STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREW W. KALLIVOKAS, )

PATRICK McCABE and )

JOHN W. HOMER, )

)

Petitioners, )

)

vs. ) CASE NO. 88-2481

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

The final hearing in this case was held on August 23, 1988 in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:

PETITIONER: Donald O. McFarland, Esquire

311 S. Missouri Avenue Clearwater, Florida 34616 (Andrews W. Kallivokas)

R. Samuel Leonard, Esquire 1414 Court Street Clearwater, Florida 34616 (Patrick McCabe)

John W. Homer, pro se Post Office Box 59

Clearwater, Florida 34617

RESPONDENT: M. A. Galbraith, Jr.

City Attorney

Post Office Box 4748 Clearwater, Florida 34618

The issue in this case is whether the application of Andrew W. Kallivokas and Patrick McCabe (Applicants) for conditional use approval for on premises consumption of beer and wine should be approved, and if so, whether conditions imposed by the City of Clearwater Planning and Zoning Board, when it approved this application, should be upheld. At the hearing, the record before the Planning and Zoning Board was admitted; the City called Paula Harvey, Planning Director; Applicant McCabe testified on his own behalf, and introduced one exhibit; John W. Homer testified on his own behalf and introduced two exhibits; and four public witnesses also testified. All pertinent provisions of the City of Clearwater Land Development Code and the Code of Ordinances were officially recognized.

The Applicants filed a Notice to Dismiss this proceeding at the commencement of the hearing which asserts that the City is without authority to require conditional use approval upon a change of business ownership through a

100 percent stock sale. Section 136.024(b), Land Developments Code, specifically requires conditional use approval prior to any change of business ownership. The City opposes this Motion, and points out it has a validly enacted Ordinance which must be applied in this case, and on the basis of which, conditional use approval must be obtained if it is established that there has been a change in business ownership under the facts of this case. This Hearing Officer has no authority to rule upon any constitutional questions raised by the parties. The Applicants' Motion to Dismiss is hereby denied.

FINDINGS OF FACT

1. On or about March 29, 1988, Applicants filed their application for conditional use approval for on premises consumption of beer and wine at 1218 Cleveland Street, Clearwater, Florida. The property is located at the northeast corner of Cleveland Street and Jefferson Avenue, and a restaurant and lounge known as "Sandpiper's" is located on the subject property. The property is zoned urban center - eastern corridor (UC-E).

   
   

2. The subject property also uses the mailing address of 1214A and 1214 Cleveland Street, but the property and business operated thereon is the same as described in Finding of Fact 1.

   
   

3. At all times material hereto, Applicant Kallivokas has owned the subject real property. On or about March 31, 1988, Applicant McCabe acquired ownership of Gulf Coast Rathskeller, Inc., and all assets pertaining to the restaurant and lounge known as "Sandpiper's" located on the subject property.

   
   

4. Gulf Coast Rathskeller, Inc., has been the lessee of the premises, and has operated the Sandpiper at all times material hereto, both before and after the transfer of ownership to Applicant McCabe on March 31, 1988. This transfer was accomplished through a 100 percent sale of stock in Gulf Coast Rathskeller, Inc., to the Applicant McCabe. This sale and stock transfer constitutes a "change of business ownership" as that term is used in the Land Development Code.

   
   

5. The Planning and Zoning Board considered this application on April 19, 1988, and by a 5-2 vote approved the application with the following conditions:

   
   

   1. That the occupational license be obtained by the current owner (McCabe) within 6 months;

   2. That the closing hours be 10 p.m. on week nights, and midnight on Friday and Saturday nights;

   3. That the kitchen remain open until closing;

   4. That no outside speakers be permitted and

   5. That the doors be kept closed during live entertainment.

      
      

      Although the Applicants timely appealed all conditions, at hearing only the hours of closing were in dispute, and Applicant McCabe stated he is complying with all other conditions without any adverse impact on his business. He is not

      complying with the condition on hours of closing, pending this appeal. He estimates that the closing condition would reduce his business by 40 percent.

      
      

6. John W. Homer, the owner of commercial property across Jefferson Avenue from the subject property, has also timely appealed the action of the Planning and Zoning Board, but he urges that the application be denied in its entirety, notwithstanding the conditions placed upon its approval by the Board.

   
   

7. The City's Planning Director, Paula Harvey, testified without contradiction, and it is therefore accepted as fact, that the location of "Sandpiper's" was specifically approved by an ordinance adopted by the City Commission pursuant to designation procedures set forth in former Section 72.01, Code of Ordinances. As such, the subject property, and the alcoholic beverage establishment known as "Sandpiper's" have been grandfathered under the separation requirements set forth in Section- 136.024(d), Land Development Code, as enacted by Ordinance Number 4420 on January 21, 1988.

   
   

8. Although "Sandpiper's" has closed from time to time, and was specifically closed for a period of time between October, 1987 and April, 1988, when it was reopened by Applicant McCabe, it has never been closed for a continuous period of one year or more. It is, therefore, uncontroverted that "Sandpiper's" has been an "existing alcoholic beverage establishment" at all times material hereto.

   
   

9. No other restaurant and lounge is currently operating in the City subject to the same closing hour condition as was imposed on this Applicant by the Planning and Zoning Board. Such businesses are allowed to, and do in fact, stay open until 2:00 a.m. on all days, except Sunday.

   
   

10. The City's Traffic Engineering and Police Departments have expressed no opposition to this application. The City's Planning Director supports the approval of this application.

    
    

11. Public testimony and evidence in opposition to this application is primarily directed to the operation of this establishment by its former owner, prior to October, 1987. Numerous police reports involving incidents at the Sandpiper occurring prior to October, 1987 while the business was operating under prior ownership are irrelevant to this application.

    
    

12. Applicant McCabe has made improvements in the Sandpiper, and is now attracting a higher class clientele than under the former owner. Outside litter has been reduced. No outside speakers are used, the door is closed during live entertainment, and the kitchen stays open each night until the Sandpiper closes. There has been only one police report of any incident at the Sandpiper since April, 1988, while under McCabe's ownership.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Conditional use approval is required for the on premises sale of beer and wine on property zoned UC-E whenever there has been a change in business ownership. Sections 135.142 and 136.024, Land Development Code. The Sandpiper has been an existing alcoholic beverage establishment at all times material hereto, as defined in Section 136.007(d)(3), and was previously approved by

    ordinance of the City Commission to operate at this location. Thus, it is exempt from the separation requirements which would otherwise be applicable due too the grandfather provision found at Section 136.024(d)(4). However, it must still meet the conditional use standards set forth at Sections 136.025, and 137.011, Land Development Code, since there was a change in business ownership to Applicant McCabe on or about March 31, 1988.

    
    

15. The Applicants, supported by the City, have established that their application meets the standards for conditional use approval provided in Sections 136.025 and 137.011. Their testimony and evidence was not rebutted by competent, substantial evidence from Homer or the public. Therefore, Homer's appeal must be dismissed since the record establishes, without competent substantial rebuttal, that the Applicants have met the conditions for conditional use approval in the Land Development Code, and have been grandfathered under the separation requirement.

    
    

16. With regard to the Applicants' appeal of the conditions imposed by the Planning and Zoning Board, the only condition at issue is the hours of closing since Applicant McCabe has agreed to, and is in fact complying with, all other conditions. It is clear that the Board is authorized to impose conditions on hours of closing in granting conditional use approval. Section 72.15(c), Code of Ordinances. However, such conditions must "be reasonably related to one or more of the criteria required to be met for such conditional use approval." Id.

    
    

17. There is no evidence in the record of this case that the closing hours of any other similar business in the City of Clearwater have been limited in the manner in which Applicants' would be under the action of the Planning and Zoning Board on April 19, 1988. The Planning Director did not recommend such a restriction at the Board meeting. A 40 percent reduction in Applicants' business will result from this condition. There is also no evidence in the record of problems or disturbances occurring at the subject property while under Applicant McCabe's ownership to which this limitation might reasonably be related. Therefore, there is no basis to conclude that this condition, which will have a significant adverse impact on Applicants' business, is related to any of the enumerated conditional use criteria. The 10:00 p.m. and midnight closing hours appear arbitrary and unreasonable because there is no factual basis in the record of this case which might establish what problem the Board was trying to correct with this condition, and how the particular closing hours selected would reasonably address that problem.

Accordingly, based upon the foregoing, it is:

ORDERED that:

1. The appeal of John W. Homer is DISMISSED, and

   
   

2. The appeal of the Applicants is GRANTED, and conditional use approval is granted subject to the conditions imposed by the Planning and Zoning Board on April 19, 1988, except the condition concerning closing hours which is specifically rejected as arbitrary and unreasonable.

DONE and ORDERED this 8th day of September, 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 8th day of September, 1988.

COPIES FURNISHED:

Donald O. McFarland, Esquire

311 S. Missouri Avenue Clearwater, Florida 34616

R. Samuel Leonard, Esquire 1414 Court Street Clearwater, Florida 34616

John W. Homer

Post Office Box 59 Clearwater, Florida 34617

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

Post Office Box 4748 Clearwater, Florida 34618

Cynthia Goudeau City Clerk

Post Office Box 4748 Clearwater, Florida 34618

Docket for Case No: 88-002481

Orders for Case No: 88-002481