Bentley Assists the Florida Petroleum Marketer’s Association to Improve Tampa’s Alcoholic Beverage Law

Beginning on April 1, 2008 the process property owners and business owners in the City of Tampa (“City”) must follow to obtain the right to sell and/or serve alcohol significantly changed. Prior to April1, 2008, an owner’s right to sell alcohol was obtained from the City through a process described as “wet zoning.” “Wet zoning” property for the sale of alcohol vested a compassable property right in the property which “ran with the land.” In 2007 the City sought to change this “wet zoning” process by converting it to a revocable “special use” permitting process.

Tampa attorney Mark Bentley, Board Certified by the Florida Bar as an expert in City, County and Local Government Law, and by the American Institute of Certified Planners (AICP) as an expert in planning represented by the Florida Petroleum Marketer’s Association (“FPMA”) before the Tampa City Council and expressed FPMA’s concerns with the new process. Specifically, Mr Bentley indicated that the proposed increased technical requirements, costs, and tie delays would adversely affect FPMA’s members.

A primary concern was the excessive time that it would take to acquire a “special use” permit to sell alcohol which would have increased from 8 weeks for a “wet zoning” to 18 weeks for a “special use” permit. In addition, the City’s proposed ordinance would require costly surveys from engineers, plans from architects and planners, and other expert analysis before a permit could be issued. These new requirements would have more than doubled the time and costs of obtaining authorization to sell alcohol.

The FPMA also expressed concerns with the City’s automatic “dry up” period whereby if a sale was not made every 30 days the property would be cited by the City, and the owner would have 30 days to resume alcoholic beverage sales or would forfeit the right to sell alcohol. The City asserted that the property owners could be granted a 150 day administrative extension, however Mr. Bentley argued that pursuant to the ordinance the extension could not be granted until after the property was cited by the City. Mr. Bentley further argued that obligating property owners to play a “cat and mouse” game waiting until the property has been cited by the City places an undue risk and burden on property owners to constantly inspect the property to discover if their business or their tenant has been cited and if it has how long the 30 day meter has been running.

Mr. Bentley proposed that the City eliminate the 30 day period, and institute a voluntary extension period affording property owners 180 days to resume sales, thereby elimination the property owner’s obligation to wait until his property is cited by the City.

A final concern expressed by FPMA was the City’s proposed language that in order to obtain “a special use” permit the applicant must demonstrate to City Council that the sale of alcohol would “promote the public health, safety, and general welfare” of the City. Mr .Bentley argued that this would be an “insurmountable burden, and if City Council warned to arbitrarily impose the requirements that the sale of alcohol must promote the public welfare, Council could, at its discretion, effectively deny every “special use” permit for the sale of alcohol.”

As a result of Mr. Bentley’s efforts, the City agreed to make the following changes that would dramatically decrease the time, costs, and uncertainty of the City’s alcoholic beverage approval process:

• Increased the 30 day automatic “dry up” period to 60 days;
• Instituted a voluntary option for property owners to their tenant to request a 180 day extension before the property is cited by the City which could be extended without limitation;
• Changed “promote the public health, safety, and general welfare” to “ensure the public health, safety, and general welfare,” and;
• The City reduced the number of expert reports required and even waived their standards under certain circumstances

If you have any questions or comments please feel free to contact Mark Bentley at mbentley@bentleylawfirm.net or at (813) 223-5050.

Bentley mentioned in FPMA Food and Fuel Notes (PDF)

Mark Bentley, P.A. Bulletin – City of Tampa Approves Less Restrictive Regulations on Sale of Alcohol (PDF)