STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-0796T

)

FUQUA & DAVIS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard in April of 1983 in Chipley, Florida by Stephen F. Dean, assigned Hearing Officer, of the Division of Administrative Hearings. The Recommended Order in this cause was delayed first while the Respondent initiated a collateral rule challenge and, subsequently, while a related case was on appeal. It was not until the summer of 1984 that the Department of Transportation requested that the Recommended Order be entered. Subsequent to the hearing, the parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings are not contained herein, they are rejected as being either not supported by competent substantial evidence, irrelevant or immaterial to the issues in dispute or as constituting legal conclusions as opposed to factual findings.

APPEARANCES

For Petitioner: Charles Gardner, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301

For Respondent: James J. Richardson, Esquire

Post Office Box 1838 Tallahassee, Florida 32302

ISSUES

The Administrative Complaint in this cause charges that the subject sign violates Sections 479.071 and 479.021(a), Florida Statutes, and Rule 14-10.09, Section 3, Florida Administrative Code, which is the same as Rule 14- 10.06(b)(2)(b), Florida Administrative Code, supra. The Respondent admits ownership of the outdoor advertising structure and that it does not bear a tag as required by Chapter 479, Florida Statutes; however, the Respondent asserts that the sign in question qualifies as an exception and is entitled to a tag pursuant to the provisions of Section 479.111, Florida Statutes. The Petitioner asserts that the sign does not qualify for a tag and stipulates that had the Respondent applied for a tag that said application would have been denied. The Respondent also contends that the sign is exempt from operation of the outdoor advertising law in all respects pursuant to the provisions of Section 479.16(1),

Florida Statutes. Based upon the foregoing, the following issues of fact are raised:

1. Is the subject sign an on-premises sign for purposes of the exemption stated in Section 479.16(1), Florida Statutes, and

   
   

2. Is the sign located in an unzoned commercial or industrial area as defined by Section 479.111(2) and Rule 14- 10.06(b)(2)(b), Florida Administrative Code, and

   
   

3. Does the subject sign meet the spacing requirements set forth in Rule 14-10.06(b)(2)(b), Florida Administrative Code?

FINDINGS OF FACT

The parties stipulated to the facts as found in paragraphs 1 through 9 below.

1. The subject advertising structure is an advertising sign as defined by Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code.

   
   

2. The subject sign is located in Jackson County, Florida.

   
   

3. The subject sign is not within the corporate city limits of any city or town.

   
   

4. The subject sign is within 660 feet of Interstate 10.

   
   

5. The subject sign is owned by the Respondent, Fuqua & Davis, Inc., a Florida corporation.

   
   

6. The subject sign does not have a permit as required by Chapter 479, Florida Statutes.

   
   

7. The Petitioner, Department of Transportation, would not issue a permit as required by Chapter 479, Florida Statutes, for the subject sign.

   
   

8. There is no zoning in Jackson County, Florida.

   
   

9. Interstate 10 is an interstate highway as defined in Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code, and said interstate highway was open for vehicular traffic at the time sign was erected.

   
   

10. The sign can be seen from the main traveled way of I- 10.

    
    

11. The subject sign is located at the interchange of State Road 69 and Interstate 10. In this location, there are several commercial enterprises; a Union 76 gas station, a Phillips 66 gas station, a western wear shop, an Exxon gas station, and the Respondent's Shell gas station. These, together with the sign, are identified on Petitioner's Exhibit 1, an aerial photograph.

    
    

12. The area surrounding the interchange of State Road 69 and Interstate

    10 in which the sign is located is an unzoned commercial area. This finding is based upon the testimony of a real estate appraiser together with the businesses which are located in this area. The evaluation of property to commercial within an interchange commences with the construction of an interstate highway and

    progresses toward a total commercialization of the property. The highest and best use for the land is commercial and it has begun that transition.

    
    

13. The location of the subject sign is identified on Petitioner's Exhibit

    1 in Case Nos. 81-191T and 80-796T, an aerial photograph. The subject sign is located adjacent to an interchange on an interstate highway. It is not located on the premises of the business advertised. The sign is over 1,000 feet away from and across SR 69 from the advertised business on non- contiguous property.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Department of Transportation regulates outdoor advertising pursuant to the provisions of Chapter 479, Florida Statutes. This Recommended Order is entered pursuant to the provisions of Chapter 120, Florida Statutes.

    
    

15. The Administrative Complaint in this case asserts that the Respondent's sign is in violation of Chapter 479, Florida Statutes, because it fails to bear the required tag and that such tag could not be issued to the Petitioner for the sign because it violates the spacing requirements set forth in Rule 14- 10.06(b)(2)(b), Florida Administrative Code. The Respondent asserts that the subject sign is entitled to the required permit pursuant to the exception in Section 479.111, Florida Statutes. Section 479.111, Florida Statutes, permits signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to the agreement established by Section 479.02, Florida Statutes. The agreement established pursuant to Section 479.02, Florida Statutes, includes the provisions of Rule 14- 10.06(b)(2)(b) , Florida Administrative Code. Therefore, the subject sign must not only be within a zoned commercial or industrial area or an unzoned commercial or industrial area, but also must conform to certain spacing requirements. The spacing requirements of Rule 14-10.06(b)(2)(b), Florida Administrative Code, provide that no structure may be located adjacent to or within 500 feet of the widening of the highway for an interchange, intersection at grade, or safety rest area. The aerial photograph (Petitioner's Exhibit 1) clearly shows that the subject sign is adjacent to the interchange and, therefore, does not meet the requirements for an exception to Section 479.111, Florida Statutes.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Final Order of the Department be issued requiring removal of the sign within thirty (30) days by the Respondent.

DONE and ORDERED this 20th day of December, 1984 in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Charles Gardner, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301

James J. Richardson, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302

Mr. Paul Pappas Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 20th day of December, 1984.

Docket for Case No: 80-000796

Orders for Case No: 80-000796