STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANISLAW AND KAZIMIERA BUDZINSKI,)

)

Petitioner, )

)

vs. ) CASE NO. 90-6663

)

CITY OF CLEARWATER, )

)

Respondent. )

)

ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on January 9, 1991, at Clearwater, Florida.

APPEARANCES

For Petitioner: George W. Greer, Esquire

600 Cleveland Street

Suite 685

Clearwater, FL 34615

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

Post Office Box 4748 Clearwater, FL 34618-4748

STATEMENT OF THE ISSUES

Whether Petitioner should be granted conditional use approval to sell beer and wine at his restaurant located on Petitioner's property at 201 South Gulfview Boulevard, on Clearwater Beach, in the City of Clearwater, Florida.

PRELIMINARY STATEMENT

This is an appeal from the denial by the City of Clearwater Planning and Zoning Board of conditional use approval to sell beer and wine at the restaurant located on Petitioner's property at 201 South Gulfview Boulevard, on Clearwater Beach. At the commencement of this hearing, all of the evidence presented to the Planning and Zoning Board was admitted into evidence. Thereafter, Petitioner called David Shuford, the City of Clearwater Planning Manager, and James B. Mayes the operator of the restaurant in question; Respondent recalled Shuford; and two exhibits were admitted into evidence. Proposed Findings were submitted by the parties. Since the facts are largely undisputed, those proposed findings are generally accepted. Those not included herein were deemed unnecessary to the results reached.

FINDINGS OF FACT

1. On or about August 27, 1990, Petitioner filed an application for conditional use approval with the Planning and Development Department of the City of Clearwater to permit the sale of beer and wine for on-premise consumption at a restaurant known as Britt's Beachside Cafe located on Petitioner's property at 201 South Gulfview Boulevard, on Clearwater Beach, in the City of Clearwater.

   
   

2. The subject property is zoned CR-28. Within that zoning district classification, the sale of alcoholic beverages for consumption on the premises is allowable upon detaining a conditional use approval. However, all such alcoholic beverage sales for consumption on the premises shall be located in a hotel or motel in conjunction with a 4-COP-S license or within a restaurant deriving 51 percent or more of its gross revenue from the sale of food and nonalcoholic beverages.

   
   

3. The subject property is improved and is presently used as a restaurant, the present restaurant use contains 2170 square feet of gross floor area and requires 11 parking spaces. The parking space calculation was made according to the formula of one space per 200 square feet of gross floor area, the general parking formula for restaurants, with a 50 percent reduction allowed for Clearwater Beach locations.

   
   

4. The Petitioner proposes to enlarge the restaurant by adding outdoor seating, increasing the use area to 2500 square feet, and adding the sale of beer and wine for consumption on the premises. This will increase the required parking spaces to 32. Eating and drinking establishments licensed by the State of Florida for on-premise consumption of alcoholic beverages require 2 1/2 times the parking space required for a restaurant not serving alcoholic beverages for on-premises consumption.

   
   

5. Petitioner operated a restaurant very similar in size and menu serving beer and wine in a larger hotel with a smaller parking lot approximately 60 feet north of the subject property for 3 1/2 years before he lost his lease and moved to the subject premises.

   
   

6. Petitioner operated his former restaurant with essentially the same number of parking spaces without incident and with no complaints addressed to any agency of the City of Clearwater.

   
   

7. The denial of Petitioner's conditional use was based solely upon the number of available parking Spaces, as Petitioner met all other requirements of the Code for the conditional use requested.

   
   

8. A waiver of the required parking spaces can be granted only by the Development Code Adjustment Board, while conditional use approval is made by the Planning and Zoning Board. The Adjustment Board will not consider Petitioner's request for waiver of the parking requirements until after he has obtained conditional use approval from the Planning and Zoning Board. Accordingly, Petitioners find themselves a catch-22 situation.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

10. Section 137.011, Clearwater City Development Code, provides a conditional use shall be approved by the Board only upon determination that the application and evidence presented clearly indicate that:

    
    

    1. The use complies with the land use plan.

    2. The use complies with all other applicable provisions of this development code.

    3. The use complies with the applicable use standards for the proposed use contained

       in Chapter 136, Section 136.025.

    4. The use shall be consistent with the community welfare and not detract from

       the public's convenience at the specific location.

    5. The use shall not unduly decrease the value of neighboring property.

    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 community facilities or services.

As noted above, Petitioner meets all of the Code requirements, except for the parking requirements. The entity of the City of Clearwater with jurisdiction to determine whether or not the special circumstances here involved warrant granting Petitioner a waiver of these parking requirements is the Code Adjustment Board; and the Code Adjustment Board will not address this issue until Petitioner has first obtained conditional use approval. Equity and justice requires this Gordian knot be cut. Accordingly, it is ORDERED:

That conditional use approval sought by Stanislaw and Kazimiera Budzinski to permit the sale of beer and wine for on-premises consumption at a restaurant known as Britt's Beachside Cafe located at 201 South Gulfview Boulevard, on Beach, in the City of Clearwater, be granted subject to the following conditions:

1. The Petitioner shall obtain the required space variance from the Development Code Adjustment Board (or otherwise meet the

   parking requirements).

2. The Petitioner shall obtain the required alcoholic beverage separation distance

   variance from the City Commission.

3. The restaurant shall adhere to an 1:00 p.m. closing schedule.

4. There shall be no outdoor seating or other expansion of floor area devoted to the

proposed use (i.e., the use shall be con- tained within its current floor area and

not expanded) unless a parking variance is obtained or the applicant otherwise provides the required parking.

DONE and ORDERED this 6th day of February, 1991, in Tallahassee, Florida

COPIES FURNISHED:

George W. Greer, Esquire 600 Cleveland Street

Suite 685

Clearwater, FL 34615

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

Cyndi Goudeau Clerk

City of Clearwater Post Office Box 4748

Clearwater, FL 34618-4748

K. N. AYERS 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 6th day of February, 1991.

Docket for Case No: 90-006663

Orders for Case No: 90-006663