STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

ANGEL PROPERTIES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0809

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, an appeal hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on April 30, 1986, in accordance with Section 137.013 of the City of Clearwater Land Development Code. The issue for determination in this proceeding is whether the petitioner Angel Properties is entitled to conditionally use property located at 524 U.S. Highway 19 for package sales of alcoholic beverages.

APPEARANCES

For Petitioner: Thomas G. Hersem, Esquire

2905 West Bay Drive Clearwater, Florida 33540

For Respondent: Miles A. Lance

Assistant City Attorney Post Office Box 4748

Clearwater, Florida 33518-4748 FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

1. On or about January 7, 1986, a conditional use application was submitted by Angel Properties to utilize the property located at 524 U.S. Highway 19, on the corner of that highway and State Road 60, for both on premises consumption and package sales of alcoholic beverages. The application was transmitted to the City Clerk, the Planning Director, the City Attorney, the Traffic Engineer, the Building Director and the Police Department for review and comment prior to the scheduled public hearing before the Planning and Zoning Board. Prior to that meeting, both the Police Department and the Traffic Engineer noted that they had no objections and no reason to recommend denial of the oonditional use application.

   
   

2. At the public hearing on February 4, 1986, the Planning and Zoning Board was informed that the Traffic Engineer and the Police Department did not object to the approval of the application, and that the "staff" also recommended approval. Lauren Mancuso appeared on behalf of the applicant and informed the

   Board that she currently holds an alcoholic beverage license to sell alcohol for consumption on the premises and as package sales. She now desires to transfer that license from another location to the site located at 524 U.S. Highway 19 in Clearwater. That property is currently utilized to sell alcoholic beverages, though the record is unclear as to whether package sales were actually occurring at that site. No further documentary or other evidence was submitted by the applicant at the public hearing. The Board unanimously voted to approve the conditional use application for on premises consumption of alcoholic beverages, but to deny that portion of the application relating to package sales of alcoholic beverages. A member of the Board noted that a previously considered conditional use application had been similarly restricted with regard to package sales, and that this application should not be treated differently.

   
   

3. The property in question is located within the City of Clearwater's Commercial Center Zoning District. The sale of alcoholic beverages within that District is not one of the seven permitted uses enumerated in Section 135.134 of the Land Development Code. However, alcoholic beverage sales, both for consumption on the premises and as package sales, may be permitted as conditional uses if such use otherwise complies with Chapter 136 of the Code. Section 135.135 and 135.136.

   
   

4. Any new or change of location or change of designation of an alcoholic beverage sales use must obtain approval as a conditional use. Section 136.024(b), Land Development Code. Only those conditional uses which comply with the general standards and the supplementary standards, by category of use, as set forth in Section 136.025(b) and (c), may be authorized by the Planning and Zoning Board. Among the supplementary standards for the conditional use of property for the sale of alcoholic beverages for both consumption on the premises and for package sales, is that the use be a sufficient distance from churches, schools, hospitals, residences and like land uses so as to not adversely affect the use, enjoyment or value of such properties. Section 136.025(c)(1) and (2), Land Development Code. The general standards encompass such factors as traffic, noise, parking, landscaping and screening and compatibility with surrounding uses with regard to building setbacks, open spaces, hours of operation and other considerations. Section 136.025(b)(1-7).

   
   

5. At the hearing before the undersigned, the petitioner presented no additional evidence in support of the application for a conditional use.

   
   

   CONCLUSIONS OF LAW

   
   

6. The City of Clearwater's Land Development Code allows for the approval of conditional uses of property when such use is permitted as a conditional use in a particular zoning district if it complies with all applicable standards. The Planning and Zoning Board may also place conditions and restrictions upon the property as may be necessary to comply with the standards and to reduce or minimize any potentially injurious effect of the conditional use upon other property in the neighborhood. Section 137.011, Land Development Code. Here, the Board granted the application for a conditional use of the property for on- premises consumption sales of alcoholic beverages, but denied the conditional use of the property for package sales of alcoholic beverages.

   
   

7. When seeking approval for the conditional use of property, it is clearly the applicant's duty and burden to demonstrate that the use will be in compliance with the general and specific standards set forth in the Land Development Code. After considering the application, comments from the various City departments (See Section 136.024(f)) and evidence presented at a public

   hearing, the Board must then determine if the requested conditional use meets all the standards set forth in the Land Development Code.

   
   

8. Here, the applicant failed to adduce any evidence whatsoever that the conditional use of the property for the sale of alcoholic beverages would meet either the general or the Specific standards set forth in the Code for such use. There is absolutely no evidence in the record of this proceeding either in the application, the evidence presented to the Planning and Zoning Board at the public hearing or the evidence presented to the undersigned at the appeal hearing, that the conditional use standards can be sufficiently met so as to authorize approval. There was no evidence regarding ingress to or egress from the site, nor was any evidence presented concerning parking, noise, landscaping and screening or compatibility with surrounding uses. There was no evidence regarding the location of the site in relationship to churches, schools, hospitals, residences and like land uses. Absent such evidence, a conditional use can not be authorized. While the Planning and Zoning Board did allow a conditional use of the property for sales of alcoholic beverages to be consumed on the premises, and that is not an issue in this appeal, there was simply insufficient evidence to show compliance with the Code's requirements with regard to the conditional use of property for selling packaged alcoholic beverages. As such, the Board did not abuse its discretion in denying that portion of the conditional use application.

FINAL ORDER

Based upon the findings of fact and conclusions of law recited herein, it is ORDERED that petitioner's application for a conditional use of property located at 524 U.S. Highway 19 for the purpose of selling packaged alcoholic beverages be DENIED, without prejudice to the applicant to reapply and demonstrate that the requisite standards for approval can be met.

DONE and ORDERED this 3rd day of June, 1986, in Tallahassee, Florida.

DIANE D. TREMOR

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 3rd day of June, 1986.

COPIES FURNISHED:

Miles A. Lance Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 33518

Cynthia Goudeau City Clerk

Post Office Box 4748 Clearwater, Florida 33518

Thomas G. Hersem, Esquire 2905 W. Bay Drive Clearwater, Florida 33540

Docket for Case No: 86-000809

Orders for Case No: 86-000809