STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NOSTIMO, INC., )

)

Appellant, )

)

vs. ) CASE NO. 89-3772

) CITY OF CLEARWATER, )

)

Appellee. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on September 22, 1989, in Clearwater, Florida.

APPEARANCES

For Appellant: John T. Blakely, Esquire

Post Office Box 1368 Clearwater, Florida 34617-1368

For Appellee: M. A. Galbraith, Esquire

Post Office Box 4748 Clearwater, Florida 34618

STATEMENT OF THE ISSUES

The issue is whether appellant's application for a conditional use permit should be approved.

PROCEDURAL BACKGROUND

By its application, appellant, Nostimo, Inc., sought a conditional use permit to authorize the package sale of beer and wine at 32 Bay Esplanade, Clearwater, Florida. The application was considered by the Planning and Zoning Board (Board) of appellee, City of Clearwater, on June 13, 1989. By a 5-0 vote, with one member abstaining, the Board denied the application on the ground the applicant had failed to satisfy all pertinent permit criteria.

This case arises from an appeal of that decision by appellant on June 21, 1989 pursuant to Section 137.013, Code of Ordinances. That section provides a process for any party in interest to appeal a decision of the Planning and Zoning Board to a Hearing Officer. Under a contractual agreement entered into by the City of Clearwater and the Division of Administrative Hearings, as authorized by Subsection 120.65(6), Florida Statutes (1987), the undersigned Hearing Officer was designated to hear the appeal.

The final hearing was held on September 22, 1989 in Clearwater, Florida.

At final hearing, appellant presented the testimony of John T. Blakely, its attorney, and Athena Mincielli, a shareholder in the corporation, and offered appellant's exhibit 1. The exhibit was received in evidence. Appellee presented the testimony of Lt. Frank Palumbo, a member of the City of Clearwater Police Department, and the deposition testimony of Sandra Glatthorn, a city planner. Also testifying in opposition to the application were Harry S. Cline, a local attorney, and Anne Garris, a newspaper editor and member of a local association. Witness Cline offered into evidence a map which has been designated as appellee's exhibit 1. Finally, the record of the Board's meeting on June 13, 1989 has received in evidence as Hearing Officer Exhibit 1.

There is no transcript of hearing. The parties filed proposed findings of fact and conclusions of law on October 2, 1989. A ruling on each proposed finding has been made in the Appendix attached to this order.

FINDINGS OF FACT

Based upon the entire record, the following findings of fact are determined:

1. Appellant, Nostimo, Inc. (appellant, applicant or Nostimo), is the owner of Lots 8, 9, 10 and 11, Block 8, Revised Plat of Clearwater Beach Subdivision, located at 32 Bay Esplanade, Clearwater Beach, Florida. The property is subject to the land use requirements codified in the City of Clearwater Code of Ordinances (code or city code). By application filed on April 25, 1989 appellant sought the issuance of a conditional use permit from appellee, City of Clearwater (City or appellee). If approved, the permit would authorize the sale of beer and wine for off-premises consumption by a Pick Kwik Food Store to be constructed on the property under a lease agreement between appellant and Pick Kwik, Inc.

   
   

2. Appellant's property is properly zoned for a retail establishment (CB or Beach Commerical), and it needs no further zoning permits from the City in order to convert the existing structures on the property to a convenience store. Indeed, appellant has already received approval for the construction and operation of the store. However, under subsection 137.024(b) of the city code, appellant is required to obtain a conditional use permit because it intends to engage in the sale of packaged beer and wine for off-premises consumption. In order to obtain such a permit the applicant must satisfy a number of criteria embodied in the code. The parties have stipulated that, with the exception of one standard, all other relevant criteria have been met. The disputed standard requires that "the use shall be compatible with the surrounding area and not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services." It is noted that appellant must secure the necessary land use permit from the City before it can obtain the alcoholic beverage license from the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco.

   
   

3. The application was considered by the Clearwater Planning and Zoning Board (Board) on June 13, 1989 and denied by a 5-0 vote with one member abstaining. As a basis for the denial, the Board adopted a staff report that concluded that "due to the beach area being saturated with this use (sale of alcoholic beverages), public nuisances requiring police action are taxing community services." It further concluded that the proliferation of this activity "has a substantial negative impact on surrounding or adjacent uses or on community facilities and services, specifically police services in handling

   nuisances related to alcoholic beverage establishments." Members of the public who testified in opposition to the application expressed concern over increased traffic in the area, the glare of lights from a 24 hours per day establishment, and potential problems arising from customers who will consume the beer and wine during the evening hours. In addition, two letters in opposition to the application were considered by the Board. Finally, besides a presentation by applicant's attorney, two witnesses appeared on behalf of the applicant and established that Pick Wick, Inc. provides security services at its stores, if needed, and training for employees to prevent the sale of alcoholic beverages to minors.

   
   

4. The subject property is located on the western side of the intersection of Bay Esplanade and Mandalay Avenue in Clearwater Beach, an elongated strip of land to the west of the mainland portion of the City and separated from the mainland by Clearwater Harbor. Mandalay Avenue runs north and south through the heart of Clearwater Beach and is a principal traffic artery in that part of the community. The avenue narrows from four to two lanes just south of where the store is to be located. Bay Esplanade is a much shorter street and runs in an east-west direction between the Gulf of Mexico and Clearwater Harbor. In general terms, the property is surrounded by mixed uses and include a 7-11 convenience store immediately across the street to the east, motels and rental apartments, a restaurant, retail businesses and resort facilities, residences, public areas and a city fire station. Maps received in evidence more definitively depict the nature of the uses surrounding Nostimo's property. In addition to a number of commercial establishments within the immediate area, there are also tennis courts, a parking area, community boat ramp, soccer field, playground and public park. Finally, the area is replete with apartments, rental units and condominiums, including some directly behind the proposed establishment.

   
   

5. Although there are presently no active businesses located on the subject property, the premises were once occupied by a hotel, apartments, hot dog shop and a small lounge that offered both on and off premises consumption of alcohol. The applicant contends that the proposed use is compatible with both the property's former use and the present surrounding area, particularly since a 7-11 convenience store directly across the street has been in business selling beer and wine for the last twenty-five years, and there are several restaurants or motels within a block that sell alcoholic beverages. The applicant added that, in all, there are approximately fifty-three active alcoholic beverage licenses within two miles of the proposed convenience store.

   
   

6. At both the Board hearing and final hearing in this cause, the City Police Department offered testimony in opposition to the issuance of the requested permit. According to the uncontradicted testimony of Lt. Frank Palumbo, who is the Clearwater Beach police department district commander, additional noise, vandalism, traffic congestion and congregation of younger people are expected if the permit is issued. This opinion was based upon his law enforcement experience with other convenience stores on the Beach side that sell beer and wine, including another Pick Wick convenience store. Further, Mandalay Avenue is an important north-south traffic artery in Clearwater Beach, and there are no alternative streets for residents and visitors to use to avoid the traffic build-up that will occur around the store. Lieutenant Palumbo disputed the assertion that the lounge that once occupied a portion of the subject property generated substantial numbers of customers and associated traffic and that the new enterprise is actually a downgrade in use. He pointed out that the former lounge was very small, and a congregation of four or five customers at any one time was a "large crowd." In contrast, the police officer

   distinguished that situation from the proposed store where the sale of beer and wine around the clock is expected to generate larger volumes of traffic and customers, particularly during the evening hours. Finally, it has been Lt.

   Palumbo's experience that convenience stores that sell beer and wine attract the younger crowd, including minors, during the late hours of the night, and they create noise and sanitation problems for the adjacent property owners. The witness concluded that all of these factors collectively would have a negative impact on "community services" by placing a greater demand on police resources. This testimony was echoed by a city planner who gave deposition testimony in this cause. The nexus between the sale of alcoholic beverages and increased traffic and noise was corroborated by Daniel Baker, the manager of another Pick Wick store and a former employee of the 7-11 store across the street, who recalled that when beer sales stopped at that store at midnight, the noise and traffic also came to a halt. In this regard, it is noted the proposed store will operate twenty-four hours per day. To the above extent, then, the proposed use is incompatible with the requirements of section 137.011(d)(6).

   
   

7. Two other witnesses testified at final hearing in opposition to the application. One, who is a member of a church that lies a block from the proposed store, pointed out without contradiction that a playground sits next to the church and is used by area young people, many of whom use bicycles as their means of transportation. She was concerned that if more traffic is generated by the store, it would make access to the playground more hazardous and discourage the children from using the facility. The second member of the public is concerned that the store will be incompatible with the surrounding area. This is because much of the neighboring area is made up of public areas, apartments, rental units or condominiums, and he contended an establishment selling alcoholic beverages would be inconsistent with those uses.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.65(6), Florida Statutes (1987), and Section 137.013, Code of Ordinances.

   
   

9. Although the city code does not allocate the burdens of proof in this type of case, the undersigned concludes that the appellant is obligated here, as in other conventional regulatory proceedings, to prove its entitlement to the requested permit by the preponderance of evidence. See, e.g., Fla. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981). In addition, under section 137.013(f)(1) of the city code, the City has provided that this proceeding is not "de novo" but that a decision shall be based upon evidence presented at the Board hearing as "supplemented by such additional evidence as may be brought before the hearing officer."

   
   

10. The parties have stipulated that appellant has satisfied all applicable code criteria except that set forth in section 137.011(d)(6). Paragraph (6) requires an applicant to "clearly indicate" that:

    
    

    (6) The use shall be compatible with the surrounding area and not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services.

    In denying the application on June 13, 1989, the Board relied upon this paragraph to support its decision.

    
    

11. As appellant suggests in its proposed order, the issue here is not whether a permit should issue for the construction of a convenience store, but whether a permit should issue authorizing the sale of beer and wine at the convenience store. This is because applicant is already authorized under the city code to construct the store in question, but a conditional use permit is required in order to sell alcoholic beverages. In this vein, appellant has cited the case of Flowers Baking Company v. City of Melbourne, 537 So.2d 1040 (Fla. 5th DCA 1989) to demonstrate the lack of probative evidence offered in opposition to the permit. In Flowers, the court reversed the denial of a conditional use permit for gasoline pump and gasoline sales ancillary to a proposed convenience store. In noting that the city had denied the permit apparently on the basis of objections by local residents, the court held that "(o)bjections of local residents to the conditional use permit based on fears as to increased traffic do not constitute such competent substantial evidence" necessary to support the denial. Id. at 1041. In so ruling, the court relied upon the case of BML Investments v. City of Casselberry, 476 So.2d 713 (Fla. 5th DCA 1985), rev. denied, 486 So.2d 595 (Fla. 1986). In BLM Investments, the court reviewed a city's denial of a preliminary development plan which denial had been predicated in part on the fact that the majority of persons affected by the project opposed the change. In reversing the city's decision, the court noted that "although one property owner voiced opposition to the proposal citing traffic problems and increases in crime, no evidence was submitted in support of his claim," and that such opinions by the property owners, by themselves, were insuffient to support the denial. Id. at 715. Appellant suggests that the principal thrust of appellee's testimony is founded on fears of increased traffic to be caused by the convenience store itself and not by the sale of beer and wine. Therefore, it contends appellee has failed to adduce sufficient competent substantial evidence to justify denying the application.

    
    

12. Appellant has correctly cited two broad principles applicable to this case. First, objections of local residents based on fears of increased traffic do not constitute competent substantial evidence when no evidence is submitted in support of those claims. Secondly, traffic, noise and other problems associated with the operation of the convenience store vis a vis the sale of beer and wine are not a sufficient basis to deny the application. These principles will be followed in determining the merits of the application.

    
    

13. A part of the opposition evidence in this case is the very type of testimony criticized in Flowers and BLM Investments. Therefore, it must be disregarded. However, the testimony of witness Palombo can be distinguished from the local residents since Palombo submitted competent evidence to support his claims. Therefore, the undersigned will accept his testimony as having probative value on the issue of whether the sale of beer and wine at the proposed store will be in compliance with section 137.011(d)(6).

    
    

14. Appellant is required to "clearly demonstrate" that the proposed use is "compatible with the surrounding area and (will) not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services." In its case in chief, as presented before the Board and the undersigned, applicant made a prima facie case in support of the application. However, by the accepted and more persuasive testimony of witness Palumbo, it was shown that the proposed use will "have a substantial negative impact on ... community facilities and services." More plainly, the sale of beer and wine will result in a substantial increased demand on city

    police services. This conclusion is based on Palombo's accepted testimony that additional adverse demands will be placed on community services (police resources) due to the increased volume of traffic and customers, including young persons, caused by the sale of beer and wine. These conditions are exacerbated by the fact that Mandalay Avenue is the only north-south artery for residents and visitors, and the artery narrows from four lanes to two lanes just south of the store. The required correlation between the sale of alcoholic beverages and increased traffic and crowds was satisfied by the testimony of witness Palombo and corroborated by appellant's own witness Baker who testified from his experience as a manager of a nearby convenience store.

    
    

15. Since the standard in question has not been fully satisfied, the permit must be denied.

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that the application of Nostimo, Inc. for a conditional use permit

at Lots 8 - 11, Block 8, Revised Plat of Clearwater Beach Subdivision, be

DENIED.

DONE AND ENTERED this 9th day of October, 1989, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1989.

APPENDIX

Appellant:

1-2. Used in finding of fact 1.

1. Used in finding of fact 5.

2. Used in finding of fact 2.

3. Used in procedural background.

4. Used in finding of fact 2.

5. Used in finding of fact 5.

6. Used in finding of fact 4.

9-15. Used in finding of fact 5.

16-17. Rejected as being contrary to the evidence. 18-22. Rejected as being a conclusion of law.

23 Used in finding of fact 2.

24. Rejected as being a conclusion of law. 25-26. Used in finding of fact 6.

1. Rejected as being a conclusion of law.

2. Used in finding of fact 6.

29-31. Rejected as being contrary to the evidence.

1. Rejected as being a conclusion of law.

2. Discussed in conclusions of law.

34-36. Rejected as being a conclusion of law.

Appellee:

1. Used in finding of fact 1.

2. Used in finding of fact 2.

3-4. Used in finding of fact 4. 5-7. Used in finding of fact 3.

8-9. Used in procedural background.

1. Used in findings of fact 5-7.

2. Used in finding of fact 6.

COPIES FURNISHED:

John T. Blakely, Esquire Post Office Box 1368 Clearwater, FL 34617-1368

M. A. Galbraith, Esquire Post Office Box 4748 Clearwater, FL 34618

Harry S. Cline, Esquire

P.O. Box 1669 Clearwater, FL 34617

NOTICE OF RIGHT TO JUDICIAL APPEAL

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW UNDER FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE.

Docket for Case No: 89-003772

Orders for Case No: 89-003772