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HEX Minutes 02/25/2021February 25, 2021 Page 1 of 31 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY HEARING EXAMINER Naples, Florida February 25, 2021 LET IT BE REMEMBERED, that the Collier County Hearing Examiner, in and for the County of Collier, having conducted business herein, met on this date at 9:00 a.m., in REGULAR SESSION at 2800 North Horseshoe Drive, Room 609/610, Naples, Florida, with the following people present: HEARING EXAMINER ANDREW W.J. DICKMAN ALSO PRESENT: Raymond V. Bellows, Zoning Manager John Kelly, Senior Planner Nancy Gundlach, Land Planner Collier County Hearing Examiner Page 1 Printed 2/18/2021 COLLIER COUNTY Collier County Hearing Examiner AGENDA Growth Management Department Conference Rooms 609/610 2800 Horseshoe Drive North Naples, FL 34104 February 25, 2021 9: 00 AM Andrew W. J. Dickman, Esq., AICP Hearing Examiner Note: Individual speakers will be limited to 5 minutes unless otherwise waived by the Hearing Examiner. Persons Wishing to have written or graphic materials included in the hearing report packets must have that material submitted to County staff at Alexandra.Casanova@colliercountyfl.gov 10 days prior to the Hearing. All materials used during presentation at the hearing will become a permanent part of the record. Any person who decides to appeal a decision of the Hearing Examiner will need a record of the proceedings pertaining thereto, and therefore may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Decisions of the Hearing Examiner are final unless appealed to the Board of County Commissioners. Hearing Procedures will provide for presentation by the Applicant, presentation by staff, public comment and applicant rebuttal. The Hearing Examiner will render a decision within 30 days. Persons wishing to receive a copy of the decision by mail may supply County staff with their name, address, and a stamped, self-addressed envelope for that purpose. Persons wishing to receive an electronic copy of the decision may supply their email address. February 2021 Collier County Hearing Examiner Page 2 Printed 2/18/2021 1. Pledge of Allegiance 2. Review of Agenda 3. Advertised Public Hearing A. PETITION NO. PL20200001982 VA - Request for an after-the-fact 2.2-foot variance from the required 3-foot rear yard setback for pools and spas adjacent to open space as provided for in the Parklands Planned Unit Development (PUD) Zoning District. The request is to allow the pool at 0.8 feet from the rear property line located at Lot 119, Parklands - Plat One, AKA: 4121 Amelia Way, in Section 09, Township 48 South, Range 26 East, Collier County, Florida. [Coordinator: John Kelly, Senior Planner] Commissioner District 3 B. PETITION NO. PL202000001934 ABW - Bayshore Wine and Food Venue-The applicant requests that the Hearing Examiner consider a minimum distance waiver pursuant to Section 5.05.01.A.6. of the Land Development Code for an establishment to be known as the Bayshore Wine and Food Venue that seeks to sell alcohol for consumption on-site with a minimum separation distance of less than 500 feet from an existing establishment whose primary function is the sale of alcoholic beverages for consumption on-site and two churches. [Coordinator: Nancy Gundlach, Principal Planner] Commissioner District 4. 4. Other Business 5. Public Comments 6. Adjourn February 25, 2021 Page 2 of 31 P R O C E E D I N G S HEARING EXAMINER DICKMAN: Hello, everyone. Today is February 25th, 2021. This is the hearing examiner quasi-judicial hearing. Why don't we start by having the pledge of allegiance. (The pledge of allegiance was administered.) HEARING EXAMINER DICKMAN: All right. Great. Thank you. Just some quick preliminaries. My name is Andrew Dickman, I'm an attorney. I've been practicing for over 20 years in the area of local government and land use. I've been retained by the Board of County Commissioners to hear certain items that are listed in the land development code as well as the code -- the administrative code. These are items, just generally speaking, that are less impactful and would therefore be less expensive to process through the entire two hearing of planning commission and planning board, so nevertheless, this is quasi-judicial. I'm going to ask everyone to turn off their phones and other noise making devices. I'll ask that everybody observe the social distancing and other requirements that the county has put in place for everybody's safety. We are going to have an arrangement where the applicant will use the brown microphone and podium. The county will be using the gray podium and microphone and the general public will be using the gray microphone and public -- microphone and podium. Hopefully everyone understands and has signed -- at least the applicants have signed the acknowledgment that this is a hybrid meeting and that means that there is the ability for the public and others to participate via Zoom and electronically; ergo, the big screen on the wall, so that is also part of the safety requirements that the county has put in place for the COVID-19 and social distancing, et cetera. Today we have a court reporter who is going to be virtual. That means that she is going to need to capture everything that everyone says. I ask that everyone speak carefully and slowly enough for the court reporter to pick that up. Hand gestures are difficult for her to write down, so we're going to be mindful of that. These are the official verbatim records of this hearing that are necessary for me and also for anybody in the future that wants to look at this. Why don't we start -- is the court reporter here, Jeremy, is she online? MR. FRANTZ: She is online. You can see her up on the screen. She has been made a panelist, so if she has any problem hearing us, she'll be able to unmute and stop us and let us know to repeat something. HEARING EXAMINER DICKMAN: All right. Go ahead. I'll take over the oath here. Anyone who's going to testify, speak at the hearing and give evidence or testimony, please rise and let me -- this is for all the items on the agenda. Do you swear to tell the truth, the whole truth and nothing but the truth? Acknowledge by saying I do. Okay. Great. If anybody comes in later and they have not sworn in or anybody that's going to speak online, if they have not sworn in, we'll swear them in at that time. Anything else that I missed? All right. Okay. Good. Why don't we go into the first item -- well, are there any -- review of the agenda, advertising of public hearings. This is going to be number A of 3A and this is going to be -- we have two items on the agenda. Are there any changes to the agenda, by the way? SPEAKER: No changes. HEARING EXAMINER DICKMAN: No changes to the agenda. So this is petition number PL-2020-0001982VA. Why don't we have the county come up and just quickly introduce this item. MR. KELLY: Morning, John Kelly. John Kelly, senior planner. Good morning. HEARING EXAMINER DICKMAN: Okay. This is going to be VAPL-2020-0001982, a variance request for 4121 Amelia Way. Before I get started, there is a correction to the staff report, page one of eight. I have provided you with a copy of that sheet as well, as the court reporter has a sheet waiting for them here. February 25, 2021 Page 3 of 31 Jeremy, if you could please put on the slide that states -- it's a Word file and it's -- it starts with the PL number and correction to final? Okay. And in the requested action portion of the staff report, you'll see the minor admission, I've added from 3.0 feet to 0.8 feet; and so with that, I'll go ahead and introduce the project. This is a request for the hearing examiner to consider an application before and after the fact variance from Exhibit B of Ordinance 12-30 as amended, the Parklands RPUD ordinance to reduce the rear yard setback for pools and spas adjacent to open space from three feet to 0.8 feet for an existing pool that is accessory to a single family residence at the subject location. HEARING EXAMINER DICKMAN: Thank you very much. Before we start this, I want to disclose that I have had no ex-parte communication with anyone on this item. All I have is what was provided to me. I generally don't -- in fact, I try to stay away from any ex- parte communication so that you all know that I'm here as an impartial -- impartial decision-maker. I have the staff report. I have the revised staff report that staff has just explained. It seems like it's more of a -- just a scrivener's error because I understood exactly what the request was going to be. It doesn't change my understanding of what is happening here, so are the applicants here or are they online? Are the applicants here? Come on up, please. MR. KELLY: There's a PowerPoint for this. HEARING EXAMINER DICKMAN: Use the brown -- you guys get the big one. Get your name and address for the record. MR. MILLER: I'm Daniel Miller with Jackson Pools, Inc. HEARING EXAMINER DICKMAN: Okay. MR. WAXON: Hi, good morning. I'm Aton Waxon. I'm the applicant, the owner of the house. HEARING EXAMINER DICKMAN: The owner of the property. Okay. Great. So just right off the bat, I want to -- I think what I understand it to be is that this was a pool that -- was is it already constructed, been in place? So it is. Okay. So it was permitted and at some point the county realized that the pool was constructed, I assume, when it came in for final, that there was a realization that the pool is encroaching into a setback, the rear setback; is that a fair statement? MR. MILLER: That is correct. HEARING EXAMINER DICKMAN: Okay. All right. So why don't you go ahead and explain to me how that happened, and of course, I have a criteria for the variance I have to follow. A couple of things that I'm wanting to know about also is any neighbors affected or any -- anybody else that it's affected; have you discussed this with neighbors, so go ahead and let me know? You can take your mask off while you're up there. SPEAKER: You'll need to step up to mic. HEARING EXAMINER DICKMAN: Yeah, we have a court reporter. MR. WAXON: Can you hear me now? All right. I sent out letters to every neighbor within a 150 feet range, I want to say roughly about 15 or 16 letters, nobody opposed; everybody is fine with it. HEARING EXAMINER DICKMAN: Did you have a chance to speak directly with your -- MR. WAXON: Immediate neighbors, yeah, I'm friends with everybody there. HEARING EXAMINER DICKMAN: Okay. MR. WAXON: I'm actually part of the HOA, so -- HEARING EXAMINER DICKMAN: Okay. MR. WAXON: -- everybody comes to me daily. HEARING EXAMINER DICKMAN: Okay. And do you have an HOA, homeowner's association there? MR. WAXON: Yeah. HEARING EXAMINER DICKMAN: And was there any communication with them or any objection? MR. WAXON: No issues whatsoever. HEARING EXAMINER DICKMAN: Has the county received any objections at all? February 25, 2021 Page 4 of 31 MR. KELLY: No, sir. HEARING EXAMINER DICKMAN: No, sir. Okay. So can you just tell me about the advertisement for the notice of this? MR. KELLY: Okay. The notice requirements for a variance are contained within LDC Section 10.03.06F as in Frank. The required agent letter was sent by the applicant to property owners in property owner association. Within 150 feet of the location on November 13, 2020, a sign was posted by me to the front of the residence. On February 5, 2021, I received no contact from the public in response to any advertising or the sign posting. HEARING EXAMINER DICKMAN: Okay. Thank you for putting that in the record. So based on what I'm hearing, everyone was properly notified. Jeremy, is there anyone here online that wants to speak to this item? MR. FRANTZ: There is not. HEARING EXAMINER DICKMAN: There are no -- so. All right. Can you tell me about the rear of this property? It looks like there's some kind of area that was put aside for a preserve? Are there additional documents that I need to see? MR. KELLY: The agent provided a PowerPoint that they were going to use that's up on the screen now. I believe there's a photograph -- HEARING EXAMINER DICKMAN: Why don't you go ahead and go through that, please. Thank you. No, got to go up there -- you got to go up there and flip it around. No, I'm just kidding. MR. MILLER: Can you hear me now? Yeah, so this is the of course the back of the yard and how we normally construct is we have a new design called the near zero edge, which allows us to go right up to the accessory line, essentially, with the pool footer. We increased the wall from six inches to eight inches which allows us to get that look and feel and it's usually an accessory line is the edge of our pool. So when we're putting this in, we didn't see any issues with it until of course we had the pool shelf in. You can see on the next page kind of how this looks and feels, so that's how it is. Where normal pools will have a two- or a three-foot setting on the backside, our pool does not need to have that. All of the plumbing is inside of the walls of the pool, so there's nothing exterior to the -- that would be put into the easement of any sort, so we can sort of see that. So if you want to back up one slide, that is the initial drawings that of course that went to permitting, as well as to the HOA, and was caught when -- you know, caught, but was flagged when all of a sudden we went into the ten-day spot survey that stated that oh, we were in that. HEARING EXAMINER DICKMAN: That's a retention pond in the back or some type of water management pond? MR. MILLER: Yeah, it's a lake management easement, I think. HEARING EXAMINER DICKMAN: Okay. Okay. So in this case, the -- the recourse is either to rescind the permit and destroy the pool or to come here for variance after the fact. I assume that county's counsel has been involved with this and someone looked into this and there was a final decision to put it on my desk; is that right? MR. KELLY: If I may just clarify the record for a moment, there is a full explanation on page five of six of the staff report, but the applicant did submit plans to the county with their building permit application; those plans were approved in error by the county and the pool was subsequently built. When they came in for the spot -- ten-day spot survey, it was recognized, so the applicant really did build the pool in good faith. HEARING EXAMINER DICKMAN: I get that. So they relied on the permit that the county issued and as a lawyer, this is -- for the county, I presume that staff and the lawyer -- your lawyer looked at this from an equitable standpoint and deciding -- I would have decided on an equitable standpoint, whether it's equitable to rescind the permit and have the pool destroyed or moved or something to that effect, so is it the time -- the time that the county realized this is after the pool was fully completed? MR. KELLY: I believe it was one of the required inspections, so the pool was in. HEARING EXAMINER DICKMAN: So everyone is swimming in the pool and having a good time. February 25, 2021 Page 5 of 31 MR. KELLY: Just to note also, this PUD is a little odd in that it has a setback both for the pool, which is three feet, and for the screen enclosure, which is zero feet. When I went out there to post the sign, I also went to the backyard and you can't really tell the difference between other pool enclosures because you can't really see where the pool goes to. HEARING EXAMINER DICKMAN: I get that. Okay. So the pool decking and the lanai enclosure or the pool enclosure can go up to zero -- to the property line; is that right? Okay. MR. KELLY: Correct. Well, yes, yes. HEARING EXAMINER DICKMAN: Okay. All right. Do you have other slides you want to show me? MR. MILLER: That's it. HEARING EXAMINER DICKMAN: That's it. MR. MILLER: Pretty much it. HEARING EXAMINER DICKMAN: Okay. All right. MR. MILLER: Note that in many other properties, this is the first time we've ever really come across this based on the three-foot offset to water from the accessory back line. Usually, we can put the pool right up to wherever the screen cage enclosure is going to be. We've since built multiple pools in the community and we're very much aware of their setbacks now and make that well known. HEARING EXAMINER DICKMAN: Okay. Great. I'm very pleased that you don't have any objectors here. I'm very happy that you spoke with both of your adjoining neighbors on this, as well as the homeowner's association and staff has a final recommendation after going through the criteria of? MR. KELLY: Yes, sir. Staff recommends that you approve petition VAPL2020-0001982 to reduce the minimum rear yard setback for pools and spas adjacent to open space from three feet to 0.8 feet to allow for the continued existence of the existing pool. As a condition of approval, the applicant must satisfy all requirements of building permit number PRBD-202-0625789 and obtain a certificate of occupancy and/or completion. HEARING EXAMINER DICKMAN: Okay. Great. So before we close here, I'm seeing that on the staff report you have four attachments, survey, public hearing, sign posting, et cetera, et cetera, are all those going to be made available to me, if not already? MR. KELLY: What, sir? HEARING EXAMINER DICKMAN: All the attachments that are here to your staff report. MR. KELLY: Yes, they were previously made available to -- HEARING EXAMINER DICKMAN: Okay. Great. I assume that they're pretty similar to what the applicant put on screen; right? MR. KELLY: Yes. HEARING EXAMINER DICKMAN: Or they probably are the exact ones. Okay. If you have nothing else to say, would you like to rebut anything that the county has said? MR. MILLER: I agree with them. HEARING EXAMINER DICKMAN: You agree with them. All right. Well, that's good. Let's keep up the good work then. All right. Well, I will get a decision out as quickly as I can and thanks for being here. Remember -- MR. MILLER: Appreciate your time. HEARING EXAMINER DICKMAN: Oh, yeah. Put your mask back on. Item B, which is our final item on the agenda. Again, I have had no ex-parte communications with anyone in the area, with staff or anyone else. I've been provided all the staff report, all the information that I need in order to review this application as -- as it's applied to the criteria in the county's code of ordinances and land development code; however, I will say that I have read two emails of objection. One is from Jane King and the other one is from -- it looks like it's from, one second, Robert Messmer, and I have those. I don't know if the applicant, Mr. Mulhere, come on up. Have you had a chance to see these letters of objection? MR. MULHERE: Yes, sir. February 25, 2021 Page 6 of 31 HEARING EXAMINER DICKMAN: Okay. Great. So who are you -- Nancy. Hi, Nancy. Come on up and just give me a quick introduction of this item. MS. GUNDLACH: Morning, Mr. Hearing Examiner. HEARING EXAMINER DICKMAN: Morning. All right. MS. GUNDLACH: This is a request by Bayshore Food and Wine for a alcohol and beverage waiver, which is required whenever an establishment serving alcohol is within 500 feet of another establishment serving alcohol or within child care centers or churches and in this case, we're within 500 feet of the Celebration food park and two churches and -- HEARING EXAMINER DICKMAN: A couple questions for you: First of all, just give me, for the record, the notice requirements and that they were completed. MS. GUNDLACH: Property owner letters were sent out and this petition was dually advertised on February 5th. HEARING EXAMINER DICKMAN: And as far as the radius -- so I understand, you know, there's two ways of doing this type of -- there's either you separate it in a radius, separate these types of uses or you combine them into one area, the county's code requires separations and give me an idea of how this is measured, would you? Is it from the property line, is it from the front door, is it a straight line; how does the county review this? Some of these questions obviously are in the code, but I think it's important to have it on the record. MS. GUNDLACH: Okay. If you can just give me a moment, so I can refresh my memory. HEARING EXAMINER DICKMAN: Okay. Oh, sorry. Maybe the applicant or -- MS. GUNDLACH: Yeah. HEARING EXAMINER DICKMAN: -- you want to come on up? MS. GUNDLACH: He prepared the separation exhibits -- HEARING EXAMINER DICKMAN: Okay. MS. GUNDLACH: -- so he might know right off the top of his head. HEARING EXAMINER DICKMAN: All right. Why don't you -- we'll get you back up here -- MS. GUNDLACH: Okay. Thank you. HEARING EXAMINER DICKMAN: -- but let's let the applicant's expert handle this. MR. MULHERE: Morning, Mr. Dickman, how are you? HEARING EXAMINER DICKMAN: I'm fine, thank you, Mr. Mulhere. MR. MULHERE: Good. Nice to see you. Jeremy, could you bring up the PowerPoint. And I'll introduce myself for the record, Bob Mulhere. I'm the president and CEO of Hole Montes. I am a certified planner by profession. And to answer your question, the land development code requires the separation to be measured from the closest point of the -- both property lines in a straight line, so from the Celebration Park to the proposed Bayshore Food and Wine venue, it would be the closest two points of those. And the same -- the only difference is if a unit is within a shopping center, then I think it's measured from the closest edge of the shopping center unit. We don't have that situation here. We do have the two churches in commercial retail centers, and I'll go over that for you. So next slide, please. So I just mentioned I'm here on behalf of Rebecca Maddox and her partners, who are currently in review, getting towards the end of the review for a site development plan. You see a color rendering of that site development plan. And it's kind of unique project. It is located catty-corner across from Celebration Park, so there are two vacant commercial C4 lots, both of which are within the CRA overlay. And next slide, please. This is a black and white rendering of the site plan showing the proposed improvements. Next slide. So it's on the east side of Bayshore. The proposal here is to have a transformative multiuse concept that will include a number of different uses: A retail wine, charcuterie gourmet market, a private members only wine club for wine aficionados, a five-star concierge service, chef controlled kitchen of the future for world class gastronomic events and a wine and food venue open to February 25, 2021 Page 7 of 31 the public. These will all be housed in a very beautifully architecturally stunning indoor and outdoor spaces and this is one graphic, David Corbin is the architect. So I want to just spend a moment talking about this. I just want to make it clear how the separation applies; for example, it does not apply to a restaurant, so you can have a restaurant and if you serve alcohol in your restaurant, as long as your revenue exceeds 50 percent of the total revenue from food or nonalcoholic beverages, you do not have to seek a separation. So really the separation only applies to an establishment that allows for on-premise consumption of alcoholic beverages where the revenue generation or where the sale of alcoholic beverages is the primary revenue generator, generating 50 percent or more from the sale of on-premise alcoholic beverages. As I said, there's multiple elements of this proposed use. The private club element is not subject to a waiver; it doesn't apply to a private club. They are expressly excepted from the separation requirements. It does not apply to the retail sale of alcoholic beverages, only on-premise consumption where that is the primary function. So in this case because we do propose a public wine venue as one of the elements, and in an abundance of caution after discussing this with staff because we're not open, we're not operating, we will have food, we will be selling food, we don't really know at this point whether or not the wine sales, alcohol sales, at the public venue portion of this project will generate 50 percent or more of the revenue, but it is possible. Since my client is investing millions of dollars into this project, we certainly don't want to go forward and have an issue later on, so that's why we're seeking this separation. Next slide, please. These are just a couple of additional graphics from the architect. Next slide, and you can see that this will be a beautiful development. Next slide. Just another one. Next slide. There's an overview, you can see that there is outdoor space, both along Bayshore and primarily in the center of the project. Next slide -- go ahead -- go back up. HEARING EXAMINER DICKMAN: Back up. MR. MULHERE: Yeah. HEARING EXAMINER DICKMAN: Show me the rear of the property and answer the question is that what -- where the residential area is? MR. MULHERE: There is -- you know, I forget what the zoning is on that; let me just look real quick because I think there's a map in the staff report. So it's to the north or straight up on that if you look behind the project, it is zoned mobile home and so there is a -- they're not individually owned mobile homes, it's either a co-op or mobile home park. Next slide. North and south -- by the way, Mr. Dickman, north and south are both commercial. HEARING EXAMINER DICKMAN: The ones that run along Bayshore? MR. MULHERE: Correct, yes. HEARING EXAMINER DICKMAN: All right. MR. MULHERE: To the south is undeveloped; to the north there is a commercial center there. So this section of the code requires the separation, again, I went over why. If you are generating revenue primarily from the sale of on -- form the on-premise consumption of alcohol, and since the -- this requires the separation from another establishment who primarily generates revenue from the sale of alcoholic beverages and of course, the Celebration Park is kind of the unique use; they -- the owners lease space to food trucks, but they have a bar there, so the staff felt that is primarily, as far as the bar goes, that business primarily generates its revenue from the sale of on-premise alcoholic beverages, which is why we have to go through this -- this waiver because in the event that in the future the public element does, and these will be separate businesses for licensing purposes, the three elements, if that generates 50 percent or more of its revenue from the sale of alcoholic beverages for on-premise consumption, we would be subject to this waiver. There are -- so first we thought it was just the separation from Celebration Park, but then we found out that there were two relatively small churches, both located in commercial strip centers, and you can see they're noted up there in the bullets; of course, these are kind of unique in that you don't February 25, 2021 Page 8 of 31 really know how long they may be there. Many of these smaller churches lease space in these commercial strip centers while they raise or generate enough revenue to build their own permanent location, so we did notice all of the property owners in accordance with the code. Next slide, please. So this is just a graphic showing the Celebration Park. On the left, you can see the larger -- on the left is a larger aerial of the area and you can see the proposed food and wine venue across Bayshore and you can see the 100.3 feet, you can see, Mr. Dickman, how that's measured, so it's from the closest property line to the closest property line on both properties there and the same thing with the churches, they are within units within commercial centers. Next slide. So I just want to spend a minute talking about this proposed use. The retail is about 700 square feet. The private club and public wine venue combined are 5,120 square feet. The public wine and food venue, as you can see, will be a relatively small portion of the overall project, a couple thousand square feet and then there's office space and warehousing for the wine product. The proposed hours of operation are from 10:00 a.m. to midnight. HEARING EXAMINER DICKMAN: Of the entire operation? MR. MULHERE: Of the entire operation, yeah, yeah. We do anticipate having live entertainment on the site from time to time. HEARING EXAMINER DICKMAN: All indoor? MR. MULHERE: Yes, yes, both indoor and outdoor. There will be the need to obtain a permit from Collier County for the amplified sound, that's a separate process; however, I'm sure you noticed that the staff did provide a condition limiting the hours of that outdoor music and we don't have a problem with that. We will still have to go and get a separate amplified sound or entertainment permit and so that's regulated -- that's really not part of the separation requirement, but we don't have an objection to the staff recommendation. Next slide, Jeremy, please. HEARING EXAMINER DICKMAN: To that point, though, I want to ask you, of the factors that I'm required to look at, do you agree or disagree that that's something that I have the ability to review? MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: Okay. MR. MULHERE: We agree. I mean, we don't have an objection to regulating those hours, you know. So there are some criteria that you can consider for approving this waiver. One is the nature of -- the nature and type of natural or manmade boundary structure or other feature lying between the proposed establishments. And I find it, as a professional planner, amazing that we didn't at some point figure out that we did not want to have a 50-year-old blue law apply in an area where we were trying to attract private investment to redevelop, but so be it. It's there. And the purpose of that was to ensure that there wouldn't be a proliferation of bars, ala Fort Lauderdale is, you know, one example, and that's certainly not the case here. If you look at just the size of the venue, the private wine venue, it's very, very small and -- HEARING EXAMINER DICKMAN: Go ahead and tell everybody what a blue law is. MR. MULHERE: Oh, blue law or -- they're very -- very old codes that sort of restricted activities that were deemed to be sinful maybe, I think, and, you know, so. But I understand the purpose, the purpose was to restrict the proliferation by saying you couldn't have more than one use whose primary function was the sale of alcoholic beverages from on-premise consumption within 500 feet; but the other purpose was to not negatively impact a child care center or a church or other similar uses, a park, for example, with the negative aspects that might be associated with a bar. I think this is a very different proposal. It really is not a bar, there will not be a proliferation of those types of uses. We are offering food. We don't even know at this point whether or not the food sales might exceed the alcohol sales, but, again, because of the significance of the investment, we need to go through this process and ensure we can still operate. So next slide, please. I've kind of already gone over the proposed mix of uses, will not February 25, 2021 Page 9 of 31 function as a typical bar but rather as an upscale food and wine venue with those three distinct elements, retail, private club and a public wine venue. HEARING EXAMINER DICKMAN: Let me ask you a question because obviously there's a difference in distance if you're a pedestrian versus -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- just the straight line typical radius -- MR. MULHERE: Yes, yes, yes. HEARING EXAMINER DICKMAN: -- at some point can you address that and the reason I -- MR. MULHERE: Yes, I mean -- HEARING EXAMINER DICKMAN: -- want you to address it is because I also want to hear about Celebration Park and the CRA and this goes to your blue law reference, which is, you know, a reference to separation of potentially noxious or dangerous uses that they may have seen in the future; obviously, where, you know -- I'm fully aware that people take Uber, Lyft, have other means of getting around and they may have when this -- these types of laws, which are common among local governments, were enacted, so I'd like to get a sense of where -- how this fits in with the CRA and Celebration Park and what the intent of that was. MR. MULHERE: So I've been before the CRA advisory board twice, once initially providing a preliminary presentation to them on the site plan and I'm not responsible for designing the site plan, that's -- that's another civil engineering firm, but Agnoli, Barber & Brundage is doing that, but I was part of a presentation to show them what we were proposing. We didn't ask for any kind of recommendation from them, it was just informational. I subsequently went back last month to the CRA advisory board and did make another presentation specifically on this request and there was a unanimous recommendation to support this request, so the CRA advisory board voted unanimously to support this request. The property lies within what has been deemed the entertainment district, arts and entertainment district within the CRA, and these types of uses, I saw a notation in one of the letters that said, well, we weren't talking about, you know, this kind of use when we talked about arts and entertainment, but this really is intended to be a state of the art and very much related to arts and entertainment. There will be special events here, perhaps the winter wine auction might hold some events here. The idea is to put in a state of the art facility that could be very much involved in special events, raising revenue for special events, things like that. By the way, all of the parking that's required by code is on site. So people, pedestrians, you know, they certainly can cross Bayshore from Celebration Park and vice versa and right at Becca Avenue is presumably where they would cross. Right now the CRA is engaged in a, and has been for sometime over a year, maybe longer, is engaged in a process of evaluating Bayshore and improving Bayshore from a pedestrian and vehicular perspective, more multimodal. There is a sort of meandering sidewalk that runs along the front of this property, there's a desire to replace that. There's a desire to retain the on-street bike lanes. Down at the botanical gardens, Thomasson and Bayshore, there is a proposed -- they're looking at -- I don't know if it's fully approved yet, it may be, but they are looking at developing a traffic circle there, a rotary, and they've required, I think, enough right of way to do it and my clients -- and so they're looking at other locations, they're also looking at this location, Becca and Bayshore. There's been no final decision on that, there are more traffic studies that have to be done. We have agreed, however, to provide -- my clients basically control three of the corners of what would be necessary for a traffic circle there, so on both sides, Celebration, on the other side of Becca and this location here. So they are looking at ways to enhance pedestrian, bicycle and motorist, you know, safety to develop a better multimodal aspect and I don't know exactly how pedestrians might in the future -- hopefully it will be a safer condition for them to cross there, but right now, yes, they can come across at that intersection. From the churches, one is located north -- now, let me get my directions. East and north of the subject property on the other side of Bayshore there's a little strip center behind that larger shopping February 25, 2021 Page 10 of 31 center on 41 and one of those units has a church in it and those folks, obviously, they can also walk down Bayshore cross -- crossing wherever they would choose to do so safely and then across the street to the wine venue, so -- HEARING EXAMINER DICKMAN: Just so I can -- I'm just -- as far as the CRA, that's been in place for how long? MR. MULHERE: 20 years, well over. HEARING EXAMINER DICKMAN: Okay. So that was fully vetted through the county commission and established for a purpose, right, and so the entertainment district part of that, is that an official, you know, designated as a subdistrict within the CRA? MR. MULHERE: It's a -- it's a -- I don't think it's designated as a subdistrict; it's -- it is officially an objective in -- in this location, generally in this location. HEARING EXAMINER DICKMAN: Objective of the CRA? MR. MULHERE: Yes, yes. HEARING EXAMINER DICKMAN: Okay. MR. MULHERE: A redevelopment objective. And you know, they've been looking at a couple of properties that the CRA owns. They are building public -- a public parking area right now, they're looking at other areas to do that, they're looking at different kinds of arts that -- there's a RFP out right now to look at the piece that they own that's close to or adjacent to the park and the idea there would be to look at perhaps some sort of arts and entertainment type facility there. HEARING EXAMINER DICKMAN: Okay. MR. MULHERE: So they are promoting this, yes, and it's their objective. And, again, you know, we did present this to the CRA advisory board, we did get unanimous approval from them. HEARING EXAMINER DICKMAN: The public was notified of that presentation or -- MR. MULHERE: Only as they would be notified of a CRA board meeting. HEARING EXAMINER DICKMAN: That's a regular meeting -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- and the adjoining residential areas, residents -- MR. MULHERE: No, no, there was no separate notice for that, it was -- HEARING EXAMINER DICKMAN: Okay. But would they know about it usually, I mean -- MR. MULHERE: I think if they're active in following the CRA, they would know, yes; otherwise, I don't know that they would, to be honest. I mean, I just felt like we had given them a preliminary, seemed appropriate to go in and give them a final presentation and I did ask for a recommendation. Next slide, please -- oh, you can see there the distances -- I apologize. You can see the distances from the churches, 775 feet for the normal pedestrian course of action from the one church, which is on the other side of Bayshore and 520 feet from the other church, which is just east of the subject property. Next slide, please. As I said, the staff recommendation is for approval. There is a condition to limit the outdoor amplified music. There are substantive manmade boundaries that offset or limit the necessity for such a minimum distant requirement, that being really Bayshore Drive. I personally think it makes no sense to apply this standard in the CRA, it's contrary to the CRA objectives, but it does apply. Again, I'll repeat that this really will be a state of the art facility. I know there have been concerns about the Celebration Park noise generation and those types of things, but this really needs to be treated as a separate project, it is a separate project. This is the only element of the overall project that may be subject to those separation requirements; the -- you know, again, I don't know if everybody realizes the nuances and the reason I'm spending time talking about it is I know there's some people here that want to speak to this issue, so I just want to make sure they understand the nuances of these separation requirements; that, again, you know, you can have a restaurant and you can have all the same elements that we are proposing and not have to ask for the waiver; hence -- and sell alcohol. The reason that we're here is we really don't have a way to February 25, 2021 Page 11 of 31 be sure at this point whether the relatively small public wine venue and food venue will end up triggering this waiver because the -- you know, wine -- it's going to be an upscale type of operation and I don't know, you know, what a glass of wine goes for these days, but it's probably not inexpensive, so it's possible that the revenue generation from the sale of wine for on-premise consumption could exceed the food sale generation, so abundance of caution. HEARING EXAMINER DICKMAN: To that effect, is the -- you're -- the Maddox and Partners, LLC, are building the venue, but they won't be the operators? MR. MULHERE: They'll be the operators. HEARING EXAMINER DICKMAN: They will be? MR. MULHERE: Yeah, uh-huh. HEARING EXAMINER DICKMAN: So the owners, Naples 3.0 Holdings, Inc., they own the property, so Maddox, I'm just going to shorten their name, are going to be leasing the property? MR. MULHERE: No, they'll be -- it's the same. I mean, they're different corporate names but same owners, so what's going to happen is that we -- because of the -- HEARING EXAMINER DICKMAN: Anticipating possibly having -- in other words, the 51 percent generation of food, you have three -- you're separating this particular development as three separate -- MR. MULHERE: Businesses, yes. HEARING EXAMINER DICKMAN: -- businesses that are -- are they going to be distinctly divided in some way or manner, you have a market -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- you have a private club -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- and you have the actual -- I'm going to call it -- MR. MULHERE: Like wine, food and wine, right, yes. HEARING EXAMINER DICKMAN: Everybody's sharing the same on-site parking -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- and you can go, you know -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: I get it. MR. MULHERE: Yeah, so they're going to -- and because of the nature of licensing through the division of alcohol, tobacco, whatever, I don't know, the state licensing requirement. HEARING EXAMINER DICKMAN: I think it's -- I forget the type of license that you have to get, but -- MR. MULHERE: Exactly, so one will be for a private club, one will be for retail sales and one will be for on-premise consumption. HEARING EXAMINER DICKMAN: My recollection of that is that you're going to have to show the state that you have authorization to do this. MR. MULHERE: Yes, through the county, yes. HEARING EXAMINER DICKMAN: Ergo -- MR. MULHERE: Yeah. HEARING EXAMINER DICKMAN: -- they're getting -- got it. MR. MULHERE: So, you know, in closing, the -- there really will be no negative elements associated with this unique mix that are the basis for the separation requirements. The idea that, you know, you're going to have a proliferation of, you know, any number of commercial entities whose primary function is to operate as a bar, this really will be a different operation. HEARING EXAMINER DICKMAN: Okay. MR. MULHERE: And -- HEARING EXAMINER DICKMAN: For the record, no zoning change here? MR. MULHERE: No. In fact, they're in foresight development plan and probably very close to approval. I think they're within maybe a week or two of it being approved, but there won't be February 25, 2021 Page 12 of 31 any -- any -- I don't think we wanted to do any work until we got through this process, so. HEARING EXAMINER DICKMAN: Okay. So here's -- I want to zero in on something here, I get the distance requirements and everything -- the reason I asked about the CRA and the Celebration Park and the -- you know, for lack of a better word, the entertainment area, outdoor -- and I get it, the trend is for having -- having outdoor dining, outdoor, you know, activities -- MR. MULHERE: It's promoting it, yeah. HEARING EXAMINER DICKMAN: So yeah, I get that. The issue that I'm having, and I appreciate the condition that addresses really the factor that says the hours of operation and the noise and light, which could potentially be generated from the premise selling alcohol beverages, so you've altered the hours of operation of the wine bar from 10:00 a.m. to midnight; is that correct. MR. MULHERE: Well, that's for all of the operations, really, that's for -- HEARING EXAMINER DICKMAN: The entire -- MR. MULHERE: Yeah, that's for everything. HEARING EXAMINER DICKMAN: Okay. Yeah, why would you have the market open after -- MR. MULHERE: Yeah, and then of course the additional staff stipulation as you saw, Mr. Dickman, relates to limiting the hours of any future outdoor amplified sound. HEARING EXAMINER DICKMAN: Okay. So that's -- that's -- okay. So good, we're drilling down to that, that's what I want to get to. The -- okay. So you've got live entertainment and you have amplified -- I'm just putting this out there, my knowledge of this. So you can have amplified nonlive music -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- and you can have amplified live music -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- that's a whole separate -- you have to come to the county to get that? MR. MULHERE: Yes, you have to get a permit for anything that's amplified. HEARING EXAMINER DICKMAN: And I don't mistrust you, but I want Nancy to be taking notes and -- MR. MULHERE: It's okay. HEARING EXAMINER DICKMAN: -- confirmation on that. MR. BELLOWS: For the record, Ray Bellows, zoning manager. Any permitted use, and this is a commercial zoning district, there could be a restaurant that would not have to come in for this distance waiver and have the same type of outdoor amplified music -- HEARING EXAMINER DICKMAN: I understand that, so -- needs a permit for that? MR. BELOWS: Yes. HEARING EXAMINER DICKMAN: Okay. So -- amplified music, so the problem with -- the problem that -- my experience over 20 years is that amplification of music, putting aside light, kind of puts the burden on the victim. So in other words, the people that are -- that are -- and sometimes, okay, it has nothing to do with the operator, sometimes the, you know, the band gets a little wild and they want to crank up the music and then the manager has to go over after they get a call from somebody and say, hey, tone it down. I've dealt with this a lot and so, you know, the outdoor amplified music, I've heard a lot of people talk about ambient outdoor amplified music, which is basically ambient meaning that the noise decibel doesn't interfere with normal conversation, it's background music, so I'm focusing in on this because I'm very sensitive to neighbors who, let's say at ten o'clock, you know, they have to, either choose whether to call code enforcement or the sheriff or not and then if by the time code enforcement or the sheriff comes out, the noise is totally different and it's really a difficult thing because, you know, this is the time to work that out, this time and when it goes to the county, so I'm really just having a dialogue with you and press the applicant because it really goes to the location of the speakers, how the speakers are directed, where they're located, who has control over the volume mix, how many instrument -- if you have live entertainment, how many are those. I also have had situations where this February 25, 2021 Page 13 of 31 wonderful, you know, wine establishment where it, you know, it, you know, what happens if it flips into a sports bar, I've seen that happen before where you have a lovely venue where it's supposed to be dining, it doesn't do well, and then, you know, a sports bar comes in and it's whole different set up with TVs and so forth and so on and then it's after the fact. So I really want to address that and this is not accusatory in anyway whatsoever -- MR. MULHERE: I understand. HEARING EXAMINER DICKMAN: -- but I'm required to look at the noise and light with regard to adjacent residential folks who might want to hear what steps your clients are going to take, aside from the hours, but just the amplification levels, the position of the speakers, the location of where -- and these may be really beyond your knowledge of this because it's really hypothetical at this point, where the -- where the musicians would be located. MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: Now, everyone that's listening to me may be thinking, geez, why is he getting into this much detail, I've dealt with code enforcement on these things, and, again, it really puts the burden at night on the victim of this, whether it's a founded complaint or not, so a lot of times, you know, they're founded, they're not founded, but, you know, my experience has always been, well, it's always nice to provide the neighbors with a contact person on site where they can call them first and say, you guys are irritating me. You know, I've been in jurisdictions where these are actually conditional uses that can be brought back in the event that somebody is abusing these conditions. I'm sure you've gone through this many, many, many, many times, and unfortunately this is not a rooftop venue, this is ground level, rooftops are a whole different ball game. MR. MULHERE: I think you raise, and I'm sure you're going to hear some speakers who will raise the same concerns and I'm sure some of that is based on your experience with Celebration Park, so. They're two separate businesses, two separate uses, but I understand that folks are going to relate that experience as a concern. That's why we -- we had no objection to the limited hours and certainly it's within your purview to take a look at that because I think nine o'clock is not unreasonable. The only time we could go past that to ten was on a Friday or Saturday, but that's something that, you know, as a condition of the waiver, because of that criteria that you mentioned, the noise, the light, I think you do you have the purview and, you know, you could certainly -- there really is no -- the only other thing is I think you raise a good point, really the closest residence to us are -- I'm trying to get my directions. Let's see. West, east, south, which is the mobile home park. HEARING EXAMINER DICKMAN: Got you. MR. MULHERE: And there could be a condition of locating the music some distance away from that property line. HEARING EXAMINER DICKMAN: Why don't we look at the best graphic showing the location of -- MR. MULHERE: Yeah, so I don't know which one that is, so scroll back -- HEARING EXAMINER DICKMAN: Maybe scroll backwards -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- and let's take a look at some of this stuff. No, keep going, I need a closer view of this. MR. MULHERE: I think it was that one -- HEARING EXAMINER DICKMAN: Yeah, right there. MR. MULHERE: Yeah. HEARING EXAMINER DICKMAN: So which side is Bayshore on, where the umbrellas are? MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: And is that -- MR. MULHERE: See the sidewalk, the meandering sidewalk, that's along Bayshore. HEARING EXAMINER DICKMAN: Okay. Now, is that the restaurant that you're referring to? That's the third part of this that really matters. February 25, 2021 Page 14 of 31 MR. MULHERE: There's some -- there's some -- yes, there's some dining that could be outside there and then of course you have this central -- you see that central roofed area? That is sort of an outdoor venue as well. And you can see that that's located inside to minimize the impacts from that in terms of noise generation. HEARING EXAMINER DICKMAN: I get it, this is a schematic it's not some -- you know, it's not -- but I do see -- MR. MULHERE: Parking on either side. HEARING EXAMINER DICKMAN: On either side, so I do see some chairs in that center venue, I see some chairs -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- outside. MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: And then going to the very backside -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- does that look like a stage to you? MR. MULHERE: Yeah, it -- it does. HEARING EXAMINER DICKMAN: It does. Okay. And then on the other side of that is the residents? MR. MULHERE: Some distance, but yes, yes. HEARING EXAMINER DICKMAN: Okay. All right. MR. MULHERE: There is a retaining wall that's being developed as part of the site development plan, but, you know, that's a very constructive comment and if -- if when you review this, you have a concern about the location of that, you know, we understand that. HEARING EXAMINER DICKMAN: Yes, okay. So what I'd like to do is -- I mean, I have a couple of thoughts and this may be to the county or maybe a dialogue with all three of us, is one would be for me to actually kind of design this outdoor venue with dealing with light and noise or if we could agree to give instructions to county when you come in for the permit application -- is it, you know, is it when you -- is it a permanent permit or is it per if they want to have a -- is it per entertainment, like if they're having a band here -- MR. BELLOWS: For the record, Ray Bellows. The amplified sound permits typically worked in with the site development plan and we can in the site development plan include the amplified sound permit and sometimes through that process, additional mitigation to help address noise is part of that FTP process. MR. MULHERE: I mean, you do have the condition as a recommendation on this waiver, I mean, that could be embellished as well. HEARING EXAMINER DICKMAN: Well, is it -- so I'm contemplating possibly instead of me getting into the -- I'm really a quasi judge here, I'm not here as a planner or designer or anything like that, but I caught that and it does look like there's a stage there and here's the worst case scenario, I'm not -- and this is not an accusation to your client or anybody else. Worst case scenario, you get like a five-piece rock and roll band with lights and amplifiers and it turns into a -- even if it's a private wedding party or private party and the -- a lot of times it's late at night and someone just like says, let's jam it up, let's go, let's go, and I'm concerned about -- I'm not so concerned about the outdoor part on Bayshore, but I am -- I mean, that -- that courtyard does look really conducive to private parties and private activities and a band. MR. MULHERE: Let's go to, Jeremy, if you could so we can see a little better the distance, maybe the site plan, which is probably -- I think you went the other way, next one, colorized one. That's a little bit easier to see. HEARING EXAMINER DICKMAN: Where's Bayshore? MR. MULHERE: Bayshore's on -- on the bottom. HEARING EXAMINER DICKMAN: On the bottom. Okay. MR. MULHERE: So you're looking at the area -- this gives you a little better perspective of February 25, 2021 Page 15 of 31 distance, so it's not quite as on top of the property line as -- HEARING EXAMINER DICKMAN: Okay. Tell me, the property line is way up where you've landscaped it; right? MR. MULHERE: Can I -- I'll use this mic because then I can step up. I'm sorry, I should have brought a pointer. HEARING EXAMINER DICKMAN: That's okay. But where you have the landscaping back there, is that your landscaping at the very top of the -- MR. MULHERE: That's correct, yes, and there will be a retaining wall in there as well. HEARING EXAMINER DICKMAN: All right. I don't see the distances to there, but tell me approximately what the distance would be from that indoor -- well, I don't know what those buildings are after -- MR. MULHERE: That's probably -- let me just step up because I can't see either. Parking -- HEARING EXAMINER DICKMAN: Is that parking out there? MR. MULHERE: Yeah, this is parking. HEARING EXAMINER DICKMAN: Got it. Okay. MR. MULHERE: That's probably more than -- it's at least 50 feet. HEARING EXAMINER DICKMAN: So parking is about 18 feet? MR. MULHERE: Yeah, and then you've got a drive, so say 20. MR. BELLOWS: It's a two-way drive aisle. HEARING EXAMINER DICKMAN: So it's probably 24. MR. MULHERE: Okay. HEARING EXAMINER DICKMAN: So I know this is not a site plan review, but you say you're in a parking, you have a drive. I assume you're going to have some fairly mature lush landscape there? MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: So that will prevent lighting and then after that, how far away is the residents on that side? I thought I saw manufactured homes on that side. MR. MULHERE: There are. I don't know what the distance is, probably fairly close. HEARING EXAMINER DICKMAN: Okay. MR. MULHERE: So -- and the other thing is -- HEARING EXAMINER DICKMAN: Hold on. I do see a stage there. You see at the very top, I think the word "stage" is right there, keep going, yeah, yeah, that word says stage. MR. MULHERE: Yeah, I mean, that was -- HEARING EXAMINER DICKMAN: Is that staging or -- MR. MULHERE: No, it's a stage. HEARING EXAMINER DICKMAN: It's a stage. Okay. MR. MULHERE: Yeah. HEARING EXAMINER DICKMAN: There you go. Okay. MR. MULHERE: So, you know, if -- if a condition is that we have to be a certain distance away from out, I think that's the south property line or the adjacent mobile home development, with any live music, I mean, we -- we'll -- we'll live with whatever recommendations are put on that, we'll readjust. HEARING EXAMINER DICKMAN: So am I -- am I to assume like some of the yellow part here is where people can meander around and sit down -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- and enjoy their wine -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- that they purchased at the -- MR. MULHERE: Yeah, wine venue. HEARING EXAMINER DICKMAN: -- at the retail area? MR. MULHERE: Either way. February 25, 2021 Page 16 of 31 HEARING EXAMINER DICKMAN: The wine venue? MR. MULHERE: Yeah. HEARING EXAMINER DICKMAN: So this is kind of an open area that -- MR. MULHERE: Yeah. HEARING EXAMINER DICKMAN: -- people are going to wander around? Okay. So I really don't want to redesign this myself, but -- MR. MULHERE: No, I understand. HEARING EXAMINER DICKMAN: -- I do want to put you on notice that I'm either going to make observations about this and the location of the -- the stage and buffering and I may mention some issues about recommended location of using a permanent amplification system, rather than allowing musicians to come in with their own -- their own, you know, amplifiers, which can get rather -- MR. MULHERE: Just so that it's controlled by the operator? HEARING EXAMINER DICKMAN: Very controlled by the operator. Lighting, things like that, so maybe sort of those types of things; and frankly, I'm only saying this because I've had -- I don't know how many cases I've had dealing with venues that may have unwittingly really just had a sound system company come in and throw in some -- some really loud speakers, put them up ten, 15 feet in the air, things like that -- MR. MULHERE: No, I got it. HEARING EXAMINER DICKMAN: -- and my point of view is that it's easier on the front end to deal with these issues than to put the burden on the folks -- I hate calling them victims, but the folks that at night might want to go to bed at eight o'clock, 8:30. MR. MULHERE: 100 percent, I understand. HEARING EXAMINER DICKMAN: I know you do. MR. MULHERE: And honestly, this is a very significant investment. It does have, I think, strong support; one element of it will be entertainment, so I understand. We will live with whatever conditions or restrictions as long as they're not onerous, we'll -- we'll -- we'll be okay with that so that we're good neighbors as well. HEARING EXAMINER DICKMAN: So, Ray or Nancy, I'm not sure if this should be directed at you, but let me just ask some questions to both of you and you guys can point at each other who you want to answer this. So with regard to -- I'm going to back up a little bit, Mr. Mulhere, don't take this of any offense that I would question anything that you say because you're under oath -- MR. MULHERE: I do have one thought. I'm sorry. After you have your discussion, I'm just saying, if it's -- HEARING EXAMINER DICKMAN: I'll give you time to rebut if you want. MR. MULHERE: No, I was going to say, look, if it's necessary or feasible to allow an opportunity for -- as the applicant to work with staff as it relates to some suggestions you make, we'll take -- we'll come back, you know, we'll take a continuance. HEARING EXAMINER DICKMAN: Okay. So I'll go with Nancy first and if you want to punt to Ray, you can do that, but you don't get -- you can't punt every time. I'm just kidding, I just want -- So the CRA part and Celebration Park and the entertainment district, tell me all of that, the thought process behind that and the -- you know, where does county want to go with this -- with this generally? So the CRA is put in place, community redevelopment; is that in part for this type of activity entertainment, the food truck venue across the street? MS. GUNDLACH: Great question. HEARING EXAMINER DICKMAN: Ray, she's punting. MR. BELLOWS: For the record, Ray Bellows. We -- staff in the zoning department works with the CRA on these types of projects; we have lines of communication, as well as the applicant works with the CRA, that's part of the process to foster that communication, and one thing I don't recall seeing is do we have correspondence from the CRA support? February 25, 2021 Page 17 of 31 MS. GUNDLACH: I did have a phone conversation with the CRA representative, and she did say they support this project, yeah. HEARING EXAMINER DICKMAN: Okay. So in this area, is it -- I mean, is it fair to say that the CRA is in part set up to attract business? Is that -- not nodding your head, but yes or no? MS. GUNDLACH: Correct, yes. HEARING EXAMINER DICKMAN: Correct, yes. Okay. And with regard to the site plan and coming in and dealing with that part of the -- the noise and light intrusion to residential areas, tell me about -- I know you already have a condition that deals with hours of operation, sometimes that's not enough. I mean, how -- how far do you guys drill down when you look at these site plans, do you talk about speaker location, do you talk about, you know, levels of noise, do you talk about some of those things? MR. BELLOWS: For the record Ray Bellows. I've been involved with this aspect of this amplified sound permit process on other projects and what typically happens when a site development plan for a bar or a restaurant or nightclub where there's going to be outdoor or amplified music is we look at the proximity to residential units, what mitigation's involved, and in a lot of projects where commercial abuts residential, there's a wall requirement in our land development code, are you guys going to be building a wall? MR. MULHERE: Yes, there is a general purpose -- it serves as a retaining wall and as a code required wall between the commercial and -- MR. BELLOWS: The wall helps mitigate noise going through, but there are other techniques to help mitigate noise, such as enclosing any outdoor amplified so it faces away from residential areas; those are typically written on the site development plan to help ensure that bands don't come in and rearrange the stage, so to speak, so the music is facing right towards the residential areas. That's easier for code enforcement if a complaint does come in and say, hey, you're not in compliance with your site plan or where your stage should be or those kinds of things and make sure whatever, if there's additional sound mitigation required as part of that permit process. HEARING EXAMINER DICKMAN: So if I were to design some suggestions in this decision, would that make its way to that permitting process? MR. BELLOWS: Yeah, if we have a HEX determination with conditions, that will be part afforded to development -- or yeah, development review team. MR. MULHERE: What you're saying is that you'd like to see those in the form of conditions as opposed to recommendations; I think that's what you're saying. HEARING EXAMINER DICKMAN: You'd rather see clarity on that? MR. BELLOWS: And I also think that the comment Mr. Mulhere made a little bit earlier has some credence if he's still willing to -- if you have conditions or concerns about the arrangement of things, maybe have a continuance today, we'll address those with the applicant and then come back for a final vote with any redesign that comes out of concerns that you might have. HEARING EXAMINER DICKMAN: That -- that's one option or if I give you conditions based on my knowledge of this type of thing and this is not open yet, it may not open for a while, you don't know. If for some reason those conditions don't fit or aren't working or are working -- or, you know, are working and you want to change them, you can also apply and come back here for a modification; is that possible? MR. BELLOWS: That is possible. Normally, we would try to address those through the amplified sound permit process, but we could have a condition in the distance waiver decision that would require -- MR. MULHERE: A couple of things here I don't see any objection to: One is low level lighting within -- within 100 foot of our property line there. Look, for safety purposes and parking lots and things there are design requirements, so we can't -- we can't not design for safety reasons; however, there's no reason why we couldn't have low level lighting within 100 foot or 50 foot of that rear property line and all lighting is required to be shielded such that it's not directed towards the neighbors but only towards your project, so we can shield that lighting as well. So I think lighting is relatively easy to February 25, 2021 Page 18 of 31 minimize any impacts from that or negate any impacts from that. I have your -- you know, when I look at the site plan, the stage is -- is some distance, probably at least 50 feet away from that property line and it is facing in the other direction, but certainly, Mr. Dickman, if when you look at that, you feel that that's an inadequate distance and you feel like the live music location should be further, we'll respect your decision. HEARING EXAMINER DICKMAN: Okay. So I get what you're saying about the lighting, you know, and that's sort of lighting within the -- I'm going to call it courtyard areas -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- or meandering areas -- MR. MULHERE: Yep. HEARING EXAMINER DICKMAN: -- those would be low level lighting. I'm also thinking about lighting on the stage and electric lights orchestra. MR. MULHERE: Yeah, no, I think we just have to have it low level within a certain distance of that neighbor, absolutely. HEARING EXAMINER DICKMAN: Right. I hear heavy metal's coming back, so I'm a little concerned about that. MR. MULHERE: Well, let's hope this is not that. HEARING EXAMINER DICKMAN: And that would also be possibly recommendations with regard to speaker location and using the -- the permanently installed amplified system rather than allowing -- MR. MULHERE: In the control of the operator. HEARING EXAMINER DICKMAN: -- rather than bands being allowed to bring in -- MR. MULHERE: Yeah. HEARING EXAMINER DICKMAN: -- their own amplified stuff, controlled things. All right. I hope everyone understands why I'm focusing on this. Usually it's a one-shot deal and then it's out the door for me, I never get a chance to see it. Some local -- localities do have this in a situation where, you know, if there's so many complaints and the county feels like this is not working correctly, it can be brought back, it doesn't work like that here; this is my time to -- MR. MULHERE: Yes, I understand. HEARING EXAMINER DICKMAN: -- do this, so -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- I think it's maybe a good -- unless county has anything else or anybody? Mr. Mulhere, don't go anywhere, you may want to address some of the public issues. MS. GUNDLACH: I do have something else. We are -- staff is recommending approval and we were also requested to read Robert Messmer's letter of objection into the record, but I understand you already have it, so I'll leave it up to you. HEARING EXAMINER DICKMAN: Okay. So let me address that and I've had to deal with that and this is -- this is kind of one of those slippery slopes that if all of a sudden people ask for -- one person asks for reading something in the record and then another person doesn't, then they say, why did you read -- why didn't you read my email and then what happens if you get 25 emails, you know, I -- I tend to prefer that these are just put into the record and we've provided -- I'm not trying to insult anybody, but I feel like it's a slippery slope, you know, if the county decides to write a policy where they say, yeah, staff is going to read every single email that's sent in, I think that's fine. I'm a little concerned what -- I mean, I have two emails, one asks, the other one didn't. The other one may be saying, I wish I should have asked, then what happens in the future. So I have read that email and hopefully they understand that I read the email and I'm actually asking a lot of questions because of those emails and so I prefer that you not read the email because I've read it myself and it's actually in the public record, so it's not like it's, you know, they made their comment perhaps there are -- thank you for that. I don't think you need to read that verbatim into the record, I've read it, both the emails. And why don't we go ahead and hear from the public and that might help continue this discussion. February 25, 2021 Page 19 of 31 Jeremy, who do we have? MR. FRANTZ: We have several people here in the room, no one on Zoom. HEARING EXAMINER DICKMAN: Okay. Great. MR. FRANTZ: The first two speakers would like to kind share of their time, I believe, so I'll call both of their names, Kate Samblanet and Dennis Samblanet. HEARING EXAMINER DICKMAN: Okay. Great. Come on up and I appreciate you being here. You can take -- she's going to clean off this podium for you and then you can come on up. How are you, sir? It's good to see you. MR. SAMBLANET: Good. Thank you, Mr. Dickman, appreciate your time, appreciate your information that you've shared with the amplified permit from your past experience and amplified sound, you used the word "victim" two or three times, you're talking to one of those victims right here for the past two years. I just kind of wanted to start with that before I started with my statement, if I may, please. My name is Dennis Samblanet and I reside at 2998 Poplar Street. I'm a retired state certified general contractor and I've owned my own business here in Collier County for over 30 years. I've been in business all my adult life. I applaud and admire anyone willing to take the chance and place their finances on the line and open a business and Ms. Maddox is certainly in that category. However, it cannot and should not be done at the expense of a total neighborhood that has been there for decades before she arrived. It can be and should be in harmony with the neighbors and neighborhoods and that is the responsibility of the county to make sure that the business is permitted and enforced with the neighbors and the neighborhoods in mind. I feel that approving a variance of this magnitude with the past violations in history of Celebration Park would be saying to all of us living here for decades that we no longer matter and we no longer have a say in our community. Ms. Maddox is asking for a minimum distance waiver from a 500-foot separation from similar businesses selling alcohol to 100 feet; in this case that business is Celebration Park. This is a 400-foot reduction or 80 percent from what the county believes is correct and proper distance and I'm confident that the county has plenty of reasons and statistics to have the 500-foot distance. The packet reads that the subject site is separated by Celebration Park -- from Celebration Park by a four-lane roadway, which is Bayshore. This one statement alone is probably reason enough not to allow the waiver. Picture this, if you will, people are indulging in alcohol, being served on both sides of Bayshore in an extremely close proximity, they look across this four-lane road and say, let's go check out that place over there, it's only 100 feet away. Believe me, they will be crossing Bayshore wherever they want to and especially at night, it's going to be very dangerous. This is exactly what's happening every day and night between Celebration Park and their existing parking lot. I spoke about this situation at the parking lot hearing when it was up, but it fell on deaf ears and now this occurs constantly, every hour of every day that the park is open. It's definitely a life safety issue. Obviously the county has plenty of reasons for the 500-separation between establishments selling alcohol and churches as well. In this case, the waiver's asking for a reduction of 188 feet or 38 percent for one church and 218 feet or 44 percent for the other. Staff is recommending the following, and this has to do along with what you talked about, Mr. Dickman, outdoor -- this is what staff is recommending: Outdoor amplified music shall be limited to the hours of 11:00 a.m. to 10:00 a.m. on Friday and Saturday, and 11:00 a.m. to 9:00 p.m. on Sunday through Thursday. Obviously, none of staff live anywhere near our neighborhood or they would not be recommending that. This recommendation will follow the amplified music, same as we have been complaining about from Celebration Park for over two years now; and it will be amplified for 11 hours -- they're able to have this music for 11 hours Friday and Saturday and ten hours Sunday through Thursday. That's a lot of time to listen to that kind of music. Based on the amplified noise coming from Celebration Park, this is completely absurd and will destroy our neighborhoods. I'm asking county staff to review what has been occurring at Celebration Park for the past two years that has been -- since they've been open before they make any decisions on this. I asked code February 25, 2021 Page 20 of 31 enforcement a few questions a day or two ago about the history of Celebration Park and they gave me the following answers: How many calls and complaints has code enforcement received for noise and loud music. They said although they have had calls, the exact number is unknown. How many calls and complaints has the sheriff's office received? Code enforcement says they don't have this information, when I was told by code enforcement to make our calls to the sheriff's department because they record these and keep track of them. Total number of -- I asked total number of cases on file open or closed and code answered 17 cases have been opened for the park and eight for the parking lot. That's a total 25 cases that have been opened in a two-year time frame for not complying with what they're supposed to be doing. Total number of cases open at this time, three remain open, one for noise, and that's the ambient sound, the amplified sound that we're having; one for noise, one for permit -- or one for propane tanks and one for parking lot. I asked total number of violations opened or closed. The park has seven violations have been observed during -- during a fire -- for the park seven violations have been observed, including a fire department violation and four notices have been issued. Parking lot has six violations observed, three notices issued, one citation, and one went to a hearing. That's a total of 13 violations, seven notices, one citation and one hearing. Then I asked total number of violations that still remain open, total of three. One for propane tank violation from the fire department; one for noise, which is what we've all been talking about for two years; and for the one parking lot use on Monday, which that's -- on the last hearing when they approved the permit, they were not allowed to use that parking lot on Mondays and they continue to do that. And the last question was total number of times violations have -- could have been issued but instead management was talked to for some reason and the answer to that was a total of six verbal warnings for observation for observed violations that they could have been cited for more things, but for some reason they were just talked to. So for all these reasons, Mr. Dickman, I strongly suggest that this waiver be tabled for one year to see if all the issues pertaining to Celebration Park will be resolved in that time frame. If Celebration Park shows that they're willing to play by the rules and they want to be a good neighbor like they constantly say they are, but will do nothing to help and have no more noise violations and issues or parking or propane tanks or extra trucks or signs and all these issues that they've had violations with, if they have no more in a one-year time frame, this waiver could be revisited. That's my suggestion. HEARING EXAMINER DICKMAN: A couple questions for you, sir, and thank you very much for that information. Once again, give me your address, if you don't mind. MR. SAMBLANET: 2998 Poplar, P-O-P-L-A-R, Street. And they're -- HEARING EXAMINER DICKMAN: You are located -- I'm going to look at the zoning map here, are you located -- MR. SAMBLANET: Approximately three blocks from Celebration Park. HEARING EXAMINER DICKMAN: Okay. You're on the same side of Bayshore as Celebration Park? MR. SAMBLANET: Yes, sir, which is west of them. I'm three blocks west, so when we're talking 50 feet from the mobile home park, and we're three blocks and I know a gentleman that's a third to a half-a-mile away from Celebration Park that has the same concern and loud noise from the amplified music. HEARING EXAMINER DICKMAN: Okay. Would you -- you read from a statement, would you -- are you willing to provide me with that statement because you had some statistics in it and obviously, I -- I -- I'm very familiar with the difference between a complaint and a notice and an actual violation and there's a whole series of how that works out. Some of those were fire, but some of them -- but, again, this is not, I guess -- yeah, I see that the celebration food truck park is part of the separation distance, so I appreciate that. MR. SAMBLANET: The information that I did share here came directly from code February 25, 2021 Page 21 of 31 enforcement in an email to me, so that should be public record. HEARING EXAMINER DICKMAN: Okay. So -- right. So I'm kind of -- I'm sort of looking for -- I'll ask staff about that because I really need to make any decision based on evidence that's presented here at the -- at the hearing; you know, laypersons like yourself are allowed to provide expert testimony to facts that they're aware of and, you know, I appreciate your getting some facts for me and if you could just leave -- unless you've put some notes on there that you don't want me to read, I mean, it would become public record. MR. SAMBLANET: I'm happy to leave it. HEARING EXAMINER DICKMAN: Okay. Great. So -- all right. The -- why don't we bring up -- do we have another -- another speaker? I appreciate that. Thank you, sir. Quickly, while the next speaker comes up, was that -- maybe to Nancy or to Ray -- did Nancy depart? She hasn't departed. Was code -- code enforcement -- was there any research with code enforcement and issues like that that -- that the gentleman mentioned? Oh, he's got to get his mask. Okay. Great. Thank you. MS. GUNDLACH: There was no research from code enforcement. HEARING EXAMINER DICKMAN: But you heard some of the statistics that he said, I mean, and the source of that data, do you have any reason to doubt the veracity of that information? MS. GUNDLACH: I don't have a reason to doubt it. HEARING EXAMINER DICKMAN: Okay. All right. Great. I'll give you a chance to rebut -- for rebuttal or response, maybe we should call it. Do we have another speaker, Jeremy? MR. FRANTZ: We have two more speakers. Your first speaker is Troy Komarowski, apologize if I pronounced that wrong. If you could spell your last name for the court reporter, that would be appreciated. HEARING EXAMINER DICKMAN: Just a second. Let her sanitize the microphone for you. THE COURT REPORTER: Hi, this is the court reporter, is there any way we could take a quick break before the next two speakers? HEARING EXAMINER DICKMAN: Absolutely. We want -- we'll take a five-minute break. (Pause in proceedings.) HEARING EXAMINER DICKMAN: We have a hand gesture from our court reporter that she's ready to go. We're going to start back up with the public hearing. We have a gentleman here, if you could put your name -- name and address in record. MR. KOMAROWSKI: My name is Troy Komarowski. And that last name is spelled K-O-M-A-R-O-W-S-K-I. I have lived at 2695 Becca Avenue for the last 36 years. Becca, B-E-C-C-A. HEARING EXAMINER DICKMAN: Okay. MR. KOMAROWSKI: Part of the Rebecca Weeks subdivision. HEARING EXAMINER DICKMAN: And just generally, which side of the Bayshore -- give me an orientation. MR. KOMAROWSKI: I am on the north side of Becca. Can we pull up the picture of the new venue; can we pull up one of those pictures again or no? Or do you have a site map? HEARING EXAMINER DICKMAN: I actually have the site map here in front me. Are you -- MR. KOMAROWSKI: I was in one of your pictures. HEARING EXAMINER DICKMAN: What? MR. KOMAROWSKI: I was in one of the pictures that was on the screen. HEARING EXAMINER DICKMAN: Really? MR. KOMAROWSKI: Yes, because I live within 590 feet of Celebration Park and I -- February 25, 2021 Page 22 of 31 HEARING EXAMINER DICKMAN: Are you -- oh, okay. You're on the Celebration Park side of Bayshore Drive? MR. KOMAROWSKI: Correct, that's where Becca is. HEARING EXAMINER DICKMAN: Okay. MR. KOMAROWSKI: If you want to pull that up again, I'll show you on the screen. HEARING EXAMINER DICKMAN: Yes, so are you adjoining -- abutting Becca -- or the Celebration Park, are you abutting that. MR. KOMAROWSKI: Go on the parking lot side, the parking lot for Celebration Park -- there you go. In that one, let's see. HEARING EXAMINER DICKMAN: How many lots away are? MR. KOMAROWSKI: Okay. There was another shot. No, hold on. HEARING EXAMINER DICKMAN: You actually had a photograph of yourself? MR. KOMAROWSKI: There was another one. No, I was -- I was -- my home site is in there. HEARING EXAMINER DICKMAN: Okay. Where are you? MR. KOMAROWSKI: Okay. If you go -- point to Becca, that would be right there. Go left, go left go left, right -- see that silver stricture right there, that's me. HEARING EXAMINER DICKMAN: That's you. Okay. All right. Got it. MR. KOMAROWSKI: That's within 590 of Celebration Park, so I think I'll be within 600, a little over 600 of the new venue. HEARING EXAMINER DICKMAN: Let's get going. MR. KOMAROWSKI: Well, let's first go that I am a state Florida ICC certified mechanical and fuel gas inspector, as well as a plan reviewer. I'm also state of Florida licensed fire safety inspector and plan reviewer. HEARING EXAMINER DICKMAN: Okay. MR. KOMAROWSKI: So those issues that you've had with code enforcement that are documented in pictures that were sent to John Johnson, your code enforcement investigator, those are from me. So just to let you know that we've been dealing with the sound issue -- let's go with the sound issue first because it was actually four issues with this place. One's going to the sound, the other one is pedestrian safety, the other one is vehicular traffic and the last one will be the life safety that Celebration Park has brought to us and it's not in the original review that it was done, it actually has been brought to us later on with the TUP permits that Collier County has approved. So originally, the sound permit -- and this is the problem where something gets approved with planning and then as it goes -- go ahead. HEARING EXAMINER DICKMAN: I'm getting a little background noise here. Thank you. Go ahead, sir. MR. KOMAROWSKI: I am a former Collier County employee, but now I work for a local fire district, so. The problem with it is the permitting comes in and then later on will apply for a TUP permit and in the use of that TUP permit, how is that done because the sound permit that -- there was no sound originally for Celebration Park and I see that there is some sound going to be in this new venue, so a permit was applied for -- it's funny that it's an amplified sound permit, and description of use says, nonamplified acoustic sound, and yet it was approved. According to the county's ordinances, all the documentation that should have been supplied with this app was not. There should have been a narrative description of any factors which might mitigate the impact of close proximity; they are within 75 feet of residential zoning, Celebration Park -- HEARING EXAMINER DICKMAN: You mean Celebration Park is? MR. KOMAROWSKI: Correct, and it was approved. You're talking about a mobile home park that's within 50 feet of this new project or no? HEARING EXAMINER DICKMAN: We're -- I know Celebration Park is part of the issue February 25, 2021 Page 23 of 31 with regard to distance of the proposed project, but the applicant -- the applicant is not Celebration Park. We're talking about a project that's on the other side of Bayshore -- MR. KOMAROWSKI: Correct. HEARING EXAMINER DICKMAN: -- and so -- MR. KOMAROWSKI: And that's what I'm saying, that new project is going to be within residential zoning, the mobile home, or you don't consider that residential zoning? MR. BELLOWS: For the record, Ray Bellows. Mobile home park zoning falls under residential. MR. KOMAROWSKI: It does? Okay. MR. BELLOWS: Yes. MR. KOMAROWSKI: So and like I said, that's the problem with a lot of these temporary permits that come in, some of the life safety issues were TUP permits that were approved later on, such as adding the tents, that has brought a life safety issue to it; they're still up at this point. The propane gas. Being this project -- being that Celebration Park came in to the review, it's an all outdoor venue, so any outdoor venue doesn't get really the -- all the reviews that would come normally, mechanical and gas never got a review on this. And later on we had these gas issues. You can check with code enforcement on this one, but from March of last year to January of this year, all those thousands of people going through Celebration Park, they had three times the safe volume of propane gas on site. So remember that, that we say, oh, yeah, planning approved something, but then later on TUP comes in and somehow gets lost in translation. HEARING EXAMINER DICKMAN: I think your point being maybe, because I don't want to -- today's not the time to beat up on Celebration Park. I didn't approve that, I wasn't involved in that, but your point is well taken that subsequent to this process, there are additional permits that have to be obtained and I think what you're saying is perhaps certain things weren't thought of, perhaps the permits weren't sure issued for some reason, I'm not going to dive into that, but your point is well taken that, you know, once it's out of my jurisdiction, there're other things that happen and they may not get addressed or enforced correctly. I think that's what you're saying. MR. KOMAROWSKI: Exactly, exactly. HEARING EXAMINER DICKMAN: Okay. All right. Great. MR. KOMAROWSKI: And some -- like right now with traffic, what we had to deal with in the past was we had people parking all along Bayshore, both sides of -- sorry, both sides of Becca Avenue, down the whole street, past my house, you see where my house was on the map, so -- HEARING EXAMINER DICKMAN: They would actually park in the residential area? MR. KOMAROWSKI: They park alongside the road, they block driveways, they just park alongside the road, so what I did was I contacted code enforcement. HEARING EXAMINER DICKMAN: Okay. MR. KOMAROWSKI: I contacted DOT, they did -- did a sign study, came out and installed signs and then they put the signs up. HEARING EXAMINER DICKMAN: That's one question I am going to ask the applicant or the county to address the -- that, the life safety issues with regard to parking, so I'll get into that. MR. KOMAROWSKI: And, now, when the signs are along Becca, so now what they do is they park down Cypress, Poplar because of course there's no signs there. And if we called the sheriff's department, they say they don't want to ruin anybody's afternoon. If we call code enforcement, they tell us to call the sheriff's department, so -- okay. And then the pedestrian safety would be the crossing of pedestrians from the parking lot, the unattached the parking lot, and when they cross Becca, they don't cross directly across Becca, they cross from the exit point of the parking lot to Celebration Park and in turn in doing this, they back up traffic coming from Bayshore that's traveling south turning on to Becca and that back up creates traffic hazards. HEARING EXAMINER DICKMAN: Where is Celebration Park's parking, designated parking? MR. KOMAROWSKI: Can we bring up the photo or -- February 25, 2021 Page 24 of 31 HEARING EXAMINER DICKMAN: You just describe it to me. MR. KOMAROWSKI: Okay. It's on the south side of -- it's on the north side of Becca, on the corner of Becca and Bayshore. HEARING EXAMINER DICKMAN: It's on site? Both -- okay. Off site and on site. Okay. I'll get to that. MR. KOMAROWSKI: Yeah, so -- HEARING EXAMINER DICKMAN: But it's not across the street on the -- MR. KOMAROWSKI: It's across Becca. HEARING EXAMINER DICKMAN: But it's not across the street at Bayshore? MR. KOMAROWSKI: No, it's not across the street from Bayshore. HEARING EXAMINER DICKMAN: Got you. Understood. All right. Anything else? MR. KOMAROWSKI: No, that will be it. HEARING EXAMINER DICKMAN: I appreciate you being here. MR. KOMAROWSKI: Thank you. HEARING EXAMINER DICKMAN: Thank you. Put your mask back on for your safety. MR. FRANTZ: The last speaker is Raymond Bass. HEARING EXAMINER DICKMAN: Okay. MR. BASS: I'm Raymond Bass, I'm an attorney in private practice and a local resident. HEARING EXAMINER DICKMAN: How are you, sir? MR. BASS: I'm very well, thank you. And I am here to give you some evidence, but also in a representative capacity of a group of people who have taken the extraordinary step of employing a lawyer to help them with problems associated with Celebration Park, and, you know, as I was listening to speakers, and I know that you had the same question in your mind and that is what's the connection between their concerns about Celebration Park and this new project. Well, the concern -- the connection -- HEARING EXAMINER DICKMAN: Mr. Bass, I just need to ask you a question, so are you here in the capacity as a counsel for someone or are you here in the capacity of an expert providing expert testimony? MR. BASS: Not expert testimony, no. HEARING EXAMINER DICKMAN: So you're just here in the capacity -- MR. BASS: I also have -- also have some evidence to provide you with because of my personal on-site observations. HEARING EXAMINER DICKMAN: Okay. So as a lawyer, I'm sure you understand, you can provide evidence if you want, but I mean, attorneys typically are required to make legal arguments and rely on their expertise, and I'm not trying to pick on you, but I think you know that, that, you know, you guys -- lawyers don't testify as experts. MR. BASS: Yeah, in a courtroom, yes, that's correct. I don't know -- I don't know that that's -- HEARING EXAMINER DICKMAN: This is a bit quasi, so -- MR. BASS: Yeah, I guess you're right, that's right. HEARING EXAMINER DICKMAN: -- we'll work on that. MR. BASS: Okay. I'll limit it then, that's fine. HEARING EXAMINER DICKMAN: Just keep that in mind. I mean, I'm just -- MR. BASS: I will, I will. The connection, though, the nexus here about their concerns -- their concerns about Celebration Park is this: -- HEARING EXAMINER DICKMAN: I need to know who your client is. MR. BASS: It's -- I have probably ten to 12 and we just -- it's an ad hoc group that we call Becca Weeks Residents. Weeks Avenue, Becca Avenue, Weeks Avenue and the residents in the area. HEARING EXAMINER DICKMAN: And do you live in that area? MR. BASS: I do not. February 25, 2021 Page 25 of 31 HEARING EXAMINER DICKMAN: Okay. Okay. So I'm just going to refer to them as Becca Weeks Avenue concerned homeowners. MR. BASS: Right. HEARING EXAMINER DICKMAN: Or residents. MR. BASS: And the connection between Celebration Park and the new project is the same operator, same developer and the concern they have is they have one bad neighbor already in Celebration, the owner of Celebration Park, and now that that bad neighbor is going to try and extend or it will be extending her footprint to across the street and then go and have a very similar operation, according to the planner, Mr. Mulhere, they'll have an upscale operation going on there and to attract more people. Well, let me assure you that people that get attracted are not local residents, they are residents from downtown Naples and other areas of the -- of the -- of other areas of Naples, but not the local residents. What I think is -- and I'm going to limit my remark, but what's going on here and their concern is that this operator of Celebration Park constantly pushes envelope on noise violations and the creation of a private nuisance, the -- on the -- the -- the operation of the Celebration Park with the fire code violations and the parking violations and so forth. If that footprint is extended across the street, across Bayshore Drive to this new development, they -- they believe that this will just be an exacerbation of the current problem. The -- I would like to point out, I know this is about the wine bar variance. Well, they don't need the wine bar to do the project; Mr. Mulhere made that very clear at the outset, but I can assure you they want that wine bar because that's the -- that's where the money is, an outdoor wine bar is where the money is and the attraction for that, the driver of that would be this live music and other amplified music, that's the driver of the -- of the -- of the wine bar and that's really where the money is, I submit to you. This -- this -- I know the public policy behind this is for redevelopment of the Bayshore area and all that, that's great, but it should not be redevelopment to the detriment of people who live there. So this kind of redevelopment or this kind of project is not necessary to have this -- the bars and live music and things like that, it's not necessary, it's a matter of preference for the developer to use this area. Apparently getting it where you can't get it otherwise; you can't get that in downtown Naples and you can't get it in other areas of the county, but apparently you can get it on Bayshore because that is now a policy with the CRA and the county commission, you know, they want to see Bayshore developed. That's fine, but not this kind of development where you have long -- I mean, for -- this area has been resided in since the '40s, '40s and '50s. I'm a lifelong resident here, so I know this from my own personal knowledge. People been living in this area for a long, long time. It's not really necessarily a matter of gentrification but sort of quasi-gentrification where you have businesses coming in attracting people from not in the area to do the business there and then, you know, it's like I said, it's to the detriment of the local residents. So in summation, let me say that what they want is a variance for the wine bar. There's already a bad neighbor operation going on presently. I've had to send a letter to the owner of the Celebration Park telling them that if they don't ameliorate the situation there, we are going to be bringing a private nuisance lawsuit against them and this is just making it worse than it already is and for those reasons, the -- you've heard these complaints and I've come today to try and articulate them somewhat for them. HEARING EXAMINER DICKMAN: I appreciate that and as always, I try to -- since this is quasi-judicial, I feel like my job is pretty straightforward, it's to look at the criteria for the request and look for competent substantial evidence to apply to that and come up with a decision as to that. I mean, that's the way I see it. This is not a -- this -- you're looking at one guy who's a lawyer who looks at the law and the criteria and applies -- applies the information as been presented and I believe you have addressed some of the factors that are listed in the land development code, so I appreciate that; and I'm going to -- you've stimulated some questions that I want to ask to the applicant, to county, so I appreciate you being here. Thank you. February 25, 2021 Page 26 of 31 THE COURT REPORTER: I'm sorry, Mr. Dickman, this is the court reporter, could I get that speaker's name, I missed it? HEARING EXAMINER DICKMAN: Mr. Bass. MR. BASS: Raymond Bass, yes. HEARING EXAMINER DICKMAN: B-A-S-S. MR. BASS: Yes, just like the fish. HEARING EXAMINER DICKMAN: So it's Raymond Bass, like the fish; is that good? THE COURT REPORTER: Yes, good. HEARING EXAMINER DICKMAN: All right. I need to drill down a little bit more and just bear with me on this one because I'm sensitive to it and I know Mr. Mulhere -- Yeah, Ray, if you guys could take that outside. Sorry. I need to -- I'm highly distracted by your -- MR. MULHERE: I do want to make some rebuttal comments. HEARING EXAMINER DICKMAN: Yeah, yeah, I do too. I want you to be there and I want to ask the county a couple things and just so I stay on track, I'll give you a chance, Mr. Mulhere, but I want to understand this a little bit more. So first and foremost, so the applicant that you're representing is also the owner or operator of Celebration Park; is that a fair -- MR. MULHERE: In part, yeah. HEARING EXAMINER DICKMAN: Okay. MR. MULHERE: I don't know -- I don't know the corporate structure. I don't know if all of the members of the proposed food and wine venue operation are the same as -- I do know that Rebecca Maddox has interest in both. HEARING EXAMINER DICKMAN: Okay. Very good. And as -- in relationship to -- okay. So I'm a little concerned -- obviously this is -- this is being -- it looks to me as though this is turning into an entertainment section of the CRA and clearly this is going be an attractor as well as Celebration Park. I don't know anything about the pedestrian -- there's -- I would suspect that there's going to be folks that want to -- pedestrians that want to go from one venue to the next; are there crosswalks there or how -- MR. MULHERE: There is a crosswalk. HEARING EXAMINER DICKMAN: There is a crosswalk. Okay. So there's a safe way for pedestrians to get back and forth. MR. MULHERE: Plus I know that staff will look at those issues as part of the site development plan. HEARING EXAMINER DICKMAN: Okay. MR. MULHERE: And I see Matt McLean’s back there. He may be able to speak to the issue from staff's perspective, but they will be looking at it. Now, the problem we have is the CRA hasn't completely decided what course of action they're going to take to make improvements, so, you know, we're probably maybe a year away from constructing and getting a CO; hopefully, the CRA will continue the dialogue that they're having about making pedestrian improvements along Bayshore. I do know that they are discussing it because when I was there, there was discussion about looking at potentially a round-about. I know they're hired a transportation consultant to look at that, so they're serious about making those improvements; when they will occur, I can't say. HEARING EXAMINER DICKMAN: So -- okay. So the CRA is the county commission or who is -- who -- MR. MULHERE: Well, the CRA ultimately is the county commission. HEARING EXAMINER DICKMAN: Okay. Ultimately? MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: Okay. So -- MR. MULHERE: But this is the advisory board I'm speaking of along with the MSTU? HEARING EXAMINER DICKMAN: MSTU? February 25, 2021 Page 27 of 31 MR. MULHERE: Which is multiple -- municipal services taxing unit, which -- also part -- plays a part in the funding for the improvements. HEARING EXAMINER DICKMAN: All right. So tell me about some -- okay. So I want to -- MR. MULHERE: I do want to -- HEARING EXAMINER DICKMAN: Yeah, go ahead, you go ahead. I've got some questions too, but go ahead and -- MR. MULHERE: And I mean no disrespect to anybody and I appreciate the comments that were made and I understand, but we really -- and I understand the need for folks to maybe talk about an experience that they've had with Celebration Park. We're not talking about Celebration Park and I understand the need for them to talk about it, but we're not talking about it. This is focused on a waiver request, which is not a variance. A variance is a term of art, it was used twice. This is not a variance. If it was a variance, there would be a whole separate set of criteria. This is a waiver from the 500-foot requirement and I understand that too because not everybody understands the difference between the two, but it's important for me to set the record straight and say that it's not a variance. HEARING EXAMINER DICKMAN: Right. It's not a variance, it's a separation, but it is a separation from Celebration in part -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- from the two -- MR. MULHERE: Churches and Celebration Park. HEARING EXAMINER DICKMAN: -- churches and Celebration Park, so there is -- there is some connection between Celebration -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- Park because it is supposed to take that into consideration. MR. MULHERE: Well, the way folks get there, yes, absolutely, and then the questions of raising safety is certainly legitimate; we have a public right of way. We have an intersection. We have businesses. Keep in mind, if I could, we don't -- I understand this is an opportunity to maybe look at some issues on the wine and food venue that may be of concern, and you've raised them, Mr. Dickman, and, you know, based on the other experience; however, the -- the operational issues, the safety issues, the code enforcement issues, they really have nothing to do with this request. What has to do with this request is the safety of pedestrians and motorists, that's why this is going through a site development plan, when the county reviews it, it will have safe -- safe access. It has all the -- it will have all of the required parking in accordance with code for the uses. It's pretty close to being approved, maybe within a few weeks for the site development plan. So I think it's also important to step back and understand, and I said this earlier, but I've been doing this a long time, I understand the opportunity to, as a neighbor, express your concerns and I certainly appreciate that, but, again, I have to reiterate that this -- this development could be a restaurant, a small public restaurant that also serves alcoholic beverages for on-premise consumption with no real change in the design that we have and we wouldn't be here today, we wouldn't have to ask for this waiver because a restaurant that serves alcoholic beverages for on-premise consumption, which can also have live entertainment, isn't required to go through this process. We're doing this out of an abundance of caution because we don't know whether we would trigger this in the future based on the volume of sales that may come from alcoholic beverages for on-premise consumption for this one small element of it. And, you know, I think it's the right thing to do, is to come in and ask for it. So looking at the criteria, we believe we meet the criteria. We do have a staff recommendation for approval and we do have a recommendation from the CRA advisory board. We're not objecting to appropriate conditions that might address some of these concerns, but I can't speak to, I'm not involved with and I don't think it's appropriate to speak to, you know, certain of the things that were raised as it relates to temporary use permits and those kinds of things. You know, we're either going to get a permit for outdoor amplification of sounds, which will have conditions on it, or we may February 25, 2021 Page 28 of 31 have conditions on this, which already have one, which is hours of operation and we'll have adhere to those. Those will be -- HEARING EXAMINER DICKMAN: I mean, I agree with you that this isn't about, I mean, the conduct or the operation of Celebration Park, that's not what this is about, these so-called, what you say, blue laws are really to focus on the use that's being contemplated and their impact on those surrounding things that you're asking for a waiver, which will be the church, Celebration Park, so Celebration Park gets to say -- could potentially say, we don't want it because we think it's going to interfere with our business, it would be the absolute opposite -- MR. MULHERE: Yeah. HEARING EXAMINER DICKMAN: -- so -- but to that -- to that topic, the -- okay. So as far as the parking, it's all going to be -- is it all going to be on-site -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- quote, unquote, off-street parking? MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: And it's not going to be parking that's going to be like shared parking agreements between, you know, so -- MR. MULHERE: No, the site plan doesn't anticipate any shared parking. That certainly could happen in the future. There's a shopping center immediately adjacent to our -- strip center immediately adjacent to us to the north. I can't say that in the future that shopping center couldn't be interconnected with this, it would only improve the situation. HEARING EXAMINER DICKMAN: Where I'm getting with this is -- MR. MULHERE: But there's no proposal at that time -- at this time. HEARING EXAMINER DICKMAN: Where -- where I'm getting with this is is that, okay, so at full capacity just operating normally, it might work, but I'm also very aware that your client once operational can ask for special event permits and other things that could cause overflow -- MR. MULHERE: No, that's a good question. HEARING EXAMINER DICKMAN: -- and create -- you know, especially if Celebration Park has already obtained -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- their special events and then there's another special event, I know that those are approvals that are done -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- outside of my purview, but I'm just thinking about like -- MR. MULHERE: Well, no -- HEARING EXAMINER DICKMAN: -- overflow parking that might affect other -- the pedestrian safety, which is something I have to consider, things like that. MR. MULHERE: I think that's a good question. Look, I don't know whether in the future a special temporary use permit might be requested for this future project. It will meet the parking requirements for the LDC for the uses that are there. There -- there are opportunities -- I mean, I've done over the years -- look, I worked for Collier County for a number of years and reviewed temporary use permits in my really junior days at the front counter. You know, you do have to anticipate, and it's a very good question, if you're going to generate an interest through a temporary use permit for a special event, if you're going to generate -- first of all, if you're going to try to occupy the parking that's on the site with, you know, some -- a tent or something that might reduce the number of spaces and the staff has to look at that and say, you know, is there sufficient parking. Now, oftentimes what will happen is there'll be permission from the adjacent property owner to use their parking for the special event. Look, I don't know if that -- you know, this hasn't happened, the place isn't even built yet. But in the event that there's a special event, you know, there is an onus put on the applicant to demonstrate that there's going to be adequate parking to support that, you know, that use, that special event use. There's -- there's a number -- let me suggest to you. The other thing that the CRA is doing, as February 25, 2021 Page 29 of 31 I said before, is they're actually in the process of constructing a public parking lot and I doubt that that will be the last public parking lot, so the idea is to create a shed of parking, public parking in addition to the private parking that will accommodate visitors; we have this in the city of Naples, somebody -- I think Mr. Bass mentioned the city of Naples. There's an awful lot of restaurants, at least the last time I went up Fifth Avenue and Third Street and there's a lot of special events that do occur, there's a lot of live entertainment that occurs, yes, they have a different process in the City of Naples than we do in Collier County. So the CRA is looking at attracting new businesses that fall under the umbrella of the arts and entertainment district. They are looking at supporting those businesses with public parking. They are looking at improving Bayshore Drive to the tune of millions of dollars to enhance, you know, multimodal access and safe access. I know they're looking at landscaping, sidewalks, bike lanes. So I mean, this is just one business, one investment in that overall process. And, again, the waiver -- the separation requirement, you know, is there to -- to at least allow a public process or does at least allow a public process to look at the location of an establishment who may generate -- which may generate the majority of its revenue from the sale of alcoholic beverages for on-premise consumption that's located within 500 feet of another one or within 500 feet of a church, school or public park. So you did get an opportunity for the public to speak, but we already have one condition and we may have more conditions, so really this is a process to maybe, because we are requesting the waiver, put some conditions that will minimize the concerns that folks have expressed here. Without this public process, we could do this by right, with no conditions other than those that staff may put on an amplified sound permit, so I'm just saying, you know -- HEARING EXAMINER DICKMAN: Say that again. MR. MULHERE: Without this process -- if we were a restaurant, we wouldn't be going through a public process where people had input in it. HEARING EXAMINER DICKMAN: I get that. So the radius requirements -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- this would be as of right, but you do agree that there is -- there is a separation requirement -- MR. MULHERE: No, there is, there is, and -- HEARING EXAMINER DICKMAN: -- and so I mean, but there is -- MR. MULHERE: I'm suggesting it's a good thing we have a public hearing. HEARING EXAMINER DICKMAN: Yeah, so there is -- there is a right for you to -- your client to apply for this waiver and then demonstrate that -- MR. MULHERE: It qualifies. HEARING EXAMINER DICKMAN: -- that it -- that it qualifies and that there's enough to mitigate any potential impact that the radius requirement was put into place -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- that's -- you agree with that; correct? MR. MULHERE: Yes, I do. HEARING EXAMINER DICKMAN: Okay. So and would you also agree that under some of the factors I have to review, especially I'm looking at the pedestrian traffic and it was mentioned that, you know, at Celebration Park -- first of all, this is not about Celebration Park, but possibly an exasperation of overflow parking that would be along the roadway, let's say that hypothetically there's two special events going on, one at Celebration, one at -- I'm saying hypothetically because, you know, I'm sure staff at the county will review all this, you can't have two special events at the same time, but overflow parking -- and this happens a lot with churches, you know, they'll have overflow parking, people parking in the swale, along the streets, it encroaches in the neighborhood, so do you agree that I'm -- I'm -- it's within my jurisdiction to look at ways that I can craft conditions specifically to pedestrian safety, hours of operation, noise and light -- MR. MULHERE: Yes. HEARING EXAMINER DICKMAN: -- which could potentially generate from the premises February 25, 2021 Page 30 of 31 selling alcoholic beverages. MR. MULHERE: Those are -- those are the criteria, yes, I do. I think the parking though, I just want to reiterate -- HEARING EXAMINER DICKMAN: Yeah. MR. MULHERE: -- we're going through a site plan, we'll meet the -- I can't speak to what's going to happen -- HEARING EXAMINER DICKMAN: 100 percent, I agree with that and I'm coming from a place of knowing about once these things are approved, you know, there's -- frequently there's this kind of creep that kind of happens, you know -- MR. MULHERE: Yeah. HEARING EXAMINER DICKMAN: -- like sort of management or whoever it turns over -- I'm not pointing fingers at anybody, but, you know, the nature of the business is that, you know, you get an inch, you take a feet -- a foot, whatever, I don't know, you know what -- MR. MULHERE: I understand. No, and that's why -- I got it. HEARING EXAMINER DICKMAN: So I'm looking at ways to sort of not put the burden on code enforcement -- MR. MULHERE: Or the residents. HEARING EXAMINER DICKMAN: -- or the residents -- MR. MULHERE: No, I understand. HEARING EXAMINER DICKMAN: -- and try to take care of whatever I can and perhaps once it's operational, if some of these conditions have -- you've proven that maybe they're not necessary and you've become a good neighbor, not that you're a bad neighbor, but, you know, that they're not necessary and then you're -- you can always come back in and say, hey, look, now we're operational, we've got -- you know, this is -- we know more about what we're doing and we know the CRA's doing this. I mean, staff has -- has presented to me that the CRA is supportive of this and so -- MR. MULHERE: I understand. HEARING EXAMINER DICKMAN: -- I just want to get -- and maybe, I don't know if you need to ask your client or not or if you could just represent that, you know, I may -- I have the ability to put additional conditions on this. MR. MULHERE: I understand that and I don't need to ask the client. I mean, that's clear to me. HEARING EXAMINER DICKMAN: Okay. All right. And then, again, you know, it's been represented to me by county staff that then you have the right at some point down the road to come back and in and say, well, that condition, you know, is really not necessary anymore because through the site plan approval and so forth we've changed all this stuff around and we've been able to deal with that. MR. MULHERE: I got it. HEARING EXAMINER DICKMAN: So -- MR. MULHERE: Operational history proves that maybe it wasn't a issue and become -- I mean, I do understand the issues that -- though I wasn't directly involved in Celebration Park, I do understand the issues that, you know, that centered around parking particularly when they opened and there were the off-site parking across the street wasn't built, wasn't approved and there was insufficient parking and it was an issue and as I understand it, that off-site parking, you know, then -- I think I was here for the hearing examiner, prior to your time, was here for the hearing examiner hearing on the off-site parking and that addressed that issue, that was sufficient parking to address that issue. So this is across the street, it's a separate use and I think you raise a good point and I think staff's here and hears it relative to temporary use permits, you certainly wouldn't -- you would certainly want to be aware if there were two temporary use permits going on at two different locations across the street by the same owner, yeah, you'd want to be aware of that. HEARING EXAMINER DICKMAN: Yeah, okay. You get my point on that one. I have no further questions. Does, Ray, county have anything else you want to add to this? February 25, 2021 Page 31 of 31 MR. BELLOWS: No other questions from my behalf. I don't know if Nancy might. HEARING EXAMINER DICKMAN: Nancy? MS. GUNDLACH: I do not. HEARING EXAMINER DICKMAN: Nancy says she does not. MR. MULHERE: Thank you for your time, we appreciate it. HEARING EXAMINER DICKMAN: Yes. Put your mask back on before you wander around out there. MR. MULHERE: Thank you for the reminder. HEARING EXAMINER DICKMAN: Okay. All right. To the applicant, the applicant's representative, to the county and especially to the community surrounding this, I want to express my deep appreciation for your conduct and your expressions. The emails I have, I will take them into consideration. I think this was -- maybe some of you thought that I asked too many questions about this, but I'm also very cognizant of what these things look like once they're operational, so I definitely appreciate everyone indulging me in these conversations and discussing it with you, so -- and, Mr. Bass, please express that to your clients as well. I appreciate that. Thanks everybody for the information and we'll close that public hearing part. Thank you. On the agenda I see no other items. Other business, any other business? No? Okay. See no other public comments. I think we are going to adjourn. All right. I think we -- we are adjourned. Appreciate it, everybody. * * * * * * There being no further business for the good of the County, the meeting was adjourned by order of the Hearing Examiner at 11:12 a.m. COLLIER COUNTY HEARING EXAMINER ______________________________________ ANDREW W.J. DICKMAN, HEARING EXAMINER These minutes approved by the Hearing Examiner on __________, as presented _______ or as corrected ______. TRANSCRIPT PREPARED ON BEHALF OF U.S. LEGAL SUPPORT, INC., BY TERRI L. FERREIRA, COURT REPORTER AND NOTARY PUBLIC.