STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOSPITAL TRUST OF FLORIDA, ) MELON'S RESTAURANT, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0183

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held in this case on February 19, 1987 in Clearwater, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The issue in this case is whether Petitioner's application for conditional use approval to sell packaged alcoholic beverages should be approved. The parties were represented as follows:

Petitioner: Donald O. McFarland, Esquire

311 South Missouri Avenue Clearwater, Florida 33516

Respondent: M. A. Galbraith, Jr., Esquire

Post Office Box 4748 Clearwater, Florida 33518

At the hearing, Petitioner called Russell Latimer, manager and major stockholder in Melon's Restaurant (Petitioner), and also called Paula Harvey, Planning Director for the City of Clearwater, as an adverse witness. Petitioner introduced one exhibit. The City of Clearwater (Respondent) called Paula Harvey to testify and also introduced one exhibit. Five public witnesses testified against the application for conditional use approval, and one composite public exhibit was received. The record of proceedings before the Planning and Zoning Board concerning this application was accepted. No transcript of the hearing was filed. Proposed findings of fact have been filed and considered.

FINDINGS OF FACT

1. On or about November 24, 1986, Petitioner applied for conditional use approval for on-premises consumption and package sales of alcoholic beverages (4-COP) at 2160 U.S. Highway 19-North, Clearwater, Florida. The property is zoned CH (highway commercial).

   
   

2. The property in question is the site of a shopping center known as Hillcrest Center. Melon's Restaurant is located at Hillcrest Center, and Russell Latimer testified that this application would allow a package liquor store to be opened next to Melon's Restaurant to accommodate customers of the restaurant who have expressed a desire to be able to purchase alcoholic beverages to take home with them. However, the package liquor store would also

   be open to the general public, and would attract customers who had not necessarily eaten at the restaurant.

   
   

3. Melon's Restaurant has been operating for approximately three years with a 4-COPSRX license serving alcoholic beverages on-premises and maintaining at least 60 percent food sales.

   
   

4. The subject property is located immediately west of, and adjacent to, the Hillcrest Villas Apartments, which is in an area zoned RM-16 (multifamily residential). Four public witnesses who testified against this application reside in Hillcrest Villas Apartments. The front door of the residence of James

   F. Pannell, one of the public witnesses, is fifty feet from the back of Melon's Restaurant, and three hundred feet from the front of the restaurant.

   
   

5. The five public witnesses, including the four residents at Hillcrest Villas Apartments and the District Manager of Florida Power Corporation which owns property to the east and north of the shopping center, oppose this application due to incompatibility with the surrounding neighborhood. They speculated that approval of this conditional use application would result in excessive glare from auto headlights due to increased traffic, trespass to the residential areas from customers entering and exiting the shopping center, property damage, and an increase in litter and debris.

   
   

6. The property for which conditional use approval is requested in this case is within a five-hundred foot radius of a residential area, Hillcrest Villas Apartments.

   
   

7. No adverse reports or comments were received from the City's traffic or police departments.

   
   

8. Petitioner's application, if approved, would not change the parking or traffic patterns in the existing shopping center, Hillcrest Center, nor would it in any way change the set-backs, open spaces or hours of operation in the shopping center. It would, however, increase traffic to the shopping center and thereby could reasonably be expected to result in an increase in debris and litter, headlight glare, and noise associated with deliveries to the store as well as customers arriving at, and leaving, the premises.

   
   

9. On December 16, 1986, the Planning and Zoning Board denied Petitioner's application, and a timely appeal was taken.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Sections 136.024(a) and (b) of the Land Development Code clearly provide that provisions of the Code dealing with the sale of alcoholic beverages are "intended to supplement and function in tandem with the requirements contained in Chapter 72 of the Code of Ordinances," and also that conditional use applicants who seek to sell alcoholic beverages must comply with Chapter 72. Section 72.05(b)(4) of the Code of Ordinances states:

    
    

    No alcoholic beverage establishment shall be established within a five- hundred-foot radius of a church,

    school, residential area or other alcoholic beverage establishment. (Emphasis supplied.)

    
    

    Although this section is captioned "guidelines", it must be applied and read in tandem with the conditional use standards set forth at Section 136.025 of the Land Development Code.

    
    

12. Specifically, Section 136.025(c)(2)a authorizes alcoholic beverage sales within a highway commercial district if the use is "sufficiently distant from churches, schools, hospitals, residences and like uses so as to not adversely affect the use, enjoyment or value of such properties." Section

    136.025 itself does not define the term "sufficiently distant" but this must be read in pari materia with Section 72.05, as required by Section 136.024. Thus, it is clear that a conditional use permit for the sale of alcoholic beverages will not be allowed within five hundred feet of a residential area since this is, per se, not sufficiently distant.

    
    

13. Since Petitioner's property is immediately adjacent to Hillcrest Villas Apartments, and within five hundred feet of several residences, and public testimony indicates reasonable concerns about the use and enjoyment of surrounding residential uses as well as its compatibility with the neighborhood, Petitioner's application must be denied.

    
    

14. Finally, it must be noted that an applicant for a conditional use permit bears the burden of proof. Section 135.025(c), Land Development Code. In this regard, Petitioner has specifically failed to establish that the proposed use is compatible with surrounding uses as required by Sections 136.025(b) and 137.011(d)(6).

Based upon the foregoing, it is

ORDERED that Petitioner's application for a conditional use permit is hereby DENIED, and the prior decision of the Planning and Zoning Board is therefore affirmed.

DONE AND ORDERED this 11th day of March, 1987 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 11th day of March, 1987.

COPIES FURNISHED:

Donald O. McFarland, Esquire

311 South Missouri Avenue Clearwater, Florida 33516

M. A. Galbraith, Jr., Esquire City Attorney

Post Office Box 4748 Clearwater, Florida 33518

City Clerk

Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 87-000183

Orders for Case No: 87-000183