STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN TAYLOR, III, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2119

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held on August 19, 1986, in Clearwater Florida, concerning this case before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Patrick T. Maguire, Esquire

1150 Cleveland Street, Suite 310

Clearwater, Florida 33515

For Respondent: Miles Lance, Esquire

Post Office Box 4748 Clearwater, Florida 33518

John Taylor, III, Petitioner, has applied for a variance from the provision of the City of Clearwater Land Development Code governing signs. At the hearing, Petitioner called one witness and introduced three exhibits, including two composite exhibits; the City of Clearwater, Respondent, called one witness and introduced no exhibits. The record of the action of the Development Code Adjustment Board on this application was admitted. No transcript of the hearing has been filed. The parties were given ten (10) days to file proposed orders, including proposed findings of fact and conclusions of law, and a ruling on each timely filed proposed finding is included in the Appendix to this Final Order.

FINDINGS OF FACT

1. John Taylor, III, Petitioner, owns property located at 1200 South Missouri Avenue in the City of Clearwater which is zoned CC (commercial center). The subject property consists of a mall and movie theater.

   
   

2. On or about April 17, 1986, Michael Johnson, on behalf of Petitioner, applied for a variance to allow two message signs on the subject property and also to allow total message signage of 256 square feet. Without a variance, the subject property can have only one message sign which cannot exceed 192 square feet. The property presently has one message sign and total message signage of

   176 square feet located on its marquee.

   
   

3. At a meeting of the Development Code Adjustment Board on May 8, 1986, Petitioner's variance application was denied.

4. The parties stipulated that Fusco Corporation is the manager of the mall located on Petitioner's property and further that Fusco is the owner of all improvements on the property. Further, Cineplex-Odeon has leased the theater located on the subject property and has renovated and expanded it from two to five movie theaters. Finally, Michael Johnson was employed by Cineplex-Odeon to install the changeable message sign which is the subject of this variance.

   
   

5. The second message sign which is sought by this variance would be located 350 feet from Missouri Avenue, which runs north and south in front of the subject property. Specifically, it will be located in the front wall of the theaters next to the ticket counter, and will be 16 feet long by 4.4 feet high. The sign would actually be a display case, 6 inches deep, with five individual poster display cases, which would be used to display coming attraction posters. Each display case would have a hinged glass door, through which the poster could be seen. Coming attraction posters are 2 feet long by 3.3 feet high. The 6 inch depth of the display case extends equally into, and protrudes out of, the front wall of the theater.

   
   

6. Petitioner has not established that a hardship would exist if this variance is not approved. Coming attraction posters can be, and in fact are, displayed in the theater lobby. During the renovation of the theater, the front wall could have been removed and a window installed to allow viewing of the lobby posters from outside the theater. Finally, the existing sign on the property could be used to advertise coming attractions, as well as movies which are currently playing.

   
   

7. The display case for which this variance is sought on behalf of Petitioner is a "changeable message sign," as that term is used in Section 134.011(a), Land Development Code, since it would be a graphic communication or device which would be primarily used to convey information or advertise and would also be prominently visible from outside the theater.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.65, Florida Statutes, Section 137.013, City of Clearwater Land Development Code.

   
   

9. Petitioner contends that the display case for which this variance is sought is not a "sign." Section 134.006 of the Land Development Code defines "sign" to be:

   
   

   Any writing; picture, symbol, banner or other graphic communication or device which is primarily used to convey information,

   attract attention, or advertise and is prominently visible from an outdoor location.

   
   

   The word "prominently" is not defined in the Code, but accordingly to its plain meaning, it means standing out or projecting beyond a surfaced, as well as readily noticeable. Webster's New Collegiate Dictionary. The display case clearly would be a "sign" for purposes of the Code since it meets the definitions set forth above.

   
   

10. As such, Petitioner needs a variance in order to display this sign since there is already one sign on the theater. Section 134.011(a) states:

    In addition to the signs otherwise permitted by these sign regulations, a theater shall be permitted a changeable message sign; the surface area of which shall not exceed one hundred twenty-eight (128) square feet. Any building in which is located two (2) or

    more theaters shall be permitted an extra sixteen (16) square feet of surface area per additional theater. Such signs shall require a sign permit.

    
    

11. In order to obtain a variance, an applicant must establish that it meets the standards for approval set forth at Section 137.012(d), which state in pertinent part:

    
    

    1. Standards for approval. A variance shall not be granted by the development code adjustment board unless the application and evidence presented clearly support the following conclusions:

       1. The variance requested arises from a condition which is unique to the property in question and is neither ordinarily or uniformly applicable to the zoning

          district nor created by an action or actions of the property owner, predecessor in title, or the applicant. Any mistake made in the execution of a building permit or work performed without the benefit of a permit shall not be considered to be situations which support the granting of a variance.

       2. The particular physical surroundings, shape or topographical conditions of the property involved and the strict

          application of the provisions of this development code would result in an unnecessary hardship upon the applicant . . . .

          
          

12. The applicant in this case has not established that the variance request arises from a condition unique to its property, or that failure to obtain a variance will result in unnecessary hardship. It is clearly evident that alternatives do exist which will allow the advertising of coming attractions and thus denial of this variance does not present an unnecessary hardship. There has been absolutely no evidence presented of "uniqueness." Petitioner argues that to deny this variance would be unique since many businesses in Clearwater have display windows and further the display case involved in this case is a display window rather than a "sign." As already discussed, this argument is ill-founded. The display case meets the Code definition of a "sign" and therefore a variance is required since there is already one sign on the theater.

Based on the foregoing, it is:

ORDERED that Petitioner's appeal of the action of the Development Code Adjustment Board denying his variance application is hereby DISMISSED, and the prior action of the Board is therefore sustained.

DONE and ORDERED this 28th day of August 1986 at 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 28th day of August 1986.

APPENDIX

(DOAH Case No. 86-2119)

Rulings on Petitioner's proposed findings of fact:

1. Rejected since timeliness of this appeal is not an issue, and therefore this proposed finding is irrelevant.

2. Adopted in Finding of Fact 4.

3-5 Rejected as irrelevant and unnecessary to the issues in this case.

1. Adopted in part and rejected in part in Finding of Fact 5.

2. Adopted in Finding of Fact 5.

3. Adopted in Finding of Fact 2.

4. Adopted in Finding of Fact 5.

5. Adopted in part and rejected in part in Finding of Fact 5.

6. Adopted in Finding of Fact 5.

7. Rejected as irrelevant since this case does not involve a display window or the display of products along curbs.

8. Rejected as irrelevant and unnecessary.

Rulings on the Respondent's proposed finding of fact cannot be made since Respondent's letter of August 20, 1986, does not separately identify proposed findings of fact, and does not distinguish between proposed findings of fact and conclusions of law. The two major paragraphs of Respondent's letter are substantially adopted in the Findings of Fact contained in this Final Order.

COPIES FURNISHED:

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

Patrick T. Maguire, Esquire

1150 Cleveland Street, Suite 310

Clearwater Florida 33515

Miles Lancer Esquire Post Office Box 4748 Clearwater Florida 33518

Docket for Case No: 86-002119

Orders for Case No: 86-002119