Smoothie King franchisees prevail at City Council

BRADENTON - The Bradenton City Council voted 3-2 Wednesday night to approve a special use for the drive-through at the Smoothie King at 3816 Manatee Ave. W., but only after a long session and debate with dueling lawyers and franchise owners.

The franchisee of Smitty's, S.J. Cantolino, contended, in person and through lawyers, that the drive-through is not permitted and its use is causing problems for his business and could lead to a loss of property value.

David Cotrone and the co-owners of the Smoothie King contended that losing their drive-through and parking spaces on the east side of the building could lead to them losing their whole investment in the store and the shutdown of the business.

A motion to allow the drive-through but require Episcopal Day Private School (St. Stepehen's), the owner of the Smoothie King's property, to eliminate all but the handicapped parking space on the east side failed on a 3-2 vote. The second motion passed, though.

The building was put up in 1966, the agenda memo said, and was remodeled into a Burger Chef with a drive-through. At the time, the property was in Manatee County. In 1994, it reopened as Schlotzky's Deli and the existing drive-through was not approved because it had not been used in more than a year, but the county allowed a call-ahead pickup window.

In May 2000, the site was annexed into the city of Bradenton, and in September the property was rezoned C-3. It became a Cup-a-Joes Smoothie & Deli in July 2006 after an interior renovation permit, and then in September 2008 an interior renovation permit was pulled for a Smoothie King.

The memo notes that at the time of annexation the Schlotzky's deli was using the drive-up window, and the city had no notification that it was supposed to be a pickup window only, and not a drive-through. The current record from the Manatee County Property Appraiser lists the use as "Drive In Restaurant."

Cotrone said during the meeting that he and his partners were told by the city that a drive-through was an approved use, and that they chose the site because they could have the drive-through. It was only when the renovations were almost finished that they heard of the objections by Cantolino.

Cotrone said St. Stephen's has moved the Dumpster and relocated the FPL transformer at its expense, but it seems like more requirements come in whenever they comply with the Smitty's requests.

"We have tried to be good neighbors," he said. He said he's worried because Cantolino comes out and takes pictures of the vehicles using his drive-through.

Attorney Patricia Petruff, representing the owners of the Smitty's property, argued that the council shouldn't make this their issue, and approving the use would do just that.

Allowing the use would deny property rights to her client, she said, and she added that it's a safety issue because of the cars that sometimes dodge each other in the parking lot. She showed a video, from a camera mounted on Smitty's, that appeared to show near-misses due to the drive-through.

Council members listened patiently, but at one point Gene Gallo wondered about why the fight had ended up in front of them. "It's like a couple of hens fighting over a backyard fence," he said more than once.

After the vote, Cotrone, his wife, his business partners and lawyers raced out from the cold council chambers and stood outside in the warm night, and talked quietly but excitedly.

"I know it's over, and I know that it's a step in the right direction," he said. "I think there's a lot of wasted money here. It didn't have to go this way. It could have been just two businesses working it out together."

Also Wednesday, the City Council approved the following on the consent agenda on a 5-0 vote:

• Minutes of September 9, 2009.

• Budget minutes of September 9, 2009.

• Resolution 09-68-SHIP Housing Rehabilitation Tiller Contract, 201 24th Street N.E.

• Public Event -- Request to change date for Walk and Wag-a-thon.

• Public Event -- Veterans Day Parade, Wednesday, Nov. 11, 2009.

• Public Event -- Wedding at Rossi Park, Saturday, Nov. 7, 2009.

And the Council approved 5-0 the third reading of an ordinance amending the comprehensive plan.