STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL and WILMA SARRIS, ) RENEE JOHNSON, and ALLAN ) STOWELL, )

)

Petitioners, )

)

vs. ) CASE NO. 87-4207

) CITY OF CLEARWATER, and ) JOSEPH W. McGOLDRICK, )

)

Respondents. )

)

FINAL ORDER

The final hearing in this case was held on November 13, 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:

For Petitioners: Toby Buel, Sr., Esquire

1904 Drew Street

Clearwater, Florida 34625 (Petitioners Sarris and Johnson)

and Allan Stowell

2873 Thornton Road Clearwater, Florida

For Respondents: M. A. Galbraith, Jr., Esquire

City Attorney

Post Office Box 4748 Clearwater, Florida 34618-4748 (City of Clearwater)

and

Donald O. McFarland, Esquire

311 Missouri Avenue South Clearwater, Florida 34616 (Joseph W. McGoldrick)

The issue in this case is whether the application of Joseph W. McGoldrick for conditional use approval for the on-premises consumption of alcoholic beverages (4COP) should be approved. At the hearing, the record before the Planning and Zoning Board was received in evidence. The Hearing Officer severed the issues presented and allowed the presentation of argument relating solely to the applicability of Section 72.05, Code of Ordinances, to this application since the parties stipulated that the property in question is within five hundred feet of residences. Since it is found herein that, as a matter of law, Section 72.05 proscribes this application, evidence as to other issues raised by Petitioners is irrelevant and would needlessly burden the record of this

proceeding. See Section 137.013(e)(4), City of Clearwater Land Development Code, and Rule 22I-6.024, Florida Administrative Code. Should an appeal of this Final Order be taken and the Respondents prevail therein, the Petitioners have preserved their right to pursue, on remand, all other grounds asserted in their petition for denial of this application.

FINDINGS OF FACT

1. On or about August 11, 1987 an application for conditional use approval to allow on-premises consumption of alcoholic beverages (4COP) was filed on behalf of Joseph W. McGoldrick for property located at 2848 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG) and multiple family residential (RM-12).

   
   

2. A public hearing before the Planning and Zoning Board was held on September 1, 1987. The Planning and Zoning Board voted 5-1 to grant conditional use approval for this application.

   
   

3. A timely appeal was taken by Petitioners on September 15, 1987. Petitioners are surrounding property owners whose property is located within five hundred feet of the subject property.

   
   

4. With this application, McGoldrick seeks approval for on-premises consumption of alcoholic beverages since he intends to convert the use of the property to a nightclub.

   
   

5. The parties stipulated that the property in question is within five hundred feet of several residences, including Petitioners'.

   
   

   CONCLUSIONS OF LAW

   
   

6. 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.

   
   

7. 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.

   
   

8. Specifically, Section 136.025(c)(1) 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 or consumption of alcoholic beverages will not be allowed within five hundred feet of a residential area since this is per se, not sufficiently distant. The property in question is within five hundred feet of several residences. Therefore, the application must be denied because it is clearly proscribed by Section 72.05(b)(4), cited above.

   
   

9. The five-hundred foot requirement of Section 72.05 was not 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. It might be argued that since Section 136.025 of the Land Development Code sets forth a "sufficiently distant rule" rather than a specific "500 foot rule," 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 is not persuasive, however, due to 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.

   
   

10. 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; The Southland Corporation v. City of Clearwater, DOAH Case No. 87-3822, filed November 17, 1987; Dorminy, et al. v. City of Clearwater and Farnsworth, DOAH Case No. 87- 4206, filed November 23, 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.

    
    

11. 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 August and early September, 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 three of the 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 Joseph W. McGoldrick's application for conditional use approval is DENIED, and the prior decision of the Planning and Zoning Board is therefore reversed.

DONE AND ORDERED this 23rd 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 23rd day of November, 1987.

COPIES FURNISHED:

Toby Buel, Sr., Esquire 1904 Drew Street

Clearwater, Florida 34625

Allan Stowell

2873 Thornton Road Clearwater, Florida

Donald O. McFarland, Esquire

311 Missouri Avenue, South 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: 87-004207

Orders for Case No: 87-004207