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02/03/1992 CITY COMMISSION SPECIAL MEETING Pick Kwik Conditional Use February 3, 1992 The City Commission of the City of Clearwater met at City Hall with the following members present: Rita Garvey Mayor/Commissioner Sue Berfield Vice-Mayor/Commissioner Lee Regulski Commissioner William Nunamaker Commissioner Richard Fitzgerald Commissioner Also present were: Michael J. Wright City Manager M. A. Galbraith, Jr. City Attorney Cynthia E. Goudeau City Clerk The meeting was called to order at 1:59 p.m. for the purpose of discussing a possible settlement regarding the Pick Kwik Conditional Use Permit. The Planning and Zoning Board's July 30, 1991 decision to deny a conditional use permit request to allow Pick Kwik to sell alcoholic beverages at its store located on Mandalay Avenue on Clearwater Beach has been overturned by an administrative hearing officer. The order by the hearing officer establishes several conditions including a highly unusual condition linking the conditional use permit for Pick Kwik to that of the 7-11 store directly across Mandalay Avenue from the Pick Kwik location. The City Attorney has expressed serious doubts about whether the condition would be upheld under judicial review. The attorneys for Pick Kwik have indicated a desire not to be governed by this condition and are therefore awaiting final decision of an earlier conditional use permit which is still under judicial review. Because of the unlikelihood of successfully challenging the hearing officer's reversal of the Planning and Zoning Board's decision, staff does not recommend the Commission appeal the order. On the other hand, staff does not feel comfortable accepting the hearing officer's conditions for approval due to the legal uncertainties regarding the 7-11 store condition. Therefore, staff recommends pursuing a settlement agreement with the applicant which would establish the conditional use for the property with certain conditions. These conditions include: 1) The applicant shall provide a security guard to patrol its three Clearwater Beach establishments between the hours of 8:00 p.m. and 2:00 a.m. on Friday and Saturday nights with monitoring reports submitted to the City Planning and Development Department not less than quarterly; 2) The applicant shall obtain the requisite alcoholic beverage separation distance variance from the City Commission; 3) The applicant shall obtain the requisite occupational license within six months of the date of the public hearing on the application; and 4) The applicant shall restrict the hours of operation for alcoholic beverage sales to 9:00 a.m. until 12:00 midnight Monday through Saturday and 1:00 p.m. to 12:00 midnight on Sunday. The agreement would pertain to the initial conditional use permit which was denied by the Planning and Zoning Board and upheld on appeal by the administrative hearing officer. This case is still under judicial review. The appellant court recently sent this case back for trial and there is some likelihood that the hearing officer's decision will be overturned. Settling this first conditional use issue will allow the second conditional use to be dispensed with. While staff is recommending the settlement agreement approach, the Commission has several alternatives: 1) appeal the hearing officer's decision granting the second conditional use; 2) continue judicial review of the first conditional use permit in anticipation of similar conditions being placed on the permit; 3) allow the applicant to proceed under the conditions established for the second conditional use permit; or 4) proceed with the settlement agreement as recommended by staff. The City Attorney reported the hearing officer has reconsidered the condition regarding the 7-11 store and has removed it from his order. In response to a question, the City Attorney indicated should a settlement be entered into, the separation distance variance would still have to come to the City Commission for approval. Concerns were expressed that if they approved the settlement, they would have to approve the separation variance. The Planning and Development Director indicated now that the hearing officer has removed the condition regarding the 7-11 store across the street, alternatives 1 and 2 would amount to the same. He felt that given the case, it would be better to settle the issue and the decision regarding the separation variance would still be with the City Commission. It was indicated that one reason the hearing officer overturned the Planning and Zoning Board's decision was that between the first and second conditional use applications, there was a change in the police department's recommendation and staff had recommended approval of the conditional use with conditions. In response to a question, the City Attorney indicated there had been a change in Police district commanders between the first and second conditional use applications. He stated the Commission did not have to vote today if they did not wish to appeal and the applicant could come forward with the second conditional use with the changed conditions. The separation distance would still come to the City Commission for action. Consensus of the Commission was to take no action at this time. In response to a question regarding why staff was not recommending appeal of the second conditional use, the City Attorney indicated it would be difficult to appeal when staff had recommended approval with conditions. The meeting adjourned at 2:10 p.m.