STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NOSTIMO, INC., and ) PICK KWIK FOOD STORES, INC., )

)

Appellants, )

)

vs. ) CASE NO. 91-5679

)

CITY OF CLEARWATER, )

and PALM PAVILION, INC., )

)

Appellees. )

)

FINAL ORDER

On November 19, 1991, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Appellants: Peter P. Murnaghan, Esquire

E. Jeanne Maguire, Esquire

Stagg, Hardy, Ferguson, Murnaghan & Mathews, P.A.

Post Office Box 959 Tampa, Florida 33601-0959

For Appellees: M. A. Galbraith, Jr., Esquire City Attorney

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

Harry S. Cline, Esquire McMullen, Everett, Logan

Marquardt & Cline, P.A. Attorneys for Palm Pavilion, Inc. Post Office Box 1669

Clearwater, Florida 34617 STATEMENT OF THE ISSUES

As a result of a Motion to Dismiss filed by Palm Pavilion, Inc., a preliminary issue is whether Section 137.029 of the Clearwater Land Development Code (the Code) barred the filing of the application in this case.

The issue on the merits of the application is whether the evidence sustains the decision of the City of Clearwater Planning and Zoning Board (the Board) to deny the application of the Appellants, Nostimo, Inc., and Pick Kwik Food Stores, Inc., for a conditional use permit to sell beer and wine, for off-

premise consumption, at 32 Bay Esplanade, Clearwater, Florida. As a result of stipulations entered into by the parties, the specific issue was narrowed to whether the evidence sustains the Board's decision that the use is not compatible with the surrounding area or imposes an excessive burden or has a substantial negative impact on surrounding or adjacent uses or on community facilities or services. See Preliminary Statement.

PRELIMINARY STATEMENT

On April 16, 1991, the Appellants, Nostimo, Inc., and Pick Kwik Food Stores, Inc., filed an application with the City of Clearwater for a conditional use permit to sell beer and wine, for off-premises consumption, at the Pick Kwik convenience store at 32 Bay Esplanade, Clearwater, Florida.

During staff review of the application, the applicants offered to agree to several conditions or restrictions in response to staff concerns. As a result of these agreements, the parties agreed and stipulated that the only remaining issue was whether the application met the standard for approval set out in Section 137.011(d)(6) of the Clearwater Land Development Code (the Code)-- namely, whether the application and evidence clearly indicates that the use is compatible with the surrounding area and does not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services. 1/

After staff review and recommendation to grant the application, it was considered by the City of Clearwater Planning and Zoning Board (the Board) at a public hearing on July 30, 1991. At the public hearing, Palm Pavilion, Inc., contended that the application was barred by Section 137.029 of the Code. The Board did not explicitly rule on that issue but, with one member abstaining, the remainder of the Board voted unanimously to deny the application. A timely appeal was filed on August 13, 1991.

Under Section 137.013 of the Code, the appeal was forwarded to the Division of Administrative Hearings on September 3, 1991, along with a copy of the record of the proceedings below. On September 13, 1991, a Notice of Hearing was issued scheduling final hearing for November 19, 1991.

On September 16, 1991, Palm Pavilion, Inc., filed a Motion to Dismiss on the ground that the application was barred by Section 137.029 of the Code. The motion was heard at the outset of the final hearing, and ruling was reserved.

At the final hearing, the record of the proceeding below was received, as required by Section 137.013(e)(3) of the Code. Additional evidence also was received, as permitted by Section 137.013(e)(4) and (f)(1) of the Code.

Appellant Exhibits 1 and 2 were admitted in evidence. The City called one witness (its planner) and had City Exhibits 1 and 2 admitted in evidence. In addition, the parties were permitted to file post-hearing proposed findings of fact and conclusions of law under Section 137.013(e)(8) of the Code.

FINDINGS OF FACT

1. Appellant, Nostimo, Inc. (Nostimo), owns lots 8, 9, 10 and 11, Block 8, revised plat, in a Clearwater Beach subdivision located at 32 Bay Esplanade, Clearwater, Florida. Appellant, Pick Kwik Food Stores, Inc. (Pick Kwik), operates a Pick Kwik convenience store at the location.

2. The subject Pick Kwik store is located on the western side of the intersection of Bay Esplanade and Mandalay Avenue in Clearwater Beach, an elongated strip of land to the west of the mainland portion of the City of Clearwater and separated from the mainland by Clearwater Harbor.

   
   

   Mandalay Avenue runs north and south through the heart of Clearwater Beach and is a principal traffic artery in that part of the community. Mandalay narrows from four to two lanes just south of the subject location. From the point at which it narrows to two lanes, Mandalay furnishes the only access to the primarily residential neighborhoods to the north.

   
   

   Bay Esplanade is a much shorter street that runs in an east-west direction between the Gulf of Mexico and Clearwater Harbor.

   
   

3. Before the Pick Kwik store began to do business at the location, the premises were once occupied by a hotel, apartments, hot dog shop and a small lounge that offered both on- and off-premises consumption of alcohol. The lounge did not generate substantial numbers of customers and associated traffic. It was very small, and a congregation of four or five customers at any one time was a large crowd.

   
   

4. In general terms, the location is surrounded by mixed uses, including a

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   rental apartments, a restaurant, retail businesses and resort facilities, residences, public areas and a city fire station. In addition to a number of commercial establishments within the immediate area, there are tennis courts, a parking area, community boat ramp, soccer field, playground and public park. In the area, there are apartments, rental units and condominiums, including some directly behind the subject location. There is a church a block away, and there is a playground next to the church that is used by area young people, many of whom use bicycles as their means of transportation.

   
   

5. On April 25, 1989, Nostimo and Pick Kwik applied for a conditional use permit to sell beer and wine, for off-premises consumption, at the location. The application was heard at a meeting of the City of Clearwater Planning and Zoning Board (the Board) on June 14, 1989. The Board denied the application, and Nostimo and Pick Kwik appealed under Section 137.013 of the Clearwater Land Development Code (the Code). The appeal was heard by a Division of

   Administrative Hearings Hearing Officer, who entered a Final Order on October 9, 1989, upholding the denial.

   
   

6. The Hearing Officer found in his Final Order in part:

   
   

   1. At both the Board hearing and final hearing in this cause, the City Police Department offered testimony in opposition to the issuance of the requested permit. According to the uncontradicted testimony of Lt. Frank Palumbo, who is the Clearwater Beach police department district commander, additional noise, vandalism, traffic congestion and congregation of younger people are expected if the permit is issued. This opinion was based upon his law enforcement experience with other convenience stores on the Beach side that sell beer and wine, including another Pick Wick [sic] convenience store. Further, Mandalay Avenue is an important

      north-south traffic artery in Clearwater Beach, and there are no alternative streets for residents and visitors to use to avoid the traffic build-up that will occur around the store. Lieutenant Palumbo disputed the assertion that the lounge that once occupied

      a portion of the subject property generated substantial numbers of customers and associated traffic and that the new enterprise is actually a downgrade in use. He pointed out that the former lounge was very small, and a congregation of four or five customers at any one time was a "large crowd." In contrast,

      the police officer distinguished that situation from the proposed store where the sale of beer and wine around the clock is expected to generate larger volumes of traffic and customers, particularly during the evening hours.

      Finally, it has been Lt. Palumbo's experience that convenience stores that sell beer and wine attract the younger crowd, including minors, during the late hours of the night, and they create noise and sanitation problems for the adjacent property owners. The witness concluded that all of these factors collectively would have a negative impact on "community services" by placing a greater demand on police resources. This testimony was echoed by a city planner who gave deposition testimony in this cause. The nexus between the sale of alcoholic beverages and increased traffic and noise was corroborated by Daniel Baker, the manager of another Pick Wick [sic] store and a former employee of the

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      when beer sales stopped at that store at midnight, the noise and traffic also came to a halt. In this regard, it is noted the proposed store will operate twenty-four hours per day. To the above extent, then, the proposed use is incompatible with the requirements of section 137.011(d)(6).

      
      

   2. On November 7, 1989, Nostimo and Pick Kwik filed a two-count complaint in circuit court: Count I, a petition for common law certiorari review of the Hearing Officer's decision; and Count II, attacking the constitutionality of Section 137.011(d)(6) of the Code. On November 19, 1990, the circuit court entered orders (1) denying the petition for common law certiorari and (2) granting a motion to dismiss Count II. It was represented that a Final Judgment of Dismissal, addressed to Count II, was entered on March 22, 1991, and that Nostimo and Pick Kwik appealed the final judgment to the District Court of Appeal, Second District of Florida, where it remains pending.

      
      

   3. On April 16, 1991, Nostimo and Pick Kwik filed another application for a conditional use permit to sell beer and wine, for off-premises consumption, at the 32 Bay Esplanade location. The application is identical to the one filed on April 25, 1989, except in one respect: the second application provides that sales of alcoholic beverages at the location would not begin until 9:00 a.m.,

      whereas the April 25, 1989, application was for a permit to begin sales of alcoholic beverages at the location at 8:00 a.m., as authorized by local ordinance. During the staff review of the April 16, 1991, application, the applicants also offered to agree to other conditions or restrictions in response to staff concerns: (1) the applicants would provide a security guard to patrol its three Clearwater Beach establishments between the hours of 8:00 p.m. and 2:00 a.m. on Friday and Saturday nights, with monitoring reports submitted to the City Planning and Development Department not less than quarterly; 2/ (2) the applicants would obtain the requisite alcoholic beverage separation distance variance from the City Commission; 3/ (3) the applicants would obtain the requisite occupational license within six months of the date of the public hearing on the application; and (4) the applicants would restrict the hours of operations for alcoholic beverage sales to 9:00 a.m. until 12:00 midnight Monday through Saturday and 1:00 p.m. until 12:00 midnight on Sunday.

      
      

   4. At the Board hearing, the human resources manager for Pick Kwik outlined Pick Kwik's procedures and guidelines for the sale of alcohol. There is a policy manual in each store as well as a handbook provided to each employee outlining the procedures to be followed regarding the sale of alcohol, including procedures to prevent sales to minors and disciplinary action if the procedures are not followed. All employees also attend an orientation which includes responsible vendor training. These policies are enforced by Pick Kwik through monthly inspections.

      
      

   5. There are 17 existing establishments fronting on Mandalay Avenue that sell alcoholic beverages. Just three are north of Bay Esplanade, including the 7

      There are another three establishments selling alcoholic beverages south of Bay Esplanade fronting on streets other than Mandalay. There also is one fronting on Bay Esplanade. There is one restaurant on Mandalay north of Bay Esplanade that has a pending application for a permit to sell alcoholic beverages.

      
      

   6. At the Board hearing on the April 16, 1991, application, held on July 30, 1991, opponents of the application introduced in evidence the record of the hearing held on June 14, 1989, on the April 25, 1989, application filed by Nostimo and Pick Kwik. Included in the record of the prior hearing was the testimony of Lt. Palumbo, who expressed concerns about increased traffic, loitering and rowdy behavior if the conditional use permit were issued. Opponents of the application also introduced in evidence at the Board hearing the Final Order entered by the Hearing Officer in the prior proceeding. See Finding of Fact 6, above.

      
      

   7. The Board considered the record of the prior proceeding in evaluating the April 16, 1991, application. But the Final Order in the previous proceeding seemed to be based on a misapprehension that the Pick Kwik store would be open for the sale of beer and wine 24 hours a day. See Finding of Fact 6, above. In addition, given the existance of the 7

      street, the evidence presented in the hearing on the April 16, 1991, application put in perspective Lt. Palumbo's testimony that allowing the sale of beer and wine at the Pick Kwik would "generate larger volumes of traffic and customers, particularly during the evening hours" and would "have a negative impact on 'community services' by placing a greater demand on police resources."

      
      

   8. At the Board hearing, the staff of the City Planning and Development Department recommended approval. 4/ The City's Planner, Scott Shuford, testified that traffic no longer was considered to be a substantial problem.

      The City Traffic Engineer did not anticipate a substantial increase in traffic as a result of granting the application.

      
      

   9. The traffic experts had difficulty differentiating between a convenience store selling beer and wine, and one that does not, primarily because they were unaware of any other convenience store that does not sell beer and wine. But the evidence was clear that, since the 7

      and wine across the street from the Pick Kwik location, there would be only a slight increase in traffic resulting from selling beer and wine at the Pick Kwik location. Two convenience stores located across the street from one another generally share the available business in the market area. The addition of a store across the street from an existing store would be expected to generate perhaps 12 percent more aggregate revenue. (This approximates the new store's capture of the "leakage" that resulted when potential customers driving on the opposite side of the street chose to bypass the preexisting store.) Beer and wine sales make up approximately 7 to 8 percent of a convenience store's gross revenue. Assuming that two stores across the street from each other also would generate 12 percent more aggregate revenue from the sale of beer and wine than a single store, and also assuming that the percentage of additional gross revenue represents additional trips to one of the two stores, the impact of allowing the sale of beer and wine at the Pick Kwik location would be 7 to 8 percent (representing the beer and wine percentage of gross revenue) of 12 percent (representing the aggregate increase in gross revenue from adding a convenience store across the street from another one), or between 0.84 and 0.96 percent, at most.

      
      

   10. The staff's recommendation to grant the April 16, 1991, application was subject to the addition of a fifth condition or restriction prohibiting sales of single containers of alcoholic beverages (other than bottles of beer and wine containing less than 750 ml). The evidence was clear that this condition would present enforcement problems. In addition, imposition of this condition or restriction at Pick Kwik without imposing the same condition or restriction at the 7

       contrary, it might increase traffic problems as a result of customers wanting to buy single containers at the Pick Kwik subsequently crossing the street to make the purchase at the 7

       
       

   11. On the other hand, tying the duration of the conditional use benefitting the Pick Kwik location to the duration of the conditional use benefitting the 7

       proceeding that implementation of Section 137.011 of the Code will result inexorably in an increase in the number of establishments selling beer and wine, for off-premises consumption, in Clearwater Beach and, particularly in the north end of the Beach. This would result, at an appropriate future date, in the simultaneous consideration of the compatibility of the sale of beer and wine at both the Pick Kwik and the 7

       condition or restriction.

       
       

       CONCLUSIONS OF LAW

       
       

   12. Section 137.029 of the Clearwater Land Development Code (the Code) provides that a "property which is the subject of a denied application" for a conditional use permit "shall not have another identical application filed affecting any part of such property sooner than" nine months. Although the April 16, 1991, was virtually the same as the earlier application, it was not "identical," and it was not be barred by Section 137.029.

   13. Section 137.013(c)(4) of the Code provides: "In any case where a notice of appeal [of a Board decision] has been filed, the decision of the board shall be stayed pending the final determination of the case." Section 137.013(f)(6) of the Code provides: "The decision of the hearing officer shall be final, subject to judicial review." Accordingly, the denial of the April 25, 1989, application filed by Nostimo and Pick Kwik became final upon entry of the Hearing Officer's Final Order on October 9, 1989. Cf. Rule 9.310, Florida Rules of Appellate Procedure (no automatic stay). Section 137.013(c)(4) of the Code would bar the filing of an "identical application" until July 5, 1990. Even if the April 16, 1991, application were "identical" to the earlier application, it would not be barred by Section 137.029.

       
       

   14. The standards for approval of an application for a conditional use permit are set out in Section 137.011(d) of the Code, which provides that a conditional use shall be approved by the Board only upon determination that the application and evidence presented clearly indicate that six standards are met. In this case, the parties have stipulated that the first five standards have been met and that the only issue remaining before the Board was whether the sixth standard was met. Paragraph (6) of Section 137.011(d) provides:

       
       

       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.

       
       

   15. Appeals from decisions of the City of Clearwater Planning and Zoning Board (Board) are governed by Section 137.013 of the Clearwater Land Development Code, which provides in pertinent part:

       
       

       1. Purpose. It is the purpose of this section to provide an administrative process for appealing decisions rendered on variances and conditional uses by the development code adjustment board and the planning and zoning board respectively, prior to any available recourse in a court of law. The function of the hearing officer shall be to serve as the second step of a two-step administrative process relating to variances and conditional uses.

          * * *

          1. Conduct of the hearing. Conduct of the hearing before the hearing officer shall be as follows.

             * * *

             1. The hearing officer shall have the authority to determine the applicability and relevance of all materials, exhibits and testimony and to exclude irrelevant, immaterial or repetitious matter.

             2. The hearing officer is authorized to administer oaths to witnesses.

             3. A reasonable amount of cross-examination

             of witnesses shall be permitted at the discretion of the hearing officer.

             * * *

          2. Decision. The decision of the hearing officer shall be based upon the following criteria and rendered as follows:

             1. The hearing officer shall review the record and testimony presented at the hearing before the board and at the hearing officer relative to the guidelines for consideration of conditional

                uses or variances as contained in sections 137.011 or 137.012, respectively. Although additional evidence may be brought before the hearing officer, the hearing shall not be deemed a "hearing

                de novo," and the record before the board shall be incorporated into the record before the hearing officer, supplemented by such additional evidence as may be brought before the hearing officer.

             2. The hearing officer shall be guided by the city comprehensive plan, relevant portions of the City Code of Ordinances and established case law.

             3. The burden shall be upon the appellant to show that the decision of the board cannot be sustained by the evidence before the board and before the hearing officer, or that the decision of the board departs from the essential requirements of law.

             4. The hearing officer's determination shall include appropriate findings of fact, conclusions of law and decision in the matter of the appeal. The hearing officer may affirm or reverse the decision of the board, and may impose such reasonable conditions as the board may have imposed.

          
          

          These provisions appear to provide for a hybrid proceeding that is an appellate review on the one hand, in the sense that the issue is whether the evidence sustains the board's decision, and a de novo proceeding on the other hand, in the sense that additional evidence can be adduced at the appeal hearing. In other words, whether the Board's decision is sustainable under the pertinent law is tested not only against the evidence presented before it but also against the evidence presented before the Hearing Officer.

          
          

   16. It is concluded that the evidence does not sustain the Board's decision. As found, in light of the 7

       wine, the application and evidence is clear that the use is compatible with the surrounding area and does not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services. Based on the evidence, at most only 0.84 to 0.96 percent more traffic and loitering can be expected to result from the sale of beer and wine at the Pick Kwik location immediately across the street from the 7

       7

       said to be "substantial," as a matter of law, and any resulting impact is addressed by the conditions to which Nostimo and Pick Kwik have agreed.

       
       

   17. Section 137.011(e) of the Code authorizes the Board to impose conditions and restrictions upon the property benefitted by a conditional use. Section 137.013(f)(4) of the Code provides that the Hearing Officer "may impose

such reasonable conditions as the board may have imposed." A limitation on the duration of the conditional use benefitting the Pick Kwik location, tying it to the duration of the conditional use benefitting the 7

concerns expressed during this proceeding that implementation of Section 137.011 of the Code will result inexorably in an increase in the number of establishments selling beer and wine, for off-premises consumption, in Clearwater Beach and, particularly in the north end of the Beach. Such a condition or restriction would be a reasonable condition or restriction on the Pick Kwik conditional use.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

The appeal of Nostimo, Inc., and Pick Kwik Food Stores, Inc., is granted. Their application for a conditional use permit to sell beer and wine, for off- premises consumption, at the Pick Kwik convenience store at 32 Bay Esplanade, Clearwater, Florida, is granted, subject to the following conditions and restrictions: (1) the applicants shall provide a security guard to patrol its three Clearwater Beach establishments between the hours of 8:00 p.m. and 2:00

a.m. on Friday and Saturday nights, with monitoring reports submitted to the City Planning and Development Department not less than quarterly; (2) the applicants shall obtain the requisite alcoholic beverage separation distance variance from the City Commission; (3) the applicants shall obtain the requisite occupational license within six months of the date of the public hearing on the application; (4) the applicants shall restrict the hours of operations for alcoholic beverage sales to 9:00 a.m. until 12:00 midnight Monday through Saturday and 1:00 p.m. until 12:00 midnight on Sunday; and (5) the permit shall expire, without prejudice to reapplication, upon expiration or transfer of, or application to renew, the permit at the 7

DONE AND ORDERED this 1st day of January, 1992, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of January, 1992.

1/ The second condition or restriction to which the applicants offered to agree was that the applicants would obtain the requisite alcoholic beverage separation distance variance from the City Commission. This was how the parties were able to enter into the stipulation narrowing the issues in the face of Section 137.011(d)(2) of the Code, which requires as a standard for approval of a conditional use permit that the application and evidence clearly indicate that

the use complies with all other applicable provisions of the Code. See footnote 3, below.

2/ Under this first condition to which the applicants have agreed in this proceeding, if the roving security guard is occupied at another of the Beach locations, the store clerk would telephone city police for assistance if unable to handle a situation alone.

3/ The second condition was how the parties addressed Section 137.011(d)(2) of the Code, which requires as a standard for approval of a conditional use permit that the application and evidence clearly indicate that the use complies with all other applicable provisions of the Code. See footnote 1, above.

4/ The recommendation was subject to the addition of a fifth condition prohibiting sales of single containers of alcoholic beverages (other than bottles of beer and wine containing less than 750 ml). See Finding of Fact 15, below.

COPIES FURNISHED:

Peter P. Murnaghan, Esquire

E. Jeanne Maguire, Esquire

Stagg, Hardy, Ferguson, Murnaghan & Mathews, P.A.

Post Office Box 959 Tampa, Florida 33601-0959

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

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

Harry S. Cline, Esquire McMullen, Everett, Logan

Marquardt & Cline, P.A. Post Office Box 1669 Clearwater, Florida 34617

Cynthia Goudeau City Clerk

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

Docket for Case No: 91-005679

Orders for Case No: 91-005679