STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIJAN/CAPPAGLI (GREAT SHAPE CANTEEN) )

)

Petitioner, )

)

vs. ) CASE NO. 86-1831

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a hearing was held on the appeal of the above-named Petitioner before P. Michael Ruff, duly designated Hearing Officer, on June 18, 1986, in Clearwater, Florida, in accordance with Section 137.013 of the City of Clearwater Land Development Code. The issue for determination in this proceeding concerns whether the Petitioner, Dijan/Cappagli (Great Shape Canteen), is entitled to a conditional use of its property located at the northwest intersection of Northeast Coachman Road and Belcher Road in Clearwater, Florida, for on- premises consumption of liquor. This use would be in addition to the already authorized on-premises consumption of beer and wine. The Petitioner has stipulated that it will not seek to engage in package sales of liquor, beer or wine or any sales of alcoholic beverages for off-premises consumption. It has further stipulated that it will not expand the physical size of its facility in terms of square footage, seating capacity and the like.

APPEARANCES

For Petitioner: Richard C. Griesinger, Esq.

2032 Bayshore Boulevard

Dunedin, Florida 33528

For Respondent: M. A. Galbraith, Jr.

City Attorney

Post Office Box 4748 Clearwater, Florida 33518

FINDINGS OF FACT

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

1. On or about March 6, 1986, a conditional use application was submitted by Dijan Development Company and Robert J. Wegiener to the City of Clearwater seeking to utilize the property at the above location specifically 2198 Coachman Road, alcoholic beverages, specifically liquor. The Petitioner already has an approved use for consumption of beer and wine on premises. The Petitioner will sell no alcohol for off-premises consumption. In essence, it seeks to change its present beverage license issued by the State of Florida from a "2-COP" to a "4-COP" which is the type of license which would authorize on-premises consumption of liquor in addition to beer and wine. It seeks the appropriate conditional use zoning approva1 so as to operate that state beverage license.

   
   

2. The application was transmitted to the City clerk, the planning director, the City attorney, traffic engineer, the building director and to the police department for review and comment prior to the originally scheduled public hearing before the Planning and Zoning Board. Prior to that hearing, both the police department and the traffic engineer reviewed the application and noted that they had no objections and no reason to recommend a denial of the conditional use application on the basis of any traffic or law enforcement problems.

   
   

3. At the public hearing of April 1, 1986, the Planning and Zoning Board was informed that the traffic engineer and the police department had no objection to approval of the application and that the Planning and Zoning Board staff, through its director, also recommended approval of the application. Mr. Wegienor appeared and testified on behalf of the Applicant/Petitioner and assured the board that the Petitioner would not engage in package store sales for off- premises consumption.

   
   

4. After hearing from Mr. Wegiener, there being no opposition to the application, the board unanimously voted to approve the conditional use application for on-premises consumption of liquor only. It developed, however, that the notice of this April 1, 1986, hearing was faulty, such that the board elected to convene another public hearing on the subject of the application. At that public hearing, Mr. Wegiener appeared for the Applicant/Petitioner once again, reiterating

   his stipulation that no sales of alcoholic beverages for off- premises consumption would occur, and establishing that the alcoholic content of liquor drinks to be sold, if the conditional use is approved, would be no more than that of a glass of wine or a can of beer, which he is presently authorized to sell. He also demonstrated that his establishment had no history of fights or other forms of disorderly conduct by patrons, no traffic problems nor excessive vehicular noise or light glare emanating from the bar's parking lot or approaches. After hearing the vociferous complaints of the church representatives and several other citizens from the neighborhood, however, the board voted to deny the application and this appeal ensued.

   
   

5. The Petitioner, at the instant hearing, established that his tavern is more than 500 feet from the nearest church. Five hundred feet from a church was the former standard for physical location of such establishments for zoning purposes. The current provision in Section 136.025 of the Land Development Code provides merely that such an establishment must be a reasonable distance from a church. In any event, the Applicant established that his "pub" is small, being only 750 square feet in area and is hidden from view of anyone not entering the plaza where it is located, in the shopping center. The Applicant can only seat a maximum of fifty people. His insurance coverage expense and risk rating will not increase merely because he would sell liquor by the drink rather than only beer and wine, which fact is indicative of the unlikelihood of any additional law enforcement or personal injury incidents occasioned by the change of use. He does not cater to a loud, raucous clientele. Rather, twenty-five percent of his business involves serving lunches and he sponsors a ladies' softball team in the Clearwater Recreation League. He sponsors and encourages husband and wife dart teams. It seems obvious that he and his wife run a small, fairly sedate, "neighborhood bar." He is merely trying to increase his profit by serving liquor, for which he can obtain more revenue, than by serving only beer and wine. No law enforcement problems have occurred in the history of the tavern's operation nor has it generated any traffic problems. The Petitioner will not expand its physical size so no additional traffic problems will likely be created by any increase in numbers of patrons. Since the on-premises consumption of liquor does not involve any more alcohol per drink than the consumption of beer and wine, the proposed change of use will not likely result in any increase in the number of drivers exiting the bar in an impaired condition, as that relates to the fears expressed by the members of the clergy who

   testified. The Petitioner will conduct no "double drink" or "happy hour" sales promotions.

   
   

6. Several citizens living in the neighborhood and the pastors of two churches in the vicinity of the Petitioner's establishment appeared and voiced opposition to the grant of the conditional use. The church representatives primarily objected on moral grounds, that is, they based their opposition on their Christian belief that allowing the consumption of "hard liquor," especially in the near vicinity of their churches and church- related schools is morally wrong and will pose an adverse influence on young people attending their church programs and church schools. They also expressed their opposition in terms of traffic problems and resultant dangers to young people caused by customers leaving the tavern while under the influence of alcohol. The opposition of the several citizens of the neighborhood was predicated on their personal conviction that any consumption of alcohol is morally wrong and harmful. None demonstrated, however, that any of the feared harmful effects had already been occasioned their various interests by the fact that the Petitioner already sells beer and wine for on-premises consumption, which has about the same alcohol content as will the proposed liquor sales "by the drink." The Petitioner has stipulated that it will not expand the size or customer capacity of its establishment and will not conduct any "happy hour" sales promotions and the like.

   
   

7. The property in question is located within the commercial zoning of the City of Clearwater (zoned CG). The sale of alcoholic beverages within that zoning is not one of the seven permitted uses enumerated in Section 135.122 of the Land Development Code. However, alcoholic beverage sales for consumption on the premises, as well as package sales, may be permitted as conditional uses if the use otherwise complies with Chapter 136 of the Code. See Section 135.123 and 135.124.

   
   

8. Any change of location or change of designation of an alcoholic beverage sales conditional use, such as the change from beer and wine sales to liquor sales, must also 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, embodied in Section 136.025(b) and (c), may be authorized by the Planning and Zoning Board. Among the supplementary standards for a conditional use, such as that at bar, 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 applicable to a conditional use encompass such factors as traffic, noise, parking, landscaping, screening, compatibility with surrounding uses and compliance with the land use plan. Section 136.025(b) (1-7).

   
   

9. Since no expansion of the subject business is involved in this application, the considerations of acceptable ingress and egress from the site, the direction and glare of lights from motor vehicles and such considerations as landscaping and screening for purposes of diminishing noise and reducing glare and objectionable views are not truly at issue. The bar is already established and the traffic routes to and from the bar, its parking facilities, and the number of motor vehicles going to and from this establishment will essentially not change.

   Thus the "traffic" criterion is not really germane and will be met.

   
   

10. Only the standards involving ."compatibility" and proximity to churches, etc. were truly at issue before the undersigned. The "hours of operation" consideration as to general standard number seven, (concerning "compatibility"), is the only portion of the seven general standards at issue. The additional supplementary standards for conditional uses involving consumption of alcohol require, in addition to compliance with the seven general standards contained in paragraph (b), that the use be sufficiently distant from churches, schools, and like land uses so as to not adversely affect the use, enjoyment or value of such properties.

    
    

11. In this connection, the hours of operation will not change. The Petitioner has experienced no complaints from the churches and surrounding citizens regarding traffic, intoxicated patrons or other problems attendant to the operation of the bar in the present mode nor has the Clearwater Police Department. Further, in view of the stipulated conditions against "happy hour" sales, extended hours of operation, expansion of customer capacity, etc. the tavern's impact on its neighbors, including the churches, in the above particulars, will not increase. In essence, the tavern operation will not change in terms of its compatibility with the interests of the churches and other neighboring residents. Its operations will engender no additional traffic, noise or other nuisances or dangers on surrounding property owners or church goers.

12. Although the former 500 foot standard governing location of taverns from the vicinity of churches and schools is no longer applicable, it is noteworthy in terms of the "reasonable distance" standard, that the location of the Petitioner's establishment is more than 500 feet from the churches who testified in opposition to the petition. The Roman Catholic Church, which owns property and conducts church activities immediately adjacent to the Petitioner's shopping center location, as well as the nearby Episcopal Church, expressed no opposition. These factors, taken with the above factors involving the lack of any additional elements of nuisance or risk which would be experienced by the churches and other opponents, demonstrates that the use proposed would still be sufficiently distant from churches, schools, hospitals, residences and like land uses so as not to affect their use, enjoyment or values. Thus, both general standard number seven and the supplemental standard at issue have been met.

    
    

    CONCLUSIONS OF LAW

    
    

13. The City of Clearwater's Land Development Code allows for the approval of conditional uses of property when the use is permitted as a conditional use in the particular zoning district and if all applicable standards are met. The Planning and Zoning Board may also place such conditions and restrictions upon the use as may be necessary to comply with the standards and to minimize any potential injurious effect upon other property interests in the neighborhood. Section 137.011, Land Development Code.

    
    

14. When seeking approval for the conditional use of property, it is clearly the applicant's 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, information from the city departments involved and evidence presented at the public hearing, the board must then determine if the requested conditional use meets all the standards set forth in the Code. See Section 136.024(f). Here the board initially determined that the proposed conditional use met all the standards set forth in the Code and then, after convening the second public hearing for the reason delineated above, ultimately determined to deny the application chiefly because of the standards concerning compatibility and distance from churches, schools, residences and like land uses as that relates to their use, enjoyment and property values.

15. However, as found above, the applicant adduced evidence both at the public hearings held herein and the hearing before the undersigned, establishing that the conditional use proposed would occasion no difference in operation or change in location which would bring into play the various general standards set forth above in Section 136.02s(b)(1-7) aside from the issue of compatibility with surrounding uses. In that regard the applicant established that it would be serving no more alcohol per customer on the average than it does at the present time, that it would not expand, such that more traffic would be generated by the change in conditional use nor that it would expand its physical establishment so as to accommodate additional clientele. The fact that the applicant would be serving essentially the same average amount of alcohol per customer shows that no additional adverse effect on the churches and others who oppose the application will be occasioned in terms of traffic problems caused by inebriated customers, disorderly conduct and the like. The appearance of the establishment will not change as that might have any potential effect on the congregation or students attending the churches or their schools. The operations of the tavern heretofore have engendered no complaints from the churches who oppose the present petition. In summary, there is no indication that the activities and nature of the business to be conducted will be any different in a real sense from that presently prevailing and approved. This being demonstrated, the compatibility standard has been met.

    
    

16. Inasmuch as there will be no noticeable change in the operations of the tavern and the nature of its clientele, there has been shown to be no additional adverse impact on churches, schools, hospitals and like land uses such that the present location of the site is too closely proximate to such uses.

Thus this specific standard at 136.025(1)(a) has been complied with as well. Accordingly, the evidence and testimony presented concerning the lack of any additional adverse impact on churches and residents regarding the location of the site and the character of the proposed activities is such as to demonstrate that the conditional use standards can be sufficiently met by this applicant so as to authorize approval.

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law recited herein, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is

ORDERED that the Petitioner's application for a conditional use of the property located at 2198 Coachman Road, Northeast, Clearwater, Florida, for the purpose of selling alcoholic beverages, consisting of liquor, for on-premises consumption only be GRANTED, conditioned on the Petitioner not expanding the physical size of his establishment, not conducting any "happy hours' sales promotional activities and conditioned on the applicant not increasing his present hours of operation.

DONE and ORDERED this 18thday of August, 1986 in Tallahassee, Florida.

P. Michael Ruff 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:

Richard C. Griesinger, Esquire 2032 Bayshore Boulevard

Dunedin, Florida 33528

M. A. Galbraith, Jr. City Attorney

Post office Box 4748 Clearwater, Florida 33518

Cynthia Goudeau, City Clerk Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 86-001831

Orders for Case No: 86-001831