Judges: DONALD D. CONN
Agency: Contract Hearings
Latest Update: Aug. 18, 1986
Summary: Pursuant to notice, a final hearing was held in this case on July 25, 1986 in Clearwater, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows: Petitioner: Timothy C. Schuler, Esquire Glendale Federal Building 11290 70th Avenue, North Seminole, Florida 33542Petitioner's request for a Consumptive Use Permit for the sale of alcoholic beverages is denied because the property is immediately adjacent to a
Summary: Pursuant to notice, a final hearing was held in this case on July 25, 1986 in Clearwater, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows: Petitioner: Timothy C. Schuler, Esquire Glendale Federal Building 11290 70th Avenue, North Seminole, Florida 33542Petitioner's request for a Consumptive Use Permit for the sale of alcoholic beverages is denied because the property is immediately adjacent to a church and school.
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86-1723.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PHILIP HITCHCOCK, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1723
)
CITY OF CLEARWATER, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, a final hearing was held in this case on July 25, 1986 in Clearwater, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:
Petitioner: Timothy C. Schuler, Esquire
Glendale Federal Building 11290 70th Avenue, North Seminole, Florida 33542
Respondent: M. A. Galbraith, Jr.
City Attorney
Post Office Box 4740 Clearwater, Florida 33510
At the hearing, Philip Hitchcock, Petitioner, called Richard Tobias, appraiser, and Denise Williams, leasing agent, and introduced one exhibit. The City of Clearwater, Respondent, called no witnesses and introduced one exhibit. Two public witnesses testified against Petitioner's conditional use application, and one composite public exhibit was received. No transcript of the hearing or proposed recommended orders have been filed.
FINDINGS OF FACT
On or about March 13, 1986, Petitioner applied to Respondent for a conditional use permit to allow the package sale of alcoholic beverages in a convenience store at 410 through 422 North Belcher Road, Clearwater, Florida. The property is located in a general commercial district.
On or about April 15, 1986, the Planning and Zoning Board of the City of Clearwater denied Petitioner's application and on April 28, 1986, Petitioner timely appealed that decision.
Petitioner's property is immediately adjacent to Faith Bible Church which operates Suncoast Christian School with approximately 120 students through the sixth grade, and the property is across the street from Trinity Baptist Church which operates a school with approximately 200 preschool through first grade students. The subject property is within 500 feet of the property of both of these churches, and there are two additional churches in the neighborhood.
Richard Tobias, property appraiser, testified that convenience stores such as the one Petitioner proposes do not enhance the properties in their immediate vicinity, although they are generally an asset to the neighborhood as a whole due to the convenience of local shopping. Public witnesses expressed concern about the proximity of the proposed convenience store to churches and schools because of litter problems which they feel could develops as well as public drinking in the store parking lot. The use and enjoyment of such church and school properties will be adversely affected if the conditional use is approved, accordingly to the testimony and evidence presented by public witnesses.
Petitioner, as property owner, plans to lease the subject property to Carlos Yepes, President of Clay Oil Enterprises, for the operation of the convenience store. Yepes operates seven other stores which sell beer and wine, and according to Denise Williams, leasing agent, there have been no neighborhood or police complaints concerning Yepes' operations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.65, Florida Statutes Section 137.013, Clearwater Land Development Code.
Sections 136.024(a) and (b) of the Land Development Code clearly provide that provisions of the Code dealing with the sale of alcoholic beverage sales are "intended to supplement and function in tandem with the requirements contained in Chapter 72 of the Code of Ordinances," and also that conditional use applicants who seek to sell alcoholic beverages must comply with Chapter 72. Section 72.05(b)(4) of the Code of Ordinances states:
No alcoholic beverage establishment shall be established within a five-hundred-foot radius of a church, school, residential
area or other alcoholic beverage establishment.
Although this section is captioned "guidelines", it must be applied and read in tandem with the conditional use standards set forth at Section 136.025 of the Land Development Code.
Specifically, Section 136.025(c)(2)a authorizes alcoholic beverage sales within a general commercial district if the use is "sufficiently distant from churches, schools, hospitals, residences and like uses so as to not adversely affect the use, enjoyment or value of such properties." Section
136.025 itself does not define the term "sufficiently distant" but this must be read in pari materia with Section 72.05, as required by Section 136.024. Thus, it is clear that a conditional use permit for the sale of alcoholic beverages will not be allowed within five hundred feet of churches and schools since this is, per se, not sufficiently distant.
Since Petitioner's property is immediately adjacent to one church and school, and within five hundred feet of another, and also since testimony of property appraiser Richard Tobias indicates property immediately adjacent to convenience stores is not enhanced and public testimony indicates reasonable concerns about the use and enjoyment of surrounding church and school properties; Petitioner's application must be denied.
Finally, it must he noted that an applicant for a conditional use permit bears the burden of proof. Section 135.025(c), Land Development Co. In this regard Petitioner has also failed to establish that the proposed use is compatible with surrounding uses as required by Sections 136.025(b) and 137.011(d)(6). There are four churches in the neighborhood with one being immediately adjacent to Petitioner's property and another being within five hundred feet.
Based upon the foregoing, it is
ORDERED that Petitioner's application for a conditional use permit is hereby DENIED.
DONE and ORDERED this 18th of August, 1986, at Tallahassee, Florida.
DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1986.
COPIES FURNISHED:
Timothy C. Schuler, Esquire Glendale Federal Building 11290 78th Avenue, North Seminole, Florida 33542
M. A. Galbraith Jr.
City Attorney
Post Office Box 4740 Clearwater Florida 33510
City Clerk
Post Office Box 4740 Clearwater Florida 33518
Docket for Case No: 86-001723
Orders for Case No: 86-001723
| Issue Date |
Document |
Summary |
|
Aug. 18, 1986 |
DOAH Final Order
|
Petitioner's request for a Consumptive Use Permit for the sale of alcoholic beverages is denied because the property is immediately adjacent to a church and school.
|
