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08/23/1988 PUBLIC HEARING August 23, 1988 11:03 a.m. Present: Donald D. Conn, Hearing Officer Also present: Paula Harvey, Planning Official Susan Stephenson, Deputy City Clerk Issue: Andrew W. Kallivokas (The Sandpiper) for on-premises consumption of beer and wine at 1218 Cleveland St in Padgett's Estate Sub, Lot 7, zoned UC(E) (Urban Center-eastern corridor), CU 88-31 (appellants: Homer and Center appealing granting of the conditional use) (appellant: Kallivokas appealing restriction placed on conditional use) Case No. 88-2481 Appearances: Donald O. McFarland, attorney representing Andrew Kallivokas R. Samuel Leonard, attorney representing Patrick McCabe John W. Homer, representing himself M.A. Galbraith, Jr., City Attorney, representing the City of Clearwater Exhibits submitted: By appellant McCabe: Exhibit #1 - Petition with eight pages in support of the application By petitioner Homer: Exhibit #1 - Plat marked to show parking spaces Mr. McFarland stated Mr. Kallivokas is the owner of the property and Gulfcoast Rathskeller, Inc. leased the premises. He presented a motion to dismiss the appeal on the grounds there is no change of business ownership. The owner of all the shares of Gulfcoast Rathskeller, Inc. died and the shares were purchased by Mr. McCabe and two other parties. It is their position that there was no need for a conditional use because the owner of the license did not change. When they presented the State license application to the City for signature, they were told they would need to apply for a new conditional use. The Planning and Zoning Board granted the conditional use, but with conditions. Mr. Leonard stated a stockholder can sell his stock but this does not have the effect of changing the ownership of a corporation. A corporation must be liquidated to change its structure. A corporation enjoys perpetual succession through its corporate name. In this instance, the corporation is the owner of the business with new stockholders. Mr. Galbraith stated there is no evidence to support the motion to dismiss as the Code states conditional use approval is required if there is a change of business ownership and, in his opinion, the City Commission meant a direct or an indirect change of ownership. Florida Statutes state a license is not transferable because of a change of stock ownership and he interprets the Code to mean stock ownership change also requires conditional use approval. Hearing Officer Conn stated he would allow ten days for response to the motion to dismiss. He accepted the tape of the meeting before the Planning and Zoning Board, the minutes of that meeting, the application, and all other items presented to the Planning and Zoning Board. Paula Harvey stated the property is zoned Urban Center-Eastern Corridor and the applicant is requesting a conditional use for a 2COP alcoholic beverage license. The existing operation was grandfathered in as to distance separation, but the change in ownership necessitates a conditional use be approved. The Planning and Zoning Board approved the conditional use with several conditions including closing at 10:00 p.m. during the week and midnight on Fridays and Saturdays, keeping doors closed during live entertainment, keeping the restaurant open til closing time, and obtaining the occupational license within six months. During cross-examination, she stated she could only recall one other establishment whose hours were limited but that condition was released last week for approximately one year. She agreed normal operating hours for this type of business are to close at midnight during the week and 2:00 a.m. on weekends or to remain open til 2:00 a.m. every day. Discussion ensued regarding the discrepancy in the address. The application shows an address at 1218 and the motion for dismissal shows an address of 1214 and 1214A. It was pointed out that previous approval of the establishment was by the City Commission under Section 136.007(d) of the Code. Patrick McCabe stated the business is owned by Gulfcoast Rathskeller, Inc. He clarified the address is 1218 but mail is delivered to 1214. They operate a restaurant and serve beer and wine. He has determined that closing two hours earlier than is typical each night costs him approximately 28 hours of prime time with a loss of approximately 40% of his income. They have done extensive work to upgrade the building and he feels they attract a better crowd than the previous owners. They have had no problems and the police have not been called to break up fights. Under cross-examination, he stated patrons park behind the business and in various parking lots in the area. He has live entertainment on Fridays and Saturdays but keeps the doors closed and has installed a steel door at the rear of the building to help cut down on noise. He admitted he has not abided by the closing times made a part of the conditions for granting the conditional use. In response to a question about a police cruiser parked behind the business on April 19th, he stated he was unaware of this incident. When asked about parking, he stated there are two spaces on his property and he has not heard objections from neighboring businesses with regard to his patrons parking on their property. He also has taken steps to address the complaints voiced at the Planning and Zoning meeting. Mr. Leonard stated it is typical for this type of business to remain open until 2:00 a.m. Mr. Galbraith pointed out Section 72.15(c) gives the Planning and Zoning Board the authority to establish earlier closing hours. The meeting recessed from 12:10 p.m. to 12:15 p.m. Dr. Michael Adams stated he has problems with intoxicated people sleeping against his building and recently installed a fence to help prevent patrons of the establishment from entering his property. In addition to his office, he owns a vacant lot and a rental property for which it is difficult to get reasonable rent because of the nearby bar. He has no direct problems with the bar but feels it indirectly affects him. In response to a question, he stated he purchased the property in January, 1985. John Homer stated he is opposed to the granting of the conditional use. There have been many police reports involving the property over the years. He feels the parking situation is a problem and there have been fights on his property involving clientele from the establishment. He is disturbed by more than just the noise and the litter from the business. He requested permission to submit a copy of the police report from the incident that occurred on April 19th. Discussion ensued as to parties not being able to address the police report since it was not available for the hearing. The Hearing Officer stated he would allow an additional ten days to address the relevance of the police report if submitted by Mr. Homer within ten days and if it relates to the subject property. Mr. Homer stated he owns the hot dog stand and the building where the real estate consultant is located. Mr. Center also owns property in the area. In response to questions, he stated he has not seen bikers at the establishment in ten years and agreed the building has been cleaned up in the last couple of months. He stated he has not been in the establishment and he does not remember ever seeing speakers outside. Under cross-examination, he stated the earlier closing hours do not change his negative feelings about the operation as the problems occur even during the daytime. Three citizens spoke in opposition stating the conditions are bad, the noise is a problem, and there is concern about the clientele from the establishment. In response to a question, the Planning Official stated there are provisions in Chapter 72 that allow the City Commission to revoke the license of establishments that become a nuisance. The Hearing Officier advised that any proposed papers regarding the motion to dismiss be submitted within ten days, that Mr. Leonard should submit Exhibit #1 to him within ten days, that Mr. Homer should submit the police report within ten days, and an additional ten days to submit proposed Findings of Fact, Conclusions of Law, and proposed Orders will be allowed if the additional information is submitted. The meeting adjourned at 1:10 p.m.