STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSE LEON, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4978

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held in this case on December 18, 1987, in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:

Petitioner: Richard Bennison, Esquire

1446 Court Street

Clearwater, Florida 34616

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

Post Office Box 4748 Clearwater, Florida 34618-4748

This is an appeal of a decision of the City of Clearwater's Planning and Zoning Board denying the application of Rose Leon (Petitioner) for conditional use approval for the package sale of beer, wine and liquor (4-COP). The record before the Planning and Zoning Board was received in evidence, and official recognition was taken of Ordinance 4470-87, as well as the City of Clearwater Land Development Code. The City of Clearwater (Respondent) called Paula Harvey, Planning Director, and Frank Pascoe, President of Norton Plant Life Services, to testify. No additional witnesses were called or exhibits introduced. A transcript of the hearing was not filed.

FINDINGS OF FACT

1. Petitioner applied for conditional use approval from Respondent for the package sale of beer, wine and liquor (4-COP) at 2779 Gulf-To-Bay Boulevard, Clearwater, Florida, on or after September 4, 1987. The subject property is zoned general commercial (CG), and conditional use approval is required for package sales on property zoned CG.

   
   

2. Conditional use approval was previously granted for this property on June 30, 1987, to allow on-premises consumption of alcoholic beverages, but this prior approval is not under review in this proceeding.

   
   

3. On October 13, 1987, the Planning and Zoning Board voted unanimously to deny Petitioner's application for the package sale of beer, wine and liquor.

4. Petitioner has timely sought review of the Planning and Zoning Board decision.

   
   

5. It is undisputed that the subject property is less than 500 feet from an adult congregate living facility (ACLF) which constitutes the residence of approximately 300 persons. Frank Pascoe, the President and representative of the ACLF, testified about the residents' concerns about security, and the adverse impact of this application on the general welfare of their neighborhood. Paula Harvey, Planning Director, testified about the adverse impacts of this application on neighborhood noise, traffic and parking.

   
   

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

   
   

7. Petitioner offered no evidence in support of its application. Specifically, there is no evidence in the record favorable to the applicant concerning noise, parking and the compatibility of this application with the neighborhood.

   
   

   CONCLUSIONS OF LAW

   
   

8. 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.

   
   

9. The applicant for conditional use approval has the burden of proof. Section 137.011(d), Land Development Code. The standards for conditional use approval are set forth at Section 136.025(b), Land Development Code, and include the following:

   
   

   (3) Noise generated from the use shall not unreasonably diminish the use, enjoyment or value of surrounding properties.

   
   

   1. Sufficient landscaping and screening shall be provided to diminish noise, reduce glare and buffer high activity areas and objectionable views (including, but not limited to, trash disposal facilities) such that the use will not adversely affect the use, enjoyment or value

      of surrounding properties.

      
      

   2. Sufficient area shall be afforded for parking in accord with Section 136.022 of this chapter.

      
      

   3. The use shall be reasonably compatible with surrounding uses as measured by building setbacks, open spaces, hours of operation, building and site appearance, architectural design and other factors which may be deter- mined appropriate to assess the compatibility of uses.

   
   

10. Petitioner has offered no evidence to establish that the application here at issue meets these standards. See also Section 137.011(d). Therefore,

    the applicant in this case has failed to meet its burden of proof to establish that this application meets all relevant standards set forth in the Land Development Code.

    
    

11. Additionally, since Ordinance 4470-87 applies to this application, it should be noted that Petitioner's application must also be disapproved since the subject property is located within 500 feet of a residential area. Ordinance 4470-87 requires that conditional uses for alcoholic beverage sales may not be approved by the Planning and Zoning Board if the use is less than 500 feet from residences.

Accordingly, it is:

ORDERED that the decision of the Planning and Zoning Board is APPROVED, and Petitioner's application for conditional use approval for the package sale of beer, wine and liquor is DENIED.

DONE AND ORDERED this 13th 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 13th day of January, 1988.

COPIES FURNISHED:

Richard T. Bennison, Esquire 1446 Court 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: 87-004978

Orders for Case No: 87-004978