STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEST WESTERN TIVOLI INN, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2180T

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on February 13, 1979, in Chipley, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon a Notice of Violation served by the Department of Transportation on Best Western Tivoli Inn regarding two signs, one located one mile east of State Road 79 on Interstate 10 and the other located one-half mile west of State Road 79 on Interstate 10, which were alleged to be in violation of Sections 479.07 and 479.11(1), Florida Statutes, and Rules 14-10.04 and 14-10.05, Florida Administrative Code.

The Department of Transportation presented evidence that. the signs existed at the locations stated above, bore copy advertising Best Western Tivoli Inn, were owned by a Mr. Fleming, were within 660 feet of an interstate highway outside an incorporated municipality or town, and were visible from the highway. The Department of Transportation failed to produce substantial and competent evidence that the signs were located in an unzoned area outside an incorporated municipality or town.

The issue presented in this case is whether the signs in question are in violation of Sections 479.07 and 479.11(1). Florida Statutes, and Rules 14-

1. and 14-10.05, Florida Administrative Code.

   
   

   APPEARANCES

   
   

   For Petitioner: James Moore, Esquire

   Post Office Box 746 Niceville, Florida 32570

   
   

   Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428

   
   

   For Respondent: Frank King, Esquire

   Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

   FINDINGS OF FACT

   
   

   1. The signs located one mile east of State Road 79 on Interstate 10 and one-half mile west of State Road 79 on Interstate 10 and bearing copy advertising Best Western Tivoli Inn are owned by Mr. Fleming. These signs are located within 15 feet of the right-of-way of a federal interstate highway outside an incorporated municipality or town. The copy of these signs is visible from the interstate highway. The signs do not have permits issued by the Department of Transportation attached to them.

      
      

      CONCLUSIONS OF LAW

      
      

   2. The Department of Transportation has charged Best Western Tivoli Inn with a violation of Sections 479.07 and 479.11(1), Florida Statutes, and Rules 14-10.04 and 14-10.05, Florida Administrative Code. Section 479.07 provides in summary that any person who shall construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used or maintained, any outdoor advertising structure outside any incorporated city or town must first obtain a permit therefor from the Department of Transportation, paying the annual fee; and any person who shall construct, erect, operate, use, or maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertising structure along any federal-aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on a form provided by the Department. Rule 14-10.04 restates in summary the provisions of Section 479.07(1) and provides the method for applying for and obtaining a permit. The testimony presented showed that the signs in question exist outside any incorporated city or town; therefore, these signs should bear a permit, and are in violation of Section 479.07 and Rule 14-10.04 because they do not have permits attached.

      
      

   3. Rule 14-10.05 provides that certain outdoor advertising is prohibited, specifically any outdoor advertising structure which is constructed, erected, used, operated, or maintained within 660 feet of the nearest edge of the right- of-way of all portions of the interstate system or the federal-aid primary system except as provided in Section 479.111, Florida Statutes, or within 15 feet of the outside boundary of any other federal or state highway. Section 479.111(2) provides that signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to the agreement between the Governor of the State of Florida and the U.S. Department of Transportation shall be permitted within the controlled positions of interstate and federal-aid primary systems. The agreement existing between the Governor of the State of Florida and the U.S. Department of Transportation is adopted as Rule 14-10.09, Florida Administrative Code. Said rule defines unzoned commercial and industrial areas as an area within 660 feet of the nearest edge of the right-of-way of the interstate, federal-aid primary system, or state highway system not zoned by state 1or local law, regulation or ordinance in which there is located one or more industrial or commercial activities generally recognized as commercial or industrial by zoning authorities in this state except as the following activities may not be recognized: outdoor advertising structures; agricultural, forestry, ranching, grazing, farming, and related activities, including, but not limited to, wayside fresh produce stands; transient or temporary activities; activities not visible from the main travel way; activities more than 660 feet from the nearest edge of the right-of-way; activities conducted in a building principally used as a residence; and railroad tracks and minor sidings. The unzoned commercial or industrial areas shall only include those lands on the same side of the highway which are within 800 feet of such commercial or industrial activity. Commercial and industrial zone means an area within 660

      feet of the nearest edge of the right-of-way of the interstate, federal-aid primary system, or state highway system zoned commercial or industrial under the authority of state law.

      
      

   4. If the signs in question were located in an area zoned commercial or industrial, they could exist within the 660-foot zone next to an interstate highway outside the incorporated municipality or town. However, they would have to bear a permit as required by Section 479.07, Florida Statutes.

      
      

   5. The Department of Transportation did not present any substantial or competent evidence regarding the nature of the zoning in the location of the two signs in question; therefore, it cannot be determined whether these signs violate Section 479.11(1), Florida ?Statutes.

      
      

   6. It is inherent in the administrative process that notice of a pending action be given to a person whose substantial interests may be affected by the pending administrative action. In the instant case, the Department of Transportation gave notice of this proceeding to Kenneth Fleming and Tivoli Inn. See Notice of Violation. Also, Fleming admitted ownership of the signs to the sign inspector for the Department of Transportation. Signs which do not bear a permit as required are declared a public nuisance by Section 479-.17, Florida Statutes, and may be removed after the owner is given 30 days to show the sign does not violate the law. The Department of Transportation presented no substantial and competent evidence concerning the zoning in the area the signs are located. Because an exception exists for the signs constructed, erected, operated, used, or maintained within 660 feet of an interstate highway in an area zoned commercial or industrial, the Department of Transportation has failed to prove that the signs in question are in violation of Section 479.11(1) and Rule 14-10.05. There is substantial and competent evidence that the signs in question violate Section 479.07, because they do not have permits attached.

RECOMMENDATION

Based on the violation of Section 479.07, Florida Statutes, the Hearing Officer recommends that the Department of Transportation direct the owner to remove said signs.

DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

James Moore, Esquire Post Office Box 746 Niceville, Florida 32570

Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428

Frank King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

IN RE: NOT EFFECTIVE UNTIL TIME EXPIRES TO FILE FOR JUDICIAL REVIEW AND

BEST WESTERN TIVOLI INN, DISPOSITION THEREOF IF FILED

Petitioner,

vs. CASE NO. 78-2180T

FLORIDA DEPARTMENT OF TRANSPORTATION,

Respondent.

/

FINAL ORDER

The record and evidence in this case has been fully and completely reviewed along with the Recommended Order of the Hearing Officer herein. The Findings of Fact and Conclusions of Law of the Hearing Officer are supported by the records and are adopted and made a part of this Order. Based on the finding of a violation of Section 479.07, Florida Statutes, which makes the subject signs subject to removal by legal representatives of the Department, it is

ORDERED that the subject signs be removed. DONE AND ORDERED this 11th day of April, 1979.

WILLIAM N. ROSE, SECRETARY STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32304

COPIES FURNISHED:

James Moore, Esquire Post Office Box 746 Niceville, Florida 32570

Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428

Stephen F. Dean Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

BEST WESTERN TIVOLI INN NOT FINAL UNTIL TIME EXPIRES

TO FILE REHEARING PETITION AND

Appellant, DISPOSITION THEREOF IF FILED.

vs. CASE NO. 00-36

DOAH CASE NO. 78-2180T

FLORIDA DEPARTMENT OF TRANSPORTATION,

Appellee.

/ Opinion filed October 30, 1979.

An Appeal from an Order of the Department of Transportation. Gerald Holley, for Appellant.

H. Reynolds Sampson, General Counsel, Department of Transportation; Alan L. DeSerio, Attorney, Department of Transportation, for Appellee.

PER CURIAM.

AFFIRMED.

ROBERT SMITH, Acting Chief Judge, ERVIN AND BOOTH, JJ., CONCUR.

Docket for Case No: 78-002180

Orders for Case No: 78-002180