STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA KEBORT and DOCK OF THE ) BAY, INC., d/b/a MAMA NINA'S ) RISTORANTE AND LOUNGE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4977

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held in Clearwater, Florida, on December 18, 1987, to consider this appeal of a decision of the City of Clearwater Planning and Zoning Board to deny the applicant's request to remove a midnight closing condition placed on conditional use approval granted in November 1986. The parties were represented as follows:

Petitioner/ Marion Hale, Esquire Applicant: Post Office Box 1368

Clearwater, Florida 34617

Respondent/ M. A. Galbraith, Jr., Esquire City: City Attorney

Post Office Box 4748 Clearwater, Florida 34618-4748

At the hearing, the City called Paula Harvey, Planning Director, to testify and introduced one composite exhibit consisting of the record in this matter before the Planning and Zoning Board. The Applicant called Adriano Battaglini, owner of Mama Nina's, and three of his employees, in addition to Jay Keyes, owner of another restaurant on Clearwater Beach. Two exhibits were received from the Applicant. Six members of the public testified in opposition to this application. No transcript of the hearing has been filed. The parties were allowed to file proposed final orders within ten days of the hearing, and timely filed proposed orders have been considered in preparing this Final Order.

FINDINGS OF FACT

1. On or about September 15, 1987, the Applicant filed an application for conditional use approval to remove a condition of prior conditional use approval granted on November 18, 1986, that requires a closing time of midnight. The Applicant seeks to remain open until 2:00 a.m.

   
   

2. At a meeting of the Planning and Zoning Board on October 13, 1987, the Board voted unanimously to deny the Applicant's request to remove the midnight closing restriction.

3. The Applicant has filed a timely request for hearing of the October 13, 1987, decision of the Planning and Zoning Board.

   
   

4. The property in question in this application is located at 735 Bayway Boulevard, in Bayside Shores Subdivision, Clearwater Beach, Florida. This property is zoned general commercial (CG) for which conditional use approval is required for the on-premises sale of alcoholic beverages.

   
   

5. The Applicant purchased the restaurant located on the subject property in November 1986, and there has been a substantial reduction of complaints and trouble with boisterous patrons under the current ownership compared with conditions prior to November 1986. Public witnesses confirm that noise and other disturbances have significantly decreased since November 1986, but they request that the midnight closing restriction remain so that the disturbing conditions, previously experienced with a 2:00 a.m. closing, do not return. However, the current owner, Adriano Battaglini, is committed to retaining the present image of Mama Nina's, which is primarily a restaurant, rather than a bar or lounge. Even if allowed to remain open until 2:00 a.m., Mama Nina's will continue to be primarily a restaurant. He has been experiencing 65-68 percent food sales at Mama Nina's, and caters to a mature, adult clientele rather than students and persons under 25 years of age, as was the case under prior ownership.

   
   

6. The Applicant's restaurant is located in a commercial area which has heavy traffic on occasion. No evidence was presented indicating that traffic will increase if Mama Nina's is allowed to remain open until 2:00 a.m. Although there are some other restaurants on Clearwater Beach which close at or before midnight, most restaurants and lounges do remain open until 2:00 a.m.

   
   

7. The Applicant has shown that Mama Nina's does not generate excessive or disturbing noise, light glare or traffic, and has very adequate parking. As currently operated, the restaurant is compatible with the neighborhood, and remaining open until 2:00 a.m., under current conditions, will not have an adverse impact on the neighborhood.

   
   

8. The subject property is located within 500 feet of residences, and is, in fact, across the street from several residences.

   
   

9. Ordinance 4470-87 applies to this application since said Ordinance, by its terms, governs applications filed subsequent to September 3, 1987.

   
   

   CONCLUSIONS OF LAW

   
   

10. 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.

    
    

11. The Applicant has the burden of proof concerning conditional use approval. Section 137.011(d), Land Development Code. The standards for conditional use approval are set forth at Section 136.025(b), Land Development Code. See also Section 137.011(d)

    
    

12. Conditional use approval is required in a CG zoned area whenever the sale of alcoholic beverages is involved. Although the Applicant in this case already has conditional use approval for the on-premises consumption of alcohol, it must receive further approval to remove the closing restriction which was imposed in November 1986.

13. The only issue in this case is whether the Applicant's restaurant should be allowed to remain open until 2:00 a.m., or whether the current midnight closing restriction should remain. The Applicant has shown that removing the midnight restriction will not unreasonably diminish the use, enjoyment or value of surrounding properties since it has been established that the subject property will continue to be used primarily for restaurant purposes between midnight and 2:00 a.m., and under the current ownership disturbance to the neighborhood has been greatly reduced. Public witnesses who testified expressed concerns arising from conditions under a prior ownership. There is no evidence of disturbances due to noise, lights, traffic or other factors which would warrant disapproval of this conditional use. The Applicant has shown that the application is consistent with the standards for approval set forth in Sections 136.025 and 137.011.

    
    

14. Ordinance 4470-87 applies to the approval sought in this case. Since this Ordinance only applies to applications for conditional use filed after September 3, 1987, this Ordinance did not apply when this Applicant received its prior approval. Ordinance 4470-87 requires that conditional uses for alcoholic beverages sales may not be approved by the Planning and Zoning Board if the use is less than 500 feet from residences. Therefore, notwithstanding the fact that conditional use approval was previously granted for this location, that the Applicant has shown it meets the standards in Sections 136.025(b) and 137.011, and that the approval sought here only concerns the limitation on hours of operation, conditional use approval must be denied by the Planning and Zoning Board in this case under the terms of Ordinance 4470-87 since the subject property is within 500 feet of several residences.

    
    

15. Although the Planning and Zoning Board may not approve the conditional use at issue in this case, Ordinance 4470-87 states:

    
    

    Variances to the minimum distance requirement may be approved by the City Commission where the City Commission finds that an unnecessary hardship exists and that the grant of the

    variance will not be injurious to the community. Variances to other site and structure require- ments may be approved by the Development Code Adjustment Board.

    
    

    Thus, having established that its application meets all the requirements for approval except for the required minimum distance from residences, the Applicant would have to seek a variance of the 500-foot rule in order to remove the limitation on its hours of operation. The Planning and Zoning Board, from whose action this appeal has been taken, may not grant such a variance, however, and therefore that issue is not presented in this case.

    
    

16. The constitutional issues presented by the Applicant cannot be decided since the Hearing Officer is without jurisdiction to determine the constitutionality of the procedures and Ordinances involved in this case.

Accordingly, it is

ORDERED that the decision of the Planning and Zoning Board is APPROVED, and the Applicant's request for conditional use approval is DENIED.

DONE AND ORDERED this 25th day of January, 1988, 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 25th day of January, 1988.

COPIES FURNISHED:

Marion Hale, Esquire Post Office Box 1368

Clearwater, Florida 34617

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: 87-004977

Orders for Case No: 87-004977