STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD and PHILIP A. HITCHCOCK, ) d/b/a CHOICE FOOD MART, )

)

Appellants, )

)

vs. ) CASE NO. 86-3917

) CLEARWATER PLANNING AND ZONING ) BOARD, )

)

Appellee. )

)

FINAL ORDER

This is an appeal under Section 137.013 of the Clearwater Land Development Code from the decision of the Planning And Zoning Board to deny Appellants' application for conditional alcoholic beverage sales use. An appeal hearing was held in Pinellas Park on January 23, 1987.

Carlos Yepes, of St. Petersburg, for Appellants.

M. A. Galbraith, Jr., Esquire, of Clearwater, for Appellee.

FINDINGS OF FACT

1. On or about August 12, 1986, Appellants, Ronald and Philip Hitchcock, through their authorized representative, Carlos Yepes of Cay Oil Enterprises, Inc., applied to the Planning And Zoning Board for conditional alcoholic beverage sales use of their general commercial zoned property at the corner of Belcher Road and Coachman Road in Clearwater. Specifically, they applied to enable the prospective buyer of their property, Cay Oil, to use a State I-APS beverage license (package sale of beer only for consumption off-premises) in connection with Cay Oil's planned convenience food and gasoline store, Choice Food Mart. Cay Oil obtained the license by transfer from a previous tenant of a portion of the property, Jewel T Discount Grocery.

   
   

2. The Planning And Zoning Board conducted a public hearing on the application on September 2, 1986. At the conclusion of the hearing, the Board voted unanimously (with one abstention) to deny the application.

   
   

3. At the public hearing, there was ample competent, substantial evidence that Appellants' property is within 500 feet of at least one church and school. In fact, the closest church and school is on property immediately adjacent to Appellants' property. There also was ample competent, substantial evidence on which the Board could have found that conditional 1-APS use would not be compatible with the rest of the neighborhood.

   
   

4. Appellants' notice of appeal essentially restates the presentation it made before the Board; likewise, Appellants' presentation at the appeal hearing essentially repeated the presentation to the Board.

   CONCLUSIONS OF LAW

   
   

5. Appellants' burden before the Planning And Zoning Board was to prove entitlement, under the facts and law, to the conditional use for which they applied.

   
   

6. 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 of 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.

   
   

7. 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. Under that guideline, a conditional use permit for the sale of alcoholic beverages will not be allowed within five hundred feet of churches and schools.

   
   

8. Since Appellants' property is immediately adjacent to one church and school, a more obvious occasion for application of Sections 136.025 and 72.05 of the Code to prohibit conditional alcoholic beverage sales use can hardly be imagined.

   
   

9. An application for a conditional use cannot be granted unless all of the applicable standards are met. Section 135.025(c), Land Development Code. In this regard, one applicable standard is that the proposed use must be compatible with surrounding uses under Section 136.025(b) and 137.011(d)(6).

   
   

10. On appeal under Section 137.013 of the Code, an appellant does not get the opportunity to re-present his case to the hearing officer and have the hearing officer substitute his judgment for the judgment of the Planning And Zoning Board. Rather, an appellant has the burden of demonstrating at the appeal hearing that the Board's decision was not based on competent, substantial evidence. See Final Order, Walt Buchholz v. Clearwater Development Code Adjustment Board, et al., DOAH Case No. 86-3696, entered February 17, 1987. In this case, Appellants did not even attempt to demonstrate that the decision of the Planning And Zoning Board was not based on competent, substantial evidence.

DISPOSITION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is

ORDERED:

That the appeal of Ronald and Philip Hitchcock be dismissed and the decision of the Planning And Zoning Board be affirmed.

DONE AND ORDERED this 17th day of February, 1987 in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON

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 17th day of February, 1987.

COPIES FURNISHED:

Carlos Yepes

Cay Oil Enterprises, Inc. 2100 Ninth Street North St. Petersburg, FL 33704

M. A. Galbraith, Jr., Esquire City Attorney

City of Clearwater

P. O. Box 4748 Clearwater, Fl 33515-4748

Cynthia Goudeau City Clerk

City of Clearwater

P. O. Box 4748 Clearwater, Fl 33518-4748

Docket for Case No: 86-003917

Orders for Case No: 86-003917