STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS FLOYD, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1138

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held in this case on May 16, 1986, in Clearwater Florida, before Donald D. Conn a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

Petitioner: Robert K. Hayden, Esquire

800 Court Street

Clearwater, Florida 33516

Respondent: M. A. Galbraith Jr., Esquire

City Attorney

Post Office Box 4748 Clearwater, Florida 33518

Thomas Floyd, Petitioners has petitioned for review of a decision of the Planning and Zoning Board of the City of Clearwater which denied his application for conditional use approval for on-premises consumption of alcoholic beverages in a "CO" zoning district.

At the hearing, the City of Clearwater Respondents called Paula Harvey, Planning Directors to testify and Petitioner testified on his own behalf.

Respondent also introduced one composite exhibit consisting of the minutes and materials from the previous meeting of the Planning and Zoning Board on this application. Five public witnesses testified in opposition to the application. The Land Development Code of the City of Clearwater was officially recognized.

The parties were allowed to submit posthearing proposed findings of facto conclusions of law and proposed recommended orders- and a ruling on each timely filed proposed finding is included in the Appendix to this Final Order. No transcript of the hearing was filed.

FINDINGS OF FACT

1. Petitioner owns property located at 1315 N. Betty Lanes Lots 8 and 9, Block E, Pine Ridge Subdivision in Clearwater, Florida. This property is zoned "CO" (general commercial)

   
   

2. The consumption of alcoholic beverages on, premises is not permitted on premises zoned "CO," and therefore requires conditional use approval.

3. Petitioner applied for conditional use approval on or about February 20, 1986 and on March 18, 1986 the Planning and Zoning Board disapproved Petitioner's application for conditional use. Paula Harvey, Planning Directors recommended approval because her review of the application indicated the location was suitable for a restaurant and lounges and the police department indicated no reason for disapproval. She did condition her recommendation on Petitioner demonstrating that all parking requirements of the Land Development Code would be met.

   
   

4. A 6,000 square foot; two-story building is located on the subject property, but Petitioner only intends to use 2500 square feet for a restaurant and lounge. Petitioner currently operates a bar serving beer and wine directly across Overlea Lane on Beverly Lanes about forty feet away from the subject property. He testified he intends to close his present bar if he obtains this conditional use approval and opens his restaurant and lounge on the subject property. At his present locations Petitioner serves beer and wine; but not food. On the subject property, he would not sell alcoholic beverages without food, except to 7 persons waiting to be seated in the restaurant.

   
   

5. Other than Paula Harvey's testimony that the subject property does not have sufficient parking spaces for the utilization of the entire 6,000 square foot building as a restaurant and lounges there is no competent, substantial evidence in the record as to the number of parking spaces on the property. It cannot be determined if there would be sufficient parking if Petitioner used only 2,500 square feet for the restaurant and lounges and the remainder of the building for some other commercial purpose.

   
   

6. The neighborhood surrounding the subject property includes a church, residential, shopping and commercial areas. In addition to Petitioner's present barb there is also one other bar in the neighborhood.

   
   

7. Public testimony evidences neighborhood concern about noise, litter, traffic and fighting associated with Petitioner's present bar and Petitioner offered no testimony as to how he intended to control noise, litters traffic and fighting which can reasonably be expected to occur if he opens a 2500 square foot restaurant and lounge with seating for more than 150 people compared to his current 1,600 square foot beer and wine bar.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has juris- diction over the parties and subject matter in this cause. Section 120.65, Florida Statutes, Sections 137.013, 137.021, City of Clearwater Land Development Code.

   
   

9. Section 136.025 of the Land Development Code sets forth general and supplemental standards for conditional use approval which include the following:

   
   

   1. The use shall comply with the land use plan and all applicable terms contained in this development code; the building coded and the Clearwater Code of Ordinances.

      (3) Noise generated from the use shall not unreasonably diminish the use, enjoyment or value of surrounding properties.

      1. Sufficient area shall be afforded for parking in accord with section

         136.022 of this chapter.

      2. The use shall be reasonably compatible with surrounding uses as measured by building setbacks, open spaces, hours of operation, building site appearance, architectural design and other factors which may be determined appropriate to assess the compatibility of uses. See also Section 137.011(d).

      
      

10. Sections 136.025 and 137.011, above specify that a conditional use may not be approved unless all of the applicable standards have been met. The Petitioner has the burden to establish that the required standards have been met, and in this case Petitioner has failed to meet this burden.

    
    

11. Concerns about the noise, litter and compatibility of the proposed use with the surrounding area have been expressed by public witnesses. Petitioner offered no competent substantial evidence of sufficient parking, compatibility; noise or litter prevention efforts which he would undertake at the proposed new location. His testimony was vague and unclear about his plans for the remainder of the building on the subject property. Therefore, Petitioner has failed to meet its burden of proof and has specifically failed to establish that his application for conditional use meets the requirements of the City of Clearwater Land Development Code.

Based upon the foregoing, it is ORDERED that Petitioner's application for conditional use approval is DENIED.

DONE and ORDERED this 10th day of June, 1986, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1986.

APPENDIX (DOAH Case No. 86-1138)

Rulings on Petitioner's Proposed Findings of Fact: 1,2. While these proposed findings of fact summarize

Petitioner's testimony, such testimony is rejected in

Findings of Fact 6, 7.

1. Rejected as not a proper proposed findings of fact and otherwise not based on competent substantial evidence.

2. Adopted in Finding of Fact 3.

3. Rejected as speculative, and not a proper proposed finding of fact.

4. Adopted in Finding of Fact 4.

Rulings on Respondent's proposed Findings of Fact:

1. Adopted in Findings of Fact 1, 4. 2,3. Adopted in Finding of Fact 2.

1. Adopted in part in Finding of Fact 4, but otherwise rejected in Finding of Fact 5.

2. Adopted in Finding of Fact 4.

3. Adopted in Finding of Fact 6.

4. Adopted in Finding of Fact 7.

COPIES FURNISHED:

Robert K. Hayden, Esquire 800 Court Street

Clearwater, Florida 33516

M. A. Galbraith Jr., Esquire City Attorney

Post Office Box 4748 Clearwate, Florida 33518

Cynthia Goudeau, City Clerk Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 86-001138

Orders for Case No: 86-001138