02-003169 James Robert Lawson, Sr., D/B/A Unified Credit Trust vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Monday, January 12, 2004.

Summary: The appeal from the Planning Commission decision denying alcoholic beverage use permit is affirmed. The Commission did not misapply the Code and the findings were supported by competent substantial evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES ROBERT LAWSON, SR., d/b/a )

UNIFIED CREDIT TRUST, )

)

Appellant, )

)

vs. ) Case No. 02 - 316 9

)

MONROE COUNTY PLANNING )

COMMISSION, )

)

Appellee. )

)

FINAL ORDER

Appellant, James Robert Lawson, Sr. (Lawson), seeks review

of Monroe County Planning Commission (Commission) Resolution No.

P14 - 02, which denied Lawson's application, filed under Article

X, Section 19 - 218, Monroe County Code (M.C.C.), for a beverage

use permit, classification 2 - APS (beer and wine package sales).

Lawson's appeal was timely filed. The Division of

Administrative Hearings, by contract, and pursuant to Article X,

Section 19 - 218(i), and Article XIV, Section 9.5 - 535, M.C.C., has

jurisdiction to consider this appeal. Lawson submitted an

Initial Brief and a Reply Brief. The Commission submitted an

Answer Brief. Oral argument was presented during a telephone

hearing held on November 24, 2003.

I. Issues

Lawson raises two is sues on appeal: (1) whether the

Commission misinterpreted and misapplied Article X, Section 19 -

218, M.C.C.; and (2) whether the Commission's decision was

supported by competent substantial evidence.

II. Background

Lawson owns real property located on the Overseas Highway

(U.S. Highway 1), southbound, at mile marker 99.5 in Key Largo,

Monroe County, Florida. The property also is bounded on the

opposite (east) side by State Road (SR) 905 (Old State Road 4A),

northbound. The property boundary to the south i s adjacent to a

NAPA auto parts store which also faces the Overseas Highway. To

the north, the property tapers as the roads converge.

Lawson leased the property to the Eckerd Corporation

(Eckerd) for construction and operation of a full - service

pharmacy and retail store. On Eckerd's behalf, Lawson applied

for and in June 2000 obtained the necessary minor conditional

use approval under Article III, Section 9.5 - 68, M.C.C. In order

to obtain this approval, Lawson obtained a setback variance so

that all re quired parking spaces would be within all of the

property's setbacks. Lawson also obtained a variance for a

second access from the Overseas Highway at the southern end of

the property for a driveway to be used both for truck deliveries

at the back (south side) of the proposed Eckerd store building

and for a drive - through pharmacy facility also at the back of

the store. (Also proposed were an access further north to and

from the Overseas Highway into the customer parking lot and an

exit to SR 905, northbou nd, from the delivery truck/drive -

through pharmacy driveway after it wrapped around the back

(southern) end of the building.) After the necessary approvals

were obtained, the store was built and began operations.

III. Proceedings Below

In August 2001, Lawson applied under Article X, Section 19 -

218, M.C.C., for a beverage use permit, classification 2 - APS

(beer and wine package sales), for the property. A public

hearing before the Commission was scheduled for September 26,

2001. 1 A staff report prepared by Warren Mallet, Senior Planning

Technician for the Monroe County Planning Department,

recommended approval, but Jill Patterson, a member of the

public, testified about problems with traffic congestion and

access relating to delivery trucks at the site. Specifically,

she testified that delivery trucks were not using the access

driveway and loading zone designated for that purpose, or were

using it but then backing into the southbound Overseas Highway

to exit to the south instead of following the designat ed

driveway and exiting on the other side of the property at the

designated exit into northbound SR 905. She described how these

maneuvers caused traffic hazards in the driveways and parking

areas on the property, on the public highways adjacent to the

pr operty, and for newly - constructed bicycle path which passed

between the property and the Overseas Highway, "at what has been

known to be quite a dangerous intersection." Her testimony was

supported in part by a newspaper photograph of a bicyclist

heading north on the new bicycle path swerving into on - coming

traffic on the Overseas Highway to get around a delivery truck

parked on the bicycle path. 2 Mallet stated that he had been

unaware of these problems and suggested that further

consideration should be g iven to the matters to the issues

raised by Patterson. The Commission decided to continue the

public hearing until October 24, 2001.

In the meantime, Mallet revised his staff recommendation to

recite the setback and access variances previously obtained by

Lawson as part of the minor conditional use approval for the

site. He also reported a proposal submitted by Eckerd on

October 9, 2001, "to schedule all Eckerd warehouse truck

deliveries to occur between the hours of 6:00 a.m. to 7:00 a.m.,

to reduce tr affic disruption, and to instruct all vendor

delivery drivers to use the proper loading zones without

blocking access to the bike path, or to use the NAPA parking lot

to accommodate delivery trucks." Mallet again recommended

approval but conditioned upon "proper use of the access lane and

loading zone as shown on the access variance originally granted"

and reconsideration of the approval if there are further

violations of the access and loading requirements.

At the public hearing on October 24, 2001, Mal let presented

his staff report, and Mary Boaz, a regulatory attorney for

Eckerd, presented Eckerd's plans to resolve any traffic and

access problems caused by delivery trucks. However, Patterson

again testified (along with another member of the public)

es sentially to question the effectiveness of the plan. She

questioned the wisdom of basing approval on the willingness of

the NAPA store to allow Eckerd delivery trucks to use up to half

of the NAPA parking lot during regular store hours. Patterson

also te stified, supported by photographs, that use of the NAPA

store parking lot by Eckerd delivery trucks as proposed would be

problematic due to a "stormwater retention wall at the edge of

the driveway between the Eckerds and Napa [sic] property." She

also tes tified, with the help of photographs, that trucks making

deliveries to the Eckerd store continued to violate the access

and loading zone requirements both before and after Eckerd made

its proposal and that, even when using the designated access and

loading zone, deliveries blocked the drive - through pharmacy

facility, potentially causing cars waiting to use it to line up

behind the truck and onto the bicycle path on the Overseas

Highway. 3 Another witness described the traffic hazards peculiar

to the site. Finally, the public witnesses questioned whether

it was realistic for Eckerd to think it could restrict truck

deliveries to between 6:00 a.m. and 7:00 a.m.

The testimony and evidence led to extensive discussion by

members of the Commission and questions directed to Boaz and the

store manager, John Padilla. It was explained that Eckerd's

plan was to limit deliveries by the large Eckerd - owned delivery

trucks to the hours from 6:00 a.m. to 7:00 a.m.; that only those

trucks would use the NAPA parking lot; an d that the Eckerd

trucks would back up to the low retaining wall between the

Eckerd driveway and the NAPA store. Eckerd conceded that it

would be difficult to control the delivery trucks of other

vendors and that the addition of beer and wine sales would add

five deliveries a week by large non - Eckerd delivery trucks. In

addition, Eckerd ultimately conceded that it probably could not

get a written agreement from the NAPA store for Eckerd delivery

trucks to use the NAPA store's parking lot; the permission h ad

been given "out of the goodness of [the NAPA store manager's]

heart" and could be withdrawn at any time.

Based on the discussion, at least a majority of the

Commission appeared concerned that adding beer and wine sales at

the Eckerd location would exa cerbate a bad situation. However,

the Commission decided to continue the hearing until

November 28, 2001, to allow Eckerd and staff an opportunity to

present additional assurances.

On November 5, 2001, staff changed its recommendation to

"denial based o n the section 3, the access, traffic generation,

road capacity, parking requirements." 4 Subsequently, the

Commission received five additional letters from members of the

public opposing Lawson's application on similar grounds.

The final phase of the pub lic hearing on Lawson's

application was continued from November 28, 2001, to

February 27, 2002. At that time, Lawson presented the testimony

of an expert planner named Donald Craig, an Eckerd district

manager named Jay Palen, and the store manager, John P adilla.

They testified to steps being taken by Eckerd to address the

delivery truck problems. Craig testified that, in additional to

restrictions on delivery times being given to truck drivers both

orally and in writing, Eckerd had a sign posted at the b ack of

the store warning that deliveries would be refused if parked

illegally. In addition, Craig was recommending two additional

signs, one on either side of the building and visible from the

roadway, advising that all deliveries were to be made at the

r ear of the store. Palen explained that beer and wine

deliveries were being consolidated to reduce the number of

additional deliveries from five to three a week. Palen stated

that these trucks could fit within the designated loading zone

and be clear of t he bicycle path and advised that a secondary

loading zone also had been designated. Palen also explained the

time restrictions on delivery: all deliveries were to be made

between the hours of 6:00 a.m. and noon, when two store managers

were on duty to he lp monitor deliveries for compliance.

Finally, Palen stated that Eckerd's own trucks were now using

the access driveway and loading zone properly, not backing in

and stopping with the front end of the truck in the bicycle path

(as he apparently believed w as happening during the first month

of operations). Padilla essentially corroborated Palen's

testimony. However, Patterson then testified that violations of

the access and loading zone requirements continueducks were

still parking in the deceleratio n lane of northbound SR 905, and

some trucks were backing out of the loading driveway into

traffic on the southbound Overseas Highway because they were too

large to negotiate the turn around the corner at the rear of the

building to use the designated exit to northbound SR 905. In

the discussion by Commission members that followed, one member

stated that he also had personally observed a recent violation

of the access and loading zone requirements (truck parked in

front of the store) and another stated tha t he saw three

passenger cars parked in the grass between the property and the

Overseas Highway. The Commission voted 4 - 1 to deny the

application, as recommended by staff.

The Commission's Resolution P14 - 02 denying Lawson's

application was rendered on J une 12, 2002. It was based on the

following Findings of Fact:

1. Based on the site plan and land use

district maps, we find that the proposed

Alcoholic Beverage Use is an approved

use in the Suburban Commercial (C) land

use district, but that this locat ion has

experienced numerous problems with the

delivery of products for its present use

as a retail store as shown by the

photographic evidence presented and the

testimony of members of the public. In

addition, we find that the remedial

action proposed by the applicant to post

signs at the delivery entrance and

notify suppliers of the delivery

requirements for the property will not

sufficiently correct the problems

connected with deliveries to this

location. Therefore, we conclude that

the addition of a 2 - APS Alcoholic

Beverage License will cause adverse

effects upon the surrounding properties

by exacerbating the existing problems

caused by the delivery trucks presently

servicing the site; and

2. Based on the application, site plan,

testimony of staff, te stimony of members

of the public and photographic evidence

presented, we find that the addition of

retail sales of alcoholic beverages will

entail more deliveries and cause an

additional impact on the access, traffic

generation, road capacity and parking o n

the site. Therefore we conclude that

there will be adverse effects upon

access, traffic generation and road

capacity; and

3. Based on the application, site plan and

testimony of staff, we find that while

the current retail use is a permitted

use, and c omplied with or received a

variance to all the requirements of the

Monroe County Land Development

Regulations (LDRs) when a Certificate of

Occupancy (#990947) was issued on June

6, 2001, the site use is compatible only

with the existing retail store, and t hat

no further expansion of the use by the

addition of a 2 - APS Alcoholic Beverage

License can be permitted.

IV. Scope and Standard of Review

Article XIV, Section 9.5 - 540(b), M.C.C., provides:

Within forty - five (45) days of oral

argument, the hearing of ficer shall render

an order which may affirm, reverse or modify

the order of the planning commission. The

hearing officer's order may reject or modify

any conclusion of law or interpretation of

the Monroe County land development

regulations or comprehensi ve plan in the

planning commission's order, whether stated

in the order or necessarily implicit in the

planning commission's determination, but he

may not reject or modify any findings of

fact unless he first determines from a

review of the complete record , and states

with particularity in his order, that the

findings of fact were not based upon

competent substantial evidence or that the

proceeding before the planning commission on

which the findings were based did not comply

with the essential requirements of law.

"The hearing officer's final order shall be the final

administrative action of Monroe County." Art. XIV, § 9.5 -

540(c), M.C.C.

Article XIV, Section 9.5 - 540(b), M.C.C., does not allow the

hearing officer to disturb the findings of fact of the unit of

Monroe County government below (in this case, the Commission)

unless they are "not based upon competent substantial evidence

or that the proceeding before the planning commission on which

the findings were based did not comply with the essential

r equirements of law." In this case, Lawson challenges the

Commission's findings of fact only on the ground of competent

substantial evidence.

In DeGroot v. Sheffield , 95 So. 2d 912 (Fla. 1957), the

court discussed the meaning of "competent substantial e vidence"

and stated:

We have used the term "competent substantial

evidence" advisedly. Substantial evidence

has been described as such evidence as will

establish a substantial basis of fact from

which the fact at issue can be reasonably

inferred. We have stated it to be such

relevant evidence as a reasonable mind would

accept as adequate to support a conclusion.

. . . In employing the adjective "competent"

to modify the word "substantial" we are

aware of the familiar rule that in

administrative proceedin gs the formalities

and the introduction of testimony common to

the courts of justice are not strictly

employed. . . . We are of the view,

however, that the evidence relied upon to

sustain the ultimate findings should be

sufficiently relevant and material that a

reasonable mind would accept it as adequate

to support the conclusion reached. To this

extent, the "substantial" evidence should

also be "competent."

Id. at 916. (Citations omitted.)

A hearing officer (Administrative Law Judge) acting in his

o r her appellate review capacity is without authority to reweigh

conflicting testimony presented to the Commission or to

substitute his or her judgment for that of the Commission on the

issue of the credibility of witnesses. See Haines City

Community Devel opment v. Heggs , 658 So. 2d 523, 530 (Fla. 1995).

The question on appeal is not whether the record contains

competent substantial evidence supporting the view of the

appellant; rather, the question is whether competent substantial

evidence supports the fi ndings made by the Commission. Collier

Medical Center, Inc. v. State, Department of Health and

Rehabilitative Services , 462 So. 2d 83, 85 (Fla. 1st DCA 1985).

V. First Point on Appeal

Lawson first contends that the Commission misapplied or

misinterpre ted Article X, Section 19 - 218, M.C.C., so as to make

it directly conflict with Section 562.45, Florida Statutes

(2003). Specifically, Lawson contends that the ordinance should

not be interpreted so as to authorize the Commission to deny

Lawson's applicati on because trucks delivering alcoholic

beverages to the premises would exacerbate traffic congestion

and access problems already being caused by trucks making other

deliveries there.

Section 562.45(2), Florida Statutes, provides in pertinent

part:

(a) Nothing contained in the Beverage Law

shall be construed to affect or impair the

power or right of any county or incorporated

municipality of the state to enact

ordinances regulating the hours of business

and location of place of business, and

prescribin g sanitary regulations therefore,

of any licensee under the Beverage Law

within the county or corporate limits of

such municipality. . . .

* * *

(c) A county or municipality may not enact

any ordinance that regulates or prohibits

those activiti es or business transactions of

a licensee regulated by the Division of

Alcoholic Beverages and Tobacco under the

Beverage Law. Except as otherwise provided

in the Beverage Law, a local government,

when enacting ordinances designed to promote

and protect t he general health, safety, and

welfare of the public, shall treat a

licensee in a nondiscriminatory manner and

in a manner that is consistent with the

manner of treatment of any other lawful

business transacted in this state. Nothing

in this section shall be construed to affect

or impair the enactment or enforcement by a

county or municipality of any zoning, land

development or comprehensive plan regulation

or other ordinance authorized under ss. 1,

2, and 5, Art. VIII of the State

Constitution.

Thus, w hile Section 562.45(2)(c), Florida Statutes, generally

preempts most authority of local governments to regulate the

sale of alcoholic beverages, it reserves limited authority to

local governments, including the authority to regulate the

location of the pla ce of business where alcoholic beverages are

sold, so long as ordinances enacted for that purpose treat state

beverage licensees "in a nondiscriminatory manner and in a

manner that is consistent with the manner of treatment of any

other lawful business tra nsacted in this state."

Article X, Section 19 - 218, M.C.C., provides in pertinent

part:

(a) Purpose and Intent: This section is

designed and intended to provide for

reasonable regulation and control over the

sale of alcoholic beverages within the

uninc orporated areas of Monroe County by

establishing an alcoholic beverage use

permit procedure and providing criteria to

be utilized to assure that all future

proliferation of alcoholic beverage use

enterprises within the unincorporated areas

of the county be compatible with adjoining

and surrounding land uses and the county's

comprehensive plan, and that alcoholic

beverage use permits not be granted where

such uses will have an adverse impact upon

the health, safety and welfare of the

citizens and residents o f the county. . . .

* * *

(e) Criteria: The planning commission

shall give due consideration to the

following factors as they may apply to the

particular application prior to rendering

its decision to grant or deny the requested

permit:

(1) T he effect of such use upon

surrounding properties and the

immediate neighborhood as

represented by property owners

within five hundred (500) feet of

the premises. For the purposes of

this section, "premises" shall

mean the entire project site of a

shoppin g center.

(2) The suitability of the

premises in regard to its

location, site characteristics and

intended purpose. Lighting on the

permitted premises shall be

shuttered and shielded from

surrounding properties, and

construction of such permitted

proper ties will be soundproofed.

In the event music and

entertainment is permitted, the

premises shall be air conditioned.

(3) Access, traffic generation,

road capacities, and parking

requirements.

The Commission did not misapply or misinterpret Article X,

Section 19 - 218. It is reasonably clear that, in deciding

whether to grant Lawson's application under the ordinance, the

Commission can consider exacerbation of existing traffic

congestion and access problems by trucks that would deliver

alcoholic beverag es to the premises under criterion (3), as

asserted by the Commission. It probably also could have

considered those factors under criterion (2).

It is concluded that this interpretation falls within the

authority of a local government under Section 562. 45(2)(a),

Florida Statutes, to regulate the locations of places of

business where alcoholic beverages are sold.

It also is concluded that the Commission's interpretation

of Article X, Section 19 - 218, M.C.C., does not discriminate

against Eckerd, an alcoh olic beverage licensee, in violation of

Section 562.45(2)(c), Florida Statutes. First, to the extent

that it could be considered a form of "discrimination,"

regulation of the "hours of business and location of place of

business" where alcoholic beverages are sold is specifically

authorized by Section 562.45(2)(a), Florida Statutes. Second,

the Commission considers essentially the same factors in

regulating non - licensees. For example, the Commission

considered essentially the same factors in deciding Laws on's

previous applications for access and setback variances, which

were essential to his obtaining his minor conditional use

approval for the Eckerd store without sale of alcoholic

beverages. The Commission granted Lawson's variance and minor

conditional use approval applications, but denied his beverage

permit application, not so much because of the sale of alcoholic

beverages in the latter case but because of the additional

evidence available as to traffic congestion and access problems

at the site. Imp licit in the Commission's deliberations in this

case was that Lawson's variances and minor conditional use might

not have been approved on the evidence before the Commission in

this case.

VI. Second Point on Appeal

Lawson also contends that the Commis sion erred in denying

his application because the findings of fact supporting the

Commission's decision were not based upon competent substantial

evidence. But, as set out in S ection III., Proceedings Below,

supra , there was ample competent substantial ev idence supporting

the Commission's findings of fact in this case.

DECISION

Based upon the foregoing, the Commission's decision in

Resolution No. P14 - 02 is AFFIRMED.

DONE AND ORDERED this 12th day of January, 2004, in

Tallahassee, Leon County, Florid a.

S

____________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of January, 2004.

ENDNOTES

1 / The Record - on - Appeal does not include a transcript of this

part of the public hearing. However, Lawson included it in the

Appendix to his Initial Brief, in addition to subsequent parts

of the public hearing convened on October 24 and November 28,

2001 (the latter just for purposes of considering a motion to

continue the hearing again until F ebruary 27, 2002). The

Commission also cited to Lawson's Appendix. As a result, the

parties effectively agreed to supplement the Record - on - Appeal

under Article XIV, Section 9.5 - 538(d), M.C.C., to include the

transcripts in Lawson's Appendix.

2 / This photograph was described in testimony but was not

included in the Record - on - Appeal.

3 / The photographs of the violations were in the Record - on -

Appeal. The photograph of the truck blocking the drive - through

facility was described as part of a "photo fi le" apparently

relied on by staff as an "acceptable plan"; however, it was not

included in the Record - on - Appeal.

4 / This staff report itself was not made part of the Record - on -

Appeal. However, it was described in this manner in the

transcript of the f inal phase of the public hearing on

February 27, 2002, which was included in the Record - on - Appeal.

The reference to "section 3" is to Article X, Section 19 -

218(e)(3), M.C.C. See section V., First Point on Appeal, infra .

COPIES FURNISHED :

Derek V. Ho ward, Esquire

Morgan & Hendrick

317 Whitehead Street

Key West, Florida 33040

Nicholas W. Mulick, Esquire

Nicholas W. Mulick, P.A.

91645 Overseas Highway

Tavernier, Florida 33070

Nicole Petrick, Planning Commission Coordinator

Monroe County Growth Manag ement Division

2798 Overseas Highway, Suite 400

Marathon, Florida 33050

NOTICE OF RIGHTS

Pursuant to Article XIV, Section 9.5 - 540(c), M.C.C., this

Final Order is "the final administrative action of Monroe

County." It is subject to judicial review by common law

petition for writ of certiorari to the circuit court in the

appropriate judicial circuit.