varian~e application 4 to 1. And the Board
8
expressed some concerns that.the applicant hadn't
9 followed that Board's previous instructions. that the
10 reasons given in the minutes -- which you also have in
11 the record -- were that the area might turn from a deck
12 into a more enclosed structure and becoma more permanent
13
restaurant seating. that it may increase the
14 nonconformity in the area on the appearance of the awning
15 in relation to the rest of the building and the
16 surrounding buildings. And that if the Board approved
17 this variance, I think they thought that they would.
18 essentially. be nUllifying their previous action. So
,
19 they did turn the applicant down 4 to 1.
20 The City would submit that the decision of the Board
21 is supported by the evidence and that the applicant
22 hasn't met. at this point. the standards contained in the
23 variance chapter of the code, Chapter 45, for approval;
24
namely. that there are no special circumstances
25 applicable to the property or the awning itself that
. . " .':".: I' .~":. ". . ;" " I ',. " .....", I. ...' ;' '. ;. '. ~ I . ..",' ....', ;." Jo :. ., . .' .
10
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8
9
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13
14
'15
16
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18
19
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21
22
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25
would justify granting the variance. Also that the
applicant is not being deprived of reasonable use of the
property as is required under the code. And that,
apparently, .there is a successful outdoor cafe area
operating without an awning. And that, perhaps, economic
gain may be the motivating factor here to, I suppose,
increase customer base.
So the City would submit that the evidence in the
record and to be put forward today would support the
Board's decision.
MR. GALBRAITH:
MR. POLLOCK:
witnesses.
MR. GALBRAITH: Just briefly., I almost objected to
the last moment or two of the opening statement, because
the attorney for the City was speculating as to why the
Board voted the way they did. You've been provided with
an audio tape of their meeting. And I'm sure you will
May I respond?
You may indeed.
Or you can call
listen to that, if you haven't already. And it will
become apparent to you that there were no reasons given.
There was a general statem~nt made that the criteria
had not been met. The City's own staff recommended
approval finding that the criteria had been met. And
there was no evidence, whatever, before the Board to
'support the vote that they took, nor did they explain why
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7
8
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15
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25
11
they voted the way they voted. So to some extent, the
attorney for the City was speculating. But I think I
will let the evidence speak for'itself.
MR. POLLOCK: You understand, of course, that I
don't make findings of fact based on argument.
MR. GALBRAITH: I understand.
MR. POLLOCK: It's strictly evidence. And you also
may have noted that I don't take too many notes during
argument either, because I'm going to wait and hear what
the evidence shows rather than be persuaded at this
point, as to what counsel says at this point.
Opening statement is even less, to me, effective or
probative than closing statement, because I see it only
as counsel's opportunity to tell me what they hope to
prove. The evidence will either prove it or will not.
And the Closing argument would be your opportunity to
pull it together for me. But even closing argument is
just your view of what happens, not what -- necessarily
mine. So okay. You're ready to shoot.
MR. GALBRAITH: Our witness is Liar, L-i-o-r, Hasan,
H-a-s-o-n.
MR. POLLOCK: Okay. Mr. Hason, I'm going to let you
sit where you are. But I will remind you, please, sir,
that you're going to be on the stand, which means you
have to answer the questions that are asked of you
':jF.;., Ie.
12
1 without referring to counsel. He can ask you questions:
2 you answer his questions. Miss Dougall-Sides will ask
3 you questions on cross-examination. You ask -- or you
,4 can answer those questions, but do so without any
5 communication with your counsel at that time. Okay?
., ,
6 Otherwise, I'd ask you to sit here.
7
. L lOR
HAS 0 N
B WAS CALLED AND AFTER BEING DULY SWORN WAS EXAMINED AND
9 TESTIFIED AS FOLLOWS:
10
MR. POLLOCK: Lior Hason, L-i-o-r. H-a-s-o-n. What
11 city do, you live in?
12
THE WITNESS: Clearwater.
,..,.'" .
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13
MR. POLLOCK: Clearwater. All right. sir. Thank
14 you. All right. Mr. Galbraith.
15 DIRECT EXAMINATION
16 BY MR.. GALBRAITH:
17
Q.
Mr. Hason, first would you state your relationship
18 with Mr. and Mrs. Budzinski, who are the petitioners here
19 tOday.
.20
A.
I'm a tenant in their establishment. It's a motel.
21 And I own the restaurant that's underneath it.
22 Q. Did I understand you that the Budzinskies own the
23 property, and your restaurant is a tenant?
24 A. Yes, sir.
l......)
25 Q. And what is your title or position with that
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1 restaurant?
2
Owner of the restaurant, partner-owner.,
A.
3
Did you participate in the first variance petition
Q.
4 that resulted in a variance being granted in 1996 for this
5 property?
6
A.
Yes, I did.
7
And did you attend the hearing of the Development
Q.
8 Code Adjustment Board when they approved the variance?
9 'A... Yes, I did.
10
Q.
What did you understand the Board to have approved
11 when they approved that request?
12
A.
Basically, when I went ~or --'I went for the parking
13 spaces. It was planned over there. I didn't know exactly
14 what the rules -- what I'm allowed and not allowed to do. And
15 that's the instruction I was sure was given to the City. So
16 when I came to the City, whatever they asked for me to dOl
.17 that's what I understand that's what I need to do.
18
When the Board voted to approve the variance for'
,Q.
19 three parking. spaces to construct a deck, did you have any
20 understanding insofar as the design of the deck was concerned?
21
A.
No, no, I didn't.
22
Are you the fellow who applied for the building
Q.
.23 permit?
--.J
24
A.
Yes, I am.
25
And did you bring your building permit with you here
Q.
. '. .':' . , . . .': '.. ~ I. I' ..... ". ~. .,' '.
14
. "
1 today?
2 A. Yes, I did.
3 MR. GALBRAITH: Your Honor, I have here the field
!.4 copy of the building permit. I discussed this with
5 counsel for the City. Rather than give you this -- which
6 has four large sheets attached in a row what I would
7 like to do is give you a photocopy of this card, front
8' and back, and then a portion of one of the sheets, which
9 shows ,some of the details for the design of the deck apd
10 the various materials built over the deck. So what I
11 would like to do 1.s o"ffer what I brought as Petitioner's
12 Exhibit 1.
13 MR. POLLOCK: That's. not the February 3rd
14 application, I take it. February 3rd -- 13th, 1997,
15 that's not the one, is it?
~6 MR. GALBRAITH: This is -- no. This is the
17 application for the building permit, which he obtained
18. after --
i9 MR. POLLOCK: Of what year, sir? Can you tell me?
20 MR. GALBRAITH: 1997.
21 MR. POLLOCK: '97. Oh, I see. This was all done in
22 February. Okay. Because I can't tell. Can you tell me
23 what's the date down here? It says on the bottom. 2,
24 something. 2-2
25 MR. GALBRAITH: 2-2-96. I apologize. I said '97.
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I misspoke. February 2, 1996.
MR. POLLOCK: Do you have any objection to that,
3 Miss Dougall-Sides?
4
MS. DOUGALL-SIDES: Your Honor, the City has no
5 obje~tion. However, I would request that the City be
6 able to supplement the record following the hearing with
7 its own copies of these plans. The plans are out for
8 microfiche, and they're not available at this time.
.9
MR. POLLOCK: I don't have any problem with that.
10 DO you, sir?
11
12
13
14
15
MR. GALBRAITH: None.
MR. POLLOCK: . You can send it to me after you get
it, but make sure you send Mr. Galbraith a copy of the
same thing.
THE WITNESS: We have the original one that's been
16 presented to the Board.
17
MR. POLLOCK: Yeah. But you don't want to give that
18 to me. That will take it away from you. What's that?
19
MR. GALBRAITH: The attorney for the City is
20 referring to the City's file copy, which I tried to find
21 last week. And it had been sent off for microfilm
22 purposes, and who knows where it is today. I believe she
23 wants to send you a copy of their file copy rather than
24
what's known as the field copy, which the owner has.
25 What I've given you is the field copy of the building
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7
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13
14
15
16
17
18
19
20
21
.22
23
24
25
16
permit, to which are attached the plans that went with
the building permit.
MR. POLLOCK: Are the plans going to be included in
what you proposed to submit to me?
MS. DOUGALL-SIDES: Well, my understanding of the
rules are that exhibits should be 8 1/2 X 11 format. So
if your Honor would accept a plan-size copy, that would
be fine. Otherwise, I'll attempt to Xerox portions of
the plans and make them into 8 1/2 X 11 exhibits.
MR. POLLOCK: Well, that's what the rule says. And
I agree with you that's what the rule says.
MR. GALBRAITH: I have two exhibits here that are 8
1/2 X 14.
MR. POLLOCK: I'm not going to exclude an exhibit at
a hearing like this just because it doesn't fit neatly
within the parameters of a file folder that's 8 1/2 XII.
I'd rather not carry back huge -- you know, those foam
boards, and stuff like that, on the airplane. But if I
can get it in my briefcase, I'll accept it.
MR. GALBRAITH: That's why I was offering this
instead of the rOlled-up plans. And I'll be happy to
mail you 8 1/2 X 11 copies.
MR. POLLOCK: Just make sure that -- I'll tell you
what. Rather than do that, why don't you just make sure
yournail me, and to Miss Dougall-Sides at the same time,
,~U,,)
17
o
1
the documents that belong with this exhibit that are not
2 there. In the meantime, give her the opportunity to see
3 what they are right now. And then you can send them to
4 me after the hearing. Is that fair enough?
5
MS. DOUGALL-SIDES: Yesl sir. And I have reviewed
6 the plans that Mr. Galbraith has here today. I'm just
7 not sure that those plans correspond to our file copy
8 plans. . That's what I'm trying to ascertain.
9
. MR. POLLACK: Well, .then let me suggest that I' 11.
10 give you the latitude to submit what you have afterwards,
11 once they come back. And if there's a problem, we'll get
12 together and have a telephone conference hearing and
~~--
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13
resolve the discrepancy between the two sets of plans if
14 you need to do that.
15
MS. DOUGALL-SIDES: May the City then submit a
16 plan-size copy, because it's easier for to us make a
17
MR. POLLOCK: Are you going to mail it to me?
18
MS. DOUGALL-SIDES: Yes.
19,
MR. POLLOCK: Yeah, sure. That's fine. You're
20 going to get it back anyway, because we don't keep it in
21 Tallahassee. That will be fine. But in the meantime,
22 I'll accept this as Petitioner's Exhibit 1, application
23 2-2-96 for parking. Okay.
~
24
(Petitioner's Exhibit No.1 was marked for
25 identification and admitted into evidence.)
'I
I .
18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
BY MR. GALBRAITH:
Q. Mr. Hasan, the plans that you submitted for a
bUilding permit call for what sort of deck? Could you
describe the deck to be built on the plans you submitted?
A. It was a railing around the thirty, around a
thirty-inch, thirty-six, thirty-five inches rail around. It
was landscaping around. From the outside, it was about
thirty-eight inches. From the inside, it was about
thirty-five, ,thirty-four inches of railing around. It was
posts with lights over there. And that's how it looks when I
present it.
Q. And did the plans also show rafters overhead?
A. No. .
MR. POLLOCK: I'm sorry. Did or did not?
.THE WITNESS: Did not.
16 BY MR. GALBRAITH:
17 Q. I'm going to ask the witness to take a look at the
18 plans attached to the building permit to help refresh your
19 memory. Because I think we're
20 A. When I presented the first time to the Board, is
21 that what you are aSking me?
22 Q. No. When you applied for the building permit.
23 A. Oh, yeah, of course.
24 Q. The plans you submitted for the building permit to
25 the City, what did those plans show? How did they describe
~
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19
8
1 the deck to be built under the building permit?
2
A.
When I came to the City, you're asking me?
3
Q.
For the building permit.
4
A.
For the building permit, it -- we -- the way it is
5 now with the -- not exactly roofing
but it was a fan,
.. I 6 electric fan, with a kind of ladder on the top across the
7 whole deck, up on the whole deck.
8
Q.
You said IIladdertl? Are you referring to, like, a
9 lattice-work structure overhead?
10
A.
Yes.
11
Q.
Rafters?
12
A.
Yes. And even when I made it, I made sure we
,
"'_) . . 13 changed it to be a structure that's going to hold. Was from
14 the beginning my plan, but me not knowing that "s allowed or
15 not allowed to do, I was -- we discussed the issue that it's
16 going to be an awning on top of it in the future. So I've
f. .
~;:,
17 been told that I will have to do a heavier construction over
18 there by digging deeper over there to hold a stronger -- and
19 the roofing, this ladder on the top over there.
20
Q.
Did the City ask you to make any changes on the
21 p1ans?
22
A.
Little ones, yes. I don't remember exactly what
23 they were structure-wise.
,:..j
24
Q.
Referring to the railing around the deck, did the
25 City ask you to make any changes to the railing around the
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20
1
2
3
4
5
6
7
deck?
A.
Q.
A.
Yes.
What changes did the City ask you to make?
Raise it from the thirty-five, thirty-six to
forty-five, forty-six. I guess that's what it is now, to make
it higher than what it is.
Q. The City asked to you make the railing taller than
8. the one you asked for originally?
9 A. Yes.
10 . Q. And what became of your building permit application?
11 Did the City approve i.t or disapprove it?
12 A. Approve it.
.13 Q. And did . you', in fact, build the deck in accordance {~.~'\
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with the plans you submitted?
A. Exact way. I even went an inch off either way.
Q. At the time you built this deck, did you have any
reason to believe that you were doing anything illegal or
improper under the City's rules?
A. Of course not. It's not in my power to do anything
that I wouldn't be allowed to do, because I knew that I would
have to take it down, tear it down.
Q. Did you discuss with any City officials during 1996
whether you could put an awning or a canopy over your deck?
A. Yes, I did.
Q. Do you recall who you discussed that issue with?
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1
A.
I don't know. It was either Scott Shuford or Steve
2 Doherty. I don't remember the one. I think it was Scott
.3 Shuford. It was either Scott Shuford or Steve Doherty.
4 Q. It was either Scott Shuford, S-h-u-f-o-r-d, or Steve
5 Doherty, D-o-h-e-r-t-y. May you have also discussed it with
6 Mr. John Richter?
7
A.
I spoke with John Richter about it?
8
Q.
Did you speak with John Richter?
9
A.
No. I don't remember. We spoke just when he came
"
10 to present the
just to look from the outside, look what he
11 wanted to do when he was here.
12
Q.
At some time during the summer of 1996, did anyone
rP"~\
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,
14 .
A.
Yes, sir.
15
Q.
. And did you bring those with you today?
16
A.
Yes, I did.
17
MR. GALBRAITH: I have, your Honor. made
18 photocopies, which I've marked as petitioner's Exhibit
19 No.2. And I've shown this to counsel for the City. And
20 I would offer this in evidence at this time. I have the
21 fax copy for comparison purposes. The photocopy is a
22 little easier to read.
23
MR. POLLOCK: This is a fax copy.
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24
MR. GALBRAITH: Well, this is the actual fax copy.
25
MR. POLLOCK:
Oh, oh, oh.
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MR. GALBRAITH: But the Xerox is a little cleaner.
...~" ~
MR. POLLOCK: Is that 41.221?
MR. GALBRAITH: This is Code Section 41.221. And,
4 in particular, someone emphasized Subsection (1)
5 Paragraph C.
6
THE WITNESS: I got this directly from the City.
"
7 BY MR. GALBRAITH:
8
Q.
Mr. Hasonf I'm going to ask you to read Paragraph C
g' starting. with the words "an outdoor cafe.tI Read the first
.10 ' sentence.
11 A. Okay. "An outdoor cafe when appears on a private
12 sidewalk shall consist of movable tables, chairs, umbrellas,
",,- ,/,.-. ....
13 awning, canopies, or seating. Umbrellas and awning and (
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14 canopies and similar structures shall ,be designed. And it's
15 told to not obstruct with the pedestrian traffic and to meet
16 the wind-resistant requirement of this Code.tI
17
Q.
Mr. Hason, do you remember why somebody from the
18 City faxed this to YOU?
19
A.
For answering my question if we would be allowed to
20 have an awning.
21
Q.
And what did you understand to be the City's
22 position after you read this? '
23 A. I have been told that what I'm getting is actually
24 good :lews. And I will be able to do itf if it's going to be V
25 temporary, temporary or movable.
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1
Movable?
Q.
2
A.
Movable.
3
Q.
What did you do next?
4
A.
I went ahead and, actually being sure about that I
5 had no' problem to get it, I already put a down payment on it.
6 And got the whole -- the whole plan went to. the City. And by
,7 thi~king that will be no problem to get it, presenting the
'8 plans.
9
You refer to plans. Did you bring a copy of the
Q.
10 plans with you today for the movable awning?
11.
A.
Yes. sir.
12
MR. GALBRAITH: Your Honor, again, this is a large.
13
11 X 17, I guess, two sheets of paper, which I have
14 reduced down. Unfortunately, I didn't reduce it far
15 enough. I have 8 1/2 X 14 copies, and, again, I'll be
16 glad to substitute 8 1/2 XII.
17
MR. POLLOCK: This is fine.
18
MR. GALBRAITH: This consists of two pages.
,19 BY MR. GALBRAITH:
. .
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20
Mr. Hasan, what do these plans show?
Q.
21
The plans show the exact way that it's going to be
A.
22. built up on the top of the deck, that it's going to be all
23 movable. And we can, when'we want to, in and out, bring them
24 in and out. It's all made with pins and aluminum, a very
25 light metal, that would be able to be handled in and out.
.,
,
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1
Q.
And who did you give these plans to? Do you
- "'.
2 remember?
3
A.
Yes, I do. Steve Doherty.
4
Q.
What response did you get from the City after they
5 had a chance to review these plans?
6
A.
Well, it was -- their point of view was, in the
7 beginning, that it would be no problem. It would be all
8 right. But they would have to check and check and check, and
9 this checking took a little while.
10
And after the decision carne to me, it was that I
11 won't be able to have this awning, because it's going to be on
. ;
12 the top of something that 's - - ,I'm basically not allowed to
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13 have. And that's going to be the struc'ture that we have that, \.~..,
14' 'I guess, the City 'says that it's a mistake. So I wasn't able
15. to have something that I'm allowed to do on something that I'm
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16 not allowed to have.
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17
Q.
Do you recall when this conversation took place,
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18 when they informed you that the canopy could not be
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19 constructed?
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20
A.
When this -- around December. I believe. Maybe the
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21 beginning of January.
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Q.
Of what year?
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23
A.
December of '96 or January of '97. It was either
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24. the end of December or beginning of January of '97.
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25
Q.
And when was the first time you heard from anybody
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25
.8
1 from. the City that a mistake had been made? Was this the
2 first time?
3
A.
On the awning?
4
Q.
Any mistake.
5
A.
Oh, no. I heard it before. I heard it before from,
6 I guess, the City. But then, you know, not having been asked
7 to do anything~ because it took it their mistakes, their
8 mistake.
9
Q.
Now, at this point, the deck had been constructedi
,10 is that cc:irrec;::t?
11 A. Yes, sir.
12 Q. With the overhead rafters?
,......
, \
! 13 A. Yes, there is.
.....---
14 Q. Under a City building permit?
15 A. Under a City building.
\16 Q. When you were told that a mistake had been made, did
17 they give you any recommendation as to what to do about it?
18
A.
No. It's left up in the air. And I can tell that
19. they didn't like it at all. But it's left in the air. And
20 that's when it's become ,to an actual situation when I got --
21 when I wanted to do the awning.
22 Q. Why did you apply for a variance in, I believe,
.'
.'
23 January of 1997? Why did you apply for a variance?
:J. 24 A. Okay. I applied for a variance because I had been
25 told I was told that that's for me applying for the awning
7
8
" .9
10
11
,12
13
26
1 will take care of the whole problem over there, make
2 everything right over there. The problem that -- the problem
3 that we had, the mistake that we had over there, not me, but
4 the City had over there. So I guess the awning on the top
5 will correct if you're going to allow the awning, it's going
6 to correct the whole issue over there.
/-~
Q~
Was your proposed awning any closer to the street
right-of-way'than the actual deck?
A. No. It's going to be the same.
Q. Would it take up any more parking spaces than the
existing deck?
A. It won't take any more parking spaces, no, sir.
Q. SO you went to the hearing in February on your
k" .....~
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14 variance request. Who.'actended that for the Budzinskies? Was
15 that you?
16 A. Yes, sir.
17 Q. Did anyone appear in opposition to your variance
18 request?
19 ~. Opposition, meaning?
20 Q. Opposing it. Did anyone appear to speak against
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21 your variance application? '
22 A. No. Maybe just the lady.
23 Q. Well, did the staff make a recommendation?
24 A. Yes~ they did.
25 Q. And what was their recommendation?
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1
A.
Favor it.
2
MR. GALBRAITH: Your Honor, there is, I believe, in
3 your file, which the City clerk sent to you I I believe
4 you will find what's called a variance staff report.
5 I've not made another copy.
6
MR. POLLOCK: I wouldn't be a bit surprised.
7
MR. GALBRAITH: I want to refer to it, because it's
8 a critical.'piece of evidence. I suppose I should have
, 9 brought another one to show you.
10
MR. POLLOCK: Well, I know what you're talking
11 about. I have something here that I think is what it is.
12 Let me look at it for a second. Variance transmittal.
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13
This is it, variance staff report. I have it. February
14 13th, 1997.' Staff analysis of request. IS that what
15 you're talking about?
16
MR. GALBRAITH: That's it, your Honor.
17
MR. POLLOCK: I have it.
18
MR. GALBRAITH: I want to refer to that as we go
19 along here, because this contains the staff
20 recommendation, which is a critical piece of evidence.
21
MR. POLLOCK: Go ahead. I'm listening.
22
MR. GALBRAITH: I'm not going to ask the witness
23 here to recount the discussion before the board, ,because
,..)
24
that's on an audio tape. And I'm not going to ask him to
25 try to recall, at this' point in time, the various
....................~~...I.............,
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28
1 . comments made by the board members. And I won't need to
,-"
2 ask him to recount the vote, because that's self-evident.
3 BY MR~ GALBRAITH:
4
Q.
But I'm going to ask Mr. Hason to recount. if he
5 recalls. any of the reasons given in opposition to your
6 request by anyone. Why do you think they voted the way they
7 voted?
'8
MS. DOUGALL-SIDES: Objection.
9
MR. POLLOCK: That calls for speculation. If he
.
,
10
recalls --.
11 .
MR. GALBRAITH: I'll withdraw that question, and see
12 . if I can state it better.
,..
;. .
~..-.....,
13
MR. POLLOCK: All right. Please.
l
,
..-
14 BY MR. GALBRAITH:
15
Q.
Do you recall anyone saying, during the course of
16 board hearing. why they were going to vote the way they voted?
17
A.
Yes, ,I do.
, 18
Q.
Can you tell us what you recall?
19
A.
This vote against was mainly the reason for the
" ,
,
20 decision of -- they said, we knew youtre going to corne back to
21 us. We knew you were going to come back. We knew one day you
22 were going to come back to Us. And wetre goi~g to, like, do
23 -- give you back. like, for what you did. We gave you
24 something; you took advantage, or you didn't do what you were
~,)
25 supposed to do. Now we're going to punish you. And that's in
.' . ~.~.
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29
5 back. No~, it's time to -- whatever is there, now to do
6 something about it.
I.
" ,I
7
Q.
Mr. Hason, did you ever at any time believe. that you
8 were doing something contrary --
+. .,.
9
A.
Not at all. Absolutely not. Exactly the opposite.
.10 I was feeling that everything that was asked and I've been
11 told -- if I ask what I can do, I've been told that I cannot
12 do it, I went and .correct it. I went back and forth many,
.~\
.,): 13 many, many times to the City to make it right with the
14. architect and with the contractors of how to make it right.
,
15 And whenever it was right, that's when we did it.
16
Q.
Are there other restaurants on Clearwater Beach
17 which have outdoor decks with roofs or awnings or canopies?
18 A. . Yes, sir.
19 Q. Have you taken photographs of some of them?
20 A. Yes, sir.
21 Q. And did you bring them with you today?
22 A. Yes.
'23 MR. GALBRAITH: This is going to be marked as
.--.J 24 Petitioner's Composite Exhibit No. 4. And lid like
25 Mr. Hasan to describe briefly what can be found today on
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30
1 Clearwater Beach, which are depicted in these
2 photographs.
3 BY MR. GALBRAITH:
4
First of all, when were these pictures taken?
,-",
13 name of The Palm Pavilion Restaurant. That has an awning (
Q.
5
Last Saturday that it was, I guess, April 14th,
A.
6 15th.
7
And do the businesses in these photographs
are
Q.
8 .they located on Clearwater Beach?
9
A.
Yes.
10
Within the City of Clearwater. Would you describe
Q.
.'11 the photographs on the first page. briefly?
12
It's a restaurant on Clearwater Beach that's the
A.
14 extending off their restaurant. Looks like also a kind of
15 movable awning. And down in the picture, Alex Restaurant in
16 Clearwater Beach that is also an extension awning from the
17 roof.
18
. This goes on several pages. I won't take your time
Q.
19 to have him comment on each picture. But do each of these
20 buildings have an awning projecting out over a deck?
21
Yes, they do.
A.
22
MR. GALBRAITH: Our Composite Exhibit 4, your Honor,
23
consists of four sheets of paper.
And it's a total of
24
seven photographs.
25
MR. POLLOCK: ffilY Objection, Miss Dougall-Sides?
v
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16
17
18
19
20
21
22
23
24
25
,31
MS. DOUGALL-SIDES: No, your Honor.
MR. POLLOCK: All right. It will come in as Exhibit
4. By the way, Mr. Galbraith, did you ever offer Exhibit
2?
MR. GALBRAITH: I thought I did.
MR. POLLOCK: Oh, you did. But was it your .
intention to do so?
MR. GALBRAITH: Yes, your Honor. .
MR. POLLOCK: Any objection, Miss Dougall-Sides?
That's the exhibit from the Code.
MS. DOUGALL-SIDES: No, your Honor. The City will
have a similar exhibit. There has been one amendment to
the Code, to that section since then.
MR. POLLOCK: All right. Then I'll admit
Petitioner's Exhibit 4 as offered. And the same thing
with Exhibit 3, which is the plans. Exhibit 2, I'll
admit. And I'll also receive yours and compare the two.
(Petitioner's Exhibits Nos. 2, 3, and 4 were marked
for identification and admitted into evidence.)
MR. GALBRAITH: Just for bo~kkeeping, we have, I
believe I four exhibits at this point in time?
MR. POLLOCK: That's correct.
MR. GALBRAITH: Plus the variance staff report dated
February 13, 1997?
MR. POLLOCK: That's already a part of the file.
.,
,
32
1
MR. GALBRAITH: It' 5 in your file. . Tha t 's all the
,.-"',
2 questions I have for Mr. Hason.
3
MR. POLLOCK: All right. DO you wish to
4 cross-examine, Miss Dougall-sides?
5
MR. GALBRAITH: Oh, one -- may I? I'm sorry.
6
MR. POLLOCK: Go ahead.
7 BY MR. GALBRAITH:
8.
Q.
Mr. Hason, if the Board is reversed and your
9 application is approved today, are there any conditions that
;, .
10 you would be willing to submit to as part of the approval
11 pr.ocess?
12
A.
Exactly what we've been talking about from the
13 beginning to approve it. If it's any. requirement of making it "-..,
14 look better, I will be more than happy to stand. behind this
15 requirement..
16
Q.
For example, if the City asked you to repaint your
17 deck and structure a different color, would you be agreeable
18 to paint it whatever color the City wants?
19
20
I 21
22
23 .
24
25
A.
I will.
MR. GALBRAITH: . Now I t m through.
MS. DOUGALL-SIDES: I don't have any questions.
MR. POLLOCK: All right. What else, sir?
MR. GALBRAITH: We are resting.
MR. POLLOCK: Now, you have something to do.
\~) .
MS. DOUGALL-SIDES: Yes. The City would call Steve
. .:. ..... :', .. . '", . ,T' :, _ I '. ~ ',' " ., ~ . ".
33
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1
Sarnoff.
2
S T E P HEN
S A R N 0 F F
3 WAS CALLED AND AFTER BEING DULY SWORN WAS EXAMINED AND
4 TESTIFIED AS FOLLOWS:
5
MR. POLLOCK: state your full name, please, sir.
6
THE WITNESS: Stephen C. Sarnoff.
I
7
MR. POLLOCK: Is that II V" or "P-h"?
8
THE WITNESS: P-h.
9
,MR. POLLOCK: C. S-a-r
10
THE WITNESS: -- n-o-f-f.
11
MR. POLLOCK: Like General Sarnoff of RCA?
12
THE WITNESS: Yes.
, ,
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13
MR. POLLOCK: What city do you reside in, sir?
14
. THE WITNESS: Clearwater.
, ..
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15
MR. POLLOCK: Thank you. Okay. Miss Dougall-Sides.
16
MS. DOUGALL-SIDES: Thank you.
" .
17 DIRECT EXAMINATION
18 BY MS. DOUGALL-SIDES:
19
Q.
What is your job position, Mr. Sarnoff?
. ','
~~ "
20
A.
My job title is Central Permitting Specialist.
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21
Q.
And what duties do you perform?
22
A.
Among my duties are the preparation and acceptance
23 of variance applications, conditional uses, and land review,
'I;
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24 occupational license review, and special research projects.
25
Q.
Do you review plans for zoning compliance?
."
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1. .
A.
Yes, that is correct.
r".
2
Q.
Are you familiar with the January 1996 variance
3 application for the same property?
4
A.
Yes, I am familiar with it.
5
Q.
And showing you what's marked as City's Exhibit 1,
6 can you i~entify that?
7
A.
Okay. What I have here is a complete variance staff
8 report, along with supporting documents of the variance
9 application itself, along with variance transmittals I where
10 variou~ departments have returned a comment on those requests.
11 And also letters from people interested in the letters of
12 support or opposition to the request are also attached here.
13
Q.
Is that a complete set of documents, to your
14 knowledge?
15
A.
Yes, it is. That's what I'm looking for one thing.
16 I want to make sure it's here. Just a moment, please. Yes.
17 I just wanted to verify that the drawings submitted for the
18 variance were here. And the drawings are here. Yes, it's a
19 complete package. .
20
Q.
Please describe the drawings that are submitted with
'21 that application.
22'
A.
Six pages in, what that is is a partial site plan of
23 the property known as The Beach Place Motel, 201 South
24 Gulfview. And what this drawing does is shows the area of the
25 three parking spaces -- that's between those palm trees of
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35
1 where the proposed'deek.would be.located if the variance would
2 be approved.
3
Q. DO those drawings include uprights or support posts?
A. NOI they do. not.
Q. Ceiling fans?
A. No, they do not.
Q. Overhead structure?
A. No, they do not.
Q. Lattice-work fences?
A. No, they do. not.
,MS. DOUGALL-SIDES: City would offer. that
4'
5
6
7
B
.9
11
12. application as Exhibit 1.
13
MR. POLLOCK: Try "A."
. MS. DOUGALL-SIDES: II A"?
15
MR. POLLOCK: Simply because they're on the numbers.
16 We'll make you the letters. And that way they donlt get
17 confused.
MS. DOUGALL-SIDES: Yesl sir.
19
MR. PO~LOCK: Would you please go over once again
20 for me, for the purposes of my notes, those items.that
21 you asked Mr. Sarnoff about that you felt were not
22 included on the drawings such as -- it started out with
23 posts, fans. And what other?
MS. DOUGALL-SIDES: Yes. Uprights or support posts,
25
ceiling fans, overhead structure, and lattice-work fence.
'. .".' .. ,'.
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36
MR. POLLOCK: All right. Thank you. And.
,-.....
2 Mr~ Galb~aith, do you have any objection to this. sir?
.3
4
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MR. GALBRAITH: No objection, sir.
MR. POLLOCK: Then it will come in as Respondent's
5 Exhibit A.
. 'j
6 (Respondent's Exhibit A was marked for
,
,.
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7 identification and admitted into evidence.)
I:
8 BY MS. DOUGALL-SIDES:
"
9'
Q.
'.')
10
A.
11
Q.
12 plans?
..
,'/ 13 A.
14 Q.
. I
15 A.
16 Q.
17 A.
18 height.
.19 ,
Q.
Are you familiar with the deck as built?
Yes. I am.
.Did it. conform to the 1996 variance application
No.
'- '
IS a railing allowed by Code around an outdoor cafe?
Yes. It's required.
And what is the height which that railing must be?
It's a range of from thirty to forty-two inches.in
Does the current railing meet that height
20 requirement?
21
A.
22
Q.
No.
Did
from your knowledge. did a Central Permitting
23 st~ff. -- did you or other Central Permitting staff ask
24 Mr. Hasan to change the height of that railing to forty-five
.. 25' inches?
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1
I'm not aware of that, no.
A.
2
Under what conditions is a deck allowed in the beach
Q.
..3 commercial zoning district without obtaining a setback
4 variance?
5
Excuse me. It's
correction. It's resort
A.
6
commercial 28 district.
7
Q. I'm sorry. CR28.
8
A. CR28 zoning district. The outdoor deck is allowed
9
under our sidewalk cafe Ordinance 41.221, as long as it
10 doesn't exceed 25 percent of the indoor seating area. It's
11 allowed to be outdoors as long as it be on private property.
12
Is there a height requirement for the deck itself?
Q.
13
No, there's no height requirement for the deck in
A.
14 that ordinance. Just that anything higher than twelve inches
15 is considered to be'a structure. And the deck was proposed to
16 be at the twelve-inch mark, so that it would meet the Code and
17 not require any additional variance for anything that they
18 also wanted to do.
19
Is it normal procedure for a certificate of
Q.
20' occupancy to be issued for a deck?
A.
Yes, it is.
22
Has there been one issued in this case?
Q.
23
No, there has not.
.A.
24
And why is that?
Q.
25
The permit is on hold.
A.
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1
Q.
Why is it on hold?
:/ c
2
A.
The permit is on hold because the way that the deck
'3 was. permitted 'and completed was not in keeping with Condition
4 1 of the variance approval by the Development Code Adjustment
5 Board of the 1996 variance.
,6
Q. ,
So at such time as it is in compliance I what would
, ..
I
7 happen?
:).
8
A.
Okay. If the deck would be in compliance with the
9 original approval of 1996, at that time, if everything else
10 was approved by our Building Inspection Department, they would
11 receive a 'seal.
12
Q.
Are you familiar with the support posts?
, .
13
A.
Yes.
.14
Q.
Do you have any kno~ledge as to how sturdy those
.15 are?
16
A.
My recollection of the original plans were that they
17 were signed and sealed by an architect to be able to meet wind
18. loads.
19
Q.
I'm sorry. To be able to meet --
20
A.'
To be able to meet wind load calculations.
21
Q.
, '
Illl show you what's been marked as City Exhibit B
22 and ask if you can identify that.
23
A.
Yes, these are two' photos that I found that came
24 from a building inspector by the name of Greg Clark. . This is
"-"
25 his file of the outstanding violations for this particular
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1 building permit. He is the one who -- he is the building
2 inspector involved. And these were pictures
photos he took
3 back on January 31st of 1997, two views of this deck with the
4 covering on it.
5
Q.
So to the best of your knowledge, they depict the
6 property as of that date?
7
A.
Yes, that is correct.
8
Q.
And those were in your file?
9
A.
That is correct.
10
, ,
MS. DOUGALL-SIDES: We would offer those photographs
11 as Exhibit B.
12
MR. POLLOCK: Have you seen them, Mr. Galbraith?
13
MR. GALBRAITH: I have seen them, and I don't
14 object. They're nice photographs.
15
MR. POLLOCK: We will mark them as Respondent's
16 Exhibit B for identification and admit them.
17 (Respondent's Exhibit B was marked for
18' identification and admitted into evidence.)
19
MR. GALBRAITH: May Mr. Hason look as those briefly?
20 He didn't get a chance to.
MR. POLLOCK: Sure. Absolutely.
22 BY MS. DOUGALL-SIDES:
23
Did there come a time when the City issued a stop
Q.
24 work order regarding the deck?
25
Yes, it did.
A.
40
1
Q.
And showing you City's Exhibit C, is that a copy of
, .-...
.2 the stop work order?
3
A.
Yes, that is a copy. It came out of the same file
4 that those photos did.
5
Q.
And what 'is the date shown?
6
A.
12-20-96.
7
MS. DOUGALL-SIDES: City would offer this as Exhibit
8 C.,
,;,
9
MR. POLLOCK: . Any objection, sir?
10
.
MR. GALBRAITH: No objection.
11
MR. POLLOCK: All right then. It will come in as
12 Exhibit c.
~'''-.
13
(Respondent's Exhibit C was marked for
14
identification and admitted into evidence.)
I.
15 BY MS. DOUGALL-SIDES:
16
. Q.
Are you familiar with other outdoor cafes in the
17 same zoning district?
18.
A.
Yes, I am.
19
Q.
Are you familiar with the cafes which were just
20 listed regarding Mr. Hasan's photographs?
21
A.
I didn't see what the photographs were. I'll be
22 happy to review them.
23
MR. POLLOCK: Do you have .them? Or do I have them?
~ .
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24
Are you talking about which ones now?
25
MS DOUGALL-SIDES: Mr. Hason's photographs,
.: '\. :"", .: . ,:' .. .: . ~. I . .. I . . \ . .,r, ',..: :.' .
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41
1.
.Petitioner's --
2
MR. POLLOCK: Do you want to let him look at the
3 better --
4
THE WITNESS: Oh, yes. Could I? Thank you. I
5 appreciate that. Thank you.
6 BY MS. DOUGALL-SIDES:
7
Looking at the first photograph, which is marked
Q.
8 Palm.Pavilion, do you know -- are you familiar with that
9 property?
10
Yes. I'm sorry. I missed -- no. This is the south
A.
11 Palm Pavilion, the one across from south Gulfview, not the one
12 that's up north by Rock Point. This is the one that's on the
<=> 13 public beach in the open space recreational zone. It is not
.19 .
!:
14 in .the CR28 zone. Let's see. The Alex Family Restaurant
15
Well, just a moment. On the. Palm Pavilion --.
Q.
16
A.
I'm sorry.
17
-- is that considered an outdoor cafe under the
Q.
18 City's outdoor cafe ordinance?
A.
No, ma'am, it isn't.
20
Q.
And Why not?
21
It is a conditional use and the open space
A.
,
,22 recreational restaurant, snack bar situation. And this was an
I
to
':J
23 existing structure. So it does not meet the same standards
24
that the subject property does.
25
Q. Looking at the next photograph, which is entitled
42
........--..,
1 Alex Family Restaurant, are you familiar with that property?
2
A.
Yes.
3
Q.
Can you compare that with Britt's Cafe in terms of
4 zoning requirements?
5
A.
Yes. Actually, the Alex Family Restaurant is in the
6 same zoning district, CR28. It does have the same
7 fifteen-foot setback requirement as the 201 South Gulfview.
8 The difference with that awning is -- now, again, there has
, ":r .
9 been some work there without permits. Okay? So I'm not sure
10 of what's in the picture, what's legally approved and what is
",
".!,
11 still in violation? Okay?
12
MR. POLLOCK: All right.
".,/
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13
THE WITNESS: So there's some question about this.
~"... . ", >
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14 But that awning, again, from this photo only, appears to
, "
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15 be movable. It appears to be the type that can roll up.
. ~.
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16 But I can't tell for sure from the distance this photo
, '
17 was taken.
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18 BY MS. DOUGALL-SIDES:
".'
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19
Q.
And next, the Waterfront Restaurant on Page 2 of the
20 photographs.
. .
, ,
21
A.
Okay. This property is in the beach commercial
,",
22. zoning district. Again, not the same zoning district as the
23 sUbject property.
"" <
". '.
24
MR. POLLOCK: Which one is that? The Waterfront?
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, .'
25
THE WITNESS: The Waterfront Restaurant, 490
.. y
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43
1
Mandalay Avenue. That's in a different zoning district
2 without the setback requirement. Beach commercial does
3 not have it. Just as an added thing, that particular
4 structure, that was approved with variances and
5 condi~ional use approved, and even at.a City Commission
6 alcoholic separation variance. So that was a lot of
7 pUblic hearings to get that deck with the covering on it.
8 BY MS. DOUGALL-SIDES:
9
does it have all the necessary ~pprova~
Q.
So is it
10 to your knowledge?
11
A.
Yes, it does. The next one is Frenchy's Rockaway.
12 And, again, the deck did go for variances. And the awning
13 over the deck, canopy, did go for variances also. And, in
14 fact, it was denied a variance. And it, actually, came back
15 and they amended the distance of the canopy.
16
Q. .
When you say 'Iamended the distance, II, what do you
17 mean?
18
A.
Okay. That there was a requirement for the coastal
19 construction line, and they had to change the distance again.
20 It.wasn't a setback from a street right-of-way. It was a
'21 coastal construction line, if I recollect correctly.
22
Q.
And, finally, on the last page, Frenchy's Saltwater
23 Cafe.
24
25
A. Frenchy's Saltwater Cafe, again, is in a beach
)
commercial zoning district on Poinsettia Avenue and does not
. . ," . ~ ,r.
. ./""
44
1 meet the same criteria as the CR28 zone.
(<-...~.
2
Q.
Are both Frenchy's currently legal, to your
,
3 knowledge? .
4 A.
5 Q.
6 knowledge?
. ,
7 A.
8 Q.
TO my knowledge, they are.
So they have all requisite approvals, to your
That's correct.
Now, lId like to show you the second page of
,.
','
. ,
. 9 Petitioner's Exhibit 3, which is a drawing depicting "mount
10 detail for cover at Britt's Cafe," and ask whether you recall
'\. ..
11 seeing that drawing in your departmental file.
12 A. No, I don't recall seeing it before.
,.....-....\
13 MR. POLLOCK: Which one is that? I
'-
14 MS. DOUGALL-SIDES: Petitioner's Exhibit 3, second
15 page.
16 MR. POLLOCK: Okay. I have it.
17 BY MS. DOUGALL-SIDES:
18
Q.
Would a plan such as that or drawing such as that
19 require. an engineer's seal or an architect's seal for the City
20 to accept it?
21 A. Yes, it would.
22 Q. Does that drawing show a seal?
23 A. No, it doesn't show that.
24 Q~ So can you verify today whether or not the City did ~
25 accept the drawing, to your knowledge?
. ,"""'1 i"e"' "., . .,','t" .~~. \~'''~,' ;.. " . ".,., :.,' I
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45
1
No, I couldn't. I see no approvals written on here,
A.
2 or nor do.I see a received stamp.
3
Is it the practice for the City to stamp a plan
Q.
4 I1receivedl1?
5
When we issue -- when it's presented to us for
A.
6 permitting purposes, yes.
7
MS. DOUGALL-SIDES: Nothing further.
8
MR. POLLOCK: cross-examine, sir?
9 CROSS-EXAMINATION
10 BY MR. GALBRAITH:
11
,
Mr. Sarnoff, let me refer you back to the 'drawing"
.Q.
12 which is page six of the variance staff report 'from January
...}
"~~'.. 13 11, 1996.
,.
!
I
!
J
I
'~
'24
14
Just a moment. Let me get a copy of that, please.
A.
15
Do you have that before you?
Q.
16
A.
Yes, I do.
17
Now, what was the issue before the Board on January
Q.
18 11, 1996?
19
The .loss of three parking spaces.
A.
20
And does this drawing show the location of the three
Q.
21.
spaces to be lost?
22
A. Yes, it does.
23
What else does it show?
Q.
A.
It shows ,the outline where the decking would be
25 located. And it shows the slats of the decking, so that if I
.3
~ ~ .
10
11
12
46
1 was a in plane looking down here, I would see a deck with
~--.,
2 slats.
Q.
Do you see any language on this page that says,
4 nothing to be constructed above one foot above ground level?
5 A. .Nothing on the page.
6 Q. Is there a prohibition against a safety rail?
7 A. . There's not a prohibition.
8. Q: ' Is there a prohibition against. the posts and rafters
9 that were actually built?
A.
Yes" sir.
Q.
Now, where do you find that?
A.
On the drawing, sir? Those rafters are not shown on
13 the drawing.
I...-l..
14
15
16
17
18
19 .
Q.
Do you see any language that says, no rafters?
A.
I see no rafters shown, sir.
Q.
DO you see a safety rail shown?
A.
No, sir.
Q.
Does that mean a safety rail is prohibited?
A.
No, sir. Our Code, which, again, may I refer back
20 to the first page where it says, "for construction of an
21 outdoor cafe it would meet our outdoor cafe requirement of
22 having the railing between thirty and forty-two inches,"
23 not
., 24
,25
, ~,..-.....~... "'...... """ .: ~ ,. I' . .
_' ~. I. ',".:. I " .. '.' .". " .."'. .
Q.
But, Mr. Sarnoff, if I take your testimony
~
correctly,i! I don't see safety railings on this page here,
< ~ ~I . I . c .
47
o
1 you can't put in safety railings. You're telling me that if
i.
2 you don't see rafters, you can't put in rafters. And I don't
3 see any safety railings. Want to tell us about the one-foot
4 rule for a setback?
5
6
7
8
.9 .
A.
Q.
A.
Q.
A.
Yes, sir.
Where do you find that?
In Section 3511 in the Building Code definition.
And how tall is the safety rail?
A safety rai~? Our Code. in our outdoor cafe space,
10 between thirty and~orty-two inches.
11
12
i
3.
13
Q.
A.
Q.
More than one foot?
Yes, sir.
So would a safety rail on the deck require the
14 structure to be considered a structure for setback purposes?
15
A.
No, sir. Because in our Section 40.221 that was
16. allowed for. as a permitted thing to do.
17
.18
, ,
19
Q.
A.
Q.
41 or 40.221?
I'm sorry. 41.221. Excuse me. 41.221.
Isn't that the same section of the Code that also
20 says, an outdoor cafe shall consist of movable tables, etc.,
21 awnings, and canopies for seating?
22
23
~
24
25
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A.
Q.
A.
Q.
That is correct.
Same? O]tay.
Yes, sir?
Just making sure we.' re reading out of the same code
. .!'.
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..
48
1 book.
I"--~
,2 A.
Yes, sir.
3 Q.
So you're looking at this section. for authorization
4 to put in a safety rail. And Mr. Hason is -- this is
5 argumentative. I'll stop right here. I'll save that for
6 later. Did you write the staff recommendation to the
.7 . Development Code Adjustment Board dated February 13, 1997?
8'
A.
No, sir.
9
I. Q_
Did you have any input into it?
10
A.
I don't recall. .
, .,
11
Q.
Then do you know who wrote the statement that "the
12 frame was built pursuant to the City's permit and the City
,.~
I '
13 accepts.its existence"? Do you know who wrote that sentence?
. .,
14
A.
To the best of my knowledge, it was Mr. John
15 Richter..
16
MR. GALBRAITH: Okay. I have no further questions
17 for this witness.
18
MR. POLLOCK: Redirect?
19
MS. DOUGALL-SIDES: Yes. Just briefly.
.20 REDIRECT EXAMINATION
21 BY MS. DOUGALL-SIDES:
22 Q. Mr. Sarnoff, are you familiar with the conditions
23 which DCAB routinely places on approvals?
24 A. Yes, I am. .....)
25 Q. Is there a condition that's normal for them to tie
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49
. 'r~ 1 the approval to the plans that are submitted?:
. .
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2 A. Yes. Any condition of approval, number one. That
3 is on all variances granted by the Development Code Adjustment
4 Board.
5
MS. DOUGALL-SIDES: I have nothing further.
6
MR. POLLOCK: All right. Thank you. Who is your
,I
7 next witness?
.8
. MS. DOUGALL-SIDES: John Richter.
,.
9
J O,H N
R I C H T E R
10 WAS CALLED AND AFTER BEING DULY SWORN WAS EXAMINED AND
.11 TESTIFIED AS FOLLOWS:
12
MR. POLLOCK: State your full name, please, sir.
"~"'). ,
..
--..'
13
THE WITNESS: John Richter.
14.
MR. POLLOCK: R-i--
15
THE WITNESS: -- c-h-t-e-r.
16
MR. POLLOCK: What city do you reside in, sir?
,17
THE WITNESS: Largo.
18
MR. POLLOCK: Thank you. All right, ma'am. Your
19 . witness.
20 DIRECT EXAMINATION
21 . BY.MS. DOUGALL-SIDES:
22
Q.
What is your job title, Mr. Richter?
23
A.
Senior Planner.
'--J' "
. .
, . .
24
Q.
And in that capacity, what are your duties?
25
A.
I prepare staff reports for the Development Code
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50
1 Adjustment Board and present them to the Board. I also
,---.
2 prepare staff reports for sign variances for the City
..3 Commission. And, in addition, I'll prepare other -- work on
4 other special projects as assigned.
5
Q.
And how long have you been acting in that capacity,
6 as far as you remember?
-7
A.
. Well, I've done so many different things over the
.' .
':/ .
8
years.
I've been reporting to the Code Adjustment Board for
9 ,the past three years. And then there was a period of time
10 where. I previously reported to them for, maybe, ten years.
11
Q.
Did you prepare the staff report for the Britt's
12 Cafe application in Janua~y 19967 ,
13
A.
Yes, I did.
( .
~~ ',-'
14
. Q.
And did you also prepare the staff report for the
15 subsequent application in 1997?
16
A.
Yes.
17
Q.
In that 1997 report, what were your recommendations
18 to DCAB?
19
A.
In 1997, we recommended that the variance that was
20' being requested be approved. But it's noteworthy that we
21 specified that attention needed to be given to the external
,22 appearance of the outdoor cafe. And our approval was ~
23 contingent on that attention.
24
Q.
Did you make any specific suggestions with regard to
~j
25 the appearance?
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51
5 Mr. Rason or the property owner in connection with the 1997
6. application?
7
I think you could say yes. In review of the
.A.
8 variance application, I visited the property and met Mr. Hasan
9 .there. It wasn't anything that was formally scheduled, but we
10 did discuss the variance.
11
Q.
Do you recall discussion at the Board meeting
: 12 regarding the Design Review Board?
13 A. To some extent.
14 Q. What is that board?
15 A. The Design Review Board is a board that consists of
16 citizens who are appointed by the City Commission to review
17 building plans to determine whether or not those plans meet
18 design guidelines for the area.
19
MR. GALBRAITH: Your Honor, I'm going to object to
20 any further questions about the Design Review Board,
21 unless they can connect this up with something relevant
22 to the case before you.
23
24 :.
25
MR. POLLOCK: sounds reasonable to me.
MS. DOUGALL-SIDES: All right. I'll try.
MR. POLLOCK: All right.
....,., r' '. ~' .\......,: ~:." .....:......'.......l. "!...::........(:,I.:I~.' :.........~>:.;.~..:,....
52
1 BY MS. DOUGALL-SIDES:
,.---"'.
2
Q.
Do you recall discussion by the DCAB Board of
3 postponing decision on this application until the Design
4 Review Board could review it?
5 A. They discussed that possibility.
6 Q. And did they decide to so,postpone the application?
7 A. No, they didn't decide to do that.
8' Q. Why was it --
,
9 A~ It may well be that denial of the variance perhaps
10 might cause the owner to
;:
11
. MR. GALBRAITH: I'm going to object on the grounds
, ,
" '
, ..
12 that they are speculating as to what the owner might want
" .
. ,
~ ", .
13 to do.
"
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14
MR. POLLOCK: Well, I don't think we're speculating
. ~ :
15 on what the owner might want to do. It's what the effect
";,
..
16 might be on the owner. Isn't that what you were going to
',I
17 say?
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18
THE WITNESS: Yes, sir.
'. ~. .
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19
MR. POLLOCK: Okay. Go ahead.
~..'..
20
THE WITNESS: It may well be that the effect of the
: I
2.1 variance denial \<lould be that the owner would opt to
'. '
,.
22 submit plans to the Design Review Board. .
/:.
:,.,>
23 BY MS. DOUGALL-SIDES:
. , .
. ..
~ ~ "
.: :~
24
Q.
What, if any, provisions exist in the Code for the
u
>.:~.
25 Design Review Board to review construction in the Clearwater
',,::'<, .1. ..'.
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53
1 Beach area?
2
It may be best if you defer that question to
A.
3 Mr. Shuford. Is that okay?
4
MR. SHUFORD: Absolutely.
5
THE WITNESS: Thatts more in your neighborhood.
6 BY MS. DOUGALL-SIDES:
7
Do you recall faxing a copy of the outdoor cafe
Q.
8 ordinance to Mr. Hason as he's testified he received?
9
, A.
Well, I don't recall doing it. But I certainly
10 don't dispute 'that I did it, seeing my name on that page.
11
Q.
DO you recall telling him ,that he would be allowed
12 to put up an awning under the outdoor cafe ordinance? ,
13
14
15
16
A.
No, I don't recall saying that.
MS. DOUGALL-SIDES: Nothing further, your Honor.
MR. POLLOCK: Cross, sir?
CROSS-EXAMINATION
17 BY MR. GALBRAITH:
18
Q.
Mr. Richter, do you recall ever discussing with
19 Mr. Hasan the issue of an awning or a canopy over his deck at
20 any time?
21
22
A.
Yes, sir, I do.
Q.
Did I hear you say you don't recall sending. him this
23 faxed copy of Section 41.221, Sub 1, Sub C?
24
A.
My statement was that I don't recall sending that to
25 him, but I certainly do not dispute that I sent it to him.
. ~. ~.
::-"......._._1'...--.-'+-.... . '- -....-
54
1 Q. Do you recall discussing this language with him at
2 any time?
3 A. No, I don't.
"'.......
4
5
6
7,
B
9
10
11
12
13 '
14
15
16
17
18
19
20
21
22
23
24
25
Q. DO you ever recall his asking about the possibility
of a awning or a canopy that might be movable?
A. No, I donlt.
.Q. Did you write the variance staff report thatls dated
February the 13th -- Ilm sorry written in advance of that
dates for the February 13, 1997, meeting of the Development
Code Adjustment Board?
A. I wrote it, yes.
Q. Do you have a copy there before yoU?
A. Yes r I do.
Q. Would you look at the first full paragraph on page
one under "staff analysis of request"?
Which one is this, sir?
MR. POLLOCK:
MR. GALBRAITH:
This would be
actually, I'm going
to call it my Exhibit No.5. It's in your file already.
It's the staff report to the Board on the various
applications that the Board itself would have seen.
MR. POLLOCK: I'm looking to see where it is.
Variance transmittal? Or staff report?
MR. GALBRAITH: The third line at the top says,
"variance staff report."
MR. POLLOCK: No, sir. That's not one of the ones I
~~
, .~'.
55
()
, H~
1
have, unless maybe this is it. Variance staff report.
2 All right. I have it.
.3 BY MR. GALBRAITH:
4
Q.
Mr. Richter, do you have that first full paragraph
5 under staff analysis of request? Do you see the sentence that
6. says, tithe frame does not meet code because is it constructed
7 within the setback variance required for South Gulfview
8 Boulevardtl? Would you, sir, read out loud the next sentence?
, 9 A. ' II However, the frame was built pursuant to a City
.10 issued permit and consistent with city policy. The City
11 accepts its existence. II
12
Q.
What does it mean then to say that the City accepts
)
...-...."
13 the existence of the frame?
14
A.
That means that it's City policy that isn't pursuing
15 action by the Code Enforcement Board to remove it.
16
Q.
Now, you heard Mr. Sarnoff testify earlier that a
17 certificate of occupancy was never issued by the City for the
18 deck. Do you know if that1s correct or not?
19 A. I don't know.
20 Q. If that is correct and there is no co for the deck,
21 what would the City's position be regarding code enforcement
22 if the deck remains as it is today, status quo? DO you
23. understand what the City's position might be in terms of code
~
24 enforcement?
25
A. .
It would be speculative for me to respond.
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56
1
But you did tell the Board that the City accepts the
Q.
2 existence of the frame consistent with City policy. That's
3 what I find in your report here; is that correct?
4
5
A.
, Yes.
In writing this report did you consider the various
Q.
.6 criteria that have to be met in order to obtain a variance?
7
8.
Certainly.
And did you reach any conclusions regarding the fact
A.
Q.
9 as to whether the applicant had complied with the approval
10 standards?
11
12
Yes, I did.
And did -- is your conclusion set forth on page two
A.
Q.
13 of your report under the heading, "Compliance with Approval
14 Standards"?
'J
..;
15
16
. Yes.
Is that the place where I would find your
A.
Q.
~ .
17 conclusion? Would you read that sentence out loud for the
18 record, please?
19
UAppears. to comply with all standards for ?ipproval
A.
.: I
'. .
20 provided attention is given to the external appearance of this
21 cafe. It
.,
,
22
23
24
25
Staff recommendation was approval; is that correct?
Q.
'..
A. Provided attention is given to the external
appearance of the cafe.
.1,'
,~ . ~ ,
"
Okay. Did you present the Board with any facts or
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Q.
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57
1 evidence that would support a "no" vote on the Board's part?
2 Itm going to withdraw my question, because it asks for a
3 conclusion. I withdraw it. A terrible question. Were you in
4 attendance at the Board hearing on February the 13th?
5
A.
Yes, sir.
6
Q.
Do you recall any testimony being given to the Board
7 in opposition to the variance request?
8
A.
I don't recall. However. the record would speak for
9 itself.
10
Q.
You don't recall any witnesses coming up out of the
11 audience saying, "I object for some reason or another"?
12
A.
I really dontt recall.
13
MR. GALBRAITH: I have no further questions.
14
MR. POLLOCK: Anything on redirect, ma'am?
15
MS. DOUGALL-SIDES: No, sir,
16
MR. POLLOCK: All right. Thank you.
17
MS. DOUGALL-SIDES: City would finally call
18 Mr. Scott Shuford.
19
S COT T
S H UFO R 0
20 WAS CALLED AND AFTER BEING DULY SWORN WAS EXAMINED AND
21 TESTIFIED AS FOLLOWS:
22
MR. POLLOCK: I'll tell you what. I'm going to take
23 . about a two-minute recess, though, before we take
24
Mr. Shuford. Any problem with that?
25
MS. DOUGALL-SIDES: No, sir.
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4
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7
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9
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11
12
13
14
58
(A brief recess was taken.)
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........~....,.
15 BY MS. DOUGALL-SIDES:
16
17
18
Q.
What is your job title, Mr. Shuford?
A.
Central Permitting Director.
Q.
And as such, are you designated as the Development
19 Code Administrator for the City?
20
21
A.
Ye s, IDa' am.
Q.
Can you explain to the Administrative Law Judge why
22 Britt's was required to obtain a variance for the awning,
23. specifically?
24
A.
Britt's was required to obtain the variance for the
"t<J...j
25 awning, because we considered that part of the structure, an
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59
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1 expansion of the structure that had been erected previously.
I
2 And as a consequence, we felt that the awning needed to obtain
3 ,a.variance.
4
Q.
So the property owner has built a deck. Are they,
5 or are they not automatically entitled to put an awning on
6 there?
7.
A.
They were not automatically entitled to put an
8 awning on there.
9
Q.
Are you familiar with Section 41.221 of the City
10 Code regarding outdoor cafes?
11
A.
Yes, ma' am.
12
Q.
And how do you tend to be familiar with that
.-: . ."
'''''''''') 13 section?
14
A.
I wrote that section in 1996.
15
Q.
Could it have been 1995?
16
A.
Could have been 1995. There was an amendment in
17 1996.
.18
MR. POLLOCK: Could it be that you didn't write it
19 at all?
".,
20
THE WITNESS: Well, I had some help from somebody
21 else in this. room.
22
MR. POLLOCK: Wouldn't be a bald guy with a little
2 3 ' bit of hair rnis sing, would it? Okay. Go ahead, please.
<)
24 BY MS. DOUGALL-SIDES:
.25
Q.
And what is your recollection of why this section
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60
1 was adopted?
..~...-'\
2
,~.
It was adopted to provide an incentive for more of a
,3 festival atmosphere in our pedestrian-oriented areas to
4 encourage outdoor cafes like you might see in many of the
5 resort ar~as, not just in America, but worldwide.
6
Q.
And would the Clearwater Beach area of Clearwater be
7 considered an area that was appropriate for outdoor cafes?
8
A.
Yes, ma I am..
9'
Q.
I was showing you a copy of that ordinance and
10 referring you to Subsection i-C. Would you review that?
11.
A.
Yes.
12
Q.
Are you able to say what was the intent of that
13 particular subsection?
,..'.....,
I.
14
A.
.Well, the intent was to allow outdoor cafes on
15 private sidewalks that would consist of movable items like
16 tables, chairs, umbrellas, awnings, canopies, or other forms
17 of seating. And the intent, further intent there was that the
18 structures would be.designed or installed to not interfere
19 with pedestrian traffic and meet wind-resistant requirement.
20
Q.
What is your interpretation, as Development Code
21 Administrator, of the term, I1movable"?
Vi
22
A.
Movable means something ,that would be readily able
23 to.be taken in. For example, an umbrella or tables that were
24 not affixed to the ground.
~..)
25
Q.
Have you seen Petitioner's Exhibit 3 today showing a
61
.\
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. ..'
1 .plan of an awning?
2,
A.
Yes, ma'am, I did see that today.
3
Q.
From your 'view of that exhibit, would you consider
\'
4 that awning to be a movable awning?
5
A.
It doesn't appear so. This particular awning looks
6 like to remove the fabric it's going to take quite a bit of
7 effort to accomplish that because of the construction here.
8 There are some cotter pins and things like that that would
9' show that there is some ability to remove it. But it's more I
10 of a permanent-type awning, as opposed to something that would
11 roll up on a daily basis.
12
Q.
,
Going back to the question I had asked Mr. Richter,
:,;.
~~) 13 What, if any, provisions exist in the Code of Ordinances for
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14 design review in the Clearwater Beach area?
., .
~.. .'
.15
A.
The ,Code establishes Clearwater Beach and this
r.t.,
.1,:',
16 particular area of Clearwater Beach as an area where once
17 design guidelines had been developed, they would be sUbject to
....,.
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18 design review.
"".;
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19
Q.
Have those guidelines been developed?
:~ :'
,.
20
A.
NO, ma'am. They're in the process of being
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21 developed.
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......
22
Q.
And is there an expected finalization date for
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23 those?
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24
A.
We think within thirty to forty-five days we'll have
,
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,25 the final version back from the consultant. And then we would
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62
1 establish a review by the Design Review Board for
2 recommendation to the City Commission, who would then adopt
3 the design guidelines by resolution. So that's approximately
4' ninety days out.
.........
5
Q.
When those guidelines are adopted, would you
6 consider the proposed awning to fall within the guidelines?
7
.8 .
A.
Q.
Yes.
In the event the.Administrative Law Judge reverses
9 the Board's decision, are there any conditions you would wish
10 to suggest.that the City staff would -- that would be
l; .
11
.12
acceptable to City staff?
A. The conditions that were recommended in the staff
! .
."~" ~..
\ .'
13 report, of course, would be the ones that we would suggest.
14 And we would further suggest some of the appearance issues be
15 directly addressed. And I think there's been an education
16 here today if the applicant would be willing to accept those
17 conditions in terms of painting and otherwise modifying the
1.8 structure to better match the existing building from an
19 architectural standpoint.
20
Q.
When you refer to the conditions listed in the staff
21 report, are those "staining of the deck to match the building"
22 well
23
A.
Mr. Richter made off with the copy we were sharing.
24 We suggested -~ and this might be a condition -- that the
25 following things might be done: At first, the application of
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63
.1 a white stain to the wooden structure, and then the
2 utilization of an awning colored to match the second-story
.3 motel room doors. These were a couple of ideas that we had in
.4 our design plan or in discussing this staff report. We think
5 those might be the appropriate conditions, additions.
6
MS. DOUGALL-SIDES: Thank you. Nothing further.
7
MR. POLLOCK: sir?
8 CROSS-EXAMINATION
9 BY MR.. GALBRAITH:
10
Q.
Mr. Shuford, what's the working relationship between
11 you ,and John Richter?
12
A.
I'm his boss.
13
Q.
Do I understand that John Richter wrote the staff
14 recommendation to the Development Code Adjustment Board for
15 their February 13, 1997, hearing?
16
A.
Yes, sir.
17
Q.
And do you review those staff recommendations on
18 their way to the Board?
19 A., I do. I don't -- and let me elaborate, because I
20 think I know what the next question is. I don't recall
21 reviewing this particular one. I was, basically, out of the
22 otfice rewriting our Land Development Code at the time which
23 this was being discussed. So I wasn't very heavily involved
24 in reviewing the staff report. But I am familiar with this
25 one and certainly concur with its recommendation.
64
1.
Q.
And the recommendation was for approval?
/--...
2
A.
Yes, sir.
3
Q.
Now, were you aware -- you must have been aware that
4, the deck as it exists today was built under a City building
;,1
5 permit.
6
A.
Yes, sir.
7
Q.
Whoever told you the City made a mistake when they
,8. issued that permit?
g'
A.
I think it was evident we made a mistake when we
,
10 issued the permit, because the permit plans went somewhat
11 beyond what was. presented to the Development Code Adjustment
12 Board in obtaining the variance for the parking spaces.
And
13 so once that mistake had been made
14
Q.
Stop and let me ask you, To what extent does the
15 existing deck go beyond the plans shown to the Board in 1996?
16
A.
Primarily the rafter area.
17
Q.
And do you base that statement upon the fact that
.,
18 the drawing of the deck does not show the rafters?
19
A.
Yes, sir. That, and I think the way the testimony
20 went and the way it was presented to my staff in terms of what
21 was being proposed.
,22
Q.
Now, is it your position that the safety railing
23 also violates the conditions of the variance approval of 1996?
24
A.
No, sir.
v
25
Q.
Do you see the safety railings in that same drawing?
". . ." I ~ < ~. . .
65
1 A. No, sir, they are not in that same drawing.
~,
2 When Section 41.221, Sub 1, Sub C was written,
Q. do
3 you recall why we used the word IIshallll instead of IImayll?
.4 A. I believe it was intended to be directed in terms of
5 the movable aspects of the distinction there as opposed to
6 requiring that all those things be provided.
7
Was an attempt made to define the word "movablell?
Q.
.~ .
8
.No, sir.
A.
"
;1'
9
Is movable necessarily synonymous with removable?
Q.
,',{
No, sir.
10
A.
, ,
'....
11
Does movable mean movable every nour, or even daily?
. Q.
...~ '.
In the context of a sidewalk cafe, I think it does.
12
A.
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14 that could be taken in on an as-needed basis. And I think
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15 it's a sidewalk cafe -- like most people are familiar with
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16 then I think the idea or the picture that that would generate
"",-'
17 in someone's mind would generate the movable contents that we
18 were talking about in that ordinance.
19
So if an awning is designed to be put into place for
Q.
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20 rainy weather and retracted during sunny weather, would you
:' I.'~
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21 consider that to be movable?
, '," ~
Yes, sir.
22
A.
23
How much time did you have to spend analyzing the
Q.
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24 .drawings that I think you said you saw today depicting the
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25 canopy which were submitted here to be placed over this deck?
. '
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66
1
I believe ,you saw the extent of the time I had to
A.
2 review that.
3
But I believe you said that these plans would not.
Q.
4 in your opinion, show a movable awning.
5
That's correct.
A.
6
Can you explain why you have reached that
Q.
7 conclusion?
8
The drawing on the plans does indicate some -- the
A.
9 fabric that -- there's a comment on that Qt the lower
10 right-hand corner, if you will, of the canopy, where it says
11., II removable fabric. II But the, drawing here does not look like
12 something that slides back and forth or can be readily rolled
13 up. There's nothing that indicates a mechanism that would
14 allow that to occur.
15
And if there is, then certainly I'm at fault for not
16 seeing that. But it doesn't show up on this drawing. It
17 appears the removable -- .well, part of it is actually the
18 frame, which would include not only the fabric part of the
19 canopy but also the structure that holds it to the rafters.
20 Because they have the cotter pins there for removing that.
21
So if Mr. Hason can demonstrate that the frame is
Q.
22 retractable along with the fabric, would that cause you to
23 have a different opinion regarding whether this is movable or
24 not?
25
It might. if that can be demonstrated. Certainly,
A.
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67
1 it isn't obvious from this d~awing, because it appears what
2 and, I guess, let me explain my basis for looking at this.
3 This appears to be a method for attaching the frame, the
4 aluminum frame, to the railing that's out there now or the
5 rafters.
6 , And it appears what you have is that's welded to the
7. aluminum and then a cotter pin is put through. So it looks
8 like it's not something that's readily removable. It looks
9 like something that cannot be put up quickly to cover a sudden
10 summer thunderstorm or remove quickly to take advantage of a
11 nice day.
12
Q.
.Were you in attendance at the February 13, 1997,
,_.j 13 hearing of the Development Code Adjustment Board?
14
,15
16
17
18
19
20
21
22
23
,0. 24
25
A. No, sir.
MR. GALBRAITH: I have no further questions.
MR. POLLOCK: Anything on redirect, ma'am?
MS. DOUGALL-SIDES: No, sir.
MR. POLLOCK: Anything further?
MS. DOUGALL-SIDES: Only that the City has some
further exhibits.
MR. GALBRAITH: Your Honor, for the benefit of my
client here, I want to ask you. Mr. Hason would like to
offer some testimony in rebuttal. And he will be given
that opportunity shortly. I just wanted him to
understand that.
68
1
'MR. POLLOCK: Yes. As soon as she finishes, I'll go
r---.
'2 back to you for rebuttal.
3
MR. GALBRAITH: Okay.
4
MS. DOUGALL-SIDES: I believe we're up to City
5 Exhibit E.
,::. .
6
MR. POI..LOCK: II Ell? I thought it was II D. II
7
" .
MS. DOUGALL-SIDES: Oh, 11m sorry. "D."
./'
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'.8
MR. POLLOCK: "A" was the application. liB" was the
..
.; ,
9
photos; lie" was the stop work order.
10
MS. DOUGALL,:,SIDES: This would be "D."
11
MR. POLLOCK: And then "DIl is what you have to offer
12 now?
~.- .~--.
13
MS. DOUGALL-SIDES: Yes. Which would be an excerpt
.........
14, of the DCAB minutes for January 11. 1996. regarding the
15 variance application V96-06.
16
MR. POLLOCK: You're on -- this an extract; is that
17 correct?
18
MS. DOUGALL-SIDES: Yes, sir.
., .
19
MR. POLLOCK: Item six is the only thing you're
20 referring to?
21
MS. DOUGALL-SIDES: Yes.
22'
MR. POLLOCK: Any objection to that, sir? You might
23 want to look at it. I think I already have it as a part
24 of the file.
~...
25
MS. DOUGALL-SIDES: I believe you have the 1997
,.
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23
24 .
.,
69
1
minutes, but this goes back to the first application.
2
MR. POLLOCK: All right.
3
MR. GALBRAITH: I'm going to take a moment to read
4 this. Because last week I asked City staff to give me
5 th~ file on this particular meeting, and they couldn't
.6 find it. But today they seem to have it. So if I could
7
take just a moment.
8
MR. POLLOCK: Absolutely.
9
MR. GALBRAITH: No objection, your Honor.
10
MR. POLLOCK: All right. Then it will be admitted
11. as Respondent's Exhibit D.
12 (Respondent's Exhibit D was marked for
13
identification and admitted into eyidence.)
14
MS. DOUGALL-SIDES: Then I have several code
15 sections, which I would request that your Honor take
16 official notice or recognition of.
17
MR. POLLOCK: All right.
1S MS DOUGALL-SIDES: Those being first, Section
19 41.221, outdoor cafes. And this is the current version
20 as amended '.slightly in November ,1996.
MR. POLLOCK: Any objection, sir?
22
MR. GALBRAITH: No objection.
MR. POLLOCK: Okay. What else?
MS. DOUGALL-SIDES: Section 36.035, Development Code
25 Adjustment Board.
".
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70
1
2
3.
4
5
6
.MR. POLLOCK: Okay.
MS. DOUGALL-SIDES: Chapter forty-five on variances.
MR. POLLOCK: All right. Chapter forty-five? Or
Section 45? Article one, article two. I guess this is
all of the whole chapter?
MS. DOUGALL-SIDES: Yes, that is the entire chapter. ,
7 .And section 36.038, Design Review Board.
8 MR. POLLOCK: Any objection to any of those,
9 Mr. Galbraith?
10 MR. GALBRAITH: No, your Honor.
11 MR. POLLOCK: Then I will officially recognize them
12 as one, two, three, and four, as requested.
".;-,
13.
14
. MS. DOUGALL-SIDES: City would rest at this time.
MR. POLLOCK: City rests. Okay. I understand'that
\,~.
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15 you want to call Mr. Hason.
; .
>. "
16
17
MR. GALBRAITH: Wish to recall Mr. Hason.
MR. POLLOCK: All right. Mr. Hason, may I remind
J..j
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18 you, ,sir, you are still under oath?
....'1
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19
THE WITNESS: Yes, sir.
I,'
1-. .
20 MR. POLLOCK: ,All right. Pleas~.
21 DIRECT EXAMINATION
22 BY MR., GALBRAI TH :
';.
:' '.,j.
.1.
23
Mr. Hason, let's start with this concept that this
Q.
I.
'24 awning is movable. Can you explain for the benefit of the
25 Judge how this awning would be movable. First of all, can you
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1 explain the purpose of it and what was the design objective,
f)
2 and then explain how it works.
3 A. The reason for it is it's part of the front. It's
4 half -- it's the front of the restaurant and to control -- if
71
5 the weather is sunny, rain day, sunny day. If it's a sunny
.
6 day, we lift it up. If itts a rainy day, we put it down. And
7 for these reasons. To keep our customers, we've been
8 requested by our customers -- everybody just -- even if it's
9 available to sit outside, still would like to sit outside. So
10 we tried to find a way to meet the law to have the temporary
11 canopy.
12
Q.
Now, do I understand that the awning would be
,. '",
">'_) 13 attached, and it would always be there. But it would be
14 either extended or retracted; is that correct? Would it be
15 either out over the deck or --
..'1
';1.
16
A.
-- or up, rolled up. And it can be also all the way
.~.. .
....
17 removed. Anyway we decide it's going to be. Now, the awning
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18 on the top is going to be laced. We went to the ladder over
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19 there, to the wood, that it's going to be just by loosing,
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20 releasing the rope, or whatever, it's going to just all come
..
21 apart. The sides of it all the way in front is going to be a
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22 metal going all the away across. We're going to be able to
23 roll the lace all the way up to the start over there. And
,-:J
24 it's going to be a special seat over there to rest. So it's
25 going to be matters of ten minutes to fifteen minutes to do
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72
1. that.
......,
2
So, in effect, it would roll up like an .
Q.
. 3 old-fashioned
4
A.
Exactly. Hand rolls. It's going to be one from
5 each direction.
6
Q.
How many men would it take to do that?
7
A.
Two. Really one can do it, but two it's going to be
8 much easier, quick.
9
Q.
Is there anything else you would like the Court to
.10 know about this awning before I.move on to the stop work
11 order?
, 12
A.
It1s made from aluminum, it's very light, like we
I""f~ ~.
13 already said. .It's a very light material. Also the top of it \
14 "/ill match the color of the building. All it's going to do is
15 just bring t.he whole deck, the whole place, like I've been
16 asked, to blend with the building. So that's part of it.
17
Q.
During Mr. Sarnoff's testimony a copy was
. 18 distributed of a stop work order. Do you recall having seen
19 this stop work order before? It shows a date of inspection
20 December 20, 1996. Have you seen that before? And do you
21 know what itls all about?
22
A.
Yes. That was when the application -- I ca~me.back
23 in December. At the end of December, I saw it. And it was
24 I have a picture taken over there that it's been built the
u
25 same time with the deck when I was supposed to build, like we
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73
1 said already, here over one feet is the structure.
2 So for the pizza deck over there, I didn't have any
3 permit. Obviously, because I've been told if it's under one
4 feet, you're allowed to do it over there. So then, just now,
5 at the end of the year -- I don't know if this was an
6 inspector for the beach ~hat actually asked for the reason of
7 it. And that's under -- taking care of the City. That's a
,S different issue, absolutely different issue. This does not
.9 belong to the front of the house deck.
.18
10 .
Q.
You referred to this as a "pizza decktt?
Yes.
p-i-z-z-a?
And that's four or five inches around here.
,
And where is it located in relation to the deck
About fifteen feet from it.
,To the north? Or to the south?
TO the south.
Is it the same deck that is at issue here today? Or
20 a different deck?
.21
11
A.
Excuse me?
Is it the same deck that is at issue here today?
No, absolutely not. That's '97. The other one is
24 12/26 over here, or January 15th of '97.
12
Q~,
13
A.
14
Q.
15 that's
16
A.
17
Q.
A.
19
Q.
A.
22
Q.
23
A.
25
. '
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MR. GALBRAITH: May I have a moment to confer with
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74
my witness for my last question?
,.-."
MR. .POLLOCK: Absolutely.
MR. GALBRAITH: Mr. Hason wants to just explain to
the Court, basically, what he believed the issue to have
been all along and just explain.to the Court his
.
perspective of that. Mr. Hason, go ahead.
THE WITNESS: From the beginning, when I applied to
when I went to the variance for the deck, it was for
the reason of the three parking spaces to begin with.
That was the. issue. Like it's been said, that was the
issue, the three parking spaces.
So what I presented was a sketch draft of what is
.':...
the basic idea to do around here. It was -- and the (
guiding line was supposed to be transferred to the City
what I'm allowed and what Itm not allowed to do. Me, not
saying or not understanding that's what you're allowed to
do. and that's all. you're allowed to do, present~d the
exact plans to the City of .the exact way that someone
really wants to do it. It was basically a sketch, and
the next step was the exact plans. And that's even
the first plan wasn't, engineering wise, wasn't the right
way of building it.
So when I came back with the plans to the City, they
were supposed to tell me.
How we were supposed to
o
Okay.
be built right to stand to the Code and what I'm allowed
75
,")
1
and what I'm not allowed. As you know, it's not in my
2
power to make these decisions. I'm not trying to take
.. I
I
3
advantage of any situation by just -- okay. They have
4 mistakes now. I want to do more now than what I was
5 supposed to without knowing one thing to do from the
6 beginning getting across what .r wanted to do over there
7 with the awning. Me ask to do whatever to have heavier
8 structure to the ground with the wind resistance and
9. everything.
10
I did anything I've been asked. I'm not given an
11 inch, not further to the street and not higher. I've
12 been actually asked -- I wanted to do it lower, because
'-) .
~~
13
when you sit. you have the rail in front of your eyes.
14 You can't see the ocean. It's oceanview, this
.f
15 restaurant. So I'Ve been told to do it higher. I wanted
16 to do it low, much lower for the people to be able to see
17 the oceanview. And they been saying over here that they
18 asked for me to do a higher railing. And I have been
19 told to do a higher railing. I didn't want to do it, but
20 I did because I have to do it, a higher railing that's
21 forty-five inches. So now, it's exactly when you look to
22 the ocean, what you see is the railing.
23 To the whole way, all I did is communicate with
~~
'W'
24
everything that I had to do. Whatever I had to do with a
25 paper being signed, sealed. And everything was
76
1
permitted. So the issue that keeps corning up with the
.'-'4
2
Board was supposed to give me
and what I did in
3 return. I just don't understand it. I don't see where
4 it's become now my punishment of not having the awning
5 over there when actually we followed the exact way that I
6 got to do it. That's what is translating; that's the
7 message.
8 It was people on the Board that was very, very,
9 very, upset, very upset with the issue of the ladder over
10 there on the top. That it was, like, for me to come over
11
there and punish me. It was the exact way. You can
12 listen to it on the tape, and listen to it. What they
.. ..... ~
13 say is, We were waiting for you to come, and now it's
14 something we are going to let you leave it the way it
15 was. But we're not going to let you do the awning. So
16 what Ilm -- is it a very simple translation. Okay. You
17 get what you have now, but you -- as a punishment of what
18 you have, you're not going to get the awning.
19 Why I'm being punished for something that I didn't
20 do, that's what is the.bottom line ,of all of it. I know
21 of a lot of places on the beach that have it now. The
22 back of me, the side of me, that1s have awning.
23 And what I'Ve been told, the message that lIve been
24
given, of course, that I'm allowed to do awning. But
v
25
they told me to go ahead and to straighten the problem,
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77
1
go to a variance. We I're going to give our
2.
recommendation. It's going to be all right.
3
But I didn't think about these people over there, in
4
the meeting, were mad on the issue that it's there. Like
5
I went against what they.said. So they wanted it --
6 basically, the City to clear everything up. Like, you
7
know, they have recommendation.
8
But when I went over there to the variance, this one
9 .or two particular people that's from the beginning from
10 convinced it. And everybody, like you hear in the
11 beginning, everybody wanted the issue, liked it, spoke to
12 me about it, and liked the idea, was in favor of the
13
idea, if I would go ahead and just make sure it's going
14 to look right over there.
15
And I have no objections to it. But this gentleman,
16 especially this one gentleman, changed everybody's
17 opinion. ,Through the meeting you can see it; you can
18 hear it. He changed everybodY's ,opinion. It was
19
MR. POLLOCK: live got the tape, and I'll listen to
20 it. What else, sir?
,21
MR. GALBRAITH: I'd like two minutes to close at the
22 appropriate time.
23
MR. POLLOCK: But with this witness?
24
MR. GALBRAITH: That concludes his testimony.
25
MR. POLLOCK: Any cross?
78
1 MS. DOUGALL-SIDES: Yes. Just briefly. Thank you.
.-....,
., 2 CROSS-EXAMINATION
I
3 BY MS. DOUGALL-SIDES:
4 Q. Mr. Hason, you had testified about the awning. You
5 thought it would be retractable or removable. You had
6 submitted this drawing, which is part of your Exhibit 3~ is
7 that correct?
", ,
8
A. I guess it's Exhibit 3.
What was it? 3?
\ .9'
,/ 10
MR. POLLOCK: Whatever.
That's the exhibit.
BY.MS. DOUGALL-SIDES:
11.
Q.
You did not show the City any other drawings other
12 than this~ is that correct?
..............
13 A. Not that I remember. ( ,
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,.
14. Q., This is the only drawing that you ever took to the
15 City, and you say you gave it the City. Right?
16 A. I think so.
l? Q. You talked about the stop work order, and you
18 mentioned a pizza deck?
19 A. Yes.
20 Q. Is that another deck?
21 A. 'That is a another deck, yes.
22 Q. That's a separate deck. Correct?
23 A. It's a separate, different issue.
24 Q. Isn't it true that you have a permit for that deck? V
25 .A. .It's sorneth1.ng this I have a permit. No, I don't
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79
1 have a permit. But it is permitted. It's not -- because it's
2 under one feet.
3
Q.
So that deck is really not a problem, at this point,
4 is it?
5
A~
That's the problem over here. So when it was here
6. and the inspector that came to the beach
somebody,
7 obviously, told him something about it. And that's what this
8 is all 'about, about the silly deck.
9
Q.
But your pizza deck is -- no one is going after you
10 for that, are they?
11
A.
Obviously, they do. There we go. That's the reason
12 for it. So when I showed, and when I measured, and when I --
13
Q.
Do you recall going before DCAB and getting a
14 variance on the pizza deck?
15
A.
Going for variance?
16
Q.
Did you have to get a variance on the pizza,deck?
17
A.
No.
1'8
Q.
You were just able to build it. Right?
19
A.
I haven't got any -- yeah. I was able. Basically,
20 from the knowledge of the contractor that was building it, he
21 didn"t have to have anything. But this gentleman that's
22 showed this' lot told me specifically, No, I have no problem
23 with the deck. I asked. I was very much surprised. I had
24 with the pizza deck. I was
25
Q.
But you didn't go before DCAB and get a variance?
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80
1
MR. POLLOCK: Ma'am, you have to let him finish the
2 question -- finish the answer.
3
MS. DOUGALL-SIDES: Well, I think hets --
4
THE WITNESS: I came back and I spoke with this
5 gentleman. That was my understanding when I saw it that
6 it was about the big deck over there. And I asked him,
7 This is for the big -- this is for this deck? And he
8 called the City and said, No, it's not. It's for the
9 small deck over there.
10 BY MS. DOUGALL-SIDES:
11
And who was that?
Q.
12
Greg, I think it was.
A.
13
Well, could you read where it says "nature of
Q.
14 violation"? Doesn't it say "voided variance"?
15
I don't know. Whatever it says over there. But
A.
16 what Itve been complaining with Greg, the inspector came to me
17 about, was the little deck.
18
Well, you didn't have to get a variance on the pizza
"
Q.
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19 ' de.ck, though, did you?
20 A. No, I didn't.
21 MS. DOUGALL-SIDES: Nothing further.
22 MR. POLLOCK: All right. Anything? Any more
23 , evidence?
24 MR. GALBRAITH: No, your Honor. ' ~j
25 MR. POLLOCK: Now, you're finished with rebuttal?
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81
1
MR. GALBRAITH: We are.
2
MR. POLLOCK: Now, you want to make a closing
3 statement you said? Mr. Hasen has something else to say.
4 THE WITNESS: We can even verify this issue with the
5 inspector. . And I don't know which way this manner is
6 understood right now. But you can even go ahead and ask
7 this gentleman over here which deck he was talking about.
8
MR. POLLOCK: We could, except he's not here. And
9
I'm not going to wait for him.
10
THE WITNESS: No. I can mail it. I don't know.
11
MR. POLLOCK: Go ahead, Mr. Galbraith.
12
MR. GALBRAITH: Let me give you the short, simple
13
analysis first, your Honor. That is simply this. Was
14 there any competent, substantial evidence presented to
15 the Development Code Adjustment Board on February 13th,
16
1997, that would justify denial of the application? And
17 the answer is no. The staff recommendation was in favor.
18 The staff found that the criteria for variances had been
19 met. There are no arguments presented in opposition. No
20 one spoke against it. The record before the Board is
21 devoid of any evidence that would support a denial of
22 this application. So that's the short, simple analysis.
23
And if you look at that, only you can decide that
24
the Board made a wrong decision and reverse the Board.
25 But let's go a little deeper into this. The City staff
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82
believes they, made an error when they granted the permit.
I'm not so.sure they did.
The problem seems to be that that little sketch that
was part of the 1996 variance application when the
question before the Board at that time was, Shall we
allow three parking spaces to be given up for a deck?
The sketch that was a part of that application was,
basically, a rectangle showing the location of the deck.
Not much detail. No language saying this shall be an
open deck open to the sun and stars. Did not show a
rafter, did not show a railing.
But the City's own testimony is that a railing is
required. And the city's own Code states that an outdoor '
cafe shall consist of movable awnings and canopies, among
other things. So the fact that this little rectangle
attached to that 1996 application shows no detail,
shouldn't be a binding and determining factor on the City
or on the owner at this point.
But he came back to the City, and he got a building
permit. Now, if the city had a problem, the City could
have spotted that they had a problem and denied the
permit. But they granted it. And the deck was built and
exists today pretty much the way you see it depicted on
the attachments to the building permit; that is, with the
columns and the rafters. About the only difference is,
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83
1
.it shows ceiling fans. And now they don't have ceiling
'2 fans. They have lights instead.
3 ' He spent money with a City building permit in one
4 hand. that was issued by the City after that Board met in
5 1996. And he built a deck where he said he was going to
6
build it. He put in guardrails taller than he wanted to
7 build, because the City wanted taller guardrails. And he
8 put in these rafters overhead believing at that time that
9 he had no trouble with the City. He had a building
10 . permit.
11 Then he decided it would be good to protect the
12 people on the deck from the rain, and he wants to put in
.13
an awning. He speaks with City staff, and they fax to
14 him a City Code section, which allows him -- almost seems
15 to require a movable awning and canopies. Again, he
16 thinks he has no problem. He goes back to the City with
17 drawings showing exactly what it will look like, maybe
18 not preciselY' what it will look like, but showing this
19 awning over the deck.
20 And at that point, somebody says, We think we have a
21 problem. I'm still not so sure that the City staff made
22 a mistake when they issued that permit, but they did.
23 His response is he goes back to the Board. Now, at this.
24
point, this is not your typical after-the-fact
25 application, where somebody gets caught. This is a .man
-'
84
1 who built something with a building permit coming back to
, .~
2 the Board. wanting the Board to give its final blessings
..3 to one more detail; namely, the awning over the deck.
".
4 With no supporting evidence whatever, they deny the
5
application. And as you listen to the audio tape, you'll
6 be impressed by the fact that the Board members seem to
7 have been bent out of shape, because they think Mr. Hason
8
got away with something that he wasn't supposed to get
9
away with. And yet, when you go back and look at the
'j.':
10 drawings from the 1996 application, that drawing doesn't
11
support the conclusion that he couldn't do what he did.
12 The drawing doesn't support the conclusion that the
13
,r.......
building permit was in error. He built with a building
(
14 permit.
15
Now, suppose that that structure above the deck were
16 removed, suppose the rafters were removed, would there be'
17
any case at all against the canopy? None whatever. None
18 presented to that Board. That canopy would take up no
19 more space. It would take up no more parking spaces,
20 would be no closer to the right-of-way, would not
21 . .interfere with the pedestrian access way. There is no
22 case against the canopy.
23
24
So you should ask, Why did the Board vote the way
they did? You will be impressed by the tenor of the
\'6)
25 voices when you hear the Board members speak. That they
85
I
,
.1
1
just felt they were being imposed upon, and, by golly,
').
2 they were going to show this man who was in charge here.
r:
3 SO they voted "no."
4
We believe they made a mistake. We believe that the
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5 Board decision is unsupported by competent, substantial
.
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6 evidence a~d ought to be reversed. You have the power to
.',
7 do so. You may also in reversing and in approving the
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8 application, you may impose reasonable conditions of your
'.,
9 own. The City's staff's focus seems to be on the
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10 appearance of the place.
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.11 Mr. Hasan has indicated he will repaint that
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12 whatever color the City staff wants. In terms of
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aesthetics, he's open to suggestions. I would submit
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14 that the photographs that the City has submitted of his
15 property, when you compare that with the photographs we
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16 submitted actually look better than the photographs we
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17 submitted. It's not a bad looking building right now.
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18 But if the ~ity staff wants to suggest conditions you may
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19 impose to improve the aesthetics, such as repainting it,
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20 we're open. But in terms of the vote to deny his
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21 application, we believe that was clearly in error and
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MR. POLLOCK: Thank you. How about you, ma'am? Do
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you want to make a statement now? Or do you want to
25 reserve?
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MS. DOUGALL-SIDES: Just briefly, your Honor, if we
could.
MR. POLLOCK: Okay.
MS. DOUGALL-SIDES: We disagree with Mr. Galbraith1s
characterization. We think that the applicant did build
beyond the 1996 approval, in that the large support
posts, the ceiling fans, the roofing area structure, and
the lattice work were not shown on the 1996 application,
which is now an exhibit. The applicant did willingly
come before DCAB a second time and applied for a
variance, went through the procedure. The staff
recommendation was favorable, but only contingent upon
the aesthetic modifications to the application that staff
has suggested.
There was, essentially, unrebutted professional
testimony today through Mr. Shuford that he did not feel
the plans truly showed a movable awning-type of
structure, and that this would not be allowed as a right
under the ordinance, but rather would require a variance,
which the parties seem to agree that at least the
application should have been filed and the procedures
should have been followed.
Whether or not the City had permitted the deck
itself, it appears that the City properly required the
applicant to go through the variance procedure for the
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awning. And the Board had the right to deny what's an
2
expansion of the permitted use.
3 The applicant has not met the burden of proof of
4 showing that the Board was wrong through the evidence
5. before the Board and the evidence presented today. And,
6 specifically, the applicant still hasn't met the variance
7 criteria of Chapter forty-five, which are relatively
8 strict, in that no special circumstances have been shown.
9 I wouldn't ,argue that the City's mistake in permitting
10 the deck itself would constitute special circumstances
11 that would then justify an expansion by an awning or
,
12 otherwise of the nonconformity.
13
The applicant is not being deprived of the
14 reasonable use of his property, in that it still can
15 operate the 'outdoor cafe, and, apparently, is with
,
16 expanded seating. But the awning would simply not be
17 available.
18 And, finally, the City staff has suggested
19 conditions if your Honor wishes to reverse the Board,
20 which the Code does allow you to do and impose such
21 reasonable conditions as the Board itself may have
22 imposed. It is fairly frequent for DCAB to impose
23 aesthetic types of conditions on an applicant and
24.
Mr. Shuford accepted some as you'll find in Mr. Richter's
25 staff report, which the ,City was originally agreeable to
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and has indicated today it would agree to.
2'
MR. POLLOCK: Are you going to order me a
3 transcript?
4
MS. DOUGALL-SIDES: Yes, sir.
5
MR. GALBRAITH: Your Honor, might I very briefly,
6 responding to her -- there are three points I'd like to
7 respond to.
8
MR. POLLOCK: All right, sir.
9
MR. GALBRAITH: Number one, regarding the movability
10 of the awning, Mr. Shuford1s testimony was not offered or
11 accepted as expert testimony. Mr. Hason has explained that
12 that awning was removable as an old-fashioned window blind.
13 This was described as an expansion of the permitted
14 use. I don't believe that's accurate at all. The deck is
15 there whether this is approved or denied.
16 And in terms of no special circumstances being shown
17 in how the City has gone beyond defending the Board and trying
18 to change the volition of the City that was in front of the
19 Board itself. Because the position of the City a~ that time
20 was that the criteria for variance appeared to be have been
2'1' met o.
22
MR. POLLOCK: All right. I have forty-five days to
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submit.my final order. I'm going to give you twenty days
24
to submit proposed findings of fact if you wish. And
25 then I'll -- when ~ get the transcript, I'll do the order
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and get it out as quickly as I can. All right. Thank
you very mu~h.
(The proceedings in the above-captioned matter were
. concluded at 3:10 p.m.)
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CERTIFICATE OF REPORTER
....-...
i
2 STATE OF FLORIDA
.3 COUNTY OF PINELLAS
4 I, LYNN MARY GEDERS, Court Reporter, certify
5 that r.was authorized to and did stenographically report the
6 foregoing deposition; and that the transcript is a true record
7 of the testimony given by the witness.
8 I further certify that I am not a relative,
9 employee, attorney, or counsel of any of the parties, nor am I
10 a relative or employee of any of the parties' attorney or
. 11 counsel connected with the action, nor am I financially
12 interested in the action.
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Dated this 1st day of May, 1997.
rfCIJ~."\
,
~~l\'~M
LYN MARY GEDE .
COURT REPORTER
LYNN M. c=ma.
MIfaIV PtbIc . 8fafe of FIoIfdo
MiCOml'T*llcn ~ SIp 3. 2IXD .
Com'Maion' CCti83l93
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r BUDZINSKI VS. CITY OF CLEARWATER Mutti~Pagcnc
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DIVISION OF ADHIHIST~TIVt Ht""INCS
t,,~t HO.I 91-1109
ST"MISl.AN B~D~I"S"I .nd
KAl1Klt~ B~DlIM$"I.
P.tt tlon.r.
V..
elTY OF CLUtJUf"TE".
nUp"M.nt.
I
FIII"1. IIE"RINC
DAUl
APRIL U. 1991
1100 P.I1. - 3110 P.K.
HUNICIP,,1. SERVICES BUII.DIIIC.. ROOH 130
100 SO~TH MYRTLE AVENUE
CUtARHATER, FLORIDA
LYNN CEDERS
MOTAAY PtlBLIC
STATE or r1.ORID" AT LARCE
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FINAL HEARING, 04/16/97
1'1'l~ 4
l'RocttClIIICS
KR. roLl.AC" I Hurlng wlll COlI. to ordu. W. au h.
el.arvat.r, Florid. tor . fln.1 h.lrlng InvolVing
St.nl.l.w ftud,ln.~1 .nd "allml.rl 8u.lln.tl a.
P.tltlon.r. v.r.u. the City of el..rwlt.r, Hy nem. I.
Arnold Polloct. I'v, b..n appointed the Admlnl.trltlv.
Llw Judge In thl, c... fur the St.t. at Florldl',
Dlvl.lon at Admlnl.trltlv. H..rlng., And thl. c... belt'
our Cllvl.lon Ho. 91-1109.
Thl. ca.. I. In IPP'II tram the D,v.lopm.nt Code
Ad'u.~.nt Bo.rd ot the City ot el.lrwlt'f', d.cl.lon t~
deny. v.rl.nc. tor Britt'. C.t , which occupl.. th.
prop.rty In I..ua own.d by St.nl.llw .nd "Illmler.
Budlln.kl, to ~ract .n Iwnlng ov.r the ..I.tlng out.ld.
dect on the property, which I. loclted It 201 Doutn
Gulfvlew Boul.v.rd In CI.Arwat.r ne,ch. I. that. a. I
hlv, reel tad It. the .ctud dhput. lod.y'
HR. CiALBAAlTlI: yn, s1 r,
KS. DOUGALL-SIDES: It 1..
11ll.. POLLOl:" 1 B.C<lulit 1 eJot It dl "uek.d up urllu
In the ..rll.r h.&rlng .nd t.lt v.ry emb.rr....d. '0 I
don't wlnt to do that. Ot.y. 00.. .Ithlr .Id. de.lr. t~
".k. .n op.nlng .t.te,.ent1 Or would you Ilk. to '~p
right Into It and pr...nt t..tlmonyl
HlI. GALBAAITH: I'll luk. a brief op.ntng .tatem.nt.
1'.'1e ~
HlI. roLLOCK: AU rl'lht, .Ir.
HR. GALbRAITH: For th. reeord. I',. Milton A.
Golbrolth. Jr. ot CI.orwoter ona Old.mor. I think the
tll. ho. both Addr...... I'm In tran.ltlon right now.
You ean u.. .Ither Iddr....
IIrld the I..u.. AI you tremed It. I thInk, h the
puctlcd, red-world I..u. betore tho Hurlng otflcer.
TlchnIc.lly. the I..u. beror. tho City BOlrd w.. whltnlr
A .etb.ct v.rl.nc. .hould be gr.nt.d to p.rmlt I
.tructure within tw.lu. and I hIlt t.et ot the tlft..n
toot p.rImeter It lit b<lek. But... practlcd ",.tt.r,
b.c.u.. of the hl.tory of the property, which w.'ll 'lo
Into when "'y wltn... .pa'k', that I..u. become r.th.r
.c.d...lc. And the pr4ctlcol, rGI1-world II'u, I. wh.th~:
a p.rmlt .hould b. gr.nted to 4110w .n .wnlng. I mov.ble
.wnlneJ, over th. ..I.tlng d.e~ .t Britt'. C.t .
I will elll an. wltn... who will r.eount the hl.tory
tar you. Ther. h.v. been two dltt.rent decl'lon. ...d. by
. City Boud. lI. will ..pldn thlt. Th. flut one
eJr.nt.d I vArl.nce trom the p.rklng re~Ir.".nt to .llow
I d.ek to be bullt In three par~tneJ 'pICU. II.. In tlCt,
eJot the bulld1nC} permit to bulld 0 d.ck. lie got the
p.~~t to build It ~. w,y It .xlat. today. H. then want
b.ck to the Bo.rd. And w.'11 '1et Into .~. ",or. d.tall.
at why h. went blc~ to the Board ror the varl.nee to
heJ.6
.11aw tht. movable .wnln9 Ov.r tha deCk, and In the
..cond trip to that Bo.rd, and the dacl.lan ot the Bo.r4
on the ..cond trip to th.t Bo.rd. which 1. the r~..on why
we'r. here todlY.
HlI. POLLOl:": Th.t'. 1tl
HlI. liI\WlRhlTfll That'. It,
HR. POLLOl:K: Lat me point out on. ,""11 thing; Yo~
u..d the t.rm "lIurlnq Ottlcer. ~ In the lut ....Ion ot
th. l.qhllture. thlY eJIV' u. no p'Y fll.., but did glv.
u. . name en.nq.. And It I'" not qolng to q.t paid. ot
I.a.t I'.. golnq to g.t the nom.. Th. tltl. I.
A~'lnl.tr.tlv. Lew Judq" How, I. I .ald, without the
p'y. lt do..n't p,"n 4 thlnq. But It ,u.t .ound. bett.r.
O~.y1
KIl. GALBRAITIII .pologlu. Forc. af h.blt.
KIl. POL~KI I und.r.tand.
KIl. GALBRAITIlI I conqut\lllU you on your n.w
tltl.. Ev.n It the p,y 1.n't bett.r, the tltl. .ound.
gr,"t. And r will try to bre.~ "Y bad habit.
KA. POL~KI No probl.... O~IY,
K~. pOUCALL-SI~E5: An4 r will .. Will, your Honor,
HR. POLLOl:KI KI.. Douqall-5Id.., do you w.nt to
"a~. In open1ng .tat~".nt now1 Or do you v.nt to re.lrv,
for your tld.l
MS. DOUGALL-SIDESI y.., I'll mlk. an opining
I.,'
COMPLIMENTS OF D & D REPORTING SERVICE, INC.
Page 1 - Page 6
,
,.
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LOCATIONr
REPORTER:
D l 0 REPORTING BERVICE
913 CHESTNUT STREET
CLEARWATER. rL 34616
. 11131 46U-2002
pr..ldlng J\ldql:
A P I' tAR A N C t S
AH~~~9~~~~.AR~eL~u~' POLLOCK
vIv .ton or Admrnl.trl~tv. ll.ortnq.
T.~ 1~~:;:;~.fl~~[~~aY32J99-3C60
tor the ~.tl~lonlrl
". A. GALaRAITIl, JR., ESQUIRE
2i~n.r, ~o~.n , Col.~.n, I'.A.
C ..~~~.r.yf,rA~la:.n~t'16
tor the ft..pon4.ntl
L~5LIE K. DOUG~LL-510tS, t5QUI~
~l;l g~tr~:a~w:~'~48
c~e.rw.~.r, F~ortd' 33618-414.
INDEX OF tXHI3ITS
PIg,
~'il~to~.r'. Exhibit Na. I. appllc.tlon
1'- t -I t on~~' ~mrgl t' iri.: . ~; . c"ci. . ,.cHon" .. .. .. ... 17
4t. 2 ...I.....l.l......~...l..................... 31
P.~ ~ ooer . EK.~ b t 110. '" P .n. tor
awn nq-~ eaqn .1.1...... I . . . . . , . . . . . . . . . . . . . . . . . .. 31
Per tlona~" txh b t No. " tour pA'l". ..ven
~~~~~a:~t'..i~~lblt'A;.j&nu.ry.l~~&.yirl.nc....... 31
r~~f7~~i~~~..i~~lblt.B;.p~ot"i..;t.ciici.t&ken....... 36
=.t:~g~g:*t:.f..r,L~l~l~.g:.:~g~;~~r~;~cig~~:::::::::: ~g
III nflt.. 1-1 -9& .... ....... ............. ........... 69
Notel l:alllblt. nol. turnhhed to reportlr.
IKCtX OF EXAMINATIONS
Wltn... Dlr
Huon. Liar ....................... 12
lIornoft, IIt.pIl.n ..........."..... 33
Jl!cht_t., John .H.... ."..,... t""" 4!iJ1
5hutordt Scott tit. t I....... I' t.... !U
Ha.on, Liar - ncd1e<1 ............ 10
Cro.
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BUDZINSKI VS. CITY OF CLEARWATER Multi-pagc1101
HR. P01.LOCK: Okay. lIr. lIuon. 1'1lI qolnQ to let you
.It where you or.. But I will r~lnd you. pl..... .lr,
that you'ro qolnq to be on the .tand, which ~..n. you
have to an.w.r the que.tlon. that .r. ..k.d 01 ~ou
Page 12
without referring to counsel. He can ask you questions;
you answer his questions. Miss Dougall-Sides will ask
you questions on cross-examination. You ask -- or you
can answer those questions, but do SO without any
conununication With your counsel at that time. Okay?
Otherwise, I'd ask }:ou to sit here. .
LIOR HASaN
8 WAS C\LUID AND AFTER BEING DULY SWORN WAS l'.xAMlNEO AND
9 TESTIFIED AS FOLLOWS:
10 MR. POLLOCK: tior Hason, L-i-o-r, H-a-s-o-n. What
11 city do you live in?
12 'OlE WITNESS: clearwater.
13 MR. POI.LOCK: clearwater. All right, sir. Thank
14 you. All right, Mr. Galbraith.
15 DIRECT EXAMINATION
16 BY MR. GALBRAllli:
17 Q, Mr. Hason, first would you state your relationship
18 with Mr, and Mrs. Budzinski, who arc the petitioners here
19 today.
20 A. I'm n tenant in thcir establishment. It's a motel.
21 And I own the restaurunt thut's underneuth. it.
22 Q, Did I understand you that the Dudzinskies own the
23 property, nnt! your restaurant is a lenant?
24 A. Ycs, sU'.
25 . And what is our title aT osition with that
COMPLIMENTS OF D & D REPORTING SERVICE, INC. Page 7 - Page 12
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.tu....nt now.
H~. POLLDC~l o_.y. Co .h..d,
IU. DOIlCAL1.-SIDtSI Thh cua Involvwd an otl'llnal
.pproval of . v.rlanc. b.ct In J.nllery or 199'. Th.t
.pplic.tlon w.. r.qulr.d b.c.u.. the .ppllcant wl.h~d to
build. d.ck, and In dolnq '0 would 10.. thr.. parklnQ
tp'c." So It c~. b.for. lhl. .~. noard, our
Dly.lopt..nt Cod. Adju.tm.nt Bo.rd, In obt.lnln'l th.t
parkln'l v.rl.nc. of thr.. IP'C.'.
Th. ao.cd pl.c.d I~. condition. on the qrant or
approv.l, one Of which wa. . .tandard condition th.t the
.ppllc.tlon -. or the .pprov.l w.. tl.d to the
appllc.tlon In the plan. that w.r. .ubmltt.d with It .nd
all the document. .nd t.etlmony. And anoth.r b.ln'l that
the .ppllca~t would ccnply with the City'. outdoor c.t
ordln.nc. and oth.r cod. r.qulr.m.nt..
How, followlnq that varl.nc. .pproval, . bulldln'l
pI~lt wa. obt.ln.d, .nd the d.ck w.. con.truct.d. The
pI~lt .uthorl.ed wort or va. .lqn.d-orr on by our
C.ntr.1 P.~lttlnq DepartM.nt. And It did .uthorl.e
work, Which, looklnQ .t the pl.n. for the p.~lt. would
h.ve be.n b.yond the .cope or what DeAD .pprov.d. And
the City .dndt. th.t It probably .hould not h.ve .Iqn.d
o[t on tho.. pl.n.. but It did.
Tn. d.ck va. th.n con.truct.d. And when It Va.
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compl.t.d. It had certain r..tur.. which w.r. not put
bator. the OC~ Bo.rd. Halnly. It had I.ttlce wort on .
.Id. vall .tructur.. It h.d tupport po.t., which perhaps
would be .utrlcl.nt to .upport a c.illnQ or .cn. type.
,\r,d it h.d . c.lllnq-type rram.work with app.rently
.l.ctrlc.l outl.ta ror c.lling ran. or IlQhtlnq llxtur..
on the top ot It.
At th.t point, It b.c~. 'pparent th.t .n .wnlng w..
to b. In.telled ov.r the top or roor are. ot the d.ck.
Md the City did luuo . .top work ord.r .t that point.
.nd r.qulred the property owner to cone In .nd reque.t .
varl.nce ror the awning It..lr. The City'. po.ltlon 1.
that vhlla the outdoor c.r ordinance mlqht .llow a truly
r.tractabl. or mov.bl. .wnlnQ. a. It ellow. llIovable
chair., movabl. umbrell.., .nd oth.r It.m. which can b.
..t oUt .nd then t.ken In. that the tlx.d root-like
awnlnq, which ..em.d to be contomplat.d lIer. would
r.qulre .nnther varl.n~.. And the prop.rty own.r.
.ppar.ntly aQr..d. bec,u,. th.y did .pply ror . vari.nce
.nd w.nt beror. DeAD .q.ln ror . ..cond tin..
Tha .t.rr report. I..ued by Hr. Rlcht.r, w..
tavorabl. It attention w.. Qlvon to the ..tern.l
.ppearanc. or the .wnlnq, And h. m.de .one .uqqe.tlon.,
vhlch you'll rind In the record In the .t.rr report I
n~.ly. that the wood .tructur. could be .t.lned whlto,
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the .wnlnq could bo colored to m.tch the .econa-.tory
doore on the bulldlnq. And h. .ald, "Ther. .r. m.ny
oth.r option." In hi. r.port. Th. r.port not.. th.t "the
applicant dl.pl.yed . wllllnqn... to work with the City.-
And rhln~. wer. proc.edlng w.ll at that point.
Howev.r, wh.n It want baror. the Bo.rd, th.y dla
deny the v.rl.nc. .ppllc.tlon 4 to 1. And the Bo.rd
.spr....d .one conc.rn. that the applic.nt hadn't
followed that ~ard'. puviou& 1n.tructlons, that the
r..,on. 91ven 1n the minute. .~ vhlch you al.o h.ve In
the r.cord -- w.re th.t the .re. ~IQht turn tram a d.ck
Into a ~or. enclo..d .tructur. .nd become more p.~an.nt
re.t.urant ..atlnQ, that It may Incr.... the
nonconromlty In the are. on the appear.nc. ot tho a..nlnq
In r.latlon to th. re.t or the bulldlnq and the
.u~roundln9 bulldlnqa. ~d that ir th. 8o.rd approv.d
thl. ,arl'nc., I think they thouQllt that th.y Would,
....ntl.lly. be nulllrylnQ th.ir pr.vlou. .ctlon. 50
th.y did turn the .ppllc.nt down 4 to I,
Th. City would .ubmlt th.t the d.cl.lon or the 80ard
1. .upport.d by the .vld.nc. .nd th.t the .ppllcant
h..n't Aet, .t thl. point, the .t.ndard. COhtaln'd In the
var1anc. ch'pt.r or the cod., Chapt.r 45, ror approv.I,
n~ely. that th.re .r. no .p.Clal clrcum.tance.
.ppllc.bl. to the property Dr the .wnlnq It..lr th.t
~o
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FINAL HEARING, 04/16/97
'.qe III
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would ju.tlry qr.ntlnq the variance. AI.o that the
.ppltcant I. not b.lnq d.prlved or r.a.onable u.e Dr the
prop.rty a. II rllqulnd undu tha cod.. And that,
app.r.ntly, th.r. 1. a .ucce..tul outdoor c.r or..
opoutlnQ without .n .wnlnq. And that, puh.p.. .conOl1\lc
gain m.y be the ftloUvotll,Q Uctor h.n to, I 'UppD'..
Incr.... cuatOQAr b....
50 the City vould ,ulT..lt that the .vld.ncA In the
record and to be put rorv.rd today would .upport tho
Board', decl.lon.
HR, C",L8AAlTH;
HR. POLt.o<:l\ l
witnlt.... .
HI\. CA1.BAAITHI Ju.t br\.Oy. I .lmoH ObJ.cted to
the l..t ",~.nt or two ot the oponlnq .t.tement, b.c.u.e
the .ttorn.y tor the City w.. .pacul.tlnq a. to ..hy the
Bo.rd vot.d tho v.y th.y did. You've b.en provld.d vlth
an .udlo t.p. ot th.lr ~.tlnq. ",nd I'", .ur. you viiI
ll.t.n to th.t, It you haven't elre.dy, And It wilt
b.come 'pp.r.nt to you tn.t th.re w.r. no r...on. given.
Ther. .... . qener.l Itat.~ont m.de th.t the criteria
had not bo.n met. The City'. uVn .t.rt recommend.d
approv.l tlndlnq th.t the crlt.rl. h.d bo.n m.t. And
th.r. w.. no evld.nc., ~h&t.V.c, bwtor. th. &oard to
.upport the lOOt. th.t thay took, nor did they e~plaln why
H.y I rup?nal
You "'ay Indeed.
or you can c.ll
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th.y vot.d the w.y th.y vot.d. So to .om. ..tent. rhe
.ttorn.y tor the City w.. 'pecuI.tlnq. But I think 1
will l.t tho ovldence .pe.k tor It..lt.
HR, POLLOCM: you und.r.t.na, or cour.e. th.t
don't m.k. rlndinq. or tacr b..ea on ar~UIl\ent.
HR. C",L!AAITH: 1 under.t.nd.
HR. PO LlJ;lCK I It'. .trlctly evldonce. And you .ho
may h.v, noted th.t I don't take too m.ny note. durlnQ
.rq~ent .lther, bec.u.. I'1lI qolnq to walt .nd he.r IOII.t
the evld.nc. .how. r.ther than be per.uaded .t thl.
point. a. to wh.t coun..l ..y. .t [hi. point.
Opening .t.twllIeht I. .ven t.... to n., err.ctlve or
probatlv. than clo.lnq .tatement, bacau.e 1 .a. It only
.. counl.l'. opportunity to tell ",. what they hope to
prove. The evid.nc. will .lthor prove it or will not.
And the clolln9 .rqument ..o~ld be your opportunity to
pull It toq.ther ror ",.. But .van clo,lnq .rqument I.
ju.t your vl.w or WII.t happen., not what -- n.e....rlly
IlIln.. 50 okay. You're re.dy to .hoot.
HR. CAI.BAAJTIII OUr wltne.. h Llor, L-I-o-r. Huon,
H-.-.-o"n,
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Page 15
I I misspoke. February 2, 1996. 1 BY MR. GALBRAITII:
2 MR. POLLOCK: DO you have any objection to that, 2 Q. Mr. Hason, thej>lans that you submitted for a
3 Miss Dougall~Sides? 3 building pcnnit call for what sort of deck? Could you
4 MS. DOUGALL'SIDES: Your Honor. the City hus no 4 describe the deck to be built on the!inns you submitted?
5 objection. Howeve~t I would ~quest that the CiW be 5 A. It was a raUin~ around the . . around 11
6 able to supp'lement me record following the hearing with 6 thirty-inch, thirty-SiX. thirty-five inc es rail around It
7 its own copies of these plans. The plans are out for 7 was landscaping around. From the outside. it was about
8 microfiche, and they're not available at this time. 8 th~-eight lOches. From the insidet it was about
9 MR. POLLOCK: I don't have any problem with that. 9 thirty-five. thirty-four inches of railtng around. It was
10 Do you, sir? 10 posts with lights over there. And that's how it looks when I
11 MR. GALBRAI11l: NOne. 11 present it. '
12 MR. POLLOCK: YOU can St:nd it to me after you get 12 Q. And did the plans also show rafters overhead?
13 il, but make sure you send Mr. Galbraith a copy of the 13' A. No.
14 same thing. 14 MR. POLLOCK: I'm sorry. Did or did not?
15 TIlE WITNESS: We have the original one thatls been IS nm WITNESS: Did not.
16 presented to the Board. 16 BY MR. GALBRAlTIJ:
17 MR. POLLOCK: Yeah. But you don't want to give that 17 Q. 11m going to ask the witness to take a look at the
18 to me. That will take it away from you. What's that? 18 plans altacllcd to the building pennit to help refresh your
19 MR. GALBRAITI{: The attorney for the City is 19 memo!y-,- Because I think welre n
20 referring to Ule City's file copy, which I tried to find 20 A. When I presented the firsl time to the Board, is
21 lust week. And it had been scnt off for microfilm 21 that what you are asking me?
22 purposes, and who knows where it is today. I believe she 22 Q. No. When YOll applied for the building pcnnit.
23 wants to send you a copy of their file copy rather than 23 A. Oh, yeah. of course.
24 what's known as the fierd copY1 which the owner hns. 24 Q. The plans )'ou submitted for the building pcnnitto
25 What I've iven ou is the fielo co of the buildin 25 the Cit , what did those lans show? How did the describe
COMPLIMENTS OF D & D REPORTING SERVICE, INC. Page 13 - Page 18
BUDZINSKI VS. CITY OF CLEARWATER Multi-Pagcnl
Page 13
(
./ ')
1 reslaurant? I
2 A. Owocr of Lbe rcsLaUfant, partner-owner. 2
3 Q, Did you participate in the first variance petition 3
4 that resullCd in a variance being granted in 1996 for this 4
5 property? 5
6 A. Yes, I did. 6
7 Q, And did you attend the hearing of the Development 7
8 Code Adjustment Board when they approved the variance? 8
9 A. Yes, I did. 9
10 Q. What did you undersland the Board to have approved 10
11 when they approved that request? 11
12 A. Basically. when I went for -- I went for the parking 12
13 spaces. It was planned over there. I didn't know exactly 13
14 what the roles -- what I'm allowed Bod Dot allowed to do. And 14
IS thal's the instruction I was sure was given to the City. SO IS
t6 WhcD I came to the City, whatever they asked for me to do, 16
t7 that's what I understand that's what I nced to do. 17
18 Q. When the Board voted to approve the variance for 18
19 three parking spaces to construct a deck, did you have any 19
20 understanding msofar as the design of the deck was concerned? 20
21 A. No. no. I didn't. 21
22 Q. Are you the fellow who applied for the building 22
23 pcnnit? 23
24 A. Yes, I am. 24
25 Q. And did ou brin our buildin rmit with ou here 25
Page 14
I today?
2 A. Yes, I did.
3 MR. GALBRAtTH: Your Honor, I have here the field
4 copy of the building ~nnit. I discussed this with
5 counsel for the City. Rather than give you this -- which
6 has four IB!8e sheets attached in a row -- what I would
7 like to do is give you a photocopy of this card, front
8 and back, nnd then a portion of one of the sheets, which
9 shows some of the details for the design of the deck and
to the various materials buill over the deCk. So what I
II would like to do is offer what I brought as Petitioner's
12 Exhibit 1.
13 MR. POLLOCK: That's not the February 3rd
14 application, I take it. February 3rd ~~ 13th. 1997,
IS trlat's not the one, is it?
16 MR. GALBRAlTIi: This is -- no. This is the
17 application for the building permit, which he obtained
18 afler --
19 MR. POLLOCK: Of what year, sir? Can you tell me?
20 MR. GALBRAlTIJ: 1997.
21 MR. PuLLOCK: '97. oh, I see. This was all done in
22 February. Okay. Because I canlt tell. Can you tell me
23 whatls the dale down here? It says on the bottom. 2,
24 something. 2~2--
25 MR. GALBRAITIJ: 2~2-96. 1 a 01 izc. I said 197.
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FINAL HEARING, 04116197
Page 16 .
permit) to which are attached the plans that went with .
the bUIlding pennil.
Mlt POLLOCK: Are the plans going to be included in
what you proposed to submit to me1
MS. DOUGALL.SIDES: well, m}' understanding of the
rules are that exhibits should be 8 112 X 11 fonnat. So
if your Honor would accept a plan'size coPY. that would
be fine. Otherwisc, I'll attempt to Xerox portions of
the plans and make them into 8 1/2 X II exhibits.
MR.I'OLLOCK: welt, that's what the rule says. And
I agree with you that's what the rule says.
MR. GALBRAITH: 1 have two exhibits here that arc g
1/2 X 14.
MR. POLLOCK: I'm not going to exclude an exhibit at
a hearing like this just because it docsn1t fit ncatly
within the parameters of a file folder thatls 8 112 X 11.
I'd rather not CallY back huge '* you know. those foam
boards, and stuff like that, on the airplane, BUl if [
can get it in my briefcase, I'll acs.ept it.
MR. GALBRAI'rn: That1s why I was offering this
instead of the rolled'up plans. And I'll be happy to
mail you 8 1/2 X 11 copies.
MR. POLLOCK: Just make sure that -~ I'll tell you
what. Rather than do that, why don't you just make sure
ou mail me, and to Miss Dou aU-Sides at the same time,
Page 1 7 :
the docwnents that belong with this exhibit that are not
there, In the meantime, give hcr the opportunity to see
what they arc rig!1t now. And then you can send them to
me after the hearing. Is that fair enough?
MS. DOUGALL'SIDES: Yes, sir. Anal have reviewed
the plans that Mr. Galbraith has here today. I'm just
not sure that those plans correspond to our file copy
plans. That's what I'm ~ing to ascertain. '
MR. POLLACK: Well, then let me suggest that I'll
give you the latitude to submit what you have afterwards,
once they come back. And if there's a problem, we'll gel
together and have a telephone conference hearing and
resolve the discrepancybetwcen the two sets of plans if
you need to do that.
MS. DOUGALL-SIDES: May the City then submit a
plan-size copy, because it's easier for to us make a --
MR. POLLOCK: Are you going to mail it to me?
MS, DOUGALL-SIDES: Yes.
MR. POLLOCK: Yeah, sure. That's fine. You're
going to get il back anyway, because we don It keep it in
Tallahassee. That will be fine. But in the meantime,
I'll accept this as Petitioner's Exhibit 1, application
2-2-96 for parking. Okay.
(Petitioner's Exhibit No. I was marked for
identification and admitted inle evidence.)
Page 18
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BUDZINSKJ VS. CITY OF CLEARWATER Multi-Pagc1lol FINAL IIEARJNG, 04/16/97
Page 19 Page 22
I the deck to be built under the bulldin~ pcnnil? I MR. GALURAITII: Dut the Xerox is a little cleaner.
2 A. When I came to the City, you re asking me? 2 MR. POLl.OCK: Is that 41.2217
3 Q. For the building pcnnit. 3 MR. GALORAI11I: This is Code Section 41.221. And.
4 A. For the building permit, it -- we -- Ule WRY it is 4 in pnrticular, somcone emphasized Subsection (1)
('now with the -- not exactly roofing -- hut it was a fan, S Paragraph C.
6 electric fan, with a kind of ladder on the top across the 6 11m WITNESS: I gotlhis directly from the City.
7 whole deck, up on the whole deck. 7 UY MIl. GALDRAITII:
8 Q. You said "ladder"? Are you refcrring to, likc, a 8 Q. Mr. Hason, Pm going to ask you to read Paragraph C
9 latllce-work structure overhead? 9 starting with the words "un outdoor caf." Rcad thc first
10 A. Yes. 10 sentence.
11 Q. Rafters? II A. Okay. "An outdoor caf when appears on a private
12 A. Ycs. And even when 1 made it, I made sure we 12 sidewalk .ball consist of movable table., chain, umbrellas,
13 changed it to be B struct~ that'll going to hold. Was (tom 13 awning, canopies. or scating. Umbrellas and awning and
14 the ~inning my plan, but mc not knowing that's allowed or 14 canopies and SImilar slnlcturcs shall be dcligned. And it's
IS not an owed to do, I was n we discussed the issue that it's 15 tolo to not obstruct with the pedestrian traffic and to meet
16 going to be an awning on top of it in the future. So I've 16 the wind-resistant requirement of this Code,"
17 been told that I will liavc to do a heavier construction over 17 Q. Mr. Hasan, do you rcmember why somebody from the
18 there by digging dc;cpc::r over there to hnld a stronger" and 18 City faxed this to you?
19 the roofing. Oiis ladder on the lop over there. 19 A. For answering my question if we would be allowed to
20 Q. Did the City ask you to make any changes on the 20 have an awning.
21 plans? 21 Q. And what did you understand to be the City's
22 A. Little ones. yes. I don't remember exaclly what 22 position after you read this?
23 they were structure-wise. 23 A. I have!icen told that what I'm &ctting is actually
24 Q. Rcfening 10 the railing around the deck, did the 24 good news. And I will be able to do It, if It's going to be
2S Ci ask ou to mllke an chan cs to the railin around the 2S tcm or ,tem or or movable.
Page 20 Page 23
I deck? 1 Q. Movable?
2 A. Yes. 2 A. Movable.
3 Q. What changes did the City ask you to make? 3 Q. What did you do next?
4 A Raise it from the thirty-five, ~-six to 4 A. I went ahead and, actually being sure about that I
S f~-five, forty-six. I guess that's what it IS now, to make 5 had DO problem to get it,lalrcndy put a down payment aD it.
6 it higher than what it is, 6 And 8,ot the whole -. the whole plan went to the City. ADd by
7 Q. The City: asked to you make the railing taller than 7 thinKing that will be no problem to get it, prescnting the
8 the onc you asked for onginatly? 8 plans.
9 A. Yes. 9 Q. You refer to plans. Did you bring a coJl'Y of the
10 Q. And what became of your building permit application? 10 plans with y~:u today for the movable awning?"
11 Did the City apQrove it or disapprove it? 11 A.. Yes. SU'o
12 A. Approve it. 12 MR. GALDRAI1l:I: Your Honor, again, this is a large,
13 Q. And did you. in fact, build the deck in accordance 13 II X 17, I guess, two sheets of pa~r, which I have
14 with the plans you submitted? 14 reduced down. Unfortunately, I didn'lrcduce it far
IS A. Exact way. I even went an inch off either way. 15 cno~. I have 8 1/2 X 14 copies, and, again, I'll be
16 Q. At the time you built this deck, did you have any 16 glad to substitute 8 1/2 X 11.
17 reason to believe that you were doing anything illegal or 17 MR. POLLOCK: This is fine.
18 improper under the City's roles? 18 MR. GALDRAITII: This consists of two pages.
19 A. Of course not. It's Dot in my power to do llnything Z9 BY MR. GALBRA1TIZ:
, 20 that I wouldn't be allowed to do, because I knew that I would 20 Q. Mr. Hason, what do these plans show?
21 have to take it down, tear it down. 21 A. The plans show the exact way that it's going to be
22 Q. Did you discuss with any City officials during 1996 22 built up on the top of the deck, that it's going to be all
23 whether you could put an aWll1ng or a canopy over your deck? 23 movable. And we cnn, whco We wanl to. in and out, bring them
24 A. Ycs, I did. 24 in and out. It's aU made with pins and aluminum, a very
25 Q. Do ou recall who ou discussed thal issue with? 25 light metal, that would be able to be hundled in and out.
Page 21 Page 24
1 A. I don't Imow. It was either Scott Shuford or Steve Q. And who did you give these plans to? Do you
2 Doherty. I don't remember the one. I think it was Scott 2 remember?
3 Shufor<l. It was either Scott Shuford or Steve Dohcrty. 3 A. Yes, I do. Steve Doherty.
4 Q. It was either Scott Shuford, S-h-u-f-o'r-dl or Steve 4 Q. What response did you get from the City after they
s Doherty, D-o-h-c-r+y. May you have also discussed it with S had a chance to review these plans?
6 Mr. JOM Richter? . 6 A. Wcll, it was -- their point of view was, in the
? A. I spoke with John Richter about it? 7 beginning, that it would be no problem. It would be all
8 Q. Did you s~k willi John Richter? 8 "abt. But they would have to check and check aud check, and
9 A. No. I don't remember. Wc spoke just when he came 9 UilS checking took a little while.
10 to present the - just to look from the outside, look what he 10 And after the decision came to mc, it was that I
11 wanted to do when he was hero. 11 won't be able to have this awning, because it's going to be OD
12 Q. At some time during !he summer of 1996, did anyone 12 the top of something that's -- I'm basically Dot allowed to
t3 fax to)'ou pages from the Clcarwaler City code book? 13 have. And that's going to be the structure lliat we have that.
14 A. Ycs. sir. 14 I guess. the City says that it's a mistake. So I wasn't able
IS Q. And did you bring those with you today? 15 to have somethinB that I'm nllowcd to do on something that I'm
16 A. Yes, I did. 16 not allowed to have.
17 MR. GALfJRAITII: I have. your Honor, made;: 17 Q. Do you recaU when this conversation took place,
18 photocopies, which I've marked as Petitioncr's Exhibit 18 when they infonncd you that the canopy could not be
19 No.2. And I've shown Ihis 10 counsel for the City. And 19 constructed? I
20 I would offer tltis in evidence at this time. I have the 20 A. When this -- around December, I believe. Maybe the ~".,.
21 fax copy for cOIllJ?arison purposes. The photocopy is a 21 beginning of January.
22 little easier to rend. 22 Q. Of what year?
23 MR. POLLOCK: This is a fax copy. 23 A. December of '96 or JDn~ of '97. It was either
24 MR.OALDRAmt: well, lhis is the actual fax copy. 24 the end of December or beginning of Jan~ of '97.
2S MR. POLLOCK: oh, oh, oh. 2S . And when was the first time ou heard from an bod
COMPLIMENTS OF D & D REPORTING SERVICE) INC. Page 19 - Page 24
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. BUDZINSKl VS. CITY OF CLEARWATER Multi-pagcTM FINAL HEARING, 04/16/97
P!l8C 25 Page 28
I from thc City that a mistake had been made? Was this UIC conunents mode by the bOllrd mcmbcn. And I won't ncalln
2 first lime? 2 ask him to recount the vote, because that's self-evident.
3 A. On the awning? 3 DY MR. GALBRAITI1:
4 Q. Any mistake. .. Q. But I'm going to ask Mr. Hason to recount, if he
(- '. 5 A. Ob. no. I bcard it before. I heard it before from, 5 recalls, any of U1C reasons given in oJlposition to your .
6 I gUCI', tbe City. But theD, you kno~, Dol having been asked 6 request by anyone. Why do you thinK thcy voted the way they
7 to.do anything. because It took it weir mistakes, their 7 voted?
8 mistake. 8 MS. DOUGALL.SIDES: objection,
9 . Q. Now, at this point, the deck had been conslructed; 9 MR.I'OLLOCK: Thal calls for speculalion. If he
10 IS that correct? 10 recalls --
tl A. Yes, sir. II MR. GALDRAITII: I'll withdraw that question, and see
12 Q. With the overhead rafters? 12 if! can stale it belter.
13 A. Yes, there is. IJ MR. POLLOCK: All right. Please,
14 Q. Under a City building pcnnit? 14 DY MR. GALBRAITH:
15 A. Under a City buildi~. 15 Q. Do ~ou recall anyone saying, during the course of
J6 Q. When you were told Iliat a mistake had been made, did 16 board hcanng. why they were going to vote the WilY they voted?
J7 they give you any rcconunendation as to what to do about it? 17 A. Yes, I do.
t8 A. No. It's left up in the air. And I can tell that 18 Q. Can you tell US what you recall?
t9 they didn't like it at all. But it's left in the air. And 19 A. This vote against was mainly the renson for the
20 that" when it's become to an Ilctual situation whcn J got -- 20 dcdsioD of -- they said, wc knew you'n:: goilJg to come back to
2J when I wanted to do the awning. 21 u.. We knew you were BoioS to come back. We Dew one: day you
22 Q. Why did you apply for a variance in, I believe, 22 were going to come back to UJ. And wc're going to, like, do
23 JanuaJ)' of 19977 Why did you apply for a variance? 23 -- give you back, like. for what you did. We gave you
24 A. Okay. I applied for a vanancc because I had been 24 something: you took advantagc, or you didn't do wbat yon were
25 told --I was told t1Iat thllt's for me applying for the owning 25 supposed to do. Now we're going to punish you. And that's io
Page 26 Page 29 !
1 will take care of the whole problem over there, make 1 my words, kind of punish you on it.
2 everythiog right over there. The problem that -- the problem 2 That's exactly what It translated to me. Itls
3 that we had, the mistake that we 1uuI over there, not me, but 3 actually OD the tape. Everybody could hear i1. We knew you
4 the City had over there. So I ~ss the awning on the top 4 were going to come back to us, Wc wllited for you to come
5 will correct if you're going to an ow the awning. it's going 5 back. Now, it's time to -- whatever is there, now to do
6 to correct the whole issue over there. 6 something about it.
7 Q. Was your proposed awning any closer to the street 7 Q. Mr. Hason, did you ever at any time believe that you
8 right-of-way than ilie actual deck? 8 were doing somethinB contr~ n
9 A. No. It's going to be the same. 9 A Not at all. Absolutely not. Exactly the Ollllosile.
10 Q, Would it take up any more parking spaces than the 10 I was fccting that everything that was asked ana I've been
11 existing deck? 11 told -- if I ask what I can do, I've been told that I cannot
.'-., J2 A. It won't take any more park!!tg spaces. no, sir. 12 do it. I went and correct it. I went back and forth many.
.,e 13 Q, SO you went to the hearing in Feb~ on your 13 many. many limes to the City to make it right with the
14 vanance request. Who attended that for the Budzinskies? Was 14 architect and with the contractors of how to makc it right.
t5 that you? 15 And whenever it was right. that's when we did it.
16 A. Yes, sir. 16 q. Arc there other restaurants on Clearwater Beach
17 Q. Did anyone appear in opposition to your variance 17 which have outdoor decks with roofs or awnings or canopies?
18 request? 18 A. Yes, sir.
19 A. Opposition. meaning? 19 Q. Have you taken photographs of some of them?
20 Q. opposing it. Did anyone appear to speak against 20 A. Yes, sir.
21 your vanance appli~tion? 21 Q, And did you bring them with you today?
22 A. No. Maybe Just the lady. 22 A Yes.
23 Q. Well, did the staff make a recommendation? 23 MR. GALBRAITH: This is going to be marked as
24 A. Yes, they did. 24 Petitionerls Composite Exhibit No.4. And I'd like
25 Q. And what was their recommendation? 25 Mr. Hasan to describe brieO what can be found today on
Page 27 Page 30 !
1 A. Favor it. Clearwater Beach, which are depicted in these
2 MR. GALBRAITH: Your Honor, there is, I believe, in 2 photographs.
3 your file, which the City clerk sent to you) 1 beUeve 3 BY MR. GALBRAJTI-I:
4 you will find what's called a variance stat f report. ., Q. First of all, whl.'ll were these ficturcs taken?
5 I've not made another copy. 5 A. Last Saturday that it was, guess. April 14th,
6 MR. POLLOCK: I wouldn't be a bit surprised. 6 15th. .
7 MR. GALDRAlTIl: I want to refer to it. because it's 7 Q. And do the busincsscs in these photographs -- are
8 a critical piece of evidence. I suppose i should have 8 they located on Clearwater Beach?
9 brought another one to show you. 9 A Yes.
10 MR. POLLOCK: well, I know what youtre talkin~ 10 Q. Within the City of Clearwater. Would you describe
tt about. I have something here thatl thin.1.c is what It is. 11 the photographs on the first pagc, briefly?
12 Let me look Elt it for a second. Variance transmittal. 12 A. It's a restaurant on Clearwater-Beach that's the
13 This is it, variance staff report. I have it. February 13 name of The Palm Pavilion Restaurant. That bas aD awning
14 13th, 1997. Staff analysis of request. Is that what 14 extending off their restaurant. Looks like also a kind of
l' you're talking about? 15 movllblc owning. And down in the pictuI'C, AJex Rcstatll1lnt in
16 MR. GALDRAITII: That's it, your 1I0nor. 16 Clearwater Bench that is also an cxtcnaion awning from the
17 MR. POll.OCK: 1 have it. 17 roof.
18 MR.OALDRAITII: J WElnt to refer to that ns we go 18 Q. This goes on several pnges, I won't take your time
t9 along h~J~. because this contains the slaff 19 to have him comment on cacli picture. But do each of these
20 recommendation, which is a critical piece of evidence. 20 buildings have an awning projecting out over a deck?
'..-" 21 MR.I'OI.I.OCK: Go ahead. 11m listening, 21 A. Yes. they do.
22 MR,OAt.DRAI11I: I'm not going to ask the witness 22 MR. GALDRArnJ: our Composite Exhibit 4, y'our Honor,
23 here to recount the discussion before the board, because 23 consists of four sheets of paper. And it's a total of
24 \hatls on an audio tape;. And I'm not Boing to nsk him to 24 seven photographs,
2' to recall, at this oint in time, thc various 25 MR. POLLOCK: An ob'ection, Miss Dou rall-Sides?
COMPLIMENTS OF D & D REPORTING SERVICE, INC. Page 25 w Page 30
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BUDZINSKI VS. CITY OF CLEARWATER Multi~PagcTM FINAL HEARlNGt 04/16/97
Puge J 1 Page 34 '
MS. DOUGALL-SIDES: No, your 1I0nor. I ^. Ycs, that is corrcct.
MR. POLLOCK: All right. It will come in alj Exhibit 2 Q. Arc you familiar with the January 1996 variance I
4. By the way, Mr. Galbraith, did you ever offcr Exhibit 3 application for the same prop.crty?
2? 4 A. Ycs, I am familiar with It. ;
MR. GALDRAmJ: I thought I did. 5 Q. And showing you what's marked 11.<; City's Exhibit I,
MR. POLLOCK: oh, you clid. But was it your 6 can you i dent irY_ that?
intention to do so? 7 A. Okay. What I have hcre is B complcte variance staffl
MR. GALBRAm{: Yes your Honor. 8 report, alonf,; with supporting documents of the variance
MR. POLLOCK: Any obJcction, Miss DougaU.Sidcs? 9 application Itself. along willi variance transmittals. whcrc i
That's the exhibit from Ole Code. 10 VanOlll departments hove n:turned 0 comment 00 tbose requests. I
MS. DOUGALL-SIDES: No. your Honor. The City will II And also lctlcrs from people interested in the letters of
have a similar exhibit. 111ere has been one amendment to 12 support or oppOlitiOD to the request ore 0110 attached here. I
the Code, to that section since then. 13 Q. Is that a complete set of docwncnts. to your I
MR. POl.LOCK: All right. Then I'll admit 14 knowlC!lge? I
Petitioner's Exhibit 4 as offered. And the same thing IS A. Yes, it is. Thnes whnll'm looking for one thing.
with Exhibit 3{ which is the plans. Exhibit 2, I'll 16 I waDt to mokc IUn: it's hen:. lust a moment, please. Yes.
admit. And I' I also receive yours and compare the two. 17 I just wanted to verify that the drawings submitted for the
(Petitioner's Exhibits Nos. 2, 3, nnd 4 were marked 18 variancc were hero. And tbe drawings an: bcn:. Yes, it's a
for identification and admitted into evidence.) 19 complete package.
MR. GALBRAlTIJ: Just for bookkeeping, we have, I 20 Q. Please describe the drawings that are submitted with
believe. four exhibits at this point in time? 21 that application. ;
MR. POLLOCK: That's correct. 22 A. Six pages in. what that is is a partial site iliaD of ;
MR. GALBRAITH: plus the variance staff report dated 23 the property known as The Beach Place Motel, 201 South '
February 13, 19977 24 Gulfvicw. And what this drnwing docs isshows the area of the :
MR. POLLOCK: That's alrcad a art of the file. 2S tbrcc parkiog spaces -- thnt's betwccn those palm tn:cs -- of I
Page 32 Page 35 .1
1 MR. GALBRAITH: Uts in your file. That's all the I when: the pll?tJOSCd deck would be located if the varioncc would
2 questions I have for Mr. Hason. 2 be ap~roved.
3 MR. POLLOCK: All right. Do you wish to 3 Q. Do those drawings include uprights or support posts? i
4 cross-examine, Miss Dougall-Siaes? 4 A. NOt they do not.
5 MR. GALBRAITH: Oh, one -. may I? I'm sorry. 5 Q. eei ing fans?
6 MR. POLLOCK: Go ahead. 6 A. No, tJiey do DOt.
7 BY MR. GALBRAmt: 7 Q. Overheaa structure?
8 Q. Mr. Hason, if the Board is reversed and your 8 A. No, they do DOt.
9 application is approved today, arc Ibere any conditions that 9 Q. Lattice-work fences?
10 you would be willing to submit to as part of the approval 10 A. No, they do not.
11 process? 11 MS. DOUGALL-SIDES: city would offer that
12 A. Exactly wbat we've been talking about from the 12 application os Exhibit 1.
13 beginning to DJlproVC it. If it'll auyrcquin::ment of making it t3 MR. POI.LOCK: Try "A."
14 look better. I will be more than happy to stand behind this 14 MS. DOUGALL-SIDES: "A"?
is requirement. is MR. POLLOCK: simply because they're on the numbers.
t6 Q. For example. if the City asked you to repaint your 16 We'll make you the letters. And that way they don't get
17 deck and structure a different color, would you be agreeable 17 confused.
18 to paint it whatever color the City wants? 18 MS. DOUGALL-SIDES: Yes, sir.
19 A. I will. 19 MR. POLLOCK: Would you please go over once again
20 MR. GALBRA1111: Now I'm through. 20 for me for the Qurposes of my notes, those items iliat
2t MS. DOUGALL-SIDES: I don't have any questions. 21 you asked Mr. Sarnoff about ihat you felt were not
22 MR. POLLOCK: All right. Wl~at else, sir? 22 lOeluded on the drawings such as -- it started out with
23 MR. GALBRA1TII: We are restmg. 23 posts, fans. And what olber?
24 MR. POLLOCK: NOW, you have something to do. 24 MS. DOUGALL-SIDES: Yes. Uprights or support posts,
2S MS. DOUGALL-1;IDES: Yes. The Ci woUld call Steve 25 ceiling fans, overhead structure, ano lattice-work fence.
Page 33 Page 36
Sarnoff. I MR. POLLOCK: All right. Thank you. And
2 S T E P HEN S A R N 0 F F 2 Mr. Galbraith. do you l1avc any objection to this, sir?
3 WAS CALl.ED AND AFTER (lI!INO DULY SWORN WAS EXAMINED AND. 3 MR. GALBRAlTIJ: NO objection. sir.
4 TESTIFIED AS FOLLOWS: 4 MR. POLLOCK: Then it will come in as Respondent's
S MR. POLLOCK: state your full name, please, sir. S Exhibit A.
6 TIlE WiTNESS: stephen C. Sarnoff. 6 (Respondent's Exhibit A was marked fof
7 MR. POLLOCK: IS that "V" or "P-h"? 7 ldentification and admitted into evidence.)
8 TIJE WiTNESS: p.h. 8 DY MS. DOUGALL'SIDES:
9 MR. POLLOCK: C. s.a-r ~- 9 Q. Are you familiar with the deck as built?
10 TItE WITNESS: .- n-o+f. 10 A. Vest I am.
11 MR. POLLOCK: Like General Sarnoff of RCA? II Q. Did 1t confonn to the 1996 variance application
12 TItE WITNESS: Yes. 12 plans?
13 MR. POLLOCK: what city do you reside in, sir? 13 A. No.
14 TIlE WITNESS: clearwater. 14 Q. Is a rdiling allowed by Code around an outdoor eaf?
15 MR. POLLOCK: 1118nk you. Okay. Miss Dougall-Sides. tS A. Yes. It's required.
16 MS. DOUGALL-SIDES: thank you. 16 Q. And what is Ole height which that railing must be?
~7 D1RECf EXAMINATION 17 A. It's a Tange of from thirty to farlY-two inches in
t8 BY MS. DOUGALL-SIDES: 18 height.
19 Q. What is your job_positioI!!. Mr. Sarnoff? 19 Q. Does the current railing meet that height
20 A. My job title IS Ccntrall'crmitting Specialist. 20 requirement?
21 Q. And what duties do you perfoml'l . 21 A. No.
22 A. Among my dutics arc the preparatioD Bnd acceptancc 22 Q. Did n from your knowledge, did a Central Pennitting
23 of variance app'licationl, conditional uses. and hmd review.. 23 stalf -. did you or other Ccntral1>enmtting staff ask
24 oceupationalliccnsc review, and special research proJects. 24 Mr. Hasan to change the height of that railing to forty-five
25 . Do ou review lans for zonin corn Hance? 2S inches?
COMPLIMENTS OF D & D REPORTING SERVICE, INC.
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BUDZINSKI VS. CITY OF CLEARWATER Mu1ti-PagcThl
FINAL HEARlNGt 04/16/97
1 Q. And showing you City's Ex.hibit C, is that a cop;~f 40
2 the stoll work order?
3 A. Ycs. that is a copy. It came out of the same file
4 that those photos did.
S Q. And what is lhe date shown?
6 A. 12.20-96.
7 MS. DOUGA1.1..SIDI!S: city would offer this as Exhibit
8 C.
9 MR. j'OI.1.OCK: Any obj~ti<;m, sir?
10 MR. GAI.DRArm: No obJccl1on.
II MR. P01.LOCK: All right then. Il will come in as
12 Exhibit C.
13 (Respondent's Exhibit C was marked for
14 Identification and admiued into evidence.)
15 BY MS. DOUGALl..SIDES:
16 Q. Are you familiar with other outdoor caf sin lhe
17 same zoning district?
18 A. Yes. I am.
19 Q. Arc you familiar with the caf s which were just
20 listed regarding Mr. Hasan's p'hotographs?
21 A. I didn't see what the photographs wcre. I'll be
22 happy to revicw them.
23 MR, POLl.OCK: DO you have them? Or do I have them?
24 Are you talking about which ones now'l
2S MS DOUGALl..SIDES: Mr. Hason's photographs,
Page 37
I A. I'm Dol aWafC of that., no.
2 Q. Under what condilions is a deck allowed in lhe beach
3 commercial zoning district without obtaining a setback
4 variance?
S A. Excuse me. It's.. correction. It' fl resort
6 commercial 28 district.
7 Q. I'm sorry. CR28.
8 A. CR28 zoning district. The ouldoor deck ill allowed
9 under our sidewalk caf Ordinance 41.221, 8S long as it
10 doesn't exceed 2S percent of the indoor scating area. It's
11 allowed to be outdoors DlloD8 at it be on private property.
12 Q. Is there u height rcquin.-mcot for the deck itself?
13 A. No, there's no height requirement for the deck in
14 that ordinance. Just thot Dnything higher than twelve inchcl
15 is considered to be 0 structure. And thc deck Will proposed to
16 be at the twelve-inch mark, IlO that it would meet the Code ond
17 not require any additional variance for anything that they
18 also wanted to do.
19 Q. Is it nonnal procedure for a certificate of
20 occupancy to be issued for a deck?
21 A. Yes, it is.
22 Q. Has there been one issued in this case?
23 A. No. there has not.
24 Q. And why is that?
25 A. The permit is on hold.
(,.-,
Page 38
1 Q. Why is it on hold?
2 A. The permit is on hold because the way that the deck
3 was pcnnittcd and complcted was not in keeping with Condition
4 1 of the vnriance apJlroval by the Development Code Adjustmcnt
5 Board of the 1996 variance.
6 Q. So at such time as it is in compliance, what would
7 happe1!?
8 A. Okay. If the deck would be in CO~'pliancc with the
9 original approval of 1996. at that time, if everything else
10 Vo'U approved by our Building Inspection Department, they would
11 recelve a seal.
12 Q. Arc you familiar wilh the support posts?
13 A. Yes.
14 Q. Do you have any knowledge as to how sturdy those
15 are?
16 A. My rccollection of the original plans were that they
17 were signed and scaled by an architect to be able to meet wind
18 loads.
19 Q. I'm sorry. To be able to meet--
20 A. To be able to meet wind load calculations.
21 Q. Illl show you what's been marked as City Exhibit B
22 and ask if you can identify that.
23 A Yes, these arc two photos that I found that eame
24 from a building inspector by the namc of Greg Clark. This is
25 his file of the outstanding violations for this particular
1 building permit. He is the one who -- he is the buil~~~ 39
2 inspector 1Dvolved. And these were pictures -- photos he look
3 back 00 January 31st of 1997, two vicws ohhis dcck with the
4 covering on it.
5 Q. So to the best of your knowledge, they depict the
6 property as of that date?
7 A. Yes, that is correct.
8 Q. And those were in your file?
9 A. That is correct.
10 MS. DOUGALL-SlOES: we would offer those photographs
11 as Exhibit B.
12 MR. POLLOCK: Have you seen them, Mr. Galbraith?
13 MR. GALBRAITI-I: I have seen them, and I don't
14 object. They're nice photographs.
15 MR. POLLOCK: We will mark them as Respondent's
16 Exhibit B for identification and admit them.
17 (Respondent's Exhibit B was marked for
18 uicritification and admitted into evidence.)
19 MR. GALDRAlllt: May Mr. Bason look as 11lOSC brieOy?
20 He didnlt get a chance to.
21 MR. POLLOCK: sure. Absolutely.
22 BY MS. DOUGALL-SlOES:
23 Q. Did there come a time when the City issued a slop
24 work order regarding lhe deck?
25 A. Ycs. it ilid.
Page 41
1 Petitioner's --
2 MR. POLLOCK: DO you want to let him look at lhe
3 better --
4 TIlE WITNESS: oh, yes. Could I? Thank you. I
5 appreciate that. Thank you.
6 BY MS. DOUGALL-SIDES:
7 Q. Looking atlhe first photograph, which is marked
8 Palm Pavilion, do you know _w are you familiar with that
9 propcrty?
10 A. Yes. I'm sorry. I missed -- no. lhis is the south
11 Palm Pavilion, the one across from South Gulfvicw, not the one
12 that'l up north by Rock Point. This is the one thal'S on the
13 public beach in the open space recreational zone. It is not
14 lD the CR28 ZODC. Let's sec. The Alex Family Restaurant--
15 Q. Well, just a moment. On the Palm Pavilion --
16 A. I'm sorry.
17 Q. -- is that considered an outdoor caf under the
18 City's outdoor caf ordinance?
19 A. No, ma'am, it isn't.
20 Q. And why not?
21 A. It is a conditional use and the open space
22 rccn:ational restaurant, snack bar situation. And this was nn
23 existing structure. So it docs not meet the same st.'lndards
24 that the subject property docs.
25 Q. Lookirig at the next photograph, which is entitled
Page 42
1 Alex. Family Restaurant. arc you familiar willi that property?
2 A. Yes.
3 Q.. Can you compare that witil Britt's Caf in teons of
4 zomng rcquirements?
5 A. Yes. Actually, the Alex. Family Restaurant is in the
6 same zoning district, CR28. It docs have the same
7 fifteen-foot setback requirement IlS the 201 South Gulfvicw.
8 The differencc with that awning is -- now, again, there has
9 beeo some work there without permits. Okay? So I'm not sure
10 of whut's in the picture, what's legally approved and what is
11 still in violation? Okay?
12 MR. POLLOCK: All right.
13 TIlE WITNESS: so there's some question about this.
14 Butlhatawning, again, from this pl1oto only, ap~ to
15 be movable. It appears to be the type that can roll up.
16 Butl canlt tell for sure from the distance this photo
17 was taken.
18 BY MS. DOUGALL-SIDES:
19 Q. And next, the Waterfront Restaurant on Page 2 of the
20 phot~phs.
21 A. Oby. This property is in the beach commercial
22 zon~ district. Again, not the same zoning district as tJle
23 subject property.
24 MR. POLLOCK: which one is that? The Waterfront?
2S TIlE WITNESS: The Waterfront Restaurant, 490
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Page 37 - Page 42
COMPLIMENTS OF D & D REPORTING SERVlCEt INC.
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BUDZINSKI VS. CITY OF CLEARWATER Multi-Page"" FINAL HEARING, 04/16/97
Page 43 Page 46
I Mnndnlny Avenue. 11\ot'9 in n different 7.oning district I wnl II in plaoc looking down here, I would IOC B deck with
2 withouttl1c setback requirement. Deach commcrcial docs 2 slots.
3 not have it. Just as an added thing, that particular 3 Q. Do you sex: any language on this page that says,
4 structure, thut was approved wilh variances nnd 4 nothing to be constructed above one foot above ground level? _
5 conditional use approved, and even at a CilY Commission 5 A. Nothing on the 'p'nge. ~
6 alcoholic separatIOn variance:. So that was a 101 of 6 Q. Is there a prohibition ~ainst Il. safely rail?
7 public hearings to get that deck with Ihe covering on it. 7 A. Therc's Dot a prohibition.
8 DY MS. DOUGALL.SlOES: 8 Q. Is there a prohibition against the posts and rafters
9 Q. So is it -. docs it have alIthe necessary approval 9 that were actually built?
10 to your knowledge? 10 A. Yes, sir.
II A. Ycs, it docs. The next one is J1rcnchy's Rockaway. II Q. Now where do you find that?
12 And, nBBin, lbe deck did go for vorianCCl. And lhc awning 12 A. On ihe drawing, sir? Those rafters are not shown on
13 over the deck, canopy, did go for variances also. And in 13 thc drawing.
14 fact, it was denied a variance. And it. actually, camc back 14 Q. Do you see: any language that says, no rafters?
15 and they nmcnded the distance of the canopy. IS A. I see no rafters shown, sir.
16 Q. Wl1en you say 'famended the distance," wl1at do you 16 Q. Do yo~ see a safety rail shown?
17 mean? 17 A. No, Blr.
18 A. Okay. That there was a requirement for the coastal 18 Q. Docs Utat mean a safety mil is prohibited?
19 construction Hnc, and they had to change lbc distance again. 19 A. No, sir. Our Code, which, again, may I refer back
20 It wasn't a setback frorn a street riJU1t-of.way. It was a 20 to the first J.lage wherc it says, "for construction of an
21 coastal construction line if I recolTed correctly. 21 nutdoor car It would meet our ouldoor car roquircmcnt of
22 Q. And, finally, on the fast page, Frenchyl s Saltwater 22 having the railing between thirty and forty-two inches, "
23 Caf. 23 not--
24 A. Frcnchy's Saltwater Caf , again. is in a beach 24 Q. Bul, Mr. Sarnoff, if r take your testimony
25 commcrcial7.Qning district on Poinscttia AvcDuc and docs Dot 25 corrcctl ,if I don't see safel railin s on this c hcre,
Page 44 Pagc 47
1 meet the same criteria as the CR28 7.000. 1 you can1t put in safely railings. You're telling me that if
2 Q. Are both Frenchy's currently legal, to your 2 you don't see rafters, you can't put in rafters. And I don't
3 knowledge? 3 see any safcty railings. Want to tell us aboul the one-foot
4 A. To my knowledge, they are. 4 rule for a setback?
5 Q. So they have all requisite approvals, to your 5 A. Yes, sir.
6 knowledge? 6 Q. Where do you find that?
7 A. That's correct. 7 A. In Section 3511 in the Building Code definition.
8 Q. Now, I'd like to show you the second pa,ge of 8 Q. And how tall is the safety rait?
9 Petttioner's Exhibit 3, which is a drawing dep1cting tlmount 9 A. A safety rail? Our Code, in our outdoor caf space,
to detail for cover at Brin's ear "1 and ask whether you recall 10 betWCCD thirty and forty-two inches.
11 seeing that drawing in your departmental file. II Q. More than onc foot?
12 A. No, I don't recall seeing it before. 12 A. Yes, sir.
t3 MR. POLLOCK: Which one is that? 13 Q. So would a safcty rail on lhe deck reqUire the
14 MS. DOUGALL-SIDES: pctitionerts Exhibit 3, second l4 structure to be considered a structure for setback p-Ulposes?
15 page. 15 A. NOJ.sir. Dccausc in our Section 40.221 that was
It' MR. POLLOCK: okay. I have it. 16 allowed lor as a permitted thing to do.
17 BY MS. DOUGALL-SIDES: 17 Q. 41 or 40.221?
t8 Q. Would a plan such as that or drawing such as that 18 A. I'm sorry. 41.221. Excuse me. 41.221.
19 require an. engineer's seal or an architect1s seal for the City t9 Q. Isn't that the same section of the Code that also
20 to aCce;Qt 1t? 20 says, an outdoor caf shall consist of movable tables, etc.,
21 A. Yes, it would. 21 awmngs, and canopies for seating?
22 Q. Does that drawing show a seal? 22 A. That is correct.
23 A. No. it doesn't show that. 23 Q. Same? Okay.
24 Q. So can you verify today whether or not the City did 24 A. Yes, sir?
25 accc t the drawin ,to our lCnowl e? 25 Q. JUSl making sure we're reading out of the same code
Page 45 Pase 48
1 A. No, I couldn't. I see no approvals written on here, 1 book.
2 or nor do I see a received stamp. 2 A. Yes, sir.
3 Q. Is it the practice for the City to stamp a plan 3 Q. So you're looking at this section for authorization
4 tlreceivedll? 4 to put in a safcty rail. And Mr. Hasan is -- this is
5 A. When we issue -. when it's presented to us for 5 argumentative. 1'11 stop rig}Jt here. Ill! save that for
6 permitting purposes, yes. 6 later. Did you write the staff recommendation to the
7 MS. DOUGALL-SlOES: Nothing further. 7 DcvcloP!I\a1t.Codc Adjustment Bonrd dated February 13, 19977
8 MR. POLLOCK: Cross-examine, sir? 8 A. No Sir.
9 CROSS.EXAMINATION 9 Q. Did you have any input into it?
to BY MR. GALBRAJTI{: IO A. I don't recall.
II q. Mr. Sarnoff, let mc refer you back to the drawing, 11 Q. Then do you know who wrote the statement that "the
12 which is page six of the variance staff report from January 12 fnune was built pursuant to the City's pennit and the City
t3 11. 1996. 13 accepts its Cl(isltncc"? Do you know who wrote that sentencc?
t4 A. Just a moment. Let me get a copy of that, please. 14 A. To the best of my knowledge, it was Mr. John
IS Q. Do you have that before you? I S Richter.
16 A. Yes, I do. 16 MR. GALDRAITIt: okay. I have no further questions
17 Q. Now, whal was the issue before the Board on January 17 for this witness.
18 11, 1996? t8 MR. POLLOCK: Redirect?
19 A. The loss of thrce parking spaces. 19 MS. DOUGALL-SIDES: Yes. Just briefly. \.
20 Q. And does this cirawmg show the location of the three 20 REDlRECf EXAMINATION '.....,,'
21 spaces to be lost? 21 BY MS. DOUGALL-SIDES:
22 A. Yes, it docs. 22 q. Mr. Sarnoff, arc you familiar with the conditions
23 Q. Wl1at else does it show? 23 Wh1Ch DCAB routinely places on approvals?
24 A. It shows the outline where the decking would be 24 A. Yes, I am.
25 located. And it shows the slats of the deekin . so that if I 25 Q. Is there a condition that's nonna! for them to tie
COMPLIMENTS OF D & D REPORTING SERVICE, INC. Page 43 ~ Page 48
BUDZINSKJ VS. CITY OF CLEARW A l'ER Multi-Page n.4 FINAL HEARlNG, 04/16/97
Page 49 Page 52
I the apP!ovlllto Ihc plans that arc submitted? I DV MS. DOUGALl.'SlOr:S:
2 A. Ycs. Any condition or approval, number one. That 2 Q. Do you recall discussIon by lhe DeAD Board of
3 h on aU variancclI gmntcd by the Dcvclopmcnt Code Adjultment 3 postponing decision on this application unlillhe Design
.. Board. 4 ReView Board could review it?
/--'\ MS. DOUGALL.SIDES: I have nothing further. 5 A. They discussed that possibility.
MR. .POLLOCK: All right. Thank you, Who is your 6 Q. And did thcy, decide to so postpone U1C application?
7 next witness? 7 A. No. thcy didn't decide to do that.
8 MS. DOUGALL.gIDES: John Richter. 8 Q. Why was it--
9 J 0 H N R I C H T E R 9 ,A. It may well be that denial of the variance perhaps
I 0 WAS CALLI!D AND AFTER BElNO DUI. V SWORN WAS (l.xAMINED AND 10 might cause the owner to --
II TESTIFIED AS FOLLOWS: II MR, GALDRAlTIf: I'm going 10 objccl on the grounds
12 MR, POLLOCK: state your futl name. please, sir. 12 lhal they arc speculating as to what the owner might want
13 TIlE WITNESS: John Richlcr. 13 to do. .
14 MR. POLLOCK: g.i .. 14 MR. POLLOCK: well, I dontt think welre speculating
IS TIm WITNESS: .. c-h+e'r. IS on what the owner might want to do. Itls what the effect
16 MR. POLLOCK: What city do you reside in, sir? 16 might be on lhe owner. Isn't that what you were going to
17 TIlE WITNESS: ~o, 17 say? .
18 . MR. POLLOCK: Thank you. All right, ma'am. Your 18 TIlE Wln/ESS: Yes, sir.
19 WItness. 19 MR, POLLOCK: okay. Go ahead.
20 DIRECT EXAMINATION 20 TIlE Win/ESS: Il may well be that the effect of the
21 BY MS. DOUGALL.SIDES: 21 variance denial would be that the owner would opt to
22 Q. What is your job title, Mr. Richter? 22 submit plans to the Design Review Board.
23 A. Senior Planner. 23 BY MS. DOUGALL-SlDE.~:
24 Q. And in that cajlacity, what are your duties? 24 Q. What, if any, provisions exist in the Code for the
25 A. I re are staff rc arts for the Dcvclo mcnt Code 25 Desi Review Board to review construction in the Clearwalcr
Page 50 Page 53 :
1 Adjustment Board and present them to the Board. [also 1 Beaeh 1Ul.".a?
2 prepare staff reports for sign variances for the City 2 A. It may be best if you defer that question to
3 Commission. And, in additioDll'll prepare other -- work on 3 Mr. Shuford. Is that okay?
4 other s~ial proJccts as assigned. 4 MR. SHUFORD: Absolulcly.
5 Q. And how long have you been acting in that capacity, 5 TIlE WITNESS: Thaes more in your neighborhood.
6 as far as you remember? 6 BY MS. DOUGALL-SIDE.~:
1 A. Well, I've done so many different things over the 7 g. Do you recall faxing a copy of the outdoor caf
8 years. I've tx:c:n lCportiog to the Code Adjustment Board for 8 ordmance to Mr. Hason liS he's testified he received?
9 the past three years. And then there was a period of time !) A. Well. I don't recall do~ it. But I certainly
10 where I previously reported to them rO~t maybe. ten years. 10 don't dispute that I did it, seemg my name on that pagc.
II Q. Did you prepare the staff report for Ule Briuls II Q. Do you recall telling him that he would be allowed
'Af appHcation in January 19967 12 to put up an awning under the outdoor car ordinance?
A. Yes. I did. 13 A. No. I don't recall saying that.
14 Q. And did you also 'prcIJarc the staff report for the 14 MS, DOUGALL'StDE.~: Nothing fUrther, your Honor,
IS subseqlJent application III 1997? 15 MR. POLLOCK: cross, sir?
16 A. Yes. 16 CROSS-EXAMINATION
11 Q. In that 1997 report, what were your recommendalions 17 BY MR. GALBRAmi:
18 to DCAB? 18 Q. Mr. Richter, do you recall ever discussing with
19 A. In 1997. we recommended that the variance tbat was 19 Mr. Hasan the issue of an awning or a canopy over his deck at
20 being requested be ll:Pprovcd. But it.s noteworthy that we 20 any time? '
21 specified that attcnhon needed to be given to the external 21 A. Yes, sir. I do. .
22 appearance of the outdoor caf. And our approval was 22 Q. Did I hear you say }'ou don tt recall sending him !.his
23 contil!gcot on that attention. 23 faxed copy of Section 41.221, Sub I, Sub C?
24 Q. Did you make any specific suggestions willi regard to 24 A. My statement was that I don't recall sending that to
2S the a ce? 2S him. but I ccrtainl do not dis ute that I scnt it to him.
. Page 51 Page 54
1 A. Yes. we: made some suggestions. The suggestions wen: I Q. Do you recal1 discussing this language with him at i
2 Dot intended to be the only WRY that the appearance could be 2 any time? !
3 enhanced. . 3 A. No, I don.t.
4 Q. Did you hold any discussions or meetings with 4 Q. Do you ever recall his asking about the possibility
5 Mr. Hason or the property owner in connection with the 1997 5 of a awning or a canopy that might be movable?
6 application? 6 A. No I don't. .
7 A. I think you could say yes. In review of the 7 Q. Did you wrilc the variance staff ~ort that's dated
8 variancc application, I visitod the property nod met Mr. Hasan 8 FcbflU!l"Y thc 13th -- I tm sony written in advance of that
9 there. It wasn't anything that was formally scheduled, but we 9 dates for the February 13, 1997. meeting of the Development
10 did discuss the variancc. 10 Code Adjustment Board?
11 Q. Do you recall discussion at the Board meeting 11 A. "I wrote it, yes.
12 regarding the Design Review Board? 12 Q. Do you have a copy there before you?
13 A. To some extent. 13 A. Yes. I do.
14 Q. What is that board? 14 Q. Would you look at the first full paragraph on page
15 A. The Design Review Board is a board that consists of 15 one under I1staff analysis of requestlt?
16 citizens who arc appointed by the City Commission to review 16 MR. POLLOCK: which one is this, sir?
17 building plans to determine wbclhct or not those plans meet 17 MR. GALBRAiTIl: This would be eo actually, 11m going
18 design guidelines for the area. 18 to call it my Exhibit No.5. It's in your file already.
MR. GALBRAI1lI: Your Honor, I'm going 10 object to 19 Ilts the staff report to Ule Board on the various
,.-J any further questions about the Design Review Board, 20 applications that the Board itself would have seen.
21 unless they can connect tbis up with something relevant 21 MR. POLLOCK: I'm lookin& to see where it is.
22 to the case before you. 22 Variance transmittal? Or staff report?
23 MR. POLLOCK: sounds reasonable to me. 23 MR. GALBRAITII: The third line at the top says,
24 MS. DOUGALL-SIDES: All right. 1111 try. 24 "variance staff report,1t
25 MR. POLLOCK: All ri t. 25 MR. POLLOCK: NO, sir. That's not onc of the ones I
COMPLIMENTS OF D & D REPORTING SERVICE, INC. Page 49 - Page 54
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BUDZINSKI VS. CITY OF CLEARWATER Mu1ti-pagc1}ol FINAL HEARING, 04/16/97
Page SS Page S8 I
1 have, unless maybe this is it. Variance staff report. I (A brief recess was taken.)
2 All right. I have it. 2 MR, POLLOCK: Would you slate your name, please,
3 DY MR. OALDRAITII: 3 sir"
4 Q. Mr. Richter, do you have that first full paragraph 4 11IE WITNESS: David Scoll Shuford.
S under slUff analysis of rtquest? Do you see the sentence thaI 5 MR. POl.LOCK: s.. how do you spell it?
6 says, lithe frame d<x:s not meet code because is it constructed 6 11m WITNESS: S,c'o+t.
7 WIthin the setback variance required for South Gulfvicw 7 MR, POLLOCK: NO, no.1 no. Shuford?
8 Boulevardit? Would you, sir, read out loud the next sentence? 8 TIlE WIDlESS: s.h-u-I'o'r.d,
9 A. "However, the frame was built pursuant to a City 9 MR. POLLOCK: What city do you live in, sir?
10 issued ~rmit and consistent with City policy. Thc City \0 TIlE WITNESS: clearwater.
I I accepts its cxistence.. \\ MR, POLLOCK: Thank you. All right.
12 Q, What docs it mcan then to say that the City accepts 12 MS. DOUGALL-SIDES: Thank you.
t3 the existence of the frame? 13 MR. POLLOCK: Yes, ma'am.
14 A. That means that it's City policy that isn't pursuing 14 DIRECT EXAMINATION
15 action by the Code Enforcement Board to remove it. 15 BY MS. DOUGALL.SlDr:s:
16 Q. Now, '(au heard Mr. Sarnoff testify' earlier that a Hi Q. What is your job title, Mr. Shuford?
17 certificate 0 occupancy was never issuci1 by the Cily for the 17 A. Ccntrall'cnnitting Director.
18 deck. Do you know if that's correct or nol? 18 Q. And as such, arc you designated as the Development
19 A. I don't know. 19 Code Administrator for the City?
20 Q. If that is correct and there is no co for the deck, . 20 A. Yes, ma'am.
21 what would the City's ,Position be regarding code enforcement 21 Q. Can you explain to the Administrative Law Judge why
22 if the deck remains as It is today, status quo? Do you 22 Britt's was requiicd to obtain a variance for the awning,
23 understand what the City's poslllon migtit be in terms of code 23 specifically?
24 enforcement? 24 A. Britt's was required to obtain the variance for the
25 A. It would be s eulative for me to res ond. 2S owning. because we considered that part of the structure, an
Page 56 Page 591
1 Q, But you did tell the Board that the City accepts the t expansion of the ItruCture that had bocn crnctcd previously.
2 existence of lhc frame consistent with City policy, That's 2 Aod os a consequencc, we fclt that the awoiog nccdcd to obtain
3 what I find in your report herej is that correct? 3 a variance. I
4 A. Yes. 4 Q. So the property owner has' built a deck. Are they,
5 Q, In writing this report did you consider the various s or are they not automatically entitled to put an awning on I
6 criteria that have to be mct in order to obtain a variance? 6 thcre? I
7 A. Certainly. 7 A They were not automatically l.'1ltitled to put an
8 Q, And did you reach any conclusions rc,garding the fact 8 awning on there.
9 as to whether the applicant had complied WIth the approval 9 Q. Are you familiar with Section 41.221 of the City
to standards? 10 Code ~gardjng outdoor caf s?
11 A. Yes,l did 11 A. Yes, ma'am.
12 Q. And did -- is your conclusion set forth on p.BEe lwo 12 Q. And how do you tend to be familiar with that
13 of your ~ort under the heading, "Compliance with Approval 13 section?
14 Standards '? 14 A. I wrote that section in 1996. I
15 A. Yes. 15 Q. Could it have been 1995?
16 Q. Is that the place where I would find your 16 A. Could have been 1995. There was an amendment in
17 conclusion? Would you read that sentence out loud for the 17 1996.
18 record, please? 18 MR, POLLOCK: Could it be that you didn't writr. it
19 A "Appears to comply with all standards for approval 19 at all?
20 provided attention is given to the external appcarnncc of this 20 THE WITNESS: well, I had some help from somebody
21 caf." 21 else in this room.
22 Q. Stafr rcconunendation was approvalj is that r..orrcct? 22 MR. POLLOCK: Wouldn't be a bald guy with a little
23 A. Provided attention is given to the external 23 bit of hair missing, would it? Okay. Go ahead, please.
24 appe3.!aDtr. of the caf . 24 BY MS. DOUGALL. SIDES:
2S Q. Oka . Did ou resent the Board with an facts or 2S Q. And what is our recollection of wh this section
Page 57 Page 60 i
I evidence thal would support a "nol' vote on the Board's part? 1 was adopted?
2 I'm going to withdraw my question, because it asks for a 2 A. It was adopted to provide an incentive for more of al
3 conclusion. I withdraw it A terrible question. Were you in 3 festival abnosplierc in our pedestrian-oriented areas to
4 attendance at the Board hearing on February the 13th? 4 encourage outdoor caf s lik"e :vou might see in many of the I
S A. Yes, sir. S resort areas, not just in Amenca, but worldwide. I
6 Q.. Do you recall any' testimony being given to the Board 6 Q. And would the Clearwater Deach area' of Clearwater be
7 in opposition to the variance request? 7 considered an area that was appropriate for outdoor caf s1
8 A. I don't recall. However, the record would speak for 8 A. Yes, ma'am.
9 itself. 9 Q. I was showing you a copy or that ordinance and
10 Q. You don't recall any witnesses coming up out or the 10 referring you to Subsection I-C. Would you review that?
11 audience saying, "I object for some reason or another"? 1 t A Yes.
12 A. I really don't recall. 12 Q. Arc you able to say what wa!; the intent of that
13 MR. GALBRAll1J: (have no further questions. 13 particular subsection?
14 MR. POLLOCK: Anything o~ redirect, ma'am? 14 A. Well, the intent was to allow outdoor car s on
IS MS. DOUGALL-SIDES: NO, SlC, 15 private sidewalks that would consist of movable items likt:
16 MR. POLLOCK: All right. Thank you. 16 tables, chairs, umbrellas. awnings, canopies, or other forms
17 MS. DOUGALL.SIDES: city would finally call 17 of seating. And the intcn~ further intent there was that the:
18 Mr. Scott Shuford. 18 structures would be dcssgned or installed to not interfere
19 S COT T S H UFO R D 19 with ~strian lnlffie and meet wind-resistant rcquin:mcnt. \
20 WAS CALLBD AND AfTER DEINO OUL Y SWORN WAS EXAMINBD AND 20 Q, What is your interpretation, as Development Code "P.."
21 TESTIFIED AS FOLLOWS: 21 Administrator, of the tenn. "movable"?
22 MR. POLLOCK: I'll tell you what. I'm going to take 22 A. Movable means something that would be readily able
23 about a two-minute recess. thoug~1 before we take 23 to be taken in. For example, an umbrella or tobIes that wen:
24 Mr, Shuford. Any problem v.:ilh mat? 24 not affixed to the ground.
2S MS, DOUGALL-SIDES: NO, SlC. 2S Q. Have ou seen Petitioner's Exhibit 3 tOOn showin a
COMPLIMENTS OF D & D REPORTING SERVICE, INC. Page 55 - Page 60
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BUDZINSKI VS. CITY OF CLEARWATER Multi-Page 1'M
Puge 61
I plan of an awning? Q. And the rccomml.:ndution was for approval?
2 A. Yes. ma'am. I did see that today. 2 A. Yes, sir.
l Q. From your view of that exhibi~ would you consider 3 Q. Now, were you aware .. you must have been aware that
4 that awning to be a movable awning'( 4 the d~k as it exists today was built under a City building
5 A. It docsn'tapp-car so. This particular awning looks 5 penmt.
6 like to remove the fabric it's going to take quite n bit of 6 A. Yes, sir.
7 effort to accomplish that because of the construction here. 7 Q. Whoever told you the City made 11 mistake when they
8 There arc some cotter Jlins and things like that that would 8 issued that p'cnnit?
9 show that there is some ability to remove it. Dut it's more 9 A. I think it was evident we made a mistake when we
10 of a pcrntanent-tXJ'C; awning, llll opposed to lomcthing that would 10 iR!Ucd the permit, becauIC the permit plnnl went 1I0mewbat
11 roll UJ! on a dady basis. II beyond wb.t wu prclCntcd to tho Dc:veIClpmcnt Code AdjuIlment
12 Q. Going back to the question I had asked Mr. Richter, 12 llonrd in obtaining the variance for the parking spaces. And
13 What, if any, p'rovisions exist in the Code of Ordinances for 13 so once that mistake bad been made--
14 design review in the Clearwater Deaeh area? 14 Q. SlOp and let me ask you, To what extent docs the
105 A. The Code establishes Clearwater Deach and this 15 cxistina deck go beyond the plans shown to the Board in 19961
16 particular area of Clearwater Deach as an area where once 16 A. Primarily the rafter area.
17 dcsi~n guidelines bad bocn developed. they would be subject to 17 Q. And do you base that statclllt:nt upon the fact that
1 8 deSI~ review. 18 the drawing of the deck docs not show the rafters?
19 Q. Have those guidelines been developed? 19 A. Yes, sir. That, and I think the way the testimony
20 A. No, ma'am. They're in the process of being 20 went and tbe way it WaR prescnted to my staff iu tcnns of what
21 developed. 21 was being proposed.
22 Q. And is there an expected finalization date for 22 Q. Now, is it your position that the safety railing
23 those? 23 also violates the conditions of the variance approval of 1996?
24 A. We think within thirty to forty-five days we'll have 24 A. No, sir.
25 the final version back from the consultant. ADd then we would 205 Q. Do ou see the safct railin s in that same drawin ?
Page 62 Page 65
1 establish a review by the Design Review Doard for 1 A. No, sir, they arc not in that same drawin~.
2 recommendation to the City Commission, who would tbcn adopt 2 Q. When Section 41.221, Sub I, Sub C was wnttcn, do
3 the design guidelines by resolution. So that's approximately 3 you recall why we used the word "shall" instead of "may"?
4 ninety days out. 4 A. I believe it was intended to be directed in terms of
5 Q. "WI,en those guidelines arc adop~l would you 05 the movable as~cts of Ule distinction there as opposed to
6 consider the propoSed awning to fall wiUlin the guidelines? 6 requiring that all those things be provided.
7 A. Yes. 7 Q. Was an attempt made to define the word "movable"?
8 Q. In the event the Administrative Law Judge reverses 8 A. No; sir.
9 the Board's decision, arc there any conditions you would wish 9 Q. Is movable necessarily synonymous with removable?
10 to suggest that the City staff would -- that would be 10 A. No, sir.
11 acceptable to Ci~ staff? 11 Q. Docs movable mean movable every hour. or even daily?
12 A. The conditions that were recommended in Ute staff 12 A. In the cont.cxt of a sidewalk car, I think it does.
13 report. of course. would be the ones that we would suggest. 13 I think the intent &hac was that movable would be somethi~
14 And we would further suggcst some of the appearance issuc! be 14 that could be taken in on an as-nccdcd basis. And I think
I S directly addressed. And I think there's been an education 15 it's a sidewalk caf -- like most people DJ'C familiAr with --
t6 here today if the applicant would be willing to accept tbose 16 then I think the idea or the picture that that would generate
17 conditions in tcnnl of painting and otherwise modifying the t7 in someone's mind would generate the movable contents that we
18 stnIcture to better match the existing building from an 18 were talking about in that ordinance.
19 architectural standpoint. 19 Q. So if an awning is designed to be put into place for
20 Q. When you refer to the conditions listed in the staff 20 rainy weather and retracted during sunny weather, would you
21 reporti arc those "staining of the deck to match the building" 21 consider that to be movable?
22 -- wel -- 22 A. Yes sir.
23 A. Mr. Richter made off with the copy we were sharing. 23 Q. How much time did you have to spend anal~ng the
24 We suggested -- and this might be a conaition -- that the 24 drawings that I think you said you saw today deplcting the
25 following things might be done: At fint. the application of 2~ canopy which were submitted here to be placed over this deck?
Page 63 Pagc 66
1 a white stain to the wooden structure, and then the I A. I believe you saw the extent of the time I had to
2 utili7..ation of an awning colored to mateh the second-story 2 review that.
3 motel room doors. These were a couple of ideas that we bad in 3 Q. But I believe you said that these plans would not,
4 our dcsiB,D j)lan or in discussill8 this staff report. We think 4 in your opinion, show a movable awning.
s those might be the appropriate conditions, additions. 5 A. That's correct.
6 MS. DOUGALL.SI/?ES: Thank you. Nothing further. 6 Q. ~ you explain why you have reached that
7 MR. POLLOCK: Sir? 7 conclUSion?
8 CROSS'EXAMJNATION 8 A. The drawing 00 the plans docs indicate some -- the
9 BY MR. GALBRAl1ll: 9 fabric that --thcre's a comment 00 that at the lower
10 Q. Mr. Shuford, what's the working relationship between 10 rigbt-band comer, if you wiU, of the canopy, where it says
11 you and John Richter? 11 "removable fabric." But the drawing here docs Dot look like
12 A. I'm his boss. 12 something that slides back and forth or can be readily rolled
13 Q. Do I understand that John Richter 'Wrote the staff 13 up. There's nothing thnt indicalcs a mecbanism that would
14 m:ommendation to the Development Code Adjusuncnl Board for 14 allnw that to occur.
15 their February 13, 1997, hearing? 15 And if there is, then certainly I'm at fault for not
16 A. Yes. SU'. 16 seeing that. But it doesn't show up on this drawing. It
17 q. And do you review those staff recommendations on 17 appears the removable -- well, part of it is actually the
18 thel! way to ilie Board? 18 frame. which would include not only the fabric part of the
19 A. I do. I don't -- and let me elaborate; because I 19 canopy but also the structure that holds it to the rafters.
20 think I know what the Dext question is. I don't recall 20 Because they have the cotter pins there for removing that.
2t reviewing this particular one. I was, basically, out of the 21 Q. So if Mr. Hasan can demonstrate that the frame is
22 office rewritiog our Land Development Code nt the time which 22 retractable along with the fabric, would that enuse you to
23 this was being discussed. So I wasn't very heavily involved 23 have a different opinion regarding whether this is movable or
24 in reviewing the staff report. But I am famihar with this 24 not?
25 onc and certainl concur with its recommendation. 25 A. It mi ht, if that can be demonstrated. Certainl ,
COMPLIMENTS OF D & D REPORTING SERVICE, INC. Page 61 - Page 66
FINAL HEARING, 04/16/97
Pagc 64 I
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BUDZINSKI VS. CITY OF CLEAR WATER Multi-Page 110(
Page 67
I it ian't obvious from this drawing, because it 8Ppcu1 what..
2 and, i gueS8, let me explain my basis for looki!l8 at this.
3 This appears to be a method for attaching the frame, the
4 aluminum frame, to the railing t118t's out U1cre now or the
S rafters.
6 And it apJ!C8fS wbat you have is that's welded to the
7 aluminum and thcn a cotter pin is put Uuough. So it looks
8 like it's Dot somcthing that's readily removablc. It looks
9 lib: IOIDcthing that caDnot be put up quickly to cover a sudden
10 lummer thunderstorm or remove quickly to take advantage of a
II nice day.
12 Q. Were you in attcndanceatthe February 13,1997,
13 hearins_of tl}c Development Code Adjustment Board?
14 A. No, Slt.
15 MR. GALDRAlTIl: 1 have no further questions.
16 MR. POI-LOCK: Anything on redirect, ma'am?
17 MS. DOUGALL.SIOES: No, sir.
18 MR. POLLOCK: Anything further?
19 MS. DOUGALL.SIOES: Only that the City has some
20 further exhibits. .
21 MR. GALDRAITII: Your Honor, for the benefit of my
22 client here, I want to ask you. Mr. Hason would like 10
23 offer some lestimony in rebuttal. And he will be given
24 that opportunity shortly. I just wanted him to
25 understand that.
Page 68
MR. POLLOCK: Yes. As soon as she finishes, I'll go
back to you for rebuttal.
MR. GALBRAITII: okay.
MS. DOUGALL.SIOES: I believe we're up to City
Exhibit E.
MR. POLLOCK: ~E~1 I thought it was "D."
MS. DOUGAL1.-SIDES: oh. Pm sorry. "D."
MR. POLLOCK: ~A~ was the application. IIB" was the
photos. flC't was the stop work order.
MS. DOUGALL-SIDES: This would be "D."
MR.. POLLOCK: And then "Oil is what you have to offer
now?
MS. DOUGALL-SIDES: Yes. Which would be an excerpt
of the DCAD minutes for Jan~ II, 1996, regarding the
variance application V96-06.
MR. POLLOCK: You're on -- this an extracl; is that
correct?
MS. DOUGALL-SlOE-I): Yes, sir.
MR. POLLOCK: Item six is the only thing you're
referring to?
MS. DOUGALL.SIDES: Yes.
MR. POLLOCK: Any objection to that, sir? You might
want to look at it. llliink I already have it as a part
of the file.
MS. DOUGALL-SIDES: I believe ou have the 1997
Page 69
1 minutes, but this goes back to the first application. 1 that.
2 MR. POLLOCK: All right. 2 Q. So, in effect, it would roll up like an
3 MR. GALBRAIl1l: I'm going to take a moment to read 3 old-fashioned-
4 this. Because last week I as1<ed City staff to give me 4 A. Exactly. lIand rolls. It's going to be one from
5 the file on this particular mreling, and tht:y couldn't s each direction.
6 find ~t. But ,today they seem to have it. So if I could 6 Q. How many men would it take to do that?
7 take Just a moment. 7 A. Two. Really ODe can do it, but two it's going to be
B MR. POLLOCK: Absolutely. 8 much easier, quick.
9 MR. GALBRAITII: NO objection, your Honor, 9 Q. Is there anything else you would like the Court to
10 MR. POLLOCK: All riBht. Then 1t wilt be admitted 10 know about this awning before I move on to the stop work
II as Respondent's Exhibit D, 11 order?
12 (Respondl.'Ot's Exhibit D was marked for 12 A. It's made from aluminum, it's very light, like we
13 1dentification and admitted into evidence.) 13 already said. It's a very lilP.tt material. Also the tol' of it
14 MS. DOUGALL-SIDES: Then I have several code 14 wiU match the color of the bUIlding. All it's goiz:18 to do al
IS sections, which I would ~uest that your Honor take 15 just bring the whole deck, the whole place/like I've been
16 official notice or ~nition of. 16 asked. to blend with the bui14ing. So that s part of it
17 MR. POLLOCK: All right. 17 Q. During Mr, Sarnoff's testimony a copy was
18 MS DOUGALL-SlOES: Those being first, Section 18 distributed of a stop work order. Do you ieCall having seen
19 41.221, outdoor car s. And this is the current version 19 this stop work order before? It shows a date of in~tion '",. .'
20 as amended slightly in November 1996. 20 December 20,1996. Have you seen that before? And do you .'.
21 MR. POLLOCK: AnY obj~ti~n, sir? 21 know what it s all about?
22 MR. GALBRAlTI-I: NO obJ(:Cl1on. 22 A. Yes. That was when the application -~ I came back
23 MR. POLI.OCK: okay. What else? 23 in December. At the end of Deccmbcr, I IIlW it. And it was --
24 MS. DOUGALL.SIOES: section 36.035. Development Code 24 I have a picture taken over there that it's been built the
25 Ad'ustrnent Board, 25 same timc with the deck whcn I was su oscd to build, like we
COMPLIMENTS OF D & D REPORTING SERVICE, INC. Page 67 ~ Page 72
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FINAL HEARING, 04/16/97
Page 70
I MR. POLLOCK: olroy.
2 MS. DOUGALJ..SIDES: chap.:ter forty.five on variances.
3 MR. POLLOCK: All right. Chapter forty.five? Or
4 Section 45? Article onc, article two. I gucss this is
5 all of the whole chapter?
6 MS. DOUGALL.SlCa,;: YeS, that is the entire chapter.
7 And Section 36.038, Design Review Board.
8 MR. POLLOCK: Any objection to any of thosc,
9 Mr. Galbraith?
10 MR. GALDRAITIf: No, your Honor.
11 MR. POLLOCK: Then 1 will officially recognize them
12 as one, two, three, and (ourt as requested.
13 MS. DOUGALL'SIDES: city would rest at this time.
14 MR. POLlOCK: city rests. Okay. I understand that
15 you want to call Mr. Hason.
16 MR. GALDRAITIf: wish to recall Mr. Hasan.
17 MR. POLLOCK: All right. Mr. Hason, may I remind
18 you, sir, you are still under oath?
19 TIlE WITNESS: Yes, sir.
20 MR. POLLOCK: All right. Please.
21 DlRECf EXAMINATION
22 BY MR. GALDRAlTIf:
23 Q. Mr. Hasan, letls start with this concept that this
24 awning is movable. Can you explain for Uie benefit of the
25 Judge how this awning would be movable. First of 011, can you
P~e 71 !
I explain the p~ose of it and what was the design objective, !
2 ana then cxplalO how it works.
3 A. The reason forit is it's part of the front. It's
4 half.- it's the front of the restaurant and to control-- if '
5 the weather is sunny, rain day, sunny day. If it's a sunny
6 day, we lift it up. If It'l a rainy day, we put it down, And '
7 for these reasons. To keep our customers, we've been
8 requested by our customCI'l -- everybody jwt .. even jf it'.
9 available to sit outside, still would like to sit outside. So
10 we tried to find a way to meet the low to have the temporary
11 canopy.
12 Q. Now, do I understand that the awning would be
13 attached, Wld it would always be there. But it would be
14 either extended or retracted; is that correct? Would it be
15 either out OVl.,. the deck or --
16 A. -- or Up, rolled up. And it can be also all the way
17 removed. Anyway we decide it's going to be. Now, the awning i
18 on the top i. going to be laced. We went to the ladder over
19 thcre, to the woOd, that it's going to be just by loos!ng,
20 releasing thc rope, or whatever, It's going to Just all come
21 apart. The sides of it all the way in front is going to be a
22 metal going all thc away across. We're going to be able to II
23 roll tl1e lace all the way up to the start over there. And
24 it's going to be B s~lal seat over there to rest. So it's 'I
2S oi to be matters of ten minutes to fifteen minutes to do
Page 72 I
I
BUDZINSKI VS. CITY OF CLEARWATER Multj~PagcTM FINAL HEARING, 04/16/97
Page 73 Page 76
I said already, here over one feet is the structure. 1 pcnnitted. So thc issue that keeps coming Up.: with the
2 So for the pizza deck over there, I didn't have nny 2 Board was supposed 10 give me.. and what [did in
3 ~il. Obyiowly, because I'Ve been told if it'. under onc 3 return. [just donlt understand it. I don't see where
"feet, you're allowed to do it over tlterc. So then, just now, 4 ies become now my punishment of not having the awning
"1t the cnd of the year -- I don't know if this was an 5 over there when actually we followed the exact way tllat I
. ~D.pcx:tor fOt' tho beach that aetuBtty IlIkcd for the realon of 6 got to do il. Thal's what is translating; that's the
7 it. And that' 8 under -- takirlg care of the City. That's a 7 message.
S different issue... absolutely different issue. This docs not 8 It was people on the Board that was v~, very,
9 belong_to the Iront of the house deck. 9 very, upset, very \lPsct with the issue of the ladder over
10 Q. You referred to this as a "piu.a deck"? 10 thcre on Ole top. That it was, like, for me to come over
11 A. Yes. 11 there and punish me. [t was the exact \\,~y. You cnn
12 Q. P-i-z,z'a? 12 listen to it on the ta~, and listen to it. What they
13 A. And that's four or five inches around here. 1:) say is We wcre waIting for you to come, and now it's
14 Q. And where is it located in relation to the deck 14 something we arc going to let you leave It the wny it
15 that's -- 15 was. But we're not gomg to let you do the awning. So
16 A. About frllcen foot from it. 16 what I'm .. is it a very sImple translatioll. Okay. You
t7 Q. To the north? Or to the south? 11 get what you have now, but you.. as a punisluricnt of what
18 A. To the south. 18 you have you're not going to get the awning.
t9 9. Is it the same deck that is at issue here today? Or 19 Why I'm being punished for something that I didn't
20 a dIfferent deck? 20 do, that1s what is tI1e bottom line of aU of it. I know
21 A. Excuse mc? 21 of a lot of places on the beach that havc it now. The
22 Q. Is it the same deck that is at issue here today? 22 back of me, the side of mc, that's have awning.
23 A. No, absolutely not. That's '97. The other ODe is 23 And what I've been told, thc mes~c thai I've been
24 12126 over here, or January 15th of '91. 24 given, of course, that I'm allowed to do awning. But
25 MR. GALBRAlnt: Mav I have a moment to confer with 2S the told me to 0 ahead and to strai len the roblcm, I
Page 74 Page 77
my witness for my last question? 1 go to a variance. We're going to give our
MR. POLLOCK: Absolutely. 2 recommendation. It's gOlOg to be all right.
MR. GALDRAInt: Mr. Hasan wants to just explain to 3 But I didn't think about these ~ple over there, in
the Court. basically, what he believed t.he issue to have 4 thc meeting, were mad on UIC issue iliat it's there. Like
been all along and just explain to the Court his s I went !lSalnst what they said. So they wanted it --
perspective of that. Mr. Bason, go ahead. 6 basically, the City to clear everything up. Like, you
THE WliNESS: From the begmning, when I applied to 1 know, they have recommendation.
.. when 1 went to the variance for Ute deck, it was for 8 But wncn I went over there to the variance, this one
the reason of the threcparking spaces to ~in WiUl. 9 or two particular people that's from the beginning from
That was the issue. Like it's been said, that was the 10 convinced it. Ana everybody, like you hear in ilie
issue, the three parking spaces. J J beginningl everybody wanted the issue, liked it, spoke to
So what I presented was a skctch draft of what is 12 me about I'" and liked the idea, was in favor of the
.-> the basic idea to do around here. It was -. and the 13 idea. if I would go ahead and just make sure it's going
gl!idin~ line was SUPRosed to be transferred to the City 14 to look right over there.
what I m allowed ana what I'm not allowed to do. Me, not IS And t'nave no objections to it. But this gentleman,
saying or not understanding that's what you're allowed to 16 eSP,Cfially this one gcntlem~, changed everybody's
do, and that's all you're alrowcd to do, presented the t1 oplOlon. TItrough thc meehng ~ou can see tt; you can
exact plans to the City of the exact way that someone t8 hear it. He changed everybody s opinion. It was --
really wants to do it. It was basically a sketch, and 19 MR. POLLOCK: I'Ve got the tape, and I'lllist.en to
the next step was the exact plans. And that's even .. 20 it. What else, sir?
the first plan wasn't, engineering wise, wasn't the right 21 MR. GALDRAlTIl: I'd like two minutes to close at the
way of Duilding it. 22 appropriate time.
So when I came back with the J)lans to the City, they 23 MR. POLLOCK: But with tl1is witness?
were supposed to teU me. Okay. lIow we were supposed to 24 MR. GALBRAITI1: TImt concludes his testimony.
be built nght to stand to the COde and whatl'm alrowed 25 MR. POLLOCK: An cross?
Page 75 Page 78
1 and what I'm not allowed. As you know, itls 110t in my 1 MS. DQUGALJ.-SJDES: Yes. Just briefly. Thank you.
2 power to make these decisions. I I m not trying to take 2 CROSS- EXAMlNA'nON
3 advantage of any situation by just -- okay. 'Iltey have 3 BY MS. DOUGALL-SIDES:
4 mistakes now. I want to do more now tJian what I was 4 Q. Mr. Hnson, you had testified about the awning. You
5 supposed to without knowing one thing to do from the 5 thought it would lie retractable or removable. You had
6 bc.;gmning gelling across what I wanted to do over tltere 6 submitted this draWing, which is part of your E:thibit 3; is
7 With the awning. Me ask to do whatever to have heavier 7 that correct?
8 structure to the ground with the wind resistance and 8 A.. I guess it's Exhibit 3. What was it? 31
9 ev~ins:. 9 MR. POLLOCK: whatever. That's the exhibit.
10 I did an~ing I've been asked. I'm not given an JO BY MS. DOUGALL-SIDES:
11 inch, not fUrther to the street and. not hililicr. I've It Q. You did not show the City any other drawings other
12 been actually asked -- I wanted to do itlower, because 12 than this; is that correct?
t3 when you sit, you have the rail in front of your eyes. 13 A. Not that I remember.
14 You can't see the ocean. It's occanview, this 14 Q. This is the only drawing thlll )'ou ever took to the
IS restaurant. So I've been told to do it higher. I wanted tS City, and you say you gave it the Ctty. Right?
16 to do it low, much lower for the pepple to be able to see 16 A. I thInk: so.
11 the oceanview. And they been saying over here that they 17 Q. YO\ltalked about the stop work order, and you
,~ asked for me to do a higher rai1in~. And 1 have bren 18 mentioned a piZl1l deck?
I told to do a higher roiling. I dido t want to do it, but 19 A. Yea.
. ",I I did because fhave to do it. a higher railing that's 20 Q. Is that another deck?
21 forty-five inches. So now, it's exactly when you look to 21 A. That is a another dcek,_yes.
22 the ocean, what you see is the railing. 22 Q. That's a separate deck. Correct?
23 To the whole way, all I did is communicate with 23 A. It's a separate. different issue.
24 everyt.!ting that I haa to do. Whatever I had to do with a 24 Q. Isn't it true that you have a pcnnit for that deck?
25 a r bein si ed, scaled. And eve in was 2S A.. It's somethin this -- I have a rmit. No, I don't
COMPLIMENTS OF D & D REPORTING SERVICE. INC. Page 73 - Page 78
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BUDZINSKl VS. CITY OF CLEARWATER Multi-Pagc'lA FINAL HEARING, 04/16/97
Page 79 Page B::! ,
I bave a permit. But it is pcnnittcd. It's not -- because it's t believes they made an error when they granted the pennil. i
2 under one feet. 211m not so sW'C they did. .
3 Q. So that deck is really not a problem, at this point, 3 The problem seems to be that that Iiule sketch that
.. is it? .. was part of the 1996 variance application when the 1
5 A. That's the problem over here. So when it was here 5 question before the Board at that time was, Shall we
6 and the inspector that came to the beaeh -- somebody. 6 allow three parking spaces to be given up fur p deck?
7 obviously, told him .omething aboul it. And thal'l what UJiI 7 The sketch that was a part of that application was,
8 is atl about, about the silly deck. 8 basically a rectangte snowing the locution of the deck.
9 Q. But your pizza deck is -- no one is going after you 9 Not much detail. No language saying this shall be an
10 for that, are they? 10 o~n deck open to the sun and stars. Did not show a
11 A. Obviously, they do. There we go. That's the reason 11 rafler, did not show a railing.
12 for it. So when Ilbowed, and whcn I meallured, and when I .. 12 But the City's own testimony is that a railing is .
13 Q. Do you ~ll going before DeAB and gelting a 13 required. And the City's own Code states that an outdoor
14 vannncc on the pizza deck? 14 caf shall consist of movable awnings and canopies, among:
15 A. Going for VllTiancc? IS other things. So the fact that this Iitlle rectangle
16 Q. Did you have to gel a variance on the pizza deck? 16 attached to that 1996 application shows no detail,
17 A. No. 17 shouldn't be a binding and determining factor on the City
18 Q. You were just nbte to build it. Right? 18 or on the owner at this point.
19 A. I haven't got any ~. yeah, I was able. Basically, 19 But he came back to the City, and he got a building
20 from the knowledge ofthc contractor that was building it, be 20 permit. Now, if the City had a problem, the City could
21 didn't bave to have anything. But this gentleman that's 21 have ~otted that they had a problem and denied the
22 .howed thillot told mc lpecifically, No, J have no problem 22 permit. But they granted it. And the deck was built and
23 with the deck. I asked I was very much sw-priscd. I had 23 exists loday pretty much the way you see it depicted on
24 with the pizza deck. I was -. 24 the attaehnients to the building permit; thai is, with the
25 Q. But au didn't 0 before DCAB and et a variance? 2S columns and the rafters. About the onl difference is,
, h I hi fi' hPth~e 80 . h '1' ~ A d th d 'h .Pl.age 83
I MR. POLLOCK: Ma am, you ave to et m mlS e I It sows CCl 1I1g lElns. n now ey on t ave eel mg
2 question.. finish the answer. 2 fans. They have lights instead.
3 MS. DOUGALL-SIDES: wetl, I think he's h 3 He spcnl money with a Ci~ building pennit in one
4 THE WITNESS: I carne back and I spoke with this 4 hand that was issUccl by the Clty after that Board met in
5 ~cntleman. That was my understanding when I saw it that 5 1996. And he built a deck where he said he was going to
6 It was about the big deck over there. And I asked him, 6 build it. He put in guardrails taller than he wantCO to
7 This is for the big -- this is for this deck? And he 7 build, because the City wanted taller guardrails. And he
8 called the City and said, No, it's not. It's for the 8 put in these rafters overhead believing Elt that time thal
9 small deck over there. 9 he hap no trouble with the City. He had a building
10 BY MS. DOUGALL-SIDES: 10 pennlt.
11 Q. And who was that? 11 TIlCll he decided it would be good to prot.ecl the
t2 A. Greg, I think it was. 12 people on the deck from the rain, and he wants to put in
13 Q. Weir; could you read where it sa=rrs "nature of 13 an awning. He speaks with City staff, and they fax to '. .
14 violation"? Docsn't it say "voided vanancc"? 14 him a City Code section, which allows him .. almost seems
IS A. 1 don't know. Wliatcver it says over there. But 15 to ~uire a movable awnin& and canopies. Again, he
16 wbat I've bc:cn complaining with Greg, the inspector came to me t6 thinkS he has no problem. He goes back to the City with
17 abou~ was the liWe deck. 17 drawings showing exactly what it witl look like, maybe
18 Q. Welt, you didn't have to get a variance on the pizza 18 not 'precisely what it will look like, but showing tlLis
19 deck, thougli, did you? 19 awmng over the deck.
20 A. No, 1 didn'L 20 And at that point, somebody says, We think we have a
21 MS. DOUGALL-SIDES: Nothing further. 21 problem. I'm still not so sure that the City staff made
22 MR. POLLOCK: All right. Anything? Any more 22 a mistake when they issued that pennit, but they did.
23 evidence? 23 His response is he goes back to Ute Board. Now, at this
24 MR. GALBRAI11t: NO, your Honor. 24 point, Ulis is not your typical after-the-fact
25 MR. POLLOCK: NoW, ou're finished with rebuttal? 25 a lication. where somebod ets caught. This is a man
1 MR. GALBRAJTIl:: We are. Page 81 1 who built something wilh a building pcrl!!it COmin/~;k 8~
2 MR. POLLOCK.: Now, you want to make a closing 2 the Board, wanting the Board to give its final btessmgs I
3 statement you said? Mr. Hason has something else to say. 3 to one more demil; namelYt the awning over the deck.
4 111E WITNESS: We can even verify this issue wilh the 4 With no supporting eVloence whatevert they deny Ute
5 inspector. And I don't know which way this manner is 5 app'lication. And as you listen to the audio tape, you'll
6 understood right now. But you can even go ahead and ask 6 be impressed by the fact that the Board members seem to
7 this gentleman over here whIch deck he was talking about. 7 have been bent out of shaJ>.C, because they think Mr. Hason
8 MR. POLLOCK: we could, except he's not here. And 8 got away with something that he wasn't supposed to get
9 I'm not going to wait for him. 9 away Wlth. And yet, when you go back and look at the
10 TIlE WITNESS: No. I can mail it. I donlt know. 10 drawings from the 1996 app'licalIon that drawing deesn It
11 MR. POLLOCK.: Go nhcad, Mr. Galbraith. 11 support the conclusion that he couldn:'t do what he did.
12 MR. GALBRAI1lJ: Let me give xou the short, sin1ple 12 The drawing doesn't support the conclusion that the
13 analysis first, your Honor. That IS simply this. Was 13 buil~ng permit was in error. He built with a building I
14 there any competent, substantial evidence presented to 14 penmt. :
15 the Development Code Adjustment Board on February 13th, IS Now suppose that that stnJch1re above the deck were :
16 1997, that would justify denial of the app'lication? And 16 remov;;}, suppose the rafters were removed, would there be '
17 the answer is no. 1be staff recommemfation was in favor. 17 any case at Bn against the canopy? None whatever. None
18 The staff found that the criteria for varinnces had been 18 presented to that Board. That canopy would take up no
19 met. There arc no ~ents presented in opposition. No 19 more space. It would wke up no morc parking spaces, \ .
20 one spoke against it. The record before the Hoard is 20 would be no closer to the right-of-way, would not H~'
21 deVOId of any evidence that would support a denial of 21 interfere with the pedestrian access way. TIlerc is no
22 this applicatIOn. So that's the short, slmple analysis. 22 case against the canopy.
23 And if you look at that only you can decide that 23 So you should aSK, Why did the Board vote the way
24 Ihe Board made a wrong decislOn Bnd reverse the Board. 24 they did? You will be impressed by the tenor of the
25 But let's 0 a little dcc r into this. The Cit staff 2S voices when au hear the Board members s . 111at the
COMPLIMENTS OF D & D REPORTING SERVICE, INC. Page 79 - Page 84
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BUDZINSKI VS. CITY OF CLEARWATER Mnlti-Page T),f
Page 85
just felt they were being imposed upon, nnd, by gollYl
they were goin~ to show th1S man who was 10 charge ncre.
So they. voted no."
We believe they made a mistake. We believe that the
Board decision is unsupported by. competent, substantial
evidence and ought to be revcrscii. You have the power to
do so. You may also in reversing and in approving the
application, you may' impose reasonable conditions of your
own. The C1~y'S stafPs focus seems to be on the
ap~rancc of the place.
Mr. Hason has mdicated he will rcpaintlhat
whatever color the City staff wants. In tenns of
aesthetics he's o~ to suggestions. I would submit
that the photographs that tIt.e City has submitted of his
property, when };OU compare that with the photographs we
submitted actually look better than the photographs we
submitted. It's not a bad looking building. right now.
But if the City staff wants to ~cst conditions you may
im~osc to improve the aesthetics, such as repaintmg it,
we re open. But in tenns of the vote to deny his
application, we believe that was clearly in error and
ought to be reversed.
MR. POLLOCK: Thank you. How about you, ma'am? Do
you want to make a statement now? Or do Y\1U want to
reserve?
Page 86
MS. DOUGAlL-SlOES: Just briefly, your Honor, if we
could.
MR. POLLOCK: okay. ,
MS. DOUGALL-SIDES: We disagree with Mr. Galbraith's
characterization. We think that the applicant did build
beyond the 1996 I!pproval, in that the large support
(!osts, the ceiling fans, the roofing area structure, and
the lattice work were not shown on the 1996 aP.l~lication,
which is now an exhibit. The applicant did Willingly
come before DCAn a second time and ap~lied for a
variance, went throusl! the procedure. The staff
recommendation was favorable, but only contingent upon
the aeh1hetic modifications to the application that staff
has suggested.
There was essentially unrebutted professional
testimony t~ay throuAA f.k. Shuford that he did not feel
the plans truly showed a movable awning-type of
structure, and that this would not be allowcO as a right
under the ordinance, but rather would I:C<luire a variance,
which the parties seem to ~ that at least the
application should have been filed and the procedures
should have been followed.
Whether or not the City had pcnnittcd the deck
itself, it appenrs that the City properly required the
a ]jeant to 0 throu the variance rocCdure for the
, Page 87
1 awnina. And the Board had the right to deny what's an 1 CERTIFICATE OF REPORTER
2 eXp'anslon of the permitted use. 2 STATE OF FLORIDA
3 The applicant has not met the burden of p'roof of 3 COUNlY Of PINELLAS
" showing Utat the Board was M'Oflg through the evidence 4 J, LYNN MARY GEDERS, Court Reporter, certify
5 before the Board and the evidence presented today. And, s that I was authorized to and did stenographtcally report the
6 specificaU)', the ap~Hcant still hasri't met the vanance 6 fo~oing deposition; and that the transcnpt is a true record
7 criteria of Chapter forty-five, which arc relatively 7 of \lie testimony given by the witness.
8 strict. in that no special circumstances have bceri shown. 8 I further certify that I am not a relative,
9 r wouldn't argue that the City's mistake in pennitting 9 employce, attorney, or counsel of any of the parties, nor am J
10 the deck itself would constitute special circumstanccs 10 a relallve or employee of any of the parties' attorney or
11 that would Ihen justify an expansIon by an awning or II counsel connec!ed with Ihe aClion, nor am I financially
12 otherwise of the nonconfornuty. 12 interested in the aclion.
13 The applicant is not being ~rived of the 13 Dated this 1st day of May, 1997.
14 reasonable use of his property, in that it still can 14
IS operate the outdoor caf, and, apparently, is with IS
16 expanded seating. But the awn10g would simply not be 16
17 available. 17
18 And, finally, the City staff has suggested 18
19 conditions if your Honor wishes to reverse the Board, 19
20 which the Coae does allow you to do and impose such 20
21 reasonable conditions as the Board itself ma.y have 21
2'l imposed. [t is fairly f~ucnt for DeAD to impose 22
23 aesthetic types of condiuons on an BfQlicant and 23
24 Mr. Shufora accepted some as you'l find in Mr. Richtcr1s 24
25 staff re ort, which the Cit was ori inall . ble to 2S
COMPLIMENTS OF D & D REPORTING SERVICE, INC.
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FINAL HEARING, 04/16/97
Page 88 !
I
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1 and has indicated today it would agree; 10.
2 MR. POLlOCK: Are you going to order me n
3 transcript? .
4 MS. DOUGALL'SIDES: Yes, Slr.
S MR. GAlDRAI1lI: your Honor, rni~t [ very brieOy,
6 responding to her -- there arc three points I'd like to
'1 respond to.
B MR. POLLOCK: All ri~t, sir.
9 MR. GALBRAI1lI: Number one, regarding the movability
10 of the awning, Mr. Shuford1s lCstimony was not offered or
11 accepted as expert testimony. Mr. Hason has explained that
12 that awning was removable as an old-fashioned window blind. '
'3 TI1is was described as an expansion of the ~nnjltcd
14 use. I don't believe thatls accurate at all. The deck is
IS there whether this is approved or denied.
16 And in tenns of no special circumstanccs being shown
17 in how the City hns eone bc)'ond defending the Board and trying
'8 to change the volit1on of the City that was in front of the
19 Board itself. Because the position of the City at that time
20 was that the criteria for variance appeared to be have been
21 met.
22 MR. POLLOCK: All rinht. I have forty-five days to
23 submit my final order. 1'm going to give you twenty days
24 to submit proposed findings of fact if you wish. And
25 then I'll -- wlien I ct the transcri t, I III do the order
Page 89 I
and get it out as quickly as I can. All right. Thank '
you very much.
(The r.rocccdings in the above-captioned matter were
cone uded at3:10 p.m.)
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Page 90
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COURT REPORTER
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1996 (26) 2:16 49 (IJ Administrative {SJ 83:14 25:25
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63:15 67:12 68:25 16:12 16:16 16:22 60:2 62:5 analysis [S) 27:14 45:1 48:23
8J:16 90:J3 23:15 23:16
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· BUDZINSKI VS. CITY OF CLEARWATER Multi-pageThl
COMPLIMENTS OF D & D REPORTING SERVICE, INC.
. ",~,! rl~I.' >~'-':'."". ',: ..: ..~. 'i,:.~"'... t, .',
'96 - April
Index Page 1
BUDZINSKJ VS. CITY OF CLEARWATER Mu1t.iwpagcTM ,
architect - city
.i.
c_
30:5 S:1S 5:16 6:1 better [7) 6:13 Britt's [71 4:12 canopy [U) .20:23
architect [21 29:14 8:8 8:12 8:14 6:18 28:12 32:14 5:16 42:3 44:10 24:18 43:13 43:15
38:17 8:17 8:23 9:1 41:3 62:18 85:16 50:11 58:22 58:24 53:19 54:5 65:25
architectts [I) 44:19 9:14 9:25 10:5 between [JI 17:13 brougbt (2) 14: 1 1 66:10 66:19 71:1J
19:16 20:23 22:13 34:25 46:22 47:10 27:9 84:17 84:18 84:22,-"-
architectural [II 22:13 22:20 23:10 63:)0 Budzinski [JI 1:4 capacity 121 49:24
62:19 24:1J 25:3 25:21 beyond IJI 7:22 1:5 4:4 4:14 50:5
area [U) 8:9 9:11 25:25 26:4 26:5 64:11 64:15 86:6 12:18 card [11 14:7
9:14 10:4 34:24 26:7 30:13 30:15 88:17 Budzinskies [21 care [21 26: 1 73:7
37:10 51:18 53:1 30:16 30:20 42:8
60:6 60:7 61 :14 42:14 43:12 53:12 bjg (2) 80:6 80:7 12:22 26:14 cany [1116:17
61:16 61:16 64:16 53:19 54:5 58:22 binding [II 82:17 build [915:22 5:23 case (91 1:3 4:7
86:7 58:25 59:2 59:5 bit [ll 27:6 59:23 7:6 20:13 72:25 4:8 4:10 7:3
areas {21 60:3 60:5 59:8 61 :1 61:4 61:6 79:18 83:6 83:7 37:22 51:22 84:17
argue (11 87:9 61:4 61:5 61:10 blend (II 72:16 86:5 84:22
62:6 63:2 65:19 building [421 1:15
argument (4) 11:5 66:4 70:24 70:25 blessings (I) 84:2 caught [11 83:25
5:22 7:17 9:2
11:9 11:16 11:17 71:12 71:17 72:10 blind (1)88:12 9:15 13:22 13:25 ceiling [71 8:4
argumentative [II 75:7 76:4 76:15 board (13) 4:11 14;4. 14:17 15:25 8:6 35:5 35:25
48:5 76:18 76:22 76:24 5:8 5:19 5:24 16:2 18:3 18:18 83:1 83:1 86:7
arguments [1) 81:19 73:4 83:13 83:15 5:25 6:2 6:2 18:22 18:24 19:1 ceiling-type [I) 8:5
Arnold [2) 2:2 83:19 84:3 87:1 6:3 7:7 7:8 19:3 19:4 20:10 Central [JI 7:20
4:6 87:11 87:16 88:10 7:10 8:2 9:6 25:14 25:15 38:10 33:20 36:22 36:23
article [2] 88:12 9:7 9:16 9:20 38:24 39:1 39:1 58:17
70:4 awning- 2 [I) 2: IS 10:17 10:24 13:8 47:7 51:17 62:18 certain [I)
70:4 8:1
as-needed [I) awningwtypc [I) 13:10 13:18 15:16 62:21 64:4 72:14 certainly [6) 53:9 I
65:14 18:20 27:23 28:1 72:16 74:22 79:20
86:17 53:25 56:7 63:25
asccrtain [1) 17:8 awnlDgs [4) 29:17 28:16 32:8 38:5 82:19 82:24 83:3 66:15 66:25
asks [I) 57:2 45:17 48:7 49:4 83:9 84:1 84:13
47:21 60:16 82:14 50:1 50:1 50:8 84:13 85:17 certificate (lI 37:19
aspects [I) 65:5 B{61 2:17 38:21 51:11 51:12 51:14 buildings {21 55:17 90:1
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assigned [I) 50:4 39:11 39:16 39:17 51:)5 51:15 51:20 30:20 certify [2) 90:4
atmosphere [1) 60:3 68:8 52:2 52:4 52:22 built (111 90:8
attached (6) bad [21 6:)9 85:17 52:25 54:10 54:19 5:2J chairs (31
14:6 14:10 18:4 19:1 8:15
16:1 18:18 34:12 bald [I) 59:22 54:20 55:15 56:1 20:16 23:22 36:9 22:12 60:16
71:13 82:16 bar [11 41:22 56:25 57:4 57:6 46:9 48:12 55:9 chance [21 24:5
62:1 63:14 63:18 "
attaching [I) 67:3 base [2) 10:7 64:17 64:12 64:15 67:13 59:4 64:4 72:24 39:20
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attachments [IJ 82:24 based (II 11:5 69:25 70:7 76:2 change (4) 6:10
attempt [21 )6:8 basic [1)74:13 76:8 81 :15 81:20 84:1 84:13 36:24 43:19 88:18
65:7 basis [l)61:11 65:14 81:24 81:24 82:5 burden [II 87:3 changed [3) 19:13
attend [I) 13:7 67:2 83:4 83:23 84:2 businesses [I) 30:7 77:16 77:18
attendance (2) 57:4 beach [201 84:2 84:6 84:18 Buszinski [I) 4:4 changes [31 19:20
4:16 84:23 84:25 85:5
67:12 29:16 30:1 30:8 87:4 C[Ul 2:1 2:18 )9:25 20:3
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attended [I) 26:14 30:12 30:16 34:23 87:19 87:21 88:17 22:5 22:8 33:6 chapter (7] 9:23
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50:2) 50:23 56:20 43:2 43:24 53:1 Board's [4) 40:12 40:13 49:9 70:5 70:6 87:7
9;9 53:23 57:19 65:2 characterization [11
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audio (l) 8:8 20:10 bookkeeping [I) 22:9 22:11 36:14 checking [II 24:9
10:18 . become [4) 31:20 37:9 40:16 40:19
27:24 84:5 9:12 41:17 41:) 8 42:3 CHESTNUT [I)
authorization (I) 10:20 25:20 76:4 boss [II 63:12 43:23 43:24 44:10 1:23
48:3 begin [I) 74:9 bottom [21 14:23 46:2) 46:21 47:9 circumstances (4)
authorize [I] 7:20 beginning (9) 19:)4 76:20 47:20 50:12 50:22 9:24 87:8 87:10
authorized [2) 7:19 24:7 24:2) 24:24 Boulevard [21 4:16 53:7 53:12 56:21 88:16
90:5 32:13 14:7 75:6 55:8 56:24 59:10 60:4 citizens [I) 51:16
automatically [2} 77:9 77:11 Box [I) 2:9 60:7 60:14 65:12 city [ml 1:8
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59:5 59:7 32:14 break (I) 6:19 87:15 2:9 4:5 4:J1
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BUDZINSKI VS. CITY OF CLEARWATER Multi-Page City's - depict
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25:6 25:14 25:15 61:15 63:J4 63:22 conform [I) 36:11 correctly (:lJ 43:21 52:7 7[:[7 81 :23
26:4 27:3 29:13 64:11 67:13 69:14 confused [IJ 35:17 46:25. decided [11 83:J 1
30:10 31:11 32:16 69:24 74:25 81:15 congratulate [II correspond [IJ 17:7 decision [IDJ 4:11
32:18 32:25 33:13 82:13 83;14 87:20 6:2 9:20 10:10
35:11 38:21 39:23 Coleman [11 2:6 6:17 cotter (3) 61:8 24:10
40:7 43:5 44:19 connect [1) 51:21 66:20 67:7 28:20 52:3
44;24 45:3 48;J2 COIOf[4J 32:17 32:18 connected r 1 ) counsel [1J J1: 11 62:9 8J:24 85:5 I
72:J4 85:12 90;J 1 decisions (21
49:J6 50:2 51 :J6 connection II] 51:5 ]2:1 12:5 14:5 5: '8
55:9 55:10 55:10 colored [21 9:1 21:19 90:9 90:11 75:2 I
55:12 55:14 55:17 63:2 consequence III counsel's PI J I: 14 deck [99) 2:17
56:1 56:2 57:17 columns [II 82:25 59:2 COUNTY [I) 90:3 4:15 5:16 5:2]
58:9 58:19 59:9 coming (3) 51:10 consideT (4J 56:5 couple [IJ 5:22 6;) 7;6
62:2 62:JO 62:11 16:1 84:J 6J:3 62:6 65:21 63:3 7:J8 7:25 8:9
64:4 64:7 67:19 commcnt [31 30:J9 considcred [SI 37:J5 course [6J 11:4 9:11 13:19 13:20
68:4 69:4 70:13 34:10 66:9 41:J7 47:J4 58:25 18:23 20:19 28:J5 14:9 14:10 J8:3
10:14 73:7 74:14 60:7 62:13 76:24 J8:4 J9:1 19:7
74:18 74:23 77:6 comments [IJ 28:1 consist [41 22:12 Court[~1 72:9 19:7 19:24 20:1
18:11 18:15 78:15 commercial IS) 37:3 47:20 60:15 82:14 74:4 74:5 90:4 20:13 20:16 20:23
80:8 81:25 82:17 31:6 42:21 43:2 23:22 25:9 26:8 ,
consistent [21 90:16 I
82:19 82:20 82:20 43:25 55:10 26:11 30:20 32:17
83:3 83:4 83:7 Commission [oC) 56:2 cover [2) 44:10 35:1 36:9 37:2 I
83:9 83:13 83:14 consists (3) 23:18 61:9 37:8 37:12 37:13 I
43:5 50:3 51:16 covering [:I} I
83:16 83:21 85:12 62:2 30:23 51:15 39:4 37:15 37:20 38:2 I
85:14 85:18 86:23 communicate [I) constitute [11 87:10 43:7 38:8 39:3 39:24 I
86:24 87:18 87:25 75;23 construct [II J 3:J9 CR28 1~1 37:7 43:7 43:12 43:13 I
88:11 88:18 88:19 37:8 41 :14 42:6 46:1 47:13 53:J9
City's [(6) 7:15 communication [I] constructed [6) 7:18 44:1 55:18 55:20 55:22
12:5 7:25 24:19 25:9 criteria [1) 59:4 62:21 64:4 I
8:12 10:22 15:20 46:4 55:6 10:21
20:18 22:21 34:5 compare [lJ 31: 17 10:23 44:1 56:6 64:15 64:18 65:25
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55:2) 55:23 82:J2 comparison [IJ 21:21 19:17 43:19 43:21 critical (2) 27:8 73:2 73:9 73:10
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82:13 85:9 87:9 competent [2) 81:)4 27:20
Clark [IJ 38:24 85:5 consultant [IJ 61:25 Cros [I) 3:7 73:22 74:8 78:18
complaining (1) contained [lJ 9:22 78:20 78:21 78:22
clcancr UJ 22:1 cross [II 53: 15 77:25 78:24 79:3 79:8
clear [I) 77:6 80:16 contains [IJ 27:19 cross-examination [~) 79:9 79:14 79:16
clearly [11 85:21 complete [31 34:7 contemplated [I] 12:3 45:9 53:16 79:23 79:24 80:6
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2:9 2:10 4:3 38:3 context [I) 65:12 32:4 45:8 82:8 82:10 82:22
83:5 83:12 83:19
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12:12 12:13 21:13 38:6 38:8 56: 13 86:12 69:19 87:10 88:14
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33:14 52:25 58:JO contractors 11] 29:14 customers [:I) 71:7 45:25
60:6 60:6 61:14 56:19 contrary [I) 29:8 71:8 decks [I] 29:]7
6J:J5 61:16 Composite [2J 29:24 control [lJ 71:4 D (10) 1:22 1:22 deeper [2J 19:18
Clearwater's (1 J 30:22 conversation (I) 2:19 57:J9 68:6 8J:25
4:11 concept [1) 70:23 24:17 68:7 68:10 68:11 defending [11 88:17
clerk [IJ 27:3 concerned IIJ 13:20 69:11 69:12
convinced [1) 77:10 D-o-h-e-r-t-y [lJ defef(l) 53:2
client {Il 67:22 concerns [I) 9:8 copies [lJ 15:7 define [II 65:7.
concluded ll} 89;4 21:5
close {I] 77:21 16:22 23:15 daily [2J 61 :11 definition (II 47:7
concludes [I) 77:24 65:11
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84:20 conclusion [61 56:12 15:13 15:20 15:23 39:6 40:5 61:22 66:2J
closing ["J 11:13 56:11 57:3 66:7 15:23 J5:24 J5:25 72:19 demonstrated [IJ
lJ:J6 1 J:17 81;2 84:11 84:12 16:7 J7:7 J1:J6 dated [") 66;25
CO [I) conclusions [IJ 56:8 21:21 21 :23 21:24 31:23
55:20 23:9 27:5 40:1 48:1 54:1 90:13 denial [") 52:9
coastal [2J . 43:18 ConCUT[I) 63:25 40:3 45:14 53:7 datcs [I) 54:9 52:21 81:16 81:21
43:2) condition [5) 7:11 53:23 54:12 60:9 David [I} 58:4 denied [3) 43:14
code ["6J 2:13 38:3 48:25 49:2 62:23 72:J7 days (4) 61:24 82:21 88:15
62:4
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conditional [31 33:23 88:22 88:23
9:23 10:3 13:8 correct (20) 25:10 DCAB [12J 2:19 84:4 8:5:20 87:1
21:13 22:3 22:16 41:21 43:5
31:10 31:13 36:J4 conditions (J~J 7: JO 26:5 26:6 29:12 1:22 8:2 8:20 Department [:II 7:20
37:16 38:4 46:19 31:22 34:1 39:7 48:23 50:18 52:2 38:JO
32:9 37:2 48:22 39:9 44:7 47:22 68:14 79:13 79:25 departmcntal [I]
47:7 47:9 47:19 62:9 62:12 62:17 55:J8 55:20 56:3 86:10 81:22 44:11
41:25 48:7 49:3 62:20 63:5 64:23 56:22 66:5 68:J7
49:25 50:8 52:24 85:8 85:18 87:19 71:14 78:7 78:12 December [6J 24:20 departments [11
54:10 55:6 55:15 87:21 87:23 18:22 24:23 24:24 72:20 34:10
55:21 55:23 58:19 confer [1) 73:25 72:23 72:23 depict [I] 39:5
COMPLIMENTS OF D & D REPORTING SERVICE, INC.
Index Page 3
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BUDZINSKI VS. CITY OF CLE R DR u tt-Page lCJ)lctc - ct
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82::23 displayed [SI 9:4 83:17 84:10 10:8 10:24 1J:3 10:25 58:21 66:6
dCf:ieting [2) 44:9 dispute [31 4:17 DULY [4t 12:8 11:7 11:10 11:15 67:2 70:24 71:1
6 :24 53:10 53:25 33:3 49:10 57:20 17:25 21:20 27:8 71:2 74:3 74:5
deposition (I) during I') 11:8 27:20 31 :19 36:7 explained (lJ 88:11 ..
90:6 distance [41 42:16 39:18 40:14 57:1
deprived (2) 10:2 43:15 43:16 43:19 20:22 21:12 28:15 69:13 80:23 81:14 expressed IIJ 9:8
87:13 distinction (1] 65:5 65:20 72:17 81 :21 84:4 85:6 extended [I] 71:14
describe (5) 18:4 distributed [11 72:18 duties (3) 33:21 87:4 87:5 ex tending II] 30:14
18:25 29:25 30:10 district ['I 37:3 33:22 49:24 evident [I) 64:9 extension (I) 30:16
34:20 BpI 2:1 2:1
described (I] 37:6 37:8 40:17 33:2 33:2 49:9 exact (7)20: 15 23:21 extent [4) 11:1
88:13 42:6 42:22 42:22 68:5 68:6 74:18 74:18 74:20 51 :13 64:14 66:1
design [17) 13:20 43:1 43:25 easier [ll 76:5 76:11 external [4) 8:22
14:9 51:12 51:15 Division (4) 1:2 17:16 exactly [9) 13:13 50:21 56:20 56:23
51:18 51:20 52:3 2:3 4:8 4:9 21:22 72;8 19:5 19:22 29:2 extract [II
economic [I) 68:16
52:22 52:25 61:14 documents (4) 1:14 10:5 29:9 32:12 72:4
61 :11 61:18 62:1 17:1 34:8 34:13 education [1) 62:15 75:21 83:17 eyes [1) 15:13
62:3 63:4 70:7 docsn t t [II) effect [31 52:15 EXAMINATION [6) F[l) 33:2 33:2
71:1 6:13 57:19
designated (I) 16:15 37:10 44:23 52:20 12:2 12:15 33:17 48:20 fabric [5]
58:18 61:5 66:16 80:14 effcctive [1] 11:12 49:20 58:14 70:21 61:6
designed [31 22:14 84:10 84:)2 effort (1) EXAMINATIONS [I) 66:9 66:11 66:18
6J:7 66:22
60:18 65:19 Doherty [4] 3:1
desire (I] 21:2 cither[1J) 4:22 fact I9} 5:21 11:5
4:22 21:3 21:5 24:3 5:5 11:9 11:15 EXAMINED (4) 20:13 43:J4 56:8
detail [41 44:10 done [3) 14:21 50:7 20:15 21:] 21:3 12:8 33:3 49:10 64:17 82:15 84:6
82:9 82:16 84:3 62:25 21:4 24:23 71:14 57:20 88:24
details [2] 5:24 doors [2) 9:2 71:15 example (2) 32:16 factor [2] 10:6
14:9 63:3 elaborate [[I 63:19 60:23 82:17
determine [[) 51: 17 Dougall-Sides [82J electric (II 19:6 exceed [I] 37:10 facts [I) 56:25
determining [1]82: 17 2:8 4:19 6:21 electrical [I) 8:6 except [I) 81:8 fair [1) 17:4
developed [31 61:17 6:22 6:25 7:3 embarrassed [I] excerpt [2) 2:19 fairly [1)
6J :19 61:21 12:2 J5;3 15:4 4:21 68:J3 87:22
Development [161 16:5 16:25 17:5 emphasized [I) 22:4 exclude [IJ 16:14 fall [I) 62:6
17:)5 17:18 28:8 f ami Ii ar (13)
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34:4 36:9 38:12
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49;25 54:9 58:18 40:16 40:19 41:8
60:20 63:14 63:22 32:25 33:J5 33:16 enclosed (IJ 9:12 exhibit (41J 2:12 42:1 48:22 59:9
64:11 67:13 69:24 33:18 35:11 35:14 encourage [1) 60:4 2:13 2:14 2:15 59:12 63:24 65:15
35:18 35:24 36:8 2:16 2:)7 2:18
81:15 39:10 39:22 40:7 end [ll 24:24 72:23 2:19 14:12 16:14 Family (l) 41:14
devoid [11 81 ;21 40:15 40:25 41;6 73:5 17:1 17:22 17:24 42:1 42:5
difference [2) 42:H 42:18 43:8 44:14 enforcement [ll 21 :18 29:24 30:22 fan [2J 19:5 19:6
82:25 44:17 45:7 48:19 55:15 55:2) 55:24 31;2 31:3 31:10 fans [71 8:6 35:5
different [II) 5:18 48:2) 49:5 49:8 engineer's (I) 44:19 31:12 31:15 31:16 35:23 35:25 83:1
32:17 43:1 50:7 49:21 51:24 52:1 engineering (II 74:21 31:J 6 34:5 35:12 83:2 86:7
66:23 73:8 73:8 52:23 53:6 53: J 4 36:5 36:6 38:21 far [21 23:14 50:6
73:20 78:23 57:15 57:17 57:25 enhanced (I) 51:3 39:11 39:16 39:17 fault [II 66:15
digging [1) 58:12 58:15 59:24 entire [IJ 70:6 40:1 40:7 40:12
19:18 63:6 67:17 67:19 entitled (lJ 41:25 40:13 44:9 44:14 favOf{ll 27:1
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DIRECT [5] 12:15 68:13 68:18 68:21 erect (I] 4:14 68:5 69:11 69:12 favorable [21 8:22
33:17 49:20 58:14 68:25 69:14 69:18 78:6 18:8 78:9 86:12
70:21 69:24 70:2 70:6 erected[IJ 59:1 86:9 fax IS) 21:13 21:21
directed [I] 65:4 70:13 78:1 78:3 error [31 82:1 84:13 exhibits (8] 2:11 21:23 21:24 83:13
direction [IJ 72:5 78:10 80:3 80;10 85:2) 2:22 16:6 16:9 faxed [2J 22:18
directly [2] 80:21 86:1 86:4 especially [lJ 77:16 16:12 31 :18 31 :21 53:23
22:6 88:4 ESQUIRE [21 2:5 67:20
62:15 down [t] 9:19 2:8 exist [21 52:24 61:13 faxing [I) 53:7
Director [I) 58:17 ]4:23 20:21 20:21 cssentiaUy (2] 9:]8 existence (4] features [I) 8:1
disagree (1) 86:4 23:5 23:]4 30:15 48:13 Februmy[141 14:13
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disapprOVe[IJ 20:11 46:1 71:6 establish [IJ existing [61 14:14 14:22 15:1
discrepancy [I] 17:13 drart[l) 74:]2 62:1 4:14 26:13 27:13 31:24
drawing [11) establishes [1] 61: I 5 5:)6 26:11 41:23 48:7 54:8 ;54:9
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53:18 67:1 78:6 78:14 71:8 77:10 77:11 87:2 87:11 88:13 fellow [I) 13:22
54;1 63:4 84:10 84:]2 expected [1)
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51:11 52:2 34:18 34:20 35:3
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COMPLIMENTS OF D & D REPORTING SERVICE, INC.
Index Page 4
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fences (I] 35:9 forty-five (II] 20:5 77:16 79:21 80:5 hear ('I 11:9 29;3 18:8 18:9 36:17
festival (IJ 60:3 36:24 61:24 70:2 81:7 53:22 77:10 77:J8 36:25 37:14 46:22
field (3j 14:3 15:24 70:3 75:21 87:7 given (IS] 8:22 84:25 47:]0 73:13 75:21
15:25 88:22 9:10 10:20 13:15 heard ("1 24:25 include (21 35:3
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71:25 73:16 forty-two [3] 36:17 56:20 56:23 57:6 hearing (16] included (:2) 16:3
67:23 75:10 76:24 1:11
fifteen-foot (I) 42:7 46:22 47: 1 0 82:6 90:7 4:2 4:3 4:21 35:22
file [IS) 5:4 15:20 forward [11 10:9 glad (1) 23:16 5:7 6:8 13:7 increase (2) 9:13
15:23 16:16 17:7 found (3) 29:25 15:6 16:15 17:4 10:7
27:3 31:25 32:1 38:23 81:18 goes (41 30:18 69:1 17:12 26:13 28:16 indeed [1] 10:12
38:25 39:8 40:3 four [6] 2: 1 5 14:6 83:16 83:23 57:4 63:15 67:13 INDEX [21
goUyp]8S:J bearings {4J 2:11
44:11 54:18 68:24 30:23 31:21 70:12 1:2 3:1
69:5 73:13 gonC(1188:17 2:3 4:8 43:7 indicate [1]
filed (1) 86:21 frame [!J] 48:12 good (2) 22:24 83:11 heavier [2] 19:17 66:8
indicated [21 85:11
final [S) 1 :11 4:3 55:6 55:9 55:13 grant [I) 7:10 75:7 88:1
61:25 84:2 88:23 56:2 66:18 66:21 granted [7] 5:9 heavily [1) 63:23 indicates [II
finalization [I) 61 :22 67:3 67:4 height [61 66:13
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26:18 27:14 28:6 40:19 57:19 57:19 seem [ll 69:6 84:6 86:16 87:24
85:6 85:22
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resistance [I) 75:8 29:14 29:15 31:2 66:10 80:13 80:15 seven (11 2:15 sketch {4} 74:12
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3:13 status [1) 55:22 86:14 87:18 testify [1) 55:16 transcript [IJ 88:3
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87:8 87:10 88:16 step [II 74:20 85:13 64:19 67:23 72:17 transition (I) 5:4
Specialist (1) 77:24 82:12 86:16
33:20 Stephen I2J 3:9 summer (1) 21:12 translated [II 29:2
specific (I) 67:10 88:10 88:11 90:7
50:24 33:6 Thank [ISI translating [II 76:6
specifically (3) 58:23 Steve (5) 21:1 sun (I) 82:10 12:13 translation [II
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specifir.d IIJ 50:21 32:25 71:5 71:5 71:5 49:18 57:16 58:11 54:22
speculating ["] 10:16 still [6) 42:11 70:18 supplement [I] 15:6 58:12 63:6 78:1 transmittals [1]34:9
11:2 52:12 52:14 71:9 83:21 87:6 support [131 8:3 85:23 89:1 trees [IJ 34:25
speculation [I] 28:9 87:14 8;4 10:9 10:25 thinking [IJ 23:7
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spell {IJ 58:5 39:23 40:2 48:5 38:J2 57:1 8J:21 third (I] 54:23 trip [2] 6:2 6:3
64:14 68:9 72:10 84:11 84:12 86:6 trouble [1] 83:9
spend [I) 65:23 72:18 72:19 78:17 supported [11 9:21 thirty [S} 18:5 true [2] 78:24 90:6
spent [I) 83:3 36:17 46:22 47:10
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spoke [S] 21:7 stTCct (4) 1:23 84:4 thirty-eight {II 18:8 try (") 6:19 27:25
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81:20 suppose ("1 thirty~five (3J 35:13 51:24
strict (I) 87:8 27:8 84:15 84:16 18:6
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11:7 thirty~four [1) 75:2 88:17
staff [47J 8:21 stronger [11 19:J8 72:25 74:J4 74:24 18:9
8:24 10:22 26:23 74:24 75:5 76:2 thirty-inch [I) 18:6 turn [21 9:11 9:J9
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27:19 31:23 34:7 8:3 8:25 9:12 37:14
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32:14 74:25 85:13 88:23 88:24 tear [I] 20:21 5:23 6:4 10:9 41:17 53:12 54:15
standard [I] 7:11 submitted (1.3) 7:13 Technically [I] 5:8 12:19 14:1 15:22 55:5 56:13 64:4
standards [S) 9:22 18:2 18:4 18:24 17:6 21:15 23:10 70:18 73:3 73:7
41:23 56:10 56:14 20:14 34:17 34:20 telephone [1) 17:12 29:21 29:25 32:9 79:2 86:19
56:19 49:1 65:25 78;6 telling (2) 47:1 44:24 55:22 .60:25 undcrneath (I] 12:21
standpoint [I) 62:19 85:14 85:16 85:17 53:11 61:2 62:J6 64:4 understaiid (13) 6:16
subsection PI 65:24 69:6 73:19
Stanislaw [31 1:4 22:4 temporary 13J 22:25 73:22 82:23 86:16 11:4 11:6 12:22
4:4 4:13 60:10 60:13 22:25 71:10 87:5 88:1 13:10 13:17 22:21
stars [I) 82:10 subsequent [I] 50:15 ten [2J 50:10 71:25 together [2J 11:17 55:23 63:13 67:25
substantial [2] 81:14 tenant [2) 12:20 70:14 71:12 76:3
start (2) 70:23 71:23 17:12 understood [I] 81:6
started (I) 35:22 85:5 12:23 too [IJ 11:8
substitute [I) 23:16 tend (I) 59:12 Unfortunatcly [IJ
starting [I) 22:9 successful [1) 10:4 tcnor[l) 84:24 took [7) JO:25 24:9 23:14
state (9) 1:1 1:20 24:17 25:7 28:24 unless [1)
such (7) 35:22 38:6 term 121 6:8 60:21 39:2 78:14 51:21
4:7 12:17 2R:12 55:1
33:5 49:J2 58:2 44:18 44:18 58:J8 terms ['I 42:3 top {12J 8;7 8:9 unrcbutted [I) 86:15 l
90:2 85:19 87:20 55:23 62:17 64:20 19:6 19:16 19:19
statement [13] 4:23 sudden [I] 67:9 65:4 85:12 85:20 23:22 24:12 26:4 unsupported [1) I...:'.'
4:25 6:23 1:1 sufficient [IJ 8:4 88:16 54:23 7J:18 72:13 85:5
10:15 10:21 11:12 suggest (51 17:9 tcrrible 11] 57:3 76:10 up [25J 4:20 19:7
11 :13 48:11 53:24 62:10 62:13 62:14 tcstificd {61 12:9 total (IJ 30:23 23:22 25:18 26:10
41:12 42:15 51:21
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Index Page 10
· . BUDZINSKI VS CITY OF CLEARWATER Mull' P
. 1- age upn .. zonmg
53:12 57:10 61:11 11:1 11:1 13:18 word [21 65:3 65:1
66:13 66:16 67:9 28:6 28:7 28:16 wordo (21 22:9
68:4 71:6 71:16 85:3 29:1
71:16. 71:23 72:2 Vs (11 1:7 works [I) 11:2
76:1 7'7:6 82:6 wait (2) 11:9 81:9 worldwide (11 60:5
84:18 84:19
uprights (2) 35:3 waited [11 29:4 write (3)4B:6 54:7
35:24 waiting [I) 76:13 59:18
upsct (21 76:9 wall lJJ 8:3 writing [1) 56:5
76:9 wanting [II 84:2 written (3) 45:1
used (2) 6:8 65:3 wants [7} 15:23 54:8 65:2
uses [II 33:23 32:18 74:3 74:19 wrong (21 81:24
utilization [I) 63:2 83;)2 85:12 85:18 87:4
V[I) 33:7 Waterfront [3) 42:19 wrote (5) 48:11
42:24 42:25 48:13 54:1 ) 59:14
V96-06 (1) 68:15 weather (3) 65:20 63:13
variance (77) 2:16 65:20 71:5 X [I) 16:6 16:9
4:12 5:9 5:20 week (2)15:21 69:4 16:13 16:16 16:22
5:25 7:4 7:9 welded (11 23:13 23:15 23:16
7:17 8:12 8:18 67:6 Xerox (2)
8:19 9:7 9:17 white (2) 8:25 16:8
9:23 JO;I 13;3 63:1 22:1
13:4 13:8 13:18 whole [10) 19:7 ycar(3) 14:19 24:22
25:22 25:23 25:24 73:5
19:7 23:6 23:6 years (3]5b:8
26:14 26:17 26:21 26:1 26:6 . 70:5 50:9
27:4 27:12 27:13 72:15 72:15 75:23 50: 10 }
31:23 33:23 34:2 willing 121 32:10 yet (I) 8.,:9
34:7 34:8 34:9
34:18 35:1 36:11 62:16 zoncp] 41:13 41:14
37:4 37:]7 38:4 willingly [1) 86:9 44:1
38:5 43:6 43:14 willingness (1) 9:4 zoning (10] 33:25 ..
45:12 50:19 51:8 wind(]) 38:17 38:20 37:3 37:8 40:17
51:10 52:9 52:21 75:8 42:4 42:6 42:22
54:7 54:22 54:24 wind~rcsistant (I) 42:22 43:1 43:25
55:1 55:7 56:6-
57:7 58:22 58:24 22:16 60:19
59:3 64:12 64:23 window [lJ 88:12
68: IS 74:8 77:1 "isc [1) 74:21
17:8 79:14 79:15 wish [4J 32:3 62:9
79:16 79:25 80:14 70:16 88:24
80:18 82:4 86:11 wished [lJ 7:5
86:19 86:25 87:6
88:20 wishes (IJ 87:19
variances (7J 43:4 withdraw [31 28:11
43:12 43:13 49:3 57:2 57:3
50:2 70:2 81:18 within (6J 5:10
various ['1 14:10 16:16 30:10 55:7
27:25 34:10 54:19 61:24 62:6
56:5 without (I) 6:12
verify (1) 34:17 10:5 12:1 12:4
44:24 81:4 37:3 42:9 43:2
version D:l 61:25 75:5 .
69:19 witness [40] 3:7
versus [I) 4:5 5:13 5:17 11:20
12:12 15:15 18:15
view (3] 11:)8 24:6 18:17 22:6 27:22
61:3 33:6 33:8 33:10
views 1lJ . 39:3 33:12 33:14 41:4
violates [I) 64:23 42:13 42:25 48:17
violation (2) 42:11 49:7 49:13 49:15
49:17 49:19 52:18
80:14 52:20 53:5 58:4
violations (I) 38;25 58:6 58:8 58:W
visited (I) 51:8 59:20 70:19 74:1
voices (IJ 84:25 74:7 77:23 80:4
voided (1) 80:14. 81:4 81:10 90:7
volition (lJ 88:18 witnesses (2] 10:13
57:)0
vote (71 10:25 28:2 wood [21 8:25
28:16 28:19 57:1
84:23 85:20 71:19
. voted (I) 10:17 wooden (I) 63:1
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COMPLIMENTS OF D & D REPORTING SERVICE, INC.
Index Page 11
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