Judges: DONALD D. CONN
Agency: Contract Hearings
Latest Update: Nov. 17, 1987
Summary: The final hearing in this case was held on November 6, 1987 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: R. Carlton Ward, Esquire Cynthia I. Rice, Esquire RICHARDS, NODINE, GILKEY, FITE, MEYER & THOMPSON, P.A.Petitioner's application for conditional use approval to sell alcoholic beverages is denied because the premises is within 500 feet of a church and school.
87-3822STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE SOUTHLAND CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3822
)
CITY OF CLEARWATER, )
)
Respondent. )
)
FINAL ORDER
The final hearing in this case was held on November 6, 1987 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: R. Carlton Ward, Esquire
Cynthia I. Rice, Esquire RICHARDS, NODINE, GILKEY, FITE, MEYER & THOMPSON, P.A.
1253 Park Street
Clearwater, Florida 34616
Respondent: M. A. Galbraith, Jr., Esquire
City Attorney
Post Office Box 4748 Clearwater, Florida 34618-4748
The issue in this case is whether the application of The Southland Corporation (Petitioner) for conditional use approval for the sale of alcoholic beverages (2APS) should be approved. At the hearing, the record before the Planning and Zoning Board was received in evidence, as well as one letter in support of the application. A late filed exhibit was also admitted by stipulation. No transcript of the hearing was filed.
FINDINGS OF FACT
On or about July 9, 1987 an application for conditional use approval to allow off-premises sale of beer and wine (2APS) was filed on behalf of Petitioner for property located at 2030 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG).
A public hearing before the Planning and Zoning Board was held on August 4, 1987. At that hearing, the Petitioner's representative was not allowed to give rebuttal testimony, although the Board's by-laws do allow the applicant to rebut testimony in opposition to the application, and rebuttal is, in fact, usually allowed. The Petitioner's representative did not specifically request an opportunity to rebut the opponent's testimony, but assumed he would be given an opportunity to speak before the Board voted.
The Planning and Zoning Board voted 3-2 to deny conditional use approval for this application.
A timely appeal was taken by Petitioner on August 18, 1987.
With this application, Petitioner seeks approval to sell beer and wine at a 7-11 convenience store. By subsequent application and approval of the Planning and Zoning Board on September 1, 1987 Petitioner has been granted a conditional use for 1APS, package sale of beer only. However, this 1APS application and approval is not at issue in this case.
The parties stipulated that the property in question is within five hundred feet of a church and several residences.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.65, Florida Statutes, and Section 137.013, Clearwater Land Development Code.
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.
Specifically, Section 136.025(c)(2) authorizes alcoholic beverage sales within a general 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 churches or a residential area since this is per se, not sufficiently distant. The property in question is within five hundred feet of a church and several residences. Therefore, the application must be denied because it is clearly proscribed by Section 72.05(b)(4), cited above. The Board's failure to allow rebuttal from the applicant is harmless error since this application cannot be approved, as a matter of law, under the facts of this case.
Petitioner urges that the five-hundred foot requirement of Section
72.05 was repealed by the later adopted general repealer provisions of Section
131.002 which provide that concurrent with the adoption of the Land Development
Code, all other ordinances in conflict with such Code were repealed. Since Section 136.025 of the Land Development Code sets forth a "sufficiently distant rule" rather than a specific "500 foot rule," Petitioner argues that there is a conflict between Sections 136.025 and 72.05 such that the earlier adopted Section 72.05 has been repealed by the general repealer found at Section 131.002.
This argument might be persuasive, but for the language in Section 136.024(a) and (b) of the Land Development Code which apparently recognizes that differences between Section 72.05 and the new Land Development Code do exist, but should be resolved by interpreting the new Code to "supplement and function in tandem with the requirements contained in Chapter 72" rather than by repealing provisions of Chapter 72. In fact, it is specifically provided that before any new location for alcoholic beverage sales is allowed, such conditional use must be approved "in accord with all applicable terms of this development code, (and) Chapter 72 of the Clearwater Code of Ordinances . (Emphasis supplied). Therefore the general repealer of Section 131.002 does not apply since there is no conflict in these provisions. They can, and should be, read in pari materia.
It must be pointed out that the issue in this case is not one of first impression. Several conditional use appeals have applied Section 72.05(b)(4), Code of Ordinances, under facts similar to the ones in this case. Melon's Restaurant v. City of Clearwater, DOAH Case No. 87-0183, filed March 11, 1987; Kebort, d/b/a Dock of the Bay v. City of Clearwater, DOAH Case No. 86-4426, filed April 14, 1987. Benjamin et al. v. City of Clearwater and James J. Orlando, DOAH Case No. 87-2272, filed September 8, 1987. Therefore, the consistent application of the provisions of the Clearwater Code of Ordinances to the facts in this case requires that this application for conditional use approval be denied.
Finally, it is noted that the parties stipulated that the applicable provisions of the Code of Ordinances relevant to this application are those which existed when this application was filed and considered by the Planning and Zoning Board. The Hearing Officer concurs with, and adopts, this interpretation of the law applicable in this case. Therefore, the ordinance provisions cited above upon which this case is decided are those which were in effect in July and August, 1987. However, it is interesting to note, although not controlling in this case, that on September 17, 1987 Ordinance Number 4470-87 was adopted to amend Section 136.025(c)(1),(2) of the Land Development Code, to specifically confirm and clarify within Chapter 136 that the five hundred foot requirement found in Section 72.05 is a supplementary conditional use standard. This ordinance was adopted after the entry of the three conditional use appeal Final Orders referenced above, and confirms the interpretation and application of Section 72.05 to conditional use approvals set forth in these prior decisions.
Based upon the foregoing, it is:
ORDERED that The Southland Corporation's application for conditional use approval is DENIED, and the appeal of the prior decision of the Planning and Zoning Board is therefore DISMISSED
DONE AND ORDERED this 17th day of November, 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 17th day of November, 1987.
COPIES FURNISHED:
R. Carlton Ward, Esquire Cynthia I. Rice, Esquire RICHARDS, NODINE, GILKEY, FITE, MEYER & THOMPSON, P.A.
1253 Park Street
Clearwater, Florida 34616
M. A. Galbraith, Jr., Esquire City Attorney
Post Office Box 4748 Clearwater, Florida 34618-4748
Cynthia Goudeau City Clerk
Post Office Box 4748 Clearwater, Florida 34618-4748
Docket for Case No: 87-003822
Orders for Case No: 87-003822
| Issue Date |
Document |
Summary |
|
Nov. 17, 1987 |
DOAH Final Order
|
Petitioner's application for conditional use approval to sell alcoholic beverages is denied because the premises is within 500 feet of a church and school.
|
