STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ABDULLAJ/DERVISH BROS. GALLERY, )

)

Appellant, )

)

vs. ) CASE NO. 95-1248

)

CITY OF CLEARWATER, )

)

Appellee. )

)

FINAL ORDER

On May 12, 1995, a final hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Appellant: Harry S. Cline, Esquire

MacFarlane, Ausley, Ferguson & McMullen Post Office Box 1669

Clearwater, Florida 34617

For Appellee: Miles A. Lance, Esquire

Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

STATEMENT OF THE ISSUE

The issue in this case was to have been whether the evidence sustains the decision of the City of Clearwater Planning and Zoning Board to deny the application of the Appellant for a conditional use permit to sell alcoholic beverages for consumption at the Gallery Restaurant on Sand Key if a outside deck is added to the facility. However, a threshold issue is whether an appointed hearing officer has jurisdiction to decide the case.

PRELIMINARY STATEMENT

The Appellant's desire to expand its Gallery Restaurant by adding an outside deck necessitated the filing of an application for a conditional use permit. The application was filed in August, 1994. The matter was presented to the Planning and Zoning Board (the Board) for decision at its meetings on October 18, November 1, and December 13, 1994, but was continued each time.

Finally, at its meeting on February 14, 1995, the Board considered and voted to deny the application.

On February 23, 1995, a Notice of Appeal was filed with the City Clerk for the City of Clearwater. On March 13, 1995, the City forwarded to the Division

of Administrative Hearings (DOAH) the Notice of Appeal, together with a copy of the record of the proceedings before Board. An Initial Order was entered by the Director of DOAH, and the parties filed a Joint Response to Initial Order requesting that the case be scheduled for hearing. On April 6, 1995, a Notice of Hearing was issued scheduling the case for final hearing on May 12, 1995.

At the hearing, the parties called witnesses and had documentary evidence admitted in evidence as exhibits. When the evidence was concluded, the parties were given ten days in which to file proposed final orders.

At the final hearing, the record of the proceeding below was received, as required by Section 36.065(5)(c) of the Code, as City Exhibit 1. Additional evidence also was received, as permitted by Section 36.065(5)(d) and (6)(a) of the Code. Letters in opposition to the application were received as City Exhibit 2, and a composite consisting of aerial photographs of the North and South ends of Sand Key were received as City Exhibit 3. A diagram of the Appellant's property was received as Appellant Exhibit A-1, and an applicable excerpt from the Future Land Use Map of the City's comprehensive plan was received as Appellant Exhibit A-3. Testimony of Amza Abdullaj and of Scott Shuford also was received. Summations were heard, as permitted by Section 36.065(5)(b) of the Code. In addition, the parties were permitted to file post- hearing proposed findings of fact and conclusions of law under Section 36.065(5)(h) of the Code.

At no time in this proceeding, through the filing of proposed final orders, did either party raise any question as to subject matter jurisdiction. (To the contrary, the Appellant's proposed final order contains an explicit proposed conclusion of law that DOAH has jurisdiction under Section 120.57(1), Fla.

Stat., and Section 36.065, Clearwater Land Development Code.)

On June 8, 1995, the hearing officer initiated a telephone conference to discuss the issue of jurisdiction. By agreement of the parties, a telephone hearing on the issue was held on June 9, 1995. The parties concurred that there was jurisdiction and, after presenting of their arguments, declined the opportunity to further brief or argue the issue.

FINDINGS OF FACT

1. The Appellant's desire to expand its Gallery Restaurant by adding an outside deck necessitated the filing of an application for a conditional use permit.

   
   

2. The application was filed in August, 1994. The matter was presented to the Planning and Zoning Board (the Board) for decision at its meetings on October 18, November 1, and December 13, 1994, but was continued each time.

   
   

3. Finally, at its meeting on February 14, 1995, the Board considered and voted to deny the application.

   
   

4. On February 23, 1995, a Notice of Appeal was filed with the City Clerk for the City of Clearwater.

   
   

   CONCLUSIONS OF LAW

   
   

5. Appeals from decisions of the Board are governed by Section 36.065 of the Code, which provides in pertinent part:

   1. Purpose and exception.

      1. 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. In particular, it is intended that such administrative relief be provided in the most professional, objective and equitable manner possible through the appointment of a hearing officer to adjudicate matters as provided in this section. 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. . . ..

      2. As an exception to the foregoing, appeals of conditional use decisions rendered by the planning and zoning board regarding the sale

      of alcoholic beverages shall be made to the city commission. All of the following provi-

      sions and requirements relating to applicability, filing, administrative responsibilities, conduct of hearing, and decisions shall remain the same and shall apply to such appeals, except that

      the appellate authority shall be vested in the city commission rather than a hearing officer.

      
      

      It is clear that, under Section 36.065(1)(b) of the current Code, an appointed hearing officer would have no jurisdiction over this proceeding.

      
      

6. Paragraph (b) of Section 36.065(1) of the current Code was added to the ordinance on or about January 19, 1995. Ordinance No. 5754-95. The parties take the position that, because the Appellant's application was filed in August, 1994, and because the Board continued the matter at its meetings on October 18, November 1, and December 13, 1994, the Appellant has a vested right to the appellate procedure in place as of those dates.

   
   

7. Subject matter jurisdiction may not be conferred by agreement of the parties, and it is necessary to decide the issue as a matter of law. See Gulf Amer. Corp. v. Fla. Land Sales Board, 206 So. 2d 457, 462 (Fla. 2d DCA 1968).

   
   

8. Generally, the same rules applied in the construction of state statutes are employed in the construction of local ordinances. See Rinker Materials Corp. v. North Miami, 286 So. 2d 552, 553 (Fla. 1973). It is clear that retroactive or retrospective statutes are invalid if they impair the obligations of contracts or vested rights. In addition, regardless of the constitutional requirements, statutes affecting substantive rights and obligations are not construed to have retroactive or retrospective application unless the legislative intent is clear. See Alamo Rent-A-Car v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994); Fleeman v. Case, 342 So. 2d 815, 817 (Fla. 1976). But there is no vested right to a particular remedy or mode of procedure, and remedial and procedural statutes generally are applied to pending cases. See Griffith v. Fla. Parole & Probation Comm'n, 485 So. 2d 818 (Fla. 1986); Endress v. Dept. of Corrections, 612 So. 2d 645 (Fla. 1st DCA 1993); Rothermel v. Fla. Parole & Probation Comm'n, 441 So. 2d 663 (Fla. 1st DCA 1983); Johnson v. State, 371 So. 2d 556 (Fla. 2d DCA 1979).

9. Contrary to the positions taken by the parties in this proceeding, it is concluded that, when the City Commission changed Section 36.065(1) of the Code and took exclusive jurisdiction of appeals from conditional use decisions regarding the sale of alcoholic beverages, the City Commission intended that the new procedure would apply to all such decisions, as of the effective date of the ordinance change, regardless whether the application was filed, or even whether preliminary proceedings had been held before Board, prior to the procedural change in the law. As would be the case with a statute making a similar procedural change, the Appellant had no vested right to the prior procedure, and no vested rights of the Appellant are destroyed by following the new procedure.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, this appeal is remanded to the City Commission for further proceedings.

DONE AND ORDERED this 13th day of June, 1995, 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 13th day of June, 1995.

COPIES FURNISHED:

Harry S. Cline, Esquire MacFarlane, Ausley, Ferguson,

& McMullen

Post Office Box 1669 Clearwater, Florida 34617

Miles A. Lance, Esquire Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Cynthia Goudeau City Clerk

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rule of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 95-001248

Orders for Case No: 95-001248