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Issue 574

02/09/2012 at 4:22pm
No AlcoholCOP Ordinance Presented
at Council Workshop

A consistent policy regarding COP (Consumption on Premises) on the beach got one step closer to reality Monday when Town Council reviewed the latest version of the ordinance and asked staff to make several additional changes before the ordinance – which was passed by the Local Planning Agency (LPA) on January 12th – goes before council in the first of several public hearings beginning next month.

Before beginning the discussion, council broke with tradition when they elected to allow public comment before a workshop. Beach Pub co-owner Lou Caleca went first, asking if the requirement for biodegradable cups could be dropped due to expense.

"Also, if we have to put our names on the cups, anyone could disperse our cups all over the island to make it look like we're not in compliance," he said. "Also, having to pour everything into a cup - including all our cans - would quadruple our trash."

Lee Melsek - speaking as a representative of the Civic Association - strongly encouraged council to not adopt the COP changes.

"We think enforcement down the road is going to be a nightmare," he said. "The previous three LPA's agreed with us, and we urge you to abandon this thing."

Captain Matt Powell complimented Caleca on the great job he's done with his business and asked if the 'areas of responsibility' where drinking will take place could be roped off.

"I like the idea of the cups because it's another source of accountability," he said.

Terry Stewart explained that a resolution was crafted by the LPA based on council's direction that they craft something through the Land Development Code.

"Staff did an exhaustive amount of research into the history of service on the sand," he said. "There are 12 places that currently have service on the sand, and a total of 18 that might serve if given the opportunity to do so. There has never been any action by any LPA that said that there shouldn't be.”

Community Development Director Walter Fluegel then gave a presentation.

"This certainly has been one long strange trip," he quipped as he began. "From January to May of 2011 staff conducted observations of COP in the EC (Environmentally Critical) zone and did research into what was working for the businesses who currently do serve to see what works and what doesn't. These findings were presented to the LPA in October of 2011, and we presented them with a draft of an approach to regulating COP in the EC in November and an Ordinance on January 12. We found that Special Exception has been the preferred method of approval, with 7 of the 12 being approved in this fashion.

Fluegel explained that staff had found that, outside of the Downtown Entertainment District, 4 out 5 COP's are at resorts, 7 out of the 12 were approved for COP directly on the beach, 6 have no restrictions on outdoor entertainment and 6 are located at resorts.

"In 2004, with the creation of the EC (Environmentally Critical) zoning district, several properties that previously were one consistent zoning district for the entire property were left under two sets of rules when they became bifurcated by the EC Zoning District," he continued.

Fluegel went on to explain how staff also reviewed every council and LPA meeting since the Town's incorporation until the creation of the EC District to see exactly what was done in regards to COP on the sand.

"We discovered some key facts,” he said. "The number of historic approvals of COP in the EC by prior Councils suggest that COP in the EC was deemed a permissible use,” he said. "We identified 18 establishments with COP adjacent to the EC. Of those 18, 12 had approval that in some form or another pierced the EC zoning district. Seven were accomplished by special exception, two of them approved by CPD zonings, two by state permits only (before incorporation) and one county administrative. Three had closing hours of 10pm, three no closing hours and six no restrictions on outdoor music.”

"Our analysis concludes that COP has been established as a permissible use in the EC, but there has been a lack of consistency in hours, approval methods, conditions of approval, etc.,” Fluegel finished before presenting the final two slides giving an overview of the proposed ordinance:

Standard Conditions:

The area of expansion is limited to 1/3 of the distance from the EC Zoning line or rear building/deck line (if the building extends over the EC Line) seaward to the mean high water line.

The area of expansion must be enclosed on three sides by rope and post.

One 6' wide pedestrian access opening is allowed per 100' of the rope and post along the side parallel to the waterline. Each pedestrian access point shall contain 2' by 1' signs that indicate no alcohol is allowed beyond that point and refuse containers shall be provided at each access point to the beach.

There is no parking requirement for the expansion.

All beverages within the area of expansion must be served in plastic biodegradable cups with the establishment's name on the cup.

Hours of service in the area of expansion are limited to between 11am and 30 minutes after sunset

The area of expansion must be under the same ownership as the licensed premise and immediately adjacent to the upland licensed premise

Patrons may not bring their own alcohol into the area of expansion.

No entertainment shall be allowed into the area of expansion, except for by Special Exception.

The area of expansion must be kept free of litter and debris on a continuous basis.

As far as the procedure for granting the expansion, the 12 establishments that already have COP will be done by administrative amendment, those with approval for COP adjacent to the EC but not in it will be accomplished by administrative amendment within the downtown district (DD) only, with those outside (resorts only) having to go through CPD rezoning. Also, new establishments will be granted COP in the EC only by Special Exception in the DD, and CPD rezoning (resorts only) outside.

During the lengthy discussion that followed, Councilman Joe Kosinski asked about the new beach and how it will effect the ordinance, and Stewart replied that, in the instance where beach renourishment has happened, the seaward edge will work off of the erosion control line.

Fluegel then explained why Top 'O Mast doesn't have approval to serve in the EC.

"They have never been approved to serve on the beach," he said. "In 1986, they came to the Bureau of Alcohol and Tobacco with amended site sketches which were never approved. In my conversation with the State, they were never issued a state license that extends to the beach - just inside the deck area and restaurant. In 1988, they were given a violation that says they may conduct no sales of alcohol either in the parking lot or on the beach.”

Stewart explained that they could get approval with the new ordinance and by resending the sketches to ABT.

Mayor Larry Kiker said what staff is trying to do is to make it consistent across the board for everyone.

Councilman Alan Mandel asked that if they currently have right to music, they can keep it but if not, they have to apply for a special exception.

Councilman Bob Raymond said he doesn't agree with the roped off area being open to the beach at all, and Kosinski said that he doesn't like the ropes, period,

"Ropes and posts? Do we really want to put our tourists in a corral?” he said. "The Lani Kai and the Beach Pub internally control it and they do a good job."

The State of Florida Alcoholic Beverages and Tobacco Dept require a license holder to have "dominion and control” over the area of service. Acceptable dominion and control methods are deck, rope and post or a security detail. Lani Kai uses a security detail. The Beach Pub uses rope and post.

Fluegel said that - at peak - Lani Kai has 25 people on staff, and that most businesses cannot afford that, making extra work for law enforcement.

Council agreed to ask staff to look into other choices regarding the ropes and posts, but agreed to the pedestrian openings and the signs.

As far as the biodegradable cups, Councilwoman Jo List suggested making it an incentive program.

"For instance, if they agree to that perhaps they could save money on reduction in fees or something," she said. "Some businesses like Lou's don't have the extra money for these cups, and why should he be penalized when he's doing such a great job."

They eventually agreed to require having the establishment's names on the cups but to drop the biodegradable requirement. They also agreed on the hours of service unless - like the Beach Pub – the establishment has had that privilege already via special exception. There will also be no entertainment in the EC unless there is a special exception.

Mayor Kiker asked for another work session once staff rewrites the ordinance with what council requested today and Stewart suggested simply having staff send their work to council and then they will discuss it at an actual council meeting as an introduction.

"I'd also like to hear what the business owners have to say," he said.

Finally, Raymond thanked Fluegel for the 300+ hours he'd put into his report.

Finally, List said she is concerned about Fourth of July and New Years, as Bill and Joanne Semmer have notified the Town of their intention to retire from running the fireworks show. Stewart explained that the Town's new Parks and Recreation Director, Patti Evans, has extensive background in event planning.

"We are ready to move forward," he said. "The real issue is who in the community is going to step up and volunteer, and where the dollars are going to come from."

John Lallo, owner of Pete's Time Out, offered

to help out with his newly created Times Square Alliance.

"This past New Years, when Bruce became ill, Tina Eichen and myself walked around and raised over $5,000 for the event," he said. "We're going to take over the 501-c6 - the old Times Square Alliance – that was started by Bruce Cermak, Anita Cerceda and Yorge Webe."

Stewart said that staff will put together a report on what needs to be done and add it to his weekly report and Kiker suggested also bringing it to CELCAB (Cultural and Environmental Learning Center Advisory Board).

The next workshop for the Town of Fort Myers Beach will be held on Tuesday, February 21st at 9am at Town Hall, 2523 Estero Boulevard. For a complete agenda, go to

Keri Hendry