STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PICK KWICK FOOD STORE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 86-3435

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held in this case on November 21, 1986 in Clearwater, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented by:

Petitioners: John T. Blakely, Esquire

Marion Hale, Esquire 911 Chestnut Street Post Office Box 1368 Clearwater, Fl 33517

Respondent: Miles A. Lance, Esquire

Post Office Box 4748 Clearwater, Fl 33518

At the hearing, Petitioners called Robert E. Davis, Harry Hasty, Robert Garrett and Irene Kirkinis. Respondent did not call any witnesses but indicated, through counsel, it would rely on the record before the Planning and Zoning Board which was accepted in evidence, as well as testimony from public witnesses. Four public witnesses testified and two composite public exhibits were received. The parties were allowed to submit proposed findings of fact and conclusions of law, which have been considered in the preparation of this Final Order. No transcript of the hearing has been filed.

FINDINGS OF FACT

1. On or about June 10, 1986 Petitioners submitted a conditional use application to Respondent for the package sale of beer and wine at 601 Bayway Boulevard, Bayside Subdivision No. 5, Lot 1, Black B, in Clearwater Beach, Florida. The property in question is zoned SC (beach commercial), and the alcoholic beverage designation being sought is 2 APS. Respondent has identified this conditional use application as C.U. 86-49.

   
   

2. The Planning and Zoning Board denied Petitioners' application on August 5, 1986 by a vote of 4 to 2, and Petitioners timely filed this appeal.

   
   

3. The subject property is the site of a convenience store which is surrounded by motels and commercial establishments such as a bank, restaurant and lounge, car rental agency and a miniature golf course. Another convenience

   store which sells alcoholic beverages for off-premises consumption is located within three blocks of the property in question.

   
   

4. Robert E. Davis operated the convenience store on the subject property from 1977 to July, 1986 at which time Petitioners acquired their interest in the property and the convenience store. While Davis was operating the convenience store the package sale of beer and wine was allowed under a previously approved conditional use. However in accordance with Section 136.024(b), City of Clearwater Land Development Code, Petitioners were required to reapply for conditional use approval upon the change of business ownership of the subject property.

   
   

5. Under Davis' management, the convenience store regularly closed at 11:00 P.M., but beginning approximately one month prior to Petitioners acquiring their interest in the store and the property, Davis began to keep the convenience store open twenty four hours a day. Petitioners have operated the store twenty four hours a day since it has been under their management.

   
   

6. Public testimony was offered in opposition to Petitioners' application due to concerns about increases in noise, lights, traffic, loitering, trash and debris, and consumption of alcohol on the premises since Petitioners have acquired their interest. Petitioners concede that there was a problem with rowdyism and trash when they initially took over the convenience store, but state that these problems have been corrected. By letter dated August 5, 1986, Chief of Police Sid Klein confirmed a problem with young people gathering on the premises and stated that he did not feel approval of this conditional use would be compatible with the need of the neighborhood. However, little weight can be given to this exhibit since it is clearly hearsay, and relates solely to conditions existing several months ago when Petitioners had just acquired their interest in the subject property and convenience store.

   
   

7. Petitioners are seeking to continue the package sale of beer and wine on the subject premises during authorized hours, as had been allowed for previous owners. This activity will clearly be compatible with other commercial businesses in the neighborhood, and with prior business conducted at this specific location. Although there were problems with trash and rowdyism on the premises in July and August, 1986, Petitioners have taken corrective action, and have committed to continued management improvements.

   
   

8. The use in question is compatible with surrounding uses and complies with Respondent's land use plan. Acceptable ingress and egress is provided, and noise from the site will not diminish the use, enjoyment or value of the surrounding property. Petitioners are taking steps to reduce the glare to surrounding properties from motor vehicle lights. Sufficient parking area is provided on site, and the evidence does not establish that the sale of beer and wine at this location increases traffic in the area. This is an existing use which was allowed when Petitioners acquired their interest in the subject property. There was no evidence that Petitioners have sold, or will sell, beer and wine at the store beyond the legal hours for such sale, or that they have or will sell to minors.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.65, Florida Statutes; Section 137.013, City of Clearwater Land Development Code.

10. In pertinent part, Section 136.025(6) of The Land Development Code sets forth the standards for conditional use approval, as follows:

    
    

    1. Noise generated from the use shall not unreasonably diminish the use, enjoyment or value of surrounding properties.

    2. The direction and glare of lights from both motor vehicles and illuminating fixtures on the site shall not adversely affect the use, enjoyment or value of surrounding properties.

    3. Sufficient landscaping and screening shall be provided to diminish noise, reduce glare and buffer high activity areas and objectionable views (including, but not limited to trash disposal facilities) such that the use will not adversely affect the use, enjoyment or value of surrounding properties.

       (7) The use shall be reasonably compatible with surrounding uses-as measured by building setbacks, open spaces, hours of operation, building and site appearance, architectural design and other factors which may be determined appropriate to assess the compatibility of uses.

       
       

       In addition, Section 137.011(b), allows Respondent to deny any application for conditional use "upon a finding that the permitted conditional use will or has become unsuitable and incompatible in its location as a result of any nuisance or activity generated by the use." Further, Section 137.011(d), states that a conditional use shall be approved only-upon a determination that:

       
       

       1. The use shall be consistent with the community welfare and not detract from the public's convenience at the specific location.

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

       3. 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.

       
       

11. Respondent and the members of the public who testified assert that Petitioners' application for conditional use fails to meet those provisions of Sections 136.025 and 137.011 set forth above. The evidence, however, establishes that Petitioners do meet these standards for conditional use approval.

    
    

12. It is clear that Petitioners are simply requesting approval to continue an existing use of the property which Respondent had approved for a prior owner. Although the previous store manager chose to close the store at 11:00 P.M., this is not required by ordinance, and there is no allegation that Petitioners will be in violation of any ordinance provisions if they chose to operate twenty-four hours day, and to sell beer and wine during lawful hours. The neighbors simply do not like this change in business practice, but Petitioners should not be prevented from engaging in lawful conduct on their property under the guise of a conditional use disapproval simply because it is unpopular with the neighbors.

13. Competent substantial evidence establishes that approval of the conditional use application will not result in undue noise, glare from lights or be incompatible with the neighborhood. The use serves the convenience of the public, and will not unduly decrease property values in this beach commercial area. Tourists will continue to be served by Petitioners' convenience store as they have in the past if this conditional use is approved.

Accordingly based upon the foregoing, it is:

ORDERED that Petitioners' application designated as C.U. 86-49 is hereby APPROVED, and the prior decision of the Planning and Zoning Board is therefore REVERSED.

DONE AND ORDERED this 10th day of December 1986 in Tallahassee, Florida.

DONALD D. CONN

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 10th day of December, 1986.

COPIES FURNISHED:

John T. Blakely, Esquire Marion Hale, Esquire

P. O. Box 1368 Clearwater, Fl 33517

Miles A. Lance, Esquire

P. O. Box 4748 Clearwater, Fl 33518

Cynthia Goudeau, Clerk

P. O. Box 4748 Clearwater, Fl 33518

Docket for Case No: 86-003435

Orders for Case No: 86-003435